State v. Mullen

[Cite as State v. Mullen , 2018-Ohio-5188.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-A-0018
- vs - :
NATASHA M. MULLEN, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula Municipal Court, Case No. 2017 CRB 01131.
Judgment: Reversed and remanded.
Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For
Plaintiff-Appellee).
Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047-
1099 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Natasha M. Mullen, appeals from the January 8, 2018 judgment
entry of the Ashtabula Municipal Court. Appellant takes issue with the trial court’s denial
of her motion to suppress. For the following reasons, the trial court’s judgment is
reversed, and this matter is remanded to the trial court for further proceedings.
{¶2} On July 10, 2017, a complaint was filed in the Ashtabula Municipal Court,
charging appellant with possession of drug paraphernalia, a fourth-degree misdemeanor
in violation of R.C. 2925.14(C)(1), and possession of drugs, a minor misdemeanor in
violation of R.C. 2925.11(A). Appellant entered a plea of not guilty.
{¶3} On August 21, 2017, appellant filed a motion to suppress evidence.
Appellant argued that all the evidence obtained by the state must be suppressed because
it was gathered in violation of appellant’s constitutional rights. A hearing was held on
October 20, 2017, at which Deputy Brian Sterrick testified.
{¶4} The trial court denied the motion to suppress on October 30, 2017.
{¶5} Appellant entered a plea of no contest. She was found guilty and ordered
to pay a fine of $150.00 on each count of the complaint in addition to court costs. The
trial court granted a stay of the sentence pending appeal. The trial court’s judgment entry
was filed on January 8, 2018.
{¶6} Appellant noticed a timely appeal. She raises one assignment of error:
{¶7} “The trial court erred in overruling the motion to suppress. The officer
conducted an illegal detention and search of Ms. Mullen, the fruits of which must be
excluded from evidence.”
{¶8} “Appellate review of a motion to suppress presents a mixed question of law
and fact. 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.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8,
citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). “Consequently, an appellate court
must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “[T]he appellate court
must then independently determine, without deference to the conclusion of the trial court,
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whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,
124 Ohio App.3d 706, 707 (4th Dist.1997).
{¶9} The following findings were made by the trial court and are supported by
competent credible evidence.
{¶10} Deputy Brian Sterrick was on duty on July 1, 2017. Deputy Sterrick was
aware that Jeffery Stanley of 4506 Ninevah Road, Saybrook Township had a warrant out
for his arrest pursuant to an indictment on several “serious” felony charges. Deputy
Sterrick drove by Stanley’s residence and noticed Stanley’s vehicle idling in the driveway
with the driver’s door open. Deputy Sterrick ordered Stanley out of the vehicle, arrested
him, and placed him in the back of his police cruiser.
{¶11} Deputy Sterrick saw a female passenger, later identified as appellant, in the
vehicle. He approached appellant because he was aware there was a protection order
against Stanley which protected a female victim, and he wanted to investigate the
situation. Further, Deputy Sterrick felt obligated to secure the situation after arresting
Stanley because the car was still running, the house was unlocked, and the dogs were
running around in the yard. The deputy asked appellant for her identification and
confirmed that she was not the victim of the protection order against Stanley.
{¶12} He further asked appellant whether she had any illegal drugs in the car or
on her person. Appellant “had answered that not that she was aware of,” which raised
Deputy Sterrick’s suspicion. He explained that in his over 17 years of law enforcement
experience and training, the response given by appellant is the most common response
given by a person in possession of illegal drugs. Deputy Sterrick also explained that
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people involved in violent crimes are typically involved with drugs and associate with
others involved with drugs.
{¶13} Deputy Sterrick then told appellant that he was a canine officer and had a
drug detection dog he would use to search the vehicle, and if contraband was found,
appellant would be charged with falsification in addition to possession. At this point,
appellant grabbed her purse, pulled out a cigar filled with marijuana, and handed the cigar
to the deputy. Deputy Sterrick asked for appellant’s purse, and she handed it to him. He
searched the purse and located two additional cigars filled with marijuana, a pill bottle
filled with marijuana roaches, and a grinder.
