State v. Clark ( 2012 )

[Cite as State v. Clark, 2012-Ohio-2058.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96768
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CLAUDIUS CLARK
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535510
BEFORE: Keough, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 10, 2012
ATTORNEY FOR APPELLANT
Myron P. Watson
420 Lakeside Place
323 West Lakeside Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Lauren Bell
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶Error! Bookmark not defined.} Defendant-appellant, Claudius Clark, appeals
from the trial court’s judgment, rendered after a jury trial, finding him guilty of drug
trafficking, drug possession, and possession of criminal tools, and sentencing him to four
years incarceration. For the reasons that follow, we reverse and remand.
I. Procedural History
{¶Error! Bookmark not defined.} In April 2010, Clark was indicted for drug
trafficking in violation of R.C. 2925.03(A)(2) with a firearm specification, drug
possession in violation of R.C. 2925.11(A) with a firearm specification, and possessing
criminal tools in violation of R.C. 2923.24(A). Clark filed a motion to suppress; the trial
court held a hearing over two days and then denied the motion, finding that Clark had
consented to the police officers’ entry into and search of his apartment.
{¶Error! Bookmark not defined.} Prior to the start of trial, the state filed a motion
to amend the indictment to reflect that the weight of the drugs was less than that
contained in the original indictment. The amendment did not change the felony level of
the charges in the indictment and the trial court granted the motion.
{¶Error! Bookmark not defined.} The jury returned a verdict of guilty on all
charges of the indictment and the trial court sentenced Clark to an aggregate term of four
years incarceration. Clark appeals and raises four assignments of error for our review.
II. Motion to Suppress
{¶Error! Bookmark not defined.} In his first assignment of error, Clark contends
that the trial court erred in denying his motion to suppress because he did not consent to
the police officers’ entry into or search of his apartment.
{¶Error! Bookmark not defined.} The testimony at the suppression hearing
indicated the following. In January 2010, the city of Euclid police department received a
complaint of a male selling drugs at the Waters Edge Apartments. In March 2010, the
police received several anonymous tips that Clark was selling drugs in the parking lot of
the apartments and from his own apartment. According to Euclid police detective
Benjamin Kreischer, the police conducted surveillance of the apartment building but did
not observe any criminal activity. Accordingly, on March 18, 2010, the police decided to
conduct a “knock and talk” with Clark.
{¶Error! Bookmark not defined.} Kreischer testified that the purpose of a “knock
and talk” is to engage a suspect in a conversation to determine whether the allegations
about the individual have any merit; he denied that the primary goal of a “knock and talk”
is to gain entrance to find contraband. But Detective David Carpenter, who also
participated in the “knock and talk,” testified that the purpose of a “knock and talk” is “to
develop probable cause and make an arrest” and that the Euclid police conduct “knock
and talks” when they do not have probable cause for a search warrant.
{¶Error! Bookmark not defined.} At approximately 8:00 p.m. on March 18,
Kreischer, Carpenter, and two other Euclid police officers knocked on the door to Clark’s
apartment. Carpenter testified that all of the officers were in plain clothes and wearing a
vest marked “Police.” Two uniformed security officers from the apartment complex
accompanied them.
{¶Error! Bookmark not defined.} According to Kreischer, the police could smell
burnt marijuana emanating from Clark’s apartment as they stood in the hall. When Clark
answered the door, the police identified themselves as narcotics and vice officers with the
Euclid police department and asked Clark if they could come in to discuss the complaints
about him. Both Kreischer and Carpenter testified that Clark invited them into his
apartment.
{¶Error! Bookmark not defined.} Carpenter testified that the officers stood just
inside the doorway and asked Clark about the burnt-marijuana smell. According to
Kreischer, Clark stated that he smoked marijuana every day and told the police “you may
as well take me now.” 1 Detective Carpenter testified that there was also an
overwhelming smell of raw marijuana in the apartment and he asked Clark about the
smell. According to Carpenter, Clark again said that he smoked marijuana every day and
Under section 513.03 of the Euclid Codified Ordinances, possession of any
1
amount of marijuana is a first-degree misdemeanor and an arrestable offense.
“begged” the officers to arrest him in what Carpenter testified was an apparent attempt to
get the police out of his apartment.
{¶Error! Bookmark not defined.} Both Kreischer and Carpenter testified that Clark
asked to get his shoes from his bedroom, so they followed him to make sure he did not
procure a weapon and that there was no one else in the apartment. Kreischer testified
that he asked Clark what was on the nightstand and Clark told him it was marijuana;
Carpenter testified that he observed two loose marijuana buds and two smoked marijuana
cigarettes wrapped in paper. When Carpenter saw a large, locked, Craftsman toolbox on
the floor by the bed, he asked Clark what was in the toolbox. Clark responded, “What
the f— do you think is in it?” Kreischer checked the closet and found a shotgun and a
tray that contained a digital scale, plastic baggies, rubber bands, and marijuana residue.
