[Cite as State v. Penwell,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-74 : v. : Trial Court Case No. 2018-CR-73 : DANIEL PENWELL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 9th day of April, 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

.............

TUCKER, P.J. -2-

{¶ 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 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.

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. -3-

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:

THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

1In October 2017, Schedule II was defined by R.C. 3719.41, which has since been amended. 2R.C. 2925.01 has been amended since October 2017, though the provisions of R.C. 2925.01(D)(1)(d) remain substantially the same. -4-

MOTION TO SUPPRESS IN VIOLATION OF HIS RIGHTS UNDER THE

FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE 1, SECTION 14 OF THE CONSTITUTION

OF THE STATE OF OHIO.

{¶ 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,

, 2003-Ohio-

5372,

. 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.”

citing State v. Fanning,

,

(1982); State v.

Graves, 12th Dist. Clermont No. CA2015-03-022,

, citing State v.

Cruz, 12th Dist. Preble No. CA2013-10-008,

. 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.”

, citing Fanning and State v. McNamara,

,

(3d Dist. 1997).

{¶ 9} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Terry v. Ohio,

,

,

(1968); see also State v. Taylor,

,

-5-

(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,

,

,

(1967). A consensual search is one of these exceptions. See,

e.g., Schneckloth v. Bustamonte,

,

,

(1973); State v. Weisgarber,

,

, ¶ 15-16 (2d Dist.); State

v. Rogers, 2d Dist. Montgomery No. 24848,

.

{¶ 10} Interactions among police officers and citizens take one of three forms:

consensual encounters, investigatory detentions, and arrests. See, e.g., State v.

Millerton,

,

, ¶ 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,

,

, ¶ 41, citing

Florida v. Bostick,

,

,

(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,

, citing U.S. v. Mendenhall,

, -6-

553,

,

(1980).

{¶ 11} Consensual encounters “are not seizures, and [they do not implicate] Fourth

Amendment guarantees.” Weisgarber at ¶ 16, citing State v. Taylor,

,

(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,

, ¶ 16 (10th Dist.), quoting

, and citing Florida v.

Rodriguez,

,

,

(1984), and Immigration &

Naturalization Serv. v. Delgado,

,

,

(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,

, ¶ 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,

,

,

, citing Mendenhall

at 554 and State v. Cook, 2d Dist. Montgomery No. 20427,

.

{¶ 13} In the first part of his argument, Penwell posits that his encounter with police -7-

officers was not consensual because the part of the hospital in which the encounter

occurred was not accessible to family, friends or persons other than patients and medical

personnel. See Appellant’s Brief 12, citing Judgment Entry 4. He observes that in our

opinion in Weisgarber, we affirmed a trial court’s determination that a similar encounter

was not consensual, in part because the defendant in that case had been “approached

* * * in a private room in the emergency department, which was likely not accessible to

the public at large.” Appellant’s Brief 12; see Weisgarber at ¶ 20-21.

{¶ 14} The room in Weisgarber was described as an “ ‘individual emergency

room,’ ” which measured “approximately 12 [feet] by 12 [feet] or 15 [feet] by 15 feet.”

Weisgarber at ¶ 5. Here, however, Penwell spoke with police officers in a corridor in the

emergency department. Although the trial court erred by finding as a matter of fact that

the corridor was “generally accessible to family and friends of patients and even [to] the

public at large,” we conclude that the corridor was an intrinsically less confining location

than the private room described in our Weisgarber opinion. Judgment Entry 4; Transcript

at 9:1-9:19.

{¶ 15} Furthermore, we noted in Weisgarber that the record included “no evidence

that the officer introduced himself [to the defendant], [no evidence that the officer] asked

[the defendant] if he [would be] willing to answer questions, [and no evidence that the

officer] engaged in any [other] conversation [before] asking [the defendant] whether [he]

had drugs or weapons” on his person. Weisgarber at ¶ 21. On that record, we

“defer[red] to the trial court’s implicit factual finding that,” evaluated in light of “the location

of the encounter,” the officer’s “use of language and [the officer’s] demeanor” constituted

“a display of authority * * * indicat[ing] to [the defendant] that * * * response[s] [to the -8-

officer’s questions were] required.” See id. at ¶ 20-21.

{¶ 16} In the instant case, however, the record includes some evidence—albeit

ambiguous evidence—that Officers Freeman and Sanders engaged in superficial

conversation with Penwell before seeking his consent to a search of his person. Officer

Freeman testified, during the hearing on the motion to suppress, that when she and

Officer Sanders approached Penwell, “[they] spoke with him,” and “[she] asked him what

he had used.”3 See Transcript at 4:24-5:17. On cross-examination, Penwell’s counsel

asked Officer Freeman to recall “the very first thing [she] said” to Penwell after

approaching him, but she answered that she “couldn’t tell [counsel] verbatim” what she

had said. Id. at 13:15-13:20. Although Officer Freeman’s testimony was thus

ambiguous, it suggested that she and Officer Sanders at least briefly conversed with

Penwell before questioning him in earnest.

