[Cite as State v. Camp, 2015-Ohio-329.]
[Please see Vacated Opinion 2014-Ohio-4498]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO : : Plaintiff-Appellant : : : NUNC PRO TUNC -vs- : JUDGMENT ENTRY : SUE ELLEN CAMP : : Defendant-Appellee : CASE NO. 14CA42
This matter comes before the Court, sua sponte. Upon review, we find a
reference in the Memorandum-Opinion filed October 9, 2014 at ¶8; ¶4 and ¶31 were
scrivener’s errors. Accordingly, this Court corrects the October 9, 2014 Opinion.
Therefore, this nunc pro tunc judgment entry along with a nunc pro tunc opinion and
judgment entry shall be filed in this matter to correct the error.
IT IS SO ORDERED.
________________________________ HON. W. SCOTT GWIN
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. CRAIG R. BALDWIN COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. -vs- : : SUE ELLEN CAMP : Case No. 14CA42 : Defendant-Appellee : : NUNC PRO TUNC O P I N I O N
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2014CR105R
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 28, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JILL COCHRAN WILLIAM FITHIAN III Assistant Prosecuting Attorney 111 N. Main Street 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 [Cite as State v. Camp, 2015-Ohio-329.]
Gwin, P.J.
{¶1} Plaintiff-appellant the State of Ohio appeals the May 5, 2014 Judgment
Entry of the Richland County Court of Common Pleas granting defendant-appellee Sue
Ellen Camp’s motion to suppress.
Facts and Procedural History
{¶2} On February 10, 2014, Camp was indicted with one count of possession
of heroin, in violation of R.C. § 2925.11(A) & (C)(6)(a), a felony of the fifth degree. On
March 17, 2014, Camp filed a motion to suppress the evidence arguing that because
the officers did not have any reason to believe that Camp posed a threat to any of the
officers at the scene, the search of her person was unconstitutional.
{¶3} An evidentiary hearing on Camp’s motion to suppress was held on April
28, 2014. Two witnesses were called to testify.
A. Sergeant Carroll.
{¶4} On November 20, 2013, Sergeant Ken Carroll with the Mansfield City
Police Department was working second shift, from two o'clock to ten o'clock p.m., as
shift supervisor. He was dressed in uniform and was driving a marked vehicle. Sergeant
Carroll was in the area of Bowman and Vale near a known drug house when he
observed a white minivan. Sergeant Carroll testified to the location of the van at the time
he first noticed it,
If you turn onto Vale there’s an alley off to the left. It was in that
area by the new Family Dollar, right in that area.
T. at 6. Sergeant Carroll testifed he noticed a female walk toward the van, but he did not
see her get into the van. T. at 6. Sergeant Carroll followed the van for approximately two Richland County, Case No. 14CA42 3
miles when he observed the van commit a traffic violation. Upon running the license
plates, Sergeant Carroll learned that the vehicle’s owner was driving under suspension.
He initiated a traffic stop. Three occupants were seated inside the van. A female driver
and a male passenger were in the front seat and Camp was in the back seat.
{¶5} After running the identification of the driver, it was determined that she
was driving under suspension and had an active felony warrant for her arrest. The driver
was removed from the vehicle, arrested and placed in Sergeant Carroll's cruiser. The
passengers were told to relax as Sergeant Carroll noted them to appear nervous.
{¶6} Officer Reed, who was a probationary officer in the field, arrived with his
trainer, Officer Butler who was dressed in plain clothes. Sergeant Carroll also called for
a drug dog, which arrived later with Officer Sarah Mosier-Napier. Camp and the male
passenger were not removed from the car at that time; however, checks of their
identities were started. Either while the drug dog was en route or after the drug dog had
arrived, the passengers were removed from the vehicle. Sergeant Carroll testified that
this is done for any kind of a free-air canine sniff of a vehicle to prevent the vehicle
occupants from opening the door during the search and the canine from jumping into
the vehicle.
{¶7} Once Camp was removed from the vehicle, a- pat-down was performed on
her for officer safety. Sergeant Carroll testified Patrol officer Reed patted Camp down
and found nothing on her person. Camp was placed in the back of Patrol Officer Reed’s
cruiser. The male passenger was on the sidewalk with Patrol Officer Butler.
