[Cite as State v. Wyatt , 2021-Ohio-3146.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

CHARLES R. WYATT, Appellant. :

:

:

:

:

: CASE NO. CA2020-11-076

O P I N I O N

9/13/2021

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 19CR035909

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee Johnna M. Shia, P.O. Box 145, Springboro, Ohio 45066, for appel lant

HENDRICKSON, J. {¶ 1} Appellant, Charles R. Wyatt, appeals from a decision of the War ren County Court of Common Pleas denying his motion to suppress. For the reasons stated below, we

affirm the decision of the trial court. {¶ 2} On October 21, 2019, appellant was indicted on one count of agg ravated possession of drugs (methamphetamine) in violation of R.C. 2925 .11(A) and (C)(1)(b), aWarren CA2020-11-076

- 2 - felony of the third degree, one count of counterfeiting in viol ation of R.C. 2913.30(B)(3) and (C), a felony of the fourth degree, one count of possessing dru g abuse instruments in violation of R.C. 2925.12(A) and (C), a misdemeanor of the seco nd degree, and one count of the illegal use or possession of drug paraphernalia in viola tion of R.C. 2925.14(C)(1) and (F)(1), a misdemeanor of the fourth degree. The charges arose following a pat down of appellant's person, during which appellant was found to be in p ossession of methamphetamine and a counterfeit $50 bill. {¶ 3} Appellant pled not guilty to the charges and moved to suppress evidence and statements obtained following the detention and search of his p erson, arguing there was no reasonable articulable suspicion justifying law enforcement's s earch or seizure of his person. He further argued that law enforcement exceeded the sc ope of a permissive search for weapons by searching for drugs and manipulating objects in his pockets. {¶ 4} A hearing on appellant's motion to suppress was held on Februar y 4, 2020. At this time, the state presented testimony from two officers a ssigned to the Warren County Drug Task Force (WCDTF). Sergeant Lacy testified his works for the Warren County

Sheriff's Office and has been assi gned to the WCDTF since 2014. Around 2:45 p.m. on August 16, 2019, he and other members of the WCDTF were in the parking lot of the Franklin Municipal Court in order to serve an arrest warrant on Kayla Nipper. Nipper was being arrested on a charge of mailing narcotics to jail. Serge ant Lacy and another officer, Officer Aspacher, were dressed in street clothes rather than in a uniform, but both men wore vests identifying themselves as "Sheriff" or "Police." Other o fficers on scene to assist with the arrest, including Trooper Roddy, an officer with the Ohio S tate Highway Patrol, were in

uniform. {¶ 5} Nipper drove into the court's parking lot and parked next to Se rgeant Lacy's unmarked vehicle. Appellant was seated in the front passenger seat of Nipper's car. NipperWarren CA2020-11-076

- 3 - exited her vehicle and started walking towards the courthouse. At this time, Sergeant Lacy and other officers approached Nipper and took her into custody without incident. {¶ 6} Appellant remained in Nipper's car during Nipper's arrest. Ser geant Lacy testified that after Nipper was arrested, he looked at appellan t, who was approximately 50 feet away, and observed that appellant appeared surprised and h ad a "shocked, stunned expression" on his face. Sergeant Lacy also observed that appe llant's hands were down by his waist, manipulating something in his crotch area, as if in "an attempt to conceal something." Sergeant Lacy approached the vehicle while repeate dly telling appellant to put his hands up. Sergeant Lacy explained appellant's failure to i mmediately raise his hands as directed was concerning because "when we approach anyone in a drug investigation, we're concerned with weapons and concealment of evidence." The sergeant further testified that as a result of the thousands of drug investigati ons he had been involved in, he "always" has concerns with suspects or their associates having weapons on their person, explaining that "[w]ith drugs * * * comes weapons especially, w hen we're dealing with meth." {¶ 7} With the help of Trooper Roddy, Sergeant Lacy removed appellant from the vehicle and handcuffed him. Trooper Roddy did a "quick" weapon s pat down of appellant's person. However, because Trooper Roddy was a female officer pa tting down a male subject, her pat down did not extend to appellant's crotch area , where Sergeant Lacy had observed appellant moving his hands. 1 Trooper Roddy did not discover any weapons on

