[Cite as State v. Williams, 2020-Ohio-3903.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28550
:
v. : Trial Court Case No. 2017-CR-2253/2
:
ALIA WILLIAMS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 31st day of July, 2020.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARL BRYAN, Atty. Reg. No. 0086838, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} This case is before us on the appeal of Defendant-Appellant, Alia Williams,
from her conviction, on her no contest plea, for attempted possession of heroin (100 unit
doses but ˂500 unit doses), a third-degree felony. According to Williams, the trial court
erred in denying her motion to suppress evidence.
{¶ 2} After reviewing the record, we conclude that Williams’ consent to the search
of her residence was voluntary under the totality of the circumstances, and therefore the
motion to suppress was properly denied. Accordingly, the judgment of the trial court will
be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On August 8, 2017, an indictment was filed charging Williams with one count
of possession of heroin (100 unit doses but ˂500 unit doses) and one count of possession
of Fentanyl. These offenses were second and fifth-degree felonies, respectively. After
pleading not guilty, Williams filed both a motion to suppress and an amended motion to
suppress on September 25, 2017. A suppression hearing for Williams and her co-
defendant, Tony Sanders, was then held on two days: November 1, 2018, and March 4,
2019. Neither defendant presented witnesses at the suppression hearing; instead, the
court heard testimony only from Montgomery County Sheriff’s officers who were present
at the scene. These officers were: Det. Andrew McCoy, Sgt. William Ables, and Det.
Samuel Hemingway.
{¶ 4} After hearing the evidence and considering a post-hearing memorandum that
Williams submitted, the trial court overruled the motion to suppress on June 28, 2019.
Williams thereafter pled no contest to the reduced charge of attempted heroin possession
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and was sentenced to various community control sanctions.
{¶ 5} The following account is based on the facts elicited during the suppression
hearing. On the afternoon of July 14, 2016, Det. McCoy and Det. Hemingway were in
the area of Falmouth and Hillcrest Avenues in Dayton, Ohio, in an unmarked car. Both
detectives were assigned to the R.A.N.G.E. Task Force, which is a multijurisdictional task
force in Montgomery County that focuses on narcotics and weapons violations. McCoy
had been assigned to the task force for eight years, while Hemingway had been on the
force for nine years.
{¶ 6} The detectives were there that day based on complaints from citizens in the
area about car-to-car drug transactions. McCoy was driving, and he parked the car on
Falmouth to see if any drug transactions would occur. At about 1:30 p.m., a yellow Ford
Focus with two occupants drove past, turned around, and parked two to three feet behind
the detectives’ vehicle. The occupants did not get out of the Focus and appeared to be
waiting.
{¶ 7} As McCoy watched in his rearview mirrors, a newer white Toyota pulled up
next to the Focus, with the driver’s-sides doors next to each other. The Toyota was being
driven by an individual who was later identified as Derek Campbell. The drivers of the
cars then exchanged something hand-to-hand, and both vehicles drove off in opposite
directions.
{¶ 8} Det. McCoy stated that he has observed this type of behavior numerous
times per week and has stopped the person afterward. Often, the transaction has
involved drugs. Once this particular transaction ended, the detectives elected to follow
the driver of the Focus, who was the buyer, because narcotics sellers often flee when
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police try to stop them. After pulling out onto Hillcrest Avenue, McCoy ended up passing
the Focus and turned down Deering Avenue, which was about two blocks away from the
drug transaction. At that point, McCoy intended to turn around and follow the Focus.
However, the detectives saw the white Toyota coming down Deering and decided to
follow Campbell, since they could see his car. Campbell then pulled into the driveway of
2221 Deering. McCoy pulled up behind Campbell, blocking his car.
{¶ 9} The detectives arrived at the Deering address at about 1:40 p.m. Transcript
of Suppression Hearing (“Tr.”), p. 37-38. Although their car was unmarked, both
detectives wore clearly marked police vests when they exited. Because they believed
they had observed a hand-to-hand drug transaction, they wanted to do further
investigation. McCoy went to the driver’s side of the Toyota, while Hemingway
approached on the passenger side. Campbell was alone in the car. McCoy observed
that Campbell was clutching currency in his right hand. When Campbell noticed McCoy,
he dropped the money beside the seat. Id. at p. 10-11.
