[Cite as State v. Bishop, 2016-Ohio-7593.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : JASON M. BISHOP : Case No. 16-COA-014 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 15-CRB-1318
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 31, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW N. BUSH MATTHEW J. MALONE 1213 East Main Street 10 East Main Street Ashland, OH 44805 Ashland, OH 44805 Ashland County, Case No. 16-COA-014 2
Farmer, P.J.
{¶1} On December 17, 2015, appellant, Jason Bishop, was charged with one
count of possession of drug paraphernalia in violation of Ashland Codified Ordinance
513.12(C)(1). Said charge arose from appellant voluntarily handing over his marijuana
pipe to police officers.
{¶2} On March 31, 2016, appellant filed a motion to suppress, claiming he
handed the pipe over due to duress and coercion. A hearing was held on April 5, 2016.
By judgment entry filed May 2, 2016, the trial court denied the motion.
{¶3} On May 2, 2016, appellant pled no contest to the charge. By judgment
order filed May 4, 2016, the trial court found appellant guilty and sentenced him to thirty
days in jail.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS."
{¶6} Appellant claims the trial court erred in denying his motion to suppress as
his consent to turn over the marijuana pipe was not voluntary because the officers
coerced him to do so. We disagree.
{¶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 Ashland County, Case No. 16-COA-014 3
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, 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} As appellant states in his appellate brief at 5, the issue of whether consent
to search is freely given is a question of fact to be determined from the totality of the
circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The burden rests on
the state to establish consent was freely and voluntarily given and not mere submission
to authority. Bumper v. North Carolina, 391 U.S. 543 (1968); State v. Cottrill, Fairfield
No. 06-CA-64, 2007-Ohio-5293. Ashland County, Case No. 16-COA-014 4
{¶9} A hearing on the motion to suppress was held on April 5, 2016. Shown to
the trial court was the encounter between appellant and the police officers via a
videotape taken from the lapel camera of Ashland Police Officer Craig Kiley. T. at 8-9;
State's Exhibit 1. Officer Kiley testified and explained he was dispatched to appellant's
residence due to "allegations made regarding the safety" of appellant's minor child e.g.,
smoking marijuana around the child. T. at 6, 11.
{¶10} In its judgment entry filed May 2, 2016, the trial court found the following
from the videotape:
Officer Kiley, was greeted by Defendant at the door. He explained
to Defendant why the officers were there. By his own admission,
Defendant invited Officer Kiley in to his home. Defendant denied that he
used drugs around his daughter, but admitted that he was a user of
marijuana and that drug paraphernalia was present in the home. During
the entire conversation, Defendant and the Officer spoke in polite and
even friendly tones and terms. At no point, did the Officer ever put his
hands on Defendant, threaten Defendant, move menacingly, or even raise
his voice. No weapon was ever produced. No restraint on Defendant's
liberty was ever imposed. He roamed freely through his house during the
encounter.***Eventually, Officer Kiley asked him if he would voluntarily
turn over the drug paraphernalia. Defendant asked what would happen to
him if he did that, and he was informed that he might be charged with a
minor misdemeanor or a fourth degree misdemeanor. The Officer Ashland County, Case No. 16-COA-014 5
explained that he had a duty to perform and could not simply ignore the
presence of drug paraphernalia. He advised Defendant that he would go
seek a search warrant based on Defendant's admissions if he had to.
Defendant then led the officers to another room, where he produced the
drug paraphernalia and handed it to Officer Kiley. He was never arrested
or handcuffed. Later, Defendant was served with a citation and a
summons to appear in this Court.
{¶11} The trial court then outlined appellant's position as follows: "Defendant
believes the 'search' to be the product of duress because he was asked if he would turn
over his drugs and drug paraphernalia more than once, and because the Officer
indicated he would seek a warrant." The trial court then observed the following:
The Court would note that at no time during the entire encounter
did any officer direct Defendant to do anything. They answered his
questions honestly and politely asked him if he would surrender his drugs
and drug paraphernalia. The most "coercive" thing he was asked was
"are you going to give up your stuff or do I need to bother a Judge?" That
was followed by "the option is yours" and "it's your decision to make."
Defendant never appeared or sounded intimidated. In fact, he joked
around with the officers and seemed anxious to appear co-operative.
During his testimony, Defendant admitted the officers were "very
polite." He indicated he was never afraid for his safety, that he invited the Ashland County, Case No. 16-COA-014 6
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[Cite as State v. Bishop, 2016-Ohio-7593.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : JASON M. BISHOP : Case No. 16-COA-014 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 15-CRB-1318
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 31, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW N. BUSH MATTHEW J. MALONE 1213 East Main Street 10 East Main Street Ashland, OH 44805 Ashland, OH 44805 Ashland County, Case No. 16-COA-014 2
Farmer, P.J.
{¶1} On December 17, 2015, appellant, Jason Bishop, was charged with one
count of possession of drug paraphernalia in violation of Ashland Codified Ordinance
513.12(C)(1). Said charge arose from appellant voluntarily handing over his marijuana
pipe to police officers.
{¶2} On March 31, 2016, appellant filed a motion to suppress, claiming he
handed the pipe over due to duress and coercion. A hearing was held on April 5, 2016.
