[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 : O P I N I O N 

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." 

I 

{¶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. 

 

 

 

 

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