{¶ 10} After making contact, the detectives removed Campbell from the vehicle.
When they initially spoke with Campbell, he only identified himself as “J.T.” and gave
them fraudulent information about his identity. Id. at p. 91. Specifically, the name he
gave belonged to a deceased person. Id. Campbell also told them that he had pulled
into a random driveway to turn around and did not know anyone at the residence. Id. at
p. 11 and 91. In addition, Campbell said he did not know who owned the car he was
driving. Id. at p. 11.
{¶ 11} Shortly after the detectives made contact with Campbell, Det. Thornton, a
uniformed K-9 officer, arrived. The detectives had also requested the presence of
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another cruiser so they could secure Campbell until his identify could be verified. The
police searched the Toyota, looking for any identification or rental documents, but nothing
was in the car except less than $100 in currency. Id. at p. 26-27 and 45. While
Hemingway was trying to identify Campbell, McCoy knocked on the rear door of the house
to see if anyone was inside, but he did not get an answer. Id. at p. 12.
{¶ 12} About ten to fifteen minutes after McCoy and Hemingway arrived, Williams
came to the scene. At that point, the detectives explained to Williams why they were
there and about the narcotics investigation. Williams said she lived at the house, had
hired Campbell to mow the lawn, and had rented the Toyota. Tr. at p. 13, 27, 31, and
92. Williams was not able to provide Campbell’s full identification information. Id. at p.
93. She also said she had left the Toyota’s keys with Campbell so that he could move
the car if he needed to do so while he mowed the lawn. Id. at p. 14. Williams initially
told the police that she had an old address on her driver’s license, i.e., not the Deering
address. Id. In addition, Williams did not have paperwork for the rental car. Id. at p.
30.
{¶ 13} Once Williams said that she had hired Campbell to mow the lawn and had
given him the car keys, Det. McCoy knew that Campbell was lying. Tr. at p. 28. The
fact that a rental vehicle was involved was also notable, because narcotic traffickers in
Montgomery Country often drive rental cars. Id. at p. 12. Furthermore, Campbell was
the drug seller. Id. at p. 60. Based on Det. Hemingway’s experience, persons dealing
in hand-to-hand transactions often return to where they normally store drugs. People
also lie to the police to prevent them from identifying places used to store drugs. Id. at
p. 112-113. In view of these facts, both the residence and the car were of interest.
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{¶ 14} Dep. Shiverdecker arrived shortly after the detectives’ initial conversation
with Williams, and Campbell was then placed in Shiverdecker’s cruiser. At that point,
Campbell was being detained because of the investigation and because he had given
fraudulent information. Id. at p. 93.
{¶ 15} By this time, Sgt. Ables, the supervisor for McCoy and Hemingway, had also
arrived. Ables came because McCoy and Hemingway had asked him to help with the
investigation. Id. at p. 70, 71, and 106. When Ables arrived, several things were going
on: a couple of unmarked cars were there, and some family members were out on the
street. Id. at p. 71. Many of Williams’ family members had arrived at the scene; initially,
these individuals were disruptive and kind of loud and boisterous. Id. at p. 22, 52, 102,
and 103.
{¶ 16} During her discussion with the police, Williams said that no one should be
inside the house. Tr. at p. 99. This later proved to be untrue. Williams also said her
house key was on the key ring in the Toyota. Id. at p. 15. Again, this later proved to be
untrue. According to Det. McCoy, it was important to find out if the key fit because
Campbell was lying about his identity, Williams said she had rented the car but did not
have any rental paperwork, and Williams said she lived at the house but did not have the
address on her driver’s license. As a result, the police were trying to determine who
actually lived there. Id. at p. 30.
