[Cite as State v. Baker, 2015-Ohio-4478.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 15-CA-20
BRANDY L. BAKER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
14CR00851
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 27, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT TODD W. BARSTOW
20 South Second Street 538 South Yearling Road, Ste. 202
Newark, OH 43055 Columbus, OH 43213
[Cite as State v. Baker, 2015-Ohio-4478.]
Gwin, P.J.
{¶1} Appellant, Brandy L. Baker [“Baker”] appeals from the February 6, 2015
Judgment Entry of the Licking County Court of Common Pleas overruling her motion to
suppress.
Facts and Procedural History
{¶2} The Licking County Grand Jury indicted Baker on December 18, 2014 for
one count of Trafficking in Drugs (Cocaine); one count of Possession of Drugs (Cocaine),
both felonies of the fourth degree; and one count of Possession of Drugs (Marijuana), a
minor misdemeanor. On January 23, 2015 Baker file a Motion to Suppress Evidence. The
state filed a Memorandum Contra on February 4, 2015. The trial court conducted a
hearing on Baker's Motion on February 6, 2015.
{¶3} The following facts were presented during the hearing on Baker's motion to
suppress.
{¶4} On October 17, 2014, Officer Adam Hoskinson of the Central Ohio Drug
Enforcement Task Force. (CODE/TF) was in a marked Newark Police Department
vehicle and was wearing a uniform when he observed Baker driving in Newark, Ohio.
{¶5} Believing that Baker's operator's license was suspended, Hoskinson began
following her vehicle. Officer Hoskinson testified that Baker failed to properly signal a right
turn at an intersection. He continued to follow her, and she pulled into a private parking
space adjacent to a residential street. Officer Hoskinson did not use lights or a siren. He
walked up to Baker's car and she rolled down her window. Officer Hoskinson testified
that he immediately smelled a strong odor of raw marijuana coming from the vehicle. He
then asked Baker if she had a valid license and Baker stated that she did not have a valid
Licking County, Case No. 15-CA-20 3
driver's license. Officer Hoskinson asked Baker to step out of her vehicle. Baker complied
and Officer Hoskinson conducted a protective pat down search of Baker before asking her
to be seated in his cruiser. Officer Hoskinson confirmed Barker had a suspended
license. Officer Hoskinson requested permission to search the vehicle. Baker
consented to the search of her car. Inside, Officer Hoskinson found what he believed to
be marijuana and crack cocaine. After Officer Hoskinson advised Baker of her Miranda
rights, Baker admitted to possession of the marijuana and cocaine. Subsequent testing
of both substances confirmed Hokinson's suspicions.
{¶6} At the conclusion of said hearing, the trial court overruled Baker's motion to
suppress. On March 6, 2015, the trial court conducted a change of plea and sentencing
hearing. The trial court found that counts one and two merged, and imposed an eighteen-
month sentence on count one.
Assignment of Error
{¶7} Baker raises one assignment of error,
{¶8} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
OVERRULING HER MOTION TO SUPPRESS."
Analysis
{¶9} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
Licking County, Case No. 15-CA-20 4
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist.1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review Ornelas, supra.
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶10} Baker's sole assignment of error relates to the propriety of the trial court's
overruling of her motion to suppress. Specifically she argues that her consent giving in
response to Officer Hoskinson's request to search her car was not voluntary.
Consent to search.
{¶11} In the case at bar, Baker concedes that she gave the officer consent to
search her car. Thus, we must determine whether all of the surrounding circumstances
and procedures used by the police in gaining that consent were consistent with appellant's
constitutional rights. State v. Lattimore, 10th Dist. Dist. No. 03AP-467, 2003-Ohio-6829 at
¶ 9.
Voluntariness of the consent to search.
Licking County, Case No. 15-CA-20 5
{¶12} A request for consent and search which occurs during a lawful stop and
does not go beyond the period necessary to effectuate the stop and issue a citation does
not violate the individual’s constitutional rights. This is so because the detention was not
illegally prolonged in order to gain the individual’s consent. See, State v. Batchili, 113
Ohio St.3d 403, 2007-Ohio-2204; State v. Lattimore, 10th Dist. Franklin No. 03AP-467,
2003-Ohio-6829 ¶12-13.
{¶13} In the case at bar, Baker was driving without a valid driver license. Further,
Officer Hoskinson detected the order of raw marijuana emanating from the vehicle upon
his speaking with Baker. Thus, Officer Hoskinson did have reasonably articulable facts
or individualized suspicion to justify Baker’s further detention in order to ask to search her
car. State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804, (2000). ("The smell of marijuana,
alone, by a person qualified to recognize the odor, is sufficient to establish probable cause
to conduct a search.") In Moore the court further noted, "[o]nce a law enforcement officer
has probable cause to believe that a vehicle contains contraband, he or she may search
a validly stopped motor vehicle based upon the well-established automobile exception to
the warrant requirement. Maryland v. Dyson (1999), 527 U.S. 465, 466, 119 S.Ct. 2013,
2014, 144 L.Ed.2d 442, 445; United States v. Ross (1982), 456 U.S. 798, 804, 102 S.Ct.
2157, 2162, 72 L.Ed.2d 572, 580; State v. Mills (1992), 62 Ohio St.3d 357, 367, 582
N.E.2d 972, 982." Moore, 90 Ohio St.3d at 51, 734 N.E.2d 804.
{¶14} Baker's consent to search her vehicle was not necessary in the case at bar.
{¶15} Accordingly, Baker's sole assignment of error is overruled.
{¶16} The judgment of the Licking County Court of Common Pleas, Licking
County, Ohio is affirmed.
Licking County, Case No. 15-CA-20 6
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur