State v. Alderman

[Cite as State v. Alderman, 2016-Ohio-130.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ALEC D. ALDERMAN : Case No. 2015 AP 06 0025
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2014 CR 11 0313
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: January 13, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL J. ERNEST KEITH A. WARSTLER, JR.
Assistant Prosecuting Attorney 2859 Aaronwood Ave., Suite 102
125 E. High Avenue Massillon, Ohio 44646
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015 AP 06 0025 2
Baldwin, J.
{¶1} Appellant State of Ohio appeals a judgment of the Tuscarawas County
Common Pleas Court granting a motion to suppress evidence filed by appellee Alec D.
Alderman.
STATEMENT OF FACTS AND CASE
{¶2} Around midnight on August 28, 2014, Deputy Travis Stocker of the
Tuscarawas County Sheriff’s Department was on routine patrol in the area of River Road.
He observed a white car parked in a wooded area, near the Tuscarawas River. He also
saw what appeared to be a camp fire burning. Although he travels the road often, he had
never known of this area to be used for camping.
{¶3} Deputy Stocker stopped to investigate. As he approached the scene, he
noted three people sitting near the fire, and two men standing behind a tent. He asked
the group if they had permission to be on the property, and they responded that they did
not. They also indicated that they did not know who owned the property. Deputy Stocker
first checked the identification of the two men behind the tent, Damian Nelson and Jeffrey
Elmore, and discovered active arrest warrants for both of the men. After placing them
under arrest and placing them in the patrol car, he checked the identification of the
remaining three people: appellee, Chloe Kidd, and Rachel Hundley. There were no
warrants for these three individuals. At this point the officer believed that appellee, Kidd
and Hundley were free to leave, although in his opinion they probably felt like they could
not leave. His cruiser was blocking the white car, which belonged to appellee.
Tuscarawas County, Case No. 2015 AP 06 0025 3
{¶4} The deputy then walked behind the tent where Nelson and Elmore were
standing when he approached the scene earlier. When arresting Nelson and Elmore,
the deputy noted that they appeared to be under the influence of a drug because they did
not respond to him, and they were drowsy as if they might fall asleep standing up. On
the ground behind the tent, Deputy Stocker found a 20-ounce plastic bottle containing a
clear liquid, a baggie containing a green leafy substance, a joint, and coffee filters stuffed
inside a cigarette package.
{¶5} Deputy Stocker looked inside the car. Without opening the door or shining
a flashlight into the car, he by moonlight observed a clear hose which in his experience
is often used to make methamphetamine. The deputy also saw a pipe above the steering
wheel. The pipe was made from a broken light bulb wrapped in aluminum foil, and the
bottom was burned. The pipe was consistent with pipes the deputy had previously seen
that were used to cook methamphetamine.
{¶6} When the deputy asked appellee about the hose, appellee claimed in a
defensive manner that it was not his. Appellee, Kidd and Hundley all denied ownership
of the pipe. The deputy called a canine unit. The dog, Figo, alerted on the vehicle at the
trunk and the passenger door. A search of the vehicle produced the pipe with residue,
the clear hose, and a butane torch.
{¶7} Deputy Stocker went back to the tent. He lifted a corner of the tent near
where Elmore and Nelson had been standing and found a folded piece of paper
containing brown powder. Inside the tent, the officer found more coffee filters and 50-75
aluminum foil balls, which from his experience he knew to be of a type used when starting
the process of making methamphetamine. He also found a bag about 25 yards from the
Tuscarawas County, Case No. 2015 AP 06 0025 4
tent which contained items used in the manufacture of methamphetamine: opened cold
medicine packets, muriatic acid, Drano, and pipe cutters.
{¶8} Elmore, appellee, Nelson and Kidd were indicted for illegal assembly or
possession of chemicals for the manufacturing of drugs (R.C. 2925.041(A)) and illegal
use or possession of drug paraphernalia (R.C. 2925.14). Appellee filed a motion to
suppress evidence. Following a hearing, the court granted the motion to suppress,
holding that “the encounter between the law enforcement agents of the State of Ohio and
these individual Defendants on 8/28/2014 should have been terminated once certain
individuals were arrested on outstanding warrants and after the investigating law
enforcement officer(s) did not announce that these three remaining Defendants at the
location in question were under the arrest for the crime of Criminal Trespass.” Judgment,
June 2, 2015, page 3.
