[Cite as State v. Mullen , 2018-Ohio-5188.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                       :        OPINION

                  Plaintiff-Appellee,                 :
                                                               CASE NO. 2018-A-0018
         - vs -                                       :

 NATASHA M. MULLEN,                                   :

                  Defendant-Appellant.                :


 Criminal Appeal from the Ashtabula Municipal Court, Case No. 2017 CRB 01131.

 Judgment: Reversed and remanded.


 Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
 Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For
 Plaintiff-Appellee).

 Jane Timonere, Timonere Law Offices, L.L.C., 4 Lawyers Row, Jefferson, OH 44047-
 1099 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Natasha M. Mullen, appeals from the January 8, 2018 judgment

entry of the Ashtabula Municipal Court. Appellant takes issue with the trial court’s denial

of her motion to suppress.             For the following reasons, the trial court’s judgment is

reversed, and this matter is remanded to the trial court for further proceedings.

        {¶2}      On July 10, 2017, a complaint was filed in the Ashtabula Municipal Court,

charging appellant with possession of drug paraphernalia, a fourth-degree misdemeanor
in violation of R.C. 2925.14(C)(1), and possession of drugs, a minor misdemeanor in

violation of R.C. 2925.11(A). Appellant entered a plea of not guilty.

      {¶3}   On August 21, 2017, appellant filed a motion to suppress evidence.

Appellant argued that all the evidence obtained by the state must be suppressed because

it was gathered in violation of appellant’s constitutional rights. A hearing was held on

October 20, 2017, at which Deputy Brian Sterrick testified.

      {¶4}   The trial court denied the motion to suppress on October 30, 2017.

      {¶5}   Appellant entered a plea of no contest. She was found guilty and ordered

to pay a fine of $150.00 on each count of the complaint in addition to court costs. The

trial court granted a stay of the sentence pending appeal. The trial court’s judgment entry

was filed on January 8, 2018.

      {¶6}   Appellant noticed a timely appeal. She raises one assignment of error:

      {¶7}   “The trial court erred in overruling the motion to suppress. The officer

conducted an illegal detention and search of Ms. Mullen, the fruits of which must be

excluded from evidence.”

      {¶8}   “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8,

citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). “Consequently, an appellate court

must accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “[T]he appellate court

must then independently determine, without deference to the conclusion of the trial court,




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whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,

124 Ohio App.3d 706, 707 (4th Dist.1997).

      {¶9}   The following findings were made by the trial court and are supported by

competent credible evidence.

      {¶10} Deputy Brian Sterrick was on duty on July 1, 2017. Deputy Sterrick was

aware that Jeffery Stanley of 4506 Ninevah Road, Saybrook Township had a warrant out

for his arrest pursuant to an indictment on several “serious” felony charges. Deputy

Sterrick drove by Stanley’s residence and noticed Stanley’s vehicle idling in the driveway

with the driver’s door open. Deputy Sterrick ordered Stanley out of the vehicle, arrested

him, and placed him in the back of his police cruiser.

      {¶11} Deputy Sterrick saw a female passenger, later identified as appellant, in the

vehicle. He approached appellant because he was aware there was a protection order

against Stanley which protected a female victim, and he wanted to investigate the

situation. Further, Deputy Sterrick felt obligated to secure the situation after arresting

Stanley because the car was still running, the house was unlocked, and the dogs were

running around in the yard.     The deputy asked appellant for her identification and

confirmed that she was not the victim of the protection order against Stanley.

      {¶12} He further asked appellant whether she had any illegal drugs in the car or

on her person. Appellant “had answered that not that she was aware of,” which raised

Deputy Sterrick’s suspicion. He explained that in his over 17 years of law enforcement

experience and training, the response given by appellant is the most common response

given by a person in possession of illegal drugs. Deputy Sterrick also explained that




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people involved in violent crimes are typically involved with drugs and associate with

others involved with drugs.

       {¶13} Deputy Sterrick then told appellant that he was a canine officer and had a

drug detection dog he would use to search the vehicle, and if contraband was found,

appellant would be charged with falsification in addition to possession. At this point,

appellant grabbed her purse, pulled out a cigar filled with marijuana, and handed the cigar

to the deputy. Deputy Sterrick asked for appellant’s purse, and she handed it to him. He

searched the purse and located two additional cigars filled with marijuana, a pill bottle

filled with marijuana roaches, and a grinder.

