[Cite as State v. Hannah, 2015-Ohio-4964.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                  No. 15AP-212
v.                                               :          (C.P.C. No. 14CR-5050)

Eric D. Hannah,                                  :       (REGULAR CALENDAR)

                 Defendant-Appellant.           :



                                        D E C I S I O N

                                   Rendered on December 1, 2015


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellee.

                 Yeura R. Venters, Public Defender, and David L. Strait, for
                 appellant.

                  APPEAL from the Franklin County Court of Common Pleas

SADLER, J.
        {¶ 1} Defendant-appellant, Eric D. Hannah, appeals from a judgment of the
Franklin County Court of Common Pleas, convicting him of two counts of drug possession
in violation of R.C. 2925.11. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On May 20, 2014, Columbus police officers Christopher Hostettler and his
partner were dispatched to the area of Bartham Avenue and South Ninth Street to
investigate a suspicious vehicle. On that date, both Hostettler and his partner were
working as uniformed patrol officers in the south end of Columbus and driving a marked
"paddy wagon." (Jan. 20, 2015 Tr. 23.) Hostettler described the paddy wagon as being a
little larger than a typical minivan.
No. 15AP-212                                                                            2


      {¶ 3} As Hostettler drove the paddy wagon into an alley between Ninth Street and
Hinkle Avenue, heading east, he observed appellant walking in the alley, heading west.
The time was approximately 1:18 a.m. Hostettler was familiar with appellant from prior
encounters, and he knew that appellant lived in the neighborhood. During these prior
encounters with appellant, appellant had admitted to Hostettler that he was addicted to
heroin. According to Hostettler, he had asked appellant for consent to search his person
on three or four prior occasions and that appellant always consented. Hostettler related
that he had found "contraband" on appellant in the past. (Jan. 20, 2015 Tr. 35.)
      {¶ 4} On this occasion, Hostettler stopped the paddy wagon in the alley as
appellant approached the vehicle on the driver's side. Hostettler rolled down his driver's
side window and asked appellant what he was up to. Appellant responded that he had
been at the nearby Parsons Market located on Parsons Avenue. Hostettler knew that
Parsons Market closed at 12:00 a.m., and he suspected that appellant might have been at
a drug house. At that point, Hostettler exited the vehicle and asked appellant if he
minded if Hostettler searched him. According to Hostettler, appellant raised both of his
hands in the air and responded, "No, go ahead." (Jan. 20, 2015 Tr. 14.)
      {¶ 5} Before conducting the search, Hostettler placed appellant's hands behind
his back and asked appellant "if he had any thing sharp that might stick me." (Jan. 20,
2015 Tr. 14.) Appellant informed Hostettler that "he had some needles on him." (Jan. 20,
2015 Tr. 14.)   Hostettler proceeded to search appellant, and in one of his pockets
Hostettler found a pouch containing several needles "and one of them was loaded with a
dark-colored liquid which we believed to be heroin." (Jan. 20, 2015 Tr. 14.) Hostettler
placed appellant under arrest and transported him back to the police station. Before
bringing appellant into the station house, Hostettler conducted a second search of
appellant's person during which he recovered crack cocaine.
      {¶ 6} On September 19, 2014, a Franklin County Grand Jury indicted appellant
on two counts of drug possession, in violation of R.C. 2925.11, a fifth-degree felony. On
December 16, 2014, appellant filed a motion to suppress the evidence uncovered in the
warrantless search of his person. On January 20, 2015, the trial court conducted an
evidentiary hearing on the motion to suppress. Following the presentation of evidence
and the arguments of counsel, the trial court denied the motion. The following day,
No. 15AP-212                                                                                                 3


appellant entered a plea of no contest to the charges in the indictment, and the trial court
convicted appellant of both counts. The trial court imposed a concurrent sentence of 24
months of community control for each conviction. The trial court issued its judgment
entry on February 20, 2015.
           {¶ 7} Appellant filed a notice of appeal to this court on March 24, 2015.1
II. ASSIGNMENTS OF ERROR
           {¶ 8} Appellant's sole assignment of error is as follows:
                   The trial court erred in overruling a defense motion to
                   suppress evidence seized in the unconstitutional search of
                   Appellant.

