State v. Littell

• Decision Date: 22 October 2014
• Docket Number: No. 27020.,27020.
• Citation: 21 N.E.3d 675
• Parties: STATE of Ohio, Appellee, v. Brian A. LITTELL, Appellant.
• Court: Ohio Court of Appeals

21 N.E.3d 675

STATE of Ohio, Appellee

v.Brian A. LITTELL, Appellant.

No. 27020.

Court of Appeals of Ohio, Ninth District, Summit County.

Oct. 22, 2014.

Shubhra N. Agarwal, Attorney at Law, for Appellant.

Sherri Bevan Walsh, Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

HENSAL, Presiding Judge.

{¶ 1} Defendant–Appellant, Brian Littell, appeals from the judgment of the Summit County Court of Common Pleas, denying his motion to suppress. This Court reverses.

I.

{¶ 2} On August 20, 2012, three law enforcement officials tasked with marijuana eradication were conducting aerial surveillance of Summit County. One of the officials, Kim Nusser, spotted what he believed to be marijuana plants growing in the backyard of a residence in Bath. He also recalled that, two years prior, he had spotted marijuana growing at that same residence. Agent Nusser relayed the location of the residence to law enforcement officials on the ground. He also relayed that there was a “stockade-like fence” surrounding the backyard of the residence and abutting the house, but that the back side of the fence appeared to be down. Accordingly, only two sides of the fence (those abutting the house on each side) were standing.

{¶ 3} One officer on the ground knocked on the front door of the residence, but no one answered. Other officers went into the backyard. Officer Michael Yovanno, the only officer on the ground who testified at the later suppression hearing, testified that he remained at the front door while his colleagues walked to the back of the house. Officer Yovanno testified that, by the time he walked to the back of the house, his colleagues had removed the marijuana plants from their pots. According to Officer Yovanno, his fellow officers told him that the marijuana was in plain view when they walked to the back of the house.

{¶ 4} Once the police entered the backyard, they were able to observe a ventilation system at the rear of the house and Officer Yovanno was able to detect the odor of marijuana in the ventilated air. Subsequently, Officer Yovanno obtained a search warrant for a search of the residence, which belonged to Mr. Littell. The search of the residence uncovered equipment used to grow marijuana and multiple firearms.

{¶ 5} A grand jury indicted Mr. Littell on charges of illegal cultivation of marijuana and having weapons while under disability. Mr. Littell initially pleaded not guilty to the charges and filed a motion to suppress. After the trial court denied his motion, however, Mr. Littell withdrew his initial plea and pleaded no contest to both charges. The trial court sentenced him to a fine and 36 months of community control.

{¶ 6} Mr. Littell now appeals and raises one assignment of error for our review.

II.ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT DENIED [MR.] LITTELL'S MOTION TO SUPPRESS.

{¶ 7} In his sole assignment of error, Mr. Littell argues that the trial court erred by denying his motion to suppress. We agree.

{¶ 8} The Ohio Supreme Court has held that:

[a]ppellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 9} The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio Constitution, Article I, Section 14. “[P]olice officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). The same is true with respect to curtilage, as curtilage is “part of the home itself for Fourth Amendment purposes.” Florida v. Jardines, –––U.S. ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013), quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). “[A] search conducted without a warrant issued upon probable cause is ‘per se unreasonable * * * subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The State bears the burden of establishing that one of the exceptions applies. State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1252 (1978). One such exception is the plain view exception. State v. Underwood, 9th Dist. Medina No. 10CA0048–M, 2011-Ohio-5703, 2011 WL 5329816, ¶ 11, quoting State v. Akron Airport Post No. 8975, Veterans of Foreign Wars of U.S., 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985).

{¶ 10} Under the plain view exception, “an officer may seize an item without a warrant if the initial intrusion leading to the item's discovery was lawful and it was ‘immediately apparent’ that the item was incriminating.” State v. Waddy, 63 Ohio St.3d 424, 442, 588 N.E.2d 819 (1992), superseded on other grounds, State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. “The discovery need not be inadvertent.” Waddy at 442, 588 N.E.2d 819, fn. 5, citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The officer must, however, “be lawfully located in a place from which the object can be plainly seen” and have “a lawful right of access to the object itself.” Horton at 137, 110 S.Ct. 2301. Accord Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The plain view exception gives rise to probable cause, but it does not allow an officer to unlawfully trespass upon property to seize an item in the absence of a warrant, consent, or some other recognized exigency. Soldal v. Cook County, Ill., 506 U.S. 56, 66, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) ; Texas v. Brown, 460 U.S. 730, 738–739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

{¶ 11} In this case, the State does not dispute that Mr. Little's backyard was his curtilage. Because the police did not have a warrant when they entered onto Mr. Littell's curtilage, the burden fell upon the State to demonstrate the existence of an exigent circumstance. See Kessler at 207, 373 N.E.2d 1252. The record reflects that the State failed to meet its burden.

{¶ 12} Agent Nusser, a member of the Bureau of Criminal Identification and Investigation's narcotics section, testified that he was certified in cannabis aerial observation and was acting as a spotter on August 20, 2012. While observing residences in the Bath area from the air, Agent Nusser spotted what he believed to be several marijuana plants in the backyard of one particular residence. He testified that the backyard of the residence had a “stockade-like fence,” but that the back side of the fence was not in an upright position. Specifically, it appeared to have been “taken down or blown down.” Agent Nusser recalled that he had spotted marijuana growing at the same residence two years earlier and relayed his observations to officers on the ground. He could not remember where the plants were located in the backyard, but did recall that he did not see any people around the residence the entire time he observed it. The helicopter hovered over the residence until the officers on the ground arrived.

{¶ 13} Rather than apply for a warrant based on the aerial observation that had occurred, officers on the ground approached Mr. Littell's house and attempted to establish contact. Officer Yovanno was the only officer on the ground who testified at the suppression hearing. He testified that he knocked on the front door of the residence, but no one answered. He also testified, however, that there were other “detectives who went to the rear of the residence to see if they could see any movement inside or attempt to make contact at any other door of the residence.”

{¶ 14} Officer Yovanno testified that he did not immediately walk to Mr. Littell's backyard. Rather, he was at the front door of the house while other officers were “around back.” When “a certain amount of time” had passed and no one had answered the front door, Officer Yovanno walked to the backyard. By the time Officer Yovanno walked to the back of the house, other officers had already entered the backyard and pulled all of the marijuana plants growing there from their pots. Officer Yovanno testified that he did not know where his fellow officers were standing when they observed the plants. The other officers told him that the plants were in plain view when they came into the backyard. He testified that he secured a warrant to search the house after the marijuana had been seized and after he saw a ventilation system on the house and detected the odor of marijuana coming from the ventilated air.

{¶ 15} The trial court assumed for purposes of its analysis that Mr. Littell had a privacy interest in his backyard, but determined that the police did not violate his rights when they entered it. The court wrote:

When no one answered the front door, Officer Yovlanno (sic) went around to the back yard to knock on the back door in an attempt to question whoever may have been at home. Once in the back yard, Officer Yovlanno (sic) observed the marijuana plants that had been observed from the air. Officer Yovlanno (sic) then obtained a warrant to search defendant's residence.

* * *

[T]he officers did not seize the plants immediately, but

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