       {¶14} Appellant was never placed under arrest or issued a citation. Due to time

constraints, the report was forwarded to the solicitor’s office for charges.

       {¶15} Appellant argues that Deputy Sterrick’s interaction with her was an

investigative detention because a reasonable person under the same surrounding

circumstances would not have believed she was free to leave. Appellant contends the

detention was illegal because Deputy Sterrick’s suspicion that appellant was in

possession of drugs was not based on specific, articulable facts. Appellant maintains the

detention and search of her purse violated her constitutional right to be free from

unreasonable searches and seizures, and any evidence obtained after her illegal

detention must be suppressed.

       {¶16} “‘While the Fourth Amendment of the U.S. Constitution does not explicitly

state that the violation of its provisions against unlawful search and seizure will result in

suppression of the evidence obtained as a result of the violation, the U.S. Supreme Court

held that the exclusion of evidence is an essential part of the Fourth Amendment.’” State




                                             4
v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068, 2015-Ohio-958, ¶17, quoting State v.

Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶29, citing Weeks v.

United States, 232 U.S. 383, 394 (1914) (overruled) and Mapp v. Ohio, 367 U.S. 643,

649 (1961). “‘The primary purpose of the exclusionary rule is to remove incentive from

the police to violate the Fourth Amendment.’” Id., quoting Casey, supra, at ¶29.

       {¶17} The Fourth Amendment to the United States Constitution guarantees that

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” The

language of Article I, Section 14 of the Ohio Constitution is nearly identical, and it has

been interpreted by the Ohio Supreme Court as affording the same protection as the

Fourth Amendment. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, ¶11, citing

State v. Robinette, 80 Ohio St.3d 234, 238-239 (1997).

       {¶18} Under the Fourth Amendment, searches and seizures conducted without a

warrant based on probable cause are unreasonable unless the search falls within an

exception to this requirement. Katz v. United States, 389 U.S. 347, 357 (1967). There

are three general categories in which encounters between police officers and citizens are

classified:

              (1) a consensual encounter, which requires no objective justification,
              [see Florida v. Bostick, 501 U.S. 429, 434 (1991)], (2) a brief
              investigatory stop or detention, which must be supported by
              reasonable suspicion of criminal activity, [see Terry v. Ohio, 392 U.S.
              1, 30 (1968)], and (3) a full-scale arrest, which must be supported by
              probable cause, [see Brown v. Illinois, 422 U.S. 590 (1975)].




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State v. Jones, 10th Dist. Franklin No. 09AP-1053, 2010-Ohio-2854, ¶13; see also State

v. Trevarthen, 11th Dist. Lake No. 2010-L-046, 2011-Ohio-1013, ¶12, citing Terry, supra,

at 30 and State v. Long, 127 Ohio App.3d 328, 333 (4th Dist.1998).

       {¶19} “The hallmark of a consensual encounter is that a reasonable citizen must

feel ‘free to decline the officers’ requests or otherwise terminate the encounter.’” State v.

Barth, 11th Dist. Lake No. 99-L-058, 2000 WL 714406, *2 (June 2, 2000), quoting Bostick,

supra, at 430. “‘A consensual encounter is not a seizure, therefore no Fourth Amendment

rights are invoked.’” Trevarthen, supra, at ¶14, quoting State v. Ball, 11th Dist. Trumbull

No. 2009-T-0013, 2010-Ohio-714, ¶14, citing Bostick, supra, at 434.

       {¶20} “‘It is well-settled that “[a]n encounter may be consensual when a police

officer approaches and questions individuals in or near a parked car.”’” Id. at ¶13, quoting

Ball, supra, at ¶12, quoting State v. Staten, 4th Dist. Athens No. 03CA1, 2003-Ohio-4592,

¶18. Police may also request identification within the scope of a consensual encounter.

Id., citing State v. Kock, 11th Dist. Lake No. 2008-L-067, 2008-Ohio-5859, ¶17, citing

Bostick, supra, at 434.

