State v. Prater

• Decision Date: 02 November 2012
• Docket Number: No. 24936.,24936.
• Citation: 984 N.E.2d 36
• Parties: STATE of Ohio, Plaintiff–Appellee v. Casey B. PRATER, Defendant–Appellant.
• Court: Ohio Court of Appeals

984 N.E.2d 36

STATE of Ohio, Plaintiff–Appellee

v.Casey B. PRATER, Defendant–Appellant.

No. 24936.

Court of Appeals of Ohio,

Second District, Montgomery County.

Nov. 2, 2012.

James F. Long, Kettering Municipal Prosecutor's Office, Kettering, OH, for appellee.

John M. Ebersole, Baver and Bookwalter Co., L.P.A., Miamisburg, OH, for appellant.

HALL, J.

{¶ 1} Casey B. Prater appeals from his conviction and sentence following a no-contest plea to a minor-misdemeanor charge of marijuana possession.

{¶ 2} Prater advances two assignments of error challenging the trial court's denial of his motion to suppress the marijuana, which police discovered during a traffic stop. Prater contends the trial court erred in finding that police obtained consent to search the stopped vehicle. Alternatively, even if consent was given, he claims the trial court erred in finding the consent voluntary.

{¶ 3} The record reflects that Prater was a passenger in a vehicle driven by his friend, Robert Slone, and registered to his mother. Centerville police officer Adam Bennett stopped the vehicle for a traffic violation. In the course of the stop, Bennett discovered marijuana under both front seats. As a result, Prater and Slone were charged with marijuana possession. Slone also received a paraphernalia charge based on a coke can being found in the car. Prater and Slone moved to suppress the evidence. The matter proceeded to a September 19, 2011 hearing.

{¶ 4} Based on the evidence presented, the trial court made the following factual findings:

* * * Officer Bennett was on road patrol on June 17, 2011, at approximately 7:45 p.m. when he observed a black Honda Civic operated by Slone. The vehicle had a broken left taillight, and a smoke or dark gray plastic cover obscuring the vehicle's temporary license placard. The officer, after [e]ffecting a traffic stop, approached the Honda, spoke briefly with the occupants, then returned to his cruiser to check for wants or warrants. While in his cruiser, he called for back up, which arrived in the person of Officer [Andrew] Hardacre. During this time, both Defendants remained seated in the Honda. After confirming that neither Defendant had a detainer or warrant, Officer Bennett decided to issue warnings rather than citations for the observed violations. Officer Hardacre, during part of this time, stood in a grassy area near the Honda's right passenger door. Officer Bennett walked to the rear of the Honda, requested Defendant Slone to exit the vehicle, and come to the rear of the vehicle. At that time he pointed out to Slone the cracked left taillight, and the smoke colored plate cover. The two discussed possible “fixes” for the perceived defects, Officer Bennett handed the warnings to Defendant Slone, and advised him he was free to go. Officer Bennett then asked Slone for permission to search the vehicle, and Slone gave the officer his permission. Defendant Prater was then asked to exit the vehicle, and stood near the rear of the Honda. As Officer Bennett got to the driver door area, he did detect the odor of marijuana coming from inside the vehicle. He searched the vehicle and found two baggies (one under each front seat) containing suspected marijuana, and also found an empty Coke can with the top removed, which had sandwich baggies containing suspected marijuana residue.

Officer Hardacre testified he heard Officer Bennett advise Defendant Slone he was “free to go,” then ask for permission to search the vehicle, and heard Slone give that permission to Officer Bennett.

Defendant, Casey Prater testified the Honda is his, although it is titled in his mother's name. Prater denied giving either officer permission to search the vehicle, but did not admit or deny that Defendant Slone gave his consent to search.

* * *

The Court in reviewing the video and audio recording of the stop (State's Ex. “B”) observed the officer apparently discussing the taillight and plate cover issues with Defendant Slone at the rear of the vehicle. (The audio portion of the recording is not always clear or understandable.). After handing the warning to Defendant Slone, it appears the officer asks said Defendant a question. Defendant Slone's body language suggests his agreement, and the officer requests Defendant Prater exit the vehicle as he commences to search the vehicle. At no time does it appear that Defendant Prater, the passenger[,] is asked for permission to search the vehicle. Defendant Slone did not testify at the hearing. As such, Officer Bennett's testimony that he requested permission to search the vehicle from the driver, Defendant Slone, and was granted permission is uncontroverted. Additionally, the actions of Officer Bennett and Defendant Slone in the video support the officer's testimony.