{¶ 17} Once Ables arrived, Williams agreed to let him and McCoy walk up to the
porch with her so she could try to unlock the front door. Id. at p. 15. This occurred
around 2:30 p.m. Id. at p. 46. When they got to the front door, there was a window to
the right on a nook at the corner of the house. This window faced the porch. McCoy
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could see through the window and observed that “a kitchen style trash bag, like the white
trash bags for a kitchen garbage can, was laying on a table inside the residence, and
there was a bunch, like hundreds of empty gel caps kind of strewn – coming out of the
bag, all over the table. And there was also a box of plastic sandwich bags sitting beside
it.” Id. at p. 15.
{¶ 18} McCoy found this notable, because in his experience, drug traffickers often
package individual doses of narcotics in gel caps. There were also hundreds of gel caps
in the bag, which was unusual. Id. at p. 16. Furthermore, drug traffickers also often
package narcotics in plastic sandwich bags; they put doses of drugs into gel capsules
and then put the capsules in sandwich bags. Id. Sgt. Ables also saw hundreds of gel
caps and the sandwich baggies through the window. Id. at p. 74-75.
{¶ 19} After several attempts with different keys, none of the keys worked.
Williams then said she did not have a key to the house. After discussing the matter
further, the police discovered that Williams, in fact, was a resident of the house, that she
had a driver’s license bearing the Deering Avenue address, and that she did have a key
to the house. Tr. at p. 72.
{¶ 20} While Ables, McCoy, and Williams were on the porch, Det. Hemingway was
at the side of the house on the driveway. Through a window, Hemingway noticed an
individual inside the house, moving to its rear. Id. at p. 93-94. Hemingway identified
himself and asked the individual (later identified as Tony Sanders, Williams co-defendant)
to come to the front door. Id. at p. 94. Sanders then exited from the front of the house,
and the detectives there contacted him. As Sanders came out of the house, he said he
had been on the phone speaking with a defense attorney; Sanders then told the police
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they could not search the house without a search warrant. Id. at p. 18.
{¶ 21} At that point, Det. McCoy’s intention had been to go back to his office and
draft a search warrant. Id. McCoy told Sanders that he was going to get a search
warrant, and the police were not going to search inside the house without one. Id. at p.
19. Sanders told McCoy that he did not have enough for a search warrant, and in
response, McCoy said that he could see the empty gel capsules. Id. Sanders then
argued that the capsules were not illegal; they were empty and he had them because he
was a diabetic. Id. McCoy then left to go to his office to type up a search warrant. The
time was about 2:45 p.m. Id. at p. 38.
{¶ 22} McCoy could not recall if he discussed consent with Williams before he left
to get the search warrant. However, Hemingway explained to Williams that the police
could possibly be obtaining a warrant to search the house, and that her other option was
to consent. Tr. at p. 47 and 99. Hemingway initially discussed consent with Williams
one-on-one. She was free to walk about and was not being detained. Id. at p. 100. At
some point, there may have been other officers or a deputy with Hemingway. Because
Williams’ family members were there, the police had to maintain the scene while speaking
with Williams and Sanders. Id. at p. 101. No threats or promises were made to
Williams. Id. at p. 103.
{¶ 23} Det. Hemingway did not remember Williams’ exact words about her
consent. He explained to Williams what had been observed about the drug transaction,
the reasons the police were at her house, what had been observed once they were there,
and that detectives were in the process of obtaining a search warrant based on the
information he had provided her. Id. at p. 125. Hemingway conceded that it was
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possible that he told Williams her house would be in less disarray if she consented,
because less disarray occurs if people cooperate and tell the police where certain things
are. However, Hemingway also stressed that he had told this to people before, and they
still refused consent. Id. at p. 132-133.
{¶ 24} In any event, by the time Det. McCoy got to his office, which was about 10
to 15 minutes away, Ables had called and told him to return because they had obtained
Williams’ consent to search. Id. at p. 19. McCoy then drove back to the scene, and the
consent form was signed at around 3:16 p.m. Id. at p. 38 and 101. See also State’s
Ex. 1 (the signed consent form). Hemingway had previously explained the consent form
to Williams. Id. at p. 100.
