[Cite as State v. Miller, 2012-Ohio-1901.]
                                 IN THE COURT OF APPEALS OF OHIO
                                    FOURTH APPELLATE DISTRICT
                                          ROSS COUNTY


STATE OF OHIO,                                         :

          Plaintiff-Appellant,                         :   Case No. 11CA3217

          vs.                                          :

SCOTT MILLER,                                          :   DECISION AND JUDGMENT ENTRY


      Defendant-Appellee.              :
_________________________________________________________________

                                              APPEARANCES:

COUNSEL FOR APPELLANT:                       Sherri Rutherford, Law Director, and Michele R. Rout,
                                             Assistant Law Director, 97 West Main Street, Chillicothe,
                                             Ohio 45601

COUNSEL FOR APPELLEE:                        James T. Boulger, 2 West Fourth Street, Chillicothe, Ohio
                                             45601

CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-17-12


ABELE, P.J.

          {¶ 1} This is an appeal from a Chillicothe Municipal Court judgment that granted the

motion to suppress evidence filed by Scott Miller, defendant below and appellee herein.

          {¶ 2} The State of Ohio, plaintiff below and appellant herein, assigns the following error for

review:

                 “THE TRIAL COURT ERRED IN GRANTING THE MOTION TO
                 SUPPRESS, AS THE SEARCH OF THE DEFENDANT’S PERSON
                 WAS A LAWFUL CONSENSUAL SEARCH, OR IN THE
                 ALTERNATIVE WAS A PROBABLE CAUSE SEARCH OF THE
                 DEFENDANT.”

          {¶ 3} On August 29, 2009, Trooper Benjamin R. Seabolt observed a vehicle with a
ROSS, 11CA3217                                                                                       2

windshield defect. After Trooper Seabolt pursued the vehicle, the vehicle pulled into a parking

space at a gas station convenience store. At this point the front seat passenger began to exit the

vehicle. Trooper Seabolt stopped his cruiser behind the vehicle and directed the passenger to

remain in the vehicle.

       {¶ 4} Trooper Seabolt approached the driver and requested identification from the driver

and the passengers. After Trooper Seabolt discovered that the license plates had expired and that

the driver’s license had been suspended, he placed the driver in the cruiser and engaged him in a

conversation. The trooper informed the driver that he could arrest him for driving without a valid

driver’s license and also asked him if there was “anything in the vehicle that [the trooper] should

know about.” The driver eventually indicated that the front seat passenger had marijuana.

       {¶ 5} Trooper Seabolt thereupon approached the front seat passenger (appellee) and

directed him to “hop out here” and follow him to the patrol cruiser. Trooper Seabolt then asked

appellee if he had anything that the trooper “should know about.” Appellee’s response is not

audible. Trooper Seabolt then asked appellee if he could pat down appellant. Appellee’s

response is again inaudible. After Trooper Seabolt patted appellee down, he asked him what was

in his pockets. Appellee removed a pack of cigarettes from one pocket and a cell phone from

another. Trooper Seabolt then asked appellee what else was in his pocket, and appellee removed a

small plastic bag that contained several pills of Diazepam. Trooper Seabolt then arrested appellee

for drug abuse, and a subsequent search incident to arrest revealed marijuana.

       {¶ 6} On January 5, 2010, appellee was charged with (1) minor misdemeanor possession

of marijuana in violation of R.C. 2925.11(C)(3)(a); and (2) first degree misdemeanor possession of

drugs in violation of R.C. 2925.11(C)(2). On February 24, 2010, appellee filed a motion to

suppress evidence. Appellant argued that Trooper Seabolt did not have a lawful justification to
ROSS, 11CA3217                                                                                     3

detain him.

       {¶ 7} On June 8, 2010, the trial court issued an order that noted that appellee and the

prosecution had “offered a brief stipulation regarding the rationale for detention” and that they had

submitted a videotaped recording of the traffic stop and encounter for the court to review.

Appellee had informed the court that he wished to present “a specific legal issue” and that he and

the prosecution had agreed to brief the issue. The court stated that it had “ordered a briefing

schedule, which neither counsel observed.” The court nonetheless reviewed the videotape but

found “it no help whatsoever on the issue of suppression without further explanation. The Court

cannot determine what happened or when by reviewing the video and the audio is of no assistance

as regard to time frame either.” The court thus set the matter for a simultaneous trial and

suppression hearing.

       {¶ 8} On October 19, 2010, appellee filed a “supplemental memorandum in support of

motion to suppress.” Appellee argued that: (1) the trooper lacked any reason to initially detain

appellee; (2) appellee did not consent to the pat down search; and (3) even if appellee did consent

to the pat down search, the trooper exceeded the scope of appellee’s consent when he requested

appellee to remove items from his pockets. In response, the prosecution asserted that appellee’s

initial detention was lawful because he was a passenger in a car that the trooper had lawfully

detained. The prosecution further asserted that the trooper possessed probable cause to search

appellee based upon the driver’s statement that appellee possessed contraband.

       {¶ 9} The parties agreed to submit stipulated exhibits to the trial court: (1) a videotape of

the traffic stop; and (2) the trooper’s written statement of facts. Consequently, the court did not

conduct an evidentiary hearing. Instead, the court reviewed the videotape and the trooper’s

statement of facts.
ROSS, 11CA3217                                                                                                                  4

          {¶ 10} According to Trooper Seabolt’s written statement, the trooper had been traveling

west on Pleasant Valley Road directly behind a purple 1997 Dodge Neon. After a LEADS check

revealed that the license plates had expired, Trooper Seabolt decided to stop the vehicle. Trooper

Seabolt pulled his cruiser behind the vehicle in a gas station parking lot. Trooper Seabolt

requested identification from all occupants and placed the driver in the cruiser. A LEADS check

on the driver and passengers revealed that the driver was under a license suspension. The driver

also advised the trooper that the vehicle contained marijuana. The trooper requested appellee to

exit the vehicle and he:

          “performed a consent pat down for weapons of his person. While conducting this I
          was able to feel a large bulge in his right front pocket that had a grinding feel to it as
          my hand went over. I asked him what he had in his pocket and he replied that it
          was cigarettes. He then removed a cigarette pack from his pocket. The bulge was
          still visible in his pocket and I asked him what else was there. He then admitted
          that he had pills in his pocket and removed a baggie that had a folded dollar bill in it
          and handed it to me. The baggie was opened and contained 82 pills marked
          (MYLAN 345). The pills were identified by their markings as Diaz[e]pam * * *.”

After Trooper Seabolt arrested appellee, a subsequent search incident to arrest “revealed a bulge in

his crotch and he admitted to having a baggie of marijuana in his underwear.”

          {¶ 11} On February 18, 2011, the trial court granted appellee’s motion to suppress

evidence. The court found that the initial detention was lawful, but that “the manner in which

Trooper Seabolt yelled at [appellee] to get back into the car is a substantial factor in determining

whether any search of [appellee] was consensual.” The court then determined that Trooper

Seabolt exceeded the scope of a pat down search for weapons. The court thus stated that for the

search to have been lawful, appellee must have consented to it.1 The trial court determined that


          1
             The court did not clarify whether the trooper’s pat down search was justified from its inception as either a consent
search or a lawful pat down search for weapons. Instead, the court appears to have assumed that the trooper was justified in
patting down appellee, but determined that the trooper exceeded the scope of a lawful pat down search for weapons.
ROSS, 11CA3217                                                                                        5

appellee did not consent and explained: “Given the nature in which [appellee] initially was ordered

back in the car, removed from the vehicle by Trooper Seabolt, not advised of his right to refuse to

consent to the search by the officer, the Court finds that [appellee] did not consent to the search

and was coerced into removing the contraband from his pocket.” This appeal followed.

       {¶ 12} In its sole assignment of error, the appellant asserts that the trial court erred by

granting appellee’s motion to suppress evidence. In particular, the prosecution argues that

Trooper Seabolt’s search of the appellee did not violate the Fourth Amendment prohibition against

unreasonable searches because: (1) appellee consented to the search; or (2) the trooper possessed

probable cause to search appellee.

