State v. Retherford

• Decision Date: 16 March 1994
• Docket Number: No. 13987,13987
• Citation: 639 N.E.2d 498,93 Ohio App.3d 586
• Parties: The STATE of Ohio, Appellee, v. RETHERFORD, Appellant. *
• Court: Ohio Court of Appeals

Page 586

93 Ohio App.3d 586

639 N.E.2d 498

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

No. 13987.

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

Decided March 16, 1994.

Mathias H. Heck, Jr., Montgomery County Pros. Atty., and Carley J. Ingram, Asst. Pros. Atty., Appellate Div., Dayton, for appellee.

Gary C. Schaengold, Dayton, for appellant.

BROGAN, Judge.

Defendant-appellant, Barbara A. Retherford, appeals from her conviction of drug abuse in the Common Pleas Court of Montgomery County.

The underlying facts of the case are as follows. On June 23, 1992, at 9:13 a.m., Deputy Sandy Debrosse of the Montgomery County Sheriff's Department was operating a routine traffic post/drug interdiction in a marked patrol car on northbound I-75 along with Deputy Ronald Newsome, who was stationed in another patrol car a few miles north of Deputy Debrosse.

Deputy Debrosse clocked Retherford's vehicle at seventy-one m.p.h. in a fifty-five m.p.h. speed zone. Deputy Debrosse advised Deputy Newsome of the speed violation by radio, and Deputy Newsome made the stop of Retherford's vehicle. It is undisputed that Retherford was exceeding the posted speed limit.

Deputy Newsome left his car and approached Retherford's vehicle. He testified that Retherford seemed nervous, but not overly so. In fact, Deputy Newsome admitted that the degree of Retherford's nervousness was reasonable for an average person pulled over for a traffic violation.

Deputy Newsome asked Retherford for her driver's license and registration, which she produced. Deputy Newsome then returned to his patrol car. Deputy Debrosse arrived as Deputy Newsome was in the process of writing Retherford a warning ticket for excessive speed. Deputy Newsome testified that he waited in his cruiser for Deputy Debrosse to arrive so that he could have a backup for officer-safety reasons, and also so that he would have a witness when he asked for Retherford's consent to search her vehicle.

Once he finished writing the warning ticket, Deputy Newsome got out of his cruiser, approached Deputy Debrosse, and explained to her that he was "going to have Ms. Retherford step out of her car and * * * issue her a warning citation for speeding and * * * attempt to search to look for drugs and other contraband in the vehicle." Deputy Newsome testified that it is not normal procedure to have an individual exit his or her vehicle when issuing a traffic citation, but that as part of his drug interdiction training he was taught to "get the people separated from their vehicle."

After Retherford was asked to get out of her vehicle, and while she was standing in the presence of the two uniformed officers, Deputy Newsome began what he described as a "casual conversation" with Retherford as part of his "technique," so that he could "basically [view] her body language and her nervousness and so on." During his "conversation" with Retherford, Deputy Newsome noticed that Retherford had some luggage in the back seat of the car. The presence of the luggage prompted Deputy Newsome to engage Retherford in a "conversation" about her travel plans and destination. This so-called "conversation" appears to have consisted mostly of questions from Deputy Newsome. Deputy Newsome gathered from his questioning of Retherford that she was travelling from Cincinnati to Port Clinton to visit her boyfriend.

Deputy Newsome described the activity at the conclusion of the Retherford traffic stop as follows:

"I completed the traffic citation, gave the citation to her, driver's license and her vehicle registration back to her, and as part of my technique, I then continue on the conversation in a casual manner. Once she receives her paperwork back and I'm concluding the conversation, I say you're now free to go, or you can go ahead and take off, and whatever the case may be. In this particular case, I remember telling her [']* * * you have a nice day, you're free to go. ['] At that point, as I was taught, Ms. Retherford would turn back to her vehicle. As soon as she turned and took one step, I said, 'Excuse me, can I ask you one thing before you go,' and at that point she said, 'Sure.' I said, 'Are you carrying any large sums of money, drugs, or any weapons.' She stated, 'No, no, I'm not.' I said, 'Would you mind if I search your vehicle and contents to be sure there is no contraband in the vehicle,' and she said * * * 'Sure, go ahead.' "

After Deputy Newsome obtained Retherford's consent to search her car, he opened an overnight bag in the back seat and found a cake tin inside of which he found marijuana and marijuana pipes. Upon making this discovery, Deputy Newsome placed Retherford under arrest for possession of marijuana and drug paraphernalia, patted her down, handcuffed her, and placed her in custody. When Retherford expressed concern about an unsigned check in her purse, Deputy Debrosse retrieved the purse and checked it for any additional contraband. Inside the purse, Deputy Debrosse found a pill tin with two suspected blotter acid hits.

Deputy Debrosse and Deputy Newsome both filled out utility reports, a written narrative of the events which transpired during the traffic stop. Neither report included the fact that Deputy Newsome told Retherford she was free to go. However, Deputy Newsome testified that he advised Retherford that she was free to proceed on her way, and Deputy Debrosse testified that she heard Deputy Newsome make that statement. It is undisputed that Retherford was not advised that she did not have to consent to the search of her vehicle, nor was any written waiver of rights form used.

Deputy Newsome testified that the presence of "indicators," i.e., the fact that Retherford's luggage was in the back seat and not in the trunk, ¹ the fact that Retherford was nervous ("but not overly so"), and the fact that she was going from Cincinnati to Port Clinton, raised some mild suspicion that there might be "contraband" in the car. However, when asked why he felt the need to ask Retherford for her consent to search her vehicle, Deputy Newsome replied, "[m]ore so for any other reason the fact that I need the practice, to be quite honest." Deputy Newsome further testified that, in 1992 alone, he asked for consent to search a vehicle incident to a traffic stop "approximately 786 times * * * give or take a few."

On August 27, 1992, Retherford was indicted for one count of drug abuse in violation of R.C. 2925.11(A) for possession of LSD, a Schedule I controlled substance.

Retherford entered a plea of not guilty. On December 29, 1992, Retherford filed a motion to suppress evidence, which the trial court overruled on January 27, 1993.

Retherford thereafter entered a plea of no contest to the indictment. The trial court imposed a suspended sentence of one year and placed Retherford on probation for a period not to exceed three years. This appeal followed.

A brief was filed by appointed counsel on Retherford's behalf on September 1, 1993. The appellate brief is ostensibly an Anders brief wherein appellate counsel usually indicates that in counsel's judgment there are no meritorious appellate issues. See Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Thus, while an Anders brief generally contains no assignments of error, Retherford's brief contains a cursory argument that the trial court erred in denying Retherford's motion to suppress.

Retherford's motion to suppress addressed the evidence seized by the deputies during the search of her vehicle and personal belongings and claimed that the warrantless search was unconstitutional under both the United States and Ohio Constitutions.

The trial court found that the deputies had a valid reason for the initial stop, that Retherford was not in custody after being told by Deputy Newsome that she was free to leave, that Retherford's consent to allow the search of her vehicle and its contents was freely and voluntarily given, and that the search of her purse was valid as a search incident to a lawful arrest. Based on these conclusions, the trial court found that the search was not illegal and overruled Retherford's motion to suppress.

In 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. State v. Clay (1972), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. Accordingly, in our review, 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.

The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated * * *." These provisions grant to the citizens of Ohio what is among our most cherished of constitutional rights.

"The basic purpose * * * [of these constitutional provisions] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Mun. Court of the City and Cty. of San Francisco (1967), 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935. The fundamental nature of this guarantee has long been noted:

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pacific Ry. Co. v. Botsford (1891), 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734, 737.

As Justice Brandeis expressed in words which continue to animate and inspire our vision of the...