III. STANDARD OF REVIEW
           {¶ 9} " 'Appellate review of a motion to suppress presents a mixed question of law
and fact.' " State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 6, quoting State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. " 'When considering a motion to
suppress, the trial court assumes the role of fact finder and, accordingly, is in the best
position to resolve factual questions and evaluate witness credibility.' " Id., quoting
Columbus v. Body, 10th Dist. No. 11AP-609, 2012-Ohio-379, ¶ 9, citing Burnside at ¶ 8,
citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). " 'As such, an appellate court must
accept the trial court's factual findings if they are supported by competent, credible
evidence.' " Id., quoting Body at ¶ 9, citing Burnside at ¶ 8, citing State v. Fanning, 1 Ohio
St.3d 19 (1982).           " 'Accepting these facts as true, the reviewing court must then
independently determine, without deference to the trial court's conclusion, whether the
facts satisfy the applicable legal standard.' " Id., quoting Body at ¶ 9, citing Burnside at
¶ 8, citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
IV. LEGAL ANALYSIS
           {¶ 10} In his sole assignment of error, appellant contends that the trial court erred
in overruling his motion to suppress evidence seized in the search of his person. We
disagree.




1   On May 19, 2015, this court granted appellant's App.R. 5(A) motion for leave to file a delayed appeal.
No. 15AP-212                                                                                4


       {¶ 11} The trial court determined that Hostettler lawfully obtained the evidence of
drug possession following a consensual encounter with appellant during which appellant
orally gave his consent to the search of his person. Appellant argues that, under the
particular circumstances of appellant's encounter with police, a reasonable person in
appellant's position would not believe he was free to leave. Appellant claims that he was
"seized" by Hostettler prior to giving his oral consent to the search. The evidence in the
record does not support appellant's argument.
       {¶ 12} The Fourth Amendment to the United States Constitution, as well as Article
I, Section 14 of the Ohio Constitution, prohibits unreasonable searches and seizures
rendering them per se unreasonable unless an exception applies. State v. Kinney, 83
Ohio St.3d 85, 87 (1998). A motion to suppress evidence challenges the warrantless
search and seizure at issue as being in violation of the Fourth Amendment of the United
States Constitution and Article I of the Ohio Constitution. State v. Lynch, 196 Ohio
App.3d 420, 2011-Ohio-5502 (8th Dist.), citing State v. Williams, 8th Dist. No. 81364,
2003-Ohio-2647, ¶ 7. "The principal remedy for such a violation is the exclusion of
evidence from the criminal trial of the individual whose rights have been violated." Id.
       {¶ 13} "The United States Supreme Court recognizes three categories of police-
citizen interactions: (1) a consensual encounter, which requires no objective justification
* * *; (2) a brief investigatory stop or detention, which must be supported by reasonable
suspicion of criminal activity * * *; and (3) a full-scale arrest, which must be supported by
probable cause." State v. Westover, 10th Dist. No. 13AP-555, 2014-Ohio-1959, ¶ 14, citing
Florida v. Bostick, 501 U.S. 429, 434 (1991); Terry v. Ohio, 392 U.S. 1, 19 (1968); and
Brown v. Illinois, 422 U.S. 590 (1975). Thus, " 'not all personal intercourse between
policemen and citizens involves "seizures" of persons. Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen may
we conclude that a "seizure" has occurred' within the meaning of the Fourth
Amendment." Body at ¶ 10, quoting Terry at 19, fn. 16.
       {¶ 14} "In determining whether a particular encounter constitutes a 'seizure,' and
thus implicates the Fourth Amendment, the question is whether, in view of all the
circumstances surrounding [his or her] encounter [with police], a reasonable person
would believe he or she was 'not free to leave' or 'not free to decline the officers' requests
No. 15AP-212                                                                               5


