[Cite as State v. Carothers, 2015-Ohio-4569.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                        Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015 AP 04 0017
JASON C. CAROTHERS

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2014 CR 09 0189


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         November 3, 2015



APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

MCIHAEL J. ERNEST                               TRAVIS COLLINS
ASSISTANT PROSECUTOR                            105 Jamison Avenue
125 East High Avenue                            Post Office Box 271
New Philadelphia, Ohio 44663                    Cadiz, Ohio 43907
Tuscarawas County, Case No. 2015 AP 04 0017                                            2

Wise, J.

      {¶1}    Appellant, the State of Ohio, appeals a judgment of the Tuscarawas

County Common Pleas Court granting Appellee Jason C. Carothers’ motion to

suppress.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On August 8, 2013, Appellee Jason C. Carothers was a passenger in a

vehicle operated in the City of New Philadelphia. The vehicle traveled over a double

yellow line and was stopped by Officer James Miller of the New Philadelphia Police

Department.     (T. at 8-9). The stop occurred on the ramp to U.S. 250. (T. at 8)

According to Officer Miller, he approached the vehicle and observed that the driver,

Jessica Deemer, appeared nervous and that her pupils were dilated. (T. at 8-9). After

obtaining the necessary personal identification information, Officer Miller went back to

his vehicle to prepare a traffic citation that was to be issued to Ms. Deemer, along with

checking for any outstanding warrants. (T. at 9).

      {¶3}    While Officer Miller was completing the traffic ticket, Sgt. Eddie Jones of

the Tuscarawas County Sheriff's Department arrived at the traffic stop. (T. at 9). Soon

thereafter, New Philadelphia Police Officer, Mitch Gobely, also arrived at the traffic

stop. (T. at 9). According to Officer Gobely, he approached the vehicle for the purpose

of seeking consent to search it. (T. at 37).

      {¶4}    Officer Gobely stated that prior to approaching the vehicle, he spoke with

Officer Miller and was advised by him that the operator of the vehicle appeared to have

indicators that she had been using narcotics. (T. at 8-9). According to Officer Gobely,

he asked Ms. Deemer for consent to search her vehicle. (T. at 8-9). Officer Gobely
Tuscarawas County, Case No. 2015 AP 04 0017                                               3


stated that Ms. Deemer appeared "a little bit hesitant" and responded that "it's not my

vehicle. I'm not sure if I can do that." (T. at 9). Officer Gobely went on to state that Ms.

Deemer looked to Appellee, her passenger, seemingly for advice. (T. at 36). According

to Officer Gobely, Appellee stated "there is nothing in here. You can go ahead and

search it." (T. at 9). According to Gobely, Ms. Deemer then looked at him and said

"yeah, that's fine" and consented to a search of the vehicle. (T. at 36). Officer Gobely

then had Ms. Deemer exit the vehicle, where she was further questioned outside of the

vehicle. (T. at 36-37).

      {¶5}   Officer Gobely then went to the passenger side of the vehicle and

requested that Appellee also exit the vehicle. (T. at 37). According to Officer Gobely,

he instructed Appellee to exit his vehicle and put his hands on the car. (T. at 37).

Officer Gobely stated that he was going to pat him down for weapons and, as he was

doing so, asked Appellee if there was anything in his pockets he needed to know

about. (T. at 37). Officer Gobely stated that Appellee advised he did not have any

weapons or anything else on him. (T. at 37). Officer Gobely then asked Appellee for

consent to go through his pockets in order to make sure. (T. at 37). Officer Gobely

testified that Appellee advised that "yes, that's fine." Officer Gobely then went through

Appellee's pockets during which he did not discover any contraband.

      {¶6}   Officer Gobely stated he then began to pat down Appellee's leg and when

he got to his shoes Officer Gobely requested that Appellee remove his shoes in order

to check them. (T. at 37). Officer Gobely stated that Appellee removed his left shoe

and in doing so shook his foot as he pulled his foot out of the shoe. (T. at 37). Officer

Gobely stated that once the shoe was removed, he found the different types of
Tuscarawas County, Case No. 2015 AP 04 0017                                             4


narcotics in the bottom of the shoe. (T. at 37). Officer Gobely reiterated that he asked

Appellee to please remove his shoes one at a time, to which he complied. According to

Officer Gobely, shortly after asking Appellee to remove his shoe, he became

concerned that Appellee was attempting to conceal something. Officer Gobely stated

that Appellee removed his left shoe differently than he did his right, as if he was trying

to move something towards the front of the shoe.

      {¶7}   Appellee was indicted by the Tuscarawas County Grand Jury with one

count of Possession of Cocaine, in violation of R.C. §2925.11(A) and one count of

Possession of Heroin, in violation of R.C. §2925.11(A).

      {¶8}   On February 3, 2014, Appellee filed a motion to suppress on the basis that

Hendrix lacked a reasonable and articulable suspicion of criminal activity to continue to

detain him after the initial traffic stop. Appellee also challenged the search of his

vehicle arguing lack of consent.

      {¶9}   The trial court held an evidentiary hearing on March 14, 2014. Following

this hearing, the court granted the motion to suppress, finding:

              “Agents of the State of Ohio, on the date in question, conducted an
      illegal, unconstitutional search of the person of the Defendant without a
      warrant and that the circumstances surrounding the search of the
      Defendant on the date in question did not implicate the right of the State to
      engage in a warrantless search of the person of the Defendant. More
      specifically, the suggestion by Agents of the State of Ohio that the
      Defendant gave permission or consented to the search of his person for
      contraband, as opposed to a pat down search of the Defendant for
      weapons, flies in the face of the evidence. The Defendant was ordered to
      remove his shoe by one New Philadelphia, Ohio Police Officer and
      requested by the other to take off his shoe where the drugs in question
      were found. At no time did the Defendant give consent to the removal of
      his shoe and the circumstances established in the evidence can in no way
      suggest that it did.” (Judgment Entry, April 23, 2015).

      {¶10} The state now appeals, assigns the following errors for review:
Tuscarawas County, Case No. 2015 AP 04 0017                                            5


                                ASSIGNMENTS OF ERROR

     {¶11} “I. THE TRIAL COURT COMMITTED REVERSIABLE [SIC] ERROR IN

CONCLUDING THAT THE APPELLANT DID NOT CONSENT KNOWINGLY,

INTELLIGENTLY AND VOLUNTARILY TO A SEARCH OF HIS PERSON.

     {¶12} “II. THE TRIAL COURT COMMITTED REVERSIABLE [SIC] ERROR IN

CONCLUDING         THAT      THE     SEARCH          OF      THE    APPELLEE         WAS

UNCONSTITUTIONAL AS THE CONTRABAND FOUND ON THE APPELLEE WAS

THE SUBJECT OF INEVITABLE DISCOVERY.”

                                   State's Right to Appeal

     {¶13} A court of appeals has jurisdiction to entertain the state's appeal from a

trial court's decision to suppress evidence only where the state has complied with

Crim.R. 12(K). State v. Perez, 1st Dist. Hamilton Nos. C–040363, C–040364, C–

040365, 2005–Ohio–1326, ¶ 12, citing State v. Buckingham, 62 Ohio St.2d 14, 402

N.E.2d 536(1980), syllabus (interpreting former Crim.R. 12(J)).

     {¶14} Crim.R. 12(K) states in pertinent part:

            When the state takes an appeal as provided by law from an order
     suppressing or excluding evidence, the prosecuting attorney shall certify
     that both of the following apply:

            (1) the appeal is not taken for the purpose of delay;

           (2) the ruling on the motion or motions has rendered the state's
     proof with respect to the pending charge so weak in its entirety that any
     reasonable possibility of effective prosecution has been destroyed.

           The appeal from an order suppressing or excluding evidence shall
     not be allowed unless the notice of appeal and the certification by the
     prosecuting attorney are filed with the clerk of the trial court within seven
     days after the date of the entry of the judgment or order granting the
     motion. * * *.
Tuscarawas County, Case No. 2015 AP 04 0017                                            6


      {¶15} Our review of the record reveals a certifying statement by the prosecutor

as outlined in Crim.R. 12(K) was filed on April 21, 2015. We therefore have jurisdiction

to proceed to the merits of this appeal.

                                              I.

      {¶16} In its First Assignment of Error, the State of Ohio contends the trial court

erroneously granted Appellee's motion to suppress. We disagree.

      {¶17} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting 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.

      {¶18} 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 finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR

57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141;

State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N .E.2d 1172; State v. Claytor

(1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio

App.3d 592, 621 N .E.2d 726.
Tuscarawas County, Case No. 2015 AP 04 0017                                           7


      {¶19} Here, Appellant State of Ohio contends the trial court incorrectly decided

the ultimate or final issue raised in the Motion to Suppress.

      {¶20} The United States Supreme Court has held that “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911.

