It does not matter that Officer Weigand did not see drugs or know for sure that drugs were exchanged because probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” State v. Jordan, 2020-Ohio-689.
State v. Reed
2022 – Ohio – 3986
First District Appellate Court
Hamilton County, Ohio
November 9, 2022
The testimony at the suppression hearing revealed that for approximately one year, members of the Gang Enforcement Unit of the Cincinnati Police Department (“CPD”) and the Drug Enforcement Administration had been investigating a man named Damien Dennis for drug trafficking. According to Officer Tom Weigand of the CPD, who was part of the investigation team, Mr. Dennis was a “high- level drug trafficker dealing in large quantities of drugs” who “got his supply directly from Mexico.” Over the course of the investigation, CPD intercepted various packages intended for Mr. Dennis and seized hundreds of thousands of dollars from his car, bank accounts and safety deposit box.
Officer Tom Weigand learned during the investigation that Mr. Dennis often went to a particular gas station on Vine Street in Cincinnati. While there, Officer Weigand had observed on a handful of occasions that Mr. Dennis would sit in his car at a gas pump, another person would get into Mr. Dennis’s car, an exchange would take place, the other person would exit from the car, and then both would drive away. During these exchanges, neither Mr. Dennis nor the other person would engage in any business with the gas station. Officer Weigand testified that based on his eighteen years with the CPD, including five years in the Gang Enforcement Unit, he recognized this as a common pattern for drug-trafficking interactions.
On May 7, 2019, Officer Weigand was on duty in plainclothes tracking Mr. Dennis. Officer Weigand observed Mr. Dennis pull up to a gas pump at the Vine Street gas station. Officer Weigand saw another car pull up to the gas pump next to Mr. Dennis. Officer Weigand then watched Mr. Antonio Reed get out of the second car and enter Mr. Dennis’s car. Officer Weigand saw Mr. Reed and Mr. Dennis make an exchange of what Officer Weigand “believed to be drugs,” although Officer Weigand admittedly could not see what was exchanged. After the exchange, Mr. Reed got out of Mr. Dennis’s car and returned to his own. Then both cars left the gas station. Officer Weigand did not see the occupants of either vehicle engage in any business with the gas station. Officer Weigand believed that Mr. Dennis had just sold drugs to Mr. Reed because he knew from his investigation that Mr. Dennis received his supply in bulk from Mexico.
Mr. Dennis and Mr. Reed made an exchange of narcotics at a gas station on Vine Street in Cincinnati, Ohio. This is ‘A’ gas station on Vine Street and may or may not be the actual gas station where the exchange was completed. The case is silent as to the exact location.
As Mr. Reed drove away, Officer Weigand radioed his observations to uniformed officers in marked patrol cars. Officer Weigand testified that he requested that the uniformed officers conduct a traffic stop of Mr. Reed’s vehicle “due to the fact that we had probable cause to believe that a drug transaction just took place.” Officer Weigand followed Mr. Reed’s car to the parking lot of an apartment building. Mr. Reed parked, with Officer Weigand close by, and Officer Weigand radioed for the uniformed officers to close in.
Mr. Reed was getting out of his car when the uniformed officers rolled up behind him in their patrol vehicles. One of the uniformed officers, Officer Charles Knapp, ordered Mr. Reed to show his hands and asked him about any outstanding warrants. Officer Knapp testified that asking about warrants is a “tactic” he sometimes uses to defuse the situation when dealing with people who are suspected of having committed “serious felonies.” During this time, Officer Knapp removed Mr. Reed from his car and handcuffed him.
After handcuffing Mr. Reed, Officer Knapp patted Mr. Reed down, focusing on the area near the rear of the waistband of Mr. Reed’s pants where Mr. Reed might be able to reach while handcuffed. Officer Knapp then moved Mr. Reed away from the door of Mr. Reed’s car and began a second pat-down of Mr. Reed. Officer Knapp did not find anything during either pat-down.
The officers obtained Mr. Reed’s consent to search his vehicle and began their search of the vehicle. Meanwhile, Officer Knapp restrained Mr. Reed while Officer Weigand conducted a thorough search of Mr. Reed’s person. After noticing an “unnatural bulge” between Mr. Reed’s legs, Officer Weigand shook Mr. Reed’s pants so that the item he felt would fall down the leg of Mr. Reed’s pants. This led to Officer Weigand’s recovery of a bag containing drugs.
