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State of Ohio v. Kimberly S. Evans

November 28, 2012

STATE OF OHIO APPELLANT
v.
KIMBERLY S. EVANS APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2012 02 0506

The opinion of the court was delivered by: Dickinson, Judge.

Cite as

State v. Evans,

ss:

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} Officers arrested Kimberly Evans after finding drugs on her and in the car in which she was riding. Ms. Evans moved to suppress the evidence, arguing that the seizure of the car and of her person were unlawful. Following a hearing, the trial court granted her motion. The State has appealed, arguing that the court's findings of fact are not supported by competent, credible evidence. We affirm because the court was entitled to not believe the officers' testimony regarding when they asked the driver of the car for permission to search it.

BACKGROUND

{¶2} According to Officer Jeffrey Woolley, he was on patrol one evening when he pulled into a gas station where there had been recent drug arrests. As he drove into the station, he saw a car backing up. He drove behind the car and watched it pull onto the road without using a turn signal. Believing that a driver must use a turn signal while exiting a gas station, Officer Woolley initiated a traffic stop.

{¶3} Officer Woolley testified that he approached the driver's side of the car and began speaking with the driver. He asked for the driver's license and proof of insurance and also whether there was anything illegal in the car. When the driver replied that there was nothing illegal in the car, Officer Woolley asked if he could check for himself. The driver said that he could, so he asked the driver to step out. He patted the driver down and escorted him to his cruiser. At the cruiser, he gave his partner, Officer Walter Morris, the driver's information so Officer Morris could check if his license was valid. For safety reasons, he placed the driver in the back of the cruiser and then returned to the stopped car.

{¶4} Officer Woolley testified that, when he returned to the car, he told the passengers, one of whom was Ms. Evans, that he needed them to exit the car while he searched it. He told them where to stand and then searched the car. Under the rear passenger seat he found a bag that contained a needle and a spoon with residue on it. He also found a wallet that contained a small amount of heroin.

{¶5} Officer Morris testified that, after Officer Woolley found drugs in the car, he advised Ms. Evans of her Miranda rights and began questioning her. Ms. Evans told him that the items that Officer Woolley found in the car were hers. She also told him that she had a bag of crack inside her bra and removed it for him. She further told him that she had other drugs concealed on her person, which a female officer later retrieved.

{ΒΆ6} The trial court determined that, regardless of whether the driver of the car had to use a turn signal before exiting the gas station, Officer Woolley's belief was reasonable and gave him reasonable suspicion to initiate a traffic stop. It found, however, that Officer Woolley did not ask the driver of the car whether he could search it until after "the officers had determined that the driver had a valid registration and no outstanding warrants[.]" It concluded that, at that point in the encounter, the officers, who had "no objective basis to believe that the driver had committed or was about to commit a criminal offense," should have issued a citation for failure to use a turn signal or told the driver and passengers that they were free to leave. Because the officers ...


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