State v. Morton ( 2014 )

[Cite as State v. Morton, 2014-Ohio-1434.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100267
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARIUS MORTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-571985
BEFORE: Boyle, A.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: April 3, 2014
[Cite as State v. Morton, 2014-Ohio-1434.]
ATTORNEY FOR APPELLANT
Ruth R. Fischbein-Cohen
3552 Severn Road
#613
Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Shannon Millard
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Morton, 2014-Ohio-1434.]
MARY J. BOYLE, A.J.:
{¶1} Appellant, Darius Morton, appeals his conviction for possession of
a controlled substance for which he was sentenced to one year of community
control. Appellant claims his attorney was constitutionally deficient,
mandating a new trial. After a thorough review of the record and law, we
disagree and affirm his conviction.
Procedural History and Factual Background
{¶2} Appellant was charged with one count of drug possession in
violation of R.C. 2925.11(A). He pled not guilty, and the case proceeded to a
jury trial on June 17, 2013, where the following facts were presented.
{¶3} Appellant was driving in Cleveland, Ohio, with two passengers in
the car. Officer Aaron Reese of the Cleveland Police Department observed
appellant commit a minor traffic violation when appellant turned without
signaling. Officer Reese instigated a stop of appellant’s vehicle. Appellant
provided his driver’s license and, upon entering information into the police
computer system, Officer Reese learned that appellant had a suspended
driver’s license. Officer Reese indicated that driving with a suspended
license was a violation of Cleveland Codified Ordinances 435.07, a
first-degree misdemeanor. Officer Reese then asked appellant to exit the
vehicle, and appellant was placed under arrest.
[Cite as State v. Morton, 2014-Ohio-1434.]
{¶4} A subsequent search of appellant’s person revealed a single pill in
a plastic bag. Based on the size, color, and markings on the pill, Officer Reese
believed it to be methylenedioxy-methamphetamine (“MDMA”), better known
as ecstacy. Officer Reese indicated the search he conducted was done
because appellant was under arrest.
{¶5} A technician working at the Cuyahoga County Regional Forensic
Science Laboratory, Nicole Pride-Allen, testified that the pill was not, in fact,
MDMA. It was actually benzothiophenylcyclohexyl (“BTCP”), a schedule one
controlled substance that is one of a number of different drugs sold as ecstacy.
{¶6} At the close of trial, the jury found appellant guilty of one count of
drug possession. The trial court ordered a presentence investigation report
at appellant’s request and set sentencing for July 17, 2013. On that date, the
court heard from appellant, his attorney, and the state. The court then
ordered appellant to be placed on community control for one year and
suspended his driver’s license for six months. Appellant then appealed to
this court assigning one error:
[Appellant] was deprived effective assistance of counsel, by trial
counsel not objecting to the search of his person, absent probable
cause, thereby preventing the exclusion of the fruit of the illegal
search.
[Cite as State v. Morton, 2014-Ohio-1434.]
Ineffective Assistance of Counsel
{¶7} Appellant claims that trial counsel failed him by not filing a
motion to suppress the evidence discovered during an illegal search of his
person. This court has recently set forth the appropriate standard in a
similar case:
To establish ineffective assistance of counsel, a defendant
must show that counsel’s representation “fell below an objective
standard of reasonableness,” and “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” State v. Sanders,
94 Ohio St.3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18 (2002),
citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989),
quoting Strickland at 694.
State v. Johnson, 8th Dist. Cuyahoga No. 99656, 2013-Ohio-5430, ¶ 8 (dealing
with the failure to file a suppression motion for a witness identification that
did not comply with R.C. 2933.83).
{¶8} Here, appellant argues that a suppression motion would have
undoubtedly changed the outcome of the case because the search incident to
his arrest was improper.
{¶9} The Fourth Amendment generally prohibits unreasonable
searches and seizures with limited exceptions. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Searches conducted outside these
exceptions and without the benefit of a warrant are per se unreasonable.
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The
United States and Ohio Supreme Courts have recognized that a motor vehicle
stop based on the observance of a traffic violation is reasonable even where
the officer performing the stop possesses an ulterior motive. Whren v.
United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Dayton v.
Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, 665 N.E.2d 1091.
{¶10} These holdings mean the present case is distinguishable from
others where this court has found ineffective assistance in failing to file a
suppression motion based on a search that exceeded the lawful parameters of
a stop. See, e.g., State v. Jenkins, 8th Dist. Cuyahoga No. 91100,
2009-Ohio-235. Here, the stop was based on the observance of a traffic
violation. It was then immediately discovered that appellant’s driver’s
license had been suspended. Appellant was lawfully placed under arrested
and searched incident to that arrest.
{¶11} This type of exception to the warrant requirement “allows officers
to conduct a search that includes an arrestee’s person and the area within the
arrestee’s immediate control. This exception ‘derives from interests in officer
safety and evidence preservation that are typically implicated in arrest
situations.’” (Citations omitted.) State v. Smith, 124 Ohio St.3d 163,
2009-Ohio-6426, 920 N.E.2d 949, ¶ 11. Officer Reese found the pill while
searching appellant’s person after placing him under arrest. This fits
squarely within the search-incident-to-arrest exception.
{¶12} Contrary to appellant’s arguments, the stop was not
impermissibly prolonged, and the search did not exceed the parameters of
permissible actions of the state in subjecting a person to a search. This case
is very similar to Erickson, and it dictates that any suppression motion would
not have been successful because the stop was reasonable. The pill found as
a result of the search incident to a lawful arrest was not unlawfully obtained
by the police, and trial counsel was not ineffective for failing to file a futile
motion.
{¶13} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
[Cite as State v. Morton, 2014-Ohio-1434.]