[Cite as State v. Genet-Morlan, 2019-Ohio-4553.]


STATE OF OHIO                    )                      IN THE COURT OF APPEALS
                                 )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                           C.A. No.    28964

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
DELVIN W. GENET-MORLAN                                  COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellee                                        CASE No.   CR-2017-04-1503-B

                                 DECISION AND JOURNAL ENTRY

Dated: November 6, 2019



        PER CURIAM.

        {¶1}    Appellant, the State of Ohio, appeals an order that suppressed evidence gained as

the result of a search. This Court reverses.

                                                   I.

        {¶2}    On April 25, 2017, Officer Michael Crawford observed a vehicle stopped at the

intersection of Lake Shore Boulevard and Miller Road. As Officer Crawford’s cruiser turned at

the intersection, the vehicle also started to pull forward, requiring him to swerve to avoid a

collision. Officer Crawford turned around to follow the vehicle and noted that it made a series of

quick turns. He activated his overhead lights, turned around again, and resumed pursuit of the

vehicle. After he witnessed more rapid turns, Officer Crawford saw the driver park the car at the

edge of the roadway and switch positions with the passenger.

        {¶3}    Officer Crawford initiated a traffic stop and approached the person in the driver’s

seat, Mr. Genet-Morlan. Officer Crawford noted that Mr. Genet-Morlan was hearing impaired,
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but that he seemed to understand their conversation. During a subsequent pat-down, Officer

Crawford asked Mr. Genet-Morlan if he could remove his wallet from his pocket, and Mr.

Genet-Morlan agreed.     Officer Crawford later opened the wallet with Mr. Genet-Morlan’s

permission and found methamphetamine. On May 9, 2017, the Summit County Grand Jury

indicted Genet-Morlan on one count of aggravated possession of drugs. Mr. Genet-Morlan

moved to suppress the evidence gained as a result of the traffic stop, arguing, among other

things, that his consent to the removal of his wallet from his pocket and subsequent search was

invalid. The trial court granted the motion to suppress, and the State of Ohio appealed pursuant

to R.C. 2945.67(A) and Crim.R. 12(K).

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION
       TO SUPPRESS EVIDENCE.

       {¶4}    In its sole assignment of error, the State of Ohio argues that the trial court erred

by granting Mr. Genet-Morlan’s motion to suppress. Specifically, the State of Ohio maintains

that the trial court erred by determining that Mr. Genet-Morlan did not voluntarily consent to the

retrieval and search of his wallet. This Court agrees.

       {¶5}    This Court’s review of the trial court’s ruling on the motion to suppress presents a

mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

The trial court acts as the trier of fact during a suppression hearing and is best equipped to

evaluate the credibility of witnesses and resolve questions of fact. Id.; State v. Hopfer, 112 Ohio

App.3d 521, 548 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653 (4th

Dist.1994). Consequently, this Court accepts a trial court’s findings of fact if supported by

competent, credible evidence. Burnside at ¶ 8. Once this Court has determined that the trial
                                                 3


court’s factual findings are supported by the evidence, we consider the trial court’s legal

conclusions de novo. See id. In other words, this Court then accepts the trial court’s findings of

fact as true and “must then independently determine, without deference to the conclusion of the

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

McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).              In this case, the State has not

challenged the trial court’s findings of fact, so our analysis focuses on the legal questions

presented.

       {¶6}    Subject to specific exceptions, which the State has the burden of establishing,

warrantless searches are unreasonable per se under the Fourth Amendment. State v. Roberts, 110

Ohio St.3d 71, 2006-Ohio-3665, ¶ 98, citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455

(1971). “It is * * * well settled that one of the specifically established exceptions to the

requirements of both a warrant and probable cause is a search that is conducted pursuant to

consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), citing Davis v. United States,

328 U.S. 582, 593-594 (1946) and Zap v. United States, 328 U.S. 624, 630 (1946).

       {¶7}    Consent must be voluntarily given, and it cannot be “the result of duress or

coercion, express or implied.” Bustamonte at 247. This determination is made based on all of

the surrounding circumstances. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 38,

citing State v. Childress, 4 Ohio St.3d 217 (1983), paragraph one of the syllabus. One such

consideration, as the trial court noted, is whether the subject of the search was in custody at the

time that consent was given. United State v. Watson, 423 U.S. 411, 424-425 (1976) (“the fact of

custody alone has never been enough in itself to demonstrate a coerced * * * consent to

search.”). In considering the totality of the circumstances in this case, the trial court determined

that Mr. Genet-Morlan was in custody when he consented to the search and gave great weight to
                                                  4


that determination, noting particularly that Officer Crawford expressed that opinion.         The

question of custody is, therefore, the starting point for this Court’s analysis.

       {¶8}    The detention that is part and parcel of a traffic stop does not, standing alone,

place a suspect in custody for Fourth Amendment purposes. Cleveland v. Oles, 152 Ohio St.3d

1, 2017-Ohio-5834, ¶ 11, citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984). An individual

detained during the course of a traffic stop is only in custody if he is “subjected to ‘restraints

comparable to those associated with a formal arrest.’” Oles at ¶ 13, quoting Berkemer at 441;

State v. Simin, 9th Dist. Summit No. 26016, 2012-Ohio-4389, ¶ 14, quoting State v. Prunchak,

9th Dist. Medina No. 04CA0070-M, 2005-Ohio-869, ¶ 27. Consequently, “the officer may ask

the detainee a moderate number of questions to determine his identity and to try to obtain

information confirming or dispelling the officer’s suspicions.” Berkemer at 439. See also Oles

at ¶ 27. An officer may also conduct a pat down during a traffic stop when officers have

reasonable concerns for their safety. State v. Andrews, 57 Ohio St.3d 86, 89 (1991), citing Terry

v. Ohio, 392 U.S. 1, 27 (1968). Such a pat down does not necessarily “convert [a] routine traffic

stop into a custodial situation[.]” State v. Serafin, 11th Dist. Portage No. 2011-P-0036, 2012-

Ohio-1456, ¶ 38. When considering whether the subject of a traffic stop is in custody, “the only

relevant inquiry is how a reasonable man in the suspect’s position would have understood his

situation.”   (Emphasis added.)      Berkemer at ¶ 442.       A police officer’s perception of the

circumstances is irrelevant. See id.

       {¶9}    In determining the question of custody, courts must consider the totality of the

circumstances. Oles at ¶ 1. In this case, the evidence demonstrates that a reasonable person in

Mr. Genet-Morlan’s situation would not have understood himself to be in custody. Officer

Crawford testified that after initiating the stop, he left Mr. Genet-Morlan unattended in the
                                                5


vehicle while he assisted Officer Bowman when the passenger “began to struggle a bit.” When

he returned, he asked Mr. Genet-Morlan to step from the vehicle and explained why he wanted to

conduct a pat down. Officer Crawford explained that during the course of the pat down, he

asked permission to remove the wallet from Mr. Genet-Morlan’s pocket and then to place it on

the roof of the vehicle. Officer Crawford’s request for consent to look inside the wallet followed

immediately thereafter.    There is no indication that the encounter, which occurred during

daytime hours in a public place, was prolonged or confrontational. At no time did Officer

Crawford communicate to Mr. Genet-Morlan that he was in custody. Compare Berkemer at 442.

A reasonable suspect in Mr. Genet-Morlan’s position would not have perceived that he was

subject to restraint in a manner comparable to arrest under these circumstances. See id. at 441.

        {¶10} The fact that Mr. Genet-Morlan was not in custody is one consideration in

determining whether his consent was voluntarily given, and the totality of the circumstances

demonstrates that this was the case. Mr. Genet-Morlan was not restrained in any manner, nor

was he subject to any display of force on the part of the police officers apart from the brief

struggle involving the passenger in the vehicle. Officer Crawford did not make any threats or

promises to secure his consent, and Officer Crawford was unequivocal in his testimony that Mr.

Genet-Morlan understood the substance of their conversation and responded appropriately.

        {¶11} Mr. Genet-Morlan was not in custody when he consented to the search at issue in

this case and, as demonstrated by the totality of the circumstances, the consent that he gave was

voluntary. The trial court erred by determining otherwise, and the State of Ohio’s assignment of

error is sustained.
                                                 6


                                                III.

       {¶12} The State of Ohio’s assignment of error is sustained.           The judgment of the

Summit County Court of Common Pleas is reversed.

                                                                               Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



CALLAHAN, J.
SCHAFER, J.
CONCUR.
                                                7


CARR, P.J.
DISSENTING.

       {¶13} The trial court suppressed the evidence of the methamphetamine found in Genet-

Morlan’s wallet because it found that Genet-Morlan was unlawfully taken into custody during

the traffic stop, thereby rendering his consent involuntary. I agree because the State failed to

meet its burden at the suppression hearing.

       {¶14} Searches conducted without a warrant are per se unreasonable under the Fourth

Amendment, subject only to a few specific exceptions. State v. Kessler, 53 Ohio St.2d 204, 207

(1978). It is well settled that once the defendant demonstrates that the State conducted a

warrantless search, the burden shifts to the State to prove that its actions were constitutionally

permissible. See Maumee v. Weisner, 87 Ohio St.3d 295, 297 (1999).

       {¶15} There is no dispute that police searched Genet-Morlan’s wallet without a warrant.

Thus, the State held the burden to prove that an exception to the warrant requirement applied,

namely, in this case, the consent exception.