or otherwise terminate the encounter.' " State v. McDowell, 10th Dist. No. 13AP-229,
2013-Ohio-5300, ¶ 18, quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980);
Bostick at 439; Michigan v. Chesternut, 486 U.S. 567, 573 (1988); Florida v. Royer, 460
U.S. 491, 502 (1983) (plurality opinion). "The test 'is an objective one: not whether the
citizen perceived that he was being ordered to restrict his movement, but whether the
officer's words and actions would have conveyed that to a reasonable person.' " Body at
¶ 14, quoting California v. Hodari D., 499 U.S. 621, 628 (1991). "This standard 'ensures
that the scope of Fourth Amendment protection does not vary with the state of mind of
the particular individual being approached.' " Id., quoting Chesternut at 574.
       {¶ 15} In Westover, this court reviewed the relevant case law and described the
characteristics of a consensual police encounter as follows:
               A consensual encounter occurs when the police approach a
               person in a public place, the police engage the person in
               conversation, and the person remains free not to answer or to
               walk away. A consensual encounter remains consensual even
               if police officers ask questions, ask to see the person's
               identification, or ask to search the person's belongings,
               provided the police do not convey a message that compliance
               with their requests is required. A police officer may lawfully
               initiate a consensual encounter without probable cause or a
               reasonable, articulable suspicion that an individual is
               currently engaged in criminal activity or is about to engage in
               such conduct.

(Internal citations and quotations omitted.) Id. at ¶ 15.
       {¶ 16} The evidence shows that Hostettler stopped the paddy wagon in a public
alley as appellant approached on foot from the opposite direction. According to
Hostettler, there was plenty of room in the alley for appellant to walk past the paddy
wagon without changing his course. Hostettler was familiar with appellant from prior
encounters. Hostettler rolled down the driver's side window as appellant approached and
asked appellant what he was up to. There is no evidence that Hostettler raised his voice to
appellant or commanded appellant to stop. Nevertheless, appellant stopped walking and
answered Hostettler's question.
       {¶ 17} At that point, Hostettler exited the driver's door of the vehicle. Hostettler's
partner remained in the paddy wagon. When Hostettler asked appellant if he minded if
No. 15AP-212                                                                              6


he searched him, appellant raised his arms in the air and responded, "No, go ahead."
(Jan. 20, 2015 Tr. 14.) There is no evidence that Hostettler used any threats or coercion in
order to prevent appellant from leaving. Nor did Hostettler place his hands on appellant
at any time prior to the time appellant gave his oral consent to the search.
       {¶ 18} The evidence produced at the hearing reveals nothing in Hostettler's words
or actions that conveyed a message that appellant was required to answer his question
and was not free to leave. On this record, a reasonable person in appellant's position
would have believed that he was free not to answer Hostettler's question and to walk
away. Thus, the record contains competent, credible evidence to support the trial court's
finding that appellant's initial encounter with Hostettler was consensual in nature. See,
e.g., State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 20 (10th Dist.)
("defendant's initial interaction with the police officers was consensual when the officers
approached defendant's vehicle and asked him a few general questions"); Body at ¶ 20
(officer's conduct in pulling his cruiser behind a vehicle parked in an alley and asking the
driver who had exited the vehicle to "come over here" does not constitute a seizure for
purposes of the Fourth Amendment); O'Malley v. Flint, 652 F.3d 662, 669 (6th Cir.2011),
citing Wayne R. LaFave, 4 Search & Seizure § 9.4 (4th ed.2004) (officer may rely on "the
moral and instinctive pressures" of citizens to cooperate so long as the officer does not
add to "those inherent pressures by engaging in conduct significantly beyond that
accepted in social intercourse"). Contrary to appellant's assertion, the evidence does not
support a finding that Hostettler seized appellant at any point in time prior to the time he
gave his consent to a search of his person.
       {¶ 19} Appellant argues, in the alternative, that his oral consent to a search of his
person was not freely and voluntarily given. Once again, the record contains little or no
evidentiary support for appellant's argument.
       {¶ 20} The question whether a consent to search is voluntary or the product of
duress or coercion, either express or implied, is a question of fact to be determined from
the totality of the circumstances. State v. Lett, 11th Dist. No. 2008-T-0116, 2009-Ohio-
2796, ¶ 32, citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973); State v.
Chapman, 97 Ohio App.3d 687, 691 (1st Dist.1994). See also State v. Pierce, 125 Ohio
App.3d 592, 598 (10th Dist.1998). "Relevant factors for the trial court to consider in
No. 15AP-212                                                                               7


