[Cite as State v. Cook, 2013-Ohio-2014.]

 

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 25302 

Plaintiff-Appellee : 

: Trial Court Case No. 2011-CR-3546 

v. : 

: 

ROBERT COOK : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 17th day of May, 2013. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 

972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

ADELINA E. HAMILTON, Atty. Reg. #0078595, Law Office of the Public Defender, 117 South 

Main Street, Suite 400, Dayton, Ohio 45422 

Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

FAIN, P.J. 

{¶ 1} Defendant-appellant Robert Cook appeals from his conviction and sentence, 
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following a plea of no contest, for one count of Possession of Heroin. Cook contends that the 

trial court erred by overruling his motion to suppress evidence that he claims was obtained as the 

result of an unlawful search and seizure. 

{¶ 2} We conclude that the trial court did not err in overruling the motion to suppress. 

The officers had reasonable articulable suspicion justifying the initial stop. When one of the 

officers looked inside a bulge in Cook’s sock, finding a packet of heroin, he had probable cause 

to believe that the bulge constituted contraband. Accordingly, the judgment of the trial court is 

Affirmed. 

I. The Stop, Search and Seizure

{¶ 3} Dayton Police Officers Will Wright and Mark Orick were on separate patrols at 

12:30 p.m. one day in October 2011, when they were both dispatched to investigate a suspicious 

vehicle parked in the median “where they were doing construction” on Interstate 75 near Edwin 

C. Moses Boulevard. The vehicle was described as a tan or brown Oldsmobile or Buick. The 

occupants were described as sleeping. As the officers approached the area, dispatch notified 

them that the vehicle had traveled onto Edwin C. Moses Boulevard and turned onto Arena Park 

Drive. Both officers arrived at the end of Arena Park Drive; there they observed the described 

Buick parked in a paved area of a local business where tractor-trailers are loaded. 

{¶ 4} The officers left their respective cruisers to approach the vehicle. Officer Wright 

noticed a male passenger, Cook, seated behind the male driver, reaching down toward the 

floorboard of the car with his hands obscured. Officer Wright ordered Cook to show his hands. 

When Cook failed to comply, Wright drew his gun and repeated the order. The order was 
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repeated again before Cook complied. Officer Orick then removed Cook from the vehicle, and 

Wright removed the driver. 

{¶ 5} Cook did not have on shoes, and only his right foot was covered with a sock. 

Both men appeared to be lethargic, with droopy eyes and constricted pupils. Officer Orick 

secured Cook in handcuffs, and proceeded to conduct a pat-down search prior to placing Cook 

inside a cruiser. As Orick sat and checked Cook’s information, he could hear Cook moving his 

feet underneath the car seat, and felt Cook’s legs hitting the back of the seat. Orick ordered Cook 

to sit still. When Cook did not comply, Orick exited the cruiser and faced the rear driver’s side 

window. He saw Cook leaning over and using his left foot to pull down the sock on his right 

foot. 

{¶ 6} Orick opened the cruiser door and ordered Cook to place both of his feet outside 

the vehicle. Orick noticed a bulge in the sock on Cook’s foot. Orick pulled the sock down and 

removed a folded piece of paper from it. The paper contained a substance Orick recognized as 

heroin. The substance was tested and was positive for heroin. Cook was arrested. Once Orick 

finished running information on Cook, he administered warnings pursuant to Miranda v. Arizona, 

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 

II. The Course of Proceedings

{¶ 7} Cook was indicted on one count of Possession of Heroin, in violation of R.C. 

2925.11(A), a felony of the fifth degree. Cook moved to suppress evidence. Following a 

hearing, the trial court denied the motion. Cook then entered a plea of no contest, and the trial 

court found him guilty as charged. The trial court sentenced Cook to a term of community 
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control sanctions not to exceed five years. From his conviction and sentence, Cook appeals. 

III. The Stop, the Search, and the Seizure of the Heroin Were Lawful

{¶ 8} Cook’s sole assignment of error states as follows: 

THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT’S 

PREJUDICE WHEN IT OVERRULED HIS MOTION TO SUPPRESS. 

