State v. Wilson

[Cite as State v. Wilson, 2018-Ohio-2377.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170408
TRIAL NO. B-1607098B
Plaintiff-Appellant, :
O P I N I O N.
vs. :
SENECA WILSON, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 20, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} The state of Ohio has appealed from the trial court’s entry granting
defendant-appellee Seneca Wilson’s motion to suppress. We hold that the trial court
erred in granting the suppression motion, and accordingly reverse its decision.
Factual Background
{¶2} Wilson was arrested after police discovered a marijuana cigarette, a
digital scale, and a bag of marijuana in his vehicle. The grand jury returned an
indictment charging Wilson with two counts of trafficking in marijuana and one
count of possession of marijuana.
{¶3} Wilson filed a motion to suppress all evidence that the state sought to
introduce. At the suppression hearing, Cincinnati Police Officer Andrew Fusselman
testified that he was investigating a potential drug transaction between two
individuals, when Wilson approached him and asked what the police were doing.
Officer Fusselman immediately noticed a strong odor of burnt marijuana on Wilson’s
person. When asked why he smelled of marijuana, Wilson stated that there was a
joint in his car, which was parked nearby. Officer Fusselman’s partner saw a
marijuana cigarette in the center console cup holder of Wilson’s vehicle.
{¶4} Officer Fusselman asked Wilson if the officers would find anything else
in the vehicle, and Wilson stated that the car also contained a bag of marijuana.
Wilson unlocked his vehicle for the officers to search. The marijuana cigarette, a
digital scale, and a plastic bag containing marijuana were found in the car. Officer
Fusselman then searched Wilson’s person, but nothing was recovered. Officer
Fusselman testified that, following the personal search, he was informed by another
2
OHIO FIRST DISTRICT COURT OF APPEALS
officer that shortly before Wilson’s interaction with Officer Fusselman, the officer
had conducted a pat-down search of Wilson. During that pat-down, the officer had
found, but had not confiscated, a large amount of cash on Wilson. That officer had
permitted Wilson to leave the scene of the investigation, and witnessed Wilson walk
down the street and speak with another individual.
{¶5} After receiving this information, Officer Fusselman walked down the
street and spoke to the individual identified by his fellow officer. When asked by
Officer Fusselman what Wilson had given to him, the individual stated that Wilson
had given him money. He gave that money, approximately $2,700, to Officer
Fusselman.
{¶6} The trial court granted Wilson’s motion to suppress. It’s entry
included the following findings:
The Court finds that one of the officers frisked the Defendant
and found nothing on him. This was a valid Terry stop at that point.
They detained him for approximately 15 more minutes. This was
illegal because nothing was found on the Terry pat-down (frisk). The
Court finds that one of the officers then saw something in Defendant’s
car, which appeared to be, according to the officer, a marijuana
cigarette.
The statements, the evidence, including marijuana found in the
car and the scale found in the car, are the result of an illegal search due
to the illegal detention.
The money was seized also as a result of an illegal search of a
third party because it was based on a statement made by the
3
OHIO FIRST DISTRICT COURT OF APPEALS
Defendant to the officers while he was being detained but before he
was given a Miranda warning.
Although the marijuana cigarette was in plain view of one of the
officers, the car was not unlocked initially. So a search warrant was
necessary to search the vehicle at that point. The officer testified that
the car was unlocked by the Defendant, but, according to his
testimony, there is no mention that he asked the Defendant for
consent to search the vehicle.
{¶7} The state argues in a single assignment of error that the trial court
erred in granting Wilson’s motion to suppress. Our review of the trial court’s ruling
on a suppression motion involves a mixed question of law and fact. We must accept
the trial court’s findings of fact if they are supported by competent and credible
evidence, but we review de novo the trial court’s application of the law to the relevant
facts. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
We will not defer to the trial court’s factual findings where those findings are “clearly
erroneous.” State v. Ward, 1st Dist. Hamilton No. C-160560, 2017-Ohio-8141, ¶ 22.
Erroneous Finding of Fact
{¶8} The trial court found that Wilson had initially been subjected to a
lawful Terry stop, but had then been illegally detained for approximately 15 minutes
after no contraband had been found during the Terry stop. The trial court’s
subsequent legal conclusions were based on its determination that Wilson had been
illegally detained.
{¶9} This factual finding by the trial court was clearly erroneous. See Ward
at ¶ 22. Officer Fusselman testified that he had been informed by a fellow officer that
4
OHIO FIRST DISTRICT COURT OF APPEALS
a pat-down search had been conducted on Wilson, and that Wilson had been
released following the pat-down. The record unequivocally indicates that Wilson
then physically left the scene of the investigation and walked farther down the street.
After speaking to a third party, Wilson then voluntarily returned to the scene of the
investigation and initiated a conversation with Officer Fusselman. The record is
devoid of support for the trial court’s finding that Wilson had been detained for 15
minutes following the initial Terry stop.
Search of the Automobile
{¶10} Unreasonable searches and seizures are prohibited by the Fourth
Amendment to the United States Constitution. Accord Ohio Constitution, Article 1,
Section 14. Unless a recognized exception applies, warrantless searches are per se
unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d
576 (1967). Under the automobile exception to the warrant requirement, officers are
permitted to “conduct a warrantless search of a lawfully stopped automobile if they
have probable cause to believe that the vehicle contains contraband.” State v. Jones,
1st Dist. Hamilton No. C-130069, 2014-Ohio-1201, ¶ 6, citing United States v. Ross,
456 U.S. 798, 799, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).
{¶11} Here, the trial court specifically found that a marijuana cigarette in the
center console of Wilson’s vehicle had been in the plain view of one of the officers.
The observation of the marijuana cigarette provided probable cause for the officers to
believe that the vehicle contained contraband and to conduct a warrantless search
under the automobile exception to the warrant requirement. See State v. Hamilton,
1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 16 (officers were
justified in searching a vehicle after they saw marijuana inside the vehicle); Ward,
5
OHIO FIRST DISTRICT COURT OF APPEALS
1st Dist. Hamilton No. C-160560, 2017-Ohio-8141, at ¶ 18 (recognizing that officers
have probable cause to search an automobile where they observe contraband in plain
view while conversing with the vehicle’s occupants).
{¶12} In addition to the automobile exception, the warrantless search of
Wilson’s vehicle was also supported by the plain-view exception to the warrant
requirement. The warrantless seizure of an object in the plain view of an officer will
not violate the Fourth Amendment where “(1) the officer did not violate the Fourth
Amendment in arriving at the place from which the object could be plainly viewed,
(2) the discovery of the evidence was inadvertent, and (3) its incriminating nature
was immediately apparent.” State v. Mitchem, 1st Dist. Hamilton No. C-130351,
2014-Ohio-2366, ¶ 10. Here, officers were lawfully investigating a drug transaction
that occurred in close proximity to Wilson’s vehicle; their discovery of the marijuana
cigarette was inadvertent and occurred as they were investigating the separate drug
transaction; and the incriminating nature of the marijuana cigarette was
immediately apparent, as it was in the plain view of one of the officers.
Consequently, the warrantless search of Wilson’s vehicle was not in violation of the
Fourth Amendment.
{¶13} Once the officers viewed the marijuana cigarette inside the vehicle,
they were justified in searching it. That the vehicle’s doors were locked is irrelevant,
and the trial court’s conclusion that the locked doors required the officers to obtain a
warrant was in error. The trial court’s determination that Wilson’s consent was
necessary before the vehicle could be searched was also erroneous. The officers had
probable cause to conduct a warrantless search of the vehicle under both the
6
OHIO FIRST DISTRICT COURT OF APPEALS
automobile and plain-view exceptions to the warrant requirement, and they did not
additionally need Wilson’s consent prior to executing the search.
Suppression of Money
{¶14} The trial court suppressed the money that Wilson had given to a third
party, stating in its entry that “[t]he money was seized also as a result of an illegal
search of a third party because it was based on a statement made by the Defendant to
the officers while he was being detained but before he was given a Miranda warning.”
{¶15} Officer Fusselman did not speak with Wilson about the individual
down the street until after he had learned of Wilson’s interaction with that individual
from a fellow officer. Because Officer Fusselman had an independent source that led
him to discover the money from the third party, the money was not excludable as
fruit of the poisonous tree, as the trial court had determined. See State v. Carter, 69
Ohio St. 3d 57, 67, 630 N.E.2d 355 (1994) (the exclusionary rule is inapplicable where
the police have an independent source for discovery of the evidence).
Conclusion
{¶16} The trial court erred in suppressing evidence found during the
warrantless search of Wilson’s automobile because the search was valid under both
the automobile and plain view-exceptions to the warrant requirement. It
additionally erred in suppressing the money that Wilson had handed off after leaving
the scene of the investigation because the money was obtained based on information
received from an independent source. Consequently, the state’s assignment of error
is sustained.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} The trial court’s judgment granting Wilson’s motion to suppress is
reversed, and this cause is remanded for further proceedings consistent with the law
and this opinion.
Judgment reversed and cause remanded.
CUNNINGHAM, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
8