During this pat-down, Officer Jones felt a bulge in Mr. Hawkins’ waistband that, based on his experience and his plain feel, alerted him to the presence of drugs.  Therefore, Officer Jones had probable cause to believe the item was contraband sufficient to authorize the warrantless search of Mr. Hawkins’ pocket and seizure of the object within it. 

 

State v. Hawkins

2023 – Ohio – 3728

Second District Appellate Court

Montgomery County, Ohio

October 13, 2023

Just One Headlight

On the evening of August 23, 2020, Mr. Steven Hawkins was a passenger in a vehicle driven by Mr. Philip Whiteted that was traveling on State Route 4 near Eby Road in German Township.  Shortly before midnight, German Township Police Officer Wolfe initiated a traffic stop of Whiteted’s vehicle due to one of the headlights not being illuminated.  A second police cruiser driven by German Township Police Officer Dylan Jones assisted in the traffic stop.  Officer Jones’ unit was a canine unit.  While Officer Wolfe was writing the traffic citation, he requested a canine open-air sniff from Officer Jones.

Mr. Philip Whiteted was driving a vehicle with just one headlight near the intersection of State Route 4 and Eby Road in German Township, Ohio.  The events that followed landed his passenger, Mr. Steven Hawkins in prison.

Methamphetamine is Discovered

When Mr. Whiteted and Mr. Hawkins were removed from the vehicle to prepare for the canine sniff, Officer Jones noticed Mr. Hawkins was very nervous and made furtive movements involving his right hand and the right side of his shirt.  Officer Jones asked Mr. Hawkins if he had drugs, knives, or guns, and Mr. Hawkins responded “No.”  Officer Jones then asked Mr. Hawkins, “You don’t mind if I check you real quick?”  Mr. Hawkins did not respond, so Officer Jones asked him again “You don’t mind?”  Mr. Hawkins responded “No.” Officer Jones began a pat-down of Mr. Hawkins and removed a wallet from Mr. Hawkins’ pocket. After searching through the wallet, Officer Jones touched Mr. Hawkins’ waistband near where Mr. Hawkins earlier had tugged on the right side of his shirt.  Officer Jones felt an object he immediately recognized as a baggie of drugs.  Mr. Hawkins pushed Officer Jones’ hand away.  After further discussion between the two, Officer Jones removed the baggie, which contained methamphetamine.  Mr. Hawkins was arrested.

Indicted for Possession of Methamphetamine

A Montgomery County grand jury indicted Mr. Hawkins on one count of aggravated possession of drugs, a second-degree felony in violation of O.R.C. §2925.11(A). Mr. Hawkins filed a motion to suppress the evidence obtained from the traffic stop.  A hearing on the motion to suppress was held on August 22, 2022.

Motion to Suppress Hearing

Officer Jones testified first at the suppression hearing.  He had been a police officer for eight years and had training as an evidence technician and a canine handler.  On the night of August 23, 2020, he and Officer Wolfe were in separate cruisers stationed by each other on State Route 4 near Eby Road, when they witnessed a vehicle being driven by Philip Mr. Whiteted operating with only one working headlight. Officer Wolfe followed Whiteted’s vehicle to initiate a traffic stop, and Officer Jones followed Officer Wolfe to assist in the traffic stop.  The State introduced videos of the traffic stop obtained from the body and dashboard cameras.

Mr. Whiteted was the driver of the vehicle, and Mr. Hawkins was a passenger. Officer Jones noticed that Mr. Hawkins was extremely nervous, and it was obvious that his heart was beating very fast.  However, Officer Jones did not notice any suspicious activity from Mr. Hawkins while he was in the car.  As Officer Wolfe began writing the traffic citation, he requested that Officer Jones conduct a free-air canine sniff based on some prior field interviews involving Jones and drug activity, which were reflected in a report the officers reviewed in Officer Wolfe’s police cruiser.  Officer Jones instructed Mr. Whiteted and Mr. Hawkins to exit the vehicle.  As Mr. Hawkins exited the vehicle from the passenger side, Officer Jones became concerned.  Officer Jones explained:

When I had Mr. Mr. Hawkins step out of the vehicle, I noticed that as he was stepping out he was manipulating his shirt on his right side, and he also appeared to adjust something on his right side as he was stepping out.  As he walked back away from his vehicle to the front of our cruisers he also tucked his shirt tail down as if he may have been trying to conceal something.  I noticed he also had a large black object in his cargo pocket of his shorts.

