State v. Hamilton

^* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1997), 80 Ohio St.3d 1466,687 N.E.2d 295. The state of Ohio appeals from an order of the trial court suppressing evidence seized by police officers and statements obtained from the appellee, Rodney Hamilton. The appeal is taken pursuant to Crim. R. 12 (J).

On November 30, 1995 at approximately 10:00 p.m., Dayton Police Officer Joe Pence, Jr. was patrolling the area of S. Broadway Street in Dayton, Ohio. As a member of the Neighborhood Strike Force, Pence was working undercover in plain clothes and in an unmarked car. Pence observed a black Chevy Impala stopped in front of the red light at the intersection of S. Broadway and Germantown Streets. Pence immediately recognized the car as having been involved in a drug deal on November 17, 1995. Pence recognized the car generally and he specifically remembered the license plate number. In that earlier situation, Pence had accompanied an informant to the area of 124 S. Williams Street to buy heroin. His informant was directed from inside that house to the black Impala where a man described as being six feet tall and weighing two hundred pounds retrieved heroin from it.

Pence and a fellow officer followed the car as it traveled from S. Williams to Broadway to northbound I-75. When the Impala got off the interstate at Main Street, it failed to stop for the red light at the exit and continued north on Main. Pence radioed for uniform crews to stop the Impala for the traffic violation, and, as a result, Officers Aurrichio and Wiesman stopped the car in front of 1900 Riverside Drive.

Driving the car was appellee, Rodney Hamilton, and his passenger was his girlfriend Loretta Taylor, who was the owner of the vehicle. Registration data showed that she lived at 1929 Riverside Drive.

Pence wanted to ask Taylor if she knew that her car had been used in a drug sale. Pence testified that he approached her in the cruiser where one of the uniformed officers had placed her, and there Taylor told Pence that she was unaware of the drug deal of November 17, 1995. She consented, in writing, to a search of her car.

In that search, Officer Aurrichio found a plastic Baggie containing twenty-two empty pharmaceutical gelcaps. From his experience in the drug unit, Pence's suspicions were aroused by the gelcaps, and he asked Taylor what she knew about them. She denied any knowledge of them. She did, however, consent, in writing, to the search of her nearby apartment.

Pursuant to Taylor's consent, Pence and other Dayton officers accompanied her to 1929 Riverside Drive, where she let them in and sat in the living room while they searched the apartment. Taylor had told Pence that she was the only tenant on the lease of the one-bedroom apartment. However, appellee appeared at the apartment after the search had begun and told officers that he also lived there. Making no comment on the search in progress and voicing no objection to it, appellee took a seat next to Taylor and waited. In the apartment, Detective Louderback found a velour Crown Royal bottle bag in the pocket of a man's white suit coat which hung in a closet. In the cloth bag was a plastic Baggie. In the Baggie were fourteen individual packets of suspected cocaine. There were also three foil bindles of suspected heroin. Sergeant Willis of the DPD, who was supervising the search, was advised of the find, and he temporarily stopped the search. He had decided to obtain a search warrant.

Both appellee and Taylor were informed of the find, and Officer Kraft read them their rights from a card. During the reading of the rights, appellee volunteered that the drugs were his alone and that Taylor was ignorant of them. Thereafter, appellee was arrested for aggravated trafficking in cocaine. On his way out of the apartment, appellee told Det. Del Rio that the white suit jacket was his. A search warrant was obtained for the premises, and the search continued but no additional contraband was found.

In the state's first assignment, it contends that the trial court erred to its prejudice by failing to find that the appellee had no standing to challenge the search of Loretta Taylor's car and apartment, by failing to apply the principle of shared authority to consent to the search.

The appellee does not dispute that he was driving Loretta Taylor's car at the time he was stopped.

In granting the appellee's suppression motion, the trial court found that Taylor's consent to search her car and apartment was invalid because it was the product of an unlawful detention. Further, the court found that the state had not established that her waiver was voluntary and knowledgeable. The court found that Taylor was merely submitting to the apparent authority of the numerous police officers in the immediate area of the cruiser in which she was seated.

Suppression of the fruit of a Fourth Amendment violation can be urged only by those whose rights were violated by the search itself. Standing is not achieved solely by a person's status as a defendant or by introduction of damaging evidence. Alderman v.United States (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176.

Consequently, before a court may review the reasonableness of police behavior, the defendant must be able to demonstrate that his Fourth Amendment right to privacy was violated. In Rakas v.Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, defendants were passengers in an automobile that had been lawfully stopped on reasonable suspicion but unlawfully searched. The search uncovered a sawed-off rifle under the passenger seat and a box of rifle shells in a locked glove compartment, which helped to link the defendants to a robbery. The defendants claimed standing because of their lawful presence as passengers.

The Rakas court held that because the defendants were legitimately present in the vehicle did not give them a legitimate expectation of privacy in the searched vehicle. The court held that they had neither a property nor a possessory interest in the automobile, nor did they have a legitimate expectation of privacy in the glove compartment or the area under the seat of the car in which they were merely passengers. Similarly, the Ohio Supreme Court has held that one who is in lawful possession of a vehicle, though not the title owner, has a legitimate expectation of privacy in the vehicle and standing to assert a Fourth Amendment claim arising out of the unlawful search of the vehicle. State v. Carter (1994), 69 Ohio St.3d 57,630 N.E.2d 355; see, also State v. Hines (1993), 92 Ohio App.3d 163, 634 N.E.2d 654.

Loretta Taylor testified that she lived with the appellee and she permits him to use her car all the time. There was no evidence presented to refute her testimony on this matter. We must therefore conclude that the appellee had standing to object to the search of the vehicle he was driving at the time he was stopped by the police. The first assignment of error is overruled.

In the state's second assignment, the state argues:

"The trial court erred to the prejudice of the state by ruling that the ``continued detention' of Loretta Taylor was illegal and invalidated the recovery of the evidence and the statement obtained by police against appellee."

The trial court held that from the moment Taylor was removed from her car and placed in the cruiser her detention was unlawful and any consent she gave was clearly invalid.

Recently, the United States Supreme Court held that a police officer may, as a matter of course, order passengers of a lawfully stopped automobile to exit the vehicle. Officer making the traffic stop may order passengers to get out of the car pending completion of stop. Maryland v. Wilson (1997),519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41.

It is firmly established that the detention of an individual by a law enforcement officer must be justified by specific and articulable facts indicating that the detention was reasonable.Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Once the reason for the detention ends, the citizen detained must be allowed to continue on his way. State v. Chatton (1984),11 Ohio St.3d 59, 11 OBR 250, 463 N.E.2d 1237. An officer may not, without additional cause, detain a person stopped for a traffic offense or equipment violation longer than necessary to issue a citation. State v. Foster (1993), 87 Ohio App.3d 32, 621 N.E.2d 843.

Since Officer Pence stated that he had observed an individual sell heroin from the stopped vehicle two weeks earlier, it was reasonable for him to obtain the identity of the occupants of the vehicle and to do a protective search for weapons under the front seats of the vehicle.

The trial court specifically noted that it found Taylor's testimony compelling on the issues of detention and consent. She testified that the police searched the trunk of her car and recovered the glassine capsules before they asked her to sign a consent to search the vehicle. She testified that one of the officers who requested she sign the consent form stated, "You know we can seize your car and make you move." She said that the officer said that because he found the clear capsules in the trunk of the car. She testified that there were four police officers present at the scene.

On cross-examination she testified that she gave her consents to the searches freely and voluntarily because she had nothing to hide in the car or in her apartment.

The burden rests upon the prosecution to establish that the consent was voluntarily given, a burden which is not satisfied by showing a mere submission to a claim of lawful authority. The question of whether a consent to a search is in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte (1973), 412 U.S. 218,93 S.Ct. 2041, 36 L.Ed.2d 854.

We cannot say that the record does not support the trial court's conclusion that the state of Ohio had not met its burden of proving that Taylor's consents to search her car and apartment were voluntary.

The trial court specifically found Taylor's testimony "compelling." She said that the search of her car took placebefore she gave consent. She said that she consented to the search of her apartment after the officer told her she could possibly lose her car and be forced to move.

The trial court also found that statements given by the appellee should be suppressed as the product of the illegal search. Evidence may be excluded if it is derived from police illegality that amounts to a constitutional violation. The appellee's statement was given immediately after the police searched appellee's clothing in the closet he shared with Taylor. The statement was obtained as a direct consequence of the illegal search. New York v. Harris (1990), 495 U.S. 14, 110 S.Ct. 1640,109 L.Ed.2d 13.

The appellant's assignments of error are overruled. The judgment of the trial court is affirmed.

Judgment affirmed.

WOLFF, J., concurs.

RICHARD K. WILSON, J., dissents.

RICHARD K. WILSON, J., retired, of the Second Appellate District, sitting by assignment.