{¶ 25} Williams was allowed to be present during the search in case she wanted
to revoke consent. However, Sanders left the scene before the search began. Tr. at
p. 21, 22, and 103. During the search, Williams was free to go wherever she wanted in
the house and was able to observe whatever was being processed; Hemingway
accompanied her. Id. at p. 22 and 103. McCoy told Williams that the police would stop
anytime she asked, but she did not revoke her consent. Id.
{¶ 26} Drugs were found during the search, and Williams and Sanders were both
charged with possession of the drugs. As noted, after her suppression motion was
overruled, Williams pled no contest to attempted possession of heroin and was sentenced
to various community control sanctions. This appeal followed.
II. Consent
{¶ 27} Williams’ sole assignment of error states:
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The Trial Court Erred in Overruling Ms. Williams’ Motion to Suppress
Evidence Obtained During the Warrantless Search of Her Home Based on
Its Finding That She Freely and Voluntarily Gave Consent to Search Her
Home.
{¶ 28} Under this assignment of error, Williams contends that evidence obtained
as a result of the search should have been suppressed because her custodial status was
not voluntary and she was coerced into giving consent.
{¶ 29} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings
of fact if they are supported by competent, credible evidence. * * * Accepting these facts
as true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.
{¶ 30} In overruling the suppression motion, the trial court first addressed any
statements that Williams made to the police. The court concluded that Williams was not
subject to any custodial interrogation when she made statements to the police because
she was outside her home and was not in a restricted environment. Furthermore, there
was no evidence that the police either threatened Williams or verbally dominated the
interview, and a reasonable person would have felt free to leave. The court also found
that Williams voluntarily consented to a search of the house and that a fair probability
existed that contraband would be found in the house even without the officers’
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observation of drug packaging materials. Order Overruling Motion to Suppress, p. 11.
{¶ 31} Both the Fourteenth Amendment to the United States Constitution and
Article I, Section 14, Ohio Constitution, protect persons from unreasonable searches and
seizures. State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 13.
“Under the Fourth Amendment to the United States Constitution, a search conducted
without prior approval of a judge or magistrate is per se unreasonable, subject to certain
well-established exceptions.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 181, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 567 (1967). (Other citation omitted.)
{¶ 32} “One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), which held that ‘where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his experience that criminal
activity may be afoot. . . ,’ the officer may briefly stop the suspicious person and make
‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.” Minnesota v.
Dickerson, 508 U.S. 366, 372-373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), quoting Terry
at 30.
{¶ 33} In general, the reasonableness of a search or seizure depends on the
circumstances and facts of each case, and “ ‘is measured in objective terms by examining
the totality of the circumstances.’ ” Leak at ¶ 13, quoting Ohio v. Robinette, 519 U.S. 33,
39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
{¶ 34} Here, the detectives had reasonable suspicion to stop and investigate
Campbell and the white Toyota, since they had observed Campbell engaged in a
suspected drug transaction moments earlier. Once they began to question Campbell,
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they had further suspicion that criminal activity was afoot, based on the fact that Campbell
had provided them with false information. This suspicion was further enhanced when
Williams appeared within about 15 minutes, because Williams contradicted the
information that Campbell had given the officers.
{¶ 35} More importantly, Williams herself provided the officers with further grounds
for suspicion, because she did not have rental documents for the Toyota, despite claiming
that she had rented it. Given the facts that narcotics traffickers often use rental
automobiles and that Williams was unable to provide proof that she lived at the residence,
the police were entitled to conduct further investigation. Thus, as the trial court
observed, there was no evidence that Williams was in a custodial situation when the
police talked to her. The police were entitled to conduct a reasonable investigation.
{¶ 36} In this regard, we also note that Williams’ description of the facts is incorrect.
For example, Williams states that the initial stop and Sanders’ demand that the police
obtain a warrant occurred at 1:30 p.m. and prior to the police escorting Williams to the
porch to unlock the house. Appellant’s Brief, p. 4, citing Tr. at p. 17, 33-34, and 118.
Those parts of the transcript say no such thing. As noted above, the facts indicate that
the police arrived at the house at about 1:40 p.m., that Williams arrived 10 to 15 minutes
later (or close to 2:00 p.m.), that Williams unsuccessfully tried to unlock the house at
around 2:30 p.m., and that Sanders came out of the house shortly thereafter, demanding
that the police obtain a warrant.1 Within moments, Det. McCoy left to type up a search
warrant.
1 The key situation in itself was suspicious, because even though Williams said that her
house key was on the ring of keys in the Toyota, none of the keys worked on the door to
the house. Clearly, Williams was being untruthful.
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{¶ 37} Furthermore, the officers’ ability to resolve their investigation was hampered
by Williams’ many family members, who were yelling at the police and were disruptive,
loud, and boisterous, causing the police to have to manage the scene. Tr. at p. 22, 52,
and 102. The police certainly did not ask these many family members to come. There
was also no evidence presented that the police intimated or threatened Williams in any
way.
{¶ 38} More importantly, another exception to the warrant requirement applies,
and that is where a proper party has voluntarily given consent to search the property.
State v. Sneed, 63 Ohio St.3d 3, 7, 584 N.E.2d 1160 (1992), citing United States v.
Matlock, 415 U.S. 164, 165-166, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). “It is well settled
that consent to a warrantless search will not be held invalid nor the resulting search
unreasonable when one with authority over the premises voluntarily permits the search.”
Id.
{¶ 39} “To rely on the consent exception of the warrant requirement, the state must
show by ‘clear and positive’ evidence that the consent was ‘freely and voluntarily’ given.”
State v. Posey, 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988), quoting Bumper v. North
Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “A ‘clear and
positive’ standard is not significantly different from the ‘clear and convincing’ standard of
evidence, which is the amount of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the allegations to be proved. It is an intermediate standard
of proof, being more than a preponderance of the evidence and less than evidence
beyond a reasonable doubt.” (Citations omitted). State v. Ingram, 82 Ohio App.3d 341,
346, 612 N.E.2d 454 (2d Dist.1992), citing State v. Danby, 11 Ohio App.3d 38, 41, 463
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N.E.2d 47 (6th Dist.1983) and Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118
(1954).
{¶ 40} “[T]he question whether a consent to a search was in fact ‘voluntary’ or was
the product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412
U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Our district has used six factors
to evaluate the voluntariness of consent: “ ‘(1) The voluntariness of the defendant's
custodial status; (2) The presence of coercive police procedures; (3) The extent and level
of the defendant's cooperation with the police; (4) The defendant's awareness of his right
to refuse to consent; (5) The defendant's education and intelligence; and (6) The
defendant's belief that no incriminating evidence will be found.’ ” State v. Webb, 2d Dist.
Montgomery No. 17676, 2000 WL 84658, *3 (Jan. 28, 2000), quoting United States v.
Shabazz, 993 F.2d 431, 438 (5th Cir. 1993). (Other citation omitted.) See also State v.
Ward, 2017-Ohio-1391, 89 N.E.3d 124, ¶ 43 (2d Dist.)
{¶ 41} After considering the record, we agree with the trial court that Williams was
not in custody. Williams was not restrained in any way, and there is no indication in the
record that the police would not have allowed her to leave. Although Williams complains
that she felt restrained due to the number of officers on the property, her co-defendant,
Sanders, was not detained and left the scene, even though he was inside the house
where suspected trafficking items had been seen; he also had admitted to the police that
he sometimes stayed at the house. Tr. at p. 21 and 72. Therefore, there was every
reason to suspect that Sanders was involved in illegal conduct.
{¶ 42} In addition, even though a number of police were present, there was no
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evidence of coercive police procedures. While an officer with a drug-sniffing dog was
requested, this was reasonable given the evidence of Campbell’s involvement in a drug
transaction. Furthermore, Det. McCoy and Det. Hemingway arrived in an unmarked car
and needed a cruiser with a backseat to secure Campbell while they investigated. As a
result, they called for another patrol car. Id. at p. 12 and 20. Sgt. Ables also indicated
that when he went to the porch with Williams to try her key, she did not seem scared or
intimidated. Id. at p. 71. Finally, the fact that Ables, the detective’s supervisor, and
perhaps another officer came to the scene was not unwarranted, since many of Williams’
family members were there, confronting the police and being disruptive.