Pat Down Leads to Search of a Wallet

When Officer Jones asked Mr. Hawkins if he possessed any weapons or drugs, Mr. Hawkins replied that he did not.  Officer Jones then asked Mr. Hawkins if he could check him.  There was no response.  So, Officer Jones asked Mr. Hawkins again if he minded if Officer Jones checked him.  Mr. Hawkins responded no.  Officer Jones then proceeded to pat him down.  Officer Jones immediately discovered a wallet in Mr. Hawkins’ pocket. Officer Jones took out the wallet and looked through it.

Was the Bulge Sand or Methamphetamine?

He then continued his pat-down of Mr. Hawkins.  Officer Jones felt a bulge in Mr. Hawkins’ waistband.  Mr. Hawkins then pushed Officer Jones’ hand away and told him that he did not want Officer Jones to go through his pockets.  Officer Jones, based on his experience and his feel of the bulge, believed the bulge was a baggie of drugs.  In response to further questioning, Mr. Hawkins told Officer Jones it was a baggie of sand.  Officer Jones proceeded to retrieve the baggie, which contained methamphetamine.  Officer Jones arrested Mr. Hawkins.

Can a Request to Beat on a Headlight Forego Successful Prosecution?

Philip Mr. Whiteted testified next at the suppression hearing.  He had been driving his grandfather’s vehicle at the time of the incident.  He believed the headlights were working properly at the time he was pulled over by the police.  However, the police officers would not allow him to check the headlights during the traffic stop. When he arrived at home shortly after the traffic stop, Mr. Whiteted took a picture of his headlights, which were illuminated and working.  During the traffic stop, Mr. Whiteted stated that the headlight might be “shorted” and asked the officers if he could “beat” on the headlight.  Mr. Whiteted was detained and not free to leave during the traffic stop.  Mr. Whiteted subsequently paid a fine to resolve the citation he received involving the headlight.

Mr. Hawkins Testifies He Could Distinguish a Pat Down from a Search

Mr. Hawkins testified last at the suppression hearing.  He explained that although he had consented to Officer Jones checking him for weapons, he had believed that the search would be limited to looking for weapons, not drugs.  At the time Officer Jones removed his wallet, Mr. Hawkins knew this was a violation of his rights, but he did not feel comfortable objecting to the removal.  He pushed Officer Jones’ hand away because he did not consent to Officer Jones searching for anything other than weapons.  During the traffic stop, Mr. Hawkins did not believe he was free to leave.

Court Provides its Rationale for Deciding Motion to Suppress

Mr. Hawkins filed a post-hearing brief in support of his motion to suppress.  On September 12, 2022, the trial court overruled the motion to suppress.  After making its findings of fact and summarizing the pertinent caselaw, the trial court concluded: This situation is not entirely straight forward.  The officer did not immediately engage in a Terry frisk.  Rather, he went to the wallet and checked it out.  Then he proceeded to feel around the waistband.  One would think that if he was fearful the Defendant was armed, he would have immediately checked in the waistband area since that is where the weapon would have been.  The testimony appears to indicate he knew the wallet was not the weapon.  Therefore, one might conclude that he was looking for evidence, which is not the appropriate goal of a Terry frisk.  The Terry frisk is for officer safety and to find weapons.