{¶ 9} Cook contends that the police had no basis for stopping the vehicle he was in or 

for seizing his person. He further contends that the police lacked probable cause for a search of 

his sock, because there was no evidence that the packet containing heroin found therein was 

subject to plain feel or plain view. 

{¶ 10} In deciding a motion to suppress, “the trial court assumes the role of trier of facts 

and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.” 

State v. Hopfer, 112 Ohio App.3d 521, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham,

96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must accept the 

trial court's findings of fact if they are supported by competent, credible evidence in the record. 

State v. Isaac, 2d Dist. Montgomery No. 20662, 2005–Ohio–3733, ¶ 8, citing State v. Retherford,

93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, the appellate 

court must then determine, as a matter of law and without deference to the trial court's legal 

conclusion, whether the applicable legal standard is satisfied. Id.

{¶ 11} We conclude that the trial court's findings of fact, summarized in Part I, above, 

are supported by the evidence in the record. Accordingly, we turn to the constitutionality of the 

search and seizure. The Fourth Amendment to the United States Constitution and Article I, 
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Section 14 of the Ohio Constitution protect individuals from unreasonable searches and seizures. 

This generally requires that a police officer possess a warrant in order to search an individual. 

Arnold v. Cleveland, 67 Ohio St.3d 35, 45, 616 N.E.2d 163 (1993). However, this protection is 

not implicated in every situation where police officers have contact with an individual. State v. 

Taylor, 106 Ohio App.3d 741, 747, 667 N.E.2d 60 (2d Dist.1995). 

{¶ 12} A police officer may briefly stop and detain an individual without an arrest 

warrant or probable cause for an arrest in order to investigate the officer's reasonable suspicion of 

criminal activity. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In order 

to justify a brief, investigative stop, the officer “must be able to point to specific and articulable 

facts which, taken together with rational inferences from those facts, reasonably warrant that 

intrusion.” State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991), citing Terry at 

21–22. “The propriety of an investigative stop by a police officer must be viewed in light of the 

totality of the surrounding circumstances.” Terry at 27. The circumstances surrounding the stop 

must “be viewed through the eyes of a reasonable and cautious police officer on the scene, guided 

by his experience and training.” State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988), 

quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976). 

{¶ 13} The officers were dispatched to investigate a vehicle, with sleeping occupants, 

parked in the median of Interstate 75 “where they were doing construction.” Enroute, the officers 

were informed that the vehicle had left the highway and was headed to Edwin C. Moses 

Boulevard. As the trial court noted, “although the original concern of a traffic hazard had 

dissipated, the officers were justified to further investigate because it was reported that the 

occupants of the vehicle were asleep [while parked on the Interstate].” Officer Wright testified 
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that he was concerned about public safety, given that a driver had been asleep on the Interstate. 

He was concerned that the driver may have taken medication or had alcohol, causing him to pass 

out. Wright was also concerned that the driver might have a medical condition that had caused 

him to pass out. 

{¶ 14} The officers followed the vehicle’s stated route and located a vehicle matching the 

description given of the car that had been parked on the interstate. The car was parked in a 

loading area of a local business, “in the middle of the parking lot where the tractor-trailers would 

pull in and back into their docking bays.” The officers pulled their cruisers up to the car. At this 

point, the encounter did not constitute a stop. The vehicle was parked. The officers did not have 

their cruiser lights activated, and there is no evidence that the suspect vehicle was not able to 

leave the scene. But the incident turned into a stop almost immediately thereafter. 

{¶ 15} When the officers got out of their cruisers to approach the vehicle, they noticed 

Cook in the back seat reaching down toward the floorboard. The officers were unable to see 

Cook’s hands. The officers testified that they were concerned that Cook might have a weapon. 

Officer Wright had to repeatedly order Cook to show his hands before Cook complied. Officer 

Wright testified that when Cook refused to comply with the order to show his hands, Wright drew 

his weapon. Officer Orick testified that when he saw Wright draw his weapon, Orick drew his 

own weapon. Once the officers drew their weapons and ordered Cook to show his hands, an 

investigative stop had occurred. 

{¶ 16} “Once a lawful stop has been made, the police may conduct a limited protective 

search for concealed weapons if the officers reasonably believe that the suspect may be armed or a 

danger to the officers or to others.” State v. Rodriguez, 12th Dist. Preble No. CA2009–09–024, 
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2010–Ohio–1944, ¶ 28, quoting State v. Lawson, 180 Ohio App.3d 516, 2009–Ohio–62, 906 

N.E.2d 443, ¶ 21 (2d Dist.). “The purpose of this limited search is not to discover evidence of a 

crime, but to allow the officer to pursue his investigation without fear of violence.” State v. 

Evans, 67 Ohio St.3d 405, 422, 618 N.E.2d 162 (1993). “The police officer must be able to point 

to specific and articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant that intrusion.” Terry at 27. “The officer need not be absolutely certain that 

the individual is armed; the issue is whether a reasonably prudent man in the circumstances would 

be warranted in the belief that his safety or that of others was in danger.” Id.

{¶ 17} Also, it is well recognized that the need for a protective pat-down is more 

urgent in situations involving drugs. “The very nexus between drugs and guns can create a 

reasonable suspicion of danger to the officer.” State v. Thompson, 1st Dist. Hamilton No. 

C–050400, 2006–Ohio–4285, ¶ 11. “Recognizing the prevalence of weapons in places where 

illegal drugs are sold and used * * * an officer's fear of violence when investigating drug activity 

is a legitimate concern that will justify a pat-down search for weapons.” State v. Oatis, 12th Dist. 

Butler No. CA2005–03–074, 2005–Ohio–6038, ¶ 23, citing State v. Taylor, 82 Ohio App.3d 434, 

612 N.E.2d 728 (2d Dist.1992). 

{¶ 18} In this case, both officers are seasoned veterans with regard to drug arrests. 

Orick testified that he had made between four and five hundred drug-related arrests in his eight 

years as an officer. Orick further testified that it is common to find weapons during drug-related 

arrests. Wright testified that he is certified as a drug recognition expert who is “specially trained 

in advanced testing to determine a person’s impairment.” He further testified that he had made a 

“couple hundred” drug arrests during his twenty-eight years as an officer. He also testified that 
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there are usually weapons involved with drug cases. 

{¶ 19} According to the officers, Cook was removed from the vehicle and handcuffed for 

officer safety. Again, the officers noted that Cook had been leaning down in the back seat of the 

vehicle with his hands concealed. It took three orders to show his hands before Cook complied. 

Cook was then patted down, but nothing was found. Cook was then placed in Wright’s cruiser, 

because Officer Orick was “maintaining cover on the driver.” Once Cook was in the cruiser, 

Orick was able to maintain cover while Wright removed the driver and placed him in handcuffs. 

The officers had a concern that a weapon had been hidden under the seat of the car. 

{¶ 20} The officers noticed that Cook and the driver appeared droopy-eyed, lethargic and 

had constricted pupils – a condition that Wright associated with heroin use. The men’s responses 

were “very slow, [and they were] not very clear-cut in their speech.” Orick testified that even 

though he does not have Officer Wright’s “extensive training,” he could tell that “there was 

something wrong.” We conclude that the officers’ actions were reasonable up to this point. We 

must next address Cook’s claim that the officers had no basis for searching his sock. 

{¶ 21} While Terry limits the scope of a search to weapons, contraband discovered 

during such a search is not automatically inadmissible at trial. If, under the plain feel or plain 

view doctrines, it is readily apparent that an object is incriminating in nature, the officer has 

probable cause to believe the object is related to criminal activity. State v. Cobb, 12th Dist. 

Butler No. CA2007–06–153, 2008–Ohio–5210, ¶ 30; State v. Halczyszak, 25 Ohio St.3d 301, 303, 

304, 496 N.E.2d 925 (1986). “Regardless of whether the officer detects the contraband by sight 

or by touch, however, the Fourth Amendment's requirement that the officer have probable cause to 

believe that the item is contraband before seizing it ensures against successfully speculative 
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seizures.” State v. Groves, 156 Ohio App.3d 205, 2004–Ohio–662, 805 N.E.2d 146, ¶ 42 (2d 

Dist.). Probable cause requires the officer believe that there is a “fair probability” that the object 

constitutes “illegal contraband or evidence of a crime.” State v. Jones, 2d Dist. Montgomery No. 

19248, 2002–Ohio–4681, ¶ 10. 

{¶ 22} While sitting in his cruiser running the information on the driver, Orick noted 

Cook moving his feet to the left, and could hear him moving his feet underneath the seat. Orick 

also felt Cook hitting the back of the seat. Orick was seated with one foot out of the cruiser, and 

was using his mirror to observe Cook while he ran the driver’s information. Orick then noted 

Cook move back to the right, and informed Cook that he should remain still. Cook complied for 

a moment, then resumed his movements. This movement prompted Orick to exit the cruiser, 

make “a quick one-eighty,” and face the passenger window. He saw Cook “leaning over, but he 

had his left foot, and was taking his left foot, and * * * was manipulating his [right] sock with his 

left foot * * * and actually to the point where he was pulling the sock down with his left foot.” 

Cook did not notice Orick observing his actions. 

{¶ 23} Orick alerted Wright to this behavior. When Wright approached, Orick opened 

the cruiser door and ordered Cook to “basically pivot and place both his feet outside the cruiser.” 

Orick noted that the sock had a bulge where it would normally lie smooth, so he pulled the sock 

down and saw “a piece of paper that was in a square-type shape. It had been like folded 

(indicating) from end to end and I removed that piece of paper from his sock, and I carefully 

unfolded it and inside was a grayish-brownish like substance * * * that with my numerous drug 

arrests, I immediately recognized it to be heroin.” 

{¶ 24} Orick removed the paper because he believed it to be “some form of contraband * 
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* * due to the fact that [Cook] was attempting to manipulate it and constantly moving in the rear 

of my cruiser, there was some interest for him to continue to do that after several warnings to stop 

moving. And then I observed his movements with my own eyes, then at that point I believed that 

it was some form of contraband that needed to be removed.” 

{¶ 25} We conclude that Officer Orick had probable cause to seize the package found in 

Cook’s sock. Again, Orick noted Cook moving in the rear of the cruiser, which led him to get 

out to observe Cook’s actions, whereupon he saw Cook attempting to remove the sock with his 

left foot. 

{¶ 26} The totality of the facts and circumstances under which the packet containing 

heroin was discovered supports Officer Orick’s conclusion that the item in Cook’s sock was 

contraband. Cook was first observed moving inside the vehicle in a manner consistent with an 

attempt to conceal something. The officers noted that the men were “on the nod,” or lethargic with 

droopy eyes and constricted pupils, a condition associated with heroin use. Shortly thereafter, 

while Cook was in the back of the cruiser, he was observed attempting to manipulate his sock 

with his other foot. All these facts, considered cumulatively, lead us to the conclusion that Orick 

had probable cause to believe that the bulge in Cook’s sock was associated with criminal activity. 

Orick may not have had probable cause to believe that it was heroin, or that it was any particular 

kind of contraband, but he did have probable cause to believe that the bulge in Cook’s sock was 

contraband of some sort. Therefore, Orick was entitled to seize the contraband from Cook’s 

sock. 

{¶ 27} The trial court did not err in overruling Cook’s motion to suppress. Cook’s sole 

assignment of error is overruled. 
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IV. Conclusion

{¶ 28} Cook’s sole assignment of error having been overruled, the judgment of the trial 

court is Affirmed. 

. . . . . . . . . . . . . 

DONOVAN and WELBAUM, JJ., concur. 

Copies mailed to: 

Mathias H. Heck 

Michele D. Phipps 

Adelina E. Hamilton 

Hon. Dennis J. Adkins