State v. Claytor

• Citation: 620 N.E.2d 906,85 Ohio App.3d 623
• Decision Date: 30 March 1993
• Docket Number: No. 1842,1842
• Parties: The STATE of Ohio, Appellee, v. CLAYTOR, Appellant. *
• Court: United States Court of Appeals (Ohio)

Page 623

85 Ohio App.3d 623

620 N.E.2d 906

The STATE of Ohio, Appellee, v. CLAYTOR, Appellant. ^*

No. 1842.

Court of Appeals of Ohio, Fourth District, Ross County.

Decided March 30, 1993.

Richard G. Ward, Ross County Pros. Atty., for appellee.

Thomas M. Spetnagel, Chillicothe, for appellant.

PETER B. ABELE, Judge.

This is an appeal from a judgment of conviction and sentence entered by the Ross County Common Pleas Court finding Dean C. Claytor, defendant below and appellant herein, guilty of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(4). ¹

Appellant assigns the following errors:

First Assignment of Error:

"The trial court erred, to the prejudice of appellant, in overruling appellant's motion to suppress."

Second Assignment of Error:

"The trial court erred in finding that appellant was in possession of a controlled substance and such finding is contrary to law and against the manifest weight of the evidence."

Shortly before midnight on May 5, 1991, Chillicothe Police Officer Thomas Cunningham patrolled the area of Anderson's Bar and Grill. When he drove his patrol car to the rear of Anderson's parking lot, he observed appellant sitting inside a gray Honda Accord and a man standing outside the car next to the driver's door. The two men talked for about two minutes, and then both left the car and walked into the bar.

Shortly after the two men walked into the bar, the police dispatcher sent Officer Cunningham to 470 Locust Street to investigate a disturbing-the-peace call. As Officer Cunningham drove toward Locust Street, he realized there is no 470 Locust Street. The police dispatcher advised Officer Cunningham to patrol the Locust Street area anyway.

After patrolling the Locust Street area and finding no disturbance, Officer Cunningham returned to Anderson's Bar and Grill. When asked why he returned to Anderson's, he testified:

"Q. Why did you go back towards Anderson's?

"A. I uh--believe that I was pulled off the lot at Anderson's for a reason. So I drove back to Anderson's to--to see what was happening back there then."

When he arrived at Anderson's shortly after midnight, he again observed appellant sitting inside the same gray Honda Accord, the other man standing outside the open driver's door, and a woman sitting in the car's passenger's seat.

As soon as Officer Cunningham drove into the parking lot, the woman opened the passenger side door, exited the vehicle, and walked toward the bar. The man outside the vehicle left the driver's side of the vehicle and began walking west toward the front entrance of the parking lot. The appellant then exited the vehicle on the driver's side and ran after the other man. Officer Cunningham lost sight of the two men as they walked to the front of the building.

Next, Officer Cunningham exited his cruiser, walked to the Honda, looked through the window, and observed an open plastic baggie containing a white powder on the driver's seat where appellant had been sitting. Officer Cunningham testified he later discovered the baggie contained a large chunk of powder, and, therefore, he did not believe it was possible that appellant had been sitting on the powder.

Officer Cunningham called for assistance. After discussing the situation with the assisting officer, Chillicothe Police Officer Dana Cousins, Officer Cunningham used a device known as a "Lock Jock" to open the driver's door of the Honda and secure the baggie with the white powder. An Ohio Bureau of Criminal Investigation and Identification expert testified the baggie contained 11.2 grams of cocaine.

After the officers removed the cocaine from the Honda, they observed a rust-colored Audi driving through the parking lot. Officer Cunningham noticed that appellant and the other man he had seen earlier in and near the Honda were now in the Audi. The Audi drove through the parking lot, around the block, and stopped up in front of Anderson's Bar and Grill.

