Cincinnati v. Langan
| Decision Date | 23 March 1994 |
| Docket Number | C-930194,Nos. C-930193,s. C-930193 |
| Citation | 640 N.E.2d 200,94 Ohio App.3d 22 |
| Parties | CITY OF CINCINNATI, Appellee, v. LANGAN, Appellant. * |
| Court | Ohio Court of Appeals |
Fay D. Dupuis, City Sol., Terrence R. Cosgrove and Roshani Desoyza Hardin, Asst. City Solicitors, Cincinnati, for appellee.
Michael Hohn, for appellant.
Defendant-appellant, Peter Langan, appeals from the judgments of the Hamilton County Municipal Court in which he was convicted, following a jury trial, of two violations of Cincinnati Municipal Code 708-37 ("CMC 708-37"), 1 which prohibits the possession of semiautomatic firearms and detachable magazines of certain capacities. Appellant was sentenced to serve one hundred twenty-one days on each charge, with the terms to run concurrently. The trial court, however, credited appellant for the one hundred twenty-one days that he had served in pretrial confinement. Additionally, the court ordered the confiscation of the firearms which appellant had been convicted of possessing.
Appellant advances three assignments of error in these consolidated appeals. For the reasons that follow, we find none of the assignments to have merit and we affirm the trial court's judgments.
In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress. During the hearing on the motion, appellant testified that the authorities performed a warrantless and unauthorized search of his residence while he was handcuffed and sitting in a police cruiser. The city presented evidence that appellant was arrested by a Cincinnati police officer on an outstanding robbery warrant from the state of Georgia. Subsequently, secret service agents who had accompanied the Cincinnati officer inquired about the whereabouts of one Richard Guthrie, Jr. The police officer and a secret service agent both testified that appellant gave them permission to enter the appellant's residence to search for Guthrie. Appellant denied giving them permission. During that search, the authorities recovered from a gun rack on a living room wall, one Ruger 1022 semiautomatic .22-caliber rifle ("Ruger 1022"), two fifty- magazines and one ten-round magazine. 2 They also recovered from the bedroom one Ruger Mini 14 .223-caliber semiautomatic rifle ("Ruger Mini 14") and three thirty-round magazines. 3 According to the testimony of the law enforcement officers all the seized items were in plain view.
In order for the seizure of the semiautomatic rifles and magazines to qualify under the "plain view" doctrine, the record must show that "the initial intrusion leading to the item[s'] discovery [by the authorities] was lawful and it was 'immediately apparent' that the item[s] [were] incriminating" to the seizing authorities. State v. Waddy (1992), 63 Ohio St.3d 424, 442, 588 N.E.2d 819, 833, citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. 4
In determining whether the intrusion of the authorities into appellant's residence was lawful as required by the first prong of the "plain view" doctrine, we first acknowledge that a warrantless search based upon voluntary consent is valid. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860. Whether consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. Id. A trial court may find consent to be voluntary from a policeman's testimony that consent was freely given. State v. Skaggs (June 21, 1984), Cuyahoga App. No. 47624, unreported, 1984 WL 5099. Furthermore, it is well settled that "[o]n the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. This principle applies to suppression hearings as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583.
The trial court, as the trier of fact in the case sub judice, obviously found the witnesses who testified that appellant's consent to search his residence was voluntarily given to be more credible than the appellant. Our review of the record convinces us that the trial court's determination that the consent to search for Guthrie was voluntarily given was neither contrary to law nor against the manifest weight of the evidence. Therefore, we hold that the initial intrusion into appellant's residence was lawful.
Next, we focus on whether the incriminating nature of the semiautomatic firearms and magazines was immediately apparent to the seizing authorities. This requirement is met when "police have probable cause to associate an object with criminal activity," State v. Halczyszak (1986), 25 Ohio St.3d 301, 25 OBR 360, 496 N.E.2d 925, paragraph three of the syllabus, which probable cause "may arise from the character of the property itself." Id. at 304-305, 25 OBR at 363, 496 N.E.2d at 931. "[S]uch probable cause to associate an object with criminal activity as is obvious and evident to an ordinary police officer sufficiently satisfies the immediately apparent requirement" of the plain view doctrine. Id. at 305, 25 OBR at 363, 496 N.E.2d at 931.
At the suppression hearing, a police officer testified he observed in plain view, among other items, the following: (1) a Ruger 1022 and 50-round ammunition clips in a gun rack in the living room of appellant's residence; and (2) a Ruger Mini 14 with three 30-round clips nearby in appellant's bedroom. We hold that there was probable cause for the authorities to associate these items with violation of the city ordinance.
In view of the record, we conclude that the seizure of the semiautomatic rifles and magazines comported with the plain view doctrine and the trial court did not err in refusing to suppress the evidence. "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 into evidence." State v. Glover (Mar. 22, 1978), Hamilton App. No. C-77268, unreported. Accordingly, we overrule appellant's first assignment of error.
In his second assignment of error, appellant assails the trial court's overruling of his motion to dismiss the instant charges on constitutional grounds made during pretrial proceedings and his motion for reconsideration thereof made after he rested his case. Appellant propounds four arguments in support of this assignment. For the reasons that follow, we find the arguments unpersuasive.
Initially, we note that the city put into evidence the testimony of Cincinnati police Sergeant Gene Hamann, a firearms expert. He testified that he loaded and test-fired the Ruger 1022 by semiautomatically firing thirteen rounds from the accompanying prohibited magazine and the Ruger Mini 14 by firing twenty rounds from its accompanying prohibited 30-round magazine. He stated that each firearm expelled the projectiles within approximately two or three seconds. Hamann further testified that he could tell by visual inspection how many rounds each magazine could hold. Hamann stated that in his opinion the seized weapons and accompanying magazines were prohibited by CMC 708-37.
The appellant put forth evidence that the weapons had a legitimate use for target-shooting competition and defensive purposes. 5 His witnesses also testified that in their opinions the seized weapons were not necessarily in violation of CMC 708-37.
Appellant first maintains that the CMC 708-37 violates Section 4, Article I of the Ohio Constitution, which provides:
"The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power."
This argument was rejected by the court in Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163, 6 a case involving a similar firearm ordinance enacted by the city of Cleveland. Therein the court recognized that the right to bear arms "is not an unlimited right and is subject to reasonable regulation," id. at 47, 616 N.E.2d at 172, and held that the Cleveland ordinance was a "proper exercise of the police power under Section 3, Article XVIII of the Ohio Constitution and [did] not violate Section 4, Article I." Id. at paragraph three of the syllabus.
In so ruling the court reasoned:
"In reviewing the reasonableness of an ordinance, we are guided by certain principles. It is not a court's function to pass judgment on the wisdom of the legislation, for that is the task of the legislative body which enacted the legislation. [Citation deleted.] Further, ' ' Porter v. Oberlin (1965), 1 Ohio St.2d 143, 149, 30 O.O.2d 491, 494, 205 N.E.2d 363, 368, quoting Allion v. Toledo (1919), 99 Ohio St. 416, 124 N.E. 237, syllabus.
Id. at 48, 616 N.E.2d at 172-173.
Applying this analysis to CMC 708-37, we hold that CMC 708-37, which prohibits possession of semiautomatic firearms in the city of Cincinnati, is a reasonable exercise of the city's police power to protect its citizens from violence stemming from the use of...
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State v. Riggins, 2004 Ohio 4247 (OH 8/13/2004)
...credible, implying that Riggins's assertion that Officer Harper did not seek consent was not believable. See Cincinnati v. Langan (1994), 94 Ohio App.3d 22, 27, 640 N.E.2d 200. {¶18} Riggins was detained in a nonviolent manner, on a public street at 6:00 p.m., during the investigation of a ......
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Citizens for a Safer Community v. City of Rochester
...of crimes in which guns were used, made its control and regulation rational. The Ohio Court of Appeals in City of Cincinnati v. Langan, 94 Ohio App.3d 22, 640 N.E.2d 200, similarly found that a semi-automatic ban was within the legitimate exercise of police power. In Quilici v. Village of M......
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...power to protect its citizens from violence stemming from the use of semiautomatic weapons.'" ¶ 8, quoting Cincinnati v. Langan (1994), 94 Ohio App.3d 22, 30, 640 N.E.2d 200. See also Toledo v. Beatty, 169 Ohio App.3d 502, 2006-Ohio-4638, 863 N.E.2d 1051, ¶ 45. {¶ 35} The ordinance at issue......
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State v. Kenneth Richardson
... ... We overrule both assignments of error and affirm ... During ... a routine patrol at approximately 3:30 AM, two Cincinnati ... police officers saw a car parked in a residential driveway ... The windshield of the car was shattered to such a degree that ... S.Ct. 2022, 2038; Horton v. California (1990), 496 ... U.S. 128, 110 S.Ct. 2301. See, also, Cincinnati v ... Langan (1994), 94 Ohio App.3d 22, 640 N.E.2d 200, fn ... [18]. See Horton v. California ... (1990), 496 U.S. 128, 130, 110 S.Ct. 2301, 2304 ... ...