{¶8} Subsequently, the canine alerted on a coat that was located in the
vehicle's back seat where Camp was sitting. Drug scales were located in the coat Richland County, Case No. 14CA42 4
pocket. Camp was arrested for possessing the drug scale. Sergeant Carroll further
testified Patrol officer Mosier-Napier searched Camp and found a loaded heroin syringe
hidden in her pants pocket.
B. Officer Sara Mosier- Napier.
{¶9} Patrol officer Mosier-Napier is a canine officer for the Mansfield Police
Department. Patrol officer Mosier-Napier said she was called by Sergeant Carroll to
come to the scene of the car stop to have her canine perform a free air sniff around the
vehicle.
{¶10} Patrol officer Mosier-Napier could not recall whether Camp and the male
passenger had been taken out of the van before she arrived. Prior to removing her
canine from the cruiser, Patrol officer Mosier-Napier testifed,
I patted her [Camp] down for officer safety. I say the same thing to
every single person, do you have a problem with me putting my hands in
your pockets? Do you have anything illegal that I need to know about,
anything that’s going to poke me, stick me? That’s where it started.
***
Yeah. She consented to a search of her person, which means
obviously anything on her person. She had a loaded heroin syringe hidden
down her pants.
T. at 33-34.
{¶11} The state did not present any other evidence. Camp did not offer any
evidence or call any witnesses. Richland County, Case No. 14CA42 5
{¶12} By Judgment Entry filed May 5, 2014, the trial court granted Camp’s
motion to suppress finding “the State of Ohio has failed to produce articulable facts and
circumstances to believe that the defendant was either armed and dangerous or
engaged in criminal activity.”
Assignment of Error
{¶13} The state raises one assignment of error,
{¶14} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S
MOTION TO SUPPRESS.”
Analysis
{¶15} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d
988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111
Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has
accepted those facts as true, it must independently determine as a matter of law
whether the trial court met the applicable legal standard. See Burnside, supra, citing
State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,
generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Richland County, Case No. 14CA42 6
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That
is, the application of the law to the trial court's findings of fact is subject to a de novo
standard of review Ornelas, supra. Moreover, due weight should be given “to inferences
drawn from those facts by resident judges and local law enforcement officers.” Ornelas,
supra at 698, 116 S.Ct. at 1663.
{¶16} In the case at bar, the parties agree that the car in which Camp was a
passenger was lawfully stopped for a traffic violation. The parties further agree that
Sergeant Carroll could lawfully order Camp to get out of the car during the investigatory
traffic stop. In the case at bar, the trial court found, however, that the officers conducted
a warrantless search without having a reasonable suspicion that she may be armed
and, thus, dangerous to the police officer and others.
A. Terry pat-down protective search.
{¶17} Authority to conduct a pat down search does not flow automatically from a
lawful stop and a separate inquiry is required. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment requires an officer to have a
“reasonable fear for his own or others’ safety” before frisking. Id. Specifically, “[t]he
officer ... must be able to articulate something more than an ‘inchoate and
unparticularized suspicion or hunch.’” United States v. Sokolow, 490 U.S. 1, 7, 109
S.Ct. 1581, 104 L.Ed.2d 1 (1989), citing Terry, supra, 392 U.S. at 27. Whether that
standard is met must be determined from the standpoint of an objectively reasonable
police officer, without reference to the actual motivations of the individual officers
involved. United States v. Hill, 131 F.3d 1056, 1059 (D.C.Cir.1997), citing Ornelas v.
United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Richland County, Case No. 14CA42 7
{¶18} In State v. Lozada, 92 Ohio St.3d 74, 2001–Ohio–149, 748 N.E.2d 520,
the Ohio Supreme Court had the opportunity to discuss detentions and searches similar
to the one in the case at bar. In Lozada, an Ohio State Trooper stopped a vehicle for
speeding, and asked the driver to exit his vehicle. Even though the driver denied having
any weapons, the trooper patted him down and found two small bags of cocaine.