       {¶16} The State was required to demonstrate by clear and convincing evidence that

consent was obtained and, further, that the consent was freely and voluntarily given. See Bumper

v. North Carolina, 391 U.S. 543, 548 (1968). The issue of whether an individual lawfully

consented to a search is not a question of law, but rather, a question of fact. See Ohio v.

Robinette, 519 U.S. 33, 40 (1996). “Because reviewing courts should defer to the trial court

when it acts as a trier of fact, we must give proper deference to the court’s finding regarding

whether [the defendant] voluntarily consented to a search.” State v. Fry, 4th Dist. Jackson No.

03CA26, 2004-Ohio-5747, ¶ 21. The State’s burden of proof is clear and convincing evidence

but the standard of review is highly deferential. Fry at ¶ 22. “The weight to be given the
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evidence and the credibility of witnesses are primarily for the trier of the facts.” Id. citing State

v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

       {¶17} Under circumstances such as this where a defendant is detained prior to giving

consent to search, the legality of the detention is a “‘predicate to an intelligent resolution’” of

whether the consent was voluntarily. State v. Robinette, 80 Ohio St.3d 234, 236 (1997), quoting

Robinette, 519 U.S. at 38. If the detention is unlawful, the State must demonstrate that the

consent given was “an independent act of free will” under the totality of the circumstances and

not merely the result of the illegal detention. Robinette, 80 Ohio St.3d at 245. This is an

objective inquiry where the court must determine whether a reasonable person under the

circumstances would feel free to decline the request for consent and otherwise terminate the

encounter. See Florida v. Bostick, 501 U.S. 429, 438 (1991). On the other hand, if the detention

was lawful, the State is merely required to demonstrate that the consent was voluntary. See

generally Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

       {¶18} This is the difficult part of this case. The trial court here found that Genet-Morlan

was taken into custody based on Officer Crawford’s subjective belief regarding Genet-Morlan’s

custodial status, absent any indication that Officer Crawford conveyed his belief to Genet-

Morlan at the scene.

       {¶19} The majority correctly recognizes the distinction between taking a suspect into

custody and merely conducting a temporary detention. See Cleveland v. Oles, 152 Ohio St.3d 1,

2017-Ohio-5834, ¶ 11. In this case, the trial court based its custody determination solely on its

finding that Officer Crawford’s testimony was that Genet-Morlan was “in custody and not free to

leave after the pat-down.” An officer’s subjective belief that a suspect is in custody is irrelevant
                                                9


to a custody determination unless that belief is conveyed to the suspect. State v. Cabot, 9th Dist.

Lorain No. 09CA009725, 2010-Ohio-4064, ¶ 7.

       {¶20} I find this case distinguishable on its facts from similar cases, such as Cabot or

Berkemer v. McCarty, 468 U.S. 420 (1984), due to the definitive nature of Officer Crawford’s

testimony about Genet-Morlan’s custodial status. As noted above, the State bears the burden at

the suppression hearing. The State’s key fact witness, Officer Crawford, testified on cross-

examination that Genet-Morlan was “in police custody” at the time he gave consent and, further,

that Genet-Morlan was not free to terminate the encounter. As the suppression hearing was

drawing to a close, the trial court engaged in extensive questioning of Officer Crawford in an

attempt to clarify the sequence of events that unfolded during the traffic stop. When asked to

confirm his prior testimony that Genet-Morlan was “in custody” and “wasn’t free to leave” at the

moment he gave consent, Officer Crawford responded, “[r]ight.” During closing arguments, the

State argued that Officer Crawford conducted a lawful Terry stop, but it acknowledged that “the

only real question” before the court was whether Genet-Morlan could give consent “given being

in custody[.]” This case does not involve a scenario akin to Cabot or Berkemer where the officer

testified as to his plan to take the defendant into custody. Cabot at ¶ 7; Berkemer at 441-442.

Here, Officer Crawford indicated that Genet-Morlan was in custody at the time Officer Crawford

sought consent to search the wallet.

       {¶21} Candidly, it is unclear from the transcript whether Officer Crawford and the trial

court were on the same page in regard to the meaning of the word “custody.” Nevertheless,

Officer Crawford testified on two separate occasions that Genet-Morlan was in custody and not

free to leave at the time he gave consent. The trial court’s analysis hinged on its finding that

Genet-Morlan was in custody. As this was a warrantless search, it was the State’s burden to
                                                10


prove that the consent exception to the warrant requirement applied. The State did not meet its

burden to demonstrate that Genet-Morlan’s consent was an independent act of free will. See

Robinette, 80 Ohio St.3d at 245. Accordingly, I would affirm the trial court because the State

failed to meet its burden at the suppression hearing.


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN and
JOSEPH MCALEESE, Assistant Prosecuting Attorneys, for Appellant.

DONALD R. HICKS, Attorney at Law, for Appellee.