{¶9} The State of Ohio appeals, assigning a single error:
{¶10} “THE APPELLEE DID NOT HAVE A REASONABLE EXPECTATION OF
PRIVACY AS A TRESPASSER.”
{¶11} The State argues that appellee lacks standing to challenge the search
because he was a trespasser without a reasonable expectation of privacy. The State
further argues that the deputy had a reasonable suspicion of criminal activity to justify the
detention of appellee, Kidd and Hundley at the scene.
{¶12} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
Tuscarawas County, Case No. 2015 AP 06 0025 5
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App. 3d 486, 597 N.E.2d
1141(1991); State v. Guysinger, 86 Ohio App. 3d 592, 621 N.E.2d 726(1993). Second, an
appellant may argue the trial court failed to apply the appropriate test or correct law to the
findings of fact. In that case, an appellate court can reverse the trial court for committing
an error of law. State v. Williams, 86 Ohio App. 3d 37, 619 N.E.2d 1141 (1993). Finally,
assuming the trial court's findings of fact are not against the manifest weight of the
evidence and it has properly identified the law to be applied, an appellant may argue the
trial court has incorrectly decided the ultimate or final issue raised in the motion to
suppress. When reviewing this type of claim, an appellate court must independently
determine, without deference to the trial court's conclusion, whether the facts meet the
appropriate legal standard in any given case. State v. Curry, 95 Ohio App. 3d 93, 641
N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App. 3d 623, 620 N.E.2d 906 (1993);
Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.
690, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996), “[A]s a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal.”
{¶13} The Fourth Amendment protects persons from “unreasonable searches and
seizures” by the government. State v. Jackson, 102 Ohio St. 3d 380, 2004-Ohio-3206,
811 N.E.2d 68, ¶ 8, citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of
Appeals, 63 Ohio St. 3d 354, 364, 588 N.E.2d 116 (1992). Section 14, Article I of the Ohio
Constitution is interpreted to provide the same protections as the Fourth Amendment.
State v. Robinette, 80 Ohio St. 3d 234, 238, 685 N.E.2d 762 (1997). Evidence seized in
violation of the Fourth Amendment will be suppressed pursuant to the exclusionary rule.
Jackson, 2004-Ohio-3206 at ¶ 8, 102 Ohio St. 3d 380, 811 N.E.2d 68. However, the
Tuscarawas County, Case No. 2015 AP 06 0025 6
defendant must have a reasonable expectation of privacy in the evidence seized to have
standing to challenge the search or seizure. Id., citing Alderman v. United States, 394
U.S. 165, 171-172, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969). The defendant bears the burden
of establishing that he had a legitimate expectation of privacy in the area searched. State
v. Dennis, 79 Ohio St. 3d 421, 426, 683 N.E.2d 1096 (1997).
{¶14} Ownership or possession of incriminating evidence does not alone justify a
finding of standing. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633
(1980). Instead, the pivotal inquiry is “whether [the defendant] had an expectation of
privacy in the area searched.” (Emphasis added.) United States v. Salvucci, 448 U.S. 83,
93, 100 S. Ct. 2547, 2553, 65 L. Ed. 2d 619, 629 (1980). While an overnight guest in a
home may claim the protection of the Fourth Amendment, one who is merely present with
the consent of the homeowner may not. State v. Renner, 12th Dist. Clinton No. CA2002–
08–033 2003-Ohio-6550, ¶10, citing Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469,
471, 142 L. Ed. 2d 373 (1998).
{¶15} Further, when an individual intentionally or voluntarily places his or her
property in a place where he has no legitimate expectation of privacy, such as an
abandoned shack or as a trespasser upon another’s property, he has no legitimate
reasonable expectation that they will remain undisturbed and has no standing or right to
contest a search. United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978). He has
no more expectation of privacy than if he had placed the item in plain view, and he cannot
object to its seizure. Id.
{¶16} The trial court found that the officer did not have authority to detain Hundley,
Kidd and appellee at the scene without placing them under arrest for trespass. The court
Tuscarawas County, Case No. 2015 AP 06 0025 7
held that the police encounter with these three individuals had to terminate at the point
where the officer placed Elmore and Nelson under arrest.
