State v. Dean C. Claytor
| Decision Date | 30 March 1993 |
| Docket Number | 93-LW-0932,1842 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. DEAN C. CLAYTOR, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Thomas M. Spetnagel, 42 East Fifth St Chillicothe, Ohio 45601.
COUNSEL FOR APPELLEE: Richard G. Ward, Prosecuting Attorney, 20 South Paint St., Chillicothe, Ohio 45601.
DECISION
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 of 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:
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 didn't 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 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 the 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.
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. 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, 437 N.E.2d 583; State v. Tutt (Apr. 14, 1986), Warren App. No. CA85-09-056, unreported. 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. 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; State v. Simmons (Aug. 30, 1990), Washington App. No. 89CA18, unreported.
The Fourth Amendment protects against unreasonable government intrusions into areas where legitimate expectations of privacy exist. U.S. 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. U.S. (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 v. U.S. (1967), 389 U.S. 347; California v. Ciraolo (1986), 476 U.S. 207.
The plain view.exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what observed the cocaine, there is no reason why the office would be precluded from viewing what would be visible to him as a private citizen. See State v. Howell (Apr. 23, 1991) Ross App. No. 1679, unreported; People v. Caserta (Ill.App.1984) 463 N.E.2d 190; and 1 LaFave, Search and Seizure (1987), 429, Section 2.4(b).
Appellant urges us to consider State v. Bird (1988), 49 Ohio App.3d 156, 551 N.E.2d 622, in support of his assertion that the officer did not have a right to be where he stood looking into the Honda. In Bird, two officers observed three individuals in the front seat of a Ford. When within three car lengths of the Ford, one of the officers noticed the individual in the middle lean toward the right and the driver lean "over to the right of the steering wheel and down toward the dashboard." The officers turned to follow the Ford, and found the Ford parked and the three individuals walking thirty to forty feet away from the Ford.
When one of the officers questioned the three individuals, the other officer walked over to the Ford and shined a flashlight through the windshield on the driver's side. He noticed a detached rearview mirror laying on the floor. On the mirror was a white powdery substance subsequently identified as cocaine. The officer asked Bird for his keys, and seized the mirror.
The trial court granted Bird's motion to suppress and the ...
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