[Cite as State v. Shoenberger , 2022-Ohio-253.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNT Y STATE OF OHIO, Plaintiff-Appellee,

- v - SHAWN E. SHOENBERGER, Defendant-Appellant. CASE NO. 2021-A-0011

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2019 CR 00505

O P I N I O N

Decided: Januar y 31, 2022 Jud g ment: Reversed; remanded

Colleen M. O’Toole , Ashtabula County Prosecutor, Shelley M. Pratt , Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 ( for Plaintiff-Appellee )

. Aaron A. Schwartz and Megan M. Patituce , Patituce & Associates, LLC, 16855 Foltz Industrial Parkwa y , Stron g sville, OH 44149 ( for Defendant-Appellant )

.

JOHN J. EKLUND, J. {¶1} Appellant, Shawn Shoenberger, appeals the January 30, 2020, jud gment of the Ashtabula County Court of Common Pleas denying his motion t o suppress. Appellant asserts three assignments of error alleging that law enforcemen t illegally initiated contact with Shoenberger, illegally detai ned him, and illegally searche d and seized evidence from his person. For the following reasons, we find that the lower c ourt erred by denying appellant's motion to suppress. Therefore, we vacate the judgme nt of conviction, reverse the order denying appellant's motion to suppress, and remand fo r further proceedings.2

Case No. 2021-A-0011 {¶2} On February 18, 2019, Officer Howell of the Ashtabula Police De partment overheard radio traffic calling for the Ashtabula Fire Departme nt to respond to a possible overdose. The report indicated a man, possibly overdosed, was s lumped over in a white car in the driveway at 1504 West 9 th Street. Howell was in the area and responded. When he arrived, he encountered another man in a vehicle who pointed to a white car in the driveway of 1504 West 9 th Street and said “Oh, he must have woken up.” The man in the car then drove away and Howell never identified him. {¶3} Howell then approached the vehicle in the driveway and advised the occupant that he was investigating a possible overdose. The man in the vehicle identified himself as Shoenberger. He denied passing out and said he had d ropped his cell phone on the floor of the car and had bent over to pick it up. He fur ther said he was waiting for his girlfriend who lived at the residence. {¶4} Howell asked Shoenberger to step out of the vehicle to investig ate the overdose claim further. He then told Shoenberger that he was go ing to pat him down and Shoenberger turned around. During the pat down, Howell felt a c ircular bulge in Shoenberger’s front left pocket. Howell asked what the object w as and Shoenberger immediately shoved his hand in his pocket. Howell grabbed Shoen berger’s wrist to stop him from retrieving the item because he “was afraid he was goin g to pull a weapon out.” Howell again asked what the object was and Shoenberger slowly p ulled the object out revealing a circular change container with a zipper around it. Shoenberger also pulled a twenty-dollar bill from his pocket at the same time. {¶5} When Howell saw that the item was not a weapon, he released Shoenberger’s wrist, but noticed that Shoenberger appeared to b e shielding the item from3

Case No. 2021-A-0011 view. Howell again asked what the item was and Shoenberger said that he had a twentydollar bill. Howell asked about the change container and Shoenb erger sighed and said it was “something I shouldn’t have.” {¶6} After being called to the scene for a possible overdose and Sho enberger’s

evasiveness and ultimate admission that the item contained some thing he should not have, Howell believed the item contained “something illegal.” H e therefore took the change container, opened it, and found two baggies with two dif ferent rock substances inside which appeared to be heroin. {¶7} Then, the ambulance arrived in response to the possible overdos e call. Howell seized the change container and Shoenberger spoke to amb ulance personnel who examined and released him. After this, Howell allowed Shoen berger to enter his girlfriend’s house rather than placing him in custody. {¶8} On October 9, 2019, the Ashtabula County Court of Common Pleas indicted Shoenberger for Aggravated Trafficking in Drugs, a felony of th e third degree, Aggravated Possession of Drugs, a felony of the third degree, Trafficking in Fentanyl Related Compound, a felony of the fourth degree, Trafficking in Heroin, a felony of the fourth degree, Possession of Fentanyl Related Compound, a felony of th e fourth degree, Possession of Heroin, a felony of the fourth degree, and Posses sing Criminal Tools, a felony of the fifth degree. {¶9} Shoenberger sought to suppress the evidence of his arrest on th e basis that Howell illegally detained Shoenberger in an investigatory stop without reasonable suspicion, illegally removed him from his vehicle, and illegall y searched his person and possessions. The trial court overruled his motion after a heari ng. Shoenberger then4

