[Cite as State v. Penwell, 2021-Ohio-1216.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-74 : v. : Trial Court Case No. 2018-CR-73 : DANIEL PENWELL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 9th day of April, 2021.
IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant
.............
TUCKER, P.J. -2-
{¶ 1} Defendant-appellant, Daniel Penwell, appeals from his conviction for one
count of possession of a controlled substance, a fifth degree felony pursuant to R.C.
2925.11(A) and (C)(1)(a). Raising one assignment of error, Penwell argues that his
conviction should be reversed because the trial court erred by overruling his motion to
suppress evidence obtained during a search of his person. We find that the trial court
properly overruled Penwell’s motion, and his conviction is therefore affirmed.
I. Facts and Procedural History
{¶ 2} On October 11, 2017, Penwell was admitted to Springfield Regional Medical
Center to be treated for a possible overdose. Judgment Entry 1, Sept. 11, 2019.
Officers Freeman and Sanders of the Springfield Police Division, who were already on
the premises for an unrelated matter, were dispatched to speak with Penwell “in reference
to his overdose.” Transcript of Proceedings on Motion to Suppress 4:24-5:6, Aug. 6,
2019 [hereinafter Transcript]. The officers were told that medical personnel had
administered Narcan to Penwell and that he had responded favorably to the treatment.
Id. at 5:7-5:21 and 11:18-12:4.
{¶ 3} When the officers approached him, Penwell lay on a bed in a corridor in the
emergency department. Id. at 8:1-10:21; Judgment Entry 1. The officers spoke with
him, and Officer Freeman asked him whether he had consumed any illicit drugs and
requested permission to search his person. Transcript at 5:7-6:4. Penwell consented.
Id. The officers did not deliver a Miranda warning because Penwell “wasn’t under arrest”
and gave his consent to the search. Id. at 6:10-7:10.
{¶ 4} In a pocket in Penwell’s pants, Officer Freeman found two capsules, “one of
which was empty and [the other of which] had a tan substance in it.” Id. at 6:5-6:9. -3-
Chemical analysis later revealed that the tan substance was Carfentanil, a Schedule II
drug. Judgment Entry 2; Ohio Adm.Code 4729:9-1-02(B)(6).1 The amount of the drug
recovered was 0.10 grams, which was less than the statutory “bulk amount.” Judgment
Entry 2; R.C. 2925.01(D)(1)(d);2 Ohio Adm.Code 4729:9-1-02(B)(6).
{¶ 5} On January 29, 2018, a Clark County grand jury issued an indictment against
Penwell, charging him with one count of aggravated possession of a controlled substance
in violation of R.C. 2925.11(A). Penwell pleaded not guilty at his arraignment on June
25, 2019, and on July 29, 2019, he moved to suppress the evidence found on his person
by Officer Freeman, as well as any statements he made while being questioned.
Following a hearing held on August 6, 2019, the trial court overruled the motion.
Judgment Entry 7. Penwell then entered a plea of no contest on September 12, 2019,
in exchange for the State’s agreement to recommend community control at his
sentencing. The trial court, however, was apprised during the disposition hearing on
October 3, 2019, of an outstanding warrant against Penwell in Indiana, so it sentenced
him to serve seven months in prison. Penwell timely filed a notice of appeal to this court
on October 25, 2019.
II. Analysis
{¶ 6} For his single assignment of error, Penwell contends that:
THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S
1In October 2017, Schedule II was defined by R.C. 3719.41, which has since been amended. 2R.C. 2925.01 has been amended since October 2017, though the provisions of R.C. 2925.01(D)(1)(d) remain substantially the same. -4-
MOTION TO SUPPRESS IN VIOLATION OF HIS RIGHTS UNDER THE
FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 1, SECTION 14 OF THE CONSTITUTION
OF THE STATE OF OHIO.
{¶ 7} Penwell argues that the trial court erred for two reasons. First, Penwell
maintains that his encounter with police officers on October 11, 2017, was not consensual
under the circumstances. Appellant’s Brief 11-15. Second, Penwell denies that he
voluntarily consented to the search of his person. Id. at 15-17.
{¶ 8} Appellate “review of a [trial court’s ruling on a] motion to suppress presents
a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court “is in the best position to weigh
* * * evidence * * * and evaluate [the credibility of] witness[es],” so an “appellate court
must accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.
Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v.
Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial
court’s findings of fact as true, “the appellate court must then independently determine,
without deference to the [trial court’s legal] conclusion[s],” whether the “facts satisfy the
applicable * * * standard.” Burnside at ¶ 8, citing Fanning and State v. McNamara, 124
Ohio App.3d 706, 707 N.E.2d 539 (3d Dist.1997).
{¶ 9} The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968); see also State v. Taylor, 138 Ohio App.3d 139, 145, 740 N.E.2d 704 -5-
(2d Dist.2000) (noting that “the Fourth and Fourteenth Amendments to the United States
Constitution and Section 14, Article 1” of the Ohio Constitution “protect the same interests
in a consistent manner”). Warrantless searches and seizures violate this prohibition
unless conducted pursuant to one of the “few specifically established and well-delineated
exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967). A consensual search is one of these exceptions. See,
e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973); State v. Weisgarber, 2017-Ohio-8764, 88 N.E.3d 1037, ¶ 15-16 (2d Dist.); State
v. Rogers, 2d Dist. Montgomery No. 24848, 2012-Ohio-4753, ¶ 12.
{¶ 10} Interactions among police officers and citizens take one of three forms:
consensual encounters, investigatory detentions, and arrests. See, e.g., State v.
Millerton, 2015-Ohio-34, 26 N.E.3d 317, ¶ 20 (2d Dist.). An “encounter between a police
officer and a member of the public is consensual if a reasonable person would feel free
to disregard the officer’s questions or [to] terminate the encounter and go about his * * *
business.” City of Columbus v. Beasley, 2019-Ohio-719, 132 N.E.3d 1201, ¶ 41, citing
Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also
Weisgarber at ¶ 16 (stating that a consensual encounter “occur[s] when [a] police [officer]
merely approach[es] a person in a public place and engage[s] the person in conversation,
[with] the person remain[ing] free * * * to [refuse to] answer and * * * walk away”). By
contrast, a person is “subject to an investigatory detention when, in view of all the
[attendant] circumstances * * *, a reasonable person” would believe “that he [is] not free
to leave or is [otherwise] compelled to respond to questions.” State v. Lewis, 2d Dist.
Montgomery No. 22726, 2009-Ohio-158, ¶ 22, citing U.S. v. Mendenhall, 446 U.S. 544, -6-
553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
{¶ 11} Consensual encounters “are not seizures, and [they do not implicate] Fourth
Amendment guarantees.” Weisgarber at ¶ 16, citing State v. Taylor, 106 Ohio App.3d
741, 747-749, 667 N.E.2d 60 (2d Dist.1995). A “consensual encounter remains
consensual even if police officers ask questions, ask to see [a] person’s identification, or
ask to search the person’s belongings, provided [that] ‘the [officers] do not convey [the]
message that compliance with their requests is required.’ ” State v. Westover, 2014-
Ohio-1959, 10 N.E.3d 211, ¶ 16 (10th Dist.), quoting Bostick at 435, and citing Florida v.
Rodriguez, 469 U.S. 1, 4-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984), and Immigration &
Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247
(1984).
{¶ 12} The determination of whether an encounter is consensual should be
focused on the conduct of the police officers involved, rather than the state of mind of the
person with whom the officers interact. See, e.g., State v. Ramey, 2d Dist. Montgomery
No. 26705, 2016-Ohio-607, ¶ 25. Among other things, “[f]actors that might indicate [that
a person’s interaction with police officers is an investigatory detention, as opposed to a
consensual encounter,] include the threatening presence of several police officers, the
display of a weapon, some physical touching of the person, the use of language or tone
of voice indicating that compliance with the officer[s’] request might be required,
approaching the person in a nonpublic place, and blocking the [person]’s path.” State v.
Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862, 895 N.E.2d 868, ¶ 13, citing Mendenhall
at 554 and State v. Cook, 2d Dist. Montgomery No. 20427, 2004-Ohio-4793, ¶ 11.
{¶ 13} In the first part of his argument, Penwell posits that his encounter with police -7-
officers was not consensual because the part of the hospital in which the encounter
occurred was not accessible to family, friends or persons other than patients and medical
personnel. See Appellant’s Brief 12, citing Judgment Entry 4. He observes that in our
opinion in Weisgarber, we affirmed a trial court’s determination that a similar encounter
was not consensual, in part because the defendant in that case had been “approached
* * * in a private room in the emergency department, which was likely not accessible to
the public at large.” Appellant’s Brief 12; see Weisgarber at ¶ 20-21.
{¶ 14} The room in Weisgarber was described as an “ ‘individual emergency
room,’ ” which measured “approximately 12 [feet] by 12 [feet] or 15 [feet] by 15 feet.”
Weisgarber at ¶ 5. Here, however, Penwell spoke with police officers in a corridor in the
emergency department. Although the trial court erred by finding as a matter of fact that
the corridor was “generally accessible to family and friends of patients and even [to] the
public at large,” we conclude that the corridor was an intrinsically less confining location
than the private room described in our Weisgarber opinion. Judgment Entry 4; Transcript
at 9:1-9:19.
{¶ 15} Furthermore, we noted in Weisgarber that the record included “no evidence
that the officer introduced himself [to the defendant], [no evidence that the officer] asked
[the defendant] if he [would be] willing to answer questions, [and no evidence that the
officer] engaged in any [other] conversation [before] asking [the defendant] whether [he]
had drugs or weapons” on his person. Weisgarber at ¶ 21. On that record, we
“defer[red] to the trial court’s implicit factual finding that,” evaluated in light of “the location
of the encounter,” the officer’s “use of language and [the officer’s] demeanor” constituted
“a display of authority * * * indicat[ing] to [the defendant] that * * * response[s] [to the -8-
officer’s questions were] required.” See id. at ¶ 20-21.
{¶ 16} In the instant case, however, the record includes some evidence—albeit
ambiguous evidence—that Officers Freeman and Sanders engaged in superficial
conversation with Penwell before seeking his consent to a search of his person. Officer
Freeman testified, during the hearing on the motion to suppress, that when she and
Officer Sanders approached Penwell, “[they] spoke with him,” and “[she] asked him what
he had used.”3 See Transcript at 4:24-5:17. On cross-examination, Penwell’s counsel
asked Officer Freeman to recall “the very first thing [she] said” to Penwell after
approaching him, but she answered that she “couldn’t tell [counsel] verbatim” what she
had said. Id. at 13:15-13:20. Although Officer Freeman’s testimony was thus
ambiguous, it suggested that she and Officer Sanders at least briefly conversed with
Penwell before questioning him in earnest.
{¶ 17} Compared, then, to the encounter at issue in Weisgarber, Penwell’s
encounter with police officers occurred in a relatively less confined setting, and the
officers’ language and demeanor did not obviously constitute a display of authority. Of
the factors we listed in Cook, 2d Dist. Montgomery No. 20427, 2004-Ohio-4793, the only
factor that would unequivocally support a finding that Penwell’s encounter was an
investigatory detention was the presence of two police officers, rather than one officer,
but the record comprises no evidence that either Officer Freeman or Officer Sanders
brandished a weapon, touched Penwell, or used language or spoke in a tone of voice
implying that Penwell was required to respond to their questions. Cook at ¶ 11.
3 Officer Sanders did not testify during the hearing. -9-
Penwell’s placement in the corridor, for that matter, would not have allowed him to walk
away easily from the encounter, yet regardless, the officers did not intentionally block his
path to an exit. See Transcript at 10:10-11:17. We hold accordingly that Penwell’s
interaction with the officers was a consensual encounter, not an investigatory detention.
{¶ 18} In the second part of his argument, Penwell denies that he consented to the
search of his person. Appellant’s Brief 15-17. Specifically, he maintains that he did not
voluntarily consent because he was subjected to an investigatory detention, “had recently
suffered unconsciousness,” and had been treated with Narcan, which “call[s] [his lucidity
at the time] into question.” See id. at 16.
