State v. Burroughs
| Citation | 158 N.E.3d 699 |
| Decision Date | 14 September 2020 |
| Docket Number | NO. 9-19-91,9-19-91 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Kennedy M. BURROUGHS, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
{¶1} Defendant-appellant, Kennedy M. Burroughs ("Burroughs"), appeals the November 26, 2019 judgment entry of sentence the Marion County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from the January 27, 2019 execution of a warrant for Burroughs's arrest for a misdemeanor-obstruction offense by Officer Chris Coburn ("Officer Coburn")—along with two additional officers—of the Marion Police Department at Burroughs's residence in Marion. (Aug. 6, 2019 Tr. at 3-4, 16). When law enforcement arrived at Burroughs's residence, Officer Coburn informed Burroughs that "she had a warrant and then she shut the door and locked it." (Id. at 4). After Burroughs closed and locked the door, Officer Coburn "looked to the window and saw her grabbing a bunch of plastic baggies and running to the back of the house." (Id. at 5). However, Officer Coburn did not know what was in the baggies. (Id. at 17).
{¶3} Thereafter, law enforcement entered the residence and Officer Coburn found Burroughs (with only her phone in her hand) and a juvenile in a bedroom—the portion of the house to which he saw Burroughs retreat with the plastic baggies. (Id. at 6). . Suspecting that Burroughs may have destroyed evidence, Officer Coburn (Aug. 6, 2019 Tr. at 6). While inspecting the toilet, Officer Coburn saw a "zipped" (or closed) bookbag with "a plastic baggie hanging out of it" sitting next to the toilet in the bathroom. (Id. at 6, 11). However, he could not see what was in the plastic baggie and "[n]othing else about that bag showed that there was contraband or weapons or anything in that bag * * *." (Id. at 20-21). Officer Coburn also saw in plain view "a bunch of marijuana shake and roaches" next to the bed in the bedroom in which he found Burroughs. (Id. at 11).
{¶4} Officer Coburn executed the warrant and arrested Burroughs. (Id. at 21). He then escorted her and the juvenile to the living room prior to transferring Burroughs to a police cruiser, and waited "for Lieutenant [Mark] Elliott [("Lieutenant Elliott")] to get there and kind of take over on the decision making." (Id. at 13, 21-22). The residence was secure prior to Lieutenant Elliott's arrival. (Id. at 23).
{¶5} After Lieutenant Elliott arrived at the residence, he detected an odor of marijuana in the residence and observed "marijuana shake in areas of the house." (Id. at 47). Lieutenant Elliott asked Officer Coburn where the bathroom was located, then went to the bathroom (without going to any other portion of the residence) to conduct a "sweep" for officer safety. (Id. at 62, 64). (See also id. at 73-74). He (Id. at 46). Lieutenant Elliott saw "[p]ieces of plastic baggies" hanging out of the bookbag but could not see what was inside the plastic baggies. (Id. at 53).
{¶6} According to Lieutenant Elliott, the other officers at the scene (prior to his arrival to the residence) relayed to him by radio that Burroughs "shut the door in their face" when they informed her that they were there to serve the arrest warrant and "said they saw her running to the back of the house to dispose of evidence." (Id. at 46). However, Lieutenant Elliott could not recall (prior to him opening the bookbag) whether he knew that Burroughs was collecting the plastic baggies when Officer Coburn saw her run to the back of the residence. (Id. at 46-47).
{¶7} Likewise, Lieutenant Elliott did not see "anything in a plastic baggie before [opening the bookbag] in the house"—he only suspected that contraband might be found in the bookbag; however, his main purpose for searching the bookbag was to search for weapons. (Id. at 49, 53-54, 59). When Lieutenant Elliott opened the bookbag, he discovered marijuana. (Id. at 14, 46). Because he did not find any weapons, Lieutenant Elliott abandoned the bookbag and left the scene while the other law enforcement officers looked for additional drug evidence in the residence, finding "marijuana edibles next to the bed." (Id. at 15, 48).
{¶8} On May 15, 2019, the Marion County Grand Jury indicted Burroughs on one count of possession of marijuana in violation of R.C. 2925.11(A), (C)(3), a fifth-degree felony. (Doc. No. 1). Burroughs appeared for arraignment on May 20, 2019 and entered a plea of not guilty. (Doc. No. 4).
{¶9} On July 19, 2019, Burroughs filed a motion to suppress evidence, alleging that law enforcement unlawfully searched the bookbag and a green cup found in the bathroom of her residence. (Doc. No. 16). The State filed a memorandum in opposition to Burroughs's motion to suppress evidence on August 6, 2019. (Doc. No. 21). After a suppression hearing on August 6, 2019, the trial court on August 15, 2019 denied Burroughs's motion to suppress evidence after concluding that law enforcement had "a lawful basis to open the bookbag since it was found in plain view and because he had probable cause to conclude that it contained contraband."1 (Doc. No. 22).
{¶10} On September 23, 2019, Burroughs withdrew her plea of not guilty and entered a plea of no contest to possessing marijuana. (Doc. No. 24). The trial court accepted Burroughs's no-contest plea and found her guilty. (Doc. Nos. 24, 27); (Sept, 23, 2019 Tr. at 16). On November 25, 2019, the trial court sentenced Burroughs to two years of community control. (Doc. No. 27); (Nov. 25, 2019 Tr. at 4). The trial court filed its judgment entry of sentence on November 26, 2019. (Doc. No. 27).
{¶11} On December 26, 2019, Burroughs filed a notice of appeal, and raises one assignment of error for our review. (Doc. No. 28).
The Trial Court Erred In Denying Defendant, Appellant's Motion to Suppress Evidence.
{¶12} In her sole assignment of error, Burroughs argues that the trial court erred by denying her motion to suppress evidence. Specifically, Burroughs argues that law enforcement's search and seizure of the bookbag found in her bathroom was conducted without a warrant and not pursuant to any exception to the warrant requirement of the Fourth Amendment.
{¶13} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter , 72 Ohio St.3d 545, 552, 651 N.E.2d 965 (1995). When reviewing a ruling on a motion to suppress, "an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8, citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). With respect to the trial court's conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id. , citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
{¶14} "The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Ohio Constitution, Article I, Section 14, protects individuals against ‘unreasonable searches and seizures’ by the government and protects privacy interests where an individual has a reasonable expectation of privacy." State v. Fielding , 10th Dist. Franklin, 2014-Ohio-3105, 15 N.E.3d 912, ¶ 15, quoting Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See also State v. Steinbrunner , 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, 2012 WL 1926395, ¶ 12. "An expectation of privacy is protected by the Fourth Amendment where (1) an individual has exhibited a subjective expectation of privacy, and (2) that expectation of privacy is one that ‘society is prepared to recognize as "reasonable." ’ " Fielding at ¶ 15, quoting Smith at 740, 99 S.Ct. 2577, quoting Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). "Generally, any evidence obtained in violation of the Fourth Amendment, as well as any evidence seized subsequent to such violation, must be suppressed as ‘fruit of the poisonous tree.’ " Id. , quoting Wong Sun v. United States , 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also State v. Jenkins , 3d Dist. Union No. 14-10-10, 2010-Ohio-5943, 2010 WL 4962840, ¶ 9 (), citing Mapp v. Ohio , 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Weeks v. United States , 232 U.S. 383, 394, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
{¶15} Warrantless searches and seizures of person's home and personal property are presumed unreasonable unless an exception to the warrant requirement is shown. See State v. Jackson , 12th Dist. Madison No. CA2019-03-006, 2020-Ohio-2677, 2020 WL 1983756, ¶ 19 (...
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