State v. George Mihalke Iii

• Decision Date: 02 March 1989
• Docket Number: 89-LW-0589,55047
• Parties: STATE Of Ohio, Plaintiff-Appellee, v. George MIHALKE III, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE Of Ohio, Plaintiff-Appellee, v. George MIHALKE III, Defendant-Appellant.

No. 55047.

89-LW-0589 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

March 2, 1989

Criminal appeal from Common Pleas Court, No. CR-216974.

John T Corrigan, Cuyahoga County Prosecutor, Cleveland, for plaintiff-appellee.

Richard H. Siegel, Cleveland, for defendant-appellant.

JOURNAL ENTRY and OPINION

MARK K WIEST, Judge ®*¯.

Defendant-appellant, George Mihalke, appeals from a judgment of the Cuyahoga County Court of Common Pleas which overruled his motion to suppress evidence.

On April 8, 1987, a detective from the Narcotics Unit of the Cleveland Police Department executed an affidavit in an effort to obtain a search warrant for the appellant's residence which was located at 2163 West 45 Street Cleveland, Ohio. Based upon the affidavit, a search warrant was issued which provided for a search of the appellant's residence, the curtilage of the residence, any persons found therein, and a black Buick Riviera.

On April 8, 1987 at approximately 8:00 p.m., the search warrant was served upon the appellant at his residence. The search of the appellant's residence resulted in the discovery of marijuana, psilocybin, drug paraphernalia, and two firearms. In addition to the search of the appellant's residence, the police conducted a search of a motor home, titled in the name of appellant's father, which was parked in a private driveway outside of the appellant's residence. A search of the motor home resulted in the discovery of marijuana, psilocybin, $10,000 in cash, and a triple beam balance scale. The motor home had been parked in the driveway during the three weeks immediately prior to the search.

On June 5, 1987, the appellant was indicted by the grand jury of Cuyahoga County for possession of marijuana in an amount equal to or exceeding three times the bulk amount in violation of R.C. 2925.03, possession of psilocybin in an amount equal to or exceeding three times the bulk amount in violation of R.C. 2925.03, and possessing criminal tools in violation of R.C. 2923.24.

On June 19, 1987, the appellant was arraigned and he entered a plea of not guilty to the indictment.

On October 13, 1987, the trial court conducted a hearing on appellant's motion to suppress evidence which was seized from the motor home. The motion to suppress was denied by the trial court.

On December 3, 1987, a jury trial began on all three counts of the indictment.

On December 8, 1987, the jury found appellant guilty as charged.

The appellant was immediately sentenced to fines and imprisonment.

This timely appeal followed.

The appellant's sole assignment of error is that:

"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE AND IN PERMITTING THE JURY TO CONSIDER EVIDENCE OF CONTROLLED SUBSTANCES (SCHEDULE I DRUGS) AND VARIOUS CRIMINAL TOOLS OBTAINED IN A WARRANTLESS SEARCH OF A LOCKED MOTOR HOME * * *."

The appellant argues that the trial court erred in overruling his motion to suppress evidence seized from a motor home parked in his driveway. The warrant did not authorize a search of the motor home. The issue presented is whether a search of the motor home is authorized as within the curtilage surrounding the residence.

The Court of Appeals of Montgomery County, in State v. Tewell (1983), 9 Ohio App.3d 330, addressed the issue of whether the lawful search of surrounding curtilage extended to a motor vehicle parked in a driveway next to the residence, and held that:

"The Fourth Amendment accommodates people rather than places, and under the facts and cirsumstances (sic) of the present case, the automobile, parked as it was beside the house, was no more private than the implement shed, the dog house, the rabbit hutch, the tool trunk, or any other of a number of chattels which might have served as a hiding place for the objects of the search of the surrounding curtilage.

"A number of other jurisdictions have wrestled with problems closely akin to the one presented in the present case, and most have held that motor vehicles are within the scope of a warrant which refers to the "curtilage' or "premises.' For example, see State v. Lewis (Minn.1978), 270 N.W.2d 891; United States v. Napoli (C.A.5, 1976), 530 F.2d 1198, certiorari denied (1976), 530 F.2d 1198, certiorari denied (1976), 530 F.2d 1198, certiorari denied (1976), 429 U.S. 920; Brooks v. United States (C.A.5, 1969), 416 F.2d 1044, certiorari denied sub nom. Nipp v. United States (1970), 400 U.S. 840; United States v. Cole (C.A.5, 1980) 628 F.2d 897, certiorari denied (1981), 450 U.S. 1043; Alexander v. State (Fla.App.1959), 108 So.2d 308; Bellamy v. State (1975), 134 Ga.App. 340, 214 S.E.2d 383; Whited v. State (Tenn.Crim.App.1972), 483 S.W.2d 594; State v. Reid (1974), 23 N.C.App. 194, 208 S.E.2d 699. Along similar lines, the Supreme Court of Ohio has hinted, at least, that a warrant such as the one in this case would extend to the search of an automobile parked adjacent to a residence. State v. Curtis (1978), 54 Ohio St.2d 128, 132 [8 O.O.3d 121].

"Likewise, we are of the opinion that Tewell's automobile, being located within the surrounding curtilage, was fair game for a reasonable search. As noted in United States v. Ross (1982), 456 U.S. 798, 820-821, "A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. * * *' " State v. Tewell, supra, at 330.

Thus the Court of Appeals of Montgomery County has held that a warrant to search a residence and surrounding curtilage extends to any motor vehicle parked on the driveway next to the residence being...