IN THE FOURTH DISTRICT COURT OF APPEALS OF OHIO

WASHINGTON COUNTY

STATE OF OHIO,

APPELLEE, CASE NO. 11 CA 32

V. APPEAL FROM CASE NO.11 CR 41

FRANK K. WILLETTE,

DEFENDANT/APPELLANT.

APPEAL BRIEF OF DEFENDANT/APPELLANT FRANK K. WILLETTE

Robert W. Bright
278 S. 5th Ave.
Middleport, Ohio 45760
Attorney for Appellant Frank K. Willette

James E. Schneider
Washington County Prosecuting Attorney
Alison L. Cauthorn
Washington Co. Assist. Pros. Attorney
205 Putnam Street
Marietta, OH 45750
Attorney for the State of Ohio
 TABLE OF CONTENTS

Table of Authorities . . . . . . . . ii

Assignments of Error . . . . . . . . 1

Issues Presented . . . . . . . . . 1

Statement of the Case . . . . . . . . 2

Statement of Facts . . . . . . . . . 2

Standard of Review re: Motions to Suppress . . . . . 7

Argument . . . . . . . . . . 7

Assignment of Error 1 . . . . . . . . 7

Assignment of Error 2 . . . . . . . . 13

Assignment of Error 3 . . . . . . . . 15

Conclusion . . . . . . . . . . 20

Certificate of Service . . . . . . . . 21

i
 TABLE OF AUTHORITIES

CASE LAW

State v . Ev an s (1993), 67 Ohio St.3d 405, 618 N.E.2d 162 . . 10

State v . Gro v e s (2004), 156 Ohio App.3d 205, 805 N.E.2d 146
(Ohio App. 2 Dist.), 2004-Ohio-662 . . . . 17

State v . Hac ke tt (2007), 171 Ohio App.3d 235, 870 N.E.2d 235
(Ohio App. 6 Dist.), 2007-Ohio-1868 . . . . 14

State v . Jo n e s (2002), 2002 WL 31002617 (Ohio App. 2 Dist.),

2002-Ohio-4681 . . . . . . . 20

State v . Lo c kle ar (2008), 2008 WL 3870613 (Ohio App. 8 Dist.),

2008-Ohio-4247 . . . . . . . 9

State v . Lo zad a (1999), 1999 WL 1313647 (Ohio App. 11 Dist.) . 11

State v . Sm ith (1996), 116 Ohio App.3d 842, 689 N.E.2d 598
(Ohio App. 2 Dist.) . . . . . . 19

State v . Ulm e r (2010), 2010 WL 686256 (Ohio App. 4 Dist.),

2010-Ohio-695 . . . . . . . 7

T e rry v . O h io (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 . 9

ii
 ASSIGNMENTS OF ERROR

1: THE TRIAL COURT ERRED IN FINDING THAT THE FIRST PAT DOWN OF THE
DEFENDANT/APPELLANT WAS LEGALLY PERMISSIBLE.

2: THE TRIAL COURT ERRED IN FINDING THAT THE SECOND PAT DOWN OF THE
DEFENDANT/APPELLANT WAS LEGALLY PERMISSIBLE.

3: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE BAGGIE FOUND IN THE
DEFENDANT/APPELLANT’S SOCK AS A RESULT OF THE ILLEGAL SECOND PAT
DOWN.

ISSUES PRESENTED

1: WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE FIRST PAT DOWN OF
THE DEFENDANT/APPELLANT WAS LEGALLY PERMISSIBLE.

2: WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE SECOND PAT DOWN
OF THE DEFENDANT/APPELLANT WAS LEGALLY PERMISSIBLE.

3: WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE BAGGIE

FOUND IN THE DEFENDANT/APPELLANT’S SOCK AS A RESULT OF THE ILLEGAL
SECOND PAT DOWN.

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 STATEMENT OF THE CASE

After a jury trial, Defendant/Appellant Frank Willette (hereinafter “Appellant”) was

convicted of possession of cocaine in violation of R.C. § 2925.11(A)&(C)(4)(a), a felony of the

fifth degree (Trans p. 380, l. 16-24). Trial Court Judge Susan Boyer sentenced the Appellant to

eleven (11) months in prison and a $2,000.00 fine (Trans p. 392, l. 10-11). The Appellant

appeals from that conviction.

The Appellant notes that prior to the trial he filed a motion to suppress evidence and a

hearing was held on that motion on the 9th day of May, 2011. The Trial Judge denied the

Appellant’s motion to suppress the cocaine which is related to the Appellant’s conviction. The

Appellant also appeals from the denial of his motion to suppress.

The Appellant was tried on one other count and the Trial Court granted the Appellant’s

motion for acquittal on that other count (Trans p. 353, l. 20-22).

STATEMENT OF FACTS

On September 19, 2011, just prior to 3:00 a.m., the Defendant/Appellant Frank Willette

(hereinafter “Appellant”) was driving on State Route 550 with two (2) other men - one (1) in the

front passenger seat and the other in the rear seat. (Trans p. 211, l. 13-19; p. 212, l. 7-10; p. 220,

l. 17-22).

A certain State Trooper John J. Smith observed the Appellant - in his vehicle - commit

a brief marked lanes violation by the tires of Appellant’s vehicle going over the edge line of the

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road one (1) time (Trans p. 213, l. 8-12; p. 44, l. 15-23; p. 61, l. 19-24) and Trooper Smith turned

around and began following the Appellant’s vehicle in order to determine whether or not the

Appellant might commit any other traffic violations. Trooper Smith suspected that the

Appellant might be intoxicated and, therefore, a danger to other drivers.

Trooper Smith noted no other traffic violations but decided to pull over the Appellant

due to allegedly erratic driving - which allegedly erratic driving was not, per se, illegal (Trans p.

214, l. 22 to p. 215, l. 3; p. 31, l. 13-17; p. 31, l. 23 to p. 33, l. 12; p. 52, l. 11-18). Trooper Smith

admitted that the Appellant’s allegedly erratic driving (after the initial marked lanes violation) was

not probable cause for Trooper Smith to stop the Appellant (Trans p. 32, l. 17-24). The

Appellant immediately pulled over to the side of the road after Trooper Smith activated his lights

- Trooper Smith did not need to use his siren (Trans p. 215, l. 17-20; p. 217, l. 22-24).

However, the location the Appellant pulled over was in a curve and unsafe, so through

the intercom, Trooper Smith instructed the Appellant to pull on up the road to Warren

Elementary School and pull into the driveway there (Trans p. 215, l. 19 to p. 216, l. 3). The

Appellant followed that instruction without incident and pulled into the Warren Elementary

School parking lot (Trans p. 216, l. 4-8; p. 246, l. 16-19).

Upon being pulled over, the Appellant provided Trooper Smith with a valid driver’s

license and registration without incident (Trans p. 218, l. 20-23). Based on the Appellant’s sole

traffic violation, Trooper Smith’s observation of the Appellant’s eyes being “red and bloodshot”,

apparently slow/slurred speech and an unopened twelve (12) pack of beer in the back seat of

the Appellant’s vehicle, Trooper Smith asked the Appellant to step out of his vehicle so that

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Trooper Smith could test the Appellant to determine whether or not the Appellant was

intoxicated (Trans p. 219, l. 24 to p. 221, l. 8). The Appellant then got out of the vehicle and

walked back to the cruiser without incident (Trans p. 222, l. 15 to p. 223, l. 2). Trooper Smith

closely observed the Appellant walk back to the cruiser while paying special visual attention to

the Appellant’s legs (Trans p. 249, l. 6-16). Trooper Smith did not see anything in the

Appellant’s sock. (Trans p. 249, l. 14-16).

Trooper Smith then did a thorough weapons pat down of the Appellant in order to

ensure the Trooper’s safety (Trans p. 35, l. 2-9). There is no evidence that the Appellant

consented to the first pat down search. There is no evidence that Trooper Smith was in fear of

harm from the Appellant. The only reason Trooper Smith gave for doing the weapons pat down

was that “... anyone that’s placed in the patrol car has to be patted down for weapons, for officer

safety reasons.” (Trans p. 22, l. 13-15). Trooper Smith stated that such a pat down was done

solely as a routine procedure, when you’re putting someone in the cruiser (Trans p. 224, l. 7-9).

There is, however, evidence that Trooper Smith was not in fear of harm from the

Appellant because Trooper Smith put the Appellant in the cruiser without handcuffing the

Appellant (Trans p. 39, l. 17-19). Trooper Smith found nothing of note in his weapons pat

down (Trans p. 223, l. 23 to p. 224, l. 11). No weapons or contraband. No drugs. Nothing was

found anywhere on the Appellant’s waist, pockets, chest or midsection (Trans p. 249, l. 17-24).

Trooper Smith looked at the Appellant’s legs and socks and did not see any bulges or plastic

baggies or cocaine (Trans p. 250, l. 1-11).

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 Trooper Smith then required the Appellant to get into the front passenger seat of the

cruiser (Trans p. 224, l. 12-17; p. 250, l. 13-15) and Trooper Smith did two (2) field sobriety tests

- the HGN and the PBT test - upon the Appellant, as well as requiring the Appellant to recite

the alphabet C thru Y. The Appellant showed no signs of intoxication/impairment during any

of the tests (Trans p. 224. l. 23 to p. 226, l. 13; p. 226, l. 18-19; p. 227, l. 18 to p. 228, l. 22; p.

250, l. 21 to p. 19; p. 36, l. 3-10; p. 36, l. 19 to p. 37, l. 10).

At that point, a second Trooper who was on duty in the same cruiser with Trooper Smith

- Sergeant Todd McDonald - decided to get involved with the Appellant (Trans p.

268, l. 13-17). While Trooper Smith was testing the Appellant, Sergeant McDonald had been

working with the two (2) other men in the Appellant’s car and Sergeant McDonald had found

drugs on one or both of those men. Sergeant McDonald then came back and instructed

Trooper Smith to get the Appellant out of the cruiser and pat the Appellant down “more

thoroughly” (Trans p. 234, l. 4-7). However, Sergeant McDonald did the second pat down

(Trans p. 269, l. 21 to p. 4) which Sergeant McDonald specifically stated was a second pat down

for weapons (Trans p. 296, l. 22-24). Sergeant McDonald’s reason for doing a second weapons

pat down of the Appellant was “that Trooper Smith may have missed something.” (Trans p. 298,

l. 4).

That second pat down was done out of site of the cruiser’s videocamera and the audio

of the second pat down is unintelligible (Trans p. 256, l. 4-9; p. 90, l. 18-21). The Appellant did

not consent to the second pat down and the officers did not have a warrant to do the second

pat down (Trans p. 91, l. 10-15).

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 Sergeant McDonald agreed that during the second pat down and his observation of the

Appellant, nothing on the Appellant vaguely resembled a weapon (Trans p. 299, l. 12-14).

It was only after taking the Appellant out of the cruiser and beginning the second pat

down of the Appellant that Sergeant McDonald claimed that - in the dark at approximately 3:30

a.m. with only artificial light - he was able to see a plastic baggie completely contained inside the

Appellant’s black sock on the Appellant’s leg (Trans p. 271, l. 3-8). Sergeant McDonald stated

that he could even see what was inside the baggie inside the Appellant’s black sock on the

Appellant’s leg. Sergeant McDonald stated that he could see cocaine inside the baggie inside the

Appellant’s black sock on the Appellant’s leg (Trans p. 299, l. 6-11; p. 76, l. 15-21; p. 77, l. 9-19;

p. 90, l. 9-21).

Sergeant McDonald then continued and concluded the second pat down of the Appellant

and placed the Appellant under arrest (Trans p. 234, l. 16-23).

STANDARD OF REVIEW RE: MOTIONS TO SUPPRESS

The Standard of Review on issues related to motions to suppress is found in State v .

Ulm e r (2010), 2010 WL 686256 (Ohio App. 4 Dist.), 2010-Ohio-695:

“Our analysis begins with the well-settled premise that appellate review of
a trial court's decision on a motion to suppress evidence involves mixed
questions of law and fact. See, e.g., State v . B o o k, 165 Ohio App.3d 511,
847 N.E.2d 52, 2006–Ohio–1102, at ¶ 9; State v . Lo n g (1998), 127 Ohio
App.3d 328, 332, 713 N.E.2d 1. In hearing such motions, trial courts
assume the role of trier of fact and are in the best position to resolve
factual disputes and to evaluate witnesses credibility. See, e.g., State v .
B u rn s id e , 100 Ohio St.3d 152, 797 N.E.2d 71, 2003–Ohio–5372, at ¶ 8;
State v . Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Appellate
courts must accept a trial court's factual findings so long as competent and
credible evidence supports those findings. See, e.g., State v . Me tc alf
(1996), 111 Ohio App.3d 142, 145, 675 N.E.2d 1268; State v . Harris