{¶14} Appellant was never placed under arrest or issued a citation. Due to time
constraints, the report was forwarded to the solicitor’s office for charges.
{¶15} Appellant argues that Deputy Sterrick’s interaction with her was an
investigative detention because a reasonable person under the same surrounding
circumstances would not have believed she was free to leave. Appellant contends the
detention was illegal because Deputy Sterrick’s suspicion that appellant was in
possession of drugs was not based on specific, articulable facts. Appellant maintains the
detention and search of her purse violated her constitutional right to be free from
unreasonable searches and seizures, and any evidence obtained after her illegal
detention must be suppressed.
{¶16} “‘While the Fourth Amendment of the U.S. Constitution does not explicitly
state that the violation of its provisions against unlawful search and seizure will result in
suppression of the evidence obtained as a result of the violation, the U.S. Supreme Court
held that the exclusion of evidence is an essential part of the Fourth Amendment.’” State
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v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068, 2015-Ohio-958, ¶17, quoting State v.
Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶29, citing Weeks v.
United States, 232 U.S. 383, 394 (1914) (overruled) and Mapp v. Ohio, 367 U.S. 643,
649 (1961). “‘The primary purpose of the exclusionary rule is to remove incentive from
the police to violate the Fourth Amendment.’” Id., quoting Casey, supra, at ¶29.
{¶17} The Fourth Amendment to the United States Constitution guarantees that
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” The
language of Article I, Section 14 of the Ohio Constitution is nearly identical, and it has
been interpreted by the Ohio Supreme Court as affording the same protection as the
Fourth Amendment. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, ¶11, citing
State v. Robinette, 80 Ohio St.3d 234, 238-239 (1997).
{¶18} Under the Fourth Amendment, searches and seizures conducted without a
warrant based on probable cause are unreasonable unless the search falls within an
exception to this requirement. Katz v. United States, 389 U.S. 347, 357 (1967). There
are three general categories in which encounters between police officers and citizens are
classified:
(1) a consensual encounter, which requires no objective justification,
[see Florida v. Bostick, 501 U.S. 429, 434 (1991)], (2) a brief
investigatory stop or detention, which must be supported by
reasonable suspicion of criminal activity, [see Terry v. Ohio, 392 U.S.
1, 30 (1968)], and (3) a full-scale arrest, which must be supported by
probable cause, [see Brown v. Illinois, 422 U.S. 590 (1975)].
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State v. Jones, 10th Dist. Franklin No. 09AP-1053, 2010-Ohio-2854, ¶13; see also State
v. Trevarthen, 11th Dist. Lake No. 2010-L-046, 2011-Ohio-1013, ¶12, citing Terry, supra,at 30 and State v. Long, 127 Ohio App.3d 328, 333 (4th Dist.1998).
{¶19} “The hallmark of a consensual encounter is that a reasonable citizen must
feel ‘free to decline the officers’ requests or otherwise terminate the encounter.’” State v.
Barth, 11th Dist. Lake No. 99-L-058, 2000 WL 714406, *2 (June 2, 2000), quoting Bostick,
supra, at 430. “‘A consensual encounter is not a seizure, therefore no Fourth Amendment
rights are invoked.’” Trevarthen, supra, at ¶14, quoting State v. Ball, 11th Dist. Trumbull
No. 2009-T-0013, 2010-Ohio-714, ¶14, citing Bostick, supra, at 434.
{¶20} “‘It is well-settled that “[a]n encounter may be consensual when a police
officer approaches and questions individuals in or near a parked car.”’” Id. at ¶13, quoting
Ball, supra, at ¶12, quoting State v. Staten, 4th Dist. Athens No. 03CA1, 2003-Ohio-4592,
¶18. Police may also request identification within the scope of a consensual encounter.
Id., citing State v. Kock, 11th Dist. Lake No. 2008-L-067, 2008-Ohio-5859, ¶17, citing
Bostick, supra, at 434.
