[Cite as State v. Clark,
2016-Ohio-4614.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
STEPHEN K. CLARK : Case No. 15-COA-040
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 15-CRI-184
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 20, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL MATTHEW J. MALONE
EMILY M. BATES 10 East Main Street
110 College Street Ashland, OH 44805
Third Floor
Ashland, OH 44805
Ashland County, Case No. 15-COA-040 2
Farmer, P.J.
{¶1} On December 12, 2014, the Ashland County Grand Jury indicted appellant,
Stephen Clark, on one count of having weapons under disability in violation of R.C.
2923.13, one count of aggravated possession of drugs in violation of R.C. 2925.11, one
count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16, one
count of trafficking in marijuana in violation of R.C. 2925.03, one count of possession of
marijuana in violation of R.C. 2925.11, and one count of illegal use or possession of
marijuana drug paraphernalia in violation of R.C. 2925.141. Said charges arose from a
traffic stop on December 7, 2014 and the subsequent search of appellant's glove box.
{¶2} On March 23, 2015, appellant filed a motion to suppress, claiming an illegal
search. A hearing was held on May 18, 2015. By judgment entry filed July 27, 2015, the
trial court denied the motion, finding appellant voluntarily consented to the search of the
glove box.
{¶3} A bench trial commenced on October 2, 2015. The trial court found
appellant guilty as charged except for the paraphernalia charge. By judgment entry filed
November 12, 2015, the trial court sentenced appellant to an aggregate term of eighteen
months in prison. A nunc pro tunc judgment entry was filed on February 12, 2015 to
include jail time credit.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
Ashland County, Case No. 15-COA-040 3
{¶5} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS."
I
{¶6} Appellant claims the trial court erred in denying his motion to suppress as
the findings of probable cause to search his glove box was not supported by the evidence.
We agree.
{¶7} 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 said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein,
73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue 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 trial court for committing an error of law. State v. Williams,
86 Ohio
App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not
against the manifest weight of the evidence and it has properly identified the law to be
applied, an appellant may argue 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,
95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor,
85 Ohio App.3d 623 (4th Dist.1993);
Guysinger. As the United States Supreme Court held in Ornelas v. U.S.,
517 U.S. 690,
Ashland County, Case No. 15-COA-040 4
116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable
suspicion and probable cause should be reviewed de novo on appeal."
{¶8} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior even
though there is no probable cause to make an arrest." However, for the propriety of a
brief investigatory stop pursuant to Terry, the police officer involved "must be able to point
to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion."
Id. at 21. Such an investigatory stop "must be
viewed in the light of the totality of the surrounding circumstances" presented to the police
officer. State v. Freeman,
64 Ohio St.2d 291 (1980), paragraph one of the syllabus.
{¶9} As explained by the United States Supreme Court in Texas v. Brown, 460
U.S. 730, 742,
103 S.Ct. 1535 (1983):
As the Court frequently has remarked, probable cause is a flexible,
common-sense standard. It merely requires that the facts available to the
officer would "warrant a man of reasonable caution in the belief," Carroll v.
United States, 267 U.S. 132, 162,
45 S.Ct. 280, 288,
69 L.Ed. 543 (1925),
that certain items may be contraband or stolen property or useful as
evidence of a crime; it does not demand any showing that such a belief be
correct or more likely true than false. A "practical, nontechnical" probability
that incriminating evidence is involved is all that is required. Brinegar v.
Ashland County, Case No. 15-COA-040 5
United States, 338 U.S. 160, 176,
69 S.Ct. 1302, 1311,
93 L.Ed. 1879
(1949).
{¶10} In Carroll v. United States, 267 U.S. 132, 153,
45 S.Ct. 280 (1925), the
United States Supreme Court explained the following:
We have made a somewhat extended reference to these statutes to
show that the guaranty of freedom from unreasonable searches and
seizures by the Fourth Amendment has been construed, practically since
the beginning of the government, as recognizing a necessary difference
between a search of a store, dwelling house, or other structure in respect
of which a proper official warrant readily may be obtained and a search of
a ship, motor boat, wagon, or automobile for contraband goods, where it is
not practicable to secure a warrant, because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought.
{¶11} "If a car is readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment thus permits police to search the vehicle without
more." Pennsylvania v. Labron, 518 U.S. 938, 940,
116 S.Ct. 2485 (1996).
{¶12} In the case sub judice, a suppression hearing was held on May 18, 2015.
The sole testimony was offered by the arresting officer, Ohio State Highway Patrol
Trooper Brad Bishop. Trooper Bishop stated he stopped appellant for speeding. May
18, 2015 T. at 5, 12. Trooper Bishop asked appellant for his license, registration, and
Ashland County, Case No. 15-COA-040 6
insurance for the vehicle. Id. at 6. Appellant produced an Indiana driver's license, but did
not have any paperwork for the vehicle as it was a rental. Id. Because the vehicle did
not contain barcodes on the window typical of rentals and had a dealer bracket around
the license plate, Trooper Bishop became concerned that the vehicle could have been
stolen. Id. at 6-7.
{¶13} A "registration check showed that the license plate showed it was returning
to the correct vehicle, however, no other information was listed back with the registration
in the computer file." Id. at 7. Trooper Bishop looked through the vehicle with his flashlight
and did not find any paperwork. Id. at 8. He asked appellant if the paperwork could be
in the trunk whereupon appellant voluntarily opened the trunk and the two searched for
the registration and rental agreement paperwork, but found nothing. Id. at 8, 15.
