State v. Mock

[Cite as State v. Mock, 2013-Ohio-874.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-066
- vs - :
CLIFFORD D. MOCK, :
Defendant-Appellant. :
Criminal Appeal from the Court of Common Pleas, Case No. 11 CR 000731.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Clifford D. Mock, appeals the judgment of the Lake County
Court of Common Pleas denying his motion to suppress evidence based on an alleged
unconstitutional stop. Appellant also contends he suffered ineffective assistance of
counsel in that other issues which would have changed the outcome of his case were
not argued in his suppression motion. For the following reasons, the judgment is
affirmed.
{¶2} On November 19, 2011, at approximately 2:45 a.m., Mentor Police Officer
Christian Lawrence observed a green Ford Explorer repeatedly cross the center-lane
while traveling north on a clear and dry two-lane road. Believing the driver may be
intoxicated, the officer initiated a traffic stop of the automobile. As the officer
approached, he observed two occupants in the vehicle. Appellant was the front-seat
passenger, and one Miss Sopher was the driver. During the stop, Miss Sopher
provided a license and established herself as the valid owner of the vehicle. Appellant
was also asked for his information. Appellant did not provide identification but, instead,
provided a fictitious name. When asked again, appellant provided a portion of his name
before finally giving his complete name. Officer Lawrence discovered an outstanding
warrant for appellant’s arrest; thus, appellant was placed under arrest and positioned in
the back of the police cruiser.
{¶3} After appellant’s arrest, Officer Lawrence, now with the help of a backup
officer, again approached the SUV where Miss Sopher remained. The officers asked
Miss Sopher out of the vehicle. Miss Sopher inquired into the status of appellant.
Officer Lawrence explained that appellant had been arrested due to an active warrant.
Officer Lawrence then asked whether appellant may have left something in Miss
Sopher’s automobile. Miss Sopher, seemingly surprised at the information involving her
former passenger, informed Officer Lawrence she did not know whether appellant had
left anything in her vehicle. She informed the officers they were free to check her
vehicle. The officers searched her automobile, finding in the backseat a partially
opened duffle bag with a clear plastic bag in a twisted knot protruding outward. Officer
Lawrence, pushing the bag open, discovered narcotics and drug paraphernalia. The
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duffle bag also contained what appeared to be work-related materials, including papers
and folders. Officer Lawrence questioned Miss Sopher about the bag and asked her if it
contained anything that should not be there. Officer Lawrence explained that Miss
Sopher appeared puzzled at the questioning. Miss Sopher, without hesitation,
explained the bag belonged to her and was her work bag. Officer Lawrence then
questioned appellant about whether anything illegal was in the vehicle. Officer
Lawrence testified that appellant declared “it’s all mine,” though appellant did not specify
the item or items to which he referred. Appellant was subsequently charged with
possession of heroin and possession of criminal tools, both with forfeiture specifications.
{¶4} Appellant filed a motion to suppress the evidence. In his motion, appellant
did not contest the initial stop. Instead, appellant contended Officer Lawrence had no
reason to ask appellant for identification—essentially, that it was an unlawful continued
detention unrelated to the purpose of the initial stop (suspicion of driver intoxication).
Appellant urged the court to suppress all further evidence and statements from the stop.
The trial court held a suppression hearing during which Officer Lawrence testified to the
above-framed factual points. Upon consideration, the trial court denied the motion to
suppress.
{¶5} Appellant now appeals and asserts two assignments of error for
consideration by this court. Appellant’s first assignment of error states:
{¶6} “The trial court erred when it denied the Defendant-Appellant’s motion to
suppress in violation of his due process rights and rights against unreasonable search
and seizure as guaranteed by Sections 10 and 14, Article I of the Ohio Constitution and
the Fourth and Fourteenth Amendments to the United States Constitution.”
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{¶7} In his first assignment of error, appellant does not contest the trial court’s
suppression ruling. Instead, appellant raises new arguments. He contends that the
automobile search constituted an invalid search incident to arrest and that Miss
Sopher’s consent to search her automobile was involuntary. Appellant acknowledges
these arguments were never advanced before the trial court in any capacity but, rather,
maintains the trial court committed plain error in failing to exclude the evidence on these
grounds.
{¶8} A motion to suppress evidence “is the proper vehicle for raising
constitutional challenges based on the exclusionary rule[.]” State v. French, 72 Ohio
St.3d 446, 449 (1995). Pursuant to Crim.R. 12(C), motions to suppress evidence on the
grounds that the evidence was illegally obtained must be made before trial. State v.
Johnson, 11th Dist. No. 2011-T-0075, 2012-Ohio-3035, ¶14. Further, a suppression
motion must state with particularity the grounds upon which it is made. Crim.R. 47.
{¶9} Failure to abide by Crim.R. 12(C) constitutes waiver of the defenses or
objections. Crim.R. 12(H). Here, it is undisputed that appellant failed to assert the
constitutional claims of an invalid search incident to arrest and involuntary consent,
thereby waiving those claims. Indeed, by failing to advance these arguments in his
suppression motion before the trial court, the state did not have notice of the issues and
an opportunity to prepare its case. The trial court did not make any findings of fact on
these points because the matters were not raised and there was no evidence placed
before it at the suppression hearing. See, e.g., Village of Kirtland Hills v. Medancic,
11th Dist. Nos. 2011-L-136 & 2011-L-137, 2012-Ohio-4333, ¶8. Consequentially, this
appellate court is unable to conduct its ordinary standard of review as there are no
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factual findings upon which to defer and no application of law to apply. See State v.
McDivitt, 11th Dist. No. 2011-L-129, 2012-Ohio-2243, ¶13-14.
{¶10} Appellant recognizes this point but argues the trial court’s failure to
exclude the evidence on the grounds upon which he now relies is plain error, pursuant
to Crim.R. 52(B). Notice of plain error is to be “taken with utmost caution and only to
prevent a manifest miscarriage of justice[.]” State v. Reives-Bey, 9th Dist. No. 25128,
2011-Ohio-1778, ¶11. However, we question the propriety of a plain error analysis in
the context of a defendant’s failure to make constitutional arguments in a suppression
motion. Under appellant’s line of reasoning, the trial court, to avoid the alleged error in
this case, would have been required to raise new suppression issues on behalf of
appellant, request the parties to present evidence on those matters, and then evaluate
the issues.
{¶11} Nonetheless, appellant would not have been able to assert his arguments
in the first instance. Though neither party addresses it, the issue of standing is a
threshold determination in analyzing whether a defendant’s constitutional rights were
violated. Certainly, appellant has the ability to challenge the seizure of Miss Sopher’s
automobile which restricted his movement as a passenger. See, e.g., State v. Jackson,
11th Dist. No. 2011-L-107, 2012-Ohio-2123, ¶18. However, appellant does not
demonstrate that he has standing to challenge the constitutionality of Miss Sopher’s
consent to search her automobile. See State v. Jalloh, 2d Dist. No. 24972, 2012-Ohio-
5314, ¶31, citing Rakas v. Illinois, 439 U.S. 128 (1978) (“a passenger has no standing
to challenge the vehicle’s search if that passenger has no proprietary or possessory
interest in the vehicle”). Appellant similarly does not illustrate how he would have
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standing to challenge the search of the duffle bag which Miss Sopher claimed as her
personal property. See generally Rawlings v. Kentucky, 448 U.S. 98 (1980) (defendant
had no standing to challenge constitutionality of a search that uncovered defendant’s
drugs in companion’s purse). Indeed, appellant does not profess to have a proprietary
or possessory interest in his companion’s vehicle or her duffle bag. Further, appellant
does not demonstrate how any evidence from a search could be characterized as “fruit
of the poisonous tree” stemming from an alleged unreasonable seizure, especially when
he does not challenge on appeal the trial court’s determination that the seizure was not
unreasonably initiated or extended.
{¶12} Appellant’s first assignment of error is without merit.
{¶13} Appellant’s second assignment of error states:
{¶14} “The Defendant-Appellant’s due process rights and rights to fair trial as
guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 of the Ohio Constitution were violated by ineffective assistance
of counsel.”
{¶15} In his second assignment of error, appellant contends he suffered
ineffective assistance of trial counsel because his suppression motion did not contain
any of the arguments upon which he now relies: i.e., invalid search incident to arrest
and involuntary consent. However, as explained above, these grounds, if pursued,
would have proved fruitless due to the issue of standing. Pursuant to Strickland v.
Washington, 466 U.S. 668 (1984), we cannot conclude the outcome would have been
any different had these issues been raised. Further, on this record, it is equally
plausible that trial counsel assessed the strength of the various arguments and tactically
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determined the issue of the driver’s consent to search her own vehicle should not be
raised by appellant and could adversely affect the credibility of the entire motion.
Indeed, we must indulge a strong presumption that trial counsel’s assistance fell within
the wide range of reasonable professional assistance. Id.{¶16} Appellant’s second assignment of error is without merit.
{¶17} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE., J.,
concur.
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