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State v. Ferrell

Court of Appeals of Ohio, Eleventh District, Portage

December 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
WILLIAM T. FERRELL, Defendant-Appellant.

         Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00420.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

          Barbara J. Rogachefsky, Barbara J. Rogachefsky Co., LPA, 12 East Exchange Street, 5th Floor, Akron, OH 44308 (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, William T. Ferrell, appeals his convictions for possession of heroin and a drug abuse instrument following his no contest plea. He argues the trial court erred in denying his motion to suppress. We agree and reverse and remand.

         {¶2} Ferrell was a backseat passenger of a friend's car when she was pulled over for a marked lanes violation. Ferrell remained seated in the backseat while officers removed the driver of the vehicle and conducted a pat down. She then authorized a search of her vehicle.

         {¶3} An officer then asked Ferrell to exit the car. She also asked him if he had anything in his pockets. Ferrell responded in the negative, and the officer then asked if Ferrell minded if the other officer checked. Ferrell agreed. A search of his pockets revealed nothing. The officer proceeded to search his socks and found something white. The officer then placed Ferrell in handcuffs. Upon questioning, Ferrell ultimately informed the officer the item in his sock contained heroin, and upon further questioning, he also admitted to having a "rig" in his backpack, which was still in the car.

         {¶4} He was indicted and charged with possession of heroin, a fifth-degree felony, in violation of R.C. 2925.11(A)(C)(6) and possession of drug abuse instruments, a second-degree misdemeanor, in violation of R.C. 2925.12(A)(2).

         {¶5} Ferrell moved to suppress evidence of the drugs as violative of the Fourth Amendment right to be free from unreasonable searches. He also sought exclusion of his statements after the search, including his admission that he had heroin in his sock and a hypodermic needle in his backpack because he was not informed of his Miranda rights in violation of the right against self-incrimination in the Fifth Amendment.

         {¶6} Following a hearing, the trial court overruled his motion and found that upon viewing the totality of the circumstances, the entire search was consensual. The court explained that Ferrell did not limit or withdraw consent to have his socks searched. The trial court likewise found that Ferrell's statements were admissible, explaining that because he consented to the search, any statements stemming from that search were admissible. The trial court's decision does not, however, address Ferrell's Miranda argument and does not analyze whether his incriminating statements were the product of a custodial interrogation.

         {¶7} Ferrell raises one assigned error:

         {¶8} "The trial court erred as a matter of law in overruling Appellant's Motion to Suppress Evidence."

         {¶9} Appellate review of a motion to suppress evidence involves mixed questions of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). When ruling on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Thus, we defer to the trial court's findings of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). Appellate courts then independently assess as a matter of law whether the trial court properly applied the substantive law to the facts of the case. State v. Hoppert, 181 Ohio App.3d 787, 2009-Ohio-1785, 910 N.E.2d 1106, ¶11 (8th Dist.).

         {¶10} Ferrell's alleged error consists of three sub-arguments. First, he claims Officer Samantha Burton lacked a specific and articulable suspicion that Ferrell had a weapon, sufficient to warrant his removal from the car and a pat down for weapons. However, the court did not find that this was a pat down search for weapons authorized pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Instead, the court found that the search was consensual, and Officer Burton testified at the hearing that she did not suspect or believe that Ferrell had a weapon. Thus, this sub-argument lacks merit.

         {¶11} Ferrell's second sub-argument asserts that the scope of his consent to be searched was limited to his pockets, and because the drugs were found in his sock, the officers exceeded the scope of the consent and the contraband should have been suppressed. We agree.

         {¶12} The Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution, protect individuals against unreasonable governmental searches and seizures. A search based on consent is one exception to the Fourth Amendment's general warrant requirement. State v. Robinette, 80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997). When the state seeks to rely upon consent to justify a search, it has the burden of establishing that the consent was voluntary and freely given. Id

         {¶13} "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?" (Citations ...


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