{¶ 43} There was also no evidence that Williams was uncooperative with the
police. When she arrived at the scene, she offered that she had rented the car, had given
the keys to Campbell, that she lived in the house, and that her house key was on the key
ring in the Toyota. Williams also agreed to show the police that she had a key and
agreed to accompany them to try the key on the door. Id. at p. 15. After Williams
consented to the search, her conversation inside the house with the police was “rather
friendly.” Id. at p. 22.
{¶ 44} Williams would have been aware of her right to refuse consent, as the form
was explained to her and it also stated that she had such a right. See Ex. 1. Moreover,
Sanders told the police in Williams’ presence that they could not search without a warrant.
And finally, Williams was told during the search that she could revoke consent at any time.
{¶ 45} The record is devoid of any evidence about Williams’ education or
intelligence, and there was no specific evidence concerning her knowledge of
incriminating evidence to be found. Circumstantially, Williams could have had such
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knowledge, for two reasons. First, Williams lied about her key to the house being on the
ring of keys in the Toyota. In addition, the bag of gel caps and the box of sandwich
baggies were in plain sight on the table in the house. However, as the trial court noted,
there was no direct evidence on this point. Order Overruling Motion to Suppress at p. 9.
{¶ 46} Williams has made much of the trespass by the police on her property, and
she claims that she was coerced because the police threatened that her home would be
“torn up” if she failed to consent to the search. She also argues that nothing connected
the white Toyota to the house. This latter point is incorrect, however. Many things
connected the Toyota to the house. First, the person driving the car pulled into the
driveway. There was no evidence that Campbell was actually attempting to turn around.
Furthermore, Williams herself stated that she lived at the house, had rented the car, had
given the keys to Campbell, and that her house key was on the key ring in the Toyota.
{¶ 47} As a further matter, “the police may enter private property without such
conduct constituting a search, provided that the officers restrict their movements to those
areas generally made accessible to visitors, such as driveways, walkways, or similar
passages.” State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-Ohio-158, ¶ 25 (police
could appropriately be on grassy area between alley and defendant’s fence). There was
no indication here that the yard was fenced, and the only intrusion beyond areas normally
accessible occurred when Det. McCoy went to the rear door of the house to knock on it.
This was before Williams even arrived.
{¶ 48} Setting aside the observations made from the front porch, the only other
pertinent observation occurred when Det. Hemingway stood on the driveway and saw a
person inside the house. However, observations a police officer makes while standing
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on a parking pad or driveway do “not constitute a search under the Fourth Amendment
because the driveway [is] open to the public.” State v. Peterson, 173 Ohio App.3d 575,
2007-Ohio-5667, 879 N.E.2d 806, ¶ 15 (2d Dist.).
{¶ 49} Both the State and trial court have relied on State v. Grigley, 2d Dist.
Montgomery No. 26065, 2014-Ohio-3950, with respect to the fact that the police may
have told Williams that they would obtain a warrant if she did not consent. Order
Overruling Motion to Suppress at p. 10; State’s Brief, p. 6.
{¶ 50} In Grigley, we commented that “ ‘[w]hen an officer informs a suspect that he
will obtain a search warrant if the individual does not consent to a search, this does not
necessarily vitiate an otherwise voluntary consent.’ ” Id. at ¶ 27, quoting State v. Clark,
2d Dist. Montgomery No. 18314, 2000 WL 1643789, *7 (Nov. 3, 2000). “ ‘If the officer's
statement simply advises the suspect of his precise legal situation, such a “threat” is not
coercion. However, * * * if an officer advises a suspect he will obtain a search warrant if
consent is not given, probable cause must exist to obtain that warrant.’ ” Id.
