[Cite as State v. Fisk , 2021-Ohio-2989.] IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, Appellee,

- vs -

STEVEN M. FISK, Appellant. :

:

:

:

:

: CASE NO. CA2020-11-016

O P I N I O N

8/30/2021

CRIMINAL APPEAL FROM PREBLE CO UNTY COURT OF COMMON PLEAS Case No. 20CR13208

Martin P. Votel, Preble County Prosecuting Attorney, and Gracti a S. Manning, Assistant Prosecuting Attorney, for appellee. Hubler and Woolum Law Co., LPA, and Bridget N. Woolum, for appe llant.

BYRNE, J. {¶1} Steven M. Fisk appeals from a decision of the Preble County Cou rt of Common Pleas, which denied his motion to suppress evidence foll owing a traffic stop and pat down search by a police officer. For the reasons described below, we find that the stop

and search were lawful and affirm the trial court's decision.

Factual and Procedural BackgroundPreble CA2020-11-016

- 2 - {¶2} In December 2019, a Preble County sheriff's deputy detained Fis k for a traffic violation while Fisk was operat ing a bicycle. During that stop , the deputy searched Fisk for weapons and felt objects in Fisk's pocket that he believed were a syringe and a tube-shaped container for carrying drugs. He asked Fisk to produce the obj ects. Fisk refused, ran away, and was quickly captured. Law enforcement recovered a tube-sha ped container containing methamphetamine where Fisk had fled. {¶3} In January 2020, a Preble County grand jury indicted Fisk on on e count of aggravated possession of drugs, one count of obstructing offici al business, and one count of possession of drug paraphernalia. {¶4} Fisk subsequently moved to suppress, arguing that the sheriff's deputy did not have lawful cause to stop and detain him or search him for weap ons. The trial court held a suppression hearing at which the only witness to testify was th e sheriff's deputy. The state also introduced dash camera video, in which most of the stop wa s recorded visually or audibly. 1 Deputy Laycox's Testimony at the Suppression Hearing {¶5} Preble County Sheriff's Deputy David Laycox testified to the fo llowing at the suppression hearing. {¶6} On December 28, 2019, Deputy Lay cox was sitting in his cruiser in a parking lot off U.S. Route 35 in West Alexandria. It was 7:35 p.m. and dark. He observed an

individual – Fisk – ri ding a bicycle on Route 35. He noted tha t the bicycle did not have rear reflectors or a red lamp light but did have a blue light on whe el spokes. He drove behind the bicycle, illuminated his flas hing lights, and initiated a t raffic stop.

1. The deputy's initial interactions with Fisk, including the pat down search, were not video-recorded, as Fisk positioned himself on the passenger side of the cruiser and out of the vantage point of the dash camera. However, audio of the complete conversation was recorded on the deputy's body microphone.Preble CA2020-11-016

- 3 - {¶7} When Deputy Laycox was behind t he bicycle and had activated his lights, he believed, mistakenly, that Fisk was someone else who he had bee n looking for and who

had an active warrant. {¶8} At the beginning of the stop, Fisk acknowledged to Deputy Layco x that he was aware that the battery on hi s bicycle light was out. He ex plained that he hoped that the blue light would be sufficient. {¶9} Deputy Laycox asked Fisk for his I.D. Fisk produced an identif ication card. At this time, Deputy Laycox realized he had been wrong about hi s assumption as to Fisk's identity. He called Fisk's information into dispatch. {¶10} Deputy Laycox indicated that he was familiar with the Fisk fami ly and had previously encountered Fisk's brother and found him to be carry ing a B.B. gun, which gave him concern that Fisk may be carrying a weapon. He also noted what appeared to be a metal bat in a bag hanging from Fisk's bicycle handles. While waiting for dispatch to respond, he asked Fisk whether he could search him for weapons. Fisk responded, "Sure." {¶11} Deputy Laycox searched Fisk and felt a tube and a syringe in Fi sk's right pocket. Deputy Laycox believed, based upon his personal experi ence, that the tube would contain narcotics as it was of a type generally used to carry c ontraband. {¶12} Meanwhile, dispatch responded and indicated that Fisk had a war rant. Deputy Laycox informed Fisk that he had a warrant and began to handcuff him. However, dispatch quickly advised that there had been a mistake, and tha t Fisk did not have a warrant. Deputy Laycox released Fisk and put away his handcuff s. {¶13} Deputy Laycox then began to explain to Fisk that he believed he had felt contraband in his pocket. He explained that the "plain feel" d octrine gave him the right to demand to inspect those objects and indicated that Fisk could e ither remove the objects from his pocket himself or that Deputy Laycox would remove the objects for him.Preble CA2020-11-016

