[Cite as State v. Dieckhoner, 2012-Ohio-805.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96694




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                PHILIP DIECKHONER
                                                      DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-543447

        BEFORE:           Keough, J., Kilbane, P.J., and Blackmon, A.J.

        RELEASED AND JOURNALIZED: March 1, 2012
ATTORNEY FOR APPELLANT

Mary Elaine Hall
645 Leader Building
526 Superior Avenue, East
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: John Wojton
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

        {¶1} Defendant-appellant, Philip Dieckhoner (“Dieckhoner”), appeals the trial

court’s denial of his motion to suppress. Finding merit to the appeal, we reverse and

remand.

        {¶2} In November 2010, Dieckhoner was charged with one count of drug

possession in violation of R.C. 2925.11(A). Dieckhoner moved to suppress the drugs

discovered and seized by Lakewood police officer William Comerford (“Comerford”),

arguing that Comerford lacked reasonable suspicion and probable cause to search him and

that any consent he gave was involuntary. The following testimony and evidence was

presented at the suppression hearing.

        {¶3} On October 22, 2010, Comerford was driving his marked zone car on

Madison Avenue in Lakewood, Ohio, when he observed a vehicle with only one working

headlight traveling behind him. He pulled behind the vehicle and conducted a traffic

stop.   Comerford testified that the stop occurred at approximately 12:15 a.m. in a

business area surrounded by a residential neighborhood.

        {¶4} When Comerford approached the vehicle, he asked the driver, who was

identified as Dieckhoner, for his license and proof of insurance. Comerford went to his

patrol vehicle and verified that Dieckhoner’s license was valid. Comerford then returned

to Dieckhoner and advised him that he had only one working headlight. According to

Comerford, Dieckhoner stated that he did not realize the headlight was out, so Comerford
asked him to exit his vehicle and showed him that the right, front headlight was not

working.

       {¶5} Comerford testified that he gave Dieckhoner a verbal warning advising him

to get the headlight fixed. Comerford first testified: “He was given back his license and

I told him he’s all set, have a good night, and then at that point I had asked him if he had

anything on his person, anything illegal, and he told me he did not. And I asked him for

consent. I asked if it would be all right for me to check and he said — he gave me verbal

consent.” Specifically, Comerford stated that he gave Dieckhoner his driver’s license

back and told him “he’s all set, have a good night.” As Dieckhoner turned to walk

towards his vehicle, Comerford asked, “[b]y the way, do you have anything illegal; guns,

knives, bombs, anything[?]” Dieckhoner responded, “No.” Comerford then asked “if it

would be [alright] for me to check * * * [your] person and [Dieckhoner] said it would be

okay.” Comerford testified that a second Lakewood police officer arrived on the scene

after the initial traffic stop but during the interaction with Dieckhoner. According to

Comerford, this officer did not have any direct contact with Dieckhoner; rather, the

officer stood on the curb, approximately five feet away, while watching the interactions

between them.

       {¶6} As Comerford searched Dieckhoner, he felt a small plastic bag in the right

front coin pocket of Dieckhoner’s pants. When Comerford attempted to see what it was,

he asked Dieckhoner if it was a bag of marijuana. Dieckhoner replied, “No, it’s coke.”

Comerford then retrieved a clear plastic bag containing a white powdery substance, which
was later identified as cocaine.        At that point, Comerford secured Dieckhoner in

handcuffs and advised that he was under arrest.

       {¶7} Comerford testified that he questions everyone he stops whether they have

any weapons, drugs, or guns on their person and that Dieckhoner’s demeanor was relaxed

when he asked this question. He testified that Dieckhoner was not acting suspicious and

he did not have any reason to believe that Dieckhoner had drugs on him when he asked

the question. He further testified that he did not impede Dieckhoner’s ability to move or

leave, and did not draw his gun or threaten Dieckhoner with his taser or pepper spray

during their conversation.

       {¶8} Lakewood police detective Amelio Leanza (“Leanza”) testified that he

interviewed Dieckhoner after his arrest for drug possession. According to Detective

Leanza, Dieckhoner stated that he gave Comerford consent to search “because he didn’t

think [the cocaine] would be found because it was so small and it was in his coin pocket.”

       {¶9} After the hearing, the trial court denied the motion to suppress. Dieckhoner

then pled no contest and the court found him guilty. The trial court sentenced him to one

year of community control sanctions and 50 hours of court community work service.

       {¶10} Dieckhoner appeals, raising two assignments of error for review. He

contends that the trial court erred when it denied his motion to suppress because (1) he

did not voluntarily consent to the pat-down search, and (2) the pat-down search was not

incident to arrest or for officer safety.
       {¶11} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

In deciding a motion to suppress, the trial court assumes the role of trier of fact. Id. A

reviewing court is bound to accept those findings of fact if they are supported by

competent, credible evidence. Id. However, a reviewing court then must independently

determine, without deference to the trial court, whether the facts satisfy the applicable

legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539

(4th Dist.1977).

       {¶12} In denying Dieckhoner’s motion, the trial court stated: “I am going to find

that the [sic] consent was given for the search.” This “finding” is not in dispute. The

issue is not whether consent was given, but whether the consent was voluntarily given.

The trial court’s decision is silent on this issue. On appeal, Dieckhoner argues that under

the totality of the circumstances, his consent was involuntary making Comerford’s search

unreasonable. The State argues that the search was performed after voluntary consent.

       {¶13} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them, per se, unreasonable unless an

exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967). Where there is a reasonable and articulable suspicion to believe that a motor

vehicle or its occupants are in violation of the law, stopping the vehicle and detaining its

occupants will not violate the Constitution. Delaware v. Prouse, 440 U.S. 648, 663, 99

S.Ct. 1391, 59 L.Ed.2d 660 (1979). However, the scope of a detention “must be carefully
tailored to its underlying justification * * * and last no longer than is necessary to

effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319,

75 L.Ed.2d 229 (1983). “The lawfulness of the initial stop will not support a ‘fishing

expedition’ for evidence of crime.” State v. Bevan, 80 Ohio App.3d 126, 130, 608

N.E.2d 1099 (9th Dist.1992).

       {¶14} However, an officer may expand the scope of the stop and may continue to

detain the vehicle without running afoul of the Fourth Amendment if the officer discovers

further facts after the initial stop that give rise to a reasonable suspicion that additional

criminal activity is afoot. See, e.g., Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968); State v. Robinette, 80 Ohio St.3d 234, 240, 1997-Ohio-343, 685

N.E.2d 762 (“Robinette II”).

       When a police officer’s objective justification to continue detention of a
       person * * * is not related to the purpose of the original stop, and when that
       continued detention is not based on any articulable facts giving rise to a
       suspicion of some illegal activity justifying an extension of the detention,
       the continued detention to conduct a search constitutes an illegal seizure.
       Robinette II at paragraph one of the syllabus.

       {¶15} Thus, if a law enforcement officer, during a valid investigative stop,

ascertains “reasonably articulable facts giving rise to a suspicion of criminal activity, the

officer may then further detain and implement a more in-depth investigation of the

individual.” Id. at 241.

       {¶16} “Voluntary consent, determined under the totality of the circumstances, may

validate an otherwise illegal detention and search.” Id., citing Davis v. United States,

328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946).
       {¶17} In Robinette II, the Ohio Supreme Court, relying on its decision in Robinette

I, and the United States Supreme Court decisions in Schneckloth v. Bustamonte, 412 U.S.

218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) and Royer, 460 U.S. 491, 103 S.Ct. 1319, 75

L.Ed.2d 229, adopted a totality-of-the-circumstances test to determine whether consent is

voluntary. Id., at paragraphs two and three of the syllabus. Under this test,

       “the Fourth and Fourteenth Amendments require that [the State]
       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.” Robinette II at 242-243, quoting
       Bustamonte at 248-249.

       {¶18} The court in Robinette II further explained that: “‘the State has the burden

of proving that the necessary consent was obtained and that it was freely and voluntarily

given, a burden that is not satisfied by showing a mere submission to a claim of lawful

authority.’”   (Emphasis in original.)    Id. at 243, quoting Royer at 497.      “Once an

individual has been unlawfully detained by law enforcement, for his or her consent to be

considered an independent act of free will, the totality of the circumstances must clearly

demonstrate that a reasonable person would believe that he or she had the freedom to

refuse to answer further questions and could in fact leave.” Robinette II at 245-246,

citing Bustamonte; Royer; State v. Barnes, 25 Ohio St.3d 203, 208-209, 495 N.E.2d 922

(1986).

       {¶19} The facts in Robinette mirror those before this court. In Robinette II, the

court determined that consent was not freely and voluntarily given based on the totality of
the circumstances. In that case, the officer stopped Robinette’s vehicle for speeding.

After obtaining Robinette’s license and verifying its validity, the officer returned to

Robinette’s vehicle and asked him to exit the vehicle and walk to the rear of Robinette’s

car, which was in front of the patrol car. The officer returned to his patrol car and turned

on a video camera. The officer then returned to Robinette, issued a verbal warning

regarding Robinette’s speed, and returned Robinette’s driver’s license. After returning

the license, and without any break in the conversation, the officer asked Robinette, “One

question before you get gone [sic]: are you carrying any illegal contraband in your car?

