[Cite as State v. Stephenson,
2024-Ohio-624.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, : Case No. 23CA1165
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
TRACY STEPHENSON, :
Defendant-Appellant. : RELEASED 2/13/2024
______________________________________________________________________
APPEARANCES:
Connor P. Reilly, Cincinnati, Ohio, for appellant.
Aaron E. Haslam, Adams County Prosecutor, West Union, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} Tracy Stephenson appeals his conviction following a jury trial on two counts
of possession of fentanyl, one count of possession of heroin, and one count of aggravated
drug possession. The charges stem from an investigative stop of Stephenson’s vehicle.
During the stop a detective searched his vehicle and discovered fentanyl and heroin.
Stephenson contends that the trial court erred when it denied his motion to suppress
because the detective did not have reasonable suspicion to initiate the stop and lacked
probable cause to search the vehicle.
{¶2} We find that the detective did have reasonable suspicion to make an
investigative stop of Stephenson’s vehicle based on the information provided by an
informant. However, the detective lacked probable cause to search the vehicle and the
purported “consent” that Stephenson provided came only after the detective told him that
Adams App. No. 23CA1165 2
he had probable cause to search the vehicle and was going to search it. Stephenson
did not “consent” but rather acquiesced to a false claim of lawful authority. There is no
consent under such circumstances. We sustain Stephenson’s sole assignment of error
and reverse the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶3} The Adams County grand jury indicted Stephenson on two counts of
possession of fentanyl in violation of R.C. 2925.11(A), one a second-degree felony and
one a fourth-degree felony; one count of possession of heroin in violation of R.C.
2925.11(A), a fourth-degree felony; and one count of aggravated drug possession in
violation of R.C. 2925.11(A), a fifth-degree felony. He pleaded not guilty to the charges
and moved to suppress all evidence obtained from the investigative stop. Stephenson
argued that the state did not have reasonable suspicion to stop his vehicle and did not
have probable cause to search it. The state did not file a written response to the motion
to suppress. The trial court conducted a hearing on the motion.
{¶4} Detective Brian Newland of the Adams County Sheriff’s Office testified that
he oversees drug and narcotic-related criminal investigations. Detective Newland testified
that when he stopped Stephenson, Newland was dressed in plain clothes with a tactical
bullet-proof vest that had a chest and back panel with the sheriff’s office logo on it, was
wearing his gun in his holster, and was driving an unmarked white minivan. Detective
Newland was parked at a Peebles gas station parking lot because he had received
information from a known informant that Stephenson would park his blue Chevy pickup
truck at that gas station and travel to Cincinnati in a grey Jeep to purchase narcotics for
resale in Adams County. Detective Newland testified that he had a prior suspicion before
Adams App. No. 23CA1165 3
receiving this particular tip that Stephenson was involved in drug trafficking. Detective
Newland had information that Stephenson would park his red semitruck with a
“Stephenson Trucking” logo in the Peebles gas station parking lot, use his personal blue
Chevy truck to travel to and from the red semitruck, and then travel to Cincinnati, Dayton,
and sometimes Portsmouth to pick up narcotics that he would store inside the semitruck.
Detective Newland believed that Stephenson would either sell the narcotics out of his
semitruck or his personal residence.
{¶5} Detective Newland testified that on this occasion the informant told him that
Stephenson would be travelling to Cincinnati to obtain the narcotics. The informant had
worked with Detective Newland before and had always given him reliable information.
There was never any occasion when the information the informant had given was not
reliable. The informant had told Detective Newland that Stephenson would have both his
red semitruck and his blue Chevy pickup truck in the gas station parking lot. When
Detective Newland arrived at the parking lot, he saw a blue Chevy pickup, ran the plates,
and determined that it belonged to Stephenson. Detective Newland had been waiting in
the parking lot approximately 30 minutes when he saw a grey Jeep enter the parking lot
and travel to the blue Chevy pickup. Detective Newland recognized the driver of the Jeep
as Sierra Penrod, a woman that Detective Newland knew and had previous contact with
in other narcotic investigations. The informant had previously told Detective Newland that
Sierra Penrod would be driving the grey Jeep. Stephenson was in the passenger seat of
the Jeep. Although Detective Newland had never met or spoken to Stephenson before,
he had seen multiple photographs of him.
Adams App. No. 23CA1165 4
{¶6} Detective Newland testified that although he had confirmed some of the
informant’s tips, such as the fact that the blue pickup truck was Stephenson’s and that
Stephenson arrived in a grey Jeep driven by Penrod, neither Detective Newland nor any
other law enforcement officer followed the Jeep to Cincinnati or witnessed Stephenson
engage in any illegal drug activity.
{¶7} The Jeep pulled up briefly to the blue Chevy pickup truck and then left the
scene. Then, the blue Chevy pickup truck began to back out of the parking lot and
continued towards the red semitruck that was also parked in the parking lot. Detective
Newland had observed the semitruck in the parking lot and had previously identified it as
belonging to Stephenson with a Stephenson Trucking logo on the doors. After Detective
Newland observed Stephenson drive the blue pickup truck over to the semitruck, he drove
over to it. Detective Newland pulled up and parked behind Stephenson’s pickup truck,
blocking it so that Stephenson could not leave. The blue pickup truck was running when
Detective Newland approached it from the driver’s side door. He knocked on the window
and asked Stephenson to turn off the truck, step out, and speak with him. Detective
Newland did not see Stephenson transfer any drugs into the blue pickup truck or do
anything illegal at any point prior to asking Stephenson to get out of his truck.
{¶8} Detective Newland told Stephenson he knew that he had driven to
Cincinnati to obtain narcotics, though he later admitted that this was a “bluff” and nobody
had followed Stephenson to Cincinnati. Detective Newland told Stephenson, “he wasn’t
under arrest, but he just was not free to leave at that time,” he gave Stephenson his
Miranda rights, and continued to question him. Detective Newland was joined by a second
uniformed officer in a marked patrol car from the Peebles Police Department. Stephenson
Adams App. No. 23CA1165 5
was standing outside the vehicle, next to the driver’s side door. Detective Newland
testified that Stephenson initially denied involvement in any illegal drug activity, but then
he told Detective Newland that he did have a small amount of narcotics in his pocket.
After Stephenson retrieved that, Detective Newland continued talking with him and told
him that he knew that was not all the narcotics Stephenson had. Stephenson then walked
around to the passenger side of the vehicle, with Newland following him, and reached in
and began unlocking the safe. Detective Newland asked Stephenson if Newland could
unlock the safe because he was concerned there may be guns in the safe or in the
vehicle. Stephenson stepped aside to allow Detective Newland to open the safe.
{¶9} Detective Newland testified that at no time did Stephenson tell Detective
Newland not to look inside his truck, nor did he indicate at any point that he wanted to
speak to an attorney. However, Detective Newland also testified that when he asked
Stephenson if he could search his truck, Stephenson told him no. After Stephenson told
him no, Detective Newland told him he was going to search the truck anyway.
{¶10} After Detective Newland testified, the state played the video of the body
camera from the incident. In the video, Detective Newland tells Stephenson he is not free
to leave and gives him a Miranda warning. During the initial questioning, Stephenson
repeatedly denied having any drugs or weapons. Detective Newland then asks
Stephenson if he has anything he shouldn’t have and asks, “So there be no problem with
us searching of not finding anything?” Stephenson responds, “I would prefer you not to
search [inaudible].” Detective Newland then tells Stephenson he has enough probable
cause to search the vehicle and he is going to search it:
Well, I’m, this is what’s going to happen, okay? I have enough reason,
suspicion to search your vehicle. So, I’m gonna search it. Okay? If I find
Adams App. No. 23CA1165 6
anything, you know, you’re gonna have to answer to it. You know, I already
know what’s up. You know, I’m giving you the opportunity to be upfront.
Now, we aren’t, we aren’t just here for no reason. You know what I mean?
{¶11} And Stephenson asked, “Well, what if, uh, what if I am upfront?” Detective
Newland stated, “You know, then you’re upfront. And I appreciate the honesty.”
Stephenson asks, “Do I get to go home?” Detective Newland tells Stephenson he will go
home and not be going to jail:
Yeah. I, I didn’t plan to take you to jail either way, but you are going, I mean,
you are going to be charged, you know what I mean? Just because you
don’t go to jail today doesn’t mean you’re not gonna be charged.
Stephenson asked, “So, if I just go ahead and?” Detective Newland interrupts and tells
him, “The thing is, I, I already know what you got and I, I probably can find it, you know,
within 10, 20 seconds. You know, I’ll be up front and honestly, we’ve been watching for a
while. So we know what’s up with the semi trips and everything else.” Stephenson
informed the officer that he drives a semitruck for his employment and denied any drug
trafficking activities using his semitruck. Detective Newland then asked, “Listen, do you
got less than an ounce?” Stephenson nods affirmatively and states, “Oh yeah.” Detective
Newland asks, “Do you wanna go ahead and get it?” Contrary to Detective Newland’s
testimony, Stephenson did not take anything from his pocket and give it to Newland.
Rather, Stephenson turned around, opened up the door, reached inside the vehicle,
removed a bottle, and handed it to Detective Newland. Detective Newland inspected the
bottle and stated, “Listen, I know you didn’t go to the city just for this.” Stephenson then
walks around to the passenger side of his pickup truck, opens the door, and begins to
open a locked safe. Detective Newland interrupts him and tells him, “Hey, can you pull
that out here? I just don’t want you grabbing a gun or something?” Stephenson steps
Adams App. No. 23CA1165 7
away from the safe to give Detective Newland room to open the safe. The contents of the
safe include several bags of what is later identified as fentanyl and heroin.
{¶12} The trial court denied the motion to suppress, finding it “not well taken.” No
further analysis was given in the judgment entry. However, the trial court stated its
reasoning on the record at the conclusion of the hearing. The trial court found that the
detective had probable cause for the investigative stop based upon the information given
by the informant. The trial court also found that Stephenson engaged in a type of
“bartering” where he wanted to be able to go home and wanted to know if he voluntarily
cooperated that he would be able to go home. The trial court found that Stephenson had
initially refused to allow a search of his vehicle but then decided to voluntarily cooperate
and open the safe inside his vehicle to disclose the drugs. The trial court stated that had
there been a search of Mr. Stephenson’s vehicle without his consent, “there would be
some pretty strong suppressible issues.” However, the trial court found that the search
was voluntary and consensual. “The, uh, so the court does find there was probable cause
for the investigatory stop, uh, that then the search was determined, uh, and eventually
turned into a consensual search.”
{¶13} The matter proceeded to a jury trial, which found Stephenson guilty on all
counts. The trial court sentenced him to a total prison term of seven to ten years.
II. ASSIGNMENT OF ERROR
{¶14} Stephenson presents the following assignment of error:
The trial court erred when it denied Mr. Stephenson’s Motion to
Suppress.
Adams App. No. 23CA1165 8
III. LEGAL ANALYSIS
A. Standard of Review
{¶15} In general, “appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165,
2014-Ohio-1574,
10
N.E.3d 691, ¶ 7, citing State v. Burnside,
100 Ohio St.3d 152,
2003-Ohio-5372,
797
N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained:
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.
(Citations omitted.) Burnside at ¶ 8.
{¶16} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State
v. Emerson, 134 Ohio St.3d 191,
2012-Ohio-5047,
981 N.E.2d 787, ¶ 15. The Supreme
Court of Ohio has held that these provisions provide the same protection in felony cases.
State v. Hawkins,
158 Ohio St.3d 94,
2019-Ohio-4210,
140 N.E.3d 577, ¶ 18. “This
constitutional guarantee is protected by the exclusionary rule, which mandates the
exclusion at trial of evidence obtained from an unreasonable search and seizure.” State
v. Petty, 4th Dist. Washington Nos. 18CA26 & 18CA27,
2019-Ohio-4241, ¶ 11.
{¶17} “ ‘[S]earches [and seizures] 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.’ ” (Footnotes omitted and alterations sic.) State v. Conley, 4th Dist. Adams
Adams App. No. 23CA1165 9
No. 19CA1091, 2019-Ohio-4172, ¶ 17, quoting Katz v. United States,
389 U.S. 347, 357,
88 S.Ct. 507,
19 L.Ed.2d 576 (1967). “Once a defendant demonstrates that he or she
was subjected to a warrantless search or seizure, the burden shifts to the state to
establish that the warrantless search or seizure was constitutionally permissible.” State
v. Dorsey, 4th Dist. Scioto No. 19CA3874,
2019-Ohio-3478, ¶ 13.
B. The Investigative Stop
{¶18} Stephenson contends that the trial court erred when it denied his motion to
suppress because the detective lacked reasonable suspicion to initiate the stop. He
argues that the detective stopped him, made him exit the truck, told him not to leave, and
gave him his Miranda rights all based on information the detective received from a known
informant. The informant told the detective that Stephenson would park his blue Chevy
pickup truck in the gas station parking lot in Peebles and would be travelling to Cincinnati
in a grey Jeep to purchase narcotics for resale in Adams County. However, Stephenson
argues that the evidence at the suppression hearing was “totally inadequate to
demonstrate the credibility, reliability and veracity of the confidential informant.”
{¶19} An investigative stop constitutes a seizure that implicates the Fourth
Amendment. State v. Koueviakoe, 4th Dist. Gallia No. 04CA11, 2005-Ohio-852, ¶ 17. A
seizure occurs when the police officer “restrains a person’s liberty, either by physical force
or by show of authority, such that a reasonable person would not feel free to decline the
officer’s request and walk away.”
Id. “When a seizure occurs, the officer must have a
reasonable suspicion, based upon specific and articulable facts, that criminal behavior
has occurred or is imminent. Id. at ¶ 18, citing Terry v. Ohio,
392 U.S. 1, 21,
88 S.Ct.
1868,
20 L.Ed.2d 889 (1968). A confidential informant's tip may provide officers with the
Adams App. No. 23CA1165 10
reasonable suspicion necessary to conduct an investigative stop. State v. Abernathy, 4th
Dist. Scioto No. 07CA3160,
2008-Ohio-2949, ¶ 26.
{¶20} When an officer bases reasonable suspicion on an informant's tip, we
consider several factors to be “highly relevant” to determine the value of that tip, including
“the informant's veracity, reliability and basis of knowledge.” Maumee v. Weisner, 87 Ohio
St.3d 295, 299,
720 N.E.2d 507 (1999), citing Alabama v. White,
496 U.S. 325, 328,
110
S.Ct. 2412,
110 L.Ed.2d 301 (1990).
To assess the existence of these factors, it is useful to categorize informants
based upon their typical characteristics. Although the distinctions between
these categories are somewhat blurred, courts have generally identified
three classes of informants: the anonymous informant, the known informant
(someone from the criminal world who has provided previous reliable tips),
and the identified citizen informant. While the United States Supreme Court
discourages conclusory analysis based solely upon these categories,
insisting instead upon a totality of the circumstances review, it has
acknowledged their relevance to an informant's reliability. The court has
observed, for example, that an anonymous informant is comparatively
unreliable and his tip, therefore, will generally require independent police
corroboration. The court has further suggested that an identified citizen
informant may be highly reliable and, therefore, a strong showing as to the
other indicia of reliability may be unnecessary: “[I]f an unquestionably
honest citizen comes forward with a report of criminal activity-which if
fabricated would subject him to criminal liability-we have found rigorous
scrutiny of the basis of his knowledge unnecessary.” (Brackets sic.)
(Citations omitted.)
Weisner at 300.
{¶21} Here the detective testified that he had worked with this informant before
and had received previous tips, which had always been reliable. The informant had never
been unreliable. Additionally, the detective checked some of the informant’s information
and determined it was accurate. When the detective arrived at the gas station, a blue
pickup truck was parked there and the detective’s check on the license plate verified that
it belonged to Tracy Stephenson. When Stephenson pulled into the gas station, he was
Adams App. No. 23CA1165 11
a passenger in a grey Jeep. A woman named Sierra Penrod was driving the grey Jeep
and the detective had previous contact with her in other narcotics investigations and was
told she would be driving the grey Jeep. The detective had previously received
information about Stephenson’s involvement in narcotics for the past three to four months.
We find that under the totality of the circumstances the known informant’s tip exhibited
sufficient indicia of reliability to justify the initial investigatory stop of Stephenson’s pickup
truck.
C. The Search of the Pickup Truck
{¶22} After the detective stopped Stephenson, ordered him out of his pickup truck,
read him his Miranda rights, and told him he was not free to leave, Stephenson spoke
with the detective and denied any involvement in drug trafficking. The detective then
proposed a search of Stephenson’s pickup truck, “So, there be no problem with us
searching of not finding anything.” Stephenson declined to allow a search, “I would prefer
you not search.”
