[Cite as State v. Flink , 2021-Ohio-3833.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellant

-vsSTEPHANIE L. FLINK Defendant-Appellee JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. Case No. 2021 CA 00013

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on Pleas, Case No. 2020 CR 608

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 28, 2021

APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee R. KYLE WITT AARON R. CONRAD PROSECUTING ATTORNEY CONRAD/WOOD CHRISTOPHER A. REAMDER 120 East Main Street ASSISTANT PROSECUTOR Suite 200 239 West Main Street, Suite 101 Lancaster, Ohio 43130 Lancaster, Ohio 43130Fairfield County, Case No. 2021 CA 00013 2
Wise, John, J. {¶1} Appellant State of Ohio appeals the Fairfield County Common Ple as Court’s granting of Appellee’s Motion to Suppress. Appellee is Stephani e L. Flink. The relevant facts leading to this appeal are as follows. STATEMENT OF THE FACTS AND CASE {¶2} On December 10, 2020, Appellee was indicted by the Fairfield Co unty Grand Jury for one count of Aggravated Possession of Drugs in v iolation of R.C. 2925.11(A) and (C)(1)(a), a fifth-degree felony, stemming from an incident which occurred on November 9, 2020. {¶3} On February 4, 2021, Appellee filed a Motion to Suppress. {¶4} On March 9, 2021, the trial court held a hearing on Appellee’s Motion to Suppress. {¶5} At the hearing, Officer Christopher Cook testified that on Nove mber 9, 2020, he initiated a traffic stop when Appellee failed to use a turn signal. {¶6} Appellee’s license was not valid through the State of Ohio, but it was valid through the State of Kentucky. It took nearly five minutes to r eceive the confirmation. {¶7} After Officer Cook checked Appellee’s license but before he is sued a citation, he asked Appellee to exit the vehicle. He saw Appelle e reach into the back seat, and noticed the man in the passenger seat of the vehicle was ac ting nervous. Officer Cook then said he had a “gut feeling” something was going on in the vehicle. {¶8} Appellee denied anything illegal in the vehicle, and Officer Co ok asked for consent to search the vehicle. Offi cer Cook said he mentioned t he possibility of a canine sniffing around the vehicle and received general consent from A ppellee to search theFairfield County, Case No. 2021 CA 00013 3
vehicle. No canine was called, no canine was available, and Off icer Cook had no intention of calling a canine unit. At this point six to seven minutes ha d elapsed since the stop occurred. {¶9} Officer Cook initiated a traffic stop, asked Appellee out of th e vehicle, and began questioning her about contraband in her vehicle. He said he believed he did not restrict her movement. He testified that Appellee was calm and collected, very polite. {¶10} Officer Cook continued testifying that normally at a traffic st op he would run a check on the vehicle and license, then issue a citation or wa rning. He said he deviated from issuing the citation or warning because he had “several of those funny feelings.” {¶11} Officer Cook observed Mr. Rider i n the passenger seat slouching , and Rider would not look the officer in the eye. He said this made him fe el like this was more than just a traffic infraction. {¶12} While searching the vehicle, Offi cer Cook asked Appellee for pe rmission to search her purse. Officer Cook sai d he received permission, and inside Appellee’s purse, Officer Cook found a tin can. Offi cer Cook then opened the tin can finding a butterfly knife. Under the knife was methamphetamine. {¶13} Officer Cook indicated the entire search was consensual, and th at Appellee never withdrew her consent. {¶14} On April 6, 2021, the trial court granted Appellee’s Motion to Suppress. ASSIGNMENTS OF ERROR {¶15} Appellant timely filed a notice of appeal and herein raises the following Assignment of Error.Fairfield County, Case No. 2021 CA 00013 4 {¶16} “I. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT FOUND THAT APPELLEE [sic], ST EPHANIE FLINK’S CONSENT TO SEAR CH HER VEHICLE WAS INVOLUNTARY.” I. {¶17} In Appellant’s sole assignment of error, Appellant presents two issues for consideration. First, the trial court did not apply a totality of the circumstances instead focusing on a singular factor to determine if Appellee’s consen t to search was given voluntarily. Second, under a totality of the circumstances test , does an officer informing the motorist their car may be subject to a canine search amount to coercive conduct rendering Appellee’s consent involuntary.

