[Cite as State v. Mathis , 2014-Ohio-3803.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. WALTER MATHIS, II Appellant C.A. No. 27067

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 13 03 0660

DECISION AND JOURNAL ENTRY Dated: September 3, 2014

BELFANCE, Presiding Judge. {¶1} Appellant, Walter F. Mathis, II, appeal s from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

I. {¶2} On March 4, 2013, Mr. Mathis drove to a Circle K and was stopped by Detective Todd Sinsley and other Street Narcotics Unifor m Detail (SNUD) officers. Detective Sinsley conducted a pat-down of Mr. Mathis and discovered a rock-like object in Mr. Mathis’ pocket, which was identified as crack cocaine. Mr. Mathis was arrested, and the officers discovered marijuana in a subsequent search of his vehicle. {¶3} Mr. Mathis was charged with possession of cocaine, trafficking in cocaine, and possession of marijuana. He m oved to suppress all evidence from the search of his person and his vehicle, and the court denied his motion. Mr . Mathis then pleaded no contest to possession of cocaine, trafficking in cocaine, and possession of marijuana. The court found Mr. Mathis guilty2

and merged the possession and trafficking charges related to the cocaine. The court sentenced Mr. Mathis to 12 months in prison, fined h im $150, and ordered the forfeiture of the $385. {¶4} Mr. Mathis has appealed, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR THE TRIAL COURT ERRORED (SIC) IN FAILING TO GRANT MR. MATHIS, II’S MOTION TO SUPPRESS[.] {¶5} In Mr. Mathis’ sole assignment of error, he argues that the trial court erred in failing to suppress the evidence because (1) the de tectives did not have reasonable suspicion to search him for weapons and (2) the search excee ded the boundaries of a patdown authorized by Terry v. Ohio , 392 U.S. 1 (1968). We address e ach of these issues in turn. {¶6} Generally, “review of a motion to suppre ss presents a mixed question of law and

fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Thus, we defer to the trial court’s findings of fact if they are supported by competent, credible evidence and review its application of the law to the facts de novo. State v. Metcalf , 9th Dist. Summit No. 23600, 2007- Ohio-4001, ¶ 6. {¶7} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect individuals from unreasonable searches and seizures. Searches and seizures conducted outside the judi cial process are per se unreasonable under the Fourth Amendment, subject to well-delineated exceptions. Katz v. United States , 389 U.S. 347, 357 (1967). The Supreme Court of the United States held in Terry that a police officer who, while observing a person’s behavior, “reasonably * * * conclude[s] in light of his experience that criminal activity is afoot and that the person[] with whom he is dealing may be armed and presently dangerous[]” may pat down the outside of the person’s clothes in order to determine if3

he or she has any weapons. Id. at 30. The Supreme Court also noted that the search “must therefore be confined in scope to an intrus ion reasonably designed to discover” weapons. Id. at

29. {¶8} “[P]olice officers may seize nonthreate ning contraband detected during a protective patdown search * * * so long as the officers’ search stays within the bounds marked by Terry .” Minnesota v. Dickerson , 508 U.S. 366, 373 (1993). If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or ma ss makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizurewould be justified by the same practical considerations that inhere in the plainview context.

Id. at 375-376. The officer must “have probable cau se to believe that the item is contraband before seizing it[.]” Id. at 376. Probable cause “merely require s that the facts available to the

officer would ‘warrant a man of reasonable cauti on in the belief[]’ * * * that certain items may be contraband * * * or useful as evidence of a crime[.]” Texas v. Brown , 460 U.S. 730, 742 (1983), quoting Carroll v. United States , 267 U.S. 132, 162 (1925). {¶9} Detective Sinsley testified that he had 12 years of experience as a police officer, over 1 year of which was in the SNUD unit, and had been involved in between 300 and 400 investigations dealing with crack cocaine and he roin. He further testified that the SNUD unit received a tip that a black male with crack cocai ne would soon be at a certain Circle K in an older maroon Chevrolet. Detective Sinsley was aware that the area around the Circle K was the site of numerous possession and tr afficking arrests and arranged for surveillance of the Circle K parking lot. Detective Sinsley, along with other officers, observed Mr. Mathis enter the Circle K parking lot driving an older maroon Chevrolet a bout 20 minutes after the unit received the tip.

The officers observed Mr. Mathis for a few minut es, during which Mr. Mathis never exited his4

vehicle to use the fuel pumps or enter the store. Instead, Mr. Math is sat in his vehicle nervously looking around, which Detective Sinsley testified was consistent with the behavior of an individual involved in a drug transaction. De tective Sinsley drove his vehicle behind Mr. Mathis’ vehicle, blocking him in, a nd approached Mr. Mathis’ vehicle. {¶10} According to Detective Sinsley, when he approached Mr. Mathis, Mr. Mathis appeared very nervous; he was constantly l ooking around and was breathing rapidly. When Detective Sinsley asked Mr. Mathis half-a-minute into the encount er if he had any weapons, Mr.Mathis began to sweat. Detective Sinsley testified that, in his experience investigating narcoticrelated activity, he was aware that guns and drugs often go together. Given that Mr. Mathis began to sweat only when being asked about whether he possessed w eapons, the detective became concerned that Mr. Mathis might have a w eapon. At that point, he asked Mr. Mathis to get out of the vehicle so he could pat him down. {¶11} Detective Sinsely testified in detail as to how he c onducts a protective patdown for weapons: “I grabbed his hands, [and] I be gan to do a pat-down, which is open hand, slide basically * * * along the body. * * * Just go along the body’s contours[.] * * * If there’s weapons in there you will feel it as you slide y our open hand across the body.” When Detective Sinsely was patting down Mr. Mathis with his open hand, he felt “a rock-like substance in [Mr. Mathis’] right coin pocket, watch pocket part of the jeans, the smaller pocket.” Detective Sinsley felt the object with an open hand and did not mani pulate it in order to determine what it was. See

Dickerson at 378-379, quoting State v. Dickerson , 481 N.W.2d 840, 844 (Minn.1992) (Seizure of cocaine was unconstitutional when officer engaged in “‘squeezing, sliding, and otherwise manipulating the contents of th e defendant’s pocket’” during a Terry patdown.). Detective Sinsley noted that people carrying drugs often conceal the drugs in the coin pocket. Based on his5

training and experience, he be lieved what he felt was heroin or crack cocaine. On crossexamination, Detective Sinsley explained that the heroin commonly found in Akron was hard due to being mixed with other substances and bein g stored in “brick[]” shapes, giving it a rocky

texture after it was cut from the brick. Mr. Mathis’ counsel ques tioned Detective Sinsley as to why he had asked Mr. Mathis what was in the poc ket, and Detective Sinsley replied that “[he] knew right away” what the object was but wanted to know if Mr. Mathis would admit that he was carrying drugs. {¶12} Mr. Mathis suggests that the pat-down was improper because Detective Sinsley lacked reasonable, articulable suspic ion to justify checking for weapons. See Terry , 392 U.S. at 29-30. We note that, at the suppression hearing, Mr . Mathis did not contest the propriety of the stop itself. Thus, our analysis is premised upon the police possessing reasonable articulable suspicion that Mr. Mathis was engaged or about to be engaged in criminal activity. 1 As noted above, the detective testified at length concerning his experience in the field. Detective Sinsley also testified that Mr. Mathis appeared to be very nervous and onl y started sweating after Detective Sinsley asked if he had any weapons. Under the totality of the circumstances as described above, Detective Sins ley had reasonable articulable, suspicion that Mr. Mathis was armed and, therefore, could conduc t a pat-down over his outer clothing to check for weapons. See Terry at 29-30. {¶13} Mr. Mathis also argues that Detective Sinsley lacked probable cause to seize the crack cocaine in his pocket because its contraba nd nature was not immediately apparent to the detective. Detective Sinsley testified that he had extensive narcotics experience and that he was

1 In light of the concession below, the valid ity of the stop is not properly before us on appeal, and we express no opinion about its validity.6

aware that the coin pocket was a common location for drugs to be kept. 2 He also had received a report that an African-American man driving an older model maroon Chevrolet would bearriving shortly at a certain Circle K, which Detective Sinsley was aware was a known druglocation and would be transporting cocaine. See United States v. Caruthers , 458 F.3d 459, 467 (6th Cir.2006) (Defendant’s presence in a high-c rime area does not create reasonable suspicion on its own, but is “relevant to the reasonable susp icion calculus[.]”). Mr. Mathis did arrive a short time after the tip at the stated Circle K dr iving an older maroon Chevrolet. Furthermore, Detective Sinsley observed Mr. Mathis for a numbe r of minutes and Mr. Ma this did not attempt to enter the Circle K or use the gas pumps, instead sitting in his car in the parking lot while looking around, behavior which Detective Sinsley testified was consistent with an individual involved in a drug transaction. Thus, under the to tality of the circumstances, we conclude that Detective Sinsley had probable cause to believe that the “rock-like substance” he felt, which he recognized as cocaine or heroin, was contraband and that such was immediately apparent to him without further manipulation of the object. Therefore, Detective Sinsley was entitled to remove it from Mr. Mathis’ pocket. Dickerson at 376. See also State v. Lawless , 2d Dist. Montgomery No. 23126, 2009-Ohio-5405, ¶ 32. {¶14} Accordingly, Mr. Mathis’ sole a ssignment of error is overruled.

III. {¶15} Mr. Mathis’ assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed.

2 Although Mr. Mathis suggests that the loca tion of the object should not be considered, he has not cited any authority for that proposition, see App.R. 16(A)(7), and, in any case, the location of an object would be part of the totality of the circumstances used in a determination of probable cause.7

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

HENSAL, J. WHITMORE, J. CONCUR.

APPEARANCES: WILLIAM A. VASILIOU, II, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.