determining whether a consent was voluntary include the following: (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." Lett at ¶ 33, citing State v. Riggins, 1st Dist. No. C-030626, 2004-Ohio-
4247, ¶ 15, citing Schneckloth.
       {¶ 21} As noted above, appellant had not been seized by Hostettler at the time
Hostettler asked for appellant's consent to search his person. Additionally, the record
reveals that the consensual encounter between appellant and Hostettler had lasted a very
short time prior to the time appellant gave his oral consent. There is also no evidence that
Hostettler made any threats toward appellant or coerced him into giving his oral consent.
He did not place his hands on appellant at any time prior to appellant's oral consent. Nor
did appellant's partner leave his seat in the paddy wagon until after appellant gave his oral
consent to a search. Hostettler testified that appellant was cooperative with him on this
occasion as he had been in past. When Hostettler asked appellant if he minded if he
searched him, appellant raised both his hands in the air and stated, "No, go ahead." (Jan.
20, 2015 Tr. 14.) On this record, a consideration of the relevant factors supports a finding
that appellant gave his oral consent to a search freely and voluntarily.
       {¶ 22} Appellant argues, however, that his oral consent was not voluntary because
he "was never told he could refuse or that he could simply walk away." (Appellant's Brief,
9.) Appellant has not cited any case law imposing an affirmative duty on law enforcement
to orally inform an individual of his or her Fourth Amendment rights in the context of a
consensual encounter. Moreover, the United States Supreme Court has stated that,
"[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." Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210,
216 (1984). See also State v. Morgan, 4th Dist. No. 94CA2081 (Jan. 29, 1996) ("law
enforcement have no affirmative duty whatsoever to inform those with whom they have
No. 15AP-212                                                                                 8


contacts that (1) they are not required to talk to them, or (2) they are free to leave at any
time").
       {¶ 23} Hostettler acknowledged during his cross-examination that he was aware
that appellant had the right to walk away and to refuse to answer his questions, but the
record contains no direct evidence regarding appellant's level of awareness. We note that
Hostettler's testimony regarding his prior encounters with appellant and the fact that
appellant has a prior criminal record suggest that appellant is not "a newcomer to the
law." Lett at ¶ 33. Appellant related that he had completed the eighth grade. Even if we
were to assume that appellant was unaware that he had the right to walk away from
Hostettler, appellant's lack of awareness is just one of the factors the court should
consider in determining whether consent is freely and voluntarily given. Id.; Riggins;
Schneckloth. Given the totality of the circumstances surrounding appellant's oral consent
to a search of his person, we find that appellant's lack of awareness of his rights does little
to bolster his claim that his consent was not voluntary. We also find that the record
contains competent, credible evidence to support the trial court's finding that, under the
totality of the circumstances test, appellant freely and voluntarily gave his oral consent to
the search of his person.
          {¶ 24} Because there is competent, credible evidence in the record to support the
trial court's finding that appellant's initial encounter with Hostettler was consensual and
that his subsequent oral consent to the search of his person was freely and voluntarily
given, we must uphold the trial court's factual findings.        Accepting the trial court's
findings as true, appellant's voluntary consent to the search of his person satisfies one of
the recognized exceptions to the requirement of probable cause. See Schneckloth at 219.
See also State v. Cundiff, 10th Dist. No. 12AP-483, 2013-Ohio-1806, ¶ 18, citing State v.
Alihassan, 10th Dist. No. 11AP-578, 2012-Ohio-825, ¶ 8. Having determined that the trial
court did not err when it found that appellant's encounter with police was consensual and
that appellant freely and voluntarily consented to a search of his person, we need not
address the parties' alternative arguments based on the investigatory stop exception
under Terry and the "good faith" exception recognized in United States v. Leon, 468 U.S.
897 (1984), and State v. Wilmoth, 22 Ohio St.3d 251 (1986).
No. 15AP-212                                                                           9


       {¶ 25} For the foregoing reasons, we hold that the trial court did not err when it
denied appellant's motion to suppress. Accordingly, appellant's sole assignment of error
is overruled.
V. CONCLUSION
       {¶ 26} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                    Judgment affirmed.
                        BROWN, P.J., and HORTON, J., concur.
                                 ________________