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 (1994), 98 Ohio App.3d 543, 546, 649 N.E.2d 7. Appellate courts then
independently review whether the trial court properly applied the law to
the facts. See, e.g., B o o k, s u p ra at ¶ 9; State v . William s (1993), 86 Ohio
App.3d 37, 41, 619 N.E.2d 1141. With these principles in mind, we turn
to the case at bar.”

ARGUMENT

1: THE TRIAL COURT ERRED IN FINDING THAT THE FIRST PAT DOWN OF THE
DEFENDANT/APPELLANT WAS LEGALLY PERMISSIBLE.

It is uncontested that Defendant/Appellant Frank Willette (hereinafter “Appellant”) was

pulled over as a result of a traffic violation. The Appellant has not contested that the traffic

violation occurred. Therefore, it is uncontested that Trooper Smith had a right to pull over the

Appellant’s vehicle and to cite the Appellant for a traffic violation.

However, the evidence that Trooper Smith relied upon to establish probable cause to test

the Appellant for intoxication/impairment is thin. Trooper Smith did, indeed, note one (1)

traffic violation by the Appellant - which traffic violation can and does certainly occur without

the involvement of alcohol. However, the sum total of Trooper Smith’s basis for his suspicion

that the Appellant was driving impaired consisted of: (1) allegedly erratic - but not illegal -

driving; (2) the Appellant’s eyes were “red and bloodshot”; (3) Defendant’s apparently

slow/slurred speech; and (4) there was an unopened twelve (12) pack of beer in the back seat

of the Appellant’s vehicle.

The Appellant notes that - at the time he was asked to step out of the vehicle - the only

illegal act the Appellant had evidently committed was a minor traffic violation. The Appellant

committed no further traffic violations after the initial, sole traffic violation. It was not illegal

for the Appellant to have red and bloodshot eyes. It would not be uncommon for a person to

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have slow/slurred speech if the person was tired - and after all, it was approximately 3:00 in the

morning. It was not illegal for the Appellant to have an unopened twelve (12) pack of beer in

the back seat of his vehicle.

Therefore, the entire basis for the officer’s suspicion that the Appellant was driving

impaired was thin. The officer felt that there was a sufficient basis to test the Appellant in order

to determine whether or not the Appellant was impaired and there is obviously a public policy

and safety reason for law enforcement to ensure that drivers are not impaired while driving.

However, Trooper Smith decided to test the Appellant’s impairment in the cruiser and

to follow routine procedure by patting down the Defendant for weapons. The Defendant

asserts that the initial pat down itself was legally impermissible.

In State v . Lo c kle ar (2008), 2008 WL 3870613 (Ohio App. 8 Dist.), 2008-Ohio-4247,

the Court cited to Te rry v . O h io (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and stated

(emphasis added):

Under T e rry , a police officer may frisk a detainee's outer clothing for
concealed weapons when the officer has a reasonable suspicion that the
suspect is armed and dangerous. Id . at 27...

The proper inquiry is whether the officer reasonably determines

that the detainee is armed and presently dangerous to the officer or
others. State v . Ho s kin s , Cuyahoga App. No. 80384, 2002-Ohio-3451.
Reasonable suspicion must be supported by specific and articulable
facts and circumstances which, together with any rational
inferences that may be drawn therefrom, reasonably support a
conclusion that the detainee is armed and dangerous. State v .
Ste w art, Montgomery App. No. 19961, 2004-Ohio-1319.

The Defendant did not apparently consent to the pat down for weapons. Trooper Smith

never in any way alleged that he believed, felt or supposed that the Defendant was dangerous

-8-
to the officer or to others. Trooper Smith never - in any way - expressed a reasonable suspicion

that the Defendant was armed and dangerous. The only reason Trooper Smith gave for doing

the weapons pat down was that “... anyone that’s placed in the patrol car has to be patted down

for weapons, for officer safety reasons.” (Trans p. 22, l. 13-15). Trooper Smith stated that such

a pat down was done solely as a routine procedure, when you’re putting someone in the cruiser

(Trans p. 224, l. 7-9).