After Officer Weigand discovered the bag of drugs, Mr. Reed was placed into Officer Knapp’s patrol vehicle. At no point during the interaction did anyone tell Mr. Reed he was under arrest, nor was Mr. Reed informed of his Miranda rights.
Analysis
As a preliminary matter, the state urges us to overrule Mr. Reed’s first assignment of error because, the state contends, Mr. Reed waived the issue of probable cause. The state argues that during the proceedings in the trial court, Mr. Reed did not expressly claim that the police lacked probable cause to search or arrest him prior to the search that uncovered the drugs.
In Mr. Reed’s written motion to suppress, he argued that the search uncovering the drugs exceeded the legitimate scope of a pat-down during a Terry stop. See Terry v. Ohio, 392 U.S. 1, (1968). The motion states that argument was based on the state’s response to his motion for a bill of particulars, which asserted that Mr. Reed was pulled over for a traffic stop. The state did not file a written response to the motion to suppress. Nevertheless, Mr. Reed’s claim that the police exceeded the scope of a Terry stop carries with it the implicit assertion that there was no probable cause to support a full evidentiary search or arrest.
Moreover, at the beginning of the suppression hearing, the judge summarized the written suppression motion as follows: “[T]he defense’s position is that Mr. Mr. Reed was not under arrest and was beyond a Terry stop.” The trial court went on to state: During the off-record conversation, the prosecutor’s position is that the police had Mr. Mr. Reed under surveillance, observed what they believed to be illegal drug activity that would rise to the level of a felony, in which case the stop was effected by the observation of law enforcement; and, at that particular point in time, that Mr. Reed was being placed under arrest and being searched pursuant to a legal, valid arrest.
When asked by the court if it accurately summarized the parties’ positions, defense counsel and the prosecutor said that it did. Ultimately, based on the testimony and arguments at the suppression hearing, the trial court found there was probable cause to arrest Mr. Reed and the search was a proper search incident to the arrest. Because the issue of probable cause was fully litigated by the parties at the suppression hearing, and considered by the trial court, we find that Mr. Reed did not waive the lack of probable cause as grounds for appeal.
Mr. Reed’s search and arrest were supported by probable cause.
The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibits the government from “unreasonable searches and seizures.” Absent an applicable exception, warrantless searches are per se unreasonable. State v. Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.).
One such exception to the warrant requirement is the search incident to a lawful arrest. When a person is lawfully arrested, an officer may conduct a “full search of the arrestee’s person” to search for evidence, not merely a protective pat- down to uncover weapons. State v. Haynes, 2015-Ohio-3432, citing United States v. Robinson, 414 U.S. 218, (1973). Further, a search-incident-to-arrest need not follow the formal arrest but may precede the arrest, so long as probable cause for arrest existed at the time of the search and the search was contemporaneous with the arrest. State v. Gilmore, 2008-Ohio-3475, Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).
Here, the trial court found that Officer Weigand was surveilling Mr. Dennis, a known drug dealer who had been under investigation for almost a year. Officer Weigand saw Mr. Reed and Mr. Dennis make an exchange in Mr. Dennis’s car, parked at a gas pump without engaging in any business with the gas station. In Officer Weigand’s experience, this pattern was consistent with the pattern that had been established for Mr. Dennis’s drug transactions. It does not matter that Officer Weigand did not see drugs or know for sure that drugs were exchanged because probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” State v. Jordan, 2020-Ohio-689.
We hold that Officer Weigand had probable cause to arrest Mr. Reed following the observed transaction at the gas station, and when Officer Weigand communicated the basis for his probable cause to Officer Knapp and the other uniformed officers, any of the officers could lawfully stop Mr. Reed and initiate his arrest. See Gilmore, 2008-Ohio-3475. Even assuming that Mr. Reed was not arrested until after the challenged search, a search is still a lawful search incident to arrest so long as probable cause existed at the time of the search and was contemporaneous with the arrest. Regardless of the precise moment when the arrest occurred during the police interaction with Mr. Reed, probable cause existed prior to the start of the interaction, and the arrest was completed when Mr. Reed was secured in the police vehicle within moments of the challenged search of Mr. Reed’s person. We therefore conclude that the search was a valid search incident to Mr. Reed’s lawful arrest.
