State v. Clelland

• Decision Date: 05 November 1992
• Docket Number: No. 91CA9,91CA9
• Citation: 83 Ohio App.3d 474,615 N.E.2d 276
• Parties: The STATE of Ohio, Appellee, v. CLELLAND, Appellant. *
• Court: Ohio Court of Appeals

Page 474

83 Ohio App.3d 474

615 N.E.2d 276

The STATE of Ohio, Appellee, v. CLELLAND, Appellant. ^*

No. 91CA9.

Court of Appeals of Ohio, Fourth District, Hocking County.

Decided Nov. 5, 1992.

Charles A. Gerken, Hocking County Pros. Atty., Logan, for appellee.

Richard M. Wallar, Logan, for appellant.

HARSHA, Judge.

Jimmie Clelland, defendant-appellant, appeals from a judgment of conviction and sentence entered following a bench trial by the Hocking County Court of Common Pleas finding him guilty of burglary in violation of R.C. 2911.12(A)(1), an aggravated felony of the second degree.

Appellant assigns the following errors:

"I. The trial court erred in failing to suppress the statements of the defendant and the evidence seized from the defendant, in that the state failed to prove that the defendant made a knowing and voluntary waiver of his Fifth and Sixth Amendment U.S. constitutional rights.

"II. The trial court erred in ruling that the state could prosecute the defendant in different jurisdictions for several offenses which arose from 'a course of criminal conduct.'

"III. The trial court erred in finding the defendant guilty of aggravted [sic ] burglary in that the evidence failed to establish the element of trespass on the part of the defendant/appellant."

On July 9, 1990, appellant was indicted on one count of burglary. Appellant entered a plea of not guilty to the charge and subsequently filed a notice of alibi as well as motions to suppress all statements made by him to law enforcement officers on June 29, 1990 and all physical evidence seized from appellant's motor vehicle. Following a hearing on appellant's suppression motions, the trial court overruled the motions. Appellant then filed a motion to dismiss the indictment on the basis of double jeopardy. He argued that a prior conviction by the Fairfield County Court of Common Pleas for receiving stolen property acted to bar the burglary proceeding in Hocking County since both offenses were committed as part of the same course of criminal conduct. Following a hearing on appellant's dismissal motion, the trial court filed a detailed entry overruling the motion.

A bench trial produced the following pertinent evidence. Gerali Miller and Ronald Green shared a residence in New Plymouth, Hocking County, Ohio. On June 28, 1990, while Miller was in Columbus at her boyfriend's mother's home, Green learned that his grandfather had passed away. He asked appellant, who had been his friend for several years, to drive him from his residence to his mother's house in Lancaster, Fairfield County, Ohio. Appellant and Doak Vickroy picked Green up at his residence in Hocking County and dropped Green off at his mother's house in Lancaster. Appellant and Vickroy then drove back to Miller and Green's residence in Vickroy's van and, without permission from them, entered their home and stole several items of personal property. Appellant and Vickroy then divided the stolen property, with appellant placing his share in his car and driving to his home in Bremen, Ohio.

Shortly thereafter, Green returned to his residence, discovered that it had been burglarized, and contacted Miller. Green and Miller went to appellant's home and observed Miller's stolen stereo speakers in plain view in the backseat of appellant's car. After the Hocking County and Fairfield County sheriffs' departments were contacted, Fairfield County deputy sheriffs arrested appellant at his place of employment in Lancaster on an outstanding bench warrant concerning a traffic citation and brought him to his car, where Miller and Green were present and had already identified the stolen items in plain view within appellant's car.

According to Fairfield County Deputy Sheriff Rick Sanders, he and Deputy Hopke advised appellant of his Miranda rights, which appellant waived, and requested permission from him to search the car. Appellant signed a written "permission to search" form, and the officers then proceeded to remove from appellant's car several items which had been stolen from Miller and Green's residence.

Hocking County Deputy Sheriff Thomas Wheeler then gave Miranda warnings to appellant, who signed a form waiving his rights. Appellant wrote, at 10:30 p.m. on June 29, 1990, a statement confessing to the burglary. On June 30, 1990, appellant gave another written confession to the burglary. Appellant testified that he had been given permission by Green to enter the Miller-Green residence on other occasions, although he admitted that Green had never given him permission to enter the house for the purpose of stealing Green's property. On February 25, 1991, the trial court entered a judgment which found appellant guilty of burglary as specified in the indictment and sentenced him to an indefinite prison term of three to fifteen years with a $750 fine.

Appellant's first assignment of error asserts that the trial court erred in failing to suppress his statements and evidence seized from him where appellee failed to prove that he had made a knowing and voluntary waiver of his constitutional rights. In a hearing on a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1972), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137; State v. Warren (Aug. 12, 1991), Hocking App. No. 90CA7, unreported, 1991 WL 156521. Accordingly, in our review, we are bound to accept the trial court's findings of fact and determinations regarding credibility if they are supported by competent, credible evidence. State v. Dreher (July 28, 1992), Highland App. No. 786, unreported, 1992 WL 188501; see, also, State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. See State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported, 1991 WL 87312; State v. Simmons (Aug. 30, 1990), Washington App. No. 89CA18, unreported, 1990 WL 127065.

Appellant contends that evidence seized from the search of his car and his statements to police should have been suppressed where Miranda warnings did not precede the search of his car, his permission to the automobile search was not voluntarily given, he was not completely advised of his Miranda rights, he did not understand them, and he did not voluntarily waive them.

Initially, we will consider the propriety of the search of appellant's automobile. Generally, searches conducted without judicial warrant are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. See State v. Johnston (1990), 64 Ohio App.3d 238, 246, 580 N.E.2d 1162, 1167, citing Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. One such exception is based on consent, and the state has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given. Johnston, supra, at 246-247, 580 N.E.2d at 1168, citing Florida v. Royer (1983), 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229.

In order to waive his Fourth Amendment privilege against unreasonable searches and seizures, the accused must give a consent which is voluntary under the totality of all the surrounding circumstances. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; State v. Childress (1983), 4 Ohio St.3d 217, 4 OBR 534, 448 N.E.2d 155, paragraph one of the syllabus; State v. Rutter (1990), 68 Ohio App.3d 638, 641, 589 N.E.2d 421, 422. Appellant contends that since Miranda warnings were not given to him prior to the search of the car, his consent was involuntary. He also asserts that since he only gave permission to search his car to the Fairfield County officers after the officers told him that if he did not consent, they would obtain a search warrant, his consent was involuntary.

The weight of authority holds that prior Miranda warnings are not required to validate consent searches, even when the consent is obtained after the defendant is effectively in custody. See, e.g., State v. Austin (1976), 52 Ohio App.2d 59, 6 O.O.3d 43, 368 N.E.2d 59. Even though consent obtained after arrest may be suspect, the fact of arrest does not necessarily vitiate what otherwise appears to be a valid consent; in other words, the dispositive question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain consent. United States v. Jones (C.A.5, 1973), 475 F.2d 723, 730. Therefore, the mere absence of Miranda warnings after the arrest and prior to the search did not invalidate the consent search.

We move now to appellant's other argument that his consent was not voluntary because it was only given after the officers threatened to obtain a search warrant if he did not consent. Where the record clearly reveals no coercion and a police officer does not falsely claim possession of a search warrant, but rather candidly informs a person why a search is needed, either with his consent or with a search warrant, and the person clearly understood that he had a constitutional right to withhold consent, a finding of voluntariness is appropriate. State v. Danby (1983), 11 Ohio App.3d 38, 11 OBR 71, 463 N.E.2d 47; see, also, State v. Simmons (1989), 61 Ohio App.3d 514, 573 N.E.2d 165.

In the instant case, Deputy Wheeler testified at the suppression hearing that he believed that appellant's arrest and the search of his vehicle took place simultaneously and that appellant signed a search consent form. Appellant testified that he permitted the police to search his car since they advised him that if he did not consent, they would obtain a warrant. At that time, some of the stolen items had already been identified by the burglary victims since they were in plain view...