By judgment entry filed May 2, 2016, the trial court denied the motion.
{¶3} On May 2, 2016, appellant pled no contest to the charge. By judgment
order filed May 4, 2016, the trial court found appellant guilty and sentenced him to thirty
days in jail.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
SUPPRESS."
{¶6} Appellant claims the trial court erred in denying his motion to suppress as
his consent to turn over the marijuana pipe was not voluntary because the officers
coerced him to do so. We disagree.
{¶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 Ashland County, Case No. 16-COA-014 3
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, 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} As appellant states in his appellate brief at 5, the issue of whether consent
to search is freely given is a question of fact to be determined from the totality of the
circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The burden rests on
the state to establish consent was freely and voluntarily given and not mere submission
to authority. Bumper v. North Carolina, 391 U.S. 543 (1968); State v. Cottrill, Fairfield
No. 06-CA-64, 2007-Ohio-5293. Ashland County, Case No. 16-COA-014 4
{¶9} A hearing on the motion to suppress was held on April 5, 2016. Shown to
the trial court was the encounter between appellant and the police officers via a
videotape taken from the lapel camera of Ashland Police Officer Craig Kiley. T. at 8-9;
State's Exhibit 1. Officer Kiley testified and explained he was dispatched to appellant's
residence due to "allegations made regarding the safety" of appellant's minor child e.g.,
smoking marijuana around the child. T. at 6, 11.
{¶10} In its judgment entry filed May 2, 2016, the trial court found the following
from the videotape:
Officer Kiley, was greeted by Defendant at the door. He explained
to Defendant why the officers were there. By his own admission,
Defendant invited Officer Kiley in to his home. Defendant denied that he
used drugs around his daughter, but admitted that he was a user of
marijuana and that drug paraphernalia was present in the home. During
the entire conversation, Defendant and the Officer spoke in polite and
even friendly tones and terms. At no point, did the Officer ever put his
hands on Defendant, threaten Defendant, move menacingly, or even raise
his voice. No weapon was ever produced. No restraint on Defendant's
liberty was ever imposed. He roamed freely through his house during the
encounter.***Eventually, Officer Kiley asked him if he would voluntarily
turn over the drug paraphernalia. Defendant asked what would happen to
him if he did that, and he was informed that he might be charged with a
minor misdemeanor or a fourth degree misdemeanor. The Officer Ashland County, Case No. 16-COA-014 5
explained that he had a duty to perform and could not simply ignore the
presence of drug paraphernalia. He advised Defendant that he would go
seek a search warrant based on Defendant's admissions if he had to.
Defendant then led the officers to another room, where he produced the
drug paraphernalia and handed it to Officer Kiley. He was never arrested
or handcuffed. Later, Defendant was served with a citation and a
summons to appear in this Court.
{¶11} The trial court then outlined appellant's position as follows: "Defendant
believes the 'search' to be the product of duress because he was asked if he would turn
over his drugs and drug paraphernalia more than once, and because the Officer
indicated he would seek a warrant." The trial court then observed the following:
The Court would note that at no time during the entire encounter
did any officer direct Defendant to do anything. They answered his
questions honestly and politely asked him if he would surrender his drugs
and drug paraphernalia. The most "coercive" thing he was asked was
"are you going to give up your stuff or do I need to bother a Judge?" That
was followed by "the option is yours" and "it's your decision to make."
Defendant never appeared or sounded intimidated. In fact, he joked
around with the officers and seemed anxious to appear co-operative.
During his testimony, Defendant admitted the officers were "very
polite." He indicated he was never afraid for his safety, that he invited the Ashland County, Case No. 16-COA-014 6
officers in, and that he never asked them to leave. It was clear from
Defendant's testimony that he had ample time to decide if he would
voluntarily surrender his drug paraphernalia, and that he eventually
decided to do just that. Defendant went so far as to admit on the stand
that he knew full well he would likely be charged if he handed over the
drug paraphernalia, but decided to do so anyway.
{¶12} This court reviewed the videotape and concurs with the trial court that
appellant knowingly and freely relinquished the marijuana pipe to the officers. Appellant
was not placed into custody, and he was free to walk around his house and yard and
talk to his mother. T. at 9-10.
{¶13} Appellant testified and stated he refused to surrender the pipe three times
and Officer Kiley gave him two options: 1) give up the pipe voluntarily or 2) he would
obtain a warrant and search appellant's residence. T. at 25. Appellant gave up the pipe
once his daughter "was brought into the fact." Id. Appellant agreed the officers were
polite to him and his mother and children, and at no point was he afraid for his safety.
T. at 22-23. Appellant permitted the officers to enter his residence "to check the welfare
of my daughter." T. at 23. He never told the officers to leave. Id.
{¶14} Upon review, we find the trial court did not err in denying the motion to
suppress.
{¶15} The sole assignment of error is denied. Ashland County, Case No. 16-COA-014 7
{¶16} The judgment of the Municipal Court of Ashland County, Ohio is hereby
affirmed.
By Farmer, P.J.
Gwin, J. and
Delaney, J. concur.
SGF/sg 1014