[Cite as State v. Dunlap, 2013-Ohio-5637.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

HASHIM DUNLAP, 

 DEFENDANT-APPELLANT. 

)

)

)

)

)

)

)

)

)

CASE NO. 12 CO 31 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 10CR274 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Robert Herron 

Prosecutor 

John E. Gamble 

Assistant Prosecutor 

105 South Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant Attorney Charles C. Amato 

Attorney Lynsey Lyle-Opalenik 

991 Main Street 

Wellsville, Ohio 43968 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: December 17, 2013 
[Cite as State v. Dunlap, 2013-Ohio-5637.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Hashim Dunlap, appeals from a Columbiana 

County Common Pleas Court judgment overruling his motion to suppress drug 

evidence found on his person during a traffic stop. 

{¶2} At approximately 2:30 a.m. on January 12, 2008, St. Clair Police Officer 

Jayson Jackson stopped a vehicle driven by Susan Baker because it had a cracked 

windshield. Officer Jackson approached the vehicle. Baker was in the driver’s seat, 

Stella Rossen was in the front passenger seat, and appellant was in the backseat on 

the passenger side. 

{¶3} Officer Jackson noticed that appellant was “messing around with 

something” and “fidgeting around down inside of the seat.” The officer asked 

appellant for identification. Appellant stated that he did not have his ID, but identified 

himself for the officer. Appellant continued “fidgeting around” so Officer Jackson 

asked him to step out of the car. Appellant stepped out and consented to a pat 

down. Officer Jackson conducted a pat down and found only some miscellaneous 

items. He did not find any weapons. Officer Jackson then inspected the backseat of 

the car where appellant had been sitting. He did not find anything in the car. 

{¶4} Officer Jackson then asked appellant to get back in the car and he 

turned his attention to Baker. After learning that Baker’s driver’s license was 

suspended, Officer Jackson took her back to his cruiser to issue her a citation. While 

he was in his cruiser with Baker, Officer Jackson noticed that appellant was still 

fidgeting around in the backseat of Baker’s car. Appellant’s actions concerned the 

officer so he approached appellant and asked him to step out of the car again. 

Officer Jackson then asked appellant if he could pat him down one more time. 

Appellant complied. 

{¶5} This time Officer Jackson felt a large lump near appellant’s left armpit. 

He asked appellant what the item was and appellant told him it was his wallet. 

Officer Jackson removed the wallet from appellant’s pocket. The officer then opened 

the wallet and saw approximately $1,400 in cash. Officer Jackson then returned to 

the pat down. This time he felt another lump in another pocket. Appellant indicated 
-2-

he did not know what the item was. Officer Jackson removed it. The item was a 

digital scale about the size and shape of a cell phone. There was a white, powdery 

residue on the scale that turned out to be cocaine. Officer Jackson seized the scale. 

{¶6} Eventually, on November 18, 2010, a Columbiana County Grand Jury 

indicted appellant on one count of possession of drugs, a fifth-degree felony in 

violation of R.C. 2925.11(A), with a forfeiture specification for $1,425. Appellant 

entered a not guilty plea. 

{¶7} Appellant later filed a motion to suppress the evidence found on his 

person. Appellant alleged the police had no reason to search his person for a 

second time and had no reasonable belief that he was armed. 

{¶8} The trial court held a hearing on appellant’s motion where it heard 

testimony from Officer Jackson and Rossen. The court later overruled the motion to 

suppress finding it was reasonable for Officer Jackson to seize the wallet and digital 

scale from the sleeves of appellant’s jacket. 

{¶9} Subsequently, appellant changed his plea to no contest. The trial court 

accepted appellant’s plea and entered a finding of guilt. At a later sentencing 

hearing, the trial court sentenced appellant to three years of community control and a 

six-month driver’s license suspension. It also ordered forfeiture of the $1,425. The 

court denied appellant’s request for a stay of execution 

{¶10} Appellant filed a timely notice of appeal on August 22, 2012. 

