State v. LimoliState v. Limoli
Rendered on September 28, 2012
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Dennis C. Belli, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶ 1} Defendant-appellant, Amber M. Limoli (“appellant“), appeals from her conviction and sentencing after entering a no-contеst plea in the Franklin County Court of Common Pleas to a charge of possession of cocaine in violation of
I. Facts and Procedural Background
{¶ 2} On July 16, 2010, at approximately 4:00 or 5:00 p.m. in the afternoon, officers of the Columbus Police Department stopped appellant to cite her for jaywalking in Cherry Alley, an alley behind appellant‘s apartment on the west side of Columbus, Ohio. The police consider the area to be a high-crime neighborhood with a high incidence of drug activity. After the initial stop, Officer Brandon Harmon (“Officеr Harmon“) summoned a female officer, Officer April Redick (“Officer Redick“), to search appellant.
{¶ 3} On November 16, 2010, the Grаnd Jury of the Franklin County Court of Common Pleas indicted appellant on one count of possession of cocaine in violation of
{¶ 4} On July 15, 2011, appellant filed a motion to suppress evidence alleging that she had been illegally searched and, оn July 20, 2011, the trial court conducted the first day of an evidentiary hearing on that motion. The court heard additional testimony on July 26 and August 17, 2011.
{¶ 5} In describing the events of July 16, 2010, Officer Harmon testified that the police had received information that there was possible drug trafficking going on in the area and thаt appellant‘s name “was being thrown out there” in connection with the report. (Tr. 120.) He and two other officers were patrolling the neighborhood on bicycles and riding north on Davis Avenue “in the area where we had heard that [appellant] was selling crack cocaine.” (Tr. 43.) He testified that he looked down the alley and saw appellant and another woman walking towards Davis Avenue, side by side, “directly down the middle” of Cherry Alley. (Tr. 43.) He observed appellant immediately turn around and walk away from the officers at a fast pace. He testified that, whеn people immediately change their course of direction after seeing police, it usually means that there is a possibility that criminal activity is occurring.
{¶ 6} Officer Harmon made contact with appellant in the parking lot to the rear of appellant‘s apаrtment building. He testified that he had dealt with appellant on several prior occasions and that she “wasn‘t acting her normal self,” but was acting “nervous“―as though she wanted the police encounter to be over as quickly as possible. (Tr. 38.) He informed appellant that he had оbserved her jaywalking and “immediately” asked her if
{¶ 7} Officer Harmon testified that appellant was not free to leave while the officers were waiting for Officer Redick but, rather, that she was being detained by the three officers present. In addition, Officer Harmon testified that, at the time he observed appellant walking in the alley, he knew “that there could possibly be some narcotics related to this toо.” (Tr. 120.) He testified that appellant received the jaywalking ticket “[s]ometime during the incident” and estimated that 15 minutes at most passed between the time of the initial stop and the search and arrest. (Tr. 40.) During the encounter, several people came out from the apartment building, including appellant‘s friends and family members, and gathered in the parking lot to observe.
{¶ 8} In addition, Officer Harmon testified that he had previously arrested appellant for possession of cocaine. He stated that he had encountered appellant on approximately eight to ten prior occasions, including traffic stops, pedestrian violations, and the execution of search warrants of suspected drug houses. He stated that, on these previous occasions, he had asked appellant if she would consent to be sеarched and that she had always responded “absolutely no.” (Tr. 119.) He testified that he had no doubt that appellant had given her consent to be searched when stopped for the jaywalking offense and that he did not hear appellant say or do anything before or during the search indicating that she was withdrawing her consent.
{¶ 9} A second bicycle patrol officer at the scene, Mark Denner (“Officer Denner“), testified that it was his “understanding” that appellant had consented to the search but that he could not recall any words that she may have used. He testified that
{¶ 10} The third bicycle patrol officer, Jeffrey Beine (“Officer Beine“), also testified. He stated that appellant аnd another female were both “in the middle of the alley” and that, when appellant saw the officers, she turned directly around and went the other way. (Tr. 108.) He could not testify that he heard appellant affirmatively consent to a search and had only a “very vague” recollеction of the entire encounter.
{¶ 11} Officer Redick, who conducted the search, also testified at the suppression hearing. She testified that she arrived at the parking lot a few minutes after receiving the request that she conduct a search of appellant. Officer Harmon informed Officer Redick that appellant had consented to be searched. She conducted the search and felt a hard, solid object underneath appellant‘s breast area about the size of one-half to three-quarters of a golf ball. The officer wаs able to manipulate the object, causing the object to fall. She stated that appellant did not ask her at any time to stop the search nor indicate to her in any other way that she was not consenting to the search.
{¶ 12} Appellant also testified at the suppression hearing. She testified that she was just beginning to enter Cherry Alley from the parking lot of her apartment building and was with her cousin who was walking “way ahead” of her. (Tr. 84.) She testified that she did not enter the roadway at Cherry Alley when she saw the three officers on bicycles but instead turned around towards her apartment. In the parking lot behind the apartment building, she approached another individual she identified as “Q.” By the time the officers arrived in the parking lot on their bicycles, she was hugging “Q,” at which point the police officers stopped both of them. She testified that Officer Harmon approached her and asked her why she was acting “weird” and where she was going. She asked him whether she was “wanted or not.” (Tr. 88.) She further testified that Officer Harmon then told her she was jaywalking and that she was going to get a ticket. He asked both appellant and “Q” for identification and ran an inquiry to determine if either had outstanding warrants. When appellant asked if any warrants had been disclosed, Officer Harmon answered that none had. She testified that she then tried to walk away and that Officer Harmon told her to come back and that the police were about to “search you all.” (Tr. 90.) Appellant denied that the officer asked her whether she would consent to a search and denied that she ever gave consent. She testified that she repeatedly told him
{¶ 13} Appellant testified that she felt intimidatеd by the officers because “they always stop me * * * [and] try to figure out a way to give me a ticket * * * and find out stuff.” (Tr. 95.) She stated that, because of this, she felt she didn‘t have a choice as to whether the search was going to happen. Consistent with Officer Harmon‘s testimony, appellant stаted that the two did have prior encounters with each other and that she had always previously refused to give Officer Harmon voluntary permission to be searched. She testified, however, that he had in the past nevertheless summoned female officers who then searched her. She testified that this had happened on three to four occasions. She identified one occasion as being a traffic stop involving a police canine unit, at which time she told Officer Harmon that she did not want to be searched, and he said “since the dog tapped on the car I had to be searched.” (Tr. 131.) She testified that another incident had occurred while she was a pedestrian and was carrying a “little taser” that the officer may have thought was a gun. (Tr. 131.)
{¶ 14} On August 12, 2011, before the third and final day of the evidentiary hearing on the motion, appellant filеd a supplemental memorandum regarding her motion to suppress. In that memorandum, appellant more specifically addressed the question whether she had provided voluntary consent to the search and argued that “whether a citizen has voluntarily consented to a sеarch is determined by reviewing the totality of the circumstances.” (Supplemental Memorandum to Motion to Suppress, at 4-5.)
{¶ 15} On August 16, 2011, the state filed a memorandum in response to appellant‘s supplemental memorandum, again emphasizing its position that appellant had voluntarily consented to be searched. (Memorandum Contra, at 5.) The state acknowledged that, “[w]hen a person is lawfully detained by police and consents to a search, the state must show by clear and convincing evidence that the consent was freely and voluntarily given.” (Memorandum Contra, at 5.) It argued, inter alia, that the officers had made no promise nor threats; that appellant was not placed in the police cruiser or
{¶ 16} On August 17, 2011, at the conclusion of the suppression hearing, the court denied appellant‘s motion to suppress, stating:
[A]s far as duress is concerned, the officer said she consented. She said she did not consent. Nobody suggested there was evidence to show she did consent, but it was becаuse she was afraid or under duress, so duress is not a[n] issue.
* * *
There were multiple officers that said she consented, some said directly, there were words spoken. Others through their testimony, obviously a female officer was called, brought to the scene and searched her.
* * * I think it‘s important that there is testimony that a crowd gathered here. * * * And Ms. Limoli does not seem to be a shy young lady, she seems to speak her mind, she did just fine on the witness stand, and if she was not consenting to this search it would seem to me that there would be other people that witnessed all of this that would have bеen able to testify to that. I heard no one else.
So the issue on the consent comes down to a credibility question. The officers say she consented, she said she did not. And I find in favor of the officers on that issue.
So there was probable cause to write the ticket, there was рrobable cause to detain her. They asked for consent and she gave it. So the motion to suppress is denied.
(Emphasis added.) (Tr. 145-46.)
{¶ 17} The trial court judge was not asked to—nor did he—issue any written findings of fact or conclusions of law, or any other written decision in connection with his denial of appеllant‘s motion to suppress. Accordingly, his statement quoted above constitutes the entirety of the court‘s findings of essential facts concerning the voluntariness of appellant‘s consent.
{¶ 18} Appellant has timely appealed and raises two assignments of error for our consideration.