 [Cite as State v. Boling, 2013-Ohio-4813.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 JERRY L. BOLING

         Defendant-Appellant

 Appellate Case No.        25310

 Trial Court Case No. 2011-CR-4240

 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                               Rendered on the 1st day of November, 2013.

                                              ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                                    .............
                                                                                            2



WELBAUM, J.

        {¶ 1}    Defendant-Appellant, Jerry L. Boling, appeals from a trial court decision

 overruling his motion to suppress evidence of a crack pipe and less than five grams of cocaine.

 Boling contends that the evidence should have been suppressed because it was obtained as the

 result of an illegal search and seizure. Specifically, Boling argues that the arresting officer did

 not have legal justification to: (1) conduct a pat-down search; (2) remove evidence from his

 pockets; and (3) open a small container found in his pocket, which contained cocaine.

        {¶ 2}    We conclude that the trial court did not err in denying Boling’s motion to

 suppress. The pat-down search and removal of evidence from Boling’s pockets was lawful,

 because it was based on Boling’s voluntary consent. The scope of Boling’s consent extended to

 the search of the container in his pocket, because Boling specifically consented to a search for

 drugs and weapons. Given the nature of the consent, it was objectively reasonable for the officer

 to open the container. Accordingly, the judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

        {¶ 3}    On December 16, 2011, at 10:53 p.m., Officer Mathew Roberts of the University

 of Dayton Police Department was alone on routine patrol when he observed Jerry L. Boling

 riding a bicycle on L Street in the city of Dayton, Montgomery County, Ohio. Roberts noticed

 that Boling was riding without any lights and that he was traveling in the wrong direction down a

 one-way street. As a result of these traffic violations, Roberts exited his police cruiser and told

 Boling to stop. Boling stopped, and before Roberts could say anything, Boling told Roberts that

 he was aware his bicycle had no lights. Roberts then informed Boling that he was also stopping
                                                                                            3


him for going the wrong way down a one-way street.             Boling responded, “You’re right.”

Transcript (May 15, 2012), p. 9, ln. 12.

       {¶ 4}     Roberts asked Boling where he was going, and Boling explained that he was

headed to a friend’s residence at nearby apartment complex on K Street. Roberts testified that

the apartment complex Boling referred to was associated with several drug complaints; however,

Roberts did not consider it an overall high-crime area.

       {¶ 5}    Roberts next asked Boling for his identification. Boling did not have a valid

form of identification on his person, so he provided his information to Roberts verbally. Roberts

wrote Boling’s information down and ran it through the LEADS system. LEADS verified

Boling’s identity and returned several field interview cards (FI cards) indicating that Boling had a

history of theft offenses. The system did not return any FI cards for offenses involving drugs,

weapons, or violence.

       {¶ 6}     After reviewing Boling’s personal information, Roberts asked Boling if he

would consent to a pat-down search for drugs and weapons. Boling responded, “Sure.” Id. at p.

14, ln. 17. Around the same time, two more officers arrived on the scene - Officer Watts and

Officer Weber. As Roberts searched Boling, the other officers stood approximately four to five

feet away and did not interact with Boling.

       {¶ 7}    During the search, Roberts felt an object near Boling’s right upper-coat pocket.

Roberts asked what the object was, and Boling said that it was a lighter. Roberts continued the

search and felt another object near Boling’s right lower-coat pocket. Once again, Roberts asked

what the object was, and Boling explained that it was also a lighter. Roberts did not think the

second object felt like a typical lighter; therefore, he asked Boling if he could remove it from his
                                                                                             4


pocket.     Boling responded, “Sure.” Transcript (May 15, 2012), p. 14, ln. 17.

          {¶ 8}   Roberts removed the object from Boling’s pocket and discovered that it was not

a lighter, but a small, metallic container shaped like a cylinder. Officer Watts testified that it was

a type of container commonly used to store contraband. Transcript (May 15, 2012), p. 30, ln.

21-22. Roberts handed the container to Officer Watts, who opened it and found a white,

rock-like substance inside. Watts gave the substance to Officer Weber, and Weber conducted a

field test. While Watts and Weber were analyzing the substance, Roberts continued to pat down

Boling.

          {¶ 9}   As Roberts was patting down Boling’s legs, he felt a tube-shaped object in

Boling’s left pant pocket. Based on his experience as an officer, Roberts believed the object

might have been a pipe or some kind of smoking device. As a result, Roberts requested

permission to remove the object from Boling’s pocket, and Boling consented. Roberts removed

the object, and discovered it was a metallic pipe with a rubber fitting at one end and burn marks

at the other end. Roberts believed it was a homemade crack pipe. Around the same time that

Roberts discovered the crack pipe, the field test of the substance in the metallic container tested

positive for cocaine. Roberts then arrested Boling, and issued citations for his traffic violations.