                                                   A

                                      STANDARD OF REVIEW

       {¶ 13} Initially, we note that appellate review of a trial court’s decision regarding a motion

to suppress evidence involves mixed questions of law and fact. See State v. Roberts, 110 Ohio

St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶100; State v. Long (1998), 127 Ohio App.3d 328,

332, 713 N.E.2d 1. When ruling on a motion to suppress evidence, a trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See, e.g., Roberts at ¶100. Accordingly, a reviewing court must defer to a trial

court’s findings of fact if competent, credible evidence exists to support the trial court’s findings.

See, e.g., id.; State v. Medcalf (1996), 111 Ohio App.3d 142, 145, 675 N.E.2d 1268. The

reviewing court then must independently determine, without deference to the trial court, whether

the trial court properly applied the substantive law to the facts of the case. See Roberts at ¶100.

See, generally, Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911.

                                                   B
ROSS, 11CA3217                                                                                     6

                                     FOURTH AMENDMENT

       {¶ 14} The Fourth Amendment to the United States Constitution protects individuals

against unreasonable governmental searches and seizures. See, e.g., Delaware v. Prouse (1979),

440 U.S. 648, 662, 99 S.Ct. 1391, 59 L.Ed.2d 660. “[S]earches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment-subject only to a few specifically established and well-delineated exceptions.” Katz

v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. Once the defendant

demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the state

to establish that the warrantless search or seizure was constitutionally permissible. See Roberts at

¶98; Maumee v. Weisner (1999), 87 Ohio St.3d 295, 297, 720 N.E.2d 507; Xenia v. Wallace

(1988), 37 Ohio St.3d 216, 524 N.E.2d 889, paragraph two of the syllabus.

                                                  C

                                             CONSENT

       {¶ 15} One well-established exception to the warrant requirement is the consent search.

Thus, no Fourth Amendment violation occurs when an individual voluntarily consents to a search.

See United States v. Drayton (2002), 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (stating

that “[p]olice officers act in full accord with the law when they ask citizens for consent”);

Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (“[A] search

conducted pursuant to a valid consent is constitutionally permissible”); State v. Comen (1990), 50

Ohio St.3d 206, 211, 553 N.E.2d 640. Consent to a search is “a decision by a citizen not to assert

Fourth Amendment rights.” Katz, Ohio Arrest, Search and Seizure (2004 Ed.), Section 17:1, at

341. In Schneckloth, the United States Supreme Court acknowledged the importance of consent

searches in police investigations and noted that “a valid consent may be the only means of
ROSS, 11CA3217                                                                                      7

obtaining important and reliable evidence” to apprehend a criminal. Id. at 227-228.

       {¶ 16} “‘[C]onsent [to search] may be implied by the circumstances surrounding the

search, by the person’s prior actions or agreements, or by the person’s failure to object to the

search.’” State v. Lane, Montgomery App. No. 21501, 2006-Ohio-6830, ¶40, quoting Kuras, et

al., Warrantless Searches and Seizures (2002), 90 Geo.L.J. 1130, 1172. “‘Thus, a search may be

lawful even if the person giving consent does not recite the talismanic phrase: “You have my

permission to search.”’” Id., quoting United States v. Better-Janusch (C.A.2, 1981), 646 F.2d 759,

764.

       {¶ 17} A court that is determining whether a defendant voluntarily consented to a search

must consider the totality of the circumstances. United States v. Drayton (2002), 536 U.S. 194,

207, 122 S.Ct. 2105, 153 L.Ed.2d 242; United States v. Watson (1976), 423 U.S. 411, 424, 96

S.Ct. 820, 46 L.Ed.2d 598. Some important factors for a court to consider include: (1) the

suspect’s custodial status and the length of the initial detention; (2) whether the consent was given

in public or at a police station; (3) the presence of threats, promises, or coercive police procedures;

(4) the words and conduct of the suspect; (5) the extent and level of the suspect’s cooperation with

the police; (6) the suspect’s awareness of his right to refuse to consent and his status as a

“newcomer to the law”; and (7) the suspect’s education and intelligence. See Watson, 423 U.S. at

424-425; State v. Fry, Jackson App. No. 03CA26, 2004-Ohio-5747, ¶23; State v. Riggins,

Hamilton App. No. C-030626, 2004-Ohio-4247, ¶15; see, also, State v. Sanchez (Apr. 24, 1998),

Greene App. No. 97CA32 (stating that six factors court must consider are “(1) the voluntariness of

the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and

level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to

refuse to consent; (5) the defendant’s education and intelligence; and (6) the defendants belief that
ROSS, 11CA3217                                                                                      8

no incriminating evidence will be found.”) (citations and internal quotations omitted).

