State v. Newsome ( 2016 )

[Cite as State v. Newsome, 2016-Ohio-3509.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2015-A-0046
- vs - :
RYAN KYLE NEWSOME, :
Defendant-Appellee. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00746.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellant).
William B. Norman, Norman & Tayeh, LLC, 11509 Lorain Avenue, Cleveland, OH
44111 (For Defendant-Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals from the Judgment Entry of
the Ashtabula County Court of Common Pleas, granting the defendant-appellee, Ryan
Kyle Newsome’s, Motion to Suppress evidence found in the search of a residence
where he was arrested. The issue to be determined by this court is whether a motion to
suppress evidence is properly granted when an officer testifies that consent to search a
home was given through a statement to “go ahead” and search, although a reference to
consent had not been included in the police report and the officer stated that the
authority to search was based on the arrest warrant. For the following reasons, we
affirm the decision of the lower court.
{¶2} On January 29, 2015, the Ashtabula County Grand Jury issued an
Indictment, charging Newsome with Illegal Manufacture of Drugs, a felony of the second
degree, in violation of R.C. 2925.04(A) and (C)(3)(a); Illegal Assembly or Possession of
Chemicals for the Manufacture of Drugs, a felony of the third degree, in violation of R.C.
2925.041(A); and Aggravated Possession of Drugs, a felony of the second degree, in
violation of R.C. 2925.11(A) and (C)(1)(c).
{¶3} Newsome filed a Motion to Suppress on June 1, 2015. He argued, inter
alia, that evidence found during a search of his girlfriend’s home, various items related
to the manufacture and possession of methamphetamine, must be suppressed because
the police lacked a search warrant, exigent circumstances, or consent. The State’s
response included several justifications for the admission of the evidence, including that
Newsome lacked standing to challenge the search, the arrest warrant provided grounds
to search, and there were exigent circumstances.
{¶4} A suppression hearing was held on July 21, 2015. The following
testimony was presented:
{¶5} Ashtabula County Sheriff’s Department Detective Brian Rose testified that
on December 2, 2014, he went to 1820 East 45th Street to serve an arrest warrant for
Newsome and his girlfriend, Tricia Kirk. Rose believed Newsome would be inside the
house based on anonymous phone tips that people had seen him there. Upon arrival,
Rose noticed no tire tracks in the snow-covered driveway, furthering his belief that the
subjects would be inside the house. Kirk answered the door and was taken into
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custody. Rose testified that, after Kirk was placed under arrest, “[s]he told us we could
search * * * she said go ahead and look for him.” Rose did not put this in the police
report since “she always gives consent,” although he admitted that important
information should be included in the police report. During past unsuccessful attempts
to locate Newsome at the home, Kirk would “stall” the officers and “then allow
everybody in” to search for Newsome. Rose was questioned about the consent several
times on cross-examination. When asked again whether Kirk gave consent, Rose
responded, “She did not tell us we couldn’t search, no,” then stating that she “said at
that time we could look for him,” and that he was sure Kirk had given consent.
{¶6} Upon searching the house, Rose saw items commonly used for the
manufacture of methamphetamine in plain view and smelled an odor associated with
fuel often used in meth labs. Newsome was located hiding in a compartment inside the
shower.
{¶7} Newsome testified that Kirk is his ex-girlfriend and he previously stayed in
her home on some occasions, including at the time of his arrest on December 2, 2014.
{¶8} In its August 20, 2015 Judgment Entry, the trial court granted the Motion
to Suppress, suppressing all evidence seized during the search conducted on
December 2, 2014. It concluded that there was no evidence the police had exigent
circumstances to enter the house, they were not permitted to enter the house under the
authority of the arrest warrant, and they did not have sufficient reliable information to
believe Newsome was present.
{¶9} The trial court also made the following findings regarding the consent
issue:
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The first time [consent] was ever mentioned was on the cross-
examination of Detective Rose, who acknowledged that he did not
report anywhere that Kirk had given consent for the search.1 He
testified that she had always given consent on the prior occasions
when police officers came to her home seeking the defendant. He
indicated that the police were relying on the arrest warrant when they
entered the premises. On questioning by the defense counsel,
Detective Rose first stated that Kirk did not tell them they could not
search; then she said that they could look for him and that he’s not
there. Detective Rose also stated that Kirk never stopped her
consent to search. Upon further questioning about the specifics of
her consent, Detective Rose testified that they asked if he, the
defendant, was in there, and told her that they were going to look, to
which Kirk responded, “That’s fine, go ahead, but he’s not here.”
Rose also testified that they warned her that if they found the
defendant there, she would also be charged. Detective Rose
testified that Kirk was placed in handcuffs and that she was on the
porch when he entered the house.
