In re C.R.

[Cite as In re C.R., 2013-Ohio-1724.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: C.R. C.A. No. 12CA0078-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2012 06 DQ 0428
DECISION AND JOURNAL ENTRY
Dated: April 29, 2013
HENSAL, Judge.
{¶1} The State of Ohio appeals an order of the Medina County Common Pleas Court,
Juvenile Division, granting C.R.’s motion to suppress. For the following reasons, we affirm.
I.
{¶2} Officer John Fink was on patrol one evening when he learned that a sergeant had
stopped a car that was being driven by someone with an outstanding warrant. He went to assist
with the stop. When he arrived, he observed that the driver of the car had been arrested and that
the passengers were either standing at the back of a marked police car or seated in one of the
cars. According to Officer Fink, the sergeant was inside, or partially inside, the car that he had
stopped and was holding a bag. When the sergeant emerged from the car, he asked Officer Fink
to find out who the bag belonged to because there was marijuana and drug paraphernalia in it.
Officer Fink spoke to the passengers and learned that the bag belonged to C.R. After the police
2
charged C.R. with possession of marijuana and possession of drug paraphernalia, he moved to
suppress the evidence, arguing that the sergeant did not have probable cause to search his bag.
{¶3} The sergeant who stopped the car did not testify at the hearing on C.R.’s motion.
Officer Fink, however, testified about what he saw and did during the stop. C.R. also testified at
the hearing. According to C.R., he was sitting in the backseat of the car, wearing the bag when
he was asked to step out of the car. C.R. testified that once he was outside of the car, the bag
was removed, at the request of the officer and it was placed on the back of the car. The officer
then searched C.R. and escorted him to a police car. Additionally, another witness testified that
C.R.’s bag was on the back of the car.
{¶4} Following the hearing, the trial court granted C.R.’s motion to suppress. The
court found that the State had not produced competent credible evidence of the basis for the
search. Acknowledging that warrantless searches are per se unreasonable and that the State has
the burden of proof to establish an exception to the warrant rule, the court concluded that the
State had not met its burden. The State has appealed, assigning four errors.
II.
THE TRIAL COURT ERRED IN GRANTING THE JUVENILE’S MOTION TO
SUPPRESS BECAUSE THE RULES OF EVIDENCE DO NOT APPLY AT
SUPPRESSION HEARINGS.
{¶5} The State argues that the trial court should not have prohibited Officer Fink from
testifying about where the sergeant found C.R.’s bag. During the suppression hearing, the
prosecutor asked the officer if, during his investigation, he was “made aware of information on
where that black bag was located in the vehicle[.]” The court sustained an objection to the
question. After the court’s ruling, the State proffered that Officer Fink would have testified that
he learned that the bag “was found in the vehicle.”
3
{¶6} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
When considering a motion to suppress, the trial court assumes the role of trier of fact
and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses. Consequently, an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence. Accepting these
facts as true, the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
Id. (citations omitted).
{¶7} Evidence Rule 104(A) provides that “[p]reliminary questions concerning * * * the
admissibility of evidence shall be determined by the court[.]” “In making its determination it is
not bound by the rules of evidence except those with respect to privilege.” Evid. R. 104(A); see
also Evid.R. 101(C)(1) (noting that, under Evid.R. 104, questions about the admissibility of
evidence are “determined by the court[.]”). Other Ohio district courts have determined that this
rule “gives [a] trial judge broad discretion concerning the admissibility of evidence presented in
a suppression hearing.” State v. Woodring, 63 Ohio App.3d 79, 81 (11th Dist. 1989); State v.
Edwards, 5th Dist. No. 2003 AP 09 0077, 2004-Ohio-870, ¶ 18.
{¶8} The State does not contest that Officer Fink’s proffered testimony regarding what
the sergeant told him was hearsay which did not fall under an exception to the rule. Rather, it
contends that the court should have allowed the testimony because there is not a per se bar on the
use of hearsay at suppression hearings. See Evid. R. 101(C)(1) and 104(A).