       {¶21} An investigatory stop constitutes a seizure for Fourth Amendment

purposes.   Terry, supra, at 16.     “An investigative stop does not violate the Fourth

Amendment to the United States Constitution if the police have reasonable suspicion that

‘the person stopped is, or is about to be, engaged in criminal activity.’” State v. Jordan,

104 Ohio St.3d 21, 2004-Ohio-6085, ¶35, quoting United States v. Cortez, 449 U.S. 411,

417 (1981). “[A]n objective and particularized suspicion that criminal activity was afoot

must be based on the entire picture—a totality of the surrounding circumstances.” State

v. Andrews, 57 Ohio St.3d 86, 87 (1991), citing Cortez, supra, at 417-418; State v. Bobo,




                                             6
37 Ohio St.3d 177 (1987); and United States v. Rickus, 737 F.2d 360, 365 (3d Cir.1984).

“[I]n determining whether the officer acted reasonably in such circumstances, due weight

must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the

specific reasonable inferences which he is entitled to draw from the facts in light of his

experience.” Terry, supra, at 27.

      {¶22} “[A] consensual encounter may escalate into an investigatory detention and

seizure of a person that triggers Fourth Amendment scrutiny if, in view of all the

circumstances surrounding the incident, a reasonable person would not feel free to leave

or otherwise terminate the encounter.” Jones, supra, at ¶21, citing I.N.S. v. Delgado, 466

U.S. 210, 215 (1984). “Factors suggesting that a seizure has occurred include the

presence of multiple police officers, the displaying of a weapon by the police, the use of

language suggesting that compliance with police requests is compelled, and the physical

touching of the citizen.” Willowick v. Stephenson, 11th Dist. Lake Nos. 98-L-144, et seq.

1999 WL 535280, *2 (July 16, 1999), citing United States v. Mendenhall, 446 U.S. 544,

554 (1980). “If the seizure is unlawful, any evidence obtained after the unlawful seizure

must be suppressed as the ‘fruit of the poisonous tree.’” Jones, supra, at ¶21, quoting

Wong Sun v. United States, 371 U.S. 471 (1963); and citing Mapp, supra, at 654; State

v. Pierce, 125 Ohio App.3d 592, 597 (10th Dist.1998).

      {¶23} Deputy Sterrick initially approached appellant after arresting Stanley and

asked to see appellant’s identification. However, after confirming appellant was not the

victim of a protection order against Stanley, Deputy Sterrick questioned appellant about

whether she was in possession of drugs. When appellant gave an answer that was not

acceptable to Deputy Sterrick, he told appellant that he planned to have his drug detection




                                            7
dog walk around the car. Deputy Sterrick testified he informed appellant that “if [the dog]

alerted to it and drugs were located on her person or within the vehicle, that I would charge

her with falsification in addition to the drugs I found.” This statement indicates appellant

was to remain in the vehicle while the drug detection dog walked around it. Under these

circumstances, a reasonable person would not feel free to leave or terminate the

encounter. Therefore, we determine Deputy Sterrick’s initial encounter with appellant

was a consensual encounter that evolved into an investigative detention.

       {¶24} The totality of the circumstances did not provide Deputy Sterrick with a

reasonable suspicion of criminal activity afoot to justify the detention of appellant. Deputy

Sterrick testified he was suspicious that appellant was in possession of drugs because

she was associating with Stanley, who had been indicted on several “serious” crimes,

and because upon being questioned, appellant responded that she was “not aware of”

any drugs on her person or in the vehicle. Deputy Sterrick explained that in his years of

experience and training, “routinely, the people that are involved in especially serious

offenses of violence * * * are typically involved with drugs, and the people that are involved

with drugs typically associate with others involved in drugs[.]” He further explained: “[T]he

most common response in which I find illegal narcotics on a person is the response of,

not that I know of. It’s not a clear yes or no. It is a - - has an open-ended answer, and

that raised my suspicion.”          Other than Deputy Sterrick’s assumptions and

“unparticularized suspicion,” we find nothing in the record that would lead to a reasonable,

articulable suspicion that appellant was in possession of drugs.          Therefore, Deputy

Sterrick’s continued detention of appellant under threat of bringing in the drug detection




                                              8
dog was unlawful, and the evidence obtained after the unlawful detention must be

suppressed as “fruit of the poisonous tree.”

       {¶25} Appellee argues that Deputy Sterrick “was not violating the Fourth

Amendment by advising Appellant that he would be conducting the sniff.”

       {¶26} In the context of traffic stops, this court explained in Eggleston that “‘[t]he

initial lawfulness of a traffic stop will not support a “fishing expedition” for evidence of a

crime.’” Eggleston, supra, at ¶22, quoting State v. Elliott, 7th Dist. Mahoning No. 11 MA

182, 2012-Ohio-3350, ¶27. “‘Once the suspicion which gave rise to the initial stop

evaporated, any additional intrusion or detention had to have been supported by specific

and articulable facts demonstrating the reasonableness of the continued detention.’” Id.

at ¶23, quoting State v. Colby, 11th Dist. Portage No. 2002-P-0061, 2004-Ohio-343, ¶22;

see also Rodriguez v. United States, 135 S.Ct. 1609 (2015), at syllabus (“Absent

reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff

violates the Constitution’s shield against unreasonable seizures.”). “Once it is determined

that a delay occurred for the sole purpose of conducting a K–9 ‘sniff,’ the question is not

whether the delay was undue, but whether the delay was supported by a reasonable,

articulable suspicion of drug activity.” Id. at ¶28. In other words, as Rodriguez confirmed,

absent a reasonable, articulable suspicion of criminal activity, any delay invokes the

protections of the Fourth Amendment.

       {¶27} The initial reason Deputy Sterrick approached appellant was to ascertain

her identity and to secure the premises. The totality of the circumstances did not provide

Deputy Sterrick with the reasonable, articulable suspicion necessary to extend the

encounter for a canine sniff. Compare State v. Valiente-Mendoza, 6th Dist. Wood No.




                                               9
WD-16-067, 2018-Ohio-3090, ¶36 (finding the totality of the circumstances provided the

officers with the reasonable suspicion necessary to extend the consensual encounter in

order to perform a canine sniff and an immigration inspection). Furthermore, in this case

the drug dog never conducted a sniff of the vehicle, and, therefore, appellee’s argument

as it pertains to the propriety of a sniff of the vehicle is not at issue. At oral argument,

counsel for appellee acknowledged there was a delay and that appellant would not have

reasonably assessed that she was free to leave. Appellee’s argument is not well taken.

       {¶28} Appellee next argues that the search of appellant’s purse was not a violation

of her Fourth Amendment rights because she voluntarily consented to that search.

       {¶29} “A consent to search obtained during an unlawful detention is invalid.” State

v. Lett, 11th Dist. Trumbull No. 2008-T-0116, 2009-Ohio-2796, ¶25, citing State v.

Retherford, 93 Ohio App.3d 586 (2d Dist.1994). “However, the Supreme Court of Ohio

has held that voluntary consent, determined under the totality of the circumstances, may

validate an otherwise illegal detention and search.” Id. at ¶26, citing Robinette, supra, at

241, citing Davis v. United States, 328 U.S. 582, 593-594 (1946). “‘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.’” Id. at ¶27, quoting Robinette, supra,

at paragraph three of the syllabus.

       {¶30} Appellant handed Deputy Sterrick the marijuana cigar after he indicated he

was going to walk his drug dog around the vehicle. Deputy Sterrick testified that after

appellant handed him the cigar, he “had asked [appellant] to hand [him] her purse, which




                                            10
she did[.]” Deputy Sterrick’s testimony indicates he directed appellant to hand him her

purse rather than asking appellant whether he could search her purse. Taken with the

other surrounding circumstances as analyzed above, a reasonable person under the

totality of the circumstances would not have felt she could freely refuse the request or

refuse to answer further questions and leave. Accordingly, we conclude appellant’s

consent to search her purse did not validate the otherwise illegal detention and search.

      {¶31} Appellant’s sole assignment of error has merit. Because the evidence was

obtained as the result of an illegal detention, appellant’s motion to suppress should have

been granted.

      {¶32} The judgment of the Ashtabula Municipal Court is reversed, and this matter

is remanded for further proceedings.



CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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