{¶Error! Bookmark not defined.} Clark was arrested and transported to the police
department. Several officers stayed at the apartment while the police obtained a search
warrant, which they executed later that evening. The next day, the police obtained a
warrant to open the toolbox, in which they found ten pounds of marijuana packaged in
plastic bags.
{¶Error! Bookmark not defined.} Clark’s version of events differed from that of
Kreischer and Carpenter. He denied inviting the police into his apartment and testified
that when he opened the door, the officers told him he was under arrest for selling drugs
and immediately surged into the doorjamb, making it impossible for him to close the
door. He also testified that Det. Carpenter had his gun drawn.
{¶Error! Bookmark not defined.} Clark testified that he repeatedly told the police
they could not come into the apartment without a warrant but they told him they were
coming in anyway because they knew there was a lot of marijuana in the apartment.
Clark said that he then told the police to wait by the door because he wanted to put some
clothes on, and he walked back to his bedroom. He said that Carpenter followed him,
went to his nightstand, picked up the papers on the nightstand, opened them, and found
marijuana.
{¶Error! Bookmark not defined.} Clark testified that at the police station after his
arrest, the police gave him a two-part form to sign. He signed the first part, which stated
that the police had given him his Miranda rights when he was arrested, but refused to sign
the second part, which stated that he had consented to the search of his apartment.
{¶Error! Bookmark not defined.} A motion to suppress presents a mixed question
of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8.
When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions
and evaluate the credibility of witnesses. * * * Consequently, an appellate
court must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. * * * Accepting these facts as true, the
appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard. Id.{¶Error! Bookmark not defined.} The Fourth Amendment to the United States
Constitution protects individuals against unreasonable governmental searches and
seizures. See, e.g., United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151
L.Ed.2d 740 (2002); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Searches conducted outside the judicial process, without prior approval by a judge or
magistrate, are per se unreasonable under the Fourth Amendment subject only to a few
specifically established and well-delineated exceptions. Katz v. United States, 389 U.S.
347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Posey, 40 Ohio St.3d 420, 427,
534 N.E.2d 61 (1988).
{¶Error! Bookmark not defined.} A search that is undertaken following valid
consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 219,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A warrantless search based upon a suspect’s
consent is valid if the consent was voluntarily given, and not the result of duress or
coercion, either express or implied. Id. The state must show by “clear and convincing”
evidence that the consent was freely and voluntarily given. Id. This is an intermediate
standard of proof—more than a preponderance of the evidence but less than beyond a
reasonable doubt. State v. Ingram, 82 Ohio App.3d 341, 346, 612 N.E.2d 454 (2d
Dist.1992), citing Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{¶Error! Bookmark not defined.} Voluntariness of consent is determined by
examining the totality of the circumstances involved. Schneckloth at 227. Consent may
not be coerced by explicit or implicit means, or by implied threat or covert force, and it is
not established where the individual merely submits to a claim of lawful authority. Id.{¶Error! Bookmark not defined.} Factors for a court to consider in determining
whether consent is voluntary include: (1) the suspect’s custodial status and the length of
the initial detention; (2) whether the consent was given in public or at a police station; (3)
the presence of threats, promises, or coercive police procedures; (4) the words and
conduct of the suspect; (5) the extent and level of the suspect’s cooperation with the
police; (6) the suspect’s awareness of his right to refuse to consent and his status as a
“newcomer to the law”; (7) the suspect’s education and intelligence; and (8) the suspect’s
belief that no incriminating evidence will be found. Schneckloth at 248-249; State v.
Webb, 2d Dist. No. 17676, 2000 WL 84658 (Jan. 28, 2000).
{¶Error! Bookmark not defined.} While accepting the trial court’s findings of fact
as true, we find that upon considering these factors, the totality of the circumstances in
this case demonstrates that Clark did not voluntarily consent to the officers’ entry into and
search of his apartment.2 The record reflects that four police officers and two uniformed
security officers were waiting for Clark when he opened his apartment door. Even
discounting Clark’s testimony that one of the officers had his gun drawn, we find the
presence of six officers immediately outside Clark’s apartment door to be an
overwhelming show of force that was inherently coercive, especially if, as Det. Kreischer
testified, the purpose of a “knock and talk” is simply to “engage a suspect in
conversation.”
On a motion to suppress, accepting the trial court’s findings of fact as true,
2
the appellate court must independently determine whether the facts satisfy the
applicable legal standard. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, at ¶ 8.
{¶Error! Bookmark not defined.} The record also reflects that when Clark opened
the door, the officers immediately surged forward into the doorjamb, making it
impossible for Clark to shut the door. This tactic could only be meant to intimidate Clark
into letting the police into his apartment so they could observe any contraband, consistent
with Det. Carpenter’s testimony that the real purpose of a “knock and talk” is to develop
probable cause and make an arrest.
{¶Error! Bookmark not defined.} Moreover, both detectives testified that there was
an “immediate” and “overpowering” smell of raw marijuana in the apartment as they
stood in the doorway talking to Clark. Clark was obviously aware of this smell and
would have had every reason to believe the police would find this incriminating evidence
if they came into his apartment. To conclude that he would have voluntarily invited the
police in to his apartment under such circumstances is highly suspect. In fact, Clark
testified that after his arrest, he refused to sign the form indicating that he had consented
to the search of his apartment.
{¶Error! Bookmark not defined.} Based on the foregoing, we can only conclude
that under the totality of the circumstances, any consent was the result of coercive police
tactics, and not voluntarily given. “‘Consent’ that is the product of official intimidation
or harassment is not consent at all. Citizens do not forfeit their constitutional rights
when they are coerced to comply with a request that they would prefer to refuse.”
Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
Therefore, any evidence obtained as a result of the warrantless entry into and search of
Clark’s apartment should have been suppressed as tainted fruit of the poisonous tree and,
accordingly, the trial court erred in denying the motion to suppress. Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
{¶Error! Bookmark not defined.} Appellant’s first assignment of error is sustained;
the matter is remanded for further proceedings consistent with this opinion.
{¶Error! Bookmark not defined.} In light of our resolution of the first assignment
of error, the second, third, and fourth assignments of error are overruled as moot. App.R.
12(A)(1)(c).
{¶Error! Bookmark not defined.} Reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION.
SEAN C. GALLAGHER, J., CONCURRING:
{¶Error! Bookmark not defined.} I concur with the majority and write separately
to address my growing concerns with the use of the “knock and talk” procedure and its
impact on the Fourth Amendment of the U.S. Constitution. In Ohio, review of the
state’s specific use of the “knock and talk” procedure has been limited, if not
non-existent. State v. Kinsell, 9th Dist. No. 25074, 2010-Ohio-3854 (noting that the use
of the “knock and talk” procedure initiates a consensual encounter); see also State v.
Bowling, 8th Dist. No. 93052, 2010-Ohio-3595 (Dyke, J., concurring); State v. Barron,
10th Dist. No. 09AP-458, 2009-Ohio-5785; State v. White, 9th Dist. Nos. 23955 and
23959, 2008-Ohio-2432; State v. White, 175 Ohio App.3d 302, 2008-Ohio-657, 886
N.E.2d 904 (9th Dist.); State v. Sharpe, 174 Ohio App.3d 498, 2008-Ohio-267, 882
N.E.2d 960 (2d Dist.); State v. Golubov, 9th Dist. No. 05CA0019, 2005-Ohio-4938; State
v. Aber, 5th Dist. No. 2003CA106, 2004-Ohio-4116; State v. Norman, 10th Dist. No.
03AP-298, 2003-Ohio-7038; In re Lallo, 5th Dist. No. 1997CA00426, 1998 WL 525561(Aug. 17, 1998); State v. Jenkins, 104 Ohio App.3d 265, 661 N.E.2d 806 (1st Dist.
1995).
{¶Error! Bookmark not defined.} In reviewing any warrantless search or seizure,
courts must begin “with the basic rule that ‘searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment — subject only to a few specifically established and well-delineated
exceptions.’” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485(2009), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576(1967). The use of the “knock and talk” procedure initiates a potentially consensual
encounter where the resident is free to deny the police access to the residence. State v.
Bowling, 8th Dist. No. 93052, 2010-Ohio-3595, ¶ 68 (Dyke, J., concurring). Generally,
consensual encounters do not implicate the Fourth Amendment. Florida v. Bostick, 501
U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). However, once the encounter
loses its consensual nature, courts must review the actions under the imprint of the Fourth
Amendment. Id.{¶Error! Bookmark not defined.} The “knock and talk,” therefore, does nothing
more than open the door to the residence, and any search and seizure that follows must
rest on a firmly established exception to the Fourth Amendment, whether, for example,
the inevitable search is based on exigent circumstances, voluntary, implied or direct
consent, or the need for a protective sweep. Nevertheless, the use of a “knock and talk”
policy where police are unable to secure probable cause by other means, is a slippery
slope that invariably erodes the protections of the Fourth Amendment.
{¶Error! Bookmark not defined.} In this case, prudence seems to dictate that the
officers should have secured a warrant for the apartment upon smelling the odor of raw
marijuana emanating from inside. If police were concerned that Clark would flee back
inside and attempt to destroy the evidence of freshly smoked marijuana, they could have
briefly detained Clark on the scene while they waited for the warrant. There was no
evidence in this record that anyone other than Clark was present at the time the police
initiated the “knock and talk.” In the event police heard noises, or suspected others
inside were destroying evidence, they would have had the exigent circumstances
justifying entry. I recognize it is not easy for police officers engaged in a drug
investigation to drop everything and secure a warrant; nevertheless, inconvenience cannot
serve as a basis for diminishing constitutional protections.