Court Denies the Motion to Suppress

Despite the ambiguity of this situation, the court does not conclude there was an improper search.  The Defendant had reluctantly consented to a search.  In addition, Defendant’s nervousness and furtive movement provided grounds for concern about officer safety.  The plain feel doctrine applies.  The court finds the officer, based on training and experience, immediately recognized the contraband nature of what he was touching. Defendant’s Motion to Suppress is not well taken and is hereby OVERRULED.

No Contest Leads to Prison Sentence

Mr. Hawkins subsequently pled no contest to one count of aggravated possession of drugs.  The trial court found him guilty and sentenced him to an indefinite prison sentence of two to three years.  The court also notified Mr. Hawkins that he would be supervised by the Parole Board for a period of between 18 months and three years of post-release control.  Mr. Hawkins filed a timely notice of appeal from the judgment of conviction

Appeal

The Touchstone of the Fourth Amendment is Reasonableness

The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.”  Florida v. Jimeno, 500 U.S. 248, 250, (1991), citing Illinois v. Rodriguez, 497 U.S. 177, (1990).  Thus, “[t]he touchstone of the Fourth Amendment is reasonableness.”  Id. at 250.

Court Determines that Just One Headlight is the Basis for a Lawful Traffic Stop

Although Mr. Hawkins argued in the trial court that the initial stop of the vehicle was not lawful, he has not made that argument on appeal.  Rather, Mr. Hawkins contends that the traffic stop was improperly extended to facilitate a canine drug sniff.  According to Mr. Hawkins, “the officer testified that they had completed their computer record checks, the driver had a valid license, found no warrants or other evidence of legal [sic] activity, and decided to extend the stop for the express purpose of imposing a canine sniff.  No citation was prepared or issued at that point.”  Since Mr. Hawkins does not challenge on appeal the legality of the traffic stop itself, we will assume, as the trial court found, that the officers had a reasonable belief that the vehicle driven by Mr. Whiteted had one headlight not working, which was a violation of Ohio law.  Instead, we will address Mr. Hawkins’ argument that the lawful traffic stop became unlawful due to an improper extension of the stop.

Established Case Law

“Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’Rodriguez v. United States, 575 U.S. 348, 355, (2015).

Mr. Hawkins was not Unreasonably Delayed for the Canine Sniff

Unlike many cases in which motions to suppress are granted due to the extended delay resulting from the arresting officer waiting for a canine unit to arrive, in Mr. Hawkins’ situation, the canine unit was already on the scene at the beginning of the traffic stop.  Therefore, the normal delay that results in an extension of a traffic stop when a canine unit is called was not present in this case.  Indeed, the video evidence from the traffic stop showed that the stop was initiated at 11:12 p.m. and the search of Mr. Hawkins occurred at 11:17 p.m.  Officer Wolfe was in the cruiser beginning to draft the citation when Officer Jones felt the contraband.  The testimony of Officer Jones and the video evidence showed that very little time passed between the initiation of the traffic stop and when Mr. Hawkins was searched.  Based on the record before us, we cannot conclude that Mr. Hawkins was detained beyond the time to reasonably complete the traffic stop procedures.

Can a Patdown Continue Past the Point of Discovering a Wallet?

Mr. Hawkins next takes issue with the search Officer Jones conducted. Mr. Hawkins contends the pat-down search should have ended once the officer confirmed Mr. Hawkins’ wallet was not a weapon.  The State responds that Mr. Hawkins voluntarily consented to the search, and the removal of his wallet “did not alleviate Officer Jones’ concerns that Mr. Hawkins may have a weapon concealed elsewhere on his person.”

 “Authority to conduct a pat-down search does not flow automatically from a lawful stop; a separate inquiry is required.”  State v. Phillips, 2003-Ohio-5742, Terry v. Ohio, 392 U.S. 1 (1968).

An Unbelievable Prosecution Error

Footnote 1:

The State contends that an open-air canine sniff never occurred, and “[T]he canine was never taken out of the cruiser.”  Appellee’s Brief, p. 4-5.  However, the video from the police cruiser’s dashboard camera that was introduced at the suppression hearing showed that a canine sniff occurred at 11:24 p.m.  This fact, however, does not affect the resolution of this appeal.