      {¶21} Initially, we find the Ohio Supreme Court has emphasized that probable

cause is not required to make a traffic stop; rather the standard is reasonable and

articulable suspicion. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d

1204, ¶ 23. Further, neither the United States Supreme Court nor the Ohio Supreme

Court considered the severity of the offense as a factor in determining whether the law

enforcement official had a reasonable, articulable suspicion to stop a motorist.

      {¶22} Officer Miller stopped the vehicle in which Appellee was a passenger for

travelling over the double yellow line. Neither the driver, Jessica Deemer, nor Appellee

challenged the initial stop of the vehicle.

      {¶23} In the instant case, Appellee Carothers argued in his suppression motion

that he first thought the officers were not justified in detaining him beyond the normal

time for the traffic stop and second that he never consented to a search of his shoes

and that he only removed same pursuant to a police order. The trial court agreed and

sustained Appellee’s motion.

      {¶24} The State of Ohio argues that the trial court erred in finding that Appellee

did not consent to the search of his person for contraband.
Tuscarawas County, Case No. 2015 AP 04 0017                                           8


     {¶25} Consent to search is well-established exception to the warrant

requirement. No Fourth Amendment violation occurs when an individual voluntarily

consents to a search. United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105.

The proper test is whether the totality of the circumstances demonstrates the consent

was voluntary. State v. Robinette, 80 Ohio St.3d 234, 1997–Ohio–343.

     {¶26} 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 circumstances:

             “[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 Fourth and
      Fourteenth Amendments require that it demonstrate that the consent was
      in fact voluntarily given, and not the result of duress or coercion, express
      or implied. Voluntariness is a question of fact to be determined from 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 required 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.Ed.2d at 875.
      State v. Robinette, 1997–Ohio–343, 80 Ohio St.3d 234, 242–43, 685
      N.E.2d 762, 769

     {¶27} One well-established exception to the warrant requirement is the consent

search. No Fourth Amendment violation occurs when an individual voluntarily consents

to a search. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153

L.Ed.2d 242 (2002) (stating that “[p]olice officers act in full accord with the law when

they ask citizens for consent”); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973) (“[A] search conducted pursuant to a valid consent

is constitutionally permissible”); State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d

640 (1990). In Schneckloth, the United States Supreme Court acknowledged the

importance of consent searches in police investigations, noting that “a valid consent

may be the only means of obtaining important and reliable evidence” to apprehend a
Tuscarawas County, Case No. 2015 AP 04 0017                                          9

criminal. Id. at 227–228, 93 S.Ct. 2041. See, also, State v. Fry, 4th Dist. No. 03CA26,

2004–Ohio–5747, 2004 WL 2428439, ¶ 18. State v. Camp, 2014-Ohio-329, 24 N.E.3d

601, 607, ¶ 24 (5th Dist.)

      {¶28} The burden of proving that the suspect voluntarily consented to the search

rests upon the prosecution. Schneckloth, supra; Bumper v. North Carolina, 391 U.S.

543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); State v. Hassey, 9 Ohio App.3d 231, 459

N.E.2d 573 (10th Dist.1983); State v. Pi Kappa Alpha Fraternity, 23 Ohio St.3d 141,

491 N.E.2d 1129 (1986). The state's burden is not satisfied by showing a mere

submission to a claim of lawful authority. Robinette, 80 Ohio St.3d at 243, 685 N.E.2d

at 770.

      {¶29} The United States 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 respond, hardly eliminates the consensual nature of the response.”

I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Drayton,

supra, 536 U.S. at 205, 122 S.Ct. at 2113. Moreover, a voluntary consent need not

amount to a waiver; consent can be voluntary without being an “intentional

relinquishment or abandonment of a known right or privilege.” Schneckloth v.

Bustamonte, 412 U.S. 218, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), (quoting

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); State v.

Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922 (1986); State v. McConnell, 5th Dist. Stark

No. 2002CA00048, 2002–Ohio–5300, 2002 WL 31270071, ¶ 8. Rather, the proper test

is whether the totality of the circumstances demonstrates that the consent was

voluntary. Id. Further, “[v]oluntary consent, determined under the totality of the
Tuscarawas County, Case No. 2015 AP 04 0017                                           10

circumstances, may validate an otherwise illegal detention and search.” State v.

Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762 (1997), citing Davis v. United

States, 328 U.S. 582, 593–594, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946).