a. Standard of Review {¶18} Appellate review of a trial court’s decision to deny a motion t o suppress involves a mixed question of law and fact. State v. Long , 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4 th Dist.1998). During a suppression hearing, the trial court assu mes the role of trier of fact and, as such, is in the best position to resol ve questions of fact and to evaluate witness credibility. State v. Brooks , 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661 N.E.2d 1030. A reviewing court is bound to accept the trial cou rt’s findings of fact if they are supported by competent, credible evidence. State v. Medcalf , 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4 th Dist.1996). Accepting these facts as true, the appellate court must independently determine as a matter of law, without defere nce to the trial court’s conclusion, whether the trial court’s decision meets the applic able legal standard. State v. Williams , 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4 th Dist.1993), overruled on other grounds , State v. Gunther , 4 th Dist. Pickaway No. 04CA25, 2005-Ohio-3492, ¶16.Fairfield County, Case No. 2021 CA 00013 5 {¶19} Three methods exist to challenge a trial court’s ruling on a mo tion to suppress. First, appellant may challenge the trial court’s find ings of facts. State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Second, appellant may argue the trial court failed to apply the appropriate test or correct law of the findings of fact. In that case, the appellate court can reverse the trial court for commi tting an error of law. Williams at 41. Third, appellant may argue the trial court incorrectly d ecided the ultimate issue raised in the motion to suppress. When addressing the third typ e of challenge, an appellate court must independently determine, without deference to the trial court’s conclusion, whether the facts meet the appropriate legal standa rd in the given case (Citation omitted). State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8 th Dist.1994). {¶20} “The voluntariness of a consent search is a question of fact an d will not be reversed on appeal unless clearly erroneous.” State v. Bickel , 5 th Dist. Ashland No. 2006- COA-034, 2007-Ohio-3517, ¶24. b. Did the trial court apply a totality of the circumstances te st? {¶21} The Fourth Amendment to the United States Constitution and Sect ion 14, Article I, Ohio Constitution, prohibit the government from cond ucting unreasonable searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. {¶22} Consent to search is a well-established exception to the warran t requirement; no Fourth Amendment violation occurs when an indiv idual voluntarily consents to search. United States v. Drayton , 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242. The United States Supreme Court acknowledged the i mportance of consentFairfield County, Case No. 2021 CA 00013 6 searches in police investigations, noting that “a valid consent may be the only means of obtaining important and reliable evidence” to apprehend a crimi nal. Schneckloth v. Bustamonte (1983), 412 U.S. 218, 227-228, 93 S.Ct. 2041, see , State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747 at ¶ 18. The United States Supreme C ourt further noted: “[w]hile most citizens will respond to a police request, the fa ct that people do so, and do so without being told they are free not to respond, hardly elim inates the consensual nature of the response.” INS v. Delgado (1984), 466 U.S. 210, 216, 104 S.Ct. 1758; Drayton, supra, 536 U.S. at 205, 122 S.Ct. at 2113. A voluntary consent need no t amount to a waiver; consent can be voluntary without being an “ intentional relinquishment or abandonment of a known right or privilege.” Schneckloth v. Bustamonte (1983), 412 U.S. 218, 235, 93 S.Ct. 2041, 2052 ( quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023); State v. Barnes (1986), 25 Ohio St.3d 203, 495 N.E.2d 922; State v. McConnell , 5th Dist. No. 2002CA00048, 2002-Ohio-5300 at ¶ 8. Rather, the proper test is whether the totality of the circumstances demonstrates that the consent was voluntary. Id. Whether or not such consent was voluntarily given depends on th e totality of the circumstances. State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762, 1997-Ohio343. {¶23} In Robinette , the Ohio Supreme Court held: We find Bustamonte instructive in defining when permission to search is truly consensual under the totality of the circumstan ces: “[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 F ourth and Fourteenth Amendments require that it demonstrate that the cons ent wasFairfield County, Case No. 2021 CA 00013 7 in fact voluntarily given, and not the result of duress or coer cion, express or implied. Voluntariness is a question of fact to be determined f rom 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 require d 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.E.2d at 875. State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762, 1997-Ohio-343. {¶24} In State v. Wiegand , 5 th Dist. Licking No. 17-CA-24, 2017-Ohio-9143, ¶28, this Court listed six important factors when determining the vo luntariness of consent: (1) [T]he voluntariness of the defendant’s custodial status; ( 2) the presence of coercive police procedures; (3) the extent and leve l of the defendant’s cooperation with the police; (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 will be found. {¶25} Appellant contends the trial court did not apply a totality of the circumstances test, but instead focused on only one factor. We disagree as a complete review of the record shows Appe llant’s argument is factually in accurate. {¶26} While the trial court extensively discussed the police’s coerci ve procedures during this search, the trial court also found that Appellee’s custodial status was not voluntary, and that Appellee was not aware she had a right to r efuse consent. {¶27} In its journal entry dated April 6, 2021, the trial court noted that Appellee, while under the impression the stop was for a traffic violation and check on validity of herFairfield County, Case No. 2021 CA 00013 8
license, was asked for consent to search her vehicle without in dication if the issue was fully resolved. The officer never returned to his cruiser to is sue a citation or indicated Appellee was free to go. On the contrary, Officer Cook led Appe llee to believe, falsely, that a canine unit was on the way, Appellee may go to prison, a nd to relinquish any contraband in the vehicle. {¶28} The trial court concluded by finding, under a totality of the c ircumstances of the stop, Appellee’s consent was not voluntary. {¶29} Upon review of the trial court’s journal entry, we find the tri al court applied a totality of the circumstances test. c. Did Officer Cook engage in coercive behavior? {¶30} Again, consent to search is a well-established exception to the warrant requirement; no Fourth Amendment violation occurs when an indiv idual voluntarily consents to search. Drayton at 207, 122 S.Ct. 2105, 153 L.Ed.2d 242. The United States Supreme Court acknowledged the importance of consent searches i n police investigations, noting that “a valid consent may be the only me ans of obtaining important and reliable evidence” to apprehend a criminal. Schneckloth at 227-228. See , State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747 at ¶ 18. The United State s 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 respon d, hardly eliminates the consensual nature of the response.” INS v. Delgado (1984), 466 U.S. 210, 216, 104 S.Ct. 1758; Drayton, supra , 536 U.S. at 205, 122 S.Ct. at 2113. Moreover, a voluntary con sent need not amount to a waiver; consent can be voluntary without b eing an “intentional relinquishment or abandonment of a known right or privilege.” Schneckloth v.Fairfield County, Case No. 2021 CA 00013 9

Bustamonte (1983), 412 U.S. 218, 235, 93 S.Ct. 2041, 2052 ( quoting Johnson v

. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023); State v. Barnes (1986), 25 Ohio St.3d 203, 495 N.E.2d 922; State v. McConnell, 5th Dist. No. 2002CA00048, 2002-Ohio5300 at ¶ 8. Rather, the proper test is whether the totality of the circumstances demonstrates that the consent was voluntary. Id. Whether or not such consent was voluntarily given depends on the totality of the circumstances. State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762, 1997-Ohio-343. “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. Deemer , 5 th Dist. Tuscarawas No. 2015 AP 01 0006, 2015-Ohio-3199, ¶17, quoting State v. Camp , 5 th Dist. Richland No.14CA42, 2014-Ohio-329, 24 N.E.3d 601, ¶23. {¶31} In State v. Wiegand , 5 th Dist. Licking No. 17-CA-24, 2017-Ohio-9143, ¶28, this Court listed six important factors when determining the vo luntariness of consent: (1) [T]he voluntariness of the defendant’s custodial status; (2 ) the presence of coercive police procedures; (3) the extent and leve l of the defendant’s cooperation with the police; (4) the defendant’s aw areness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence w ill be found. {¶32} In Bickel , this Court in dicta noted that a “reasonable person” would not feel free to leave until the officer actually completed the issuance of the traffic citation or warning. Bickel at ¶26. “The potential coercive effect of the roadside detenti on is far more compelling when the officer requests permission to search befor e completing the citation.” Id . When the officer makes a request to search when the driver is detained while awaiting the issuance of a citation, the reasonable person understands h e is not free to leave.Fairfield County, Case No. 2021 CA 00013 10 {¶33} In Deemer , the Officer asked the defendant for consent to search his veh icle at a traffic stop because the defendant appeared more nervous t han most traffic stops. Deemer at ¶18. The defendant exited the vehicle and spoke with office rs at the rear of the vehicle. Id . at ¶19. While surrounded by officers the defendant was told t hat if she went to jail that night and anything was found on her, it would be a felony. Id . After the implication that she might be taken to jail, the defendant cons ented to a search. Id . This Court held based on the totality of the circumstances the trial court’s determination that the defendant’s consent was not voluntary was not clearly erron eous. {¶34} Similar to Deemer , in the case sub judice , the trial court focused primarily on coercive police procedures and the voluntariness of Appellee ’s custody. Officer Cook, after ascertaining that Appellee had a valid license, did not i ssue a citation, deliver a warning, or instruct Appellee that she was free to leave. Inste ad, Officer Cook asked Appellee to exit the vehicle. He threatened a canine sniff of t he vehicle. He told Appellee he did not want to take anyone to jail tonight, implying that A ppellee may go to jail. Even though the communication between Appellee and the officer was f riendly, Appellee was not free to leave, multiple police officers were on the scene a s she was asked for consent, and she was visibly confused why Officer Cook threatened a cani ne search and implied she may go to jail. {¶35} Based on a totality of the circumstance, we do not find the tri al court’s determination Appellee’s consent was not voluntarily given was clearly erroneous.Fairfield County, Case No. 2021 CA 00013 11 {¶36} Appellant’s sole Assignment of Error is overruled. {¶37} For the foregoing reasons, the judgment of the Common Pleas Cou rt of Fairfield County, Ohio, is hereby affirmed.
By: Wise, John, J. Gwin, J., and Wise, Earle, J., concur.

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