{¶11} Appellant raises a single assignment of error that states: 

 THE TRIAL COURT ERRED IN DENYING DEFENDANT’S 

MOTION TO SUPPRESS AS THE OFFICER’S BLATANT 

DISREGARD FOR DEFENDANT’S FOURTH AND FOURTEENTH 

AMENDMENT RIGHTS (TO BE PROTECTED FROM 

UNREASONABLE SEARCHES AND SEIZURES) CAUSED THE 

DEFENDANT TO BE INDICTED AND SUBSEQUENTLY FOUND 

GUILTY OF A FIFTH DEGREE FELONY OF POSSESSION OF 

DRUGS CHARGE. 
-3-

{¶12} Appellant states that he is not questioning whether Officer Jackson had 

the right to conduct the first pat down. Instead, he takes issue with the second pat 

down. Appellant goes on to argue that Officer Jackson had no right to remove 

objects from his person that did not feel like weapons to the officer. Additionally, he 

contends Officer Jackson should not have stopped the pat down to open the wallet 

he removed from appellant and to look through its contents. He contends that no 

reasonable officer would believe there was a weapon contained inside a wallet. In 

support of his position, appellant points to Officer Jackson’s testimony that he did not 

believe the objects he removed from appellant’s jacket felt like weapons. And he 

argues Officer Jackson was not permitted to squeeze and manipulate the items in an 

attempt to determine what they were. He argues that Officer Jackson was not 

permitted to remove the non-weapon lumps he felt in the jacket in order to further 

investigate the contents of the jacket. 

{¶13} Our standard of review with respect to a motion to suppress is first 

limited to determining whether the trial court's findings are supported by competent, 

credible evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th 

Dist.1996), citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802 

(9th Dist.1994). Such a standard of review is appropriate as, “[i]n a hearing on a 

motion to suppress evidence, the trial court assumes the role of trier of fact and is in 

the best position to resolve questions of fact and evaluate the credibility of 

witnesses.” State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th 

Dist.1994). An appellate court accepts the trial court's factual findings and relies 

upon the trial court's ability to assess the witness's credibility, but independently 

determines, without deference to the trial court, whether the trial court applied the 

appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94, 717 N.E.2d 351 

(7th Dist.1998). A trial court's decision on a motion to suppress will not be disturbed 

when it is supported by substantial credible evidence. Id. 

{¶14} The trial court in this case made extensive factual findings as follows. 

Officer Jackson stopped a four-door Plymouth near Wal-Mart when he observed that 
-4-

it had a cracked windshield. Officer Jackson then observed appellant “fidgeting 

around” and appearing to put his hands inside the backseat where the cushions met. 

These movements made the officer nervous and gave him concern for his safety. 

Officer Jackson asked appellant why he was fidgeting and asked appellant for 

identification. Appellant identified himself to the officer but stated that he did not 

have any identification on him. Officer Jackson asked appellant to step out of the car 

and appellant complied. 

{¶15} Officer Jackson then performed a pat-down search of appellant, 

testifying that he was looking for weapons. He did not find any weapons. Officer 

Jackson then performed a “sweep type” search of the backseat area where appellant 

had been sitting. This search revealed nothing. Therefore, the officer directed 

appellant to return to the backseat of the Plymouth. Officer Jackson did observe 

some pieces of wood extending across the backseat described as table legs. He 

admitted that the fidgeting could have been appellant trying to move the table legs in 

order to sit comfortably. 

{¶16} Officer Jackson then turned his attention to Baker and determined that 

she did not have a valid driver’s license. He directed Baker to his patrol car. While 

he was with Baker, Officer Jackson could see appellant continuing to fidget in the 

backseat of the Plymouth. 

{¶17} Officer Jackson approached appellant again. The officer stated he was 

concerned for his own safety due to appellant’s continued furtive movements and, 

therefore, asked appellant to step out of the car again. Officer Jackson then 

performed another pat-down search of appellant. 

{¶18} This time Officer Jackson located two pockets that he had missed on 

the first search. The officer testified he felt a large lump near appellant’s armpit. The 

officer admitted that the lump did not feel like a weapon. But he could not visualize 

what it was. He asked appellant what the lump was and appellant told the officer it 

was his wallet. Appellant had previously denied having any identification. Officer 

Jackson removed the wallet. When he opened it, he discovered approximately 
-5-

$1,400. Officer Jackson then felt another lump in the other jacket pocket. Appellant 

told the officer he did not know what it was. Officer Jackson stated appellant’s 

response gave him concern because he could not visualize the item. He stated it did 

not feel like a weapon, but that it was smooth and flat and about the size of a cell 

phone. He removed the item and found it to be a digital scale containing white 

residue. 

{¶19} Officer Jackson testified that he believed appellant did not have any 

weapons at the time he removed the items from his jacket; however, he was unsure 

what the objects were, he was concerned they could be used as weapons, and he 

had suspicions because appellant had lied about not having any identification. 

{¶20} Front-seat passenger Stella Rawson also testified but her testimony 

was vague and evasive and she was unable to clearly recall the events in question. 

Therefore, the court afforded little weight to her testimony. 