{¶21} An investigatory stop constitutes a seizure for Fourth Amendment
purposes. Terry, supra, at 16. “An investigative stop does not violate the Fourth
Amendment to the United States Constitution if the police have reasonable suspicion that
‘the person stopped is, or is about to be, engaged in criminal activity.’” State v. Jordan,
104 Ohio St.3d 21, 2004-Ohio-6085, ¶35, quoting United States v. Cortez, 449 U.S. 411,
417 (1981). “[A]n objective and particularized suspicion that criminal activity was afoot
must be based on the entire picture—a totality of the surrounding circumstances.” State
v. Andrews, 57 Ohio St.3d 86, 87 (1991), citing Cortez, supra, at 417-418; State v. Bobo,
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37 Ohio St.3d 177 (1987); and United States v. Rickus, 737 F.2d 360, 365 (3d Cir.1984).
“[I]n determining whether the officer acted reasonably in such circumstances, due weight
must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the
specific reasonable inferences which he is entitled to draw from the facts in light of his
experience.” Terry, supra, at 27.
{¶22} “[A] consensual encounter may escalate into an investigatory detention and
seizure of a person that triggers Fourth Amendment scrutiny if, in view of all the
circumstances surrounding the incident, a reasonable person would not feel free to leave
or otherwise terminate the encounter.” Jones, supra, at ¶21, citing I.N.S. v. Delgado, 466
U.S. 210, 215 (1984). “Factors suggesting that a seizure has occurred include the
presence of multiple police officers, the displaying of a weapon by the police, the use of
language suggesting that compliance with police requests is compelled, and the physical
touching of the citizen.” Willowick v. Stephenson, 11th Dist. Lake Nos. 98-L-144, et seq.
1999 WL 535280, *2 (July 16, 1999), citing United States v. Mendenhall, 446 U.S. 544,
554 (1980). “If the seizure is unlawful, any evidence obtained after the unlawful seizure
must be suppressed as the ‘fruit of the poisonous tree.’” Jones, supra, at ¶21, quoting
Wong Sun v. United States, 371 U.S. 471 (1963); and citing Mapp, supra, at 654; State
v. Pierce, 125 Ohio App.3d 592, 597 (10th Dist.1998).
{¶23} Deputy Sterrick initially approached appellant after arresting Stanley and
asked to see appellant’s identification. However, after confirming appellant was not the
victim of a protection order against Stanley, Deputy Sterrick questioned appellant about
whether she was in possession of drugs. When appellant gave an answer that was not
acceptable to Deputy Sterrick, he told appellant that he planned to have his drug detection
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dog walk around the car. Deputy Sterrick testified he informed appellant that “if [the dog]
alerted to it and drugs were located on her person or within the vehicle, that I would charge
her with falsification in addition to the drugs I found.” This statement indicates appellant
was to remain in the vehicle while the drug detection dog walked around it. Under these
circumstances, a reasonable person would not feel free to leave or terminate the
encounter. Therefore, we determine Deputy Sterrick’s initial encounter with appellant
was a consensual encounter that evolved into an investigative detention.
{¶24} The totality of the circumstances did not provide Deputy Sterrick with a
reasonable suspicion of criminal activity afoot to justify the detention of appellant. Deputy
Sterrick testified he was suspicious that appellant was in possession of drugs because
she was associating with Stanley, who had been indicted on several “serious” crimes,
and because upon being questioned, appellant responded that she was “not aware of”
any drugs on her person or in the vehicle. Deputy Sterrick explained that in his years of
experience and training, “routinely, the people that are involved in especially serious
offenses of violence * * * are typically involved with drugs, and the people that are involved
with drugs typically associate with others involved in drugs[.]” He further explained: “[T]he
most common response in which I find illegal narcotics on a person is the response of,
not that I know of. It’s not a clear yes or no. It is a - - has an open-ended answer, and
that raised my suspicion.” Other than Deputy Sterrick’s assumptions and
“unparticularized suspicion,” we find nothing in the record that would lead to a reasonable,
articulable suspicion that appellant was in possession of drugs. Therefore, Deputy
Sterrick’s continued detention of appellant under threat of bringing in the drug detection
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dog was unlawful, and the evidence obtained after the unlawful detention must be
suppressed as “fruit of the poisonous tree.”
{¶25} Appellee argues that Deputy Sterrick “was not violating the Fourth
Amendment by advising Appellant that he would be conducting the sniff.”