1. Sergeant Lacy testified as follows when asked about the tho roughness of Trooper Roddy's pat down of appellant's person: [Prosecutor]: [D]o you recall how much of a pat down [Trooper Roddy] did? Was it a quick one, was it a long in depth one? [Sergeant. Lacy]: I believe she probably just did a quick pat down for a weapons check. Trooper Roddy is a female. Mr. Wyatt's a male. [Prosecutor]: Why is that significant then?Warren CA2020-11-076

- 4 - appellant. {¶ 8} Subsequent to Trooper Roddy's pat down of appellant, Officer As pacher approached appellant and read him his Miranda rights. Appellant stated he had a Viagra pill on him. Sergeant Lacy could not recall whether appellant indicated he had a prescription for the medicine. He also could not recall whether Officer Asp acher retrieved the pill from appellant's person. He did, however, recall that Officer Aspac her, a male officer, conducted a pat down of appellant, during which crystal methamphetamine a nd a counterfeit $50 bill were located in appellant's pants pocket. {¶ 9} Officer Aspacher was the second officer to testify at the suppr ession hearing. He testified that he has over 11 years of police experience and is currently employed by the city of Monroe Police Department He was assigned to the WCDTF in May or June 2019. He explained that he handles drug possession charges on a weekl y basis and has been trained to identify street drugs, including methamphetamine. B ased on his training and experience, he is aware that "[d]rugs and guns go hand and hand ." In his drug

[Sergeant. Lacy]: If at all possible, we like males to search males, females to search females. [Prosecutor]: Okay. So, if that's the case and you were sayin g that the defendant was moving towards his crotch, would Trooper Roddy ha ve been authorized or should she have been patting down the defendant i n his crotch region?

* * * [Sergeant. Lacy]: There are situations where a female would pa t down a male, in very extreme situations. If she's the only one there and she has to make sure that there's not a weapon there, absolutely. But, if there's males standing right there, there would be absolutely no reason for a female to pat a male down while there are male officers there. [Prosecutor]: Okay, in that area? [Sergeant. Lacy]: Right. [Prosecutor]: Meaning in the crotch? [Sergeant. Lacy]: Right.Warren CA2020-11-076

- 5 - investigations, he frequently encounters weapons, including ind ividuals armed with knives "pretty much every single time." {¶ 10} Officer Aspacher testified that on August 16, 2019, he was dres sed in plain clothes and parked in the Franklin Municipal Court parking lot awaiting Nipper's arrival. He was stationed on the opposite side of the lot from where Nipper parked. By the time Officer Aspacher approached Nipper's car, Nipper had already been taken into custody and appellant had been removed from Nipper's vehicle and handcuffed . Although he believed Trooper Roddy had conducted a "real quick pat down" of appellan t, he did not think she had done an "in depth" pat down due to appellant being the opposite sex. Because he was concerned about appellant being able to reach for a weapon, he decided to conduct a pat down. However, before patting down appellant, he read appellan t his Miranda rights and asked appellant if he had anything illegal on his person. Appe llant responded he had some Viagra in his pocket but did not indicate whether he had a pres cription for the drug. Officer Aspacher located the Viagra in appellant's front right jeans po cket before conducting a pat down of appellant's person. {¶ 11} During the pat down, Officer Aspacher observed a bulge in the r ight front pocket of appellant's jeans. Officer Aspacher ran his flat han d across the bulge without squeezing, moving, rolling, or pushing on it and heard "plastic crinkling," which in his training and experience was consistent with drug storage. It was immedi ately apparent to Officer Aspacher what he was feeling was methamphetamine, "just based o n the size of it and what we were there for." Officer Aspacher retrieved the substance f rom appellant's pocket and observed a hard, semi-clear crystal substance consistent with m ethamphetamine in a clear plastic sandwich baggie. He also recovered a counterfeit $50 b ill from appellant's pocket. Thereafter, appellant "made some statements" to him and a canin e sniff of Nipper's vehicle

