State v. Myers

[Cite as State v. Myers, 2014-Ohio-1039.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13 COA 023LINDSAY E. MYERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 13 CRB 390AB
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 14, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID M. HUNTER MATTHEW J. MALONE
ASSISTANT LAW DIRECTOR LAW OFFICE OF MATTHEW J. MALONE
1213 East Main Street 11 1/2 East 2nd Street
Ashland, Ohio 44805 Ashland, Ohio 44805
Ashland County, Case No. 13 COA 023 2
Wise, J.
{¶1} Appellant Lindsay E. Myers appeals the decision of the Ashland Municipal
Court denying her motion to suppress.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} At the suppression hearing on May 14, 2013, Officer Bloodhart of the
Ashland Police Department testified to the following:
{¶4} On April 6, 2013, at approximately 3:18 a.m., Officer Bloodhart was on
patrol in Ashland, Ohio, when he saw a legally parked, idling vehicle on Cleveland
Avenue. (T. at 17, 39). Officer Bloodhart further noticed that the driver of the vehicle,
later determined to be Appellant Lindsay Myers, was "slumped down in front of the
steering wheel" and he was concerned that she was asleep or passed out behind the
wheel of a running vehicle. (T. at 18-20).
{¶5} Officer Bloodhart exited his vehicle to check on Myers. (T. at 22). As he
approached, Myers sat up and rolled down the window. (T. at 23). Officer Bloodhart
noticed that Myers had "red, watery eyes, and [he] could smell a strong odor of air
freshener and also a strong odor of an alcoholic beverage being emitted from the
vehicle." Id. Myers then exited her vehicle at Officer Bloodhart's request to perform field
sobriety tests. (T. at 24, 27-32).
{¶6} Based on Myers’ performance, Officer Bloodhart determined that she was
under the influence of alcohol. He read Myers her Miranda rights, placed her under
arrest and secured her in his cruiser. (T. at 31-32). Officer Bloodhart then advised
Myers that "[he] was going to go get her personal effects, cell phone, purse, keys, and
Ashland County, Case No. 13 COA 023 3
secure her vehicle", to which Myers did not respond. (T. at 32-33). Officer Bloodhart
then went back to Myer's vehicle and, as he removed her cell phone and car remote
from the center console, he smelled the odor of burnt marijuana. (T. at 33). He then
observed a marijuana pipe underneath the stereo and a baggie of raw marijuana inside
a cup in the center console. (T. at 33-35, 49). Neither the marijuana nor the marijuana
pipe was observable from the outside of the vehicle. (T. at 48).
{¶7} On May 3, 2013, Appellant Myers filed a motion to suppress which the trial
court overruled by judgment entry on June 11, 2013.
{¶8} On July 3, 2013, Appellant Myers entered no contest pleas to both counts.
On the drug paraphernalia charge, the trial court sentenced Appellant to 30 days
incarceration with 15 days suspended, fined her $250, placed her on probation for one
year and suspended her driver’s license for six (6) months. On the possession of
marijuana charge, the trial court sentenced Appellant to 30 days incarceration with 15
days suspended, to be run concurrently with the paraphernalia sentence, an additional
$250 fine and an additional six (6) months license suspension.
{¶9} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION
TO SUPPRESS EVIDENCE SEIZED FROM HER VEHICLE BY FAILING TO APPLY
THE APPROPRIATE TEST OR CORRECT LAW TO THE FINDINGS OF FACT.
{¶11} “II. THE TRIAL COURT ERRED BY FINDING THAT THE EVIDENCE
SEIZED WAS IN PLAIN VIEW OF THE OFFICER UPON HIS SECOND RETURN TO
APPELLANT'S VEHICLE.”
Ashland County, Case No. 13 COA 023 4
I., II.
{¶12} In her First and Second Assignments of Error, Appellant argues that the
trial court erred in denying her motion to suppress. We disagree.
{¶13} Appellate review of a trial court's decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328,
713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of
fact and, as such, is in the best position to resolve questions of fact and to evaluate
witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A
reviewing court is bound to accept the trial court's findings of fact if they are supported
by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675
N.E.2d 1268. Accepting these facts as true, the appellate court must independently
determine as a matter of law, without deference to the trial court's conclusion, whether
the trial court's decision meets the applicable legal standard. State v. Williams (1993),
86 Ohio App.3d 37, 619 N.E.2d 1141.
{¶14} 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
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th
Dist.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
Ashland County, Case No. 13 COA 023 5
37, 619 N.E.2d 1141 (4th Dist.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. 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), “... as
a general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶15} In the instant case, Appellant argues the trial court erred in allowing the
evidence of an unconstitutional search of his vehicle. Appellant argues that the trial
court in its decision denying her motion to suppress, erred in reasoning that that the
officer’s search of Appellant’s vehicle was justified as a search incident to a valid arrest
and/or the items seized were in plain view.
{¶16} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them per se unreasonable unless an
exception applies. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507.
“Unreasonable searches and seizures are constitutionally prohibited. Ohio Const. Sec.
14, Art. I; U.S. Const. Amend. IV and XIV; Maryland v. Buie (1990), 494 U.S. 325, 331
[110 S.Ct. 1093, 108 L.Ed.2d 276]; State v. Robinette (1997), 80 Ohio St.3d 234, 238–
239 [685 N.E.2d 762]. For a search or seizure to be reasonable, it must be supported by
a warrant or based upon an exception to the warrant requirement. Katz v. United States
(1967), 389 U.S. 347, 357 [88 S.Ct. 507, 19 L.Ed.2d 576].” State v. Adams, 7th Dist. No.
08 MA 246, 2011-Ohio-5361.
Ashland County, Case No. 13 COA 023 6
{¶17} The Ohio Supreme Court has recognized seven exceptions to the warrant
requirement: “(a) [a] search incident to a lawful arrest; (b) consent signifying waiver of
constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) probable cause to
search, and the presence of exigent circumstances; or (f) the plain-view doctrine,” State
v. Akron Airport Post No. 8975, 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985), certiorari
denied 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 777 (1986); or (g) an “administrative
search,” Stone v. Stow, 64 Ohio St.3d 156, 164, 593 N.E.2d 294, fn. 4 (1992).
Incident to Lawful Arrest
{¶18} The trial court found that the search in this case was incident to arrest,
which as set forth above is recognized as an exception to the general prohibition
against warrantless searches. Chimel v. California, 395 U.S. 752, 762–63, 89 S
.Ct.2034, 23 L.Ed.2d 685 (1969); Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173
L.Ed.2d 485 (2009). “The exception derives from interests in officer safety and evidence
preservation that are typically implicated in arrest situations.” Id. at 338, citing United
States v. Robinson, 414 U.S. 218, 230–234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973);
Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Under
Gant, a search incident to a lawful arrest is permitted “when an arrestee is within
reaching distance of the vehicle or it is reasonable to believe the vehicle contains
evidence of the offense of arrest.” Id. at 346. Reasonableness “is measured in objective
terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33,
39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
{¶19} Here, Appellant was not within reaching distance of anything in her vehicle
at the time of the subject search, having already been secured in the officer’s patrol car.
Ashland County, Case No. 13 COA 023 7
We therefore find that the “search incident to lawful arrest” exception does not apply
here.
{¶20} We do however find that the officer’s actions in returning to Appellant’s
vehicle to roll up the driver’s side window, turn off the ignition and collect Appellant’s
purse and cell phone fall within the exception of a care-taking function. (T. at 33, 46-
47). He did not return to the vehicle with an investigatory purpose. However, once he
reached into the vehicle he observed an odor or burnt marijuana and then saw a multi-
colored marijuana pipe in plain view in the console under the stereo. (T. at 33, 47). He
also observed the arm rest/console between the front seats was open and that a cup
was located in the console with what appeared to be a baggie of marijuana inside. (T. at
49).
Plain view
{¶21} In Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d
1067 (1968), the United States Supreme Court held “it has long been settled that
objects falling in plain view of an officer who has a right to be in the position to have that
view are subject to seizure and may be introduced in evidence.” In Texas v. Brown, 460
U.S. 730, 738, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), then Justice Rehnquist
explained the plain view doctrine does not set limitations on “open view” sightings:
{¶22} “ * * *objects such as weapons or contraband found in a public place may
be seized by the police without a warrant. The seizure of property in plain view involves
no invasion of privacy and is presumptively reasonable, assuming there is probable
cause to associate the property with criminal activity.” * * * “[P]lain view” provides
Ashland County, Case No. 13 COA 023 8
grounds for seizure of an item when an officer's access to an object has some prior
justification under the Fourth Amendment. (Citations omitted.)
{¶23} In Katz, Ohio Arrest, Search and Seizure, Section 13.01, at 214 (1997
Ed.), a two part test is set forth that must be met to justify a plain view search and
seizure: the “intrusion affording the plain view must be lawful” and the “incriminating
nature of the evidence must be immediately apparent to the seizing authority.”
{¶24} Based on the facts as presented in this case, we find that Officer
Bloodhart’s actions in returning to Appellant’s vehicle were lawful as he was performing
a safe-keeping/care-taking function in turning off the engine, collecting Appellant’s purse
and cell phone and locking the vehicle. Accepting the officer’s testimony as true, the
pipe and marijuana were in plain view. Given this plain view observation we find the trial
court did not err in denying Appellant's motion to suppress.
{¶25} Based on the foregoing, we find Appellant’s First and Second
Assignments of Error not well-taken and overrule same.
{¶26} For the foregoing reasons, the decision of the Municipal Court of Ashland
County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0304