Court Determines that the Patdown was Lawful

The record before us establishes that Officer Jones was justified in believing that Mr. Hawkins may have been armed and presently dangerous.  Officer Jones testified that Mr. Hawkins had been extremely nervous as he exited the vehicle and immediately began reaching to his one side and pulling down his shirt to cover something on his right side.  Officer Jones also noticed a bulge in Mr. Hawkins’ pocket around that area.  This testimony was supported by the video evidence of record.  These facts supported a concern that Mr. Hawkins was concealing something that may have been a danger to Officer Jones.  Therefore, Officer Jones was warranted in conducting a pat-down of Mr. Hawkins. Further, the record supports the trial court’s finding that Mr. Hawkins voluntarily consented to a search of his person.  Based on his conversation with Officer Jones, Mr. Hawkins made it clear that he was aware of his rights.  The trial court found that Mr. Hawkins was intelligent and mature.  No coercive police procedures were used.  Notably, Mr. Hawkins concedes in his brief that he voluntarily consented to the search, but instead takes issue with whether the search should have stopped when the wallet was found.

Court Concludes the Methamphetamine was Admissible

The trial court’s factual findings were supported by competent, credible evidence in the record.  These facts established that Officer Jones had authority to conduct a pat-down search and that Mr. Hawkins had voluntarily consented to that search. Although we do not approve of Officer Jones’ search of the contents of Mr. Hawkins’ wallet, we conclude that he had the authority to continue his pat-down of Mr. Hawkins to ensure that Mr. Hawkins was not armed.  During this pat-down, Officer Jones felt a bulge in Mr. Hawkins’ waistband that, based on his experience and his plain feel, alerted him to the presence of drugs.  Therefore, Officer Jones had probable cause to believe the item was contraband sufficient to authorize the warrantless search of Mr. Hawkins’ pocket and seizure of the object within it.  State v. Phillips, 2003 – Ohio – 5742, citing Minnesota v. Dickerson, 508 U.S. 366 (1993).

The trial court did not err in overruling the motion to suppress.  The first assignment of error is overruled.

There was a second appeal challenged as Mr. Hawkins claimed he had ineffective assistance of counsel. However the Second District Appellate Court also held the claim was without merit.  This appeal is not reviewed in this article.

Information for this article was obtained from State v. Hawkins, 2023 – Ohio – 3728.

State v. Hawkins, 2023 – Ohio – 3728 was issued by the Second District Appellate Court on October 13, 2023 and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.

Lessons Learned:

  1. Officer Jones then asked Mr. Hawkins, “You don’t mind if I check you real quick?” Law enforcement should be clear on when asking a suspect for consent. Here, the question “You don’t mind if I check you read quick?”, is ambiguous whether it is a request for a patdown or a search. Law enforcement should never ask a suspect for consent to pat down!  If you would like more information on why, please email me and I will send a paper I crafted – Don’t Ask for Consent to Patdown.
  2. Unbelievable Prosecution Error – How the prosecution missed that a canine sniff actually occurred is just sloppy work. We all make mistakes but to place in a brief that the canine was not removed from the cruiser when the canine was removed, conducted a free air sniff and alerted, is just sloppy legal work. Fortunately, this error did not have a legal impact on the case as the court stated in Footnote #1: The State contends that an open-air canine sniff never occurred, and “[T]he canine was never taken out of the cruiser.”  Appellee’s Brief, p. 4-5.  However, the video from the police cruiser’s dashboard camera that was introduced at the suppression hearing showed that a canine sniff occurred at 11:24 p.m.  This fact, however, does not affect the resolution of this appeal.
  3. Plain Feel Doctrine – In this case the court permitted application of the Plain Feel Doctrine. However, I do not believe that this doctrine should be utilized by law enforcement.  For more on why see: What do Breast Implants and the Plain Feel Doctrine have in Common?.

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