- 4 - {¶14} At that point, Fisk began backing away from Deputy Laycox and a nother police officer who had arrived on scene. Fisk indicated that h e was not going to remove anything from his pocket, that he did not have to, and that Dep uty Laycox needed a search warrant. Deputy Laycox ordered Fisk to stop walking away, but Fisk ignored the command and continued backing away. {¶15} Seconds later, Fisk turned and ran into a cornfield. Deputy La ycox and the other officer pursued and quickly caught Fisk by tackling him. The officers and Fisk briefly wrestled until they were able to restrain him. {¶16} The officers led Fisk back to Deputy Laycox's cruiser. Upon se arching Fisk, the items that Deputy Laycox had felt in Fisk's pockets were mi ssing. Law enforcement searched the area. No syringe was ever located. However, a tu be-shaped container containing a crystal-like substance was recovered in the area w here Deputy Laycox tackled

Fisk. The substance was tested an d was identified as methamphe tamine.

The Trial Court Decision {¶17} The trial court denied Fisk's motion to suppress. The court fo und the absence of a red reflector and red light on the rear of Fisk's bike con stituted a traffic infraction and a lawful reason to stop Fisk. The court next found that Deputy L aycox did not have a sufficient basis to believe that Fisk was armed and dangerous and therefor e did not have the right to conduct a warrantless pat down search for weapons. However, th e court found that the search was lawful because Deputy Laycox asked Fisk for consent to search, and Fisk gave consent. Finally, the court found, based on the "plain feel" d octrine, that Deputy Laycox had probable cause to believe that the objects found in Fisk's pants pocket were contraband and that he could lawfully seize those objects without a warran t. {¶18} Following the decision on the motion to suppress, Fisk pled no contest to possession of drugs and obstructing official business and the c ourt found Fisk guilty of thosePreble CA2020-11-016

- 5 - charges. The state dismissed the paraphernalia charge. Fisk a ppeals, raising one assignment of error: {¶19} THE TRIAL COURT ERRED IN DENYING THE APPELLANTDEFENDANT'S MOTION TO SUPPRESS EVIDENCE. {¶20} Fisk argues that Deputy Laycox lacked a lawful cause to stop hi m because he did not have a reasonable, articulable suspicion that Fisk w as involved in any criminal activity. Fisk further argues that the pat down search was unl awful because Deputy Laycox lacked any reasonable basis to believe that he was armed and da ngerous. {¶21} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. An appellate court must defer to the trial court's factual finding s if they are supported by competent, credible evidence. State v. Banks-Harvey , 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 14. However, an appellate court independently determines, wi thout deference to the trial court's decision, whether the facts satisfy the applicable lega l standard. State v. Cummins , 12th Dist. Clermont No. CA2018-07-051, 2019-Ohio-1496, ¶ 22. {¶22} The Fourth Amendment to the Unit ed States Constitution provides : The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be search ed, and the persons or things to be seized. {¶23} The language of Article I, Section 14 of the Ohio Constitution is virtually identical to the language of the Fourth Amendment. Due to thei r virtually identical language, the Ohio Supreme Court found that "we should harmonize our inte rpretation of Section 14, Article I of the Ohio Constitution with the Fourth Amendment, u nless there are persuasive

reasons to find otherwise." State v. Robinette , 80 Ohio St.3d 234, 239 (1997). On rare occasions the protections recogni zed by Article I, Section 14 o f the Ohio Constitution havePreble CA2020-11-016