          {¶ 10} On February 1, 2012, Boling was indicted on one count of Possession of Cocaine

in an amount less than five grams, a fifth degree felony, and one count of Possession of Drug

Paraphernalia, a fourth degree misdemeanor. On March 13, 2012, Boling filed a motion to

suppress the evidence seized as a result of the pat-down search. After a hearing on the matter,

the trial court overruled Boling’s motion to suppress, finding that Boling consented to the
                                                                                              5


pat-down search and that his consent was not the product of coercion. Thereafter, Boling

entered a plea of no contest to the possession charge, and the prosecution dismissed the

paraphernalia charge.     Boling was sentenced to up to five years of community control, and a

six-month license suspension.

       {¶ 11}    Boling appeals from the trial court’s decision denying his motion to suppress.



        II. Did the Trial Court Err in Overruling Appellant’s Motion to Suppress?

       {¶ 12} Boling’s sole assignment of error states as follows:

                The Trial Court Erred in Overruling Mr. Boling’s Motion to Suppress.

       {¶ 13} Under this assignment of error, Boling argues that the evidence used against him

in this case should have been suppressed because it was obtained as the result of an illegal search

and seizure. Boling concedes that he was lawfully stopped for his traffic violations, but argues

that Officer Roberts did not have legal justification to: (1) conduct a pat-down search on him; (2)

remove objects from his pockets; and (3) open his metallic container. Specifically, Boling

contends that his consent to the search was not valid, and that Roberts did not have a reasonable

articulable suspicion that Boling was engaged in criminal activity to justify a pat-down.

       {¶ 14}    As a preliminary matter, we note that in ruling on motions to suppress, “the trial

court assumes the role of the trier of fact, and, as such, is in the best position to resolve questions

of fact and evaluate the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586,

592, 639 N.E.2d 498 (2d Dist.1994), citing State v. Clay, 34 Ohio St.2d 250, 298 N.E.2d 137

(1972). Accordingly, when we review suppression decisions, “we are bound to accept the trial

court's findings of fact if they are supported by competent, credible evidence. Accepting those
                                                                                           6


facts as true, we must independently determine as a matter of law, without deference to the trial

court's conclusion, whether they meet the applicable legal standard.” Id.

          {¶ 15}   Boling raises search and seizure issues under the Fourth Amendment to the

United States Constitution, which guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and siezures * * *.” It is well

settled that evidence is inadmissible if it stems from an unlawful search or seizure. (Citation

omitted.) Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct. 407, 9 L.Ed.2d 441

(1963). Searches and seizures conducted without a warrant are per se unlawful unless they come

within one of the “few specifically established and well-delineated exceptions.” (Footnote and

citations omitted.)    Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967).

          {¶ 16} Valid consent is one of the well recognized exceptions to the Fourth Amendment

warrant requirement. (Citations omitted.) Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973).          “The United States Supreme Court has frequently

recognized that a warrantless search is constitutionally permissible where a valid consent to the

search has been obtained. The consent operates as a waiver of the constitutional right against

unreasonable searches and seizures, provided that it is voluntary.” (Citation omitted.)    State v.

Sisler, 114 Ohio App.3d 337, 342, 683 N.E.2d 106 (2d Dist. 1995).

          {¶ 17} “Voluntariness is a question of fact to be determined from all the circumstances *

* *. ” Schneckloth at 249. “ ‘Important factors for the trial court to consider in determining

whether a consent was voluntary include: (1) the suspect’s custodial status and the length of the

initial detention; (2) whether the consent was given in public or at a police station; (3) the
                                                                                            7


presence of threats, promises, or coercive police procedures; (4) the words and conduct of the

suspect; (5) the extent and level of the suspect’s cooperation with the police; (6) the suspect’s

awareness of his right to refuse to consent and his status as a “newcomer to the law”; and (7) the

suspect’s education and intelligence.’ ”      State v. Stepp, 4th Dist. Scioto No. 09CA3328,

2010-Ohio-3540, ¶ 22, quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶

23, citing Schneckloth at 248-249. (Other citations omitted.)

       {¶ 18} In this case, Boling was lawfully stopped in a non-violent manner on a public

street by a single officer. While two other officers arrived at the scene later, they stood four to

five feet away and did not interact with Boling at any time. Boling was questioned by Roberts

for only a short period of time, and the questions were not coercive and could be easily

understood by Boling, a 44-year-old man who had completed one year of college. Transcript, p.