{¶9} In its original response to C.R.’s motion to suppress, the State argued that the
sergeant had probable cause to search the bag. At the time of the hearing the sergeant was
unavailable. The court inquired of the State whether they wished to proceed or continue the
matter due to the sergeant’s unavailability. The State responded that they would not seek a
continuance and wished to proceed. After further inquiry by the court, the State indicated it was
4
proceeding on the basis that the bag was searched pursuant to a valid inventory search of a motor
vehicle. The trial court gave both sides an opportunity to file briefs after the hearing regarding
the law and basis of a search due to an inventory of a motor vehicle, which they did.
{¶10} Even if the trial court should have allowed the hearsay evidence at the
suppression hearing, it would not have changed the court’s ruling on the motion to suppress. The
State, therefore, did not suffer prejudice as a result of the exclusion of the hearsay evidence. See
Crim.R. 52(A); Woodring, 63 Ohio App.3d at 81. In finding that the State had “not met its
burden of proof,” the court noted that the sergeant who seized the bag “was not present at the
hearing to testify about where the bag was found or the legal basis for its seizure.” On the other
hand, C.R. and one of the other passengers of the car testified that the bag was on C.R.’s back
when he exited the car. Accordingly, even if Officer Fink had testified that he was told that the
bag was found in the car, it would not change the fact that the State did not submit evidence from
anyone who was present at the time the bag was found who could testify about where it was
found or provide the legal basis for its search.
{¶11} “Hearsay evidence is inherently unreliable because the declarant is not testifying
under oath and is not subject to cross-examination.” State v. Lenoir, 2d Dist. No. Civ.A. 19241,
2003-Ohio-2820, ¶ 17; see Chambers v. Mississippi, 410 U.S. 284, 298 (1973); Pamer v. Foley,
9th Dist. No. 8000, 1976 WL 188739, *1 (Apr. 14, 1976) (“Hearsay evidence is not competent
evidence.”). Upon review of the record, we cannot say that Officer Fink’s “inherently
unreliable” proffered hearsay testimony would have changed the trial court’s conclusion that the
State failed to meet its burden of proof. Lenoir at ¶ 17. The State’s first assignment of error is
overruled.
5
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ADMIT
THE VEHICLE INVENTORY DOCUMENT MARKED AS STATE’S
EXHIBIT TWO (2) UNDER EVIDENCE RULE 803(6).
{¶12} The State argues that the trial court incorrectly refused to allow it to admit the
vehicle inventory report that was generated after the stop. The State attempted to ask Officer
Fink about the report, but the court sustained C.R.’s objection to the question because it
determined that the officer could not authenticate the report. The State argues that the report was
admissible under the business-records exception of the hearsay rule and that Officer Fink did not
have to have personal knowledge of the exact circumstances of how it was produced. According
to the State, he only had to have a working knowledge of the system used to produce the report.
{¶13} Upon review of the transcript of the hearing on the motion to suppress, we note
that the State did not move to admit the vehicle inventory report. It also did not proffer the
report or Officer Fink’s answer to the prosecutor’s question after the court sustained C.R.’s
objection. The State, therefore, has failed to preserve the record for appeal, and this Court has
nothing to review. State v. Bobo, 9th Dist. No. 21581, 2004-Ohio-195, ¶ 6; Evid. R. 103(A)(2).
Its second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN GRANTING THE JUVENILE’S MOTION TO
SUPPRESS BECAUSE THE CONTRABAND WAS LOCATED DURING A
VALIDLY EXECUTED INVENTORY SEARCH OF THE AUTOMOBILE.
{¶14} The State argues that the trial court should have denied the motion to suppress
because the sergeant searched C.R.’s bag pursuant to a valid inventory search. The Ohio
Supreme Court has determined that “a standard inventory search * * * of a lawfully impounded
automobile does not contravene the Fourth Amendment to the United States Constitution.” State
6
v. Robinson, 58 Ohio St.2d 478, 480-81 (1979). “To determine if an inventory search is valid,
the court must first determine whether the police lawfully impounded the vehicle. A vehicle can
be lawfully impounded when the occupant of the vehicle is arrested.” State v. Neal, 9th Dist. No.
25937, 2012-Ohio-2609, ¶ 7, quoting State v. Robinson, 9th Dist. No. 19905, 2000 WL 1587007,
*3 (Oct. 25, 2000).
{¶15} In this case, it is not disputed that the driver of the car had been arrested at the
time of the search. The State asserts that, because the bag was in the car, the sergeant could open
it pursuant to an inventory search. It notes that Officer Fink testified that the sergeant “removed
a bag from the vehicle and handed it to me” to determine who owned the bag.
{¶16} Although Officer Fink’s testimony suggests that the bag was inside the car at the
time the sergeant decided to impound the car, C.R. presented contrary evidence. According to
C.R., at the time of the stop, he was wearing the bag on his back. C.R. testified that it remained
on his back when he exited the vehicle. C.R. also testified that an officer later asked him to take
it off and place it on the back of the car and that he complied with this request. One of the other
passengers of the car corroborated that the bag was on C.R.’s back when C.R. exited the car and
that the bag was sitting on the back of the car. The passenger further testified that he saw the
sergeant pick the bag up off the back of the car and look inside the bag.
{¶17} The trial court found that, because the sergeant did not testify, the State failed to
establish that the bag was found in the car or the basis for opening the bag. The State did not
argue that the sergeant could have searched the bag pursuant to a valid inventory search if it had
been found by the sergeant outside the car. Instead, the State argues that they were prejudiced by
the trial court’s ruling excluding evidence proffered to establish that the sergeant told Officer
Fink that he found the bag inside of the car. In light of C.R. and the other passenger’s testimony,
7
the court’s finding was supported by some competent, credible evidence. It, therefore, follows
that, when the trial court found that the search of the bag was not incident to a valid inventory
search of the car, it did not act in an unreasonable, arbitrary or unconscionable manner. The
State’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN GRANTING THE JUVENILE’S MOTION TO
SUPPRESS BECAUSE THE SEARCH OF THE JUVENILE’S BAG WAS
JUSTIFIED BY OFFICER SAFETY.
{¶18} The State’s final argument is that the sergeant was allowed to search the bag
pursuant to a protective search. “In the course of a constitutionally valid stop, an officer may
conduct a limited search of the subject for weapons when, considering the totality of the
circumstances, a reasonably prudent person would be justified in believing that his safety was at
risk.” State v. McCray, 9th Dist. No. 99CA007310, 2000 WL 254909, *2 (Mar. 8, 2000). In this
case, however, Officer Fink was not present at the time of the search of the bag. He did not
testify about any specific safety risks that the officers faced. According to him, when he arrived,
all of the individuals who had been in the stopped car were either secured in a marked police car
or standing at the back of a marked police unit accompanied by an officer.
{¶19} According to C.R., officers approached the car with guns out and told them to put
their hands up. They got the driver out of the car, and then returned for the rest of them. After
he got out, they told him to take his bag off and put it on the back of the car. They patted him
down and brought him over to a police car, where they detained him in handcuffs. C.R. testified
that the officers treated the other passengers in a similar manner.
{¶20} It is not clear from the record when the sergeant searched C.R.’s bag. It appears,
however, that it was not until each of the passengers had been secured and taken some distance
8
from the stopped car. Upon review of the record, we conclude that the State failed to establish
that, at the time he searched the bag, a reasonable person in the sergeant’s position would have
been justified in believing that his safety or the safety of others was at risk. Accordingly, the
search does not fall within the officer-safety exception to the warrant rule. The State’s fourth
assignment of error is overruled.
III.
{¶21} The trial court did not err when it granted C.R.’s motion to suppress. The
judgment of the Medina County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
9
CARR, J.
CONCURS.
WHITMORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶22} Although I agree that the State’s second assignment of error must be overruled, I
respectfully dissent with regard to the remainder of the opinion. I would sustain the State’s first
assignment of error and conclude that the trial court erred by excluding evidence from the
suppression hearing due to hearsay and authentication issues. Moreover, because the court’s
error materially prejudiced the State, I would reverse the court’s decision to grant C.R.’s motion
to suppress and remand the matter for further proceedings.
{¶23} Multiple courts have recognized that trial courts have broad discretion in the
admission or exclusion of evidence in a suppression hearing. See, e.g., State v. Scrivens, 11th
Dist. No. 2009-T-0072, 2010-Ohio-712, ¶ 12; State v. Edwards, 5th Dist. No. 2003 AP 09 0077,
2004-Ohio-870, ¶ 18; State v. Bishop, 2d Dist. No. 2003-CA-37, 2004-Ohio-6221, ¶ 18; State v.
Faykosh, 6th Dist. No. L-01-1244, 2002-Ohio-6241, ¶ 23. The reason for the discretion,
however, is that in making a preliminary determination about the admissibility of evidence a
court “is not bound by the rules of evidence except those with respect to privileges.” Evid.R.
104(A). The Supreme Court has specifically held that “the Rules of Evidence do not apply to
suppression hearings.” (Emphasis added.) State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-
1251, ¶ 17. Thus, “judicial officials at suppression hearings ‘may rely on hearsay and other
evidence, even though that evidence would not be admissible at trial.’” State v. Edwards, 107
Ohio St.3d 169, 2005-Ohio-6180, ¶ 14, quoting United States v. Raddatz, 447 U.S. 667, 679
(1980).
10
{¶24} Although certain evidence may be inadmissible at trial due to its status as hearsay
or the proponent’s failure to authenticate it, “the standard of evidence required is different at the
suppression level.” Bozcar at ¶ 17.
During a pretrial oral hearing on a motion to suppress evidence the trial court is
not required to adhere strictly to the exclusionary rules of evidence in making a
preliminary determination concerning the admissibility of evidence at a trial.
Pursuant to Evid.R. 101(C)(1) and 104(A) a trial court has broad discretion
concerning what evidence to permit at a pretrial motion to suppress hearing. Thus
the status of testimony of a witness as hearsay does not per se bar its use or
introduction before the court at such a hearing.
(Emphasis added.) Hagel, Thomas, Anderson’s Ohio Criminal Practice and Procedure, Section
24A.501.1, 377 (11th Ed.2005).
There is * * * much to be said for the proposition that in proceedings where the
judge himself is considering the admissibility of evidence, the exclusionary rules,
aside from rules of privilege, should not be applicable; and the judge should
receive the evidence and give it such weight as his judgment and experience
counsel. However that may be, certainly there should be no automatic rule
against the reception of hearsay evidence in such proceedings * * *.
United States v. Matlock, 415 U.S. 164, 175 (1974). Were it otherwise, the State would be
required to try at least a portion of its case to procedural perfection twice; once at the suppression
stage and once at the trial stage. Out of an abundance of caution, the State would have to
procure the appearance of every declarant and every custodian at every suppression hearing only
to recall the same witnesses for trial. The time and expense involved would be great. Moreover,
such a requirement would conflict with certain practical realities and accepted legal principles.
“Search warrants are repeatedly issued on ex parte affidavits containing out-of-court statements
of identified and unidentified persons.” Id. at 174. Additionally, absent a demonstrated need for
disclosure, the State has a privilege to “withhold from disclosure the identities of those who give
information to the police about crimes.” State v. Calhoun, 9th Dist. No. 26144, 2012-Ohio-2374,
¶ 8, quoting State v. Bays, 87 Ohio St.3d 15, 24 (1999). The idea that a trial court may reject
11
certain evidence at a suppression hearing strictly because it is hearsay or unauthenticated runs
afoul of the foregoing principles.
{¶25} On redirect examination, the State asked Officer Fink whether, through his
investigation, he had been “made aware of information on where [C.R.’s backpack] was located
in the vehicle.” Defense counsel then objected on the basis of hearsay, and the trial court asked
the prosecutor whether any hearsay exception applied. The prosecutor responded by stating that,
per the Rules of Evidence, witnesses are permitted to testify as to hearsay statements at a
suppression hearing. The court then sustained the hearsay objection absent any further
explanation. The State proffered that, had Officer Fink been permitted to answer, he would have
testified that the information he received was that C.R.’s bag had been found in the vehicle. The
State also notified the court that it had subpoenaed the sergeant who acted as the lead officer in
this case for the hearing, but that he was unable to attend due to an emergency. Nevertheless, the
court refused to allow Officer Fink to testify as to the location of C.R.’s bag.
{¶26} The record supports the conclusion that the only reason the court refused to
permit Officer Fink to answer was that his answer was hearsay. A trial court cannot strike
evidence at a suppression hearing for the sole reason that it fails to strictly comport with the
hearsay rules. See Boczar at ¶ 17 (“[T]he Rules of Evidence do not apply to suppression
hearings.”). The State was entitled to rely upon the Supreme Court’s mandate in Boczar, which
stemmed from a plain language reading of the Rules of Evidence. I would conclude that, by
refusing to allow Officer Fink to answer, the trial court abused its discretion. See State v.
Amilcar, 10th Dist. No. 08AP-357, 2008-Ohio-6918, ¶ 35 (“While appellant argues that these
statements were inadmissible hearsay, the rules of evidence do not bar the admission of hearsay
at a suppression hearing. * * * Thus, even if counsel had objected, the testimony still would have
12
been admissible.”); Edwards, 2004-Ohio-870, at ¶ 19 (“[H]earsay evidence is not per se barred
from use at a suppression hearing * * *.”); State v. Woodring, 63 Ohio App.3d 79, 81 (11th
Dist.1989) (“The acting judge’s decision to exclude the testimony therefore constituted an abuse
of discretion because the testimony’s undisputed status as hearsay does not per se bar its use in
this instance * * *.”).
{¶27} The State was materially prejudiced by the court’s exclusion of Officer Fink’s
testimony. The trial court granted C.R.’s motion to suppress because the State failed to prove the
applicability of one of the established exceptions to the warrant requirement. Everyone agreed at
the suppression hearing that the applicable exception here was the inventory exception. See
State v. Goss, 9th Dist. No. 10CA009940, 2012-Ohio-857, ¶ 8-9 (routine inventory search of a
lawfully impounded vehicle allows police to search contents of vehicle as well as any closed
containers, pursuant to established policy). The trial court held that the State failed to meet its
burden of establishing the exception because no one testified where C.R.’s backpack was found.
Officer Fink’s excluded testimony would have been competent evidence that the backpack was
found in the vehicle. Because the defense witnesses testified that the backpack was removed
from the vehicle and placed on the trunk, the issue of the backpack’s location then would have
been a matter of credibility for the court to resolve in favor of either the State or C.R. See State
v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Because of its earlier ruling, the court
here failed to engage in any credibility determination. Accordingly, the court’s ruling materially
prejudiced the State.
{¶28} For the reasons set forth above, I also would conclude that it was error for the trial
court to exclude the State’s Exhibit 2 (the inventory report) on the sole basis that it was not
properly authenticated. See Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, at ¶ 17 (“[T]he Rules
13
of Evidence do not apply to suppression hearings.”). See also State v. Keene, 7th Dist. No. 08
MA 95, 2009-Ohio-1201, ¶ 46-47. Nevertheless, I agree that the State’s second assignment of
error must be overruled because the State failed to proffer the contents of the report and, thus,
cannot demonstrate prejudice as a result of the report’s exclusion. Therefore, I would sustain the
State’s first assignment of error and overrule its second assignment of error. Because the trial
court never made a credibility determination in the first instance, I would not reach the State’s
third assignment of error. Instead, I would remand the matter for the trial court to make a
credibility determination in the first instance with the understanding that the State produced
competent evidence in support of the inventory exception to the warrant requirement. See
Burnside at ¶ 8. Based upon the foregoing resolution, I would conclude that the State’s fourth
assignment of error is moot and decline to address it. See App.R. 12(A)(1)(c). Therefore, I
respectfully concur in part and dissent in part.
APPEARANCES:
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL O. MCGINTY, Assistant Prosecuting
Attorney, for Appellant.
L. RAY JONES, Attorney at Law, for Appellee.