{¶14} Trooper Bishop then walked around to the driver's side of the vehicle as
well as the passenger's side and looked inside the vehicle with his flashlight, on the floor
and in between the seats, finding no paperwork. Id. at 9, 16-17. Trooper Bishop had not
asked appellant for permission to search inside the vehicle. Id. at 16-17. He attempted
to open the glove box, but it was locked. Id. at 17. He approached appellant with his
hand outstretched and asked him if he had the keys to the vehicle. Id. at 17-18. Appellant
handed him the keys. Id. at 10, 17-18. Trooper Bishop did not specifically ask for the
keys, ask for permission to search the glove box, or ask appellant to open the glove box.
Id. at 18. As Trooper Bishop started to open the glove box, appellant informed him of a
firearm therein. Id. at 10, 18. Trooper Bishop opened the glove box and found a firearm
with a round in the chamber and the registration and rental agreement paperwork. Id.
Ashland County, Case No. 15-COA-040 7
{¶15} In its July 27, 2015 judgment entry denying the motion to suppress, the trial
court found appellant voluntarily opened the trunk and voluntarily handed the keys to
Trooper Bishop. The trial court concluded appellant's "consent to search the glove
compartment was voluntary when he handed the keys over."
{¶16} There is no dispute Trooper Bishop had probable cause to stop the vehicle.
The issue is the subsequent search for the registration and rental agreement paperwork.
The narrow question is whether the facts and circumstances sub judice (Trooper Bishop
approaching appellant with his hand outstretched and asking if he had the keys) support
a finding of a voluntary consent to search.
{¶17} Appellee argues appellant consented to the search of the glove box
because appellant was not in custody, jointly participated in the search of the trunk, and
handed the keys to Trooper Bishop to open the glove box
{¶18} In State v. Camp, 5th Dist. Richland No. 14CA42, 2014-Ohio-329, ¶ 23-24,
this court stated the following:
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
Ashland County, Case No. 15-COA-040 8
v. Bustamonte, 412 U.S. 218, 235,
93 S.Ct. 2041,
36 L.Ed.2d 854 (1983),
(quoting Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019,
82 L.Ed.
1464 (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, ¶
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 United States v. Davis,
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).
In State v. Robinette, 80 Ohio St.3d 234, 241,
685 N.E.2d 762
(1997), the Supreme Court noted,
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,
Ashland County, Case No. 15-COA-040 9
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.
80 Ohio St.3d at 242-243,
685 N.E.2d at 769. The burden of proving that
the suspect voluntarily consented to the search rests upon the prosecution.
Schneckloth, supra; Danby, supra; Bumper v. North Carolina,
391 U.S. 543,
88 S.Ct. 1788,
20 L.Ed.2d 797 (1968); State v. Hassey,
9 Ohio App.3d 231,
459 N.E.2d 573 (10th Dist.1983); State v. Pi Kappa Alpha Fraternity,
23
Ohio St.3d 141,
491 N.E.2d 1129 (1986). The state's burden is not satisfied
by showing a mere submission to a claim of lawful authority. Robinette, 80
Ohio St.3d at 243,
685 N.E.2d at 770.
{¶19} We note the joint search of the trunk was done with appellant opening the
trunk and Trooper Bishop looking over appellant's shoulder as appellant looked in the
trunk. May 18, 2015 T. at 8, 15. Trooper Bishop reached in and looked inside a brown
paper bag to see if it contained the registration and rental agreement paperwork. Id. at
15. We discount this search as a circumstance that leads to appellant's voluntary consent
to open the glove box. Trooper Bishop then proceeded to conduct his own search of the
Ashland County, Case No. 15-COA-040 10
inside of the vehicle. Id. at 9, 16-17. Appellant neither participated nor consented to this
independent search. Again, this search as a layer of appellant's consent to search can
be disregarded.
{¶20} The only area left unsearched was the locked glove box. Although Trooper
Bishop had concerns about whether the vehicle had been stolen versus rented, that
suspicion did not rise to the level of probable cause. By approaching appellant with an
outstretched hand and asking for the keys, Trooper Bishop did so under the color and
authority of his badge and uniform. In looking at the totality of the circumstances, we find
the mere relinquishment of the keys by appellant to be insufficient to establish voluntary
consent.
{¶21} Upon review, we find the trial court erred in denying the motion to suppress.
{¶22} The sole assignment of error is granted.
Ashland County, Case No. 15-COA-040 11
{¶23} The judgment of the Court of Common Pleas of Ashland County, Ohio is
hereby reversed, and the matter is remanded to said court for further proceedings
consistent with this opinion.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.
SGF/sg 520
Ashland County, Case No. 15-COA-040 12
Hoffman, J., dissenting
{¶24} I respectfully dissent from the majority opinion.
{¶25} I would affirm the trial court’s decision to overrule Appellant’s motion to
suppress based upon the automobile exception to the Fourth Amendment. I find Trooper
Bishop had probable cause to search Appellant’s vehicle once Appellant told the trooper
he had a firearm in the glove box. Because this occurred prior to the trooper’s search, I
find any analysis of whether Appellant consented to the search unnecessary.
________________________________
HON. WILLIAM B. HOFFMAN
