State v. Morris

1

2022-Ohio-94

STATE OF OHIO Plaintiff-Appellee v. GAYLA MORRIS Defendant-Appellant

No. 2021-CA-31

Court of Appeals of Ohio, Second District, Clark

January 14, 2022

(Criminal Appeal from Common Pleas Court),, Trial Court Case No. 2020-CR-573

IAN A RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

KAREN S. MILLER, Atty. Reg. No. 0071853, Attorney for Defendant-Appellant

OPINION

DONOVAN, J.

{¶ 1} Gayla Morris appeals from her conviction following a plea of no contest, to one count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the fifth degree. She was sentenced to three years of community control. We will affirm the judgment of the trial court.

{¶ 2} Morris was indicted on October 6, 2020, and she pled not guilty on December 29, 2020. On February 26, 2021, Morris filed a motion to suppress, and the State filed a response. The trial court held a hearing on the motion on March 16, 2021.

{¶ 3} At the hearing, Trooper Anthony Guajardo testified that on October 17, 2019, at 2:50 a.m., he was on duty and pulled over a vehicle driven by Jon Bussard in which Morris was a passenger. Guajardo testified that he stopped Bussard "[b]ased off his driving behavior. When he saw me, he immediately pulled over and parked. And I ran the license plate and it came back expired." When asked what he observed when he made contact with Bussard, Guajardo responded that he observed signs of impairment, including "[an] odor of alcohol" and "bloodshot, glassy eyes." Guajardo also stated that, in his experience, when there is a "smell like airbag deployment, that normally goes along with meth, and I could smell that was coming from his breath." Guajardo testified that Bussard claimed to have been headed to a friend's house and to have stopped in front of the house, but Bussard could not identify "which one it was, what the number was," and Bussard was trying to get wi-fi on his phone to contact his friend.

{¶ 4} State's Exhibit 1, a copy of the dash-camera recording from Guajardo's cruiser, was played for the court. Guajardo testified that he initially investigated whether Bussard (Morris's boyfriend) was impaired, and while he did so, Morris remained in the vehicle. Guajardo also testified that he had asked Morris "not move around and try to hide stuff," but that she had nonetheless "tr[ied] to grab things to put into her purse" and had been very hesitant to get out of the vehicle.

{¶ 5} Guajardo stated that when he finished with Bussard and made contact with Morris, he told her multiple times that she did not have to answer any questions, and she was not restrained. Guajardo asked Morris if she had anybody who could pick her up from the site of the traffic stop; he did not remember her answer. Guajardo also offered to give Morris a ride to the police station at a point when she was not under arrest, and he allowed her to gather her belongings before she exited the vehicle. Once she got out of the vehicle, Guajardo frisked her for weapons before she got in the patrol car, as depicted in the video, as he did before he let anyone in the patrol car. At this point, he looked in her purse and saw "the little bagg[ie] that she was trying to conceal." Guajardo read Morris her Miranda rights shortly afterward.

{¶ 6} On cross-examination, Guajardo reiterated that, when he took Bussard to the patrol car, he told Morris not to move around or try to hide anything; he acknowledged that she was not free to leave at that point. He also discussed the presence of an unopened beer can in the car within reach of the driver, which violated the open container law, but stated that he did not have probable cause to search the car at the point he saw the beer can. Guajardo did not conduct any field sobriety tests on Bussard until more than half an hour into the stop.

{¶ 7} Regarding Guajardo's contact with Morris, he testified on cross-examination that he had offered Morris a ride to the highway patrol post, but that at no point after he "saw the way her eyes looked" was she free to leave on her own, because Guajardo thought she was under the influence and that her safety was his responsibility. Guajardo testified that Morris had answered his questions, but he denied that she had been "perfectly lucid." Although she had the options to wait for someone to come and get her or to get in a patrol car to go to the post, Guajardo acknowledged simply telling her that he had to take her somewhere. Guajardo testified that he had searched Morris's purse for weapons and had not asked her permission to search the purse; she was not under arrest at that time. As Guajardo described it, "the actual empty packet or empty bag" that gave him probable cause to search the vehicle "was not open in the purse," but was in Morris's hand because she had "pulled it out of her purse and held it in her hand" and she "was trying to hide it." Guajardo denied that he had planned to search the vehicle before Morris was removed from it, saying he "didn't have a legal way to get in that vehicle" and "wasn't going to search the vehicle."

