STATE OF OHIO, Plaintiff-Appellee, vs. CLAUDIUS CLARK, Defendant-Appellant
No. 96768
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 10, 2012
2012-Ohio-2058
Keough, J., Jones, P.J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; REVERSED AND REMANDED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-535510; RELEASED AND JOURNALIZED: May 10, 2012
Myron P. Watson
420 Lakeside Place
323 West Lakeside Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Lauren Bell
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶Error! Bookmark not defined.} Defendant-appellant, Claudius Clark, appeals from the trial court‘s judgment, rendered after a jury trial, finding him guilty of drug trafficking, drug possession, and possessiоn of criminal tools, and sentencing him to four years incarceration. For the reasons that follow, we reverse and remand.
I. Procedural History
{¶Error! Bookmark not defined.} In April 2010, Clark was indicted for drug trafficking in violation of
{¶Error! Bookmark not defined.} Prior to the start of trial, the state filed a motion to amend the indictment to reflect that the weight of the drugs was less than that contained in the original indictment. The amendment did not change the felony level of the charges in the indictment and the trial court granted the motion.
II. Motion to Suppress
{¶Error! Bookmark not defined.} In his first assignment of error, Clark contends that the trial court erred in denying his motion to suppress because he did not consent to the police officers’ entry into or search of his apаrtment.
{¶Error! Bookmark not defined.} The testimony at the suppression hearing indicated the following. In January 2010, the city of Euclid police department received a complaint of a male selling drugs at the Waters Edge Apartments. In March 2010, the police received several anonymous tips that Clark was selling drugs in the parking lot of the apartments and from his own apartment. According to Euclid police detective Benjamin Kreischer, the police conducted surveillance of the apartment building but did not observe any criminal activity. Accordingly, on March 18, 2010, the police decided to conduct a “knock and talk” with Clark.
{¶Error! Bookmark not defined.} Kreischer testified that the purpose of a “knock and talk” is to engage a suspect in a conversation to determine whether the allegations about the individual have any merit; he denied that the primary goal of a “knock and talk” is to gain entrance to find contraband. But Detective David Carpenter, who also participated in the “knock and talk,” testified that the purpose of a “knock and talk” is “to
{¶Error! Bookmark not defined.} At approximately 8:00 p.m. on March 18, Kreischer, Carpenter, and two other Euclid police officers knocked on the door to Clark‘s apartment. Carpenter testified that all of the officers were in plain clothes and wearing a vest marked “Police.” Two uniformed security officers from the apartment complex accompanied them.
{¶Error! Bookmark not defined.} According to Kreischer, the police could smell burnt marijuana emanating from Clark‘s apartment as they stood in the hall. When Clark answered the door, the police identified themselves as narcotics and vice officers with the Euclid police department аnd asked Clark if they could come in to discuss the complaints about him. Both Kreischer and Carpenter testified that Clark invited them into his apartment.
{¶Error! Bookmark not defined.} Carpenter testified that the officers stood just inside the doorway and asked Clark about the burnt-marijuana smell. According to Kreischer, Clark stated that he smokеd marijuana every day and told the police “you may as well take me now.”1 Detective Carpenter testified that there was also an overwhelming smell of raw marijuana in the apartment and he asked Clark about the smell. According to Carpenter, Clark again said that he smoked marijuana every day and
{¶Error! Bookmark not defined.} Both Kreischer and Carpenter testified that Clark asked to get his shoes from his bedroom, so they followed him to make sure he did not procure a weapon and that there was no one else in the apartment. Kreischer testified that he asked Clark what was on the nightstand and Clark told him it was marijuana; Carpenter testified that he observed two loose marijuana buds and two smoked marijuana cigarettes wrapped in paper. When Carpenter saw a large, locked, Craftsman toolbоx on the floor by the bed, he asked Clark what was in the toolbox. Clark responded, “What the f— do you think is in it?” Kreischer checked the closet and found a shotgun and a tray that contained a digital scale, plastic baggies, rubber bands, and marijuana residue.
{¶Error! Bookmark not defined.} Clark was arrested and transported to the police department. Several officers stayed at the apartment while the police obtained a search warrant, which they executed later that evening. The next day, the police obtained a warrant to open the toolbox, in which they found ten pounds of marijuana packaged in plastic bags.
{¶Error! Bookmark not defined.} Clark‘s version of events differed from that of Kreischer and Carpenter. He denied inviting the police into his apartment and testified that when he opened the door, the officers told him he was under arrest for selling drugs and immediately surged into the doorjamb, making it impossible for him to close the door. He also testified that Det. Carpenter had his gun drawn.
{¶Error! Bookmark not defined.} Clark testified that at the police station after his arrest, the police gave him a two-part form to sign. He signed the first part, which stated that the police had given him his Miranda rights when he was arrested, but refused to sign the second part, which stated that he had consented to the search of his apartment.
{¶Error! Bookmark not defined.} A motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
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. * * * Consequently, an appellate court must accept the trial court‘s findings of fact if they are supрorted 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.
{¶Error! Bookmark not defined.} The
{¶Error! Bookmark not defined.} A search that is undertaken following valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A warrantless search based upon a suspect‘s consent is valid if the consent was voluntarily given, and not the result of duress or coercion, either express or implied. Id. The state must show by “clear and convincing” evidence that the consent was freely and voluntarily given. Id. This is an intermediate standard of proof—more than a preponderance of the evidence but less than beyond a reasonable doubt. State v. Ingram, 82 Ohio App.3d 341, 346, 612 N.E.2d 454 (2d Dist.1992), citing Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{¶Error! Bookmark not defined.} Voluntariness of consent is determined by examining the totality of the circumstances involved. Schneckloth at 227. Consent may not be coerced by exрlicit or implicit means, or by implied threat or covert force, and it is not established where the individual merely submits to a claim of lawful authority. Id.
{¶Error! Bookmark not defined.} Factors for a court to consider in determining whether consent is voluntary include: (1) the suspect‘s custodial status and the length of
{¶Error! Bookmark not defined.} While accepting the trial court‘s findings of fact as true, we find that upon considering these factors, the totality of the circumstancеs in this case demonstrates that Clark did not voluntarily consent to the officers’ entry into and search of his apartment.2 The record reflects that four police officers and two uniformed security officers were waiting for Clark when he opened his apartment door. Even discounting Clark‘s testimony that one of the officers had his gun drawn, we find the presence of six officers immediately outside Clark‘s apartment door to be an overwhelming show of force that was inherently coercive, especially if, as Det. Kreischer testified, the purpose of a “knock and talk” is simply to “engage a suspect in conversation.”
{¶Error! Bookmark not defined.} Moreover, both detectives testified that there was an “immediate” and “overpowering” smell of raw marijuana in the apartment as they stood in the door-way talking to Clark. Clark was obviously aware of this smell and would have had every reason to believe the police would find this incriminating evidence if they came into his apartment. To conclude that he would have voluntarily invited the police in to his apartment under such circumstances is highly suspect. In fact, Clark testified that after his arrеst, he refused to sign the form indicating that he had consented to the search of his apartment.
{¶Error! Bookmark not defined.} Based on the foregoing, we can only conclude that under the totality of the circumstances, any consent was the result of coercive police tactics, and not voluntarily given. “‘Consent’ that is thе product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, any evidence obtained as a result of the warrantless entry into and search of
{¶Error! Bookmark not defined.} Appellant‘s first assignment of error is sustained; the matter is remanded for further proceedings consistent with this opinion.
{¶Error! Bookmark not defined.} In light of our resolution of thе first assignment of error, the second, third, and fourth assignments of error are overruled as moot.
{¶Error! Bookmark not defined.} Reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court direсting the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION.
SEAN C. GALLAGHER, J., CONCURRING:
{¶Error! Bookmark not defined.} In reviеwing any warrantless search or seizure, courts must begin “with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the
{¶Error! Bookmark not defined.} The “knock and talk,” therefore, does nothing more than open the door to the residence, and any search and seizure that follows must rest on a firmly established exception to the
{¶Error! Bookmark not defined.} In this case, prudence seems to dictate that the officers should have secured a warrant for the apartment upon smelling the odor of raw marijuana emanating from inside. If police were concerned that Clark would flee back inside and attempt to destroy the evidence of freshly smoked marijuana, they could have briefly detained Clark on the scene while they waited for the warrant. There was no evidence in this record that anyone other than Clark was present at the time the police initiated the “knock and talk.” In the event police heard noises, or suspeсted others