[Cite as State v. Baker, 2015-Ohio-4478.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 15-CA-20
BRANDY L. BAKER                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Court of Common Pleas, Case No.
                                                   14CR00851

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 27, 2015



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant
KENNETH OSWALT                                     TODD W. BARSTOW
20 South Second Street                             538 South Yearling Road, Ste. 202
Newark, OH 43055                                   Columbus, OH 43213
[Cite as State v. Baker, 2015-Ohio-4478.]


Gwin, P.J.

        {¶1}     Appellant, Brandy L. Baker [“Baker”] appeals from the February 6, 2015

Judgment Entry of the Licking County Court of Common Pleas overruling her motion to

suppress.

                                            Facts and Procedural History

        {¶2}     The Licking County Grand Jury indicted Baker on December 18, 2014 for

one count of Trafficking in Drugs (Cocaine); one count of Possession of Drugs (Cocaine),

both felonies of the fourth degree; and one count of Possession of Drugs (Marijuana), a

minor misdemeanor. On January 23, 2015 Baker file a Motion to Suppress Evidence. The

state filed a Memorandum Contra on February 4, 2015. The trial court conducted a

hearing on Baker's Motion on February 6, 2015.

        {¶3}     The following facts were presented during the hearing on Baker's motion to

suppress.

        {¶4}     On October 17, 2014, Officer Adam Hoskinson of the Central Ohio Drug

Enforcement Task Force. (CODE/TF) was in a marked Newark Police Department

vehicle and was wearing a uniform when he observed Baker driving in Newark, Ohio.

        {¶5}     Believing that Baker's operator's license was suspended, Hoskinson began

following her vehicle. Officer Hoskinson testified that Baker failed to properly signal a right

turn at an intersection. He continued to follow her, and she pulled into a private parking

space adjacent to a residential street. Officer Hoskinson did not use lights or a siren. He

walked up to Baker's car and she rolled down her window. Officer Hoskinson testified

that he immediately smelled a strong odor of raw marijuana coming from the vehicle. He

then asked Baker if she had a valid license and Baker stated that she did not have a valid
Licking County, Case No. 15-CA-20                                                        3


driver's license. Officer Hoskinson asked Baker to step out of her vehicle. Baker complied

and Officer Hoskinson conducted a protective pat down search of Baker before asking her

to be seated in his cruiser. Officer Hoskinson confirmed Barker had a suspended

license. Officer Hoskinson requested permission to search the vehicle. Baker

consented to the search of her car. Inside, Officer Hoskinson found what he believed to

be marijuana and crack cocaine. After Officer Hoskinson advised Baker of her Miranda

rights, Baker admitted to possession of the marijuana and cocaine. Subsequent testing

of both substances confirmed Hokinson's suspicions.

      {¶6}   At the conclusion of said hearing, the trial court overruled Baker's motion to

suppress. On March 6, 2015, the trial court conducted a change of plea and sentencing

hearing. The trial court found that counts one and two merged, and imposed an eighteen-

month sentence on count one.

                                      Assignment of Error

      {¶7}   Baker raises one assignment of error,

      {¶8}   "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

OVERRULING HER MOTION TO SUPPRESS."

                                            Analysis

      {¶9}   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
Licking County, Case No. 15-CA-20                                                          4


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); 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.

       {¶10} Baker's sole assignment of error relates to the propriety of the trial court's

overruling of her motion to suppress. Specifically she argues that her consent giving in

response to Officer Hoskinson's request to search her car was not voluntary.

                                       Consent to search.

       {¶11} In the case at bar, Baker concedes that she gave the officer consent to

search her car. Thus, we must determine whether all of the surrounding circumstances

and procedures used by the police in gaining that consent were consistent with appellant's

constitutional rights. State v. Lattimore, 10th Dist. Dist. No. 03AP-467, 2003-Ohio-6829 at

¶ 9.

                           Voluntariness of the consent to search.
Licking County, Case No. 15-CA-20                                                           5


       {¶12} A request for consent and search which occurs during a lawful stop and

does not go beyond the period necessary to effectuate the stop and issue a citation does

not violate the individual’s constitutional rights. This is so because the detention was not

illegally prolonged in order to gain the individual’s consent. See, State v. Batchili, 113

Ohio St.3d 403, 2007-Ohio-2204; State v. Lattimore, 10th Dist. Franklin No. 03AP-467,

2003-Ohio-6829 ¶12-13.

       {¶13} In the case at bar, Baker was driving without a valid driver license. Further,

Officer Hoskinson detected the order of raw marijuana emanating from the vehicle upon

his speaking with Baker. Thus, Officer Hoskinson did have reasonably articulable facts

or individualized suspicion to justify Baker’s further detention in order to ask to search her

car. State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804, (2000). ("The smell of marijuana,

alone, by a person qualified to recognize the odor, is sufficient to establish probable cause

to conduct a search.") In Moore the court further noted, "[o]nce a law enforcement officer

has probable cause to believe that a vehicle contains contraband, he or she may search

a validly stopped motor vehicle based upon the well-established automobile exception to

the warrant requirement. Maryland v. Dyson (1999), 527 U.S. 465, 466, 119 S.Ct. 2013,

2014, 144 L.Ed.2d 442, 445; United States v. Ross (1982), 456 U.S. 798, 804, 102 S.Ct.

2157, 2162, 72 L.Ed.2d 572, 580; State v. Mills (1992), 62 Ohio St.3d 357, 367, 582

N.E.2d 972, 982." Moore, 90 Ohio St.3d at 51, 734 N.E.2d 804.

       {¶14} Baker's consent to search her vehicle was not necessary in the case at bar.

       {¶15} Accordingly, Baker's sole assignment of error is overruled.

       {¶16} The judgment of the Licking County Court of Common Pleas, Licking

County, Ohio is affirmed.
Licking County, Case No. 15-CA-20   6


By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur
