State v. McClafferty

[Cite as State v. McClafferty, 2018-Ohio-4659.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2018-P-0013
- vs - :
BRETT M. MCCLAFFERTY, :
Defendant-Appellee. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
00775.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Sean C. Buchanan, Slater & Zurz, One Cascade Plaza, Suite 2210, Akron, OH 44308
(For Defendant-Appellee).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, the State of Ohio, appeals suppression of evidence seized during
a search. The state maintains that suppression is improper as the evidence was in the
officer’s plain view while executing a valid warrant. We reverse and remand.
{¶2} Appellee, Brett M. McClafferty, was investigated for three separate
incidents. One involves this case. Another involves a fraud complaint surrounding a
Bitcoin purchase, and the last, unauthorized use of a credit card.
{¶3} In the present case, appellee was indicted on one count of grand theft and
two counts of identity fraud. One identity fraud count pertains to appellee’s sister, Erin
McClafferty, and alleges that appellee recklessly obtained and used her identity to open
a bank account. The other two counts assert that appellee stole $7,500 from Goodfellas
Roofing by fraudulently transferring funds from the company’s account to the account
opened under his sister’s name.
{¶4} While these charges were pending, appellee was investigated on an
unrelated matter by the City of Streetsboro Police Department due to a complaint from
Lisa Belcastro involving fraud in a bitcoin purchase from appellee. A warrant was issued
to search appellee’s parent’s home where appellee resided. The warrant covers a laptop
computer and “[e]vidence and property to include confiscated information regarding
‘bitcoin’ activity and solicitations for ‘MAC Capital’ and account/client information and
deposits of Lisa Belcastro.”
{¶5} The warrant was executed by Arvin Clar, a special agent for the Ohio
Bureau of Criminal Investigation. Initially, appellee’s mother escorted Agent Clar to the
basement where he seized appellee’s laptop. He next searched appellee’s bedroom,
where he observed a piece of paper sticking out of a book. Agent Clar opened the book
and saw a copy of Erin McClafferty’s social security card and a copy of one of her banking
statements. Agent Clar seized both items.
{¶6} Appellee’s trial counsel learned that the state planned to introduce copies
of the social security card and banking statement at trial in the present case. Counsel
moved to suppress both on the basis that the search warrant does not cover items
belonging to Erin McClafferty. Agent Clar was the sole witness at the suppression
hearing. When asked why he seized the two items, he testified that he was aware of yet
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another unrelated incident involving appellee in which his sister alleged unauthorized use
of a credit card: “When I saw the Social Security card of Erin McClafferty, I believed that
that was part and parcel of a prior case.”
{¶7} In its judgment granting the motion to suppress, the trial court concluded
that neither of the items seized by Agent Clar were covered under the search warrant or
in plain view. The state appeals that decision certifying that suppression renders the
state’s proof so weak in its entirety that any reasonable possibility of effective prosecution
has been destroyed.
{¶8} Appellant asserts two assignments of error:
{¶9} “[1.] As [appellee] presented no evidence in support of his motion to
suppress evidence seized pursuant to a warrant, the trial court erred in granting the
motion.
{¶10} “[2.] Assuming arguendo this court reaches the merits of the trial court’s
decision, the trial court erred in granting [appellee’s] motion to suppress because the
challenged evidence was legally seized.”
{¶11} Resolution of the second assignment is dispositive. Under that assignment,
the state argues that the motion to suppress should have been overruled because either
the copies of the social security card and banking statement are covered under the search
warrant, or they were in Agent Clar’s plain view as he was conducting a lawful search.
For the following reasons, the evidence was legally seized under the plain view exception
to the Fourth Amendment.
{¶12} In considering the scope of a search executed pursuant to a valid warrant,
the United States Supreme Court has stated:
{¶13} “A lawful search of fixed premises generally extends to the entire area in
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which the object of the search may be found and is not limited by the possibility that
separate acts of entry or opening may be required to complete the search. Thus, a
warrant that authorizes an officer to search a home for illegal weapons also provides
authority to open closets, chests, drawers, and containers in which the weapon might be
found. A warrant to open a footlocker to search for marihuana would also authorize the
opening of packages found inside. * * * When a legitimate search is under way, and when
its purpose and its limits have been precisely defined, nice distinctions between closets,
drawers, and containers, in the case of a home, * * * must give way to the interest in the
prompt and efficient completion of the task at hand.” (Footnotes omitted.) United States
v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed2d 572 (1982).
{¶14} Under Ross, a police officer executing a search warrant has the authority to
open and look inside any container that is large enough to contain an item listed in the
warrant. Thus, an officer is permitted to open a box when the warrant authorizes him to
look for any amount of illegal drugs. United States v. McManaman, N.D.Iowa No. CR10-
4024-MWB, 2010 WL 4103530, *10 (Oct. 18, 2010). Similarly, an officer does not need
a second warrant to open a safe in a hotel room when the original warrant authorizes him
to look for checks, receipts, ledgers, and personal papers. State v. Brewster, 157 Ohio
App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162, ¶36.
{¶15} Here, appellee has not challenged the validity of the search warrant. That
warrant authorizes a search for account information in relation to Lisa Belcastro regarding
the bitcoin investigation. Given that account information may be found on a single piece
of paper located within the pages of a book, Agent Clair was authorized to open the book
and look at the papers.
{¶16} When an officer finds an object during a valid search not referenced in the
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warrant, the plain view doctrine applies to whether seizure violates the Fourth
Amendment. See McManaman, supra; United States v. Evans, 966 F.2d 398, 400 (8th
Cir.1992); State v. Seibert, 5th Dist. Tuscarawas No. 2004-AP-060048, 2005-Ohio-275,
¶15. “‘An example of the applicability of the “plain view” doctrine is the situation in which
the police have a warrant to search a given area for specified objects, and in the course
of the search come across some other article of incriminating character.’ Coolidge v. New
Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037-38, 29 L.Ed2d 564 (1970).” Evans,
at 400.
{¶17} “Under the plain-view exception to the search warrant requirement, police
may seize evidence in plain view during a lawful search if (1) the seizing officer is lawfully
present at the place from which the evidence can be plainly viewed; (2) the seizing officer
has a right of access to the object itself; and (3) the object’s incriminating character is
immediately apparent. Horton v. California, 496 U.S. 128, 136-137 (1990).” State v.
Zerucha, 11th Dist. Ashtabula No. 2015-A-0031, 2016-Ohio-1300, ¶17.
{¶18} Given that Agent Clar was executing a warrant that allowed him to search
for documents or papers regarding bitcoin activity, he was lawfully present in appellee’s
bedroom and had the right to access the papers in the book. The outcome turns upon
whether the incriminating nature of the social security card and the banking statement is
immediately apparent.
{¶19} “‘Immediately apparent’ means that the officer must have had probable
cause to believe the item is contraband. Arizona v. Hicks (1987), 480 U.S. 321, 326, 107
S.Ct. 1149, 94 L.Ed.2d 347. Probable cause merely requires that the facts available to
the officer would warrant a person of reasonable caution in the belief that a certain item
may be contraband. A practical probability that incriminating evidence is involved is all
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that is required. Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d
502.” Seibert, 2005-Ohio-275, ¶17.
{¶20} In making the probable cause determination, an officer can rely upon his
specialized knowledge, training, and experience. State v. Hakim, 8th Dist. Cuyahoga No.
105679, 2018-Ohio-492, ¶25, quoting State v. Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d
925 (1986), paragraph four of the syllabus.
{¶21} As noted above, both papers Agent Clar seized pertain to appellee’s sister,
Erin. Agent Clar had knowledge of a prior incident in which Erin made allegations
involving appellee’s unauthorized use of her credit card. Given that the seized papers
were found in appellee’s bedroom, Agent Clar had a reasonable belief of their
incriminating character including, at the very least, identity fraud.
{¶22} As all three requirements for the plain view doctrine are satisfied, the
seizure was permissible and the trial court erred in granting appellee’s motion to
suppress. The state’s second assignment has merit, and all other arguments raised are
moot. See App.R. 12(A)(1)(c).
{¶23} The judgment of the Portage County Court of Common Pleas is reversed,
and this case is remanded for further proceedings consistent with this opinion.
CYNTHIA WESTCOTT RICE, J.
TIMOTHY P. CANNON, J.,
concur.
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