State v. Deemer

[Cite as State v. Deemer, 2015-Ohio-3199.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2015 AP 01 0006
JESSICA DEEMER
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Common Pleas Court, Case No.
2014CR090190
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 7, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL J. ERNEST MARK A. PERLAKY
Assistant Prosecuting Attorney Tuscarawas County Public Defender
125 E. High Avenue 153 N. Broadway St.
New Philadelphia, Ohio 44663 New Philadelphia Ohio 44663
Tuscarawas County, Case No. 2015 AP 01 0006 2
Hoffman, P. J.
{¶1} Plaintiff-appellant the state of Ohio appeals the January 21, 2015
Judgment Entry entered by the Tuscarawas County Court of Common Pleas granting
Defendant-Appellee Jessica Deemer's motion to suppress evidence.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 8, 2014, Appellee was operating a motor vehicle in the City of
New Philadelphia, Ohio. Officer James Miller of the New Philadelphia Police
Department observed the vehicle travel across the double yellow lines of the roadway
with all four tires, a traffic violation, and initiated a stop. Upon approaching the vehicle,
Officer Miller noticed Appellee appeared nervous, had shaky hands and constricted
pupils. He then requested Appellee's personal identification, and went back to his
cruiser to issue a citation and check for outstanding warrants. Officer Miller knew the
vehicle had come from a known heroin house, and believed from his training and
experience Appellee had indicators she was under the influence of narcotics.
{¶3} Sergeant Eddie Jones of the Tuscarawas County Sheriff's Office and
Officer Mitch Gobely of the New Philadelphia Police Department then arrived at the
scene as backup.
{¶4} Officer Gobely approached the driver's side window of the vehicle as
Officer Miller prepared the traffic citation. His purpose in approaching Appellee was to
obtain consent to search the vehicle for narcotics. He asked Appellee for consent to
search the vehicle. Appellee responded it was not her vehicle, and looked to her
passenger for guidance. She stated, "It's not my vehicle. I'm not sure I can do that."
The passenger, Jason Carothers, responded, "There is nothing in here. You can go
Tuscarawas County, Case No. 2015 AP 01 0006 3
ahead and search it." Appellee stated, "Yeah, that's fine. Go ahead and search the
vehicle."
{¶5} Officer Gobely testified Appellee appeared nervous, and was apparently
"more nervous than a driver in a normal traffic stop." He testified he believed she was
not nervous about giving consent to search; rather, only hesitated because it was not
her vehicle, at which point he explained to her she had the authority to make the
decision as to whether to grant consent to search. Upon obtaining her consent to
search, Officer Gobely asked Appellee and Carothers to exit the vehicle.
{¶6} Appellee was asked if she had anything in her pockets, and then asked to
step to the rear of the vehicle. Officer Gobely testified Officer Miller and Sheriff Deputy
Eddy Jones were on the scene. Captain Stewart of the New Philadelphia Police
Department also arrived at the scene shortly after Gobely and Jones arrived. At the
time of Appellee's initial "consent" given in the vehicle, there were four police cruisers
on the scene with flashing lights.
{¶7} Officer Miller stepped out of his cruiser and engaged Appellee in a
conversation near the rear of the vehicle. DVD video of the stop obtained from Officer
Miller's police cruiser provides audio testimony of Officer Miller engaging Appellee and
Carothers at the driver's side door, but goes silent when Officer Miller returns to his
cruiser approximately at 4:20 (four minutes and twenty seconds) into the video. DVD
Audio testimony of Appellee consenting to the search is unavailable.
{¶8} At 8:35 (eight minutes and thirty-five seconds) into the video, the audio
returns and Officer Miller is heard engaging Appellee in a conversation and making
statements to the effect, "if you happened to go to jail tonight, if you had anything on
Tuscarawas County, Case No. 2015 AP 01 0006 4
your person, it would be a felony…" Officer Miller testified to making statements to this
effect. Appellee then consented to the search. On the video, four officers are seen
surrounding Appellee at the time Officer Miller is talking to her with shining flashlights.
{¶9} After Appellee's consent given to Officer Miller, Officer Miller walked up to
the driver's side of the vehicle and observed a purse on the driver's seat. Inside the
purse, the officer found a syringe. The entire encounter lasted approximately 13
minutes prior to Appellee's arrest.
{¶10} On November 19, 2014, the Tuscarawas County Grand Jury indicted
Appellee on one count of possessing drug abuse instruments, in violation of R.C.
2925.12(A), a misdemeanor of the second degree.
{¶11} Appellee filed a motion to suppress asserting the officer did not have
reasonable suspicion to search her vehicle and she did not voluntarily consent to the
search. The trial court conducted a hearing on the motion on December 12, 2014, and
December 22, 2014. Via Judgment Entry entered January 21, 2015, the trial court
granted Appellee's motion to suppress.
{¶12} The State now appeals, assigning as error:
{¶13} "I. THE TRIAL COURT ERRED IN CONCLUDING THAT THE
APPELLANT FAILED TO PROVE THAT THE APPELLEE GAVE A VALID CONSENT
TO SEARCH."
I.
{¶14} In State v. Goffee, 161 Ohio App.3d 199, 2005-Ohio-2596, this Court held
there are three ways to challenge a trial court's ruling on a motion to suppress,
Tuscarawas County, Case No. 2015 AP 01 0006 5
There are three methods of challenging on appeal a trial court's
ruling on a motion to suppress. First, an appellant may challenge the trial
court's findings of fact. In reviewing a challenge of this nature, an appellate
court must determine whether the findings of fact are against the manifest
weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR
57, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597
N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d
726. Second, an appellant may argue that the trial court failed to apply the
appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the judgment of the trial court for committing
an error of law. State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d
1141. Finally, assuming that the trial court's findings of fact are not against
the manifest weight of the evidence and that it has properly identified the
law to be applied, an appellant may argue that the trial court has
incorrectly decided the ultimate or final issue raised in the motion to
suppress. When reviewing this type of claim, an appellate court must
independently determine, without deference to the trial court's conclusion,
whether the facts meet the appropriate legal standard in any given case.