{¶23} At this point in the investigative stop the detective had no further cause to
detain Stephenson. The detective had questioned Stephenson and he denied any illegal
drug involvement or possession. The detective did not see Stephenson transport drugs
or any suspicious packages from the Jeep to the pickup truck, did not see any illegal
drugs in plain view as Stephenson exited the truck, and did not smell any odor of illegal
drugs coming from Stephenson or his truck. State v. Moore, 90 Ohio St.3d 47, 48,
734
N.E.2d 804, 805 (2000) (the smell of marijuana by a person qualified to recognize the
odor is sufficient to establish probable cause to search a motor vehicle); State v. Claytor,
85 Ohio App.3d 623, 630,
620 N.E.2d 906, 910 (4th Dist.1993) (police can seize illegal
Adams App. No. 23CA1165 12
drugs in vehicle under the plain view doctrine without a warrant). The detective did not
call a canine drug detection unit while he waited for Stephenson to arrive, so there was
no canine alert on the vehicle. Koueviakoe,
2005-Ohio-852, ¶ 27 (confidential informant
gave officer reasonable suspicion for the investigatory stop and drug-sniffing dog’s alert
gave the officer probable cause to search the vehicle).
{¶24} Although this started out as a valid investigative stop and Stephenson was
not free to leave, an investigative stop can only last as long as it takes a police officer to
confirm or dispel his suspicions.
The investigative detention is limited in duration and purpose and can only
last as long as it takes a police officer to confirm or dispel his suspicions.
“The lawfulness of the initial stop will not support a ‘fishing expedition’ for
evidence of crime.”
We determine reasonable suspicion by considering the totality of the
circumstances. In doing so, we evaluate those circumstances “through the
eyes of the reasonable and prudent police officer on the scene who must
react to events as they unfold.”
State v. Flickinger, 4th Dist. Athens No. 06CA44, 2007-Ohio-3233, ¶ 11-12. The detective
testified several times that at no point did he observe Stephenson do anything illegal.
Stephenson admitted to no illegal activity, the detective did not see or smell any illegal
drugs, and no canine unit alerted on the vehicle. Additionally, the detective was not able
to obtain Stephenson’s consent to search the vehicle.
{¶25} However, instead of telling Stephenson he was free to go, the detective
continued to detain him and told Stephenson he was going to conduct a search of the
pickup truck because he had “enough reason, suspicion to search your vehicle. So, I’m
gonna search it.” The detective stated that “this is what’s going to happen,” he “already
knows what’s up,” “we aren’t just here for no reason” and he was going to charge
Adams App. No. 23CA1165 13
Stephenson with a crime, “you are going to be charged, you know what I mean?” He also
told Stephenson, “I already know what you got and I, I probably can find it, you know,
within 10, 20 seconds.”
{¶26} After the detective told Stephenson he would be searching Stephenson’s
pickup truck and charging him with a crime, Stephenson acquiesced. Stephenson
acknowledged that he possessed a small quantity of narcotics, and when asked by the
detective to turn it over, Stephenson opened up his truck door, reached inside, and
handed over a bottle. Upon further insistence by the detective, Stephenson walked
around to the passenger side door, opened up the door, unlocked the safe, and stepped
aside to allow the detective to search the safe.
{¶27} Stephenson argues that he did not give a valid consent to search his
vehicle. He contends that the investigative stop should have ended after the detective
initially questioned Stephenson and he denied being involved in criminal drug activity.
After that, Stephenson should have been free to leave, but instead the detainment
continued and the detective told Stephenson he was going to search his truck.
{¶28} The state argues that the detective was conducting an investigatory stop
and had probable cause to believe the vehicle contained contraband. The state argues
that Stephenson provided probable cause to search his vehicle when he “admitted he
possessed a small amount of narcotics and retrieved it from his pocket before giving it to
Detective Newland.” However, the record does not support the state’s position.
Stephenson did not produce narcotics from his pocket and give it to the detective.
Stephenson retrieved the narcotics from his vehicle – not his pocket – and he did so only
Adams App. No. 23CA1165 14
after the detective told him that he was going to search Stephenson’s vehicle and then
asked Stephenson to retrieve the narcotics for him.
{¶29} Moreover, the state did not argue probable cause as the basis for the search
at the suppression hearing.1 The state did not argue that the detective had probable cause
to search the vehicle based on Stephenson’s production of the small quantity of narcotics
from his pocket – the video of the detective’s body camera shows that Stephenson
produced nothing from his pocket. Instead, the state argued that Stephenson consented
to the search, “In this case, Mr. Stephenson is freely consenting to giving up the key,
giving up the items in the safe. Although he indicated at the beginning that he would not,
he, I think his words were, I’d rather you not. Um, he did not stop the conversation, did
not, uh, indicate lack of consent after that. … that Mr. Stephenson then consented to
the searches, and he voluntary gave over the evidence as requested.” When the trial
court asked the state, “If Mr. Stephenson had held pat on, you’re not searching it, the
body cam suggests that … Newland said, I’m gonna search it anyway. And had, had
Mr. Stephenson held pat on his position and the search had gone over his objections? Is
your argument the same?” The state responded, “No, I think it had been a different set of
… facts …. Um, the alternative would be, and, and had there been a question asked,
uh, at the time, the advice given would be to get a search warrant. Um, so that may have
been a next step rather than just searching without consent.” The trial court stated that
1 The state did not file a response to the motion to suppress but preserved the arguments it made at the
hearing for purposes of the appeal. State v. Farrow, 2023-Ohio-682,
209 N.E.3d 830, fn. 1 (4th Dist.);
e.g., State v. Werder, 6th Dist. Fulton No. F-19-008,
2020-Ohio-2865, ¶ 37-39 (a state waives arguments it
neither raises in a written response to a motion to suppress nor presents at the suppression hearing).
Adams App. No. 23CA1165 15
had there been a search of Mr. Stephenson’s vehicle without his consent, “there would
be some pretty strong suppressible issues.”
{¶30} Here the detective did not have any reasonably articulable facts to justify
Stephenson’s further detention after he questioned him and Stephenson denied engaging
in any illegal drug activity and refused permission to search the pickup truck. However,
even though the detective’s continued detention of Stephenson was unlawful, that does
not end the analysis. “Voluntary consent, determined under the totality of the
circumstances, may validate an otherwise illegal detention and search.” State v.
Robinette, 80 Ohio St. 234, 241,
1997-Ohio-343,
685 N.E.2d 762, 769.
{¶31} Because the detective did not have probable cause to conduct a search,
the key question here is whether Stephenson gave consent to search his vehicle.
Consent is an exception to the warrant requirement that requires the state to “show by
‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.” State v.
Posey, 40 Ohio St.3d 420, 427,
534 N.E.2d 61 (1988). “ ‘[T]he State has the burden of
proving that the necessary consent was obtained and that it was freely and voluntarily
given, a burden that is not satisfied by showing a mere submission to a claim of lawful
authority.’ ” (Emphasis sic.) State v. Robinette,
80 Ohio St.3d 234, 243,
685 N.E.2d 762
(1997), quoting Florida v. Royer,
460 U.S. 491, 497,
103 S.Ct. 1319,
75 L.Ed.2d 229
(1983).
{¶32} “Clear and positive evidence” is the substantial equivalent of clear and
convincing evidence. State v. Debrossard, 4th Dist. Ross No. 13CA3395, 2015-Ohio-
1054, ¶ 39. The Supreme Court of Ohio has defined “clear and convincing evidence” as
follows:
Adams App. No. 23CA1165 16
The measure or degree of proof that will produce in the mind of the trier of
fact a firm belief or conviction as to the allegations sought to be established.
It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in
criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103–04,
495 N.E.2d 23 (1986). In reviewing
whether the lower court's decision was based upon clear and convincing evidence, “a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” State v. Debrossard,
4th Dist. Ross No. 13CA3395,
2015-Ohio-1054, ¶ 39.
{¶33} “Whether an individual voluntarily consented to a search is a question of
fact, not a question of law.” State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747,
¶ 21; Schneckloth v. Bustamonte,
412 U.S. 218, 227,
93 S.Ct. 2041,
36 L.Ed.2d 854
(1973). “Even though the state's burden of proof is ‘clear and convincing,’ this standard
of review is highly deferential and the presence of only ‘some competent, credible
evidence’ to support the trial court's finding requires us to affirm it.”
Id., citing State v.
Schiebel,
55 Ohio St.3d 71, 74,
564 N.E.2d 54 (1990); State v. Isaac,
2018-Ohio-5433,
127 N.E.3d 350, ¶ 33-34 (4th Dist.).
{¶34} The trial court found that Stephenson gave consent, “But in fact, Mr.
Stephenson, uh, eventually consented.” However, the “consent” Stephenson “eventually”
gave was only after the detective told him, “this is what’s going to happen … I have
enough reason, suspicion to search your vehicle. So I’m gonna search it.” The detective’s
false statement to Stephenson that he had a lawful basis to search Stephenson’s truck
and was going to search it is no different from a police officer’s announcement that the
officer has a warrant to search a home but, in fact, lacks a warrant. Bumper v. North
Adams App. No. 23CA1165 17
Carolina, 391 U.S. 543,
88 S.Ct. 1788,
20 L.Ed.2d 797 (1968). In Bumper, the police
knocked on a woman’s home and announced, “I have a search warrant to search your
house.” The woman responded, “Go ahead” and opened the door. However, at the
suppression hearing, the prosecutor stated that the state was not relying on a search
warrant to justify the search, but rather based it on the woman’s consent.