was conducted.Warren CA2020-11-076

- 6 - {¶ 12} After hearing from Sergeant Lacy and Officer Aspacher, the tria l court took the matter under advisement. On March 4, 2020, the trial court issued a decision denying appellant's motion to suppress. The court found that the stop, or detention, of appellant was permissible as "there was reasonable articulable suspicion that appellant was engaged in, or about to engage in, criminal activity." Moreover, the c ourt found that Officer Aspacher had not exceeded the scope of a permissive pat down and that th e "plain feel doctrine" permitted the seizure of contraband discovered during the pat d own for weapons. {¶ 13} Following the denial of his motion to suppress, appellant enter ed a no contest plea to all the charges against him. Appellant was subsequentl y sentenced to an aggregate prison term of 30 months. {¶ 14} Appellant timely appealed from his conviction, raising the foll owing as his sole assignment of error: {¶ 15} THE TRIAL COURT ERRED IN DENYING WYATT'S MOTION TO

SUPPRESS. {¶ 16} Appellant contends the trial court erred in denying his motion to suppress as

the state failed to demonstrate that the officers had sufficien t reasonable suspicion of criminal activity to initially detain him, to continue his dete ntion, or to arrest him. He further contends that the officers did not have reasonable suspicion th at he was armed and dangerous in order to conduct a pat down for weapons and that t he second pat down exceeded the scope of what was authorized by the Fourth Amendme nt as the search was not for weapons. {¶ 17} "Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact." State v. Turner , 163 Ohio St.3d 421, 2020-Ohio-6773, ¶ 14, citing

State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial court, as the trier of fact, is in the best position to w eigh the evidence to resolve factual questions and evaluateWarren CA2020-11-076

- 7 - witness credibility. State v. Vaughn , 12th Dist. Fayette No. CA2014-Ohio-05-012, 2015- Ohio-828, ¶ 8. Therefore, when reviewing a trial court's decis ion on a motion to suppress, this court is bound to accept the trial court's findings of fac t if they are supported by competent, credible evidence. Turner at ¶ 14. "An appellate court * * * independently reviews the trial court's legal conclusions based on those fact s and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007- Ohio-3353, ¶ 12. {¶ 18} Both the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect individuals from un reasonable searches and

seizures. State v. Jimenez , 12th Dist. Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 9;

Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507 (1967). Any searches or seiz ures that occur "outside the judicial process, without prior approva l by judge or magistrate are

per se unreasonable under the Fourth Amendment – subject only to a fe w specially established and well-delineated exceptions." Katz at 357. An investigative stop, or a Terry stop, by a police officer is a common exception to the Fourth A mendment warrant requirement. Terry v. Ohio , 392 U.S. 1, 20-22, 88 S.Ct. 1868 (1968). Under Terry , a police officer may detain an individual without probable cause when th e officer has reasonable suspicion based on specific, articulable facts, that criminal a ctivity is afoot. Id. at 21. "An investigatory stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion that 'the person stoppe d is, or is about to be, engaged in criminal activity.'" State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35, quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690 (1981). {¶ 19} Reasonable articulable suspicion is "something more than an und eveloped suspicion or hunch" but is less than the level of suspicion req uired for probable cause. StateWarren CA2020-11-076