       {¶ 18} Although an individual’s awareness of the right to refuse consent is a factor under

the totality of the circumstances test, it “is not a prerequisite of a voluntary consent.” Schneckloth,

412 U.S. at 234. Thus, the state need not establish such knowledge “as the sine qua non of an

effective consent.” Id.; see, also, Drayton, 536 U.S. at 206-207. “The Court has rejected in

specific terms the suggestion that police officers must always inform citizens of their right to refuse

when seeking permission to conduct a warrantless consent search.” Id. at 206 (citing Ohio v.

Robinette (1996), 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347; Schneckloth, 412 U.S. at

227). “Nor do this Court’s decisions suggest that even though there are no per se rules, a

presumption of invalidity attaches if a citizen consented without explicit notification that he or she

was free to refuse to cooperate. Instead, the Court has repeated that the totality of the

circumstances must control, without giving extra weight to the absence of this type of warning.

See, e.g., Schneckloth, supra; Robinette, supra.” Id. at 207.

       {¶ 19} Furthermore, an officer’s request for an individual’s consent does not render

consent involuntary. State v. Rose, Highland App. No. 06CA5, 2006-Ohio-5292, ¶39. “‘While

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.’”

Drayton, 536 U.S. at 205 (quoting INS v. Delgado (1984), 466 U.S. 210, 216, 104 S.Ct. 1758, 80

L.Ed.2d 247). However, consent to a search that is “coerced by threats or force, or granted only in

submission to a claim of lawful authority,” is invalid. Schneckloth, 412 U.S. at 233. Such

“lawful authority” is a law enforcement officer’s express or implied false claim that the officer can

immediately proceed to make the search regardless of consent. See State v. Sears, Montgomery

App. No. 20849, 2005-Ohio-3880, ¶37, citing Bumper v. North Carolina (1968), 391 U.S. 543, 88
ROSS, 11CA3217                                                                                           9

S.Ct. 1788, 20 L.Ed.2d 797 (holding that consent not valid when obtained after law enforcement

officer stated that he had a warrant to search).

       {¶ 20} Moreover, “[a] suspect’s expression of consent to perform a warrantless search of

his person is not involuntary because he calculates that it is in his best interests to consent. It is

involuntary because it is coerced; that is, the product of compulsion arising from physical force or

a threat of physical force.” State v. Sears, Montgomery App. No. 20849, 2005-Ohio-3880, ¶38.

       {¶ 21} Additionally, although an individual’s custodial status is a relevant factor in the

totality of the circumstances analysis, “the fact of custody alone has never been enough in itself to

demonstrate a coerced * * * consent to search.” Watson, 423 U.S. at 424. “Even suspects who

are handcuffed may voluntarily consent to a search.” State v. Riggins, Hamilton App. No.

C-030626, 2004-Ohio-4247, ¶18, citing United States v. Crowder (C.A.6, 1995), 62 F.3d 782, 788.

       {¶ 22} The state has the burden to prove, by “clear and positive” evidence, not only that the

necessary consent was obtained, but that it was freely and voluntarily given. Florida v. Royer

(1983), 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229; Bumper v. North Carolina (1968), 391

U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797; State v. Posey (1988), 40 Ohio St.3d 420, 427, 534

N.E.2d 61. “Clear and positive evidence” is the substantial equivalent of clear and convincing

evidence. State v. Ingram (1992), 82 Ohio App.3d 341, 346, 612 N.E.2d 454. The Ohio

Supreme Court has defined “clear and convincing evidence” as follows:

                “The measure or degree of proof that will produce in the mind of the trier of
       fact a firm belief or conviction as to the allegations sought to be established. It is
       intermediate, being more than a mere preponderance, but not to the extent of such
       certainty as required beyond a reasonable doubt as in criminal cases. It does not
       mean clear and unequivocal.”

       {¶ 23} In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23; see, also,

State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. In reviewing whether the lower
ROSS, 11CA3217                                                                                                               10

court’s decision was based upon clear and convincing evidence, “a reviewing court will examine

the record to determine whether the trier of facts had sufficient evidence before it to satisfy the

requisite degree of proof.” Schiebel, 55 Ohio St.3d at 74. If the lower court’s judgment is

“supported by some competent, credible evidence going to all the essential elements of the case,” a

reviewing court may not reverse that judgment. Id.

         {¶ 24} Ordinarily, the issue of whether an individual voluntarily consented to a search is a

question of fact, not a question of law. See State v. Fry, Jackson App. No. 03CA26,

2004-Ohio-5747, at ¶21, citing Ohio v. Robinette (1996), 519 U.S. 33, 40, 117 S.Ct. 417, 136

L.Ed.2d 347; Schneckloth, 412 U.S. at 227; State v. Southern (Dec. 28, 2000), Ross App. No.

00CA2541.2 Because a reviewing court should generally defer to a trial court when it acts as the

trier of fact, an appellate court should generally defer to a trial court’s finding regarding whether a

defendant voluntarily consented to a search. Fry at ¶21. Thus, appellate courts generally review

trial court findings that a defendant voluntarily consented to a search under the weight of the

evidence standard set forth in State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. See

Fry. Even though the state’s burden of proof is “clear and convincing,” this standard of review is

highly deferential and the presence of “some competent, credible evidence” to support the trial


         2
              In Southern, we questioned whether the voluntariness of an individual’s consent to search should be a question of
fact, but ultimately decided that we must follow the Ohio Supreme Court’s pronouncement on the issue. We stated: “We are
tempted to question whether voluntariness in reality presents a factual issue requiring deferential review. See, e.g., Arizona v.
Fulminate (1991), 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (the ultimate issue of voluntariness in a confession
context is a legal question) and O’Day v. Webb (1972), 29 Ohio St.2d 215, 219, 280 N.E.2d 896 (simply because a question of
law involves consideration of the facts does not turn it into a question of fact). See, also, Ruta v. Breckenbridge-Remy Co.
(1982), 69 Ohio St.2d 66, 68, 430 N.E.2d 935. Nonetheless, we are duty bound to follow Ohio v. Robinette, supra, and State
v. Robinette, * * *.” This sentiment seems especially appropriate in the case sub judice, where there really are no factual
issues to resolve but only whether those facts demonstrate voluntary consent. Typically, whether facts satisfy a legal
standard constitutes a question of law.
ROSS, 11CA3217                                                                                    11

court’s finding requires us to affirm it. Schiebel. Moreover, the weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass (1967),

10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. This principle applies to

suppression hearings as well as to trials. See Fry at ¶22, citing State v. Fanning (1982), 1 Ohio

St.3d 19, 437 N.E.2d 583. “The ‘rationale of giving deference to the findings of the trial court

rests with the knowledge that the trial judge is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.’” In re J.Y., Miami App. No. 07–CA–35, 2008–Ohio–3485, ¶33, quoting

Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

       {¶ 25} Although as we point out supra the voluntariness of consent is ordinarily a question

of fact reserved to the trial court, reviewing courts have on occasion disagreed with a trial court’s

determination regarding a defendant’s voluntary consent. See Sears, supra; State v. Christopher,

Clermont App. No. CA2009-08-041, 2010-Ohio-1816, ¶11 (disagreeing with trial court’s

conclusion that defendant did not voluntarily consent to search). Cf. State v. Lovins, Montgomery

App. No. 23530, 2010-Ohio-3916 (noting that state had not asserted consent as basis for search

during trial court proceedings but nonetheless independently reviewing the evidence and finding

that defendant consented). Furthermore, in the case sub judice the trial court did not actually

conduct an evidentiary hearing regarding the motion to suppress. Consequently, the court did not

hear or see any witnesses and, consequently, did not have the opportunity to assess the credibility

of any witness. One of the primary reasons that we generally defer to a trial court when it acts as

the fact finder is because of its superior position to assess witness credibility. Consequently, in

the case at bar we need not completely defer to the trial court’s finding that appellee did not

voluntarily consent to the search. Rather, because we are reviewing the same stipulated evidence
ROSS, 11CA3217                                                                                        12

in the same manner as the trial court, we find it appropriate to afford less deference to the trial

court’s finding regarding appellee’s voluntary consent. Once again, had this been a case of

conflicting witness testimony (e.g. appellee stated he did not consent while the law enforcement

officer stated that he did), we would have, in all likelihood, deferred to the trial court’s resolution

of the conflicting testimony.

       {¶ 26} In Sears, for example, the appellate court did not defer to the trial court’s finding

regarding the defendant’s consent to a search. The trial court had rejected the state’s argument

that the defendant voluntarily consented to the search. The trial court determined that the

defendant’s consent was not voluntary when the law enforcement officers removed him from the

vehicle and when the defendant was holding his hands on top of his head. The trial court

nevertheless concluded that the search was a proper pat down search for weapons and that the

officer was entitled to remove the items from the defendant’s pockets because the officer could

have believed the items were a weapon.



       {¶ 27} In disagreeing with the trial court’s finding that the defendant did not consent to the

search of his pockets, the appellate court explained:

               “While the officers in this case did exercise some authority or control over
       Defendant by ordering him out of the vehicle for safety reasons, which they were
       entitled to do, Mimms, supra, and by patting him down for weapons, Defendant was
       not under arrest at that time, and the control exercised by the officers was no more
       than that inherent in those minimally intrusive procedures. That Defendant was
       told to stand with his hands on his head increased his sense of vulnerability, but is
       not inherently coercive. Furthermore, Officer Neubauer’s asking Defendant if he
       could remove the spoons from his pocket is not coercive or threatening, and there is
       nothing in this record that indicates Defendant’s consent was given in response to a
       claim by Officer Neubauer that he had the lawful authority to remove the spoons in
       any event. On this record, the State met its burden to demonstrate the exception to
       the warrant requirement on which it relied, that Defendant had voluntarily
       consented to the removal of the spoons from his pocket.”
ROSS, 11CA3217                                                                                                                 13

Id. at ¶39.

          {¶ 28} After our review of the stipulated evidence submitted in the case sub juice, we

disagree with the trial court’s conclusion that the appellee did not voluntarily consent to the

search.3 The trial court relied upon the following factors to determine that appellee did not

consent: (1) the trooper ordered appellee to remain in the vehicle; (2) the trooper removed appellee

from the vehicle; and (3) the trooper did not advise appellee of his right to refuse. With respect to

the first of these factors, the trooper was entirely justified to order appellee to remain in the vehicle.

 As the United States Supreme Court has recognized, traffic stops carry inherent dangers and law

enforcement officers are entitled to exercise authority over the driver and any passengers in order

to maintain a sense of safety. See Arizona v. Johnson (2009), 555 U.S. 323, 330, 129 S.Ct. 781,

172 L.Ed.2d 694 (recognizing that “traffic stops are ‘especially fraught with danger to police

officers” and that “‘”[t]he risk of harm to both the police and the occupants [of a stopped vehicle]

is minimized * * * if the officers routinely exercise unquestioned command of the situation.”’”)

(internal quotations and citations omitted). Thus, the trooper’s command that appellee remain in

the vehicle does not constitute a coercive or threatening act.