- 6 - been found to be greater than the protections recognized by the Fourth Amendment. See

State v. Brown , 99 Ohio St.3d 323, 2003-Ohio-3931, ¶ 7 (holding that "Section 14, Article I of the Ohio Constitution provides greater protection than the F ourth Amendment to the United States Constitution against warrantless arrests for mino r misdemeanors"). While Fisk brings his assignment of error under both the Fourth Amend ment and Article I, Section 14 of the Ohio Constitution, he offers no argument as to why we should conclude that the analysis in this case should differ under these two constitutio nal provisions. Because Fisk has not offered any "persuasive reasons" to find that Article I , Section 14 of the Ohio Constitution and the Fourth Amendment differ with respect to hi s claims, we will analyze the two together. The Traffic Stop {¶24} "A traffic stop initiated by a law enforcement officer implicat es the Fourth Amendment and must comply with the Fourth Amendment's general r easonableness requirement." State v. Willis , 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 18, citing Whren v. United States , 517 U.S. 806, 809, 116 S.Ct. 1769 (1996). One type of lawful traffic stop is an investigatory stop, also known as a Terry stop, which requires the law enforcement officer to possess a reasonable suspicion based on specific and articulable

facts that criminal behavio r has occurred or is imminent. State v. Moeller , 12th Dist. Butler No. CA99-07-128, 2000 WL 1577287, *2 (Oct. 23, 2000); Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868 (1968). Another type of permissible traffic stop is where a police officer has probable cause to stop a vehicle because the officer observed a traffic violation. State v.

Bullock , 12th Dist. Clinton No. CA2016-07-018, 2017-Ohio-497, ¶ 6. {¶25} Even a de minimis traffic violation provides probable cause for a traffic stop.

Willis at ¶ 19, citing State v. Williams , 12th Dist. Clinton No. CA2009-08-014, 2010-Ohio1523, ¶ 13. The Ohio Supreme Court has explained that where an officer has probablePreble CA2020-11-016

- 7 - cause to stop a motorist for any criminal violation, including a minor traffic violation, "the stop is not unreasonable under the Fourth Amendment to the Unit ed States Constitution even if the officer had some ulterior motive for making the sto p, such as a suspicion that the violator was engaging in more nefarious criminal activity." Dayton v. Erickson , 76 Ohio St.3d 3 (1996), paragraph one of the syllabus. {¶26} Fisk's argument concentrates on whether the stop was a valid in vestigatory stop under Terry . Fisk contends that Deputy Laycox unlawfully stopped him base d on the incorrect suspicion that he was another person with a warrant. 2 However, Fisk's argument ignores that Deputy Laycox initiated the stop based upon a traf fic infraction. {¶27} R.C. 4511.56 governs the equipment required to legally operate a bicycle on a street or highway from sunset to sunrise, among other times. All bicycles operated during these hours must be equipped with a rear-facing red reflector a nd/or a lamp emitting a flashing or steady red light visible within the foot requiremen t set forth in the statute. R.C. 4511.56(A)(2) and (A)(3). A violation of the statute constitut es a minor misdemeanor. R.C. 4511.56(E). The lack of a rear-facing red reflector and/or red lamp light on the bicycle operated by Fisk on U.S. Route 35 constituted a traffic infract ion and provided Deputy Laycox with the lawful right to stop and detain him for the pur pose of issuing a traffic citation.

Bullock , 2017-Ohio-497, ¶ 6.

The Pat Down Search {¶28} In his second issue presented, Fisk argues that Deputy Laycox d id not have a lawful basis to conduct a pat down search because he did not have a reasonable belief that Fisk was armed and dangerous. "When a search occurs witho ut a warrant, the state

2. Based upon our review of the hearing transcript, it appears that Deputy Laycox did not suspect Fisk was this other individual until he had already pulled out of the pa rking lot and was behind Fisk and had turned on his flashing lights. In other words, Deputy Laycox did not thi nk he knew who the individual was until he was closer to him.Preble CA2020-11-016

- 8 - has the burden to show that the search comes within one of the judicially recognized exceptions to the warrant requirement." State v. Parker , 12th Dist. Butler No. CA2001-06- 143, 2002 WL 553713, *2 (April 15, 2002), citing State v. Akron Airport Post No. 8975 , 19 Ohio St.3d 49, 51 (1985). One exception allows a pat down sear ch for weapons for the protection of the police officer, where the officer has a reaso nable, specific, and articulable belief that he is dealing with an armed and dangerous individua l, regardless of whether he has probable cause to arrest th e individual for a crime. Terry , 392 U.S. at 21, 27. Another exception exists when searches are conducted with consent. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041 (1973); State v. Posey , 40 Ohio St.3d 420, 427 (1988).

The Terry requirement of reasonable suspicion is avoided entirely when a person voluntarily

consents to a search. Parker at *2, citing State v. Wilt , 2d Dist. Montgomery No. 19108, 2002 WL 272593, *3 (Feb. 22, 2002). {¶29} When a person is lawfully detained by police and consents to a search, the state must show that the consent was freely and voluntarily giv en. Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319 (1983). In determining whether c onsent was voluntary, a court must consider the totality of the circumstances. Schneckloth at 227; State v.

Childress , 4 Ohio St.3d 217 (1983), paragraph one of the syllabus. {¶30} The trial court found that Fisk voluntarily consented to a pat down search by Deputy Laycox. Competent and credible evidence in the record s upports this conclusion. 3 Deputy Laycox testified that he asked Fisk for permission to se arch for weapons and that Fisk gave him permission. The video/audio recording of the sto p confirms Deputy Laycox's testimony. On it, Deputy Laycox is heard asking Fisk, "do you mind if I check you real quick? I just want to check to make sure you have no weapons o n you." Fisk responded,

3. Fisk does not argue on appeal that his consent was not free ly and voluntarily given.Preble CA2020-11-016

- 9 - "Sure." Fisk's voluntary consent to the search obviated the ne ed for Deputy Laycox to have a reasonable, articulable suspicion that Fisk was armed and dan gerous prior to conducting the pat down search. Parker at *2. {¶31} And the subsequent attempt by Deputy Laycox to seize the contra band he felt on Fisk after conducting the pat down search was justified by t he plain feel doctrine. Under the plain feel doctrine, if, during a pat down, the officer fee ls an object whose contour or mass makes its identity immediately apparent as contraband, the officer may seize the object. Minnesota v. Dickerson , 508 U.S. 366, 375-376, 113 S.Ct. 2130 (1993). The "immediately apparent" requirement is satisfied if the officer has probable cause to associate the object with criminal activity, based on the total ity of the surrounding

circumstances. State v. Grant , 12th Dist. Preble No. CA2014-12-014, 2015-Ohio-2464, ¶ 17. Further, under the "plain feel" doctrine, an officer may n ot manipulate the object to determine its incriminating nature. Id. {¶32} At the hearing, Deputy Laycox testified that he felt a tube and syringe while patting down Fisk's right pocket. He did not manipulate either object. Deputy Laycox testified that he knew from personal experience that the tube w ould likely contain contraband. We agree that the totality of circumstances indica ted that Deputy Laycox had the right, under the plain feel doctrine, to seize the items he felt in Fisk's pocket. For the foregoing reasons, we overrule Fisk's sole assignment of error. {¶33} Judgment affirmed.

M. POWELL, P.J., and H ENDRICKSON, J., concur.