Case No. 2021-A-0011 entered a plea of no contest to all counts and was sentenced to two-years of intensive community control. Shoenberger timely filed this appeal and rai ses three assignments of error relating to his motion to suppress. {¶10} “‘Appellate review of a motion to suppress presents a mixed qu estion of

law and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. At a hearing on a motion to suppress, the trial court, as th e trier of fact, is in the best position to weigh the evidence by resolving factual questions a nd evaluating the credibility

of witnesses. Id. ; State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). A reviewing court must accept the facts determined by the trial c ourt as true and “independently determine, without deference to the conclusion o f the trial court, whether the facts satisfy the applicable legal standard.” Burnside, supra, citing State v.

McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). {¶11} The Fourth Amendment to the United States Constitution guarante es “[t]he right of the people to be secure in their persons, houses, pape rs, and effects, against unreasonable searches and seizures * * *.” Fourth Amendment, Un ited States Constitution. The Ohio Constitution likewise protects against a rbitrary government

invasions. State v. Hoffman , 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). “The touchstone of

both is reasonableness.” State v. Brown , 11th Dist. Lake No. 2020-L-002, 2020-Ohio5140, ¶ 8, citing State v. Michael , 2013-Ohio-3889, 995 N.E.2d 286, ¶ 10 (10th Dist.). {¶12} “‘[S]earches conducted outside the judicial process, without pr ior approval by judge or magistrate, are per se unreasonable under the Fourt h Amendment—subject only to a few specifically established and well-delineated exce ptions.’” (Footnote5

Case No. 2021-A-0011 omitted.) Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “When a defendant moves to suppress evidence recovered during a warrantless search, the state has the burden of showing that the search fits within one of the defined exceptions to the Fourth Amendment's warrant requirement. Athens v. Wolf , 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974).” State v. Banks-Harvey , 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 17-18. {¶13} “Courts must exclude evidence obtained by searches and seizures that

violate the Fourth Amendment.” State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 181, citing Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (extending the exclusionary rule to the states). “ ‘The primary purpose of the exclusionary rule is to remove incentive from the police to vio late the Fourth Amendment.’

” State v. Eggleston , 11th Dist. Trumbull, 2015-Ohio-958, 29 N.E.3d 23, ¶ 17, quoting State v. Casey , 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, 2014 WL 2733098, ¶ 29. {¶14} Appellant raises three assignments of error: {¶15} “[1.] THE TRIAL COURT ERRED IN FINDING THAT OFFICER HOWELL

HAD ACTED AS A COMMUNITY-CARETAKER.” {¶16} “[2.] OFFICER HOWELL WAS ENGAGED IN AN INVESTIGATORY STOP WITHOUT REASONABLE SUSPICION AND, AS SUCH, THE TRIAL COURT ERRE D IN

FINDING THAT THERE HAD BEEN A CONSENSUAL ENCOUNTER.” {¶17} “[3.] OFFICER HOWELL LACKED A CONSTITUTIONAL BASIS TO

REMOVE MR. SHOENBERGER FROM THE VEHICLE AND CONDUCT A SEARCH.”6

Case No. 2021-A-0011 {¶18} Shoenberger argues that it was not permissible for Howell to ap proach Shoenberger in his vehicle and question him under the community -caretaking exception to the Fourth Amendment; that the trial court incorrectly deter mined that his encounter with Howell was consensual; that Howell improperly removed him from his vehicle; and that Howell improperly subjected him to a Terry pat down. {¶19} We address the Terry pat down issue at the outset because it is dispositive