Id. at 546. The
Supreme Court of the United States held that there can be no “consent” given after an
official conducting the search asserts he has a search warrant.
When a law enforcement officer claims authority to search a home under a
warrant, he announces in effect that the occupant has no right to resist the
search. The situation is instinct with coercion—albeit colorably lawful
coercion. Where there is coercion there cannot be consent.
Bumper v. North Carolina, 391 U.S. 543, 550; State v. Trembly, 4th Dist. Washington No.
99CA03,
2000 WL 875948, *6 (Jun 30, 2000) (Abele, J., concurring) (“If a law
enforcement officer did falsely assert that he possessed a search warrant in order to
convince a suspect to consent to a search, the suspect's consent will be deemed to be
invalid” citing Bumper v. North
Carolina, supra).
{¶35} If under all the circumstances it appears that “the consent was not given
voluntarily—that it was coerced by threats or force, or granted only in submission to a
claim of lawful authority”—then the consent is invalid and the search is unreasonable.
Schneckloth v. Bustamonte, 412 U.S. 218, 233,
93 S.Ct. 2041, 2051,
36 L.Ed.2d 854
(1973). Such “lawful authority” is a law enforcement officer's express or implied false claim
that the officer can immediately proceed to make the search regardless of consent.
See State v. Sears, 2d Dist. Montgomery No. 20849, 2005–Ohio–3880, ¶ 37, citing
Bumper v. North
Carolina, supra; State v. Miller, 4th Dist. Ross No. 11CA3217, 2012-
Ohio-1901, ¶ 19.
Adams App. No. 23CA1165 18
{¶36} Courts consider six factors to determine whether consent to a search was
freely and voluntarily given: (1) whether the defendant's custodial status was voluntary;
(2) whether coercive police procedures were used; (3) the extent and level of the
defendant's cooperation; (4) the defendant's awareness of his or her right to refuse
consent; (5) the defendant's education and intelligence; (6) the defendant's belief that no
incriminating evidence would be found. State v. George, 2d Dist. Montgomery No. 25945,
2014-Ohio-4853, ¶ 28. For consent to be considered “an independent act of free will, the
totality of the circumstances must clearly demonstrate that a reasonable person would
believe he or she had the freedom to refuse … and could in fact leave.” State v.
Robinette,
80 Ohio St.3d 234,
685 N.E.2d 762 (1997), paragraph 3 of the syllabus.
{¶37} The state provided evidence on several but not all of the six factors. First,
the defendant’s custodial status was involuntary. Stephenson was not free to leave and
had been told that by the detective who had testified that he had also parked behind
Stephenson to block him in. Second, several coercive police procedures were used.
Although the detective first tried to obtain consent for the search, when Stephenson did
not give it, the detective falsely claimed he had lawful authority to search the vehicle and
would do so. The detective also told Stephenson, before the detective had any
reasonable basis to say so, that he was going to criminally charge Stephenson. Third, the
extent of Stephenson’s cooperation was minimal. Stephenson denied any illegal drug
activity and did not consent to a search of his vehicle. Stephenson’s cooperation came
only after the detective claimed he had lawful authority to conduct a search of his vehicle.
As for the defendant’s awareness of his or her right to refuse consent, the state did not
introduce any evidence of this factor. However, because the detective told Stephenson
Adams App. No. 23CA1165 19
his vehicle would be searched regardless of consent, we find this factor to be irrelevant
because we do not believe a reasonable person would believe that he or she had the
freedom to refuse to allow a search made under a claim of lawful authority. The state did
not present any evidence of the defendant’s education or intelligence. However, the
detective testified that Stephenson owned a trucking business. Therefore it seems
probable that he was educated and of average intelligence, if not greater. The state also
did not produce any evidence of Stephenson’s belief concerning whether incriminating
evidence would be found. However, based on the illegal drugs found, it would appear
likely that Stephenson believed incriminating evidence would be found and thus did not
initially consent to a search and would not have consented to one later but for the
detective’s claim of lawful authority.
{¶38} As in Bumper, supra, the state’s evidence shows that, based on the totality
of the circumstances, Stephenson’s consent was given only after the detective conducting
the search asserted lawful authority – the false claim that he can immediately proceed to
search the vehicle without consent. The state’s evidence shows “no more than
acquiescence to a claim of lawful authority.”
