State v. Penwell

CourtUnited States Court of Appeals (Ohio)
Citation170 N.E.3d 52
Docket NumberNo. 2019-CA-74,2019-CA-74
Parties STATE of Ohio, Plaintiff-Appellee v. Daniel PENWELL, Defendant-Appellant
Decision Date09 April 2021

170 N.E.3d 52

STATE of Ohio, Plaintiff-Appellee
Daniel PENWELL, Defendant-Appellant

No. 2019-CA-74

Court of Appeals of Ohio, Second District, Clark County.

Rendered on April 9, 2021

IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor's Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502, Attorney for Plaintiff-Appellee.

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429, Attorney for Defendant-Appellant.



{¶ 1} Defendant-appellant, Daniel Penwell, appeals from his conviction for one count of possession of a controlled substance, a fifth degree felony pursuant to R.C. 2925.11(A) and (C)(1)(a). Raising one assignment of error, Penwell argues that his conviction should be reversed because the trial court erred by overruling his motion to suppress evidence obtained during a search of his person. We find that the

170 N.E.3d 55

trial court properly overruled Penwell's motion, and his conviction is therefore affirmed.

I. Facts and Procedural History

{¶ 2} On October 11, 2017, Penwell was admitted to Springfield Regional Medical Center to be treated for a possible overdose. Judgment Entry 1, Sept. 11, 2019. Officers Freeman and Sanders of the Springfield Police Division, who were already on the premises for an unrelated matter, were dispatched to speak with Penwell "in reference to his overdose." Transcript of Proceedings on Motion to Suppress 4:24-5:6, Aug. 6, 2019 [hereinafter Transcript]. The officers were told that medical personnel had administered Narcan to Penwell and that he had responded favorably to the treatment. Id. at 5:7-5:21 and 11:18-12:4.

{¶ 3} When the officers approached him, Penwell lay on a bed in a corridor in the emergency department. Id. at 8:1-10:21; Judgment Entry 1. The officers spoke with him, and Officer Freeman asked him whether he had consumed any illicit drugs and requested permission to search his person. Transcript at 5:7-6:4. Penwell consented. Id. The officers did not deliver a Miranda warning because Penwell "wasn't under arrest" and gave his consent to the search. Id. at 6:10-7:10.

{¶ 4} In a pocket in Penwell's pants, Officer Freeman found two capsules, "one of which was empty and [the other of which] had a tan substance in it." Id. at 6:5-6:9. Chemical analysis later revealed that the tan substance was Carfentanil, a Schedule II drug. Judgment Entry 2; Ohio Adm.Code 4729:9-1-02(B)(6).1 The amount of the drug recovered was 0.10 grams, which was less than the statutory "bulk amount." Judgment Entry 2; R.C. 2925.01(D)(1)(d) ;2 Ohio Adm.Code 4729:9-1-02(B)(6).

{¶ 5} On January 29, 2018, a Clark County grand jury issued an indictment against Penwell, charging him with one count of aggravated possession of a controlled substance in violation of R.C. 2925.11(A). Penwell pleaded not guilty at his arraignment on June 25, 2019, and on July 29, 2019, he moved to suppress the evidence found on his person by Officer Freeman, as well as any statements he made while being questioned. Following a hearing held on August 6, 2019, the trial court overruled the motion. Judgment Entry 7. Penwell then entered a plea of no contest on September 12, 2019, in exchange for the State's agreement to recommend community control at his sentencing. The trial court, however, was apprised during the disposition hearing on October 3, 2019, of an outstanding warrant against Penwell in Indiana, so it sentenced him to serve seven months in prison. Penwell timely filed a notice of appeal to this court on October 25, 2019.

II. Analysis

{¶ 6} For his single assignment of error, Penwell contends that:

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{¶ 7} Penwell argues that the trial court erred for two reasons. First, Penwell maintains that his encounter with police officers on October 11, 2017, was not consensual under the circumstances. Appellant's Brief 11-15. Second, Penwell denies that he voluntarily consented to the search of his person. Id. at 15-17.

{¶ 8} Appellate "review of a [trial court's ruling on 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. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es]," so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982) ; State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 9, citing State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, 2014 WL 4802860, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s]," whether the "facts satisfy the applicable * * * standard." Burnside at ¶ 8, citing Fanning and State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (3d Dist.1997).

{¶ 9} The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; see also State v. Taylor , 138 Ohio App.3d 139, 145, 740 N.E.2d 704 (2d Dist.2000) (noting that "the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article 1" of the Ohio Constitution "protect the same interests in a consistent manner"). Warrantless searches and seizures violate this prohibition unless conducted pursuant to one of the "few specifically established and well-delineated exceptions." (Citations omitted.) Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A consensual search is one of these exceptions. See, e.g. , Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; State v. Weisgarber , 2017-Ohio-8764, 88 N.E.3d 1037, ¶ 15-16 (2d Dist.) ; State v. Rogers , 2d Dist. Montgomery No. 24848, 2012-Ohio-4753, 2012 WL 4859110, ¶ 12.

{¶ 10} Interactions among police officers and citizens take one of three forms: consensual encounters, investigatory detentions, and arrests. See, e.g. , State v. Millerton , 2015-Ohio-34, 26 N.E.3d 317, ¶ 20 (2d Dist.). An "encounter between a police officer and a member of the public is consensual if a reasonable person would feel free to disregard the officer's questions or [to] terminate the encounter and go about his * * * business." City of Columbus v. Beasley , 2019-Ohio-719, 132 N.E.3d 1201, ¶ 41, citing Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ; see also Weisgarber at ¶ 16 (stating that a consensual encounter "occur[s] when [a] police [officer] merely approach[es] a person in a public place and engage[s] the person in conversation, [with] the person remain[ing] free * * * to [refuse to] answer and * * * walk away"). By contrast, a person is "subject to an investigatory detention when, in view of all the [attendant] circumstances * * *, a reasonable person" would believe "that he [is] not free to leave or is [otherwise] compelled to respond to questions." State v. Lewis , 2d Dist. Montgomery No. 22726, 2009-Ohio-158, 2009 WL 105635, ¶ 22, citing U.S. v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

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{¶ 11} Consensual encounters "are not seizures, and [they do not implicate] Fourth Amendment guarantees." Weisgarber at ¶ 16, citing State v. Taylor , 106 Ohio App.3d 741, 747-749, 667 N.E.2d 60 (2d Dist.1995). A "consensual encounter remains consensual even if police officers ask questions, ask to see [a] person's identification, or ask to search the person's belongings, provided [that] ‘the [officers] do not convey [the] message that compliance with their requests is required.’ " State v. Westover , 2014-Ohio-1959, 10 N.E.3d 211, ¶ 16 (10th Dist.), quoting Bostick at 435, 111 S.Ct. 2382, and citing Florida v. Rodriguez , 469 U.S. 1, 4-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984), and Immigration & Naturalization Serv. v. Delgado , 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

{¶ 12} The determination of whether an encounter is consensual should be focused on the conduct of the police officers involved, rather than the state of mind of the person with whom the officers interact. See, e.g. , State v. Ramey , 2d Dist. Montgomery No. 26705, 2016-Ohio-607, 2016 WL 685357, ¶ 25. Among other things, "[f]actors that might indicate [that a person's interaction with police officers is an investigatory detention, as opposed to a consensual encounter,] include the threatening presence of several police officers, the display of a weapon, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer[s’] request might be required, approaching the person in a nonpublic place, and blocking the [person]’s path." State v. Cosby , 177...

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