      {¶30} “Whether a consent to search was voluntary or was the product of duress

or coercion, either express or implied, is a question of fact to be determined from the

totality of the circumstances.” State v. Lett, 11th Dist. No. 2008-T-0116, 2009-Ohio-

2796, ¶ 32, citing Schneckloth at 248–249 and State v. Chapman, 97 Ohio App.3d 687,

691, 647 N.E.2d 504 (1st Dist.1994). Thus, this is a determination best left to the trier

of fact, i.e. the court, and will not be reversed unless it is not supported by competent

credible evidence.

      {¶31} The following testimony of Officer Miller was presented on cross-

examination at the suppression hearing:

      Q: So it would be your position that Mr. Carothers consented to a search
      of his shoes?

      A: Initially Mr. Carothers and Ms. Deemer I believe consented to the
      search of their person, yes.

      Q: Did you hear on the video when - was it you that told Mr. Carothers
      "Now you have to take your shoes off'?

      A: That was probably me, yeah.

      Q: So, Mr. Carothers had - essentially was indicating he was unwilling to
      take his shoes off, is that correct?

      A: I don't think he actually said anything or verbalized anything. I think he
      was kind of - I guess he seemed reluctant to take his shoes off. I don't
      think he actually indicated that he did not wish to take his shoes off or he
      did not want to be searched or say anything along those lines.

      Q: But you ordered Mr. Carothers to take his shoes off, correct?
Tuscarawas County, Case No. 2015 AP 04 0017                                              11


      A: I said "Now you have to take your shoes off," and then he took his
      shoes off.

      Q: You would construe that as an order, correct?

      A: I guess you can construe it as an order, yeah. (Tr. page 20-21).

      {¶32} Additionally, Officer Miller testified that after the initial stop, at least one

officer was watching Appellee Carothers at all times, and no one had observed him

place anything into Ms. Deemer's purse. He stated that he did not believe he had

probable cause to arrest Appellee Carothers once he found the syringe in Jessica

Deemer's purse, but he did believe he had probable cause to search him. He further

stated that Appellee Carothers was not under arrest during the search of his shoes. (T.

at 28-29).

      {¶33} Pursuant to the above testimony, the trial court found that Appellee

removed his shoe in response to an order from the police, and that he did not give

consent to the removal or search of his shoes.

      {¶34} Given these facts, the trial court's conclusion that the consent was not

voluntary is supported by competent credible evidence.

      {¶35} Therefore, since the determination of whether consent to search

Appellee’s person was voluntary is a question of fact to be determined from the totality

of the circumstances, and the trial court had competent credible evidence to support

the conclusion that such consent was not voluntarily given, we defer to that decision.

Lett, 2009–Ohio–2796, ¶ 32 (consent is a question of fact).

      {¶36} The trial court did not abuse its discretion in finding that consent was not

voluntary.

      {¶37} The State of Ohio’s First Assignment of Error is overruled.
Tuscarawas County, Case No. 2015 AP 04 0017                                          12


                                                II.

     {¶38} In its Second Assignment of Error, the State further argues that the seized

contraband in this case was the subject of inevitable discovery. We disagree.

     {¶39} In 1985, the Supreme Court of Ohio adopted the inevitable discovery

exception to the exclusionary rule. State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763

(1985). The Supreme Court held:

     {¶40} “That illegally obtained evidence is properly admitted in a trial court

proceeding once it is established that the evidence would have been ultimately or

inevitably discovered during the course of a lawful investigation. The prosecution will

have the burden to show within a reasonable probability that police officials would have

discovered the derivative evidence apart from the unlawful conduct. 18 Ohio St.3d at

196, 480 N.E.2d 763; See, also, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81

L.Ed.2d 377 (1984).

     {¶41} In the case at bar, we do not find that the officers inevitably would have

discovered the drugs in Appellee’s shoe.

     {¶42} The State argues that once the officers found the syringe in the driver

Jessica Deemer’s purse, which was located in the vehicle, probable cause existed to

search the entire vehicle and its passengers.

     {¶43} This Court in State v. Deemer, 5th Dist. Tuscarawas App. No. 2015 AP

01 0006, 2015-Ohio-3199, decided August 7, 2015, upheld the trial court’s suppression

of the seized evidence based on its determination that consent to search was not freely

given by Ms. Deemer.
Tuscarawas County, Case No. 2015 AP 04 0017                                    13


      {¶44} Because illegally obtained evidence cannot be the basis for a probable

cause determination, we find this argument not well-taken.

      {¶45} Appellant’s Second Assignment of Error is overruled.

      {¶46} For the foregoing reasons, the judgment of the Court of Common Pleas,

Tuscarawas County, Ohio is affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.




JWW/d 1020