Mr. Reed cites State v. Eppinger, 74 Ohio App.3d 503, (8th Dist.1991) in support of his argument that there was no probable cause to arrest him prior to the search. However, Eppinger is distinguishable. In Eppinger, the Eighth District held that police lacked reasonable suspicion to justify an investigatory Terry stop of the defendant. The detective in that case had observed “some kind of exchange” take place where several people were gathered in a schoolyard. The police had recently received complaints of drug sales taking place at that location. The court held that the observed activity “did not amount to suspicious criminal activity.” By contrast, in the instant case, Officer Weigand observed Mr. Reed make an exchange with a specific, known drug dealer. This exchange was not merely “some kind of exchange” taking place in a gathered crowd. Rather, Officer Weigand observed Mr. Reed participating in an exchange following a peculiar, distinct pattern that his experience and training told him was specifically indicative of contraband changing hands. Based on the totality of the circumstances, we can clearly distinguish the facts in Eppinger from those in the case at bar.
Because the challenged search was supported by sufficient probable cause and took place incident to Mr. Reed’s lawful arrest, we overrule Mr. Reed’s first assignment of error. Mr. Reed’s sentence of five to seven- and one-half years was upheld.
Information for this article was obtained from State v. Reed, 2022 – Ohio – 3986.
This case was issued by the First District Appellate Court and is only binding in Hamilton County, Ohio.
Lessons Learned:
- If a law enforcement officer established probable cause, the officer can arrest or search, sometimes both, the suspect. Here, the officers established probable cause that Mr. Reed purchased narcotics from Mr. Dennis. This established probable cause permitted Mr. Reed to be stopped and searched for narcotics. The U.S. Supreme Court held “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v. Ross, 456 U.S. 798 (1982). The actions of Mr. Dennis and Mr. Reed were congruent with the Ross legal doctrine established in 1982. For more on the Ross case see What’s in Bandit’s Paper Bag?.
- When applying the doctrine of Probable Cause to arrest a suspect, I would like to remind officers what the U.S. Supreme Court stated in 1990 “[P]olice officers conducting a search or seizure under one of the exceptions to the warrant requirement is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriquez, 497 U.S. 177 (1990). The U.S. Supreme recognized law enforcement will be faced with varying levels of information that when taken together, will rise to Probable Cause. Consequently, officers do not have to be right … ONLY reasonable! Additionally, there are not always analogous court holdings to guide officers. This is but one more reason why law enforcement is THE hardest job in America.
- The court identifies the discovery of the bag containing drugs with the following: “After noticing an “unnatural bulge” between Mr. Reed’s legs, Officer Weigand shook Mr. Reed’s pants so that the item he felt would fall down the leg of Mr. Reed’s pants. This led to Officer Weigand’s recovery of a bag containing drugs.”. The Strip Search statute O.R.C. §2933.32 (A)(2) the Strip Search statute states in pertinent part “Strip Search means an inspection of the genitalia … or undergarments of a person that is preceded by the … rearrangement of some or all of the person’s clothing that directly covers the person’s genitalia … undergarments … or in other any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense.” [emphasis added]. This case did not commence with a misdemeanor or traffic offense, but rather a felony investigation. A strict read of the statute would indicate it does not apply because it did not commence with a misdemeanor or traffic offense. However, once non-threatening contraband is discovered in a person’s bra, underwear or near the genitalia, it is most prudent to proceed in accordance with the Strip Search statute – which is to obtain a letter from the chief of police, or his designee if policy permits, to inspect the underwear or genitalia – see O.R.C. §2933.32 (C) for additional information. For additional information on Strip Searches see Wayman had an “Unnatural” Felonious Bulge in his Groin but was it Admissible?. If the person is secreting a weapon – threatening contraband, irrespective of the location, the officer does NOT need the suspect’s permission or approval to retrieve the weapon. Of course, this is now subject to the new permitless carry modifications in Ohio. See Governor Mike DeWine and the 134th General Assembly Felon Protection Act.
- Both Cincinnati Police Officer Tom Weigand and Officer Charles Knapp should be highly commended for the long-term investigation on Mr. Dennis that led to the conviction of Mr. Reed. Well done officers!
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