State v. Bird
| Decision Date | 19 July 1988 |
| Docket Number | No. 12-164,12-164 |
| Citation | 551 N.E.2d 622,49 Ohio App.3d 156 |
| Parties | The STATE of Ohio, Appellant, v. BIRD, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A warrantless search of an automobile is not justified by the "plain view" exception to the warrant requirement where the initial intrusion was based on police suspicion triggered merely by a movement by the car's occupant suggesting the concealment of an object under the car seat and by the fact that there is a noisy party in the area. Such facts are consistent with innocent behavior and do not constitute grounds for a reasonable suspicion of criminal activity.
John E. Shoop, Pros. Atty., and James F. Mona, for appellant.
Leo R. Collins, Mentor, for appellee.
At approximately 3:00 a.m. on Sunday, April 27, 1986, Deputies Myers and Iliano of the Lake County Sheriff's Department were dispatched to investigate a complaint of a loud party on Meigs Avenue in Painesville Township. While heading east on Meigs, the deputies observed a line of cars parked along the southern edge of the road. Near the western end of this line was a 1978 two-door Ford. The interior light of this vehicle was on, and three individuals were sitting in the front seat.
Before reaching the Ford, the deputies made a right-hand turn and headed south on Abels Avenue. When the turn was made, the squad car was within three car lengths of the Ford. At that moment, Deputy Myers saw the individual in the middle move towards the right and the driver lean "over to the right of the steering wheel and down toward the dashboard."
The deputies immediately turned around and headed back to Meigs Avenue. By the time they turned back onto Meigs, the three individuals had left the Ford and were walking west. The deputies estimated that the three persons were already thirty to forty feet from the Ford. Upon parking the squad car, the deputies approached the threesome and inquired as to what they were doing in the area. Appellee Ricky Bird, who was later identified as the owner and driver, replied that they were attending a party in the area.
While Deputy Myers continued the questioning, Deputy Iliano walked over to the Ford and inspected its interior. Using a flashlight, Iliano looked through the windshield on the driver's side and saw a detached rearview mirror lying on the floor, partially covered by the driver's seat. On the mirror was a white powdery substance, later identified as cocaine. Iliano then asked appellee for his keys and seized the mirror.
Subsequently, appellee was indicted on charges of drug abuse under R.C. 2925.11. Before coming to trial, appellee filed a motion to suppress evidence. After an evidentiary hearing, the trial court granted the motion. The state then filed a timely notice of appeal to this court, pursuant to Crim.R. 12(J), with the following assignment of error:
"The trial court erred in granting appellee's motion to suppress evidence."
In this case, appellee's automobile was searched without a warrant. Such a search is per se unreasonable under the Fourth Amendment, unless an exception to the warrant requirement applies. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. In disputing the trial court's holding, the state argues that the suppressed evidence was properly seized under the plain view doctrine. This argument is without merit.
In Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, a plurality of the Supreme Court alluded to three requirements needed to invoke the plain view doctrine. These criteria have been followed in this state:
"Hence, in order to qualify under the plain view exception, it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent." State v. Williams (1978), 55 Ohio St.2d 82, 85, 9 O.O.3d 81, 83, 377 N.E.2d 1013, 1016.
In relation to the first criterion, the state advances two theories. First, it is argued that the deputies' actions in stopping and questioning appellee constitute an investigative stop. This particular exception to the warrant requirement allows a police officer "to approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. * * *...
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