Portage County Legal News

Appeals court finds deputy had reason to search pill bottle found in man's sock

JESSICA SHAMBAUGH
Special to the Legal News
Published: October 23, 2014

In a recent opinion from the 5th District Court of Appeals, a three-judge appellate panel overruled a lower court’s decision granting a motion to suppress evidence against a man accused of drug offenses.

The state appealed a Richland County Court of Common Pleas decision granting David Wehr II’s motion to suppress.

It argued that the lower court erred in finding the pat down of Wehr and subsequent search of a pill bottle found in his was improper.

The record in the case stated that Richland County sheriff’s deputy Raymond Frazier first noticed Wehr on Nov. 17, 2013.

On that evening, Frazier was parked in his cruiser at a Budget Inn in Mansfield.

Frazier told the trial court that monitoring the Budget Inn parking lot was part of his routine patrol because management was concerned about people loitering and drinking in the lot.

Around 9 p.m. on the evening in question, Frazier saw a vehicle in the lot with its lights off and two people sitting inside.

The deputy said he as pulled up behind the vehicle the passenger exited and ran toward the hotel.

Frazier testified that he got out of his cruiser and yelled at the man, “Hey, where are you going?”

Receiving no response, Frazier approached the driver’s side of the vehicle to make contact because he was concerned that a crime may have occurred or that the driver may need assistance.

Wehr was sitting in the driver’s side of the car when Frazier made contact.

During their conversation, Frazier said Wehr continued to reach toward the floor and fidget with something near the floorboards.

Frazier testified that he asked Wehr to stop multiple times without success and Wehr refused to show his hands.

Concerned that Wehr may have a weapon, Frazier called for assistance.

When backup arrived, Wehr was removed from the vehicle and officers looked into the vehicle.

No weapons were visible in the car, so Frazier conducted a pat down of Wehr to search for weapons.

He did not locate a weapon, but he did find a pill bottle in Wehr’s sock.

Upon removal, Frazier saw that it was an Advil bottle. Wehr denied knowing what was in the bottle and Frazier opened it.

Inside, he found several individually wrapped bindles of heroin and oxycodone pills.

Wehr maintained that he did not know what was in the bottle.

Instead, he said the passenger threw the bottle to the floor before fleeing and Wehr, seeing it for the first time, picked it up and tucked it in his sock.

A search of the vehicle also revealed a kitchen plate, a razor blade, a cut straw and a set of digital scales.

Frazier said all of those items are often associated with drug activity.

Based on that evidence, a grand jury indicted Wehr on charges of possession of heroin, trafficking in heroin, tampering with evidence and possession of oxycodone.

Prior to trial, Wehr filed a motion to suppress the evidence against him. The trial court granted that motion and the state appealed to the 5th District.

Upon review, the appellate panel maintained that the initial contact between Frazier and Wehr was consensual and Wehr was free to leave during that conversation.

They found Frazier had a right to approach Wehr’s vehicle because he was concerned that a crime may have just taken place or that Wehr may be otherwise in need of assistance.

They further determined that Wehr’s actions of fidgeting near the floor and disregarding Frazier’s insistence to show his hands validated the need for a pat down.

“In the case at bar, we find under the totality of the circumstances the pat down of Wehr was lawful because a reasonably prudent person in this situation would have been justified to believe his safety was compromised,” Presiding Judge Scott Gwin wrote for the court.

In previous similar cases, the Supreme Court of Ohio has ruled that when an officer lawfully pats down a suspect and feels an object that is immediately identifiable as contraband, there has been no unauthorized invasion of privacy and the officer is justified in seizing the item.

Frazier testified that he immediately recognized the object as a pill bottle and that it was unusual to find such an object in a person’s sock.

“Coupled with the flight of the passenger upon approach of the police cruiser, Wehr’s reaching and fidgeting with something near the floorboard of his car, and Wehr’s assertion that he did not know what was in the Advil bottle, we find the removal of the pill bottle from Wehr’s sock to be permissible,” Judge Gwin wrote.

The district judges next determined that Frazier acted properly when he opened the pill bottle because the evidence gave him reason to believe it was an illegal substance.

“Under the totality of the circumstances and given the information known to Deputy Frazier at the time of the search, the evidence supports a finding that Deputy Frazier had probable cause to associate the Advil bottle with criminal activity. Therefore, Deputy Frazier had probable cause to open the Advil bottle,” Judge Gwin concluded.

Based on those findings, the appellate panel ruled that the trial court incorrectly granted Wehr’s motion to suppress.

It therefore sustained the state’s assignment of error and remanded the matter for further proceedings.

Judges Sheila Farmer and John Wise concurred.

The case is cited State v. Wehr, 2014-Ohio-4396.

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