of the case. {¶20} A frisk search for weapons under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), justified “on the basis of reasonable su spicion less than probable cause—must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’” Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), quoting Terry, at 26. {¶21} There are three steps to a Terry analysis. First, to justify the investigatory stop, the officer must have reasonable suspicion that “criminal activity may be afoot.” Terry, supra , at 30. Second, if the officer reasonably believes the person “may be armed and presently dangerous,” the officer may perform a limited pat down to determine if the person has a gun or other weapon. Id. ; State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph two of the syllabus (An officer must have “a reasonable suspicion that an individual is armed based on the totality of the circumstanc es * * *.”) Third, the officer may perform a more thorough pat down of the person if the offic er has a reasonable belief that an object is a weapon. Id. at 21-22. {¶22} “ The frisk, or protective search, approved in Terry is limited in scope to a pat-down search for concealed weapons when the officer has a re asonable suspicion that7

Case No. 2021-A-0011 the individual whose behavior he is investigating at close rang e may be armed and dangerous.” State v. Andrews , 57 Ohio St.3d 86, 89, 565 N.E.2d 1271 (1991), citing Terry, supra , at 27. “While probable cause is not required, the standard to perform a protective search, like the standard for an investigatory sto p, is an objective one based on the totality of the circumstances.” Id. “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.” Id. , citing Terry, at 24, 30. {¶23} In State v. Luther , 11th Dist. Lake No. 2018-L-039, 2018-Ohio-4568, 123 N.E.3d 296, this court concluded that a pat down search was app ropriate where the officers involved “were concerned” the suspect “might try to ha rm them in order to flee because it appeared appellant had attempted to evade the office rs on his bicycle, was sweating profusely, refused to make eye contact, and was lookin g around as though for an escape route.” Id. at ¶ 21. Based on the totality of the circumstances in that c ase, the pat down search to determine i f the suspect was armed was not u nreasonable. {¶24} In this case, Howell told Shoenberger to step out of the vehicl e and told him that he “was going to pat him down for weapons.” To have been p ermitted to conduct the weapons frisk, Howell must have reasonably believed that Shoenb erger was “armed and presently dangerous.” Terry, supra , at 30. The trial court described the encounter between Shoenberger and Howell by saying “the defendant provide d a suspicious answer about dropping his cell phone.” However, it is telling that How ell himself did not characterize this response as suspicious in his testimony. Inst ead, Howell described Shoenberger as “cooperative,” “went with the program, listened to my commands,” and “responsive.”8

Case No. 2021-A-0011 {¶25} Howell testified that he did not see anything in plain view in the vehicle. He did, however, testify that he pe rforms a pat down “any time the re’s drugs, weapons, stuff like that involved, I always like to pat someone down * * * jus t for my protection and their protection.” Although Howell made this general statement about his typical pat down practices, he did not point to any particular facts that justif ied his belief that Shoenberger himself was armed and presently dangerous. {¶26} Howell went to the scene to investigate a possible overdose but found no evidence to corroborate the call. Shoenberger was alert, did no t seem intoxicated, was cooperative, and answered all of Howell’s questions. Howell did not testify that Shoenberger made any furtive movements or acted evasively. Unli ke in Luther, supra , the totality of the circumstances in this case does not demonst rate a reasonable suspicion that Howell believed Shoenberger was armed and presently danger ous. Howell’s pat down was an unreasonable search and a violation of Shoenberger’ s Constitutional rights. As a result of this illegal search, the evidence obtained from it must be excluded. Adams , 144 Ohio St.3d 429, at ¶ 181. {¶27} As our decision on the Terry pat down is dispositive and requires the exclusion of the evidence obtained from it, the remaining assig nments of error are moot.

State v. Gideon , 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 26. (An “assignment of error is moot when an appellant presents issues that are no longer live as a result of some other decision rendered by the appellate court .”).9

Case No. 2021-A-0011 {¶28} Accordingly, appellant’s conviction is reversed and the matter is remanded for further proceedings consistent with this opinion.

THOMAS R. WRIGHT, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.