(Doc. # 18 at 2–3).

{¶ 5} The trial court then held that Officer Bennett's traffic stop was supported by reasonable, articulable suspicion of a legal violation due to the obscured plate cover. The trial court also held that Slone had consented to a search of the Honda and that his consent was voluntary. In support, the trial court found that Bennett had advised Slone he was “free to go” before Slone consented to the search. After the trial court overruled the suppression motion, Prater entered a no-contest plea. The trial court accepted the plea, found him guilty, and sentenced him accordingly. The trial court also stayed execution of the sentence pending appeal. (Doc. # 20).

{¶ 6} In his first assignment of error, Prater challenges the trial court's finding of consent to search. Although officers Bennett and Hardacre provided uncontroverted testimony that Slone consented to the search, Prater contends “the probative value of that testimony is fatally compromised by the evidence as set forth in the video” of the traffic stop. Specifically, Prater asserts that Slone can be seen trying “to explain something” and “throwing up his arms.” Prater reasons that Slone “could well have been saying that he did not have the authority to consent or he could have been revoking consent.” (Appellant's brief at 4). At most, Prater contends the video establishes Slone's “mere acquiescence.”

{¶ 7} In ruling on a motion to suppress, the trial court “assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” (Citation omitted). State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). As a result, when we review suppression decisions, “we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.” Id.

{¶ 8} In its ruling, the trial court found, as a factual matter, that Slone orally gave Officer Bennett permission to search the Honda. This factual finding is supported by evidence in the record, including Officer Bennett's testimony that he obtained consent and Officer Hardacre's testimony that he heard Bennett ask for and obtain permission to search the vehicle. We are unpersuaded by Prater's argument that the video recording of the traffic stop clearly contradicts the officers' testimony. Nothing on the video definitively establishes that Slone did not consent to a search or that he revoked his consent. Although Slone appears to act equivocally when the issue of consent is raised, not every word on the recording can be heard. Slone's consent, or lack thereof, simply cannot be established by viewing the video alone. We are left, then, with the trial court's factual finding, based on the officers' testimony, that Slone consented. Significantly, the record contains no testimony contradicting the officers' claim, which the trial court credited. We will defer to the trial court, as the finder of fact, on this issue because its finding of consent is supported by competent, credible evidence in the form of the officers' testimony.

{¶ 9} Under his first assignment of error, Prater also claims Slone lacked authority to consent to a search. Prater acknowledges that a non-owner generally may consent to a search if he possesses authority over the area to be inspected. Prater suggests this rule does not apply, however, when another person with superior authority is present. Here, Prater contends that he, not Slone, was the only person capable of consenting to the vehicle search. In support, Prater points out that Officer Bennett knew (1) Slone did not own the vehicle, (2) the vehicle was registered to Prater's mother, (3) Prater and the registered owner shared the same address, and (4) Slone and the registered owner did not share the same address.

{¶ 10} Upon review, we find the foregoing argument to be unpersuasive. In consent-to-search cases, the test is whether police had an objectively reasonable belief that the consenting person possessed apparent authority to give consent. State v. Wallace, 2d Dist. Montgomery No. 24383, 2011-Ohio-1741, 2011 WL 1346946, ¶ 15–16;State v. Green, 2d Dist. Greene No.2007 CA 2, 2009-Ohio-5529, 2009 WL 3353595, ¶ 65;State v. Lawson, 12th Dist. Butler No. CA99–12–226, 2001 WL 433121, *5 (April 30, 2001) (“In this case, Jenks consented to the search of the vehicle and handed the baggie over to Officer Boyd. Although, according to appellant, Jenks was not the owner of the vehicle, she had apparent authority to consent to a search. * * * The vehicle was parked in her driveway and registered to an automobile dealer. She told the police that she and Lawson were in the process of buying it together.”).

{¶ 11} The record reflects that Officer Bennett knew Slone was not the owner of the Honda. The video of the stop shows Bennett approaching the driver's side of the car and being told that the car belonged to Prater, the passenger. After obtaining identification from Slone and...