{¶ 19} Consent to a search “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. Ojezua, 2d Dist. Montgomery No. 26787, 2016-Ohio-
2659, ¶ 17, quoting State v. Posey, 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988). The
standard of “clear and positive” evidence is essentially equivalent to the standard of “clear
and convincing evidence.” See id. at ¶ 18. Whether a person’s consent to a search is
truly voluntary must be determined in light of the circumstances. Weisgarber, 2017-
Ohio-8764, 88 N.E.3d 1037, at ¶ 17-19; Westover, 2014-Ohio-1959, 10 N.E.3d 211, at
¶ 13. Generally, this determination entails the consideration of six factors: “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 * * * right to refuse consent; 5) the defendant’s education and
intelligence; [and] 6) the defendant’s belief that no incriminating evidence would be
found.’ ” State v. Black, 2d Dist. Montgomery No. 23524, 2010-Ohio-2916, ¶ 35-41, -10-
quoting State v. Loyer, 8th Dist. Cuyahoga No. 87995, 2007-Ohio-716, ¶ 9.
{¶ 20} We have held that Penwell’s interaction with Officers Freeman and Sanders
was a consensual encounter. Consequently, for purposes of determining whether
Penwell consented voluntarily to a search, we find that he was not in custody when the
officers requested his consent, and that the officers did not employ coercive police
procedures to convince him to consent. Officer Freeman’s testimony provided no
indication that Penwell was anything less than cooperative during the encounter,
notwithstanding his initial denial that he had consumed any illegal drugs. See Transcript
at 13:21-14:1. Neither the State nor Penwell’s counsel asked the officer whether she or
Officer Sanders informed Penwell that he had the right to refuse to consent, and the
record is silent on Penwell’s level of education. The warrant for his arrest, however,
indicated that Penwell was 27 years old on October 11, 2017.4 In his own testimony at
the hearing on his motion to suppress, Penwell had no apparent difficulty understanding
questions, and he was able to answer clearly and appropriately. See Transcript 24:18-
25:19. Because Penwell disclaimed any memory of speaking with Officers Freeman and
Sanders at the hospital, the record is inconclusive on the question of whether he believed
that the officers would not find anything incriminating on his person. Id. at 23:17-25:23.
{¶ 21} Taking the record as a whole, we find that consideration of the six factors
listed in our opinion in Black favors the trial court’s determination that Penwell voluntarily
consented to the search of his person. Compare with State v. Ivkovich, 2018-Ohio-609,
106 N.E.3d 305, ¶ 2-3 and 21-27 (2d Dist). Regarding Penwell’s lucidity, Officer
4 The birthdate listed on the State’s praecipe for a warrant for Penwell’s arrest, on the other hand, indicates that Penwell was approximately 22 years and 11 months old on October 11, 2017. -11-
Freeman testified that Penwell was “just sleepy and intoxicated,” but recanted her use of
the word “intoxicated” at once, adding that because “Narcan is only effective against an
opiate,” Penwell could not have been intoxicated as the result of the consumption of
alcohol. See Transcript 5:17-5:21. In the remainder of her testimony, Officer Freeman
described Penwell as seeming coherent; as having his eyes open when she first
approached him; as being responsive to her questions; as “clear speaking and alert”; and
seeming to understand her questions and her request for his consent to a search. Id. at
5:22-5:24, 13:12-13:14, 16:17-16:19, 17:22-18:6 and 22:23-22:25.
{¶ 22} Penwell testified that he could not remember being treated by medical
personnel or speaking with Officers Freeman and Sanders. Id. at 24:14-26:6. By his
account, he remembered only “[b]eing at the library” and then, “at some point,” seeing his
“grandparents * * * at the hospital.” Id. Even if Penwell recalled nothing more than he
indicated in his testimony, his inability to recall speaking with the officers would not
necessarily have precluded the possibility that, when Officer Freeman asked for his
consent, he was sufficiently lucid to understand the question. Regardless, the trial court
did not find his testimony to be credible, and as the trier of fact, the trial court was in the
best position to weigh the evidence and to evaluate Penwell’s credibility. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. Given that we must accept the
trial court’s findings of fact for purposes of Penwell’s appeal, we hold that the trial court
did not err in determining that Penwell voluntarily consented to a search of his person.5
5 We noted that the trial court erred by finding that the corridor in which Officers Freeman and Sanders encountered Penwell was open to the public at large, but with respect to that specific finding, the record included competent evidence directly contradicting the court’s finding. The record includes no such evidence directly contradicting the trial court’s finding that Penwell’s testimony was not credible. -12-
Id.
{¶ 23} We note, finally, that even if Penwell’s encounter with Officers Freeman and
Sanders were an investigatory detention, the officers had a reasonable, articulable
suspicion of criminal activity. Reasonable suspicion means that a police officer “must be
able to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant [a limited] intrusion” on a person’s “constitutionally
protected interests.” See Terry, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889. The
term “reasonable suspicion” refers to “something more than an inchoate and
unparticularized * * * ‘hunch,’ but [to] something less than the level of suspicion for
probable cause”; a demonstration of probable cause, by comparison, generally requires
a likelihood “or substantial chance of criminal activity.” Village of Chagrin Falls v.
Calabrese, 8th Dist. Cuyahoga No. 101197, 2014-Ohio-5340, ¶ 14, citing Terry at 21. To
determine whether a police officer had reasonable suspicion, “we evaluate the ‘totality of
the circumstances’ ” from the perspective of a hypothetical “reasonable and prudent
police officer on the scene who must react to events as they unfold.” State v. Andrews,
57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991); State v. Heard, 2d Dist. Montgomery
No. 19323, 2003-Ohio-1047, ¶ 14.
{¶ 24} Here, Officers Freeman and Sanders approached Penwell after being
advised that he had been admitted to the emergency department at the Springfield
Regional Medical Center for an opiate overdose, that he had received several doses of
Narcan, and that he had responded favorably to such treatment. See Transcript 4:16-
5:21 and 11:18-12:4. Officer Freeman testified further that Narcan is effective only for
treating opiate overdoses, and her testimony implied that her interaction with Penwell was -13-
hardly her first interaction with the victim of an overdose. See id. at 3:25-4:15, 12:13-
13:8 and 14:2-14:25. Thus, Officer Freeman had specific, articulable facts that
supported the rational inference that Penwell had overdosed on an opiate, because he
otherwise would not have responded to treatment with Narcan.
{¶ 25} Moreover, this court and others in the state have acknowledged what has
been called the “opioid crisis” or the “opioid epidemic.” See, e.g., State v. Miller, 2019-
Ohio-3294, 141 N.E.3d 604, ¶ 37 (2d Dist.); Acuity v. Masters Pharmaceutical, Inc., 1st
Dist. Hamilton No. C-190176, 2020-Ohio-3440, ¶ 2; State v. Davis, 8th Dist. Cuyahoga
No. 105129, 2017-Ohio-8479, ¶ 16. Irrespective of the fact that Penwell theoretically
could have taken a legitimately prescribed opiate and overdosed accidentally, the
information at Officer Freeman’s disposal, in the context of the widely publicized opioid
crisis, supported more than a mere, inchoate hunch that Penwell’s overdose might have
been the result of his consumption of an illicitly obtained opiate. See Terry at 21;
Calabrese at ¶ 14. Penwell’s assignment of error is overruled.
III. Conclusion
{¶ 26} We hold that the trial court did not err by overruling Penwell’s motion to
suppress evidence obtained as a result of his encounter with two police officers at the
Springfield Regional Medical Center and the concomitant search of his person. The
police officers’ interaction with Penwell was a consensual encounter, and regardless of
the fact that the search occurred while Penwell lay on a bed in a corridor in the hospital’s
emergency department, his consent to the search was voluntary under the
circumstances. Penwell’s conviction is therefore affirmed. -14-
WELBAUM, J., concurs.
DONOVAN, J., dissents:
{¶ 27} The “opioid epidemic” does not suspend the Fourth Amendment. I find our
prior jurisprudence in Weisgarber, 2017-Ohio-8764, 88 N.E.3d 1037, controlling. The
interior corridor of the hospital emergency room, not accessible to the public or Penwell’s
family, was every bit as non-public as the private room in Weisgarber. It was not
established to be any “intrinsically less confining” than a hospital room, as the majority
suggests. This was clearly a non-consensual encounter.
{¶ 28} Furthermore, a sleepy and intoxicated patient, such as Penwell, who had
been administered multiple doses of Narcan, cannot be said to have voluntarily consented
to a search under the totality of the circumstances. I would reverse.
Copies sent to:
Ian Richardson Charles M. Blue Hon. Douglas M. Rastatter