{¶ 17} Compared, then, to the encounter at issue in Weisgarber, Penwell’s

encounter with police officers occurred in a relatively less confined setting, and the

officers’ language and demeanor did not obviously constitute a display of authority. Of

the factors we listed in Cook, 2d Dist. Montgomery No. 20427,

, the only

factor that would unequivocally support a finding that Penwell’s encounter was an

investigatory detention was the presence of two police officers, rather than one officer,

but the record comprises no evidence that either Officer Freeman or Officer Sanders

brandished a weapon, touched Penwell, or used language or spoke in a tone of voice

implying that Penwell was required to respond to their questions. Cook at ¶ 11.

3 Officer Sanders did not testify during the hearing. -9-

Penwell’s placement in the corridor, for that matter, would not have allowed him to walk

away easily from the encounter, yet regardless, the officers did not intentionally block his

path to an exit. See Transcript at 10:10-11:17. We hold accordingly that Penwell’s

interaction with the officers was a consensual encounter, not an investigatory detention.

{¶ 18} In the second part of his argument, Penwell denies that he consented to the

search of his person. Appellant’s Brief 15-17. Specifically, he maintains that he did not

voluntarily consent because he was subjected to an investigatory detention, “had recently

suffered unconsciousness,” and had been treated with Narcan, which “call[s] [his lucidity

at the time] into question.” See id. at 16.

{¶ 19} Consent to a search “is an exception to the warrant requirement that

requires the State to ‘show by “clear and positive” evidence that the consent was “freely

and voluntarily” given.’ ” State v. Ojezua, 2d Dist. Montgomery No. 26787, 2016-Ohio-

2659, ¶ 17, quoting State v. Posey,

,

(1988). The

standard of “clear and positive” evidence is essentially equivalent to the standard of “clear

and convincing evidence.” See id. at ¶ 18. Whether a person’s consent to a search is

truly voluntary must be determined in light of the circumstances. Weisgarber, 2017-

Ohio-8764,

, at ¶ 17-19; Westover,

,

, at

¶ 13. Generally, this determination entails the consideration of six factors: “1) ‘whether

the defendant’s custodial status was voluntary; 2) whether coercive police procedures

were used; 3) the extent and level of the defendant’s cooperation; 4) the defendant’s

awareness of his * * * right to refuse consent; 5) the defendant’s education and

intelligence; [and] 6) the defendant’s belief that no incriminating evidence would be

found.’ ” State v. Black, 2d Dist. Montgomery No. 23524,

, ¶ 35-41, -10-

quoting State v. Loyer, 8th Dist. Cuyahoga No. 87995,

.

{¶ 20} We have held that Penwell’s interaction with Officers Freeman and Sanders

was a consensual encounter. Consequently, for purposes of determining whether

Penwell consented voluntarily to a search, we find that he was not in custody when the

officers requested his consent, and that the officers did not employ coercive police

procedures to convince him to consent. Officer Freeman’s testimony provided no

indication that Penwell was anything less than cooperative during the encounter,

notwithstanding his initial denial that he had consumed any illegal drugs. See Transcript

at 13:21-14:1. Neither the State nor Penwell’s counsel asked the officer whether she or

Officer Sanders informed Penwell that he had the right to refuse to consent, and the

record is silent on Penwell’s level of education. The warrant for his arrest, however,

indicated that Penwell was 27 years old on October 11, 2017.4 In his own testimony at

the hearing on his motion to suppress, Penwell had no apparent difficulty understanding

questions, and he was able to answer clearly and appropriately. See Transcript 24:18-

25:19. Because Penwell disclaimed any memory of speaking with Officers Freeman and

Sanders at the hospital, the record is inconclusive on the question of whether he believed

that the officers would not find anything incriminating on his person. Id. at 23:17-25:23.

{¶ 21} Taking the record as a whole, we find that consideration of the six factors

listed in our opinion in Black favors the trial court’s determination that Penwell voluntarily

consented to the search of his person. Compare with State v. Ivkovich,

,

, ¶ 2-3 and 21-27 (2d Dist). Regarding Penwell’s lucidity, Officer

4 The birthdate listed on the State’s praecipe for a warrant for Penwell’s arrest, on the other hand, indicates that Penwell was approximately 22 years and 11 months old on October 11, 2017. -11-

Freeman testified that Penwell was “just sleepy and intoxicated,” but recanted her use of

the word “intoxicated” at once, adding that because “Narcan is only effective against an

opiate,” Penwell could not have been intoxicated as the result of the consumption of

alcohol. See Transcript 5:17-5:21. In the remainder of her testimony, Officer Freeman

described Penwell as seeming coherent; as having his eyes open when she first

approached him; as being responsive to her questions; as “clear speaking and alert”; and

seeming to understand her questions and her request for his consent to a search. Id. at

5:22-5:24, 13:12-13:14, 16:17-16:19, 17:22-18:6 and 22:23-22:25.

{¶ 22} Penwell testified that he could not remember being treated by medical

personnel or speaking with Officers Freeman and Sanders. Id. at 24:14-26:6. By his

account, he remembered only “[b]eing at the library” and then, “at some point,” seeing his

“grandparents * * * at the hospital.” Id. Even if Penwell recalled nothing more than he

indicated in his testimony, his inability to recall speaking with the officers would not

necessarily have precluded the possibility that, when Officer Freeman asked for his

consent, he was sufficiently lucid to understand the question. Regardless, the trial court

did not find his testimony to be credible, and as the trier of fact, the trial court was in the

best position to weigh the evidence and to evaluate Penwell’s credibility. Burnside,

,

,

. Given that we must accept the

trial court’s findings of fact for purposes of Penwell’s appeal, we hold that the trial court

did not err in determining that Penwell voluntarily consented to a search of his person.5

5 We noted that the trial court erred by finding that the corridor in which Officers Freeman and Sanders encountered Penwell was open to the public at large, but with respect to that specific finding, the record included competent evidence directly contradicting the court’s finding. The record includes no such evidence directly contradicting the trial court’s finding that Penwell’s testimony was not credible. -12-

{¶ 23} We note, finally, that even if Penwell’s encounter with Officers Freeman and

Sanders were an investigatory detention, the officers had a reasonable, articulable

suspicion of criminal activity. Reasonable suspicion means that a police officer “must be

able to point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant [a limited] intrusion” on a person’s “constitutionally

protected interests.” See Terry,

,

,

. The

term “reasonable suspicion” refers to “something more than an inchoate and

unparticularized * * * ‘hunch,’ but [to] something less than the level of suspicion for

probable cause”; a demonstration of probable cause, by comparison, generally requires

a likelihood “or substantial chance of criminal activity.” Village of Chagrin Falls v.

Calabrese, 8th Dist. Cuyahoga No. 101197,

, citing

. To

determine whether a police officer had reasonable suspicion, “we evaluate the ‘totality of

the circumstances’ ” from the perspective of a hypothetical “reasonable and prudent

police officer on the scene who must react to events as they unfold.” State v. Andrews,

,

(1991); State v. Heard, 2d Dist. Montgomery

No. 19323,

, ¶ 14.

{¶ 24} Here, Officers Freeman and Sanders approached Penwell after being

advised that he had been admitted to the emergency department at the Springfield

Regional Medical Center for an opiate overdose, that he had received several doses of

Narcan, and that he had responded favorably to such treatment. See Transcript 4:16-

5:21 and 11:18-12:4. Officer Freeman testified further that Narcan is effective only for

treating opiate overdoses, and her testimony implied that her interaction with Penwell was -13-

hardly her first interaction with the victim of an overdose. See id. at 3:25-4:15, 12:13-

13:8 and 14:2-14:25. Thus, Officer Freeman had specific, articulable facts that

supported the rational inference that Penwell had overdosed on an opiate, because he

otherwise would not have responded to treatment with Narcan.

{¶ 25} Moreover, this court and others in the state have acknowledged what has

been called the “opioid crisis” or the “opioid epidemic.” See, e.g., State v. Miller, 2019-

Ohio-3294,

, ¶ 37 (2d Dist.); Acuity v. Masters Pharmaceutical, Inc., 1st

Dist. Hamilton No. C-190176,

; State v. Davis, 8th Dist. Cuyahoga

No. 105129,

. Irrespective of the fact that Penwell theoretically

could have taken a legitimately prescribed opiate and overdosed accidentally, the

information at Officer Freeman’s disposal, in the context of the widely publicized opioid

crisis, supported more than a mere, inchoate hunch that Penwell’s overdose might have

been the result of his consumption of an illicitly obtained opiate. See

;

Calabrese at ¶ 14. Penwell’s assignment of error is overruled.

III. Conclusion

{¶ 26} We hold that the trial court did not err by overruling Penwell’s motion to

suppress evidence obtained as a result of his encounter with two police officers at the

Springfield Regional Medical Center and the concomitant search of his person. The

police officers’ interaction with Penwell was a consensual encounter, and regardless of

the fact that the search occurred while Penwell lay on a bed in a corridor in the hospital’s

emergency department, his consent to the search was voluntary under the

circumstances. Penwell’s conviction is therefore affirmed. -14-

.............

WELBAUM, J., concurs.

DONOVAN, J., dissents:

{¶ 27} The “opioid epidemic” does not suspend the Fourth Amendment. I find our

prior jurisprudence in Weisgarber,

,

, controlling. The

interior corridor of the hospital emergency room, not accessible to the public or Penwell’s

family, was every bit as non-public as the private room in Weisgarber. It was not

established to be any “intrinsically less confining” than a hospital room, as the majority

suggests. This was clearly a non-consensual encounter.

{¶ 28} Furthermore, a sleepy and intoxicated patient, such as Penwell, who had

been administered multiple doses of Narcan, cannot be said to have voluntarily consented

to a search under the totality of the circumstances. I would reverse.

Copies sent to:

Ian Richardson Charles M. Blue Hon. Douglas M. Rastatter