{¶19} The Supreme Court found the initial traffic stop was proper, and the issue
presented was whether it was reasonable to search the appellant for weapons and
place him in a patrol car. The Supreme Court found whether an officer may pat a person
down before placing him in a vehicle depends upon the legitimacy of placing him in the
police car in the first place, Lozada at 523, citing People v. Kinsella, 139 A.D.2d 909,
527 N.Y.S.2d 899(1988). The Lozada court noted numerous courts have held an officer
may ask a driver to sit in his or her patrol car to facilitate the traffic stop, but the question
of whether the driver may be searched for weapons before entering the patrol car is
more problematic. In Lozada, the court found the placement of a driver in a patrol car
during a routine traffic stop may be constitutionally permissible, but may not be used
simply to justify a search of the driver. The intrusion of asking a driver to sit in a patrol
car to facilitate a traffic stop may be relatively minimal, but the level of intrusion
dramatically increases when the person is subject to a pat-down search for weapons
before entering the patrol car. The Supreme Court found this violates the requirement of
specific and articulable belief an individual is armed and dangerous first set forth in
Terry v. Ohio, 392 U.S. 1, 88 Sup.Ct. 1868, 20 L.Ed.2d 889 (1969).
{¶20} The Lozada court held it is unreasonable for an officer to search a driver
for weapons before placing him or her in a patrol car if the sole reason for placing the Richland County, Case No. 14CA42 8
driver in the patrol car during the investigation is for the convenience of the officer. The
Supreme Court found, however, it is reasonable to place a driver in a patrol car and
even subject him or her to a pat-down search for weapons where placement of the
person in the patrol car is justified to protect the officer or the driver from dangerous
conditions, Lozada at 525, citations omitted. The court gave the example of a hostile
crowd threatening the officer and the driver, as an example of a dangerous condition
necessitating the placement of the driver into the patrol car. Ultimately, the court
concluded that no dangerous condition existed and that the state trooper’s search of the
defendant for weapons before placing him in the patrol car was unreasonable. Id. at 81.
Accord, State v. Scarbury, Fifth Dist. Knox No. 03CA000016, 2003-Ohio-6483, ¶¶15-17.
{¶21} In the case at bar, both Sergeant Carroll and Patrol Officer Mosier-Napier
testified that a protective Terry pat down was conducted when Camp was removed from
the van. (T. at 10; 22-23; 24; 33). However, they further testified that the pat down
search revealed no incriminating evidence. Sergeant Carroll testified that Officer Reed
performed the pat down search of Camp after she was removed from the van. (T. at 22;
24-25). Patrol Officer Mosier-Napier testifed that her pat down did not reveal any
incriminating evidence. (T. at 36-37). However, she further testified that
contemporaneously with the pat down search Patrol Officer Mosier-Napier asked for
and was given consent to search Camp’s person. (T. at 36-38; 42).
B. Consent to search.
{¶22} 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 Richland County, Case No. 14CA42 9
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. See, also, State v. Fry, 4th Dist. No. 03CA26, 2004–Ohio–
5747, ¶ 18.
{¶23} 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(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 Richland County, Case No. 14CA42 10
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).
{¶24} 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, 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;
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 Richland County, Case No. 14CA42 11
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.
{¶25} In the case at bar, the trial court made no mention of Camp’s consent to
search in the Judgment Entry granting Camp’s motion to suppress. A review of the
record indicates that Camp was not placed under arrest nor was she handcuffed. Patrol
Officer Mosier-Napier asked permission to search Camp’s pockets. Camp was not
threatened or made any promises to obtain her consent. Camp was being temporarily
detained for a check of her identification as a result of the driver’s arrest for the traffic
violation and driving under suspension. In the case at bar, Camp did not contend that
she was coerced into consenting to the search of her person.
{¶26} We find the evidence produced during the hearing on Camp’s motion to
suppress leads to the conclusion that Camp’s consent was in fact voluntarily given.
C. Inevitable Discovery.
{¶27} In 1985, the Supreme Court of Ohio adopted the inevitable discovery
exception to the exclusionary rule. State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d
763(1985). The Supreme Court held:
that illegally obtained evidence is properly admitted in a trial court
proceeding once it is established that the evidence would have been
ultimately or inevitably discovered during the course of a lawful
investigation. The prosecution will have the burden to show within a
reasonable probability that police officials would have discovered the
derivative evidence apart from the unlawful conduct. Richland County, Case No. 14CA42 12
18 Ohio St.3d at 196, 480 N.E.2d 763; See, also, Nix v. Williams, 467 U.S. 431, 104
S.Ct. 2501, 81 L.Ed.2d 377(1984).
{¶28} In the case at bar, the evidence reveals that the officers inevitably would
have discovered the syringe in Camp’s pocket.
{¶29} Sergeant Carroll testified that he had called for a canine to do a free air
walk around of the van after he learned the driver had an active warrant. (T. at 9-10; 18;
27). He made the decision to call for the canine based upon the high-crime, high drug
activity occurring in the area where the van was located. (T. at 27). The canine alerted
on a child’s coat in the backseat of the van. (T. at 17-18; 26-27). The coat was identified
as belonging to Camp. (T. at 17- 18). The coat was found to contain drug paraphernalia.
(T. 17; 27- 28). Camp was subject to arrest for the drug paraphernalia. (T. at 28).
{¶30} The use of a drug detection dog does not constitute a "search" and an
officer is not required, prior to a dog sniff, to establish either probable cause or a
reasonable suspicion that drugs are concealed in a vehicle. See Illinois v. Caballes, 543
U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842(2005); United States v. Place, 462
U.S. 696, 707, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110(1983); State v. Carlson, 102 Ohio
App.3d 585, 594, 657 N.E.2d 591(9th Dist. 1995); United States v. Seals, 987 F.2d
1102, 1106 (5th Cir. 1993). Further, if a trained narcotics dog alerts to the odor of drugs
from a lawfully detained vehicle, an officer has probable cause to search the vehicle for
contraband. United States v. Reed, 141 F.3d 644(6th Cir. 1998) (quoting United States
v. Berry, 90 F.3d 148, 153(6th Cir. 1996), cert. denied 519 U.S. 999 (1996)); accord,
United States v. Hill, 195 F.3d 258, 273(6th Cir. 1999); United States v. Diaz, 25 F.3d
392, 394(6th Cir. 1994); State v. French, 104 Ohio App.3d 740, 663 N.E.2d 367(12th Richland County, Case No. 14CA42 13
Dist. 1995), abrogated on different grounds, City of Dayton v. Erickson, 76 Ohio St.3d 3,
665 N.E.2d 1091(1996).
{¶31} Sergeant Carroll had a reasonable suspicion of illegal drug activity. He
could lawfully call for a police dog and wait for it to arrive to check for drugs based on
this suspicion. Once the drug dog alerted to the van, the officers had probable cause to
search that vehicle for contraband. No violation of Camp's Fourth Amendment rights
has been demonstrated.
{¶32} After Camp’s arrest, the officers would have properly performed a search
incident to arrest. In contrast to a Terry search, a search incident to a lawful arrest
permits an officer to,
[C]onduct a full search of the arrestee’s person, and that search is
not limited to the discovery of weapons, but may include evidence of a
crime as well.” State v. Jones, 112 Ohio App.3d 206, 215, 678 N.E.2d
285(1996); see, also, Chimel v. California, 395 U.S. 752, 762–63, 89 S.Ct.
2034, 23 L.Ed.2d 685(1969), (stating that when an officer conducts a
search incident to arrest “it is entirely reasonable for the arresting officer to
search for and seize any evidence on the arrestee’s person in order to
prevent its concealment or destruction”).
State v. Mathews, 46 Ohio St.2d 72, 74–75, 346 N.E.2d 151(1976).
{¶33} Consequently, because the officers would have arrested Camp and would
have conducted a full search incident to arrest, the officers inevitably would have
discovered the loaded heroin syringe in Camp’s pocket. Richland County, Case No. 14CA42 14
Conclusion
{¶34} We find that the trial court incorrectly decided the ultimate or final issue
raised in Camp's motion to suppress, and further that the trial court failed to apply the
appropriate test or correct law to the findings of fact. State v. Curry, 95 Ohio App.3d 93,
96, 641 N.E.2d 1172(8th Dist. 1994); State v. Claytor, 85 Ohio App.3d 623, 627, 620
N.E.2d 906(4th Dist. 1993); State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d
726(4th Dist. 1993); State v. Bickel, 5th Dist. Ashland No. 2006-COA-034, 2007-Ohio-
3517, ¶32.
{¶35} We find no evidence in the record that Camp’s consent was the result of
duress or coercion, express or implied. We further find that because the officers would
have arrested Camp for the drug paraphernalia and would have conducted a full search
incident to arrest, the officers inevitably would have discovered the loaded heroin
syringe in Camp’s pocket. Richland County, Case No. 14CA42 15
{¶36} For the forgoing reasons, the judgment of the Richland County Court of
Common Pleas, Ohio is reversed and this case is remanded for further proceedings
consistent with this opinion.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur