[Cite as State v. Clark, 2016-Ohio-4614.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
STEPHEN K. CLARK                             :       Case No. 15-COA-040
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 15-CRI-184




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    June 20, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER R. TUNNELL                               MATTHEW J. MALONE
EMILY M. BATES                                       10 East Main Street
110 College Street                                   Ashland, OH 44805
Third Floor
Ashland, OH 44805
Ashland County, Case No. 15-COA-040                                                      2

Farmer, P.J.

       {¶1}    On December 12, 2014, the Ashland County Grand Jury indicted appellant,

Stephen Clark, on one count of having weapons under disability in violation of R.C.

2923.13, one count of aggravated possession of drugs in violation of R.C. 2925.11, one

count of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16, one

count of trafficking in marijuana in violation of R.C. 2925.03, one count of possession of

marijuana in violation of R.C. 2925.11, and one count of illegal use or possession of

marijuana drug paraphernalia in violation of R.C. 2925.141. Said charges arose from a

traffic stop on December 7, 2014 and the subsequent search of appellant's glove box.

       {¶2}    On March 23, 2015, appellant filed a motion to suppress, claiming an illegal

search. A hearing was held on May 18, 2015. By judgment entry filed July 27, 2015, the

trial court denied the motion, finding appellant voluntarily consented to the search of the

glove box.

       {¶3}    A bench trial commenced on October 2, 2015.          The trial court found

appellant guilty as charged except for the paraphernalia charge. By judgment entry filed

November 12, 2015, the trial court sentenced appellant to an aggregate term of eighteen

months in prison. A nunc pro tunc judgment entry was filed on February 12, 2015 to

include jail time credit.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:




                                             I
Ashland County, Case No. 15-COA-040                                                           3


       {¶5}   "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS."

                                               I

       {¶6}   Appellant claims the trial court erred in denying his motion to suppress as

the findings of probable cause to search his glove box was not supported by the evidence.

We agree.

       {¶7}   There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. State v. Williams, 86 Ohio

App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not

against the manifest weight of the evidence and it has properly identified the law to be

applied, an appellant may argue the trial court has incorrectly decided the ultimate or final

issue raised in the motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623 (4th Dist.1993);

Guysinger. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
Ashland County, Case No. 15-COA-040                                                         4


116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal."

       {¶8}   In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior even

though there is no probable cause to make an arrest." However, for the propriety of a

brief investigatory stop pursuant to Terry, the police officer involved "must be able to point

to specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be

viewed in the light of the totality of the surrounding circumstances" presented to the police

officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the syllabus.

       {¶9}   As explained by the United States Supreme Court in Texas v. Brown, 460

U.S. 730, 742, 103 S.Ct. 1535 (1983):



              As the Court frequently has remarked, probable cause is a flexible,

       common-sense standard. It merely requires that the facts available to the

       officer would "warrant a man of reasonable caution in the belief," Carroll v.

       United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925),

       that certain items may be contraband or stolen property or useful as

       evidence of a crime; it does not demand any showing that such a belief be

       correct or more likely true than false. A "practical, nontechnical" probability

       that incriminating evidence is involved is all that is required. Brinegar v.
Ashland County, Case No. 15-COA-040                                                    5

      United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879

      (1949).



      {¶10} In Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280 (1925), the

United States Supreme Court explained the following:



             We have made a somewhat extended reference to these statutes to

      show that the guaranty of freedom from unreasonable searches and

      seizures by the Fourth Amendment has been construed, practically since

      the beginning of the government, as recognizing a necessary difference

      between a search of a store, dwelling house, or other structure in respect

      of which a proper official warrant readily may be obtained and a search of

      a ship, motor boat, wagon, or automobile for contraband goods, where it is

      not practicable to secure a warrant, because the vehicle can be quickly

      moved out of the locality or jurisdiction in which the warrant must be sought.



      {¶11} "If a car is readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits police to search the vehicle without

more." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485 (1996).

      {¶12} In the case sub judice, a suppression hearing was held on May 18, 2015.

The sole testimony was offered by the arresting officer, Ohio State Highway Patrol

Trooper Brad Bishop. Trooper Bishop stated he stopped appellant for speeding. May

18, 2015 T. at 5, 12. Trooper Bishop asked appellant for his license, registration, and
Ashland County, Case No. 15-COA-040                                                         6

insurance for the vehicle. Id. at 6. Appellant produced an Indiana driver's license, but did

not have any paperwork for the vehicle as it was a rental. Id. Because the vehicle did

not contain barcodes on the window typical of rentals and had a dealer bracket around

the license plate, Trooper Bishop became concerned that the vehicle could have been

stolen. Id. at 6-7.

       {¶13} A "registration check showed that the license plate showed it was returning

to the correct vehicle, however, no other information was listed back with the registration

in the computer file." Id. at 7. Trooper Bishop looked through the vehicle with his flashlight

and did not find any paperwork. Id. at 8. He asked appellant if the paperwork could be

in the trunk whereupon appellant voluntarily opened the trunk and the two searched for

the registration and rental agreement paperwork, but found nothing. Id. at 8, 15.

       {¶14} Trooper Bishop then walked around to the driver's side of the vehicle as

well as the passenger's side and looked inside the vehicle with his flashlight, on the floor

and in between the seats, finding no paperwork. Id. at 9, 16-17. Trooper Bishop had not

asked appellant for permission to search inside the vehicle. Id. at 16-17. He attempted

to open the glove box, but it was locked. Id. at 17. He approached appellant with his

hand outstretched and asked him if he had the keys to the vehicle. Id. at 17-18. Appellant

handed him the keys. Id. at 10, 17-18. Trooper Bishop did not specifically ask for the

keys, ask for permission to search the glove box, or ask appellant to open the glove box.

Id. at 18. As Trooper Bishop started to open the glove box, appellant informed him of a

firearm therein. Id. at 10, 18. Trooper Bishop opened the glove box and found a firearm

with a round in the chamber and the registration and rental agreement paperwork. Id.
Ashland County, Case No. 15-COA-040                                                     7


       {¶15} In its July 27, 2015 judgment entry denying the motion to suppress, the trial

court found appellant voluntarily opened the trunk and voluntarily handed the keys to

Trooper Bishop. The trial court concluded appellant's "consent to search the glove

compartment was voluntary when he handed the keys over."

       {¶16} There is no dispute Trooper Bishop had probable cause to stop the vehicle.

The issue is the subsequent search for the registration and rental agreement paperwork.

The narrow question is whether the facts and circumstances sub judice (Trooper Bishop

approaching appellant with his hand outstretched and asking if he had the keys) support

a finding of a voluntary consent to search.

       {¶17} Appellee argues appellant consented to the search of the glove box

because appellant was not in custody, jointly participated in the search of the trunk, and

handed the keys to Trooper Bishop to open the glove box

       {¶18} In State v. Camp, 5th Dist. Richland No. 14CA42, 2014-Ohio-329, ¶ 23-24,

this court stated the following:



              The United States Supreme Court further noted, "[w]hile 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." I.N.S. v. Delgado, 466 U.S. 210, 216,

       104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Drayton, supra, 536 U.S. at 205,

       122 S.Ct. at 2113. Moreover, a voluntary consent need not amount to a

       waiver; consent can be voluntary without being an "intentional

       relinquishment or abandonment of a known right or privilege." Schneckloth
Ashland County, Case No. 15-COA-040                                               8

     v. Bustamonte, 412 U.S. 218, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1983),

     (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed.

     1464 (1938)); State v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922 (1986);

     State v. McConnell, 5th Dist. Stark No. 2002CA00048, 2002–Ohio–5300, ¶

     8. Rather, the proper test is whether the totality of the circumstances

     demonstrates that the consent was voluntary. Id. Further, "[v]oluntary

     consent, determined under the totality of the circumstances, may validate

     an otherwise illegal detention and search." State v. Robinette, 80 Ohio

     St.3d 234, 241, 685 N.E.2d 762 (1997), citing United States v. Davis, 328

     U.S. 582, 593–594, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). The voluntariness

     of a consent to a search is a question of fact and will not be reversed on

     appeal unless clearly erroneous. State v. Clelland, 83 Ohio App.3d 474,

     615 N.E.2d 276 (4th Dist.1992).

           In State v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762

     (1997), the Supreme Court noted,



                  We find Bustamonte instructive in defining when

           permission to search is truly consensual under the totality of

           the circumstances:

                  "[W]hen the subject of a search is not in custody and

           the State attempts to justify a search on the basis of his

           consent, the Fourth and Fourteenth Amendments require that

           it demonstrate that the consent was in fact voluntarily given,
Ashland County, Case No. 15-COA-040                                                    9


             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." Id., 412

             U.S. at 248-249, 93 S.Ct. at 2059, 36 L.Ed.2d at 875.



      80 Ohio St.3d at 242-243, 685 N.E.2d at 769. The burden of proving that

      the suspect voluntarily consented to the search rests upon the prosecution.

      Schneckloth, supra; Danby, supra; Bumper v. North Carolina, 391 U.S. 543,

      88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); State v. Hassey, 9 Ohio App.3d 231,

      459 N.E.2d 573 (10th Dist.1983); State v. Pi Kappa Alpha Fraternity, 23

      Ohio St.3d 141, 491 N.E.2d 1129 (1986). The state's burden is not satisfied

      by showing a mere submission to a claim of lawful authority. Robinette, 80

      Ohio St.3d at 243, 685 N.E.2d at 770.



      {¶19} We note the joint search of the trunk was done with appellant opening the

trunk and Trooper Bishop looking over appellant's shoulder as appellant looked in the

trunk. May 18, 2015 T. at 8, 15. Trooper Bishop reached in and looked inside a brown

paper bag to see if it contained the registration and rental agreement paperwork. Id. at

15. We discount this search as a circumstance that leads to appellant's voluntary consent

to open the glove box. Trooper Bishop then proceeded to conduct his own search of the
Ashland County, Case No. 15-COA-040                                                      10

inside of the vehicle. Id. at 9, 16-17. Appellant neither participated nor consented to this

independent search. Again, this search as a layer of appellant's consent to search can

be disregarded.

       {¶20} The only area left unsearched was the locked glove box. Although Trooper

Bishop had concerns about whether the vehicle had been stolen versus rented, that

suspicion did not rise to the level of probable cause. By approaching appellant with an

outstretched hand and asking for the keys, Trooper Bishop did so under the color and

authority of his badge and uniform. In looking at the totality of the circumstances, we find

the mere relinquishment of the keys by appellant to be insufficient to establish voluntary

consent.

       {¶21} Upon review, we find the trial court erred in denying the motion to suppress.

       {¶22} The sole assignment of error is granted.
Ashland County, Case No. 15-COA-040                                           11


       {¶23} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




SGF/sg 520
Ashland County, Case No. 15-COA-040                                                   12

Hoffman, J., dissenting

      {¶24} I respectfully dissent from the majority opinion.

      {¶25} I would affirm the trial court’s decision to overrule Appellant’s motion to

suppress based upon the automobile exception to the Fourth Amendment. I find Trooper

Bishop had probable cause to search Appellant’s vehicle once Appellant told the trooper

he had a firearm in the glove box. Because this occurred prior to the trooper’s search, I

find any analysis of whether Appellant consented to the search unnecessary.




                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