{¶21} The trial court’s factual findings are supported by competent, credible 

evidence. 

{¶22} Officer Jackson testified that he stopped Baker’s vehicle because he 

noticed it had a broken windshield. (Tr. 7). When he approached the vehicle, he saw 

appellant in the backseat “messing around with something” and “fidgeting around 

down inside of the seat.” (Tr. 7). These movements made the officer uncomfortable. 

(Tr. 9). Officer Jackson asked appellant for identification. (Tr. 9). Appellant 

identified himself but stated he did not have any identification. (Tr. 9-10). Appellant 

continued to fidget so Officer Jackson asked him to step out of the car. (Tr. 10). 

Appellant complied. (Tr. 11). Officer Jackson then asked appellant if he could pat 

him down and appellant consented. (Tr. 11). The officer patted down the outside of 

appellant’s pockets and felt around his waist. (Tr. 12). Officer Jackson stated that he 

found some keys and miscellaneous items. (Tr. 12). He found no weapons. (Tr. 12). 

Officer Jackson then checked the seat area in the car where appellant had been 

sitting. (Tr. 13). He did not find anything there so he told appellant to sit back in the 

car. (Tr. 13). 
-6-

{¶23} Officer Jackson testified he then turned his attention to Baker. (Tr. 13). 

He learned she was driving under suspension so he took her back to his cruiser to 

issue her a citation. (Tr. 13). While he was with Baker, Officer Jackson noticed 

appellant was still fidgeting in the backseat of the car. (Tr. 14). He stated he was 

concerned since he was alone and he was dealing with two people. (Tr. 14). So the 

officer approached appellant again and asked what he was doing. (Tr. 14-15). 

Appellant told him there was a wooden item under him and he was trying to move it. 

(Tr. 15). 

{¶24} Officer Jackson then told appellant to step out of the car again. (Tr. 

15). He asked appellant if he could pat him down again and appellant complied. (Tr. 

15). The officer noticed that he had missed some pockets on appellant’s jacket near 

his shoulder. (Tr. 15). In one of the pockets Officer Jackson felt a large lump. (Tr. 

16). He asked appellant what the lump was and appellant told him it was his wallet. 

(Tr. 16). Officer Jackson then removed the wallet from appellant’s pocket. (Tr. 16). 

He opened the wallet and found appellant’s identification and approximately $1,400 

in cash. (Tr. 19-20). The officer continued to search appellant and located another 

lump in the other pocket. (Tr. 17). Officer Jackson asked appellant what the lump 

was and appellant responded that he did not know. (Tr. 17). This made the officer “a 

little” nervous. (Tr. 18). Officer Jackson then opened the pocket and appellant told 

him the jacket did not belong to him. (Tr. 18). Officer Jackson removed a digital scale 

with some white, powdery residue on it. (Tr. 18). The scale looked to be about the 

size and shape of a cell phone. (Tr. 31; Ex. 1). 

{¶25} On cross-examination, Officer Jackson testified that during the first patdown search of appellant he was looking for weapons and did not feel any. (Tr. 26). 

He also admitted that he checked the backseat area of the car where appellant had 

been sitting. (Tr. 27). The only things he found there were some table legs, which 

corroborated appellant’s statement that there was something under him in the car 

and that was why he had been moving around. (Tr. 27). Officer Jackson stated that 

the second time he patted appellant down, he was still looking for weapons. (Tr. 29). 
-7-

{¶26} The officer repeatedly admitted that when he felt the wallet in 

appellant’s pocket it did not feel like a weapon. (Tr. 30, 33, 35, 43, 45). However, he 

removed it because appellant had lied about not having his identification. (Tr. 32). 

And the officer stated that when he felt the scale in appellant’s pocket it felt smooth 

and flat, not sharp. (Tr. 31). Officer Jackson stated numerous times that the scale 

did not feel like a weapon. (Tr. 31, 32, 33, 45). When asked why he removed the 

scale when it did not feel like a weapon, Officer Jackson stated that he was not 

comfortable with appellant because appellant had lied about not having his 

identification, appellant had a large sum of money in his wallet, and he could not 

visually see if the hard, smooth object in appellant’s pocket could come apart and 

become a weapon. (Tr. 33). The officer also testified that once he saw appellant’s 

wallet with a large sum of money, he suspected that appellant had lied to him and 

had something to hide other than his wallet. (Tr. 44-45). He thought appellant might 

have something illegal. (Tr. 45). 

{¶27} This evidence supports the trial court’s findings of fact. Thus, we 

accept the court’s factual findings and move on to consider whether the trial court 

applied the appropriate legal standard. 

{¶28} The Fourth Amendment provides that “[t]he right of the people to be 

secure in their person, houses, papers, and effects, against unreasonable searches 

and seizures, shall not be violated * * *.” Warrantless searches are per se 

unreasonable unless the search falls within a noted exception. Katz v. United States, 

389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The United States 

Supreme Court set out one such exception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 

1868, 20 L.Ed.2d 889 (1968). According to Terry, a police officer may frisk a person 

who is legally stopped if the officer “has reason to believe that he is dealing with an 

armed and dangerous individual.” Id. at 27. In justifying a Terry stop, the officer 

“must be able to point to specific and articulable facts which, taken together with the 

rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21. An 

officer cannot conduct a protective search as a pretext for a search for contraband, a 
-8-

search for convenience, or as part of his or her normal routine or practice. State v. 

Stiles, 11th Dist. No.2002-A-0078, 2003-Ohio-5535, ¶16, citing State v. Evans, 67 

Ohio St.3d 405, 414, 618 N.E.2d 162 (1993); Minnesota v. Dickerson, 508 U.S. 366, 

378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Lozada, 92 Ohio St.3d at 77, 748 

N.E.2d 520. 

{¶29} When determining whether a Terry stop was reasonable, we are to look 

to the totality of the circumstances. State v. Andrews, 57 Ohio St.3d 86, 87, 565 

N.E.2d 1271 (1991). Additionally, we are to view these circumstances through the 

eyes of the reasonable and prudent police officer on the scene who must react to 

events as they unfold. Id. at 87-88. 

{¶30} Appellant does not take issue with the traffic stop. Therefore, we will 

only briefly touch upon it. There is no question here that the traffic stop was 

reasonable. Officer Jackson observed a vehicle travelling with a cracked windshield. 

He therefore effectuated a traffic stop of Baker’s car. He learned that Baker was 

driving with a suspended license and issued her a citation. Thus, the traffic stop was 

reasonable. 

{¶31} The first issue in this case surrounds whether the frisks of appellant 

were reasonable. 

{¶32} The first frisk of appellant was reasonable. When Officer Jackson 

initially stopped Baker’s car, he noticed appellant fidgeting around in the backseat 

and sticking his hands in the seat. The officer did not know what he was dealing with 

at this point. It was reasonable for him to direct appellant to exit the car for a Terry

pat down. The officer frisked appellant and found no weapons on him. He then 

searched the backseat of the car where appellant had been sitting. The officer found 

nothing there except for some wooden table legs. At this point the officer directed 

appellant to return to the backseat of Baker’s car while he took Baker to his cruiser to 

issue a citation. Officer Jackson must have felt comfortable enough that appellant 

did not have any weapons on his person or in the backseat of the car to allow him to 

get back in that car while the officer tended to the business of issuing Baker a 
-9-

citation. 

{¶33} Whether the second frisk of appellant was reasonable is not quite as 

clear. The rationale for a protective Terry search “becomes attenuated with 

successive searches.” State v. Hackett, 171 Ohio App.3d 235, 2007-Ohio-1868, 870 

N.E.2d 235, ¶16. Thus, the basis for a Terry search is diminished each additional 

time an officer searches a subject. “Police are not entitled to ‘unlimited bites of the 

apple.’” Id., citing United States v. Davis, 430 F.3d 345, 356 (C.A.6, 2005). 

{¶34} Officer Jackson testified that during the first pat down, he was looking 

for weapons on appellant and did not find any. He also searched the backseat of the 

car and found no weapons. What he did find in the backseat were some wooden 

table legs. When Officer Jackson noticed appellant in the backseat fidgeting around 

after having already searched him, appellant told him there was something 

underneath him and he was trying to move it. And Officer Jackson knew this to be 

true because he had seen the table legs in the backseat. Given the fact that Officer 

Jackson had already searched both appellant and the backseat, appellant’s response 

was reasonable. 

{¶35} A Terry pat down is limited in scope to its protective purpose and 

cannot be used by the officer to search for evidence of crime. Evans, 67 Ohio St.3d 

at 414. Once the officer has satisfied himself that the suspect does not have a 

weapon, he is no longer justified in using Terry as a pretext for a contraband search. 

Id. 

{¶36} Officer Jackson seemed to have satisfied himself that appellant did not 

have a weapon after the first pat down. The officer allowed appellant to return to the 

backseat of Baker’s car. Clearly, if the officer had any suspicion that appellant had a 

weapon on his person he would not have allowed appellant to return to Baker’s car 

alone while the officer went with Baker to the patrol car. 