          {¶ 29} The second factor that the trial court relied upon (that the trooper removed appellee

from the vehicle) is not supported by the stipulated evidence. Instead, the videotape reveals that

          3
             Although the trial court did not clearly explain whether it considered the validity of the pat down search from its
inception, we observe that even if appellee did not consent to the pat down search, the trooper was justified in patting appellee
down for weapons. We and the Ohio Supreme Court have previously recognized that the right to frisk is virtually automatic
when drugs are suspected. See State v. Evans (1993), 67 Ohio St.3d 405, 413, 618 N.E.2d 162; State v. Kelley, Ross App. No.
10CA3182, 2011-Ohio-3545; State v. Abernathy, Scioto App. No. 07CA3160, 2008-Ohio-2949; see, also, State v. Thompson,
Hamilton App. No. C-050400, 2006-Ohio-4285, ¶11 (stating that “[t]he very nexus between drugs and guns can create a
reasonable suspicion of danger to the officer: and that “[w]hen investigating drug activity, officers have a legitimate concern for
their own safety, and that concern can justify a pat-down search for weapons”). Because the driver informed the trooper that
appellee possessed drugs, the trooper possessed reasonable suspicion that appellee possessed drugs, which then justified his
frisk of appellee.
ROSS, 11CA3217                                                                                   14

the trooper approached appellee and requested him to roll down the window. The trooper then

requested appellee to “hop out here.”    It does not appear that the trooper forcibly, or otherwise

physically, removed appellee from the vehicle.

       {¶ 30} As for the third factor, courts recognize that an individual need not be aware of the

right to refuse an officer’s request to search in order for consent to be deeded voluntary.

Moreover, our review of the videotape in the case at bar fails to reveal any coercive or threatening

conduct. The trooper remained reasonably calm throughout the interaction and did not imply that

he could search appellee regardless of consent. When the trooper requested appellee’s consent,

appellee appeared cooperative and did not appear to resist the trooper’s request. Appellee

cooperated with the trooper when the trooper requested appellee to remove items from his pockets.

 United States v. Jones (E.D.Tenn. 2007), No. 3:06-CR-149 (stating that defendant’s failure to

protest search of pockets indicated voluntary consent); see, also, State v. Crum, Montgomery App.

No. 22812, 2009-Ohio-3012 (upholding search of defendant’s pockets as valid consent search

when defendant cooperated with officer). The following factors further suggest that appellee

voluntarily consented to the search: (1) appellee was not under arrest when the trooper requested

consent; (2) the encounter occurred in a public parking lot; and (3) there is no evidence that the

trooper indicated to appellee that he could search appellee regardless of consent. We believe that

the totality of the circumstances surrounding the interaction fails to show any coercive or

threatening tactics. Thus, we conclude that the trial court erred in finding that appellee did not

voluntarily consent to the search.

       {¶ 31} Accordingly, based upon the foregoing reasons, we hereby sustain the appellant’s

assignment of error, and reverse and remand this matter to the trial court for further proceedings

consistent with this opinion.
ROSS, 11CA3217                                                                                  15

                                                      JUDGMENT REVERSED AND CAUSE
                                      REMANDED.




Harsha, J., dissenting:

       {¶ 32} I respectfully dissent from the majority’s conclusion that Miller voluntarily

consented to the search of his pockets. Regardless of the fact that we are reviewing the same

stipulation and video evidence as the trial court, I see no reason to deviate from the normal degree

of deference we afford the fact finder concerning the issue of consent. Just as importantly, my

view of the CD and its audio reveals it conflicts with the trooper’s stipulated statement.

       {¶ 33} Based upon that review it is clear to me that the trooper asked and received consent

to frisk Miller. In my view such consent was not necessary to conduct a pat down but it is

nevertheless important here because Miller’s consent was given in response to a request for a pat

down, not a full search. When the frisk concluded without revealing any weapons or satisfying
ROSS, 11CA3217                                                                                   16

“the plain feel exception” for drugs, the trooper had to stop. But instead, in a search for evidence,

he told Miller to empty his pockets. This clearly is not permitted under Terry, or a consensual

frisk. Because the trooper did not ask for consent to search after the frisk, the additional intrusion

was not consensual. Therefore, I dissent.




                                       JUDGMENT ENTRY

       It is ordered that the judgment be reversed and remanded and that appellant recover of

appellee the costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Chillicothe

Municipal Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate

pursuant to Rule 27 of the Rules of Appellate Procedure.

       McFarland, J.: Concurs in Judgment & Opinion
       Harsha, J.: Dissents with Dissenting Opinion

                                                              For the Court




                                                              BY:
                                            Peter B. Abele
                                            Presiding Judge
ROSS, 11CA3217                                                                               17




                                   NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
