State v. Higgins

• Citation: 183 Ohio App.3d 465,2009 Ohio 3979,917 N.E.2d 363
• Decision Date: 06 August 2009
• Docket Number: No. 08-CA-57.,08-CA-57.
• Parties: The STATE of Ohio, Appellant, v. HIGGINS, Appellee.
• Court: United States Court of Appeals (Ohio)

917 N.E.2d 363

183 Ohio App.3d 465

2009-Ohio-3979

The STATE of Ohio, Appellant, v. HIGGINS, Appellee.

No. 08-CA-57.

Court of Appeals of Ohio, Fifth District, Fairfield County.

Decided August 6, 2009.

David L. Landefeld, Fairfield County Prosecuting Attorney, and Gregg Marx, Assistant Prosecuting Attorney, for appellant.

Dagger, Johnston, Miller, Ogilvie & Hampton and Aaron R. Conrad, for appellee.

DELANEY, Judge.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the trial court's entry suppressing evidence of marijuana found on the person of appellee-defendant, Ashley Higgins, when she visited an inmate in the Southeastern Ohio Correctional Institution ("SCI"), as well as statements that appellee made to law-enforcement officers at that time.

{¶ 2} The facts giving rise to the current appeal are:

{¶ 3} Ohio State Highway Patrol Trooper Rebekka Robinson is assigned as a plainclothes investigator working at SCI. Trooper Robinson had been investigating inmate Donel Harris, who was receiving drugs from visitors at SCI. In the course of her investigation, trooper Robinson reviewed Harris's visitation records and his recorded telephone conversations and discovered that appellee was one of two females who were visiting Harris.

{¶ 4} In August 2007, trooper Robinson monitored a phone call between Harris and appellee in which appellee mentioned "weed," which caused Harris to become upset. On August 2, 2007, Harris called appellee, and appellee mentioned "weed." In a second conversation that same day, Harris mentioned that appellee was picking "it" up. On August 5, 2007, Harris again called appellee and told her that his cell had been the target of a shakedown and that "this shit is over, never again, fuck no * * * that shit is officially over."

{¶ 5} The next contact between Harris and appellee was on December 30, 2007, when appellee visited Harris in prison. After that visit, officers were given a tip that Harris was going to have drugs brought to him in the prison. On January 11, 2008, appellee again visited Harris. The visit was monitored by video camera, but no illicit activity was observed.

{¶ 6} Appellee planned to visit Harris on January 20, 2008, and trooper Robinson was informed of her visit. Trooper Robinson observed appellee enter SCI. In order to enter the prison, appellee had to pass several signs before entering the prison. The first sign, which was clearly posted in the parking lot of the prison, stated, "NOTICE. ANY PERSON ENTERING THESE PREMISES SHALL BE SUBJECT TO SEARCH AT ANY TIME." The second sign, posted immediately outside the visitors' entrance to the prison, stated, "STATE LAW EFFECTIVE 5/23/78. Section 2921.36 O.R.C. PROHIBITS Conveying onto the grounds of a detention facility or deliver of items to inmates thereof: 1. Any deadly weapons or parts thereof, or ammunition. 2. Any drugs. 3. Any intoxicating liquors. FURTHERMORE Whoever violates above section is subject to arrest by detention authorities. PENALTY A felony or misdemeanor." A third sign, posted inside the prison, stated, "STOP. No Weapons No Cell Phones No Drugs."

{¶ 7} After appellee emptied her pockets, she was given a visitor's pass and she walked through the security door. At that time, trooper Robinson approached appellee and stated, "I'm Trooper Robinson. I need to talk to you." Appellee agreed to speak with trooper Robinson, and they walked to an interview room on the second floor of the building.

{¶ 8} Trooper Robinson informed appellee that she believed that appellee had brought marijuana to inmate Harris previously and that she knew that appellee had brought more marijuana with her on that date. Trooper Robinson then told appellee that she needed to hand the drugs over to her. Appellee moved her hand to her left bra cup and pulled out a bag containing six individual bags of marijuana and placed the larger bag on the table.

{¶ 9} Trooper Robinson testified that at that time, appellee was not in custody and that had she expressed a desire to leave, she would have been free to do so. After appellee removed the marijuana from her bra, trooper Robinson patted appellee down to ensure that appellee did not have any additional contraband on her person. Trooper Robinson then advised appellee of her Miranda rights; appellee waived those rights and wrote out a statement admitting that she had brought marijuana into the prison on one previous occasion for Harris.

{¶ 10} Appellee was indicted on March 28, 2008, on one count of illegal conveyance of drugs of abuse onto the grounds of a detention facility, a felony of the third degree, in violation of R.C. 2921.36. She filed a motion to suppress evidence and requested an oral hearing. A hearing was held, and the court sustained her motion, finding that the evidence had been illegally seized. The court, however, did state that appellee's expectation of privacy was not violated and that she was not searched within the meaning of the Fourth Amendment. The trial court also determined that trooper Robinson did not possess reasonable suspicion in which she could detain appellee for an investigatory stop.

{¶ 11} Appellant now appeals from the trial court's judgment entry and raises one assignment of error:

{¶ 12} "I. The trial court's decision granting defendant's motion to suppress evidence was an abuse of discretion."

I

{¶ 13} In its sole assignment of error, appellant, the state of Ohio, asserts that the trial court erred when it suppressed evidence resulting from the defendant's encounter with a law-enforcement officer at the prison, which resulted in the discovery of illegal drugs being transported by defendant into the prison.

{¶ 14} Appellate review of a trial court's decision to grant a motion to suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Medcalf (1996), 111 Ohio App.3d 142, 675 N.E.2d 1268. Accepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the applicable legal standard. State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.

{¶ 15} There are three methods of challenging a trial court's ruling on a motion to suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court's findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Claytor (1994), 85 Ohio App.3d 623, 620 N.E.2d 906.

{¶ 16} Appellant challenges the trial court's judgment entry on two separate grounds: first, that the trial court's findings of facts were not supported by the manifest weight of the evidence;¹ and second, that the trial court erred in making the ultimate decision on the issues raised in appellee's motion to suppress.

{¶ 17} In analyzing these claims, we must consider the purpose of the Fourth Amendment as well as R.C. 2921.36 and 5120.421.

{¶ 18} The Fourth Amendment of the Constitution of the United States guarantees each citizen a right to be free from unreasonable governmental intrusions. Specifically, it states:

{¶ 19} "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

{¶ 20} "The Fourth Amendment's prohibition against unreasonable searches and seizures has always been interpreted to prevent a search that is not limited to the particularly described `place to be searched, and the persons or things to be seized,' U.S. Const., Amend. IV, even if the search is made pursuant to a warrant and based upon probable cause." Florida v. Royer (1983), 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229.

{¶ 21} The predicate for permitting seizures on suspicion short of probable cause "is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id. at 500, 103 S.Ct. 1319, 75 L.Ed.2d 229, citing United States v. Brignoni-Ponce, 422 U.S. 873, 881-882, 95 S.Ct. 2574, 45 L.Ed.2d 607; Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612.

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