Bumper at 549. “Coercion is inherent in false
claims of authority.” State v. Trembly, 4th Dist. Washington No. 99CA03,
2000 WL
875948, *6 (Jun 30, 2000) (Abele, J., concurring).
{¶39} A similar situation arose in Seem, infra, where the defendant was coerced
into consenting to the “dump” of his phone after the detective asserted a claim of lawful
authority to seize the phone. State v. Seem, 2022-Ohio-3507,
196 N.E.3d 384, ¶ 20-21,
(6th Dist.) appeal not allowed,
168 Ohio St.3d 1531,
2023-Ohio-86,
200 N.E.3d 1169. The
detective did not have a warrant to seize the phone but told Seem he was going to take
Adams App. No. 23CA1165 20
it anyway and it would be quicker if Seem consented to a “dump” of the contents. The
appellate court found that Seem “merely acquiesced to [the detective]
Zender's claim of lawful authority when he chose the faster, ‘more convenient’ option for
getting his phone back. Because acquiescence to a claim of lawful authority is not
sufficient to constitute consent, the results of the eventual search of the phone must be
suppressed.” Id. at ¶ 25. “Seem acquiesced to the warrantless search of the phone
because he believed—based on Zender's representations—that Zender was authorized
to immediately seize it.” Id. at ¶ 22; see also State v. Samples, 11th Dist. Geauga No. 93-
G-1787,
1994 WL 315710, *1 (Jun 24, 1994) (after defendant adamantly refused to
consent to a search of his briefcase, the officer told him that he “was going to enter it into
evidence for safekeeping” and the defendant would not get it back until the officer found
out what was in it or was ordered to return it. The appellate court held that defendant’s
statement, “Oh what the hell, go ahead and open it” was the result of coercion, not
consent.).
{¶40} Like the defendants in Bumper, Seem, and Samples, Stephenson was told
that the law enforcement official had lawful authority to conduct a search. Under the
totality of the circumstances test, we find that the state failed to prove by “clear and
positive evidence” (i.e., clear and convincing evidence) that Stephenson’s consent was
anything other than the acquiescence to a claim of lawful authority. We find that there
lacked some competent, credible evidence to support the trial court's finding that
Stephenson’s consent was freely and voluntarily given. All the evidence of consent and
“bartering” occurred after the detective’s false claim of lawful authority. There was no
Adams App. No. 23CA1165 21
evidence of consent before that claim was made. As a result, the evidence collected in
that search is inadmissible.
Implicit in the Fourth Amendment's protection from unreasonable searches
and seizures is its recognition of individual freedom. That safeguard has
been declared to be “as of the very essence of constitutional liberty” the
guaranty of which “is as important and as imperative as are the guaranties
of the other fundamental rights of the individual citizen ….”
State v. Gardner, 135 Ohio St.3d 99,
2012-Ohio-5683,
984 N.E.2d 1025, ¶ 17, quoting
Ker v. California,
374 U.S. 23, 32–33,
83 S.Ct. 1623,
10 L.Ed.2d 726 (1963).
{¶41} The trial court erred in denying Stephenson’s motion to suppress. Although
the detective had reasonable suspicion to initiate the investigative stop based on the
credible, reliable, and knowledgeable informant's tip, the detective (1) did not have
reasonably articulable facts to further detain him after the initial questioning and
Stephenson’s initial refusal to consent to a search; (2) did not have probable cause to
search the vehicle; and (3) did not have Stephenson’s consent as a voluntary act of free
will. The detective’s claim of lawful authority was coercive; there cannot be consent. We
sustain Stephenson’s sole assignment of error.
IV. CONCLUSION
{¶42} Having sustained the assignment of error, we reverse the trial court’s
judgment, and this cause is remanded to the trial court for further proceedings consistent
with this opinion.
JUDGMENT REVERSED, CAUSE REMANDED.
Adams App. No. 23CA1165 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED, CAUSE REMANDED and that
appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed 60 days upon the bail previously posted.
The purpose of a continued stay is to allow appellant to file with the Supreme Court of
Ohio an application for a stay during the pendency of proceedings in that court. If a stay
is continued by this entry, it will terminate at the earlier of the expiration of the 60-day
period, or the failure of the appellant to file a notice of appeal with the Supreme Court of
Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