{¶ 51} Here, Det. Hemingway simply advised Williams of what the police had
observed and the choices that were involved. Tr. at p. 99 and 125. Moreover,
Hemingway did not threaten Williams, and he did not admit telling Williams that her house
would be torn up if she failed to consent. To the contrary, Hemingway said that he did
not recall telling Williams that her house might not be in a state of disarray if she gave
consent. Id. at p. 132. He then simply acknowledged that it was a “possibility” that he
may have said it because he had told people that before, and “because that is something
when people are more cooperative and advise us where certain things are in the
residence and we don’t have to look for them, the house is not left in such disarray
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because of the cooperation.” Id. at p. 132-133.
{¶ 52} The trial court concluded that Det. Hemingway’s comment about houses
being in disarray was not an express threat. The court then concluded, without deciding
if such a statement were an implied threat, that probable cause existed for a search
warrant. Order Overruling Motion to Suppress at p. 9-10. In doing so, the trial court
relied on the factors we have already discussed, including the observations of the drug
transaction, the fact that Campbell returned to the Deering Avenue address, Campbell’s
untruthfulness, Williams’ admission of renting the car and her connection, as a resident,
to Campbell, the fact that Sanders was in the home when no one was supposed to be
there, and the detectives’ awareness of typical conduct and habits of drug traffickers.
Order Overruling Motion to Suppress at 10-11. The court, thus, concluded that probable
cause existed for a warrant, even absent what the officers observed while on the front
porch.
{¶ 53} We agree with the trial court, with the exception that there was actually no
evidence that Det. Hemingway made a statement about leaving the house in disarray.
Hemingway said he did not recall making that statement and only acknowledged that it
was a “possibility.” Other than this, we agree with the trial court.
{¶ 54} “Probable cause to obtain a search warrant exists when after reviewing all
of the surrounding circumstances, there is ‘a fair probability that contraband or evidence
of a crime will be found in a particular place.’ ” Clark, 2d Dist. Montgomery No. 18314,
2000 WL 1643789, at *7, quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). We note that Det. McCoy and Det. Hemingway had spent close to
a decade on the narcotics task force and were well versed in the conduct of drug
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traffickers. Their observations, as noted above, revealed a fair probability that narcotics
would be found in the house. Consequently, we agree with the trial court that probable
cause for a search warrant existed, even without considering what Sgt. Ables and Det.
McCoy saw while standing on the porch.
{¶ 55} In light of the above circumstances, we find no error on the trial court’s part
in overruling the motion to suppress evidence. Accordingly, Williams’ sole assignment
of error is overruled.
III. Conclusion
{¶ 56} Williams’ assignment of error having been overruled, the judgment of the
trial court is affirmed.
.............
TUCKER, P.J., concurs.
FROELICH, J., concurs in judgment only:
{¶ 57} The sole issue before us is whether Williams voluntary consented to the
officers’ entry into her residence. I agree that she did.
{¶ 58} Viewing the totality of the circumstances, the record reflects that Williams’s
consent was voluntarily given. Williams was not in custody or otherwise being detained.
Moreover, I agree that the officers did not engage in coercive conduct. Officer McCoy
indicated to Williams that he would get a search warrant, and he left the residence to do
so. However, it was not unreasonable for the police to believe, in good faith, that they
had grounds to request a warrant, and the statement to Williams that they were going to
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request one was not a bluff, a hollow threat, or a tactic to obtain consent. Nor did
Hemingway’s statement that her home might be in less disarray, assuming that the
statement was said at all, rise to the level of coercion. There is no indication that Williams
did not understand the consent to search form, which she signed.
{¶ 59} I diverge from the majority opinion mainly in that I believe it addresses
issues that do not need to be addressed to resolve Williams’s assignment of error. The
discussion of whether the detectives had a reasonable and articulable suspicion of
criminal activity to warrant Campbell’s stop and detention is irrelevant to Williams’s
consent. Likewise, the conduct of Williams’s family members and of Sanders also had
no apparent relation to Williams’s decision to grant consent. I would also not make a
finding, as the trial court apparently did, that probable cause existed for a warrant.
Because I would confine our analysis to the voluntariness of Williams’s consent, I concur
in judgment only.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Carl Bryan
Hon. Michael W. Krumholtz