{¶ 8} On redirect examination, when asked if, in his experience, weapons can be concealed in small bags or containers, Guajardo responded affirmatively, stating that "[t]here's a knife that's the same size as a credit card, lighters that can change into knives, phones that turn into guns."

{¶ 9} The trial court overruled Morris's motion to suppress. In its decision, the trial court described its reasoning as follows::

Before analyzing the specifics of the search, it is important to address the context in which the search occurred. The defendant was a passenger in a vehicle that was stopped by Trooper Guajardo. It was the driver, not her, that was the subject of his investigation. The driver was patted down, placed in handcuffs, advised of his rights, placed in the backseat of his cruiser, subjected to an HGN test, and arrested for OVI. The defendant, on the other hand, remained in the front passenger seat of a parked vehicle. Prior to the search, she was not patted down, placed in handcuffs, advised of her rights, placed in the backseat of the cruiser, subjected to an HGN test, or arrested. Trooper Guajardo testified that she was not free to leave, but that was because he was concerned about her safety. He told her, "You're not in trouble at all," and "You don't have to answer any of my questions." He told her he would have to take her somewhere, again for her safety, because he was not comfortable with her wandering the streets if in fact she was impaired. He ultimately decided that he would transport her to the post for safety.

As far as the defendant was concerned, Trooper Guajardo created a very non-coercive atmosphere. This is the context in which he sought consent to search her purse. He asked, "Can you open [your purse] up?" It appears from State's Exhibit #1 that she begins pulling items out from her purse while he shines his flashlight on it.

The Court finds that the State has proven by clear and convincing evidence that the defendant consented to Trooper Guajardo searching her purse. It is true that under [State v. Gonzalez, 842 F.2d 748 (5th Cir.1988)], "acquiescence cannot substitute for free consent," but the defendant did much more than merely acquiesce. While she did not respond to his question verbally, she started pulling items out of her purse, conduct that amounts to implied consent. * * * When he asked, "What about that little purse you pulled out," she opened it up. She knew she did not have to answer his questions, Trooper Guajardo having expressly told her so, therefore it would be reasonable to conclude that she knew she did not have to grant consent to search, meaning her consent was "freely and intelligently given 'uncontaminated by any duress or coercion, actual or implied.'" * * *

{¶ 10} The court concluded that Guajardo was legally permitted under the Fourth Amendment to conduct a warrantless search of Morris's purse because "she 'freely and intelligently' consented to it."

{¶ 11} After the trial court overruled her motion to suppress, Morris pled no contest and was convicted as described above.

{¶ 12} Morris appeals, asserting the following assignment of error:

DID THE WARRANTLESS SEIZURE OF DEFENDANT AND THE SUBSEQUENT WARRANTLESS SEARCH OF HER PURSE AFTER A PROLONGED STOP OF THE CAR SHE WAS RIDING IN AS A PASSENGER VIOLATE HER CONSTITUTIONAL RIGHTS, AND IF SO, SHOULD THE EVIDENCE HAVE BEEN SUPPRESSED?

{¶ 13} Morris argues that she did not voluntarily consent to the search of her purse after Trooper Guajardo told her that she was not free to leave and that he would be taking her to the patrol post. She argues that the trooper's need to search her purse for weapons was just an excuse or "a fishing expedition" for possible drugs, in violation of her constitutional rights under the Fourth and Fourteenth Amendments. According to Morris, "there was no need to search a closed purse that would be riding up front" in the patrol car, since she would not have access to the purse and, even if there had been a weapon in it, she could not have reached it.

{¶ 14} Morris acknowledges that there was a reasonable articulable suspicion that the driver had committed a traffic offense, but she contends that the traffic stop and her subsequent detention were "prolonged and became a warrantless seizure in violation of her constitutional rights." Morris argues that while "she complied with the trooper's directives and seemed cooperative, she was unaware of her right to refuse consent to the search of her purse." She contends that the trooper testified that he informed her that she did not have to speak with him, but he did not inform...