Any weapons of any kind, drugs, anything like that?” According to the officer, as part of

the drug interdiction project, he routinely asked permission to search the cars he stopped

for speeding violations. After Robinette denied having any contraband in the car, the

officer immediately asked Robinette if he could search the car. “Robinette hesitated,

looked at his car, then back at the officer, then nodded his head.” Id. at 243. The

officer searched Robinette’s car and seized marijuana and a pill.

       {¶20} The Robinette court was troubled by the timing of the officer’s immediate

transition from giving Robinette the warning for speeding into questioning regarding

contraband and the request to search. Id. at 244. As the Ohio Supreme Court observed

in Robinette I:

       The transition between detention and a consensual exchange can be so

       seamless that the untrained eye may not notice that it has occurred. The

       undetectability of that transition may be used by police officers to coerce
       citizens into answering questions that they need not answer, or to allow a

       search of a vehicle that they are not legally obligated to. Id. at 654; see

       also Robinette II at 244.

       {¶21} In Robinette II, the Ohio Supreme Court expanded on its observation and

explained:

       When these factors are combined with a police officer’s superior position of
       authority, any reasonable person would have felt compelled to submit to the
       officer’s questioning. While [the officer’s] questioning was not expressly
       coercive, the circumstances surrounding the request to search made the
       questioning impliedly coercive. Even the State conceded, at an oral
       argument before the United States Supreme Court, that an officer has
       discretion to issue a ticket rather than a warning to a motorist if the motorist
       becomes uncooperative. * * * From the totality of the circumstances, it
       appears that Robinette merely submitted to “a claim of lawful authority”
       rather than consenting as a voluntary act of free will. Id. at 244-245.

       {¶22} We find no legal distinction between Robinette and the case before this

court. Just as the Ohio Supreme Court was in Robinette, we are also troubled by the

timing of Comerford’s immediate transition from giving Dieckhoner the warning for the

improperly working headlight to questioning him about contraband and then requesting to

search his person.

       {¶23} Comerford gave Dieckhoner a verbal warning for the improperly working

headlight and told Dieckhoner that “he was all set and to have a good night.” As

Dieckhoner turned to walk toward his car, Comerford then asked, “[b]y the way, do you

have anything illegal; guns, knives, bombs, anything[?]” Unlike the facts in Robinette,

there was no departmental or “drug interdiction policy” that required Comerford to

question Dieckhoner about weapons or drugs. With the second officer standing five feet
away, Dieckhoner denied having any contraband. Comerford immediately asked for

consent to search him and Dieckhoner agreed.

      {¶24} Comerford testified that he asks everyone he stops if they have any

weapons, drugs, or guns on their person, and that he had no particular reason for asking

Dieckhoner to search his person. In fact, Comerford testified that Dieckhoner was not

acting suspicious in any way and that Dieckhoner was free to leave.

      {¶25} Although Detective Leanza testified that Dieckhoner stated he consented to

the search because he did not think Comerford would find the drugs in his pocket, the test

for whether consent was voluntary depends on the totality of the circumstances at the time

consent was given. Dieckhoner’s reasoning for consenting to the search given after

being arrested and to another law enforcement officer while in police custody does not

withstand the State’s burden of clearly demonstrating that Dieckhoner’s consent was

voluntary.

      {¶26} After considering the totality of circumstances in the instant case, including

Comerford’s testimony that Dieckhoner appeared calm, the seamless transition between

the detention and the request for consent, the fact that Comerford had no reasonable

suspicion that Dieckhoner was involved or engaging in criminal activity, and the presence

of another uniformed police officer, this court finds there was a sufficient show of

authority such that Dieckhoner would not believe at the time that he was free to get in his

car and drive away. Under these circumstances, any reasonable person would have felt
compelled to submit to the officer’s search, rather than consenting as a voluntary act of

free will.1 See Robinette at 244-254.

       {¶27} Accordingly, the trial court erred in denying Dieckhoner’s motion to

suppress.

       {¶28} Dieckhoner’s first assignment of error is sustained.

       {¶29} In the second assignment of error, Dieckhoner continues to challenge the

search, arguing that the pat-down was not incident to his arrest or Comerford’s safety.

However, we need not address this issue because of our determination that Dieckhoner’s

consent was not voluntary. See App.R. 12(A)(1)(c).

       {¶30} Therefore, judgment is reversed and the matter is remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.




       It is worth reiterating the Ohio Supreme Court’s footnote in Robinette II, drafted 15 years
       1


ago:

       If police wish to pursue a policy of searching vehicles without probable cause or
       reasonably articulable facts, the police should ensure that the detainee knows that he
       or she is free to refuse consent despite the officer’s request to search or risk that any
       fruits of any such search might be suppressed. While we are not mandating any
       bright-line test or magic words, when a police officer informs a detainee that he or she
       does not have to answer further questions and is free to leave, that action would weigh
       persuasively in favor of the voluntariness of the consent to search. Robinette II at fn.
       6.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

further proceedings consistent with this opinion.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

PATRICIA ANN BLACKMON, A.J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS WITH SEPARATE OPINION.

MARY EILEEN KILBANE, P.J., DISSENTING:

       {¶31} I respectfully dissent.       I would affirm the trial court’s denial of

Dieckhoner’s motion to suppress.

       {¶32} The majority relies on Robinette II in support of its decision. However, I

find the circumstances in Robinette II factually distinguishable from the instant case.

       {¶33} As the Robinette II court recognized, voluntary consent is an valid exception

to warrantless searches and seizures. Id., 80 Ohio St.3d at 241, 685 N.E.2d 762. The

Robinette II court stated: “[v]oluntary consent, determined under the totality of the

circumstances, may validate an otherwise illegal detention and search.” Davis, 328 U.S.

at 593-594, 66 S.Ct. 1256.

       {¶34} In Robinette II, the officer video recorded the interaction and had Robinette

stand in between his car and the police cruiser. The officer asked Robinette, “‘One

question before you get gone [sic]: are you carrying any illegal contraband in your car?
Any weapons of any kind, drugs, anything like that?’ Robinette denied having any

contraband in the car. [The officer] then immediately asked Robinette if he could search

the car. Robinette hesitated, looked at his car, then back at the officer, then nodded his

head.” Id. at 243.

      {¶35} Whereas in the instant case, the interaction between Comerford and

Dieckhoner was not video recorded, Dieckhoner was not instructed to stand in between

the police cruiser and his car, and Comerford did not ask Dieckhoner “one question

before you get gone.” Rather, Comerford told Dieckhoner, “[you’re] all set, have a good

night,” and as Dieckhoner walked towards his vehicle, Comerford said, “[b]y the way, do

you have anything illegal; guns, knives, bombs, anything[.]” Dieckhoner responded,

“No.” Comerford then asked “if it would be [alright] for me to check * * * [your] person

and [Dieckhoner] said it would be okay.”

      {¶36} In Robinette II, the defendant testified that he was “shocked” at the officer’s

question, he “automatically said yes,” and he did not believe that he was at liberty to

refuse the officer’s request. Id. at 244. However, Dieckhoner did not testify in the

instant case. Unlike Robinette II, here there is no testimony from Dieckhoner stating that

he:   (1) was under duress; (2) did not feel free to leave; (3) was “shocked” at

Comerford’s question; or (4) “automatically said yes.”         Moreover, there was no

testimony from anyone contradicting that Dieckhoner’s response was anything but

voluntary.
       {¶37} In fact, the testimony from the officers was consistent and indicates that

Dieckhoner was free to leave and was calm and polite during the encounter. Comerford

testified that Dieckhoner was relaxed when he asked the question. Leanza testified that

he interviewed Dieckhoner after his arrest and Dieckhoner stated that he gave Comerford

“consent because he didn’t think [the drugs] would be found because it was so small and

it was in his coin pocket.” During the interview, Dieckhoner was not under duress and

did not indicate that Comerford forced him to consent to the search. Additionally,

Comerford did not impede Dieckhoner’s ability to move or leave, he did not draw his gun

or threaten Dieckhoner with his taser or pepper spray during their conversation.

       {¶38} Furthermore, the trial judge was in the best position to resolve issues of fact

and witness credibility and believed the officers’ testimony. A reviewing court is bound

to accept those findings of fact if supported by competent, credible evidence. See State

v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172, citing (1994), State v. Schiebel, 55

Ohio St.3d 71, 564 N.E.2d 54 (1990). Here, the trial court determined that Comerford

did receive Dieckhoner’s voluntary consent before the search.

       {¶39} Thus, based on the circumstances of the instant case, I would find the trial

court properly determined that Comerford obtained Dieckhoner’s voluntary consent

before the search.

       {¶40} Accordingly, I would affirm the trial court’s judgment denying

Dieckhoner’s motion to suppress.