35, ln. 24; p. 36, ln. 1. During the stop, Boling gave Roberts permission to pat him down and

to remove the metallic container and crack pipe from his pockets. While there is nothing in the

record indicating that Roberts advised Boling of his right to refuse the search, “the prosecution is

not required to demonstrate such knowledge as a prerequisite to establishing a voluntary

consent.” (Footnote omitted.) Schneckloth, 412 U.S. at 249, 93 S.Ct. 2041, 36 L.Ed.2d 854.

Furthermore, Boling did not either ask or attempt to leave the scene. Instead, he cooperated with

Roberts, and permitted Roberts to search him without any objection. Boling’s conduct indicates

that his consent was voluntary; therefore, his consent was valid.

       {¶ 19} Because the metallic container and crack pipe were lawfully seized pursuant to

Boling’s consent, we need not address whether a reasonable suspicion of criminal activity existed

to justify the pat-down search. However, the issue remains whether the scope of Boling’s valid
                                                                                             8


consent extends to searching the contents of the container.

       {¶ 20} “The standard for measuring the scope of a suspect's consent under the Fourth

Amendment is that of ‘objective’ reasonableness - what would the typical reasonable person have

understood by the exchange between the officer and the suspect?” (Citations omitted.) Florida

v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “The scope of a search

is defined by its express purpose or by the nature of the object being sought.” State v. Riggins, 1st

Dist. Hamilton No. C-030626, 2004-Ohio-4247, ¶ 30, citing Jimeno at 251. (Other citations

omitted.) “Even if a suspect consents to a search of his person for drugs, reasonableness limits

the time, place, and scope of the search.” Id. at ¶ 31.

       {¶ 21} With respect to searching containers, it is well settled that when an officer

obtains consent to search a vehicle, any containers found inside the vehicle may also be searched

if there are no limitations placed on the search, and the officer asserts that he intends to look for

items which could possibly be inside the container. See Jimeno at 251; Stepp, 4th Dist. Scioto

No. 09 CA3328, 2010-Ohio-3540. The following case law indicates that the same principle

applies to the search of containers found on a defendant during a consensual search of the

defendant’s person.

       {¶ 22} In State v. Crawford, 151 Ohio App. 3d 784, 2003-Ohio-902, 786 N.E.2d 83 (2d.

Dist.), an officer conducted a consensual pat-down search for weapons on a defendant and

asked the defendant if he could remove a triangular object from his pocket. Id. at ¶ 8, 10. The

defendant consented to the removal of the object from his pocket, and the officer discovered it

was a package wrapped in tissue paper. Id. at ¶ 10, 11. The officer unwrapped the package

and discovered that it contained cocaine. Id. at ¶ 11. We concluded that unwrapping the
                                                                                            9


package exceeded the scope of consent, because there was no reasonable likelihood that the

package could have contained a weapon.          Id. at ¶ 26. This necessarily implies that the

search would have been within the scope of consent had there been a reasonable likelihood that

the package contained a weapon. Therefore, if it is reasonably likely that a container could hold

the object of a consensual search, opening the container would be within the scope of consent.

       {¶ 23} In State v. Frost, 77 Ohio App.3d 644, 603 N.E.2d 270 (10th Dist. 1992), a

defendant displayed some attributes of a drug courier while in an airport, and two officers

stopped the defendant, explained why they stopped him, and asked if he would consent to a

pat-down search. Id. at 647. The officer told the defendant that the search was for drugs or

contraband. Id. at 648. The defendant consented to the search, and during the pat-down, one of

the officers felt an object in the defendant's right front pocket. Id. at 647. The officer asked

what the object was, and the defendant said it was cigars. Id. The officer asked if he could

remove and examine the object from his pocket and the defendant said, "No problem." Id. at

648. The officer removed the object from the defendant's pocket, and it was a package wrapped

in plastic. Id. “[H]e did not ask permission but told defendant that he would have to open the

package to inspect it to see what was in it.” Id. The defendant did not object to the officer

opening the package. Id. The officer found cocaine in the package and the defendant was

arrested. Id. On appeal, the defendant argued that he did not consent to the package being

searched. Id. at 649.    The Tenth District concluded that the search of the package was within

the defendant’s scope of consent and stated:

               We cannot say that the trial court erred or abused its discretion in believing

       the officer's testimony that defendant consented to this search. The officer's
                                                                                           10


       testimony was that defendant consented to the search of the object in his pocket to

       ascertain if it contained cigars. When it was removed from his pocket, the officer

       could not ascertain the nature of the contents of the package by only looking at it,

       and told defendant that it would have to be opened to see what was in it. It was

       at this point that defendant did not object or expressly consent. However, if the

       officer's testimony that defendant consented to an examination of the object to

       ascertain if it contained cigars is believed and accepted, no further consent was

       necessary for opening the package since it had already been given. Id. at 650.

       {¶ 24} We also note that appellate courts in other states have concluded that the scope of

a consensual search of a person may include the search of containers found on the person. See

Allen v. State, 909 So.2d 435, 438 (Fla.App.2005) (“Having been given a general consent to

search one's person, a police officer may indeed seize objects found in that person's pocket, and if

they consist of closed containers, the officer may open them”); See also State v. Lacewell, N.C.

App. No. COA07-657, 2008 WL 1948032, *3 (May 6, 2008) (consent to search the defendant’s

person for weapons or contraband extended to the search of a small Advil container found in the

defendant’s pocket).

       {¶ 25}    In the present case, Boling expressly consented to be searched for drugs and

weapons. Boling did not place any limitations on the search and consented to the officer

removing the metallic container from his pocket.        When the container was removed from

Boling’s pocket, the officers could not ascertain whether it contained drugs by just looking at it.

Additionally, Officer Watts testified that it was a type of container commonly used to store

contraband. A typical reasonable person would have expected the container to be searched,
                                                                                           11


because the object of the search was drugs, and given the size and type of container, there was a

reasonable likelihood that drugs could have been found inside. Furthermore, the search was not

unreasonable based on the facts and circumstances of this case. Accordingly, Watts did not

exceed the scope of the consensual search when he opened Boling’s container.

       {¶ 26} For the foregoing reasons, the trial court did not err in overruling Boling’s

motion to suppress. The metallic container and crack pipe were lawfully searched and seized

pursuant to valid consent. Accordingly, Boling’s sole assignment of error is overruled.



                                        III. Conclusion

       {¶ 27} Having overruled Boling’s sole assignment of error, the decision of the trial court

denying Boling’s motion to suppress is affirmed.

                                          .............

FROELICH, J., concurring:

       {¶ 28} The trial court made a decision based on the evidence before it. Depending on

innumerable factors, the result in this motion might have been different had there been testimony,

e.g., from the defendant, for the court to weigh in determining whether the State met its burden of

showing consent. Based on the record before us, I concur that the judge’s decision should be

affirmed.

       {¶ 29} The trial court heard testimony that a person who knew he had drugs on him,

knowingly and voluntarily gave his consent to the police to search him and any containers on him

for drugs. No matter the retrospective, inherent difficulty in understanding and accepting this

choice by the defendant (there could be reasons, e.g., he forgot he had the drugs, the containers or
                                                                                            12


even the pants, were not his), the trial court had no factual basis to find otherwise, unless it were

to totally reject the only testimony presented to it.

        {¶ 30}     Under Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed 2d

1247 (1968), “when a defendant testifies in support of a motion to suppress evidence on Fourth

Amendment grounds, his testimony may not thereafter be admitted against him at trial on the

issue of guilt.”    The reasoning is that a defendant should not have to risk exercising his

constitutional rights by testifying in a suppression hearing at the risk of incriminating himself.

Id.

        {¶ 31} If the prosecutor, having interviewed the officers, believed the consent was not

voluntary and knowing, the evidence should not be used against the defendant; at the same time,

if the defendant honestly believed his consent was not given knowingly and voluntarily, there

seems to be no downside in testifying and allowing a trial court to view and hear all the

testimony.

                                             ..........

DONOVAN, J., dissenting:

        {¶ 32} I disagree. In my view, the testimony adduced establishes that Officer Roberts,

without any justification, was looking for narcotics and he found them. There is absolutely

nothing in this record which establishes a basis to believe that Boling was armed and dangerous.

        {¶ 33} Prior to the search, Boling was compliant, made no assertive movements, was not

belligerent, did not reach into his pockets and had not discarded anything. Although the State

argues the search was for “officer’s safety” and consensual, the search was neither justified from

its inception nor was it limited in scope to the accomplishment of its stated goal.
                                                                                            13


       {¶ 34} Lacewell is distinguishable in that the initial request included a request to search

for contraband, not just weapons, hence the North Carolina court could reasonably find that

Lacewell understood the scope of his consent included a search for drugs. With respect to

Boling, the State may not claim more authority than what was given in conducting a limited pat

down for weapons.

       {¶ 35} In my view, the majority sets a dangerous precedent by citing with approval two

states which have extended a consensual pat down of one’s person for weapons to necessarily

include opening closed containers (which are clearly not weapons) located on the individual.

This is especially true, as here, where the trial court’s decision failed to address both the scope of

Boling’s consent and the opening of the closed cylinder.

       {¶ 36} Lastly, the concurring opinion is critical of defendant’s choice not to testify,

however, the lawfulness of the search and the scope of Boling’s consent was the State’s burden to

establish, not Boling’s.

       {¶ 37} I would reverse.

                                            ..........




Copies mailed to:

Mathias H. Heck
April F. Campbell
Lucas W. Wilder
Hon. Frances E. McGee