State v. Curry (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172; State v.
Claytor (1993), 85 Ohio App.3d 623, 620 N.E.2d 906; Guysinger. As the
United States Supreme Court held in Ornelas v. United States (1996), 517
U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911, “as a general matter
Tuscarawas County, Case No. 2015 AP 01 0006 6
determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶15} Consent to search is well-established exception to the warrant
requirement. No Fourth Amendment violation occurs when an individual voluntarily
consents to a search. United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105.
The proper test is whether the totality of the circumstances demonstrates the consent
was voluntary. State v. Robinette, 80 Ohio St.3d 234, 1997-Ohio-343.
{¶16} 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
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.Ed.2d at 875.
State v. Robinette, 1997-Ohio-343, 80 Ohio St. 3d 234, 242-43, 685 N.E.2d 762, 769
{¶17} In State v. Camp, Richland App. No. 14 CA 42, 2014-Ohio-329, this Court
held,
Tuscarawas County, Case No. 2015 AP 01 0006 7
One well-established exception to the warrant requirement is the
consent search. No Fourth Amendment violation occurs when an
individual voluntarily consents to a search. See United States v. Drayton,
536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (stating that
“[p]olice officers act in full accord with the law when they ask citizens for
consent”); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041,
36 L.Ed.2d 854 (1973) (“[A] search conducted pursuant to a valid consent
is constitutionally permissible”); State v. Comen, 50 Ohio St.3d 206, 211,
553 N.E.2d 640 (1990). In Schneckloth, 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. Id. at
227–228, 93 S.Ct. 2041. See, also, State v. Fry, 4th Dist. No. 03CA26,
2004-Ohio-5747, 2004 WL 2428439, ¶ 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.” I.N.S. v. Delgado, 466 U.S. 210, 216,
104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); 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. Bustamonte, 412 U.S. 218, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973),
Tuscarawas County, Case No. 2015 AP 01 0006 8
(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed.
1461 (1938)); State v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922 (1986);
State v. McConnell, 5th Dist.Stark No. 2002CA00048, 2002-Ohio-5300,
2002 WL 31270071, ¶ 8. Rather, the proper test is whether the totality of
the circumstances demonstrates that the consent was voluntary. Id.Further, “[v]oluntary consent, determined under the totality of the
circumstances, may validate an otherwise illegal detention and search.”
State v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762 (1997), citing
Davis v. United States, 328 U.S. 582, 593–594, 66 S.Ct. 1256, 90 L.Ed.
1453 (1946). 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.
Clelland, 83 Ohio App.3d 474, 615 N.E.2d 276 (4th Dist.1992). (Emphasis
not in original opinion but added for purpose of emphasis in this opinion).
{¶18} As set forth in the Statement of the Facts and the Case, supra, Officer
Gobely asked Appellee for consent to search the vehicle while Appellee remained in the
vehicle with Carothers. Appellee was hesitant and looked to Carothers. Officer Gobely
testified Appellee appeared nervous, and was more nervous than an average traffic
stop.
{¶19} Appellee then exited the vehicle, and stepped to the rear of the vehicle.
Officer Miller then engaged Appellee in a conversation. Officer Miller told Appellee,
while she was surrounded by three officers, with a total of four officers present and the
scene illuminated by the headlights and stop lights of four police cruisers, "if she
happened to go to jail tonight, and anything was found on her person, it would be a
Tuscarawas County, Case No. 2015 AP 01 0006 9
felony." Thus, Officer Miller implied Appellee might be taken to jail that night. Appellee
then consented to the search, and Officer Miller began the search at that point.
{¶20} At the suppression hearing, Officer Miller testified:
THE WITNESS: When I began talking with her there I went up and I
asked him [sic] again if there was anything illegal in her purse and in her
vehicle or anything we needed to know about and then I also advised her
that if she did have anything on her person and for some reason she
would go back to jail tonight she could end up getting a higher charge, so
if she has anything on her person it's better to give it up before going back
to jail if for some reason she would go back to jail. And then I asked her if
she'd mind if we looked in the vehicle or looked in her stuff and she said
no.
THE COURT: Okay. That's what I did not hear you say. But you're
telling me that that's what you said immediately before you went up to the
driver's side.
THE WITNESS: That's what I said to her, yeah.
THE COURT: Okay.
{¶21} Tr. at 39-40.
{¶22} On cross-examination, Miller testified:
Q. Okay. So I guess my next question is when you're asking for her
consent why was it necessary to advise her of the possibility of felony 3
illegal conveyance charge?
Tuscarawas County, Case No. 2015 AP 01 0006 10
A. I like to tell them that because if we find something and they end
up going back to the jail and they have it tucked on them which normally
they do tuck stuff on them in their person, especially females because
we're not going to intrude upon a female's pockets or inside of her, you
know, bra area or anything like that. So, I like to advise them beforehand
if something does happen that, you know what I mean, it's best to give it
up now because she's going to get lesser charges than she would if she
were to go back to jail if she got something.
Q. Officer Miller, couldn't that wait until you find something though?
A. It could.
{¶23} Tr. at 59.
{¶24} Based upon the totality of the circumstances, we do not find the trial
court's determination Appellee's consent was not freely [voluntarily] given was clearly
erroneous.
Tuscarawas County, Case No. 2015 AP 01 0006 11
{¶25} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur