[Cite as State v. Durden, 2012-Ohio-1194.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96963



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLANT

                                                vs.

                                   ANTONIO DURDEN
                                               DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-545831

        BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                     March 22, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
Melissa Riley
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Donald Butler
75 Public Square
Suite 600
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Plaintiff-appellant, the state of Ohio (“State”) appeals the trial court’s

judgment granting defendant-appellee’s, Antonio Durden (“Durden”), motion to

suppress.   Finding no merit to the appeal, we affirm.

       {¶2} In January 2011, Durden was charged with having a weapon while under

disability, which carried a weapon forfeiture specification.   Durden moved to suppress a

shotgun and prison release card obtained by Cleveland police officers, arguing that the

police conducted a warrantless search of his apartment and the police failed to obtain his

voluntary consent before searching his home.      The State opposed, arguing that Durden

voluntarily consented to the search of his apartment.    The trial court held a hearing on

the motion, at which the following evidence was adduced.

       {¶3} In the early morning hours of December 28, 2010, Cleveland police officers,

Patrick Becka (“Becka”) and Marie Buettner (“Buettner”), responded to a radio dispatch

in connection with an aggravated robbery that occurred in the area of Madison Avenue

and West 92nd Street in Cleveland, Ohio.        The officers spoke with the victim, who

stated that two females and a male robbed him at gunpoint.     As they toured the area, the

officers observed two females, matching the description given to them, enter an

apartment on the third floor of an apartment building.    The two females then exited the

apartment approximately forty seconds later.    The officers spoke with the suspects, who
said they went into the apartment looking for “Sam.”        One of the suspects stated to the

other suspect, “I told you it was a bad idea.”

       {¶4} Both suspects were taken into custody at that time, and the officers went to

the apartment looking for Sam.      When Becka knocked on the door, Durden answered.

Becka asked him if there was anyone in the apartment named Sam, to which Durden

replied “no.”    Becka testified that Durden matched the description of the male robber

and seemed scared so Becka handcuffed Durden.          Becka and Buettner escorted Durden

back to the zone car to interview him further.       The officers again asked Durden if he

knew someone named Sam or if Sam was in his apartment.                 Durden replied, “no.”

Becka then said, “[i]f he’s not up there, do you mind if we go look?”          Becka testified

that Durden replied, “[s]omething to the effect of, ‘[t]here’s no Sam up there. Go

ahead.’”

       {¶5}     Becka and Buettner then went to Durden’s apartment searching for Sam.

They did not find anyone in the apartment, but found a shotgun sticking out from

between a mattress and box spring.     As they were leaving the apartment, they observed,

in plain sight, Durden’s prison release card.    At that point, the officers went back to their

police cruiser. They asked Durden about the shotgun and ammunition and confirmed

that Durden was a convicted felon.    The officers then placed Durden under arrest.

       {¶6} Durden testified in his own defense.          He testified that the Becka and

Buettner knocked on his door and asked him about a robbery suspect. Becka instructed

Durden to exit his apartment.    Becka handcuffed Durden and was escorting him back to
the zone car.     As they were walking, Durden advised the officers that he did not want

anyone in his apartment without him being present.        When they were outside, Becka

asked Durden for permission to search his apartment.      Durden responded, “[o]nly if I’m

present.”   Durden testified that Becka then snatched Durden’s keys out of his hands and

proceeded to search his apartment.     Durden further testified that he never gave Becka

permission to search his apartment, without him being present.

       {¶7} After the hearing, the trial court granted the motion to suppress. It is from

this order the State appeals, raising the following single assignment of error for review.

                                ASSIGNMENT OF ERROR

       The trial court erred in granting [Durden’s] motion to suppress the evidence
       in this case as the search was conducted consistent with his freely and
       voluntarily obtained consent.

       {¶8} In reviewing a trial court’s ruling on a motion to suppress, the reviewing

court must keep in mind that weighing the evidence and determining the credibility of

witnesses are functions for the trier of fact. State v. DePew, 38 Ohio St.3d 275, 277,

528 N.E.2d 542 (1988); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

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 (1994),

citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990).     The reviewing court,

however, must decide de novo whether, as a matter of law, the facts meet the appropriate

legal standard.    Id.; see also State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620

N.E.2d 906.
       {¶9} The State argues that under the totality of the circumstances, Durden’s

consent was voluntary making the search valid. Durden, on the other hand, argues that

the State failed to demonstrate that Durden’s consent was voluntary.     We find Durden’s

argument more persuasive.

       {¶10} 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, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967).   One exception is a search conducted pursuant to voluntary consent.       Davis v.

United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). In State v.

Robinette, 80 Ohio St.3d 234, 241, 1997-Ohio-343, 685 N.E.2d 762, the Ohio Supreme

Court, relying on Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973) and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983),

adopted a totality-of the-circumstances test to determine whether consent is voluntary.

Id., at paragraphs two and three of the syllabus.

       {¶11} 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 at 242-243,
       quoting Bustamonte.
       {¶12} The Robinette court 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 sic.) Id. at 243, quoting Royer.

       {¶13} In the instant case, the State maintains that Durden voluntarily consented to

the search of his apartment when he was handcuffed and detained in the police car.

Durden’s testimony, however, indicates otherwise. Durden testified that he explicitly

told the officers two times that he did not want anyone in his apartment absent his

presence.      Becka took Durden out of his apartment, handcuffed him, escorted Durden

down three flights of stairs, and secured him in a police car.    Becka then returned to

Durden’s apartment with Durden’s keys and searched the apartment.         The officers did

not have Durden complete a consent-to-search form, and the police did not obtain a

search warrant prior to searching Durden’s apartment.

       {¶14} The trial judge was in the best position to resolve issues of fact and witness

credibility and believed Durden’s testimony. As the reviewing court, we are bound to

accept those findings of fact if supported by competent, credible evidence. See Curry, 95

Ohio App.3d at 96, 641 N.E.2d 1172, citing Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54.

Here, the trial court determined that the officers did not receive Durden’s consent before

the search. Based on the State’s evidence, Becka allegedly obtained Durden’s consent

while Durden was handcuffed and placed in the back of a police car.                 These

circumstances, coupled with Durden’s explicit testimony that he did not give Becka
permission to search his apartment without his presence, demonstrate that the police did

not obtain Durden’s voluntary consent prior to the search of his apartment. Thus, we

conclude that the trial court’s determination is supported by credible evidence.

       {¶15} Accordingly, the trial court properly granted Durden’s motion to suppress.

       {¶16} The sole assignment of error is overruled.

       {¶17} Judgment is affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