{¶10} Based on this, the court found that the contention that consent was given
was “not tenable,” and “[t]he evidence that Tricia Kirk consented to the search of her
1. A review of the transcript reveals that during direct examination, Rose, when testifying about past
arrests at the home, stated: “just like when we were there, Tricia Kirk stalled them for a time period, and
then would allow everybody in to search for Ryan Newsome.” (Emphasis added.). In other words, Rose
was testifying that consent was given on this occasion as well, although he failed to provide any other
testimony to this effect at that time.
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home is equivocal, and, taken at its best, does not establish a voluntary consent by
her.”
{¶11} The State timely appeals and raises the following assignment of error:
{¶12} “The trial court erred in granting appellee’s motion to suppress.”
{¶13} At a suppression hearing, “the trial court is best able to decide facts and
evaluate the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-
4629, 833 N.E.2d 1216, ¶ 41. “Its findings of fact are to be accepted if they are
supported by competent, credible evidence, and we are to independently determine
whether they satisfy the applicable legal standard.” Id., citing State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Wysin, 11th Dist. Portage
No. 2013-P-0037, 2013-Ohio-5363, ¶ 27 (“[o]nce the appellate court accepts the trial
court’s factual determinations, the appellate court conducts a de novo review of the trial
court’s application of the law to these facts”) (citation omitted).
{¶14} The State argues that the Motion to Suppress was improperly granted
solely based on the lower court’s erroneous conclusion that voluntary consent to search
was not given. The State contends that this finding was not consistent with Detective
Rose’s testimony.
{¶15} “A search conducted pursuant to a valid consent is constitutionally
permissible.” Bainbridge v. Kaseda, 11th Dist. Geauga No. 2007-G-2797, 2008-Ohio-
2136, ¶ 28. Consent need not amount to a waiver and can be voluntary without being
an “intentional relinquishment or abandonment of a known right or privilege.” Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To determine
whether valid consent exists, “the proper test is whether the totality of the circumstances
demonstrates that the consent was voluntary. * * * The state has the burden to prove
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consent was freely and voluntarily given by clear and convincing evidence.” Kaseda at
¶ 28; State v. Robinette, 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997). Our “review
of the voluntariness of consent to search is ‘limited to a determination of whether the
trial court’s decision was “clearly erroneous.”’” (Citations omitted.) Kaseda at ¶ 27.
{¶16} The trial court determined that voluntary consent was not given, describing
Rose’s testimony and holding that evidence supporting a finding of consent was
“equivocal.” It must be emphasized that “it is squarely within the province of the trial
court to assess the credibility of the witnesses by weighing their testimony and
observing their demeanor.” State v. McDivitt, 11th Dist. Lake No. 2011-L-129, 2012-
Ohio-2243, ¶ 36. The findings made by the trial court show that it found Rose’s
testimony to lack credibility. After hearing Rose’s testimony, it found the assertion that
consent was given “not tenable,” pointed out flaws, and suppressed the evidence based
on the improper entry of the home and resulting search. Given the trial court’s ruling, it
is clear that it opted to disbelieve Rose’s testimony.
{¶17} The trial court’s determination is consistent with the testimony presented
by Detective Rose, and is supported by competent, credible evidence. Rose did not
include in his police report any reference to the consent that was given by Kirk, even
though Rose confirmed that he “tr[ies] to” include all important information in his police
reports. This would presumably include the justification for entering a home without a
warrant. In addition, the wording of his statements, first that Kirk did not object to the
search and then that she consented, raises possible credibility questions. It is also
noteworthy that Rose testified he believed that a police search was justified under the
arrest warrant. It seems likely that a request for consent may not be made if police
already believed the search was justified. It must be stressed that “factual questions
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during suppression hearings are to be resolved by the trial court because it sits as the
trier of fact.” McDivitt at ¶ 36. While the State outlines Rose’s testimony that consent
was given and argues that there was no evidence of coercion, given that the trial court
found this testimony lacked credibility, it does not weigh in the State’s favor.
{¶18} Thus, given that credibility is for the trier of fact to determine, as well as
the standard that this court must accept facts supported by competent, credible
evidence, there is no basis for reversal. We decline to second-guess the trial court’s
decision on this factual issue. Without the testimony of Detective Rose, the State failed
to meet its burden of showing that consent was voluntarily given. Bumper v. North
Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (“[w]hen a
prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the
burden of proving that the consent was, in fact, freely and voluntarily given”); State v.
McLemore, 197 Ohio App.3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 24 (2d Dist.).
{¶19} The sole assignment of error is without merit.
{¶20} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, granting Newsome’s Motion to Suppress, is affirmed. Costs to be
taxed against appellant.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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