- 8 - v. Hinkston , 12th Dist. Clermont No. CA2020-03-012, 2020-Ohio-6903, ¶ 18. "Reasonable articulable suspicion exists when there are specific and articu lable facts which, taken together, with rational inferences from those facts, reasonably warrant the intrusion." State

v. Hill , 12th Dist. Warren No. CA2015-05-044, 2015-Ohio-4655, ¶ 10, ci ting State v. Bobo , 37 Ohio St.3d 177, 178 (1988). Reasonable and articulable susp icion is determined by evaluating the totality of the circumstances "through the eyes of a reasonable and prudent police officer on the scene who must react to events as they un fold." State v. Popp , 12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, ¶ 13. "This pro cess allows officers to draw on their own experience and specialized training to make infere nces from and deductions about the cumulative information available to them that 'might well elude an untrained person.'" United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744 (2002), quoting Cortez , 449 U.S. at 418. {¶ 20} After an officer makes a lawful Terry stop, the officer may conduct a limited protective search, or a pat down, for weapons if the officer ha s "reason to believe that he is dealing with an armed and dangerous individual, regardless of w hether he has probable

cause to arrest the individual for a crime." Terry , 392 U.S. at 27; Popp at ¶ 12. "The officer need not be absolutely certain that the individual is armed; th e issue is whether a reasonably prudent main in the circumstances would be warranted in the bel ief that his safety or that of others was in danger." Terry at 27. "The rationale behind the protective search is to allow the officer to take reasonable precautions for his own sa fety in order to pursue his investigation without fear of violence." State v. Andrews , 57 Ohio St.3d 86, 89 (1991), citing Terry at 24, 30.

{¶ 21} Based on the totality of the circumstances presented in the pre sent case, we find that law enforcement had reasonable and articulable suspic ion to effectuate a Terry stop on appellant in order to investigate the possibility of cr iminal activity and that theWarren CA2020-11-076

- 9 - officers acted lawfully in conducting a protective pat down of appellant for weapons. Appellant is correct that one's mere proximity to or associatio n with others independently suspected of criminal activity does not alone provide a suffici ent basis to search that person.

See Ybarra v. Illinois , 444 U.S. 85, 91, 100 S.Ct. 338 (1979); State v. Davis , 140 Ohio App.3d 659, 664 (9th Dist.2000). However, Sergeant Lacy's test imony established that appellant's association with Nipper was not the sole basis for appellant's detention and subsequent pat down. Rather, Sergeant Lacy had reason to belie ve that Wyatt was engaged in, or was about to engage in, criminal activity when h e was detained following Nipper's arrest. {¶ 22} At the time law enforcement encountered appellant, they were ar resting appellant's associate, Nipper, on drug-related crimes. Appella nt appeared shocked and stunned that the arrest occurred. After appellant witnessed Ni pper's arrest, appellant began to manipulate something in his crotch area, as if trying to con ceal something. Sergeant Lacy observed the movements appellant made around his waist and the sergeant directed appellant to put up his hands. Appellant did so only after Ser geant Lacy made repeated

demands. {¶ 23} Sergeant Lacy explained that based on appellant's movements aro und his waist, the sergeant was concerned with "weapons and concealment of evidence." Following thousands of drug investigations over a more than 20- year career in law enforcement, Sergeant Lacy was well aware that weapons are comm only found among narcotic suspects and their associates. {¶ 24} This court has previously recognized that "the need for a prote ctive pat-down becomes more urgent where drugs are involved." Jimenez , 2012-Ohio-3318 at ¶ 15. See

also State v. Bales , 2d Dist. Montgomery No. 24897, 2012-Ohio-4968, ¶ 23. "The ve ry nexus between drugs and guns can create a reasonable suspicion of danger to the officer."Warren CA2020-11-076

- 10 - State v. Thompson , 1st Dist. Hamilton No. C-050400, 2006-Ohio-4285, ¶ 11. {¶ 25} Accordingly, based on Sergeant Lacy's experience and training a nd his observations of appellant's behavior, we find that Sergeant Lac y had sufficient reasonable suspicion to detain appellant in order to conduct an investigat ive stop under Terry. Sergeant Lacy and his fellow officers acted lawfully in removing appella nt from Nipper's vehicle, placing appellant in handcuffs, and subjecting him to a pat dow n. {¶ 26} Appellant contends that even if the first pat down of his perso n, conducted by Trooper Roddy, was lawful, the second search conducted by Offic er Aspacher violated his constitutional rights as there was no reasonable suspicion to d etain him beyond the scope of the initial seizure and search. He contends that following Trooper Roddy's search, Officer Aspacher had no reason to believe he was armed and dangerous. {¶ 27} This court has previously recognized that "the rationale for a protective Terry

search 'becomes attenuated with successive searches.'" State v. Bean , 12th Dist. Butler No. CA2015-07-136, 2016-Ohio-876, ¶ 17, quoting State v. Hackett , 171 Ohio App.3d 235, 2007-Ohio-1868, ¶ 16 (6th Dist.). "[T]he basis for a Terry search is diminished each additional time an officer searches a subject." State v. Dunlap , 7th Dist. Columbiana No. 12 CO 31, 2013-Ohio-5637, ¶ 33. "When the use of multiple prot ective searches exceeds

the rationale behind a Terry- type investigation, it becomes unreasonable." Hackett at ¶ 17.

Accord Bean at ¶ 17. {¶ 28} "A second-pat down search has been found to be justified when t he officer who conducted the second pat-down search did not observe the fi rst pat down or was concerned with the adequacy of the first pat down." State v. Garrett , 2d Dist. Montgomery No. 27630, 2018-Ohio-4530, ¶ 56. See, e.g., Bean at ¶ 17; State v. Willette , 4th Dist. Washington No. 11CA32, 2013-Ohio-223, ¶ 22; State v. Davis, 2d Dist. Montgomery No. 22572, 2008-Ohio-2885, ¶ 16.Warren CA2020-11-076

- 11 - {¶ 29} In State v. Davis , 2008-Ohio-2885, a female was frisked for weapons by a male officer before being placed in the officer's patrol car. During this search, no weapons

were discovered. Id. at ¶ 7. The defendant was not u nder arrest at this time, alth ough the officer was investigating pills he had observed in the defendan t's open purse when the defendant was taking out her license. Id . Once a second officer arrived on scene, the defendant was moved into the second officer's patrol car. Id. at ¶ 9-10. However, before being placed in the second officer's car, the officer, a female , conducted a second pat down

of the defendant. Id. at ¶ 10. During the search, the female officer felt hard plas tic in the defendant's groin area, which ended up being a bottle holding c rack cocaine, empty gel caps of heroin, and Viagra. Id. At this time, the defendant was arrested and subjected to another search by the female officer, during which time a baggi e of powdered cocaine was

found underneath the defendant's bra. Id. at ¶ 10. The defendant filed a motion to suppress, which the trial court granted, finding that the secon d officer "did not have a reasonable belief that [the] [d]efendant was armed when she con ducted the [second] patdown." Id. at ¶ 12. The Second District reversed, finding that the femal e officer had a reasonable suspicion that the defendant was armed to justify co nducting a second pat

down. Id. at ¶ 15. The court noted that [a]lthough [the defendant] had already been frisked for weapons by [the male officer] prior to being placed in his cruiser, a m ale officer might be more restrained when patting down a female. Despite the fact that [the defendant] was wearing very tight clothing consisting of very short shorts and a short, skimpy to p, it was possible for her to conceal a small weapon in her groin and breast areas – areas which a male officer may be reluctant to pat down. In short, we find that [the female officer's] pat down of [the defendant] prior to placing her in her cruis er was lawf ul.

