[Cite as State v. Dotson, 2018-Ohio-499.] 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: February 9, 2018 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, 

Assistant Public Defender, for Defendant-Appellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

ANTHONY DOTSON, 

 Defendant-Appellant. 

: 

: 

: 

: 

: 

APPEAL NO. C-170214 

 TRIAL NO. B-1503232 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

 2

MILLER, Judge.

{¶1} Anthony Dotson appeals the trial court’s denial of his motion to 

suppress. We affirm.

{¶2} Sheriff’s deputies responded to a 9-1-1 call reporting that a man 

appeared to be tampering with vehicles in a Home Depot parking lot. Dotson 

matched the description of the suspect. Deputies Lipps and Booster motioned 

Dotson over and asked Dotson to consent to a pat down search for weapons. Deputy 

Lipps testified that Dotson consented to the search. The deputies recovered a pocket 

knife and a very thin, small straw. According to Deputy Lipps, the straw was not a 

drinking or stirring straw, but was the type of straw generally used for snorting 

drugs. The deputies subsequently searched Dotson’s car and recovered marijuana, a 

pipe, and pills. Based on the evidence found in the car only, Dotson was later 

charged with multiple drug-related crimes. 

{¶3} In his written motion to suppress, Dotson contended that the pat down 

search was illegal, and all evidence that flowed from it had to be suppressed. At the 

suppression hearing, however, Dotson stated on the record that he was contesting 

the pat down search only, and was not attacking the subsequent search of the 

automobile. Dotson testified that he never consented to a pat down search. When 

the state asked Dotson if he had consented to the search of his car, defense counsel 

objected, stating “Beyond the scope. We are not contesting that.” The trial court 

sustained the objection.

{¶4} Dotson subsequently contended in his written closing argument that 

evidence seized during the search of his car was “fruit of the poisonous tree” that 

must be suppressed.
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{¶5} The trial court found Deputy Lipps’s testimony regarding Dotson’s 

consent to be credible, determined that the pat down search was consensual, and 

overruled Dotson’s motion to suppress. 

{¶6} In his sole assignment of error, Dotson contends (1) the warrantless 

pat down search was unreasonable because there was no indication that he was 

armed and dangerous, (2) even if the court determines that he consented, under the 

totality of the circumstances, his consent was involuntary, (3) even if his consent was 

voluntary, under the plain feel doctrine it was not readily apparent that the straw was 

contraband, and (4) even if the pat down search and subsequent seizure of the straw 

was lawful, discovery of the straw did not justify further detention and search of 

Dotson’s car.

{¶7} The Pat Down Search and Waiver. The parties stipulated that 

there was no warrant in this case. The burden was therefore on the state to show the 

reasonableness of the search and seizure. Xenia v. Wallace, 37 Ohio St.3d 216, 218, 

524 N.E.2d 889 (1988). In reviewing a motion to suppress, we defer to the trial 

court’s factual findings, but apply the law de novo. See State v. Burnside, 100 Ohio 

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. 

{¶8} Here, the trial court determined that Dotson had consented to the pat 

down search. While we accept this finding, the record establishes that the 

responding officers asked Dotson if he would consent to a pat down search for 

weapons only. Dotson agreed. Thus, the scope of his consent was limited. State v. 

Riggins, 1st Dist. Hamilton No. C-030626, 2004-Ohio-4247, ¶ 28-30 (a suspect may 

limit the scope of his consent to a search); (Citations omitted.) Florida v. Jimeno, 

500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (“[t]he standard for 

measuring the scope of a suspect’s consent is that of ‘objective reasonableness’—what 
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would the typical reasonable person have understood by the exchange between the 

officer and suspect?”). The state presented no evidence that it was immediately 

apparent from a plain feel perspective that the straw was contraband. See Minnesota 

v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (during a 

lawful pat down for weapons, where it is immediately apparent that an object is 

contraband, its warrantless seizure is justified); State v. Milhouse, 133 Ohio App.3d 

527, 530, 728 N.E.2d 1123 (1st Dist.1999) (applying Dickerson). The state therefore 

did not meet its burden to demonstrate the reasonableness of the warrantless seizure 

of the straw and we need not address whether Dotson’s consent was voluntary.

{¶9} While we hold that the straw should have been suppressed from 

evidence, Dotson’s victory is pyrrhic. The state did not use the straw as evidence 

against him. It was the contraband found in Dotson’s car that formed the basis for 

Dotson’s multiple drug charges. 

{¶10} Dotson affirmatively waived his right to contest to the search of his 

car. When asked by the trial court whether the pat down “is really the issue,” 

Counsel answered “yes.” And when the state attempted to explore whether Dotson 

may have consented to the search of his car, defense counsel objected on the ground 

that Dotson was not contesting that search. Based on counsel’s representation, the 

objection was sustained, and the facts surrounding the car search were never 

developed. Thus, although he raised it in his written motion to suppress, Dotson 

relinquished the right to attack the search of his car in open court. See State v. 

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 538 N.E.3d 860, ¶ 20 (waiver is the 

intentional relinquishment of a known right).

{¶11} Dotson, having waived the issue of the car search at the hearing, 

cannot later protest that the contraband found in the car was the fruit of the 
OHIO FIRST DISTRICT COURT OF APPEALS

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poisonous tress. It is unclear if the officers used the straw as the basis to search 

Dotson’s car, or whether there were independent grounds to justify the car search. 

For example, the 9-1-1 call reporting vehicle tampering combined with the officers’ 

investigation might have provided probable cause to search the car. Since the state 

was not on notice that it had to justify the car search, the record was never developed 

in this regard. See Wallace, 37 Ohio St.3d at 218, 524 N.E.2d 889 (holding that the 

defendant must specify the grounds for challenging a warrantless search or seizure 

so that the prosecutor may prepare his or her case accordingly). Moreover, Dotson 

may have consented to the search of his car. Defense counsel’s objection prevents us 

from knowing. Had there been a finding that Dotson consented, the question before 

us would most likely be whether Dotson’s consent to the car search was voluntary, or 

whether it was tainted by the illegal seizure of the straw. See Wong Sun v. United 

States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

{¶12} In sum, the facts surrounding the car search were never developed. 

Dotson bears the burden of showing error on appeal by reference to matters in the 

record, State v. Skaggs, 53 Ohio St.2d 162, 163, 372 N.E.2d 1355 (1978). Because he 

waived the issue, he is unable to do so.

{¶13} Ineffective Assistance of Counsel. Anticipating our holding 

above, Dotson next contends that counsel was ineffective for waiving the issue of 

whether the car search and subsequent seizure of evidence was constitutional. To 

prove ineffective assistance of counsel, a defendant must demonstrate that counsel’s 

performance was deficient and that the deficient performance was prejudicial. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). 

Prejudice results when there is a reasonable probability that, but for counsel’s 
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unprofessional errors, the result of the proceeding would have been different. 

Strickland at 694; Bradley at 142. On the record before us, we cannot say that 

counsel was deficient, or that any deficiency was outcome-determinative. Since the 

issue was waived, and the record undeveloped, it is not possible to determine 

whether there were grounds to suppress the contraband found in Dotson’s car.

{¶14} Dotson’s sole assignment of error is overruled. The trial court’s 

judgment is affirmed.

Judgment affirmed. 

MYERS, P.J., and DETERS, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.