Officer Cunningham began walking toward the Audi and appellant began walking toward Officer Cunningham. Officer Cunningham stopped appellant and advised him of his Miranda warnings. When told about the white powder found in his driver's seat, appellant denied any knowledge of the substance and said someone must have planted it in the Honda. Appellant persisted with his story even after Officer Cunningham informed him that no one had been around the Honda since he had exited the vehicle.

At trial, Officer Cunningham identified appellant. Officer Cousins corroborated Officer Cunningham's testimony about the false call to Locust Street and about the white powder in the baggie on the Honda's driver's seat.

On May 10, 1991, the grand jury indicted appellant for possession of cocaine in violation of R.C. 2925.03(A)(4). On June 11, 1991, appellant filed a motion to suppress the cocaine, arguing the plain view exception to the exclusionary rule does not apply in the case sub judice.

Appellant waived his right to a trial by jury and agreed to have the motion to suppress heard concurrently with the trial on the merits. The court conducted a joint trial and motion hearing on November 6, 1991. The court overruled the motion to suppress and found appellant guilty as charged in the indictment. On December 20, 1991, the court entered judgment sentencing appellant to a one and one-half year definite term of actual incarceration in the Ohio Penitentiary, and fining appellant $3,000.

Appellant filed a timely notice of appeal.

I

In his first assignment of error, appellant asserts the court erred by overruling his motion to suppress evidence. In particular, appellant asserts the plain view exception to the exclusionary rule does not apply to the case sub judice. Appellant urges us to focus on what justification Officer Cunningham used to place himself in a position to observe the cocaine in the Honda. Appellant contends Officer Cunningham had insufficient justification to place himself in a position to look through the vehicle's window.

In a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Warren (Aug. 12, 1991), Hocking App. No. 90CA7, unreported, 1991 WL 156521. Thus, the credibility of witnesses during a motion to suppress evidence hearing is a matter for the trial court. A reviewing court should not disturb the trial court's findings on the issue of credibility. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583; State v. Tutt (Apr. 14, 1986), Warren App. No. CA85-09-056, unreported, 1986 WL 4506. Accordingly, in our review we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. DePalma (Jan. 18, 1991), Ross App. No. 1633, unreported, 1991 WL 13824. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. See State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported, 1991 WL 87312; State v. Simmons (Aug. 30, 1990), Washington App. No. 89CA18, unreported, 1990 WL 127065.

The Fourth Amendment protects against unreasonable government intrusions into areas where legitimate expectations of privacy exist. United States v. Chadwick (1977), 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject to only a few specifically established and well-delineated exceptions." Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290; Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; and Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. The touchstone of a Fourth Amendment analysis of lawfulness of a search is whether a person has a constitutionally protected reasonable expectation of privacy. Katz, supra; California v. Ciraolo (1986), 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210.

The plain view exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. Coolidge, supra; Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; State v. Halczyszak (1986), 25 Ohio St.3d 301, 25 OBR 360, 496 N.E.2d 925; State v. Williams (1978), 55 Ohio St.2d 82, 9 O.O.3d 81, 377 N.E.2d 1013, paragraph one of the syllabus; Athens v. Wolf (1974), 38 Ohio St.2d 237, 67 O.O.2d 317, 313 N.E.2d 405. For the plain view doctrine to apply to permit a warrantless seizure, the police officer must not only be located in a place where the officer has a right to be, but the officer must also have lawful right or access to the object in plain view. See, also, Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112; State v. Benner (1988), 40 Ohio St.3d 301, 307-308, 533 N.E.2d 701, 709; State v. Sage (1987), 31 Ohio St.3d 173, 185, 31 OBR 375, 385, 510 N.E.2d 343, 352.

Appellant correctly argues the plain view exception applies only where the officer first made a lawful initial intrusion or otherwise was in a position where he could view the contraband. Appellant, however, incorrectly contends Officer Cunningham did not properly place himself in a position where he could view the interior of appellant's vehicle. When Officer Cunningham stood beside the Honda, he stood in Anderson's Bar and Grill's public parking lot during business hours. Officer Cunningham testified the white powder was clearly visible on the driver's seat. Because any...