{¶26} In the context of traffic stops, this court explained in Eggleston that “‘[t]he
initial lawfulness of a traffic stop will not support a “fishing expedition” for evidence of a
crime.’” Eggleston, supra, at ¶22, quoting State v. Elliott, 7th Dist. Mahoning No. 11 MA
182, 2012-Ohio-3350, ¶27. “‘Once the suspicion which gave rise to the initial stop
evaporated, any additional intrusion or detention had to have been supported by specific
and articulable facts demonstrating the reasonableness of the continued detention.’” Id.
at ¶23, quoting State v. Colby, 11th Dist. Portage No. 2002-P-0061, 2004-Ohio-343, ¶22;
see also Rodriguez v. United States, 135 S.Ct. 1609 (2015), at syllabus (“Absent
reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff
violates the Constitution’s shield against unreasonable seizures.”). “Once it is determined
that a delay occurred for the sole purpose of conducting a K–9 ‘sniff,’ the question is not
whether the delay was undue, but whether the delay was supported by a reasonable,
articulable suspicion of drug activity.” Id. at ¶28. In other words, as Rodriguez confirmed,
absent a reasonable, articulable suspicion of criminal activity, any delay invokes the
protections of the Fourth Amendment.
{¶27} The initial reason Deputy Sterrick approached appellant was to ascertain
her identity and to secure the premises. The totality of the circumstances did not provide
Deputy Sterrick with the reasonable, articulable suspicion necessary to extend the
encounter for a canine sniff. Compare State v. Valiente-Mendoza, 6th Dist. Wood No.
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WD-16-067, 2018-Ohio-3090, ¶36 (finding the totality of the circumstances provided the
officers with the reasonable suspicion necessary to extend the consensual encounter in
order to perform a canine sniff and an immigration inspection). Furthermore, in this case
the drug dog never conducted a sniff of the vehicle, and, therefore, appellee’s argument
as it pertains to the propriety of a sniff of the vehicle is not at issue. At oral argument,
counsel for appellee acknowledged there was a delay and that appellant would not have
reasonably assessed that she was free to leave. Appellee’s argument is not well taken.
{¶28} Appellee next argues that the search of appellant’s purse was not a violation
of her Fourth Amendment rights because she voluntarily consented to that search.
{¶29} “A consent to search obtained during an unlawful detention is invalid.” State
v. Lett, 11th Dist. Trumbull No. 2008-T-0116, 2009-Ohio-2796, ¶25, citing State v.
Retherford, 93 Ohio App.3d 586 (2d Dist.1994). “However, the Supreme Court of Ohio
has held that voluntary consent, determined under the totality of the circumstances, may
validate an otherwise illegal detention and search.” Id. at ¶26, citing Robinette, supra, at
241, citing Davis v. United States, 328 U.S. 582, 593-594 (1946). “‘Once an individual
has been unlawfully detained by law enforcement, for his or her consent to be considered
an independent act of free will, the totality of the circumstances must clearly demonstrate
that a reasonable person would believe that he or she had the freedom to refuse to
answer further questions and could in fact leave.’” Id. at ¶27, quoting Robinette, supra,
at paragraph three of the syllabus.
{¶30} Appellant handed Deputy Sterrick the marijuana cigar after he indicated he
was going to walk his drug dog around the vehicle. Deputy Sterrick testified that after
appellant handed him the cigar, he “had asked [appellant] to hand [him] her purse, which
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she did[.]” Deputy Sterrick’s testimony indicates he directed appellant to hand him her
purse rather than asking appellant whether he could search her purse. Taken with the
other surrounding circumstances as analyzed above, a reasonable person under the
totality of the circumstances would not have felt she could freely refuse the request or
refuse to answer further questions and leave. Accordingly, we conclude appellant’s
consent to search her purse did not validate the otherwise illegal detention and search.
{¶31} Appellant’s sole assignment of error has merit. Because the evidence was
obtained as the result of an illegal detention, appellant’s motion to suppress should have
been granted.
{¶32} The judgment of the Ashtabula Municipal Court is reversed, and this matter
is remanded for further proceedings.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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