On the other hand, there is evidence that Trooper Smith was not in fear of harm from

the Appellant because Trooper Smith put the Appellant in the cruiser without handcuffing the

Appellant (Trans p. 39, l. 17-19).

In State v . Ev an s (1993), 67 Ohio St.3d 405, 618 N.E.2d 162, the Ohio Supreme Court

stated that (emphasis added):

Under Te rry , a limited protective search of the detainee's person for

concealed weapons is justified only when the officer has reasonably
concluded that “the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the
officer or to others... “the right to frisk must be immediate and
automatic” where the lawfully stopped detainee is under suspicion for a
crime of violence. Id . at 33, 88 S.Ct. at 1886, 20 L.Ed.2d at 913...

A Mimms order [to ask a person to step out of their vehicle] does not
automatically bestow upon the police officer the authority to
conduct a pat-down search for weapons. In analyzing the ensuing
Terry frisk, the question we must ask is whether, based on the totality of
the circumstances, the officers had a reasonable, objective basis for
frisking defendant after ordering him out of the car. See State v .
An d re w s (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271...

... Officer Green stated that [the Defendant was frisked] because
defendant's inability to produce a driver's license meant that the officers
had to place him in the back seat of the patrol car...

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 Next to testify was Officer Travano... Officer Travano further stated that
the protective search was conducted because he wanted to be sure that
defendant did not possess weapons while being detained in the patrol car.
Officer Travano stressed that defendant was searched on this basis
alone...

... Here, the officers' pat-down search of defendant was in accordance

with standard police procedure which dictates that protective
measures be taken before a person is to be held in the back seat of
a squad car... Certainly, it is reasonable that the officer, who has a
legitimate reason to so detain that person, is interested in guarding
against an ambush from the rear.

See also State v . Lo zad a (1999), 1999 WL 1313647 (Ohio App. 11 Dist.), in which the

Court stated that (emphasis added):

Officer Davies claimed that it was a routine safety precaution to

conduct a pat-down search for weapons on any motorist stopped for
speeding before placing the motorist in the back seat of his patrol
car. The state claims that this routine is acceptable pursuant to the
Supreme Court of Ohio's decision in Ev an s . The state, however, has
misinterpreted Evans...

... it is clear that Evans does not permit the routine pat-down of traffic law
violators. There simply is no case law to support the state's position to the
contrary...

The Appellant has several points to make in relation to Ev an s and Lo zad a.

1: The Appellant was not under suspicion for having committed a crime of violence.
The only infraction the Appellant had committed of which the officers was aware
was a minor traffic violation. Therefore, there was no immediate and automatic
right to frisk the Appellant.

2: The mere fact that Trooper Smith may have had the right to ask the Appellant to
step out of the car did not automatically give Trooper Smith the right to pat the
Appellant down in a weapons search.

3: Trooper Smith’s sole reason for searching the Appellant for weapons was because
Trooper Smith was about to place the Appellant in the cruiser and that was the
routine. However, Trooper Smith did not place the Appellant in the back seat of

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 the cruiser - Trooper Smith placed the Appellant in the front seat of the cruiser.
Therefore, the Appellant was in Trooper Smith’s line of sight for the entire time
that Trooper Smith was giving the Appellant the impairment tests. As such, there
was no danger of an “ambush from the rear”. It was, therefore, unreasonable for
Trooper Smith to conduct a pat down weapons search of the Appellant at all.

The Appellant asserts that Trooper Smith violated the law when he patted down the

Appellant the first time. There was no necessity that the impairment tests even be given (the

Appellant passed all three tests he was given) and there was certainly no necessity that the

Appellant be given the tests in the cruiser. The fact that Trooper Smith put the Appellant in the

front seat of the cruiser negated any basis for searching the Appellant for weapons.

The Appellant realizes that Trooper Smith did not actually find any contraband on the

Appellant’s person and that, therefore, it would seem pointless to argue that the first pat down

was unreasonable. After all, if none of the drugs were found during the initial pat down, then

what does it accomplish to prove that the initial pat down was unlawful?

The Appellant asserts that if there was no legal basis for the first weapons pat down of

the Appellant, then there was certainly no legal basis for a second weapons pat down of the

Appellant. No weapons or drugs were found during the first pat down of the Appellant. The

Appellant did not emit an odor of alcohol or marijuana. The Appellant had passed one and

perhaps two tests given by Trooper Smith before Sergeant McDonald interrupted Trooper

Smith’s testing of the Appellant. The Appellant should have been permitted to leave without

further investigation or violation of the Appellant’s Constitutional rights against unreasonable

search and seizure.

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 Therefore, the Trial Court erred in finding the first pat down legally permissible. That

pat down was a violation of the Appellant’s Constitutional rights and any further searches of the

Appellant would also be impermissible. Any contraband found during or after that initial pat

down should have been suppressed.

2: THE TRIAL COURT ERRED IN FINDING THAT THE SECOND PAT DOWN OF THE
DEFENDANT/APPELLANT WAS LEGALLY PERMISSIBLE.

It is notable that at the time of both pat downs, the only unlawful activity that Trooper

Smith and Sergeant McDonald had knowledge that the Appellant had committed was a single

minor traffic violation. There was no informant who had told the officers that the Appellant

had drugs or was a drug dealer or had even associated with drug dealers. There was no evidence

at all that the Appellant had been involved in a violent crime of any type. The Appellant had

been entirely cooperative up to that point. The Appellant had made no furtive movements and

the Appellant had immediately produced a valid driver’s license and registration upon request.

Yet after finding drugs on one or both of the other men in Appellant’s car, Sergeant

McDonald then came back and instructed Trooper Smith to get the Appellant out of the cruiser

and pat the Appellant down for weapons “more thoroughly” (Trans p. 234, l. 4-7) - even though

Trooper Smith had already thoroughly patted down the Appellant (Trans p. 35, l. 2-9).

It is clear that Sergeant McDonald was using a second weapons pat down as a mere

pretext for a search for drugs on the Appellant. Such a search is impermissible - just as the initial

pat down for weapons was impermissible.

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 In State v . Hac ke tt (2007), 171 Ohio App.3d 235, 870 N.E.2d 235 (Ohio App. 6 Dist.),

2007-Ohio-1868, an informant contacted the investigating detective and told the detective that

the Defendant had drugs on him at that time. After the Defendant left the residence, the

detective directed a marked crew to stop his vehicle. After the vehicle was stopped, the

Defendant was asked to step out. One of the uniformed officers searched appellant and the

vehicle in which he was a passenger. This first search yielded nothing. Appellant was searched

a second time. That search also yielded nothing. The detective contacted the informant, who

stated the appellant had the drugs in his pants pocket. A final search revealed a clear plastic bag

that contained eight individually wrapped bags of one eighth of an ounce of crack cocaine

underneath appellant's belt buckle.

The Hac ke tt Court stated (emphasis added):

A protective search for weapons during an investigative search is

acceptable to a point. When the use of multiple protective searches
exceeds the rationale behind a T e rry -type investigation, it becomes
unreasonable. Jac ks o n , 785 N.E.2d at 621. Officers exceeded the scope
of a protective search under T e rry when they conducted multiple
warrantless searches of appellant. Even if the phone call between the
detective and his informant following the second search yielded new or
correct information, the nature of the stop or the allowable purpose of the
warrantless search, i.e., a protective search for weapons, did not change.
Consequently, we must conclude that the search, which resulted in the
discovery of drugs, was unwarranted and that the evidence obtained
therefrom should now be suppressed.

The second pat down search of the Appellant was unnecessary, unreasonable, unlawful

and exceeded the rationale behind a T e rry type investigation. Therefore, the second search was

unreasonable and exceeded the scope of a protective search. Trooper Smith had already

conducted a thorough weapons pat down of the Appellant and had placed the Appellant in the

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front seat of the cruiser. The Appellant was no danger to the officers at that time. Both the first

search and the second search were impermissible and a violation of the Appellant’s

Constitutional right against unlawful and unreasonable search and seizure.

Therefore, all contraband and illegal drugs seized during the second weapons pat down

should have been suppressed.

3. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE BAGGIE FOUND IN THE
DEFENDANT/APPELLANT’S SOCK AS A RESULT OF THE ILLEGAL SECOND PAT
DOWN.

This assignment of error is obviously related to assignment of error number 2. It was

only during the second pat down that Sergeant McDonald discovered the baggie in the

Appellant’s sock. The Appellant asserts that the second pat down was legally impermissible.

However, even if the second pat down was legally permissible, Sergeant McDonald’s story

about seeing the plastic baggie in the Appellant’s sock is simply unbelievable.

Sergeant McDonald testified that upon beginning the second pat down weapons search

of the Appellant, Sergeant McDonald was able to see a plastic baggie containing a

white residue which “appeared to be contraband” (Trans p. 90, l. 16-17) or “looked like crack

or cocaine in that baggie” (Trans p. 76, l. 20-21). Sergeant McDonald thus essentially called

upon the plain view doctrine to justify his seizure of the cocaine from the Appellant’s person.

The problems with that whole scenario are: (1) Trooper Smith had conducted a “thorough”

search of the Appellant - including looking at the Appellant’s legs; and (2) Sergeant McDonald

stated that he saw a “bulge” in the Appellant’s black sock and that Sergeant McDonald could

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see that a plastic baggie was causing the bulge and that the plastic baggie contained a white

residue which appeared to be crack or cocaine through the black sock on the Appellant’s leg.

Note, again, that Sergeant McDonald did not state that the baggie was sticking out of the

Appellant’s sock - Sergeant McDonald clearly stated that the baggie was inside the Appellant’s

black sock and that it was visible enough through the sock - in the dark at 3:30 a.m. - for

Sergeant McDonald to be able to see that it was a plastic baggie AND that the baggie contained

a white substance which appeared to be cocaine or crack.

It might be believable that Sergeant McDonald could have seen what appeared to be a

plastic baggie through the Appellant’s black sock - if the sock were REALLY stretched out.

However, it strains the limits of credulity to believe that Sergeant McDonald could have also

seen the plastic baggie - and recognized with any certainty - that the plastic baggie contained

crack or cocaine through a black sock. The fact is that it was dark outside and the only lights

the officers had to work with were flashlights and car lights. Such lighting is not conducive to

being able to ascertain items clearly out in the open - much less underneath or inside of black

cloth material.

However, even if Sergeant McDonald did see the baggie through the black sock and that

the baggie appeared to contain a white residue that appeared to be crack or cocaine, the recovery

of such alleged contraband is illegal.

In State v . Gro v e s (2004), 156 Ohio App.3d 205, 805 N.E.2d 146 (Ohio App. 2 Dist.),

2004-Ohio-662, the Court dealt with a case in which the arresting officer felt a hard bulge in the

Defendant's sock. The officer stated that - based on his training and experience - he "suspected"

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that the hard bulge was crack cocaine and then the officer removed the hard object. The hard

object did turn out to be crack cocaine. The Gro v e s Court stated (emphasis added):

In State v . Lan d e r (Jan. 21, 2000), Montgomery App. No. 17898, 2000
WL 43708, at * 4, we stated as follows:

{¶ 12} “For purposes of analysis, therefore, we will assume that an object

coming within a police officer's plain feel during a proper

pat-down frisk for weapons may be seized if the officer has probable
cause to believe that the item is contraband before seizing it. In the
case before us, Officer House testified that he could feel a small, hard
object in the lower corner of Lander's coat pocket when he was patting it
down for weapons. In order to reach a conclusion that this object was a
piece of crack cocaine, the State necessarily relies upon Officer House's
training and experience with respect to crack cocaine, which appears to
have been extensive. Significantly, Officer House made no claim that
he had probable cause to believe that the object was crack cocaine.
On each of the two occasions when he covered this point in his
testimony, he used the word ‘suspected’ to describe his conclusion, clearly
indicating that his conclusion that the object might be crack cocaine was
merely a suspicion, rather than probable cause to believe, that the
object was crack cocaine.

{¶ 13} “Perhaps, if Officer House had been asked whether he had

concluded that the object was more likely than not crack cocaine,
he would have responded in the affirmative. He was never asked
that question. B e c au s e th is w as a w arran tle s s s e izu re , th e State h ad
th e b u rd e n o f p ro o f o n th is is s u e , an d th e State faile d to e s tab lis h
th at O ffic e r Ho u s e h ad p ro b ab le c au s e to b e lie v e th at th e o b je c t h e
fe lt w as c rac k c o c ain e w h e n h e re m o v e d it fro m h e r c o at p o c ke t.”

{¶ 14} We reach the same conclusion in the case before us...

Officer Eversole conceded that it was apparent to him that the hard
object in Groves's sock was not a weapon. However, “a police officer
conducting a pat-down frisk for weapons is permitted to retrieve any
contraband that he feels during the course of the frisk, so long as its
nature as contraband is immediately apparent through the officer's sense
of touch.” State v. Lander (Jan. 21, 2000), Montgomery App. No. 17898,

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 2000 WL 43708, at * 4, citing **150 Minnesota v. Dickerson (1993), 508
U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334. “Regardless of whether the
officer detects the contraband by sight or by touch, however, the Fourth
Amendment's requirement that the officer have probable cause to
believe that the item is contraband before seizing it ensures against
successfully speculative seizures.” Id., citing Dickerson, 508 U.S. at
376, 113 S.Ct. 2130, 124 L.Ed.2d 334.

{¶ 43} Officer Eversole clearly stated that he “suspected” that the

hard object was crack cocaine. Significantly, as in Lan d e r, s u p ra,
Officer Eversole did not claim that he had probable cause to believe that
the hard object in Groves's sock was crack cocaine. Officer Eversole's use
of the word “suspected” indicates that Officer Eversole's conclusion that
the hard object in Groves's sock might be crack cocaine was merely a
suspicion, rather than probable cause to believe, that the hard object
was crack cocaine.

{¶ 44} Perhaps if Officer Eversole had been asked whether he had

concluded that the hard object was more likely than not crack cocaine, he
would have responded in the affirmative. Officer Eversole was never
asked that question. Because this was a warrantless seizure, the state had
the burden of proof on this issue. We conclude that the state failed to
establish that Officer Eversole had probable cause to believe that
the hard object he felt was crack cocaine when he removed it from
Groves's sock.

See also these other sock cases:

State v . Sm ith (1996), 116 Ohio App.3d 842, 689 N.E.2d 598 Ohio App. 2 Dist.),

(“Officer's order that defendant remove his sock and throw it outside of parked vehicle in which

defendant was sitting exceeded permissible limits of Terry frisk; officer had no information that

defendant was armed, there was no evidence that defendant made any threatening move or

would have refused to exit vehicle upon officer's request so that he could be frisked, and there

was no probable cause to believe that defendant had committed or was committing a crime

before defendant was ordered to remove his sock.”).

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 State v . Jo n e s (2002), 2002 WL 31002617 (Ohio App. 2 Dist.), 2002-Ohio-4681,

(“Officer lacked probable cause to search defendant... there was no particularized suspicion that

defendant was involved with illegal drugs, and although officer felt, during pat-down search, an

object in defendant's sock that felt like a plastic bag, officer was unable to feel anything inside

bag.”).

In this case, at no time did Sergeant McDonald state that he had probable cause to

believe that the “residue” he claimed to be able to see in Appellant’s sock was cocaine or crack.

The best Sergeant McDonald could do was state that the residue “appeared to be contraband”

or “looked like” crack or cocaine. Neither of those statements rise to the level of “more likely

than not”.

Further, Sergeant McDonald agreed that during the second pat down and his observation

of the Appellant, nothing on the Appellant vaguely resembled a weapon (Trans p. 299, l. 12-14).

Sergeant McDonald’s seizure of the plastic baggie and its contents from inside

Appellant’s sock was an unlawful seizure and a violation of Appellant’s Constitutional right

against unlawful seizure and the evidence should have been suppressed.

CONCLUSION

WHEREFORE, the Appellant asks this Court to reverse the decision of the Trial Court

for any or all of the above reasons and to remand this matter for further proceedings.

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 Respectfully submitted,

_________________________________
Robert W. Bright (0081612)
278 S. 5th Ave.
Middleport, Ohio 45760
Attorney for Appellant Frank Willette

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing was served this 3rd day
of November, 2011 by U.S. Mail to James E. Schneider Washington County Prosecuting
Attorney and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, 205
Putnam St., Marietta, OH 45750 on this the 28th day of March, 2012.

_________________________________
Robert W. Bright (0081612)
Attorney for Appellant Frank Willette

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