Id. at ¶ 16. {¶ 30} The present case is similar to Davis in that the first pat down of appellant was conducted by an officer of the opposite sex, Trooper Roddy. Bo th Sergeant Lacy andWarren CA2020-11-076

- 12 - Officer Aspacher testified that Trooper Roddy's search of appel lant's person was "quick" and did not extend to appellant's crotch area. As Sergeant Lac y explained, there was "absolutely no reason" for Trooper Roddy, a female officer, "to pat a male down [in the crotch area] while there are male officers there." Officer Asp acher, in turn, testified that he had concerns about appellant being able to reach for a weapon a nd therefore conducted a second pat down of appellant for officer safety. Under these c ircumstances, we find that the second pat down of appellant was reasonable and did not vio late appellant's constitutional rights. {¶ 31} We further find, contrary to appellant's assertions, that appel lant was not under arrest when he was handcuffed and subjected to the pat do wns. As we have previously recognized, "[a]n individual may * * * be temporaril y restrained either for his own safety or that of the officer." Popp , 2011-Ohio-791 at ¶ 20. Placing an individual in handcuffs before conducting a pat down does not automatically c onvert the investigation

into an arrest. Fairfield v. Adams , 12th Dist. Butler No. CA95-09-153, 1996 Ohio App. LEXIS 1563, *4-5 (Apr. 22, 1996); State v. Dunson , 2d Dist. Montgomery No. 20961, 2006- Ohio-775, ¶ 17. The fact that Officer Aspacher read appellant his Miranda rights and asked appellant if he had anything illegal on his person before condu cting the second pat down

also did not convert the Terry investigation into an arrest requiring probable cause. {¶ 32} Finally, we find that Officer Aspacher's pat down did not excee d the scope of a protective search and that the contraband found in appellant' s pants pocket was subject to seizure under the plain-feel doctrine. "Under Terry and its progeny, the police may search only for weapons when conducting a pat down of the suspect." State v. Evans , 67 Ohio St.3d 405, 414 (1993). "'The purpose of this limited search is not to discover eviden ce of crime, but to allow the officer to pursue [the officer's] inves tigation without fear of violence *

* *.'" Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130 (1993), quoting Adams v.Warren CA2020-11-076

- 13 - Williams , 407 U.S. 143, 146, 92 S.Ct. 1921 (1972). "[O]nce the officer determines from his sense of touch that an object is not a weapon, the pat-down fri sk must stop." Evans at 414. {¶ 33} However, "[u]nder the plain feel doctrine, if, during a pat dow n, the officer feels an object whose contour or mass makes its identity immediately apparent as contraband, the officer may seize the object." State v. Fisk , 12th Dist. Preble No. CA2020-11-016, 2021- Ohio- 2989, ¶ 31, citing Dickerson at 375-376. The "immediately apparent" requirement is satisfied if the officer has probable cause to associate the ob ject with criminal activity based on the totality of the surrounding circumstances. State v. Grant , 12th Dist. Preble No. CA2014-12-014, 2015-Ohio-2464, ¶ 17. The officer may not manip ulate the object to determine its incriminating nature. Id. ; Bean , 2016-Ohio-876 at ¶ 18. {¶ 34} Immediately prior to the second pat down of appellant's person, Officer Aspacher recovered Viagra that appellant advised was in his fro nt right jean pocket. The recovery of the Viagra from this pocket, however, did not forec lose the possibility that appellant may have been armed with a weapon. Officer Aspacher observed a bulge in appellant's right front jean pocket, near the crotch area that Trooper Roddy had not patted down. To ensure his safety, Officer Aspacher ran his flat hand across the bulge. At that time, he heard plastic crinkling. Based on his training and ex perience with how drugs were packaged, it was immediately apparent to Officer Aspacher that he was feeling methamphetamine, "just based on the size of it and what we were there for." Officer Aspacher denied that he manipulated the object, stating "All I did was touch it. I didn't squeeze it, move it around, roll it, push on it." Under the to tality of the circumstances, Officer Aspacher had the right, pursuant to the plain-feel doctrine, to seize the contraband items he felt in appellant's pocket. {¶ 35} Accordingly, for the reasons stated above, we find that the tri al court did not err in denying appellant's motion to suppress. Law enforcement 's investigative Terry stopWarren CA2020-11-076

- 14 - and pat down of appellant did not violate appellant's constitut ional rights. Appellant's sole assignment of error is overruled. {¶ 36} Judgment affirmed.

PIPER, P.J., and S. POWELL, J., concur.