{¶17} However, the evidence of drug activity seized from the ground behind the
tent was not seized as a result of the continued detention of appellee, Kidd and Hundley.
Whether or not they were free to leave or were lawfully or unlawfully detained, the officer
was not required to leave the premises, as neither appellee nor the other three individuals
had a reasonable expectation of privacy in the real property. All of the individuals present
at the site told the officer that they did not know who owned the property and that they did
not have permission to be there. Nothing in the record suggests that appellee had a
reasonable expectation of privacy in the area searched. Therefore, appellee lacked
standing to object to the search of the real property.
{¶18} In addition, nothing in the record indicates that appellee had any expectation
of privacy in the tent or the bag that was searched. As the items were voluntarily left in
an area in which appellee did not have an expectation of privacy, he lacks standing to
challenge the seizure and search.
{¶19} The car belonged to appellee. Before searching the car, the deputy found
on the ground behind the tent a baggie of green leafy matter, a joint, and a cigarette
packet of coffee filters, which in the deputy’s experience was not normal and had a
connection to meth labs. The deputy further had noted that Nelson and Elmore appeared
under the influence of a drug when he arrested them on the outstanding warrants. At this
point in time, the deputy had a reasonable suspicion of criminal activity to detain appellee
and the other two individuals remaining at the scene. See Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Tuscarawas County, Case No. 2015 AP 06 0025 8
{¶20} “As a general rule, one does not have a reasonable expectation of privacy
in common or public areas. When others have access to an area, the accused assumes
the risk that others will observe the items left in open view. While the accused may have
a subjective expectation of privacy in his car while parked in a business lot [or a public
street], it is not one * * * society is prepared to recognize as reasonable.” State v. Claytor,
85 Ohio App. 3d at 633, 620 N.E.2d at 913 (Harsha, P.J., concurring); State v. Harris
(1994), 98 Ohio App. 3d 543, 649 N.E.2d 7. Appellee had parked his car in an area in
which he had no reasonable expectation of privacy, as he did not have permission to be
there nor did he know who owned the property. Therefore, as to the hose and the pipe
which were left in plain view in his car, appellant did not have a reasonable expectation
of privacy. Further, the observation of these items gave the officer further reasonable
suspicion of criminal activity to justify appellee’s detention at the scene.
{¶21} The use of a drug detection dog does not constitute a “search” and an officer
is not required, prior to a dog sniff, to establish either probable cause or a reasonable
suspicion that drugs are concealed in a vehicle. State v. Mullins, 5th Dist. Ashland No.
05 COA 2, 2006-Ohio-821, ¶11. It is well-established that the use of a drug detection dog
in an otherwise lawfully detained vehicle does not arouse any search and seizure concern
under either the United States Constitution or the Ohio Constitution. Id. When the canine
unit arrived, the vehicle was otherwise lawfully detained. After the canine alerted on the
vehicle, the deputy had probable cause to search the vehicle. See, e.g, State v. Carlson,
102 Ohio App. 3d 585, 600, 657 N.E.2d 591, 601 (9th Dist. Medina 1995).
{¶22} The court erred in granting the motion to suppress.
Tuscarawas County, Case No. 2015 AP 06 0025 9
{¶23} The assignment of error is sustained. The judgment of the Tuscarawas
County Common Pleas Court is reversed. This case is remanded to that court for further
proceedings according to law. Costs are assessed to appellee.
By: Baldwin, J.
Delaney, J. concur.
Hoffman, P.J. concurs
separately
Tuscarawas County, Case No. 2015 AP 06 0025 10
Hoffman, P.J., concurring
{¶24} I concur with the majority Appellee did not have a reasonable expectation
of privacy as to any item laying out in the open area. I am not persuaded Appellee did
not have a reasonable expectation of privacy as to items found in or under the tent nor to
items in his vehicle. I do not believe the fact Appellee did not have express permission
from the owner of the property to be there does not automatically result in a trespass –
particularly when ownership of the land is never established.
{¶25} The deputy testified there were no, no-trespassing signs in the area. I am
not convinced mere presence of the property of another automatically results in an
abandonment of all expectation of privacy as to any and all items brought onto the
property.
{¶26} Nevertheless, I concur in the result reached by the majority based upon the
evolving reasonable suspicion of criminal activity under the facts of this case.1
1Though argued, Appellant did not separately assign as error the trial court’s decision
on this ground.