State v. Pettiford
| Decision Date | 19 March 2018 |
| Docket Number | NO. CA2017–05–010,CA2017–05–010 |
| Citation | 2018 Ohio 1015,109 N.E.3d 18 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Kimball Lee PETTIFORD, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, 1st Floor, Washington C.H., Ohio 43160, for plaintiff-appellee
Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-appellant
{¶ 1} Defendant-appellant, Kimball Pettiford, appeals his convictions in the Fayette County Court of Common Pleas for possession of heroin, possession of drug abuse instruments, and illegal possession of drug abuse paraphernalia.
{¶ 2} The Washington Courthouse Police Department received a report of a possible drug overdose and responded to Pettiford's home. Upon arrival, Pettiford was located lying on his back and unresponsive on his front porch. While waiting for the medical responders to arrive, the responding officer observed through a closed screen door a dog leash looped through itself to form a tourniquet, as well as hypodermic syringes sitting on the table within six to seven feet inside Pettiford's home. Police announced their presence, but no one answered inside the home.
{¶ 3} Pettiford regained consciousness and claimed that he had been consuming alcohol and that he had not been inside the house the entire day. Police placed Pettiford in a police cruiser after he refused medical assistance. Police then seized the dog leash, hypodermic syringes, a cup, a spoon, and a cotton ball. Officers also seized a white piece of paper containing a powder substance and a small rock near the paper. Officers performed a field test of the seized substances, and the test was positive for heroin.
{¶ 4} Pettiford was arrested and later indicted for possession of heroin, drug instruments, and drug abuse paraphernalia. Pettiford pled not guilty, and filed a motion to suppress the items seized from his home. After a hearing on the matter, the trial court overruled the motion to suppress. Pettiford's defense counsel later moved to withdraw from representation, claiming a breakdown in communication after Pettiford blamed counsel for the trial court's denial of the motion to suppress. The trial court granted defense counsel's motion to withdraw, and appointed Pettiford new counsel.
{¶ 5} Pettiford ultimately pled no contest to the charges, and the trial court found him guilty on each. The state and Pettiford submitted an agreed sentence, which was accepted by the trial court, of six months on count one, 90 days on count two, and 30 days on count three, with all sentences to be served concurrently. Pettiford now appeals his convictions, raising the following assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN APPLYING THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT IN DENYING PETTIFORD'S MOTION TO SUPPRESS IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.
{¶ 8} Pettiford argues in his first assignment of error that the trial court erred in denying his motion to suppress.
{¶ 9} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court assumes the role of the trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Id. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. Accepting these facts as true, the appellate court must then independently determine, as a matter of law, and without deference to the trial court's conclusions, whether the trial court applied the proper legal standard. Id.
{¶ 10} The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their * * * houses * * * against unreasonable searches and seizures." Warrantless searches are per se unreasonable unless one of the well-delineated exceptions applies. State v. Kelley , 12th Dist. Butler No. CA2009-03-092, 2009-Ohio-5924, 2009 WL 3721018.
{¶ 11} If an individual does not act to preserve the privacy afforded by the Fourth Amendment, "such as by leaving an object in the plain view of the public, then the state has not ‘searched’ within the meaning of the Constitution, because the individual has exposed those objects to others rather than keeping them to himself." State v. Buzzard , 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 15.
{¶ 12} Although society generally respects a person's expectations of privacy in a dwelling, what a person chooses voluntarily to expose to public view thereby loses its Fourth Amendment protection. Id. at ¶ 15. Instead, the "police are free to observe whatever may be seen from a place where they are entitled to be." Id. "Simply put, the Fourth Amendment does not itself ‘draw the blinds the occupant could have drawn but did not.’ " Id. , quoting State v. Smith , 37 N.J. 481, 496, 181 A.2d 761 (N.J.1962).
{¶ 13} These Fourth Amendment principles are inherent in the plain view doctrine. Buzzard , 2007-Ohio-373, 112 Ohio St.3d 451, 860 N.E.2d 1006. The doctrine represents the requirement that an individual must protect his or her privacy, and should an officer observe items in plain view when lawfully on the property, no warrant is required. Id. Thus, it is well-established that pursuant to the plain view doctrine, a police officer lawfully on a person's property may seize evidence in plain view without a warrant. State v. Young , 12th Dist. Warren, 2015-Ohio-1347, 31 N.E.3d 178.
{¶ 14} The plain view doctrine authorizes the warrantless seizure of evidence if the initial intrusion leading to the discovery of the evidence was lawful and the incriminating or illegal nature of the items was immediately apparent. State v. Simmons , 12th Dist. Butler, 2013-Ohio-5088, 5 N.E.3d 670, ¶ 18. The "immediately apparent" requirement is satisfied when police have probable cause to associate an object with criminal activity. Young , 2015-Ohio-1347, 31 N.E.3d 178. The requisite probable cause may arise from the character of the property itself or the circumstances in which it is discovered, and police officers may rely on their specialized knowledge, training, and experience in establishing probable cause to identify items as contraband. Id.
{¶ 15} Another exception to the warrant requirement occurs when officers encounter exigent circumstances. The Ohio Supreme Court applies exigent circumstances as an exception to the warrant requirement for instances of both search and seizure. State v. Moore , 90 Ohio St.3d 47, 734 N.E.2d 804 (2000). "The exigencies of [a] situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." State v. Fletcher , 12th Dist. Brown, 2017-Ohio-1006, 86 N.E.3d 591, ¶ 33. This exception justifies a warrantless entry into a residence in certain situations, including when entry is necessary to protect the safety and well-being of police officers or others. Id. The Fourth Amendment considers a warrantless entry reasonable as long as the circumstances, when viewed objectively, justify the entry. Brigham City v. Stuart , 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).
{¶ 16} "The exigent circumstances doctrine requires probable cause plus exigent circumstances to effectuate a warrantless entry of [a] home." State v. Wilson , 12th Dist. Clinton No. CA2006-03-008, 2007-Ohio-353, 2007 WL 210367, ¶ 22. "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that [an] offense has been committed." State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 73. In determining whether probable cause exists, a court must look at the "totality of the circumstances." State v. Christopher , 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, 2010 WL 1660489, ¶ 16. Probable cause is viewed under an objective standard. State v. Watson , 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, 2015 WL 3672548, ¶ 14.
{¶ 17} During the hearing on Pettiford's motion to suppress, the state presented evidence that officers seized the items from Pettiford's house with constitutional authority. First, and regarding plain view, the record is clear that officers were legally on the premises because they were responding to an emergency call that someone had overdosed at Pettiford's residence. Upon arrival, officers located Pettiford on the front porch of his home and were legally on the premises as first responders to offer emergency assistance.
{¶ 18} The responding officer testified at the hearing that when he arrived at Pettiford's residence, he observed the unresponsive Pettiford lying on the porch. The officer then approached to check Pettiford's vital signs, entering the porch area necessarily. Once there, the officer could see into the living room through the open front door and closed screen door. The officer testified that the items of contraband were approximately six to seven feet away from him when he initially made his observation. The officer clearly observed a dog leash fashioned into a tourniquet and well as hypodermic syringes. The officer seized the items he observed in plain view, and only those items.
{¶ 19} In addition to being on the premises legally, we also find that the incriminating or illegal nature of the items was immediately apparent and that officers had probable cause to associate the objects with criminal activity. The officer testified that the dog leash was looped through itself to be used as a tourniquet and that he also observed syringes on the table. Tourniquets and syringes are drug paraphernalia commonly used to assist in the injection of heroin, and the nature of the...
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