Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2016 CR 00420.
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
R. WRIGHT, J.
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
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.
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.
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).
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.
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.
Ferrell raises one assigned error:
"The trial court erred as a matter of law in overruling
Appellant's Motion to Suppress Evidence."
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.).
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
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.
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
"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 ...