State v. Flink , 2021 Ohio 3833 ( 2021 )

[Cite as State v. Flink, 2021-Ohio-3833.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2021 CA 00013
STEPHANIE L. FLINK
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2020 CR 608
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 28, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
R. KYLE WITT AARON R. CONRAD
PROSECUTING ATTORNEY CONRAD/WOOD
CHRISTOPHER A. REAMDER 120 East Main Street
ASSISTANT PROSECUTOR Suite 200
239 West Main Street, Suite 101 Lancaster, Ohio 43130
Lancaster, Ohio 43130
Fairfield County, Case No. 2021 CA 00013 2
Wise, John, J.
{¶1} Appellant State of Ohio appeals the Fairfield County Common Pleas Court’s
granting of Appellee’s Motion to Suppress. Appellee is Stephanie L. Flink. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 10, 2020, Appellee was indicted by the Fairfield County
Grand Jury for one count of Aggravated Possession of Drugs in violation of R.C.
2925.11(A) and (C)(1)(a), a fifth-degree felony, stemming from an incident which occurred
on November 9, 2020.
{¶3} On February 4, 2021, Appellee filed a Motion to Suppress.
{¶4} On March 9, 2021, the trial court held a hearing on Appellee’s Motion to
Suppress.
{¶5} At the hearing, Officer Christopher Cook testified that on November 9, 2020,
he initiated a traffic stop when Appellee failed to use a turn signal.
{¶6} Appellee’s license was not valid through the State of Ohio, but it was valid
through the State of Kentucky. It took nearly five minutes to receive the confirmation.
{¶7} After Officer Cook checked Appellee’s license but before he issued a
citation, he asked Appellee to exit the vehicle. He saw Appellee reach into the back seat,
and noticed the man in the passenger seat of the vehicle was acting nervous. Officer
Cook then said he had a “gut feeling” something was going on in the vehicle.
{¶8} Appellee denied anything illegal in the vehicle, and Officer Cook asked for
consent to search the vehicle. Officer Cook said he mentioned the possibility of a canine
sniffing around the vehicle and received general consent from Appellee to search the
Fairfield County, Case No. 2021 CA 00013 3
vehicle. No canine was called, no canine was available, and Officer Cook had no intention
of calling a canine unit. At this point six to seven minutes had elapsed since the stop
occurred.
{¶9} Officer Cook initiated a traffic stop, asked Appellee out of the vehicle, and
began questioning her about contraband in her vehicle. He said he believed he did not
restrict her movement. He testified that Appellee was calm and collected, very polite.
{¶10} Officer Cook continued testifying that normally at a traffic stop he would run
a check on the vehicle and license, then issue a citation or warning. He said he deviated
from issuing the citation or warning because he had “several of those funny feelings.”
{¶11} Officer Cook observed Mr. Rider in the passenger seat slouching, and Rider
would not look the officer in the eye. He said this made him feel like this was more than
just a traffic infraction.
{¶12} While searching the vehicle, Officer Cook asked Appellee for permission to
search her purse. Officer Cook said he received permission, and inside Appellee’s purse,
Officer Cook found a tin can. Officer Cook then opened the tin can finding a butterfly knife.
Under the knife was methamphetamine.
{¶13} Officer Cook indicated the entire search was consensual, and that Appellee
never withdrew her consent.
{¶14} On April 6, 2021, the trial court granted Appellee’s Motion to Suppress.
ASSIGNMENTS OF ERROR
{¶15} Appellant timely filed a notice of appeal and herein raises the following
Assignment of Error.
Fairfield County, Case No. 2021 CA 00013 4
{¶16} “I. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN
IT FOUND THAT APPELLEE [sic], STEPHANIE FLINK’S CONSENT TO SEARCH HER
VEHICLE WAS INVOLUNTARY.”
I.
{¶17} In Appellant’s sole assignment of error, Appellant presents two issues for
consideration. First, the trial court did not apply a totality of the circumstances instead
focusing on a singular factor to determine if Appellee’s consent to search was given
voluntarily. Second, under a totality of the circumstances test, does an officer informing
the motorist their car may be subject to a canine search amount to coercive conduct
rendering Appellee’s consent involuntary.
a. Standard of Review
{¶18} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661
N.E.2d 1030. A reviewing court is bound to accept the trial court’s findings of fact if they
are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,
145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court
must independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds, State v. Gunther, 4th Dist. Pickaway No. 04CA25, 2005-Ohio-3492, ¶16.
Fairfield County, Case No. 2021 CA 00013 5
{¶19} Three methods exist to challenge a trial court’s ruling on a motion to
suppress. First, appellant may challenge the trial court’s findings of facts. State v.
Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Second, appellant may argue the
trial court failed to apply the appropriate test or correct law of the findings of fact. In that
case, the appellate court can reverse the trial court for committing an error of law. Williams
at 41. Third, appellant may argue the trial court incorrectly decided the ultimate issue
raised in the motion to suppress. When addressing the third type of challenge, an
appellate court must independently determine, without deference to the trial court’s
conclusion, whether the facts meet the appropriate legal standard in the given case
(Citation omitted). State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
{¶20} “The voluntariness of a consent search is a question of fact and will not be
reversed on appeal unless clearly erroneous.” State v. Bickel, 5th Dist. Ashland No. 2006-
COA-034, 2007-Ohio-3517, ¶24.
b. Did the trial court apply a totality of the circumstances test?
{¶21} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶22} Consent to search is a well-established exception to the warrant
requirement; no Fourth Amendment violation occurs when an individual voluntarily
consents to search. United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153
L.Ed.2d 242. The United States Supreme Court acknowledged the importance of consent
Fairfield County, Case No. 2021 CA 00013 6
searches in police investigations, noting that “a valid consent may be the only means of
obtaining important and reliable evidence” to apprehend a criminal. Schneckloth v.
Bustamonte (1983), 412 U.S. 218, 227-228, 93 S.Ct. 2041, see, State v. Fry, 4th Dist.
No. 03CA26, 2004-Ohio-5747 at ¶ 18. The United States Supreme Court further noted:
“[w]hile most citizens will respond to a police request, the fact that people do so, and do
so without being told they are free not to respond, hardly eliminates the consensual nature
of the response.” INS v. Delgado (1984), 466 U.S. 210, 216, 104 S.Ct.
1758; Drayton, supra, 536 U.S. at 205, 122 S.Ct. at 2113. A voluntary consent need not
amount to a waiver; consent can be voluntary without being an “intentional relinquishment
or abandonment of a known right or privilege.” Schneckloth v. Bustamonte (1983), 412
U.S. 218, 235, 93 S.Ct. 2041, 2052 (quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464,
58 S.Ct. 1019, 1023); State v. Barnes (1986), 25 Ohio St.3d 203, 495 N.E.2d 922; State
v. McConnell, 5th Dist. No. 2002CA00048, 2002-Ohio-5300 at ¶ 8. Rather, the proper test
is whether the totality of the circumstances demonstrates that the consent was
voluntary. Id. Whether or not such consent was voluntarily given depends on the totality
of the circumstances. State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762, 1997-Ohio-
343.
{¶23} In Robinette, the Ohio Supreme Court held:
We find Bustamonte instructive in defining when permission to
search is truly consensual under the totality of the circumstances:
“[W]hen the subject of a search is not in custody and the State
attempts to justify a search on the basis of his consent, the Fourth and
Fourteenth Amendments require that it demonstrate that the consent was
Fairfield County, Case No. 2021 CA 00013 7
in fact voluntarily given, and not the result of duress or coercion, express or
implied. Voluntariness is a question of fact to be determined from all the
circumstances, and while the subject’s knowledge of a right to refuse is a
factor to be taken into account, the prosecution is not required to
demonstrate such knowledge as a prerequisite to establishing a voluntary
consent.” Id. 412 U.S. at 248-249, 93 S.Ct. at 2059, 36 L.E.2d at 875. State
v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762, 1997-Ohio-343.
{¶24} In State v. Wiegand, 5th Dist. Licking No. 17-CA-24, 2017-Ohio-9143, ¶28,
this Court listed six important factors when determining the voluntariness of consent:
(1) [T]he voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of
the defendant’s cooperation with the police; (4) the defendant’s
awareness of his right to refuse consent; (5) the defendant’s
education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
{¶25} Appellant contends the trial court did not apply a totality of the
circumstances test, but instead focused on only one factor. We disagree as a complete
review of the record shows Appellant’s argument is factually inaccurate.
{¶26} While the trial court extensively discussed the police’s coercive procedures
during this search, the trial court also found that Appellee’s custodial status was not
voluntary, and that Appellee was not aware she had a right to refuse consent.
{¶27} In its journal entry dated April 6, 2021, the trial court noted that Appellee,
while under the impression the stop was for a traffic violation and check on validity of her
Fairfield County, Case No. 2021 CA 00013 8
license, was asked for consent to search her vehicle without indication if the issue was
fully resolved. The officer never returned to his cruiser to issue a citation or indicated
Appellee was free to go. On the contrary, Officer Cook led Appellee to believe, falsely,
that a canine unit was on the way, Appellee may go to prison, and to relinquish any
contraband in the vehicle.
{¶28} The trial court concluded by finding, under a totality of the circumstances of
the stop, Appellee’s consent was not voluntary.
{¶29} Upon review of the trial court’s journal entry, we find the trial court applied
a totality of the circumstances test.
c. Did Officer Cook engage in coercive behavior?
{¶30} Again, consent to search is a well-established exception to the warrant
requirement; no Fourth Amendment violation occurs when an individual voluntarily
consents to search. Drayton at 207, 122 S.Ct. 2105, 153 L.Ed.2d 242. The United States
Supreme Court acknowledged the importance of consent searches in police
investigations, noting that “a valid consent may be the only means of obtaining important
and reliable evidence” to apprehend a criminal. Schneckloth at 227-228. See, State v.
Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747 at ¶ 18. The United States Supreme Court
further noted: “[w]hile most citizens will respond to a police request, the fact that people
do so, and do so without being told they are free not to respond, hardly eliminates the
consensual nature of the response.” INS v. Delgado (1984), 466 U.S. 210, 216, 104 S.Ct.
1758; Drayton, supra, 536 U.S. at 205, 122 S.Ct. at 2113. Moreover, a voluntary consent
need not amount to a waiver; consent can be voluntary without being an “intentional
relinquishment or abandonment of a known right or privilege.” Schneckloth v.
Fairfield County, Case No. 2021 CA 00013 9
Bustamonte (1983), 412 U.S. 218, 235, 93 S.Ct. 2041, 2052 (quoting Johnson v.
Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023); State v. Barnes (1986), 25 Ohio
St.3d 203, 495 N.E.2d 922; State v. McConnell, 5th Dist. No. 2002CA00048, 2002-Ohio-
5300 at ¶ 8. Rather, the proper test is whether the totality of the circumstances
demonstrates that the consent was voluntary. Id. Whether or not such consent was
voluntarily given depends on the totality of the circumstances. State v. Robinette, 80 Ohio
St.3d 234, 685 N.E.2d 762, 1997-Ohio-343. “The voluntariness of a consent to a search
is a question of fact and will not be reversed on appeal unless clearly erroneous.” State
v. Deemer, 5th Dist. Tuscarawas No. 2015 AP 01 0006, 2015-Ohio-3199, ¶17, quoting
State v. Camp, 5th Dist. Richland No.14CA42, 2014-Ohio-329, 24 N.E.3d 601, ¶23.
{¶31} In State v. Wiegand, 5th Dist. Licking No. 17-CA-24, 2017-Ohio-9143, ¶28,
this Court listed six important factors when determining the voluntariness of consent:
(1) [T]he voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s awareness of
his right to refuse consent; (5) the defendant’s education and intelligence;
and (6) the defendant’s belief that no incriminating evidence will be found.
{¶32} In Bickel, this Court in dicta noted that a “reasonable person” would not feel
free to leave until the officer actually completed the issuance of the traffic citation or
warning. Bickel at ¶26. “The potential coercive effect of the roadside detention is far more
compelling when the officer requests permission to search before completing the citation.”
Id. When the officer makes a request to search when the driver is detained while awaiting
the issuance of a citation, the reasonable person understands he is not free to leave.
Fairfield County, Case No. 2021 CA 00013 10
{¶33} In Deemer, the Officer asked the defendant for consent to search his vehicle
at a traffic stop because the defendant appeared more nervous than most traffic stops.
Deemer at ¶18. The defendant exited the vehicle and spoke with officers at the rear of
the vehicle. Id. at ¶19. While surrounded by officers the defendant was told that if she
went to jail that night and anything was found on her, it would be a felony. Id. After the
implication that she might be taken to jail, the defendant consented to a search. Id. This
Court held based on the totality of the circumstances the trial court’s determination that
the defendant’s consent was not voluntary was not clearly erroneous.
{¶34} Similar to Deemer, in the case sub judice, the trial court focused primarily
on coercive police procedures and the voluntariness of Appellee’s custody. Officer Cook,
after ascertaining that Appellee had a valid license, did not issue a citation, deliver a
warning, or instruct Appellee that she was free to leave. Instead, Officer Cook asked
Appellee to exit the vehicle. He threatened a canine sniff of the vehicle. He told Appellee
he did not want to take anyone to jail tonight, implying that Appellee may go to jail. Even
though the communication between Appellee and the officer was friendly, Appellee was
not free to leave, multiple police officers were on the scene as she was asked for consent,
and she was visibly confused why Officer Cook threatened a canine search and implied
she may go to jail.
{¶35} Based on a totality of the circumstance, we do not find the trial court’s
determination Appellee’s consent was not voluntarily given was clearly erroneous.
Fairfield County, Case No. 2021 CA 00013 11
{¶36} Appellant’s sole Assignment of Error is overruled.
{¶37} For the foregoing reasons, the judgment of the Common Pleas Court of
Fairfield County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, J., and
Wise, Earle, J., concur.
JWW/br 1012