{¶37} But appellant’s continued fidgeting in the backseat of the car led Officer 

Jackson to become uncomfortable with him. Moreover, appellant consented to 

Officer Jackson patting him down once again. Thus, the second pat down was also 
- 10 -

reasonable. 

{¶38} The next issue is whether it was reasonable for Officer Jackson to 

remove the wallet from appellant’s jacket. 

{¶39} When a police officer conducts a protective Terry frisk, the pat down is 

limited to its protective purpose and cannot be used to search for evidence of crime. 

Evans, 67 Ohio St.3d at 414; Terry, 392 U.S. at 29. The Ohio Supreme Court has 

noted: 

[I]t is important first to emphasize that Terry does not require that the 

officer be absolutely convinced that the object he feels is a weapon 

before grounds exist to remove the object. At the same time, a hunch or 

inarticulable suspicion that the object is a weapon of some sort will not 

provide a sufficient basis to uphold a further intrusion into the clothing of 

a suspect. When an officer removes an object that is not a weapon, the 

proper question to ask is whether that officer reasonably believed, due 

to the object's “size or density,” that it could be a weapon. 3 LaFave, 

Search and Seizure (2 Ed.1987) 521, Section 9.4(c). 

Evans, 67 Ohio St.3d at 415. The Evans Court continued, “‘[s]omewhat more leeway 

must be allowed upon “the feeling of a hard object of substantial size, the precise 

shape or nature of which is not discernible through outer clothing,” which is most 

likely to occur when the suspect is wearing heavy clothing.”’ Id., quoting LaFave at 

523. 

{¶40} When Officer Jackson felt the first lump in appellant’s pocket, he could 

tell that it was not a weapon. Officer Jackson stated at least five times that the wallet 

did not feel like a weapon. And while Officer Jackson was concerned that appellant 

may have lied about not having any identification with him, he at no time suspected 

that the lump that was appellant’s wallet could be a weapon. 

{¶41} During a Terry-investigative stop, an officer “may search only for 

weapons when conducting a pat down of the suspect.” Evans, 67 Ohio St.3d at 414. 
- 11 -

“The purpose of this limited search is not to discover evidence of crime, but to allow 

the officer to pursue his investigation without fear of violence * * *.” Adams v. 

Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). 

{¶42} Given Terry’s narrow-tailored purpose and Officer Jackson’s 

unequivocal statements the wallet did not feel like a weapon, the removal of the 

wallet was unreasonable. 

{¶43} The final issue is whether it was reasonable for Officer Jackson to 

remove the digital scale from appellant’s jacket. 

{¶44} The officer stated he removed the scale because he could not visually 

see if the object pulled apart and became a weapon. But Officer Jackson testified at 

least four times that the object did not feel like a weapon. He stated that it felt like a 

smooth, hard object. Officer Jackson also testified that after he saw the money in 

appellant’s wallet and learned that appellant had lied about not having his 

identification, he suspected that appellant had something illegal on him. But as 

discussed above, Officer Jackson should not have removed appellant’s wallet from 

his pocket. Moreover, a Terry search may not be employed to search for contraband. 

Based on the totality of Officer Jackson’s testimony, it seems that he removed the 

digital scale because he suspected some sort of contraband. Thus, the removal of 

the scale from appellant’s pocket was unreasonable. 

{¶45} Additionally, we address the state’s argument that once Officer Jackson 

found appellant’s wallet and realized appellant had lied to him about not having 

identification, the officer could have arrested appellant for falsification and, therefore, 

the further search that revealed the scale was a search incident to a lawful arrest. 

{¶46} This argument is flawed for two reasons. First, as stated above, the 

removal of the wallet was unreasonable. Second, Officer Jackson offered no 

testimony to support this theory. He never once suggested that he placed appellant 

under arrest for falsification. And after he found the wallet on appellant, the officer 
- 12 -

continued his search. He did not place appellant under arrest at that time. Without an 

arrest, a warrantless search of a subject may not be justified as incident to an arrest. 

Hackett, 171 Ohio App.3d at ¶15, citing State v. Rampey, 5th Dist. No. 2004-CA00102, 2006-Ohio-1383, ¶21. Thus, the state’s argument on this point must fail. 

{¶47} Accordingly, appellant’s sole assignment of error has merit. 

{¶48} For the reasons stated above, the trial court’s judgment is hereby 

reversed. The matter is remanded to the trial court for further proceedings according 

to law and consistent with this opinion and the evidence of the wallet and the digital 

scale shall be suppressed. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.