State v. Steele

• Decision Date: 04 June 1981
• Citation: 2 Ohio App.3d 105,440 N.E.2d 1353,2 OBR 118
• Parties: , 2 O.B.R. 118 The STATE of Ohio, Appellee, v. STEELE, Appellant. *
• Court: Ohio Court of Appeals

Page 105

2 Ohio App.3d 105

440 N.E.2d 1353, 2 O.B.R. 118

The STATE of Ohio, Appellee, v. STEELE, Appellant. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 4, 1981.

Syllabus by the Court

1. The Fourth Amendment right to be free from unreasonable searches and seizures cannot be vicariously asserted. In order to challenge a search or seizure on Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in the area searched, and the burden is upon the defendant to prove facts sufficient to establish such an expectation.

2. Where police officers have reliable information from a police radio broadcast concerning a burglary in progress involving a green truck, and where the police observe a green truck parked on the street a few doors away from the address where the burglary was reported in progress, the police have probable cause sufficient to justify a warrantless search of the truck before it can be driven away.

3. Where the police observe an individual enter a truck which the police have probable cause to believe was involved in a burglary in progress, the police have reasonable cause to question the individual, and their brief detention of the individual for purposes of investigation being supported by an objective justification, is constitutionally permissible.

4. A defendant has not met his burden of proving facts sufficient to establish a legitimate expectation of privacy in an area searched by the police by the mere assertion of a proprietary interest in the area without further producing evidence in support thereof.

5. Where the record establishes a search of a garage by the police was conducted when the property was for sale and the home was unoccupied, the fact of a defendant's ownership of the premises, if established, absent evidence relating to the defendant's use or occupancy of the premises, is insufficient to establish defendant's legitimate expectation of privacy in the garage.

John T. Corrigan, Pros. Atty., for appellee.

James R. Willis, Cleveland, for appellant.

KRUPANSKY, Judge.

On January 31, 1980, Michael Steele, appellant herein, was indicted on six counts of receiving stolen property in violation of R.C. 2913.51. Appellant plead not guilty, and on March 14, 1980, filed a motion to suppress certain physical evidence seized by the police. A hearing was held upon the motion, at which the court heard evidence on the issue of appellant's standing to challenge the conduct of the police as well as the issue of the legality of the search and seizure.

The following evidence was adduced at the hearing.

Officer Newell of the Cleveland Police Department and his partner were called to a residence at 4367 East 143rd Street to investigate a burglary in progress. The call indicated the burglary involved two males and a green truck. Upon approaching the home, the officers took note of a green van parked on East 143rd Street approximately ten to fifteen doors to the north.

The officers found the home at 4367 East 143rd Street secure, and then returned to the green truck parked on the street. Officer Newell testified the "back door was open," ¹ he entered the truck, found the keys on the floor, started the engine which started without incident, copied down the serial and license plate numbers and found a rental agreement indicating the truck had been rented to appellant. The officers took nothing from the truck.

Appellant approached the truck and asked the officers if there was any trouble. When asked why the truck was parked on the street, appellant replied it had broken down. When asked by the police, he produced his driver's license. The address contained on appellant's driver's license was 2180 East 106th Street. Appellant was placed in the back of the police vehicle, which was parked behind the van, while the officers ran a check for warrants. There being no outstanding warrants on either appellant or the truck, appellant was permitted to drive the truck away.

A neighbor working in his yard then informed the officers appellant had come from the driveway at 4316 East 143rd Street. Suspecting that appellant had broken into the home at that address, the officers walked to the home and investigated. They found a "For Sale" sign and also that the premises was unoccupied. Officer Newell's partner walked to the garage, and noticed a window was slightly ajar. Upon looking into the garage, the officers viewed a pickup truck and the front end of a 1978 Oldsmobile with Michigan license plates. Officer Newell and his partner then summoned help, conducted a search of the garage and confiscated the following items: a late model pickup truck, the front end of a 1978 Oldsmobile, approximately $2,500 worth of carpenters' tools found inside and outside the garage, a 1976 Cadillac Eldorado, a set of Michigan license plates, a title to a 1978 Oldsmobile, a driver's license and a title to the 1976 Cadillac. Neither the two titles nor the driver's license were in appellant's name.

With regard to appellant's standing to challenge the search of the garage, appellant, when asked by his counsel, testified he had an ownership interest in the property:

"Q. Now, with reference to the house that was ultimately searched, do you know where that house is located?

"A. Right.

"Q. Did you give anybody--do you have any connection with that property?

"A. I had an interest in it.

" * * *

"Q. Mr. Steele, that property on 143rd Street, who owns that property?

"A. I do." (Emphasis added.)

It is not clear from appellant's testimony whether he claimed an interest in the property at the time of the search. He responded he "had" an interest in the property, but would not say exactly when he held such an interest. When asked how long he owned the property, whether he lived at that address, whether he knew anyone living at that address and whether he discussed that property with the police, appellant refused to answer, relying upon his Fifth Amendment rights.

The only other evidence linking appellant to the property at 4316 East 143rd Street was certain testimony of Officer Beranek. Officer Beranek investigated the ownership of the home and discovered the gas had been shut off and that an electric bill had been paid in 1975, five years earlier, by "a party named Steele." Officer Beranek further testified he found a magazine addressed to appellant at 4316 East 143rd Street on the front porch of the home located at that address, approximately one month after the search. There is no indication who sent the magazine.

Upon hearing the evidence the trial court denied appellant's motion to suppress. Appellant then plead no contest to counts 2, 5 and 6 of the indictment on August 11, 1980. Counts 1, 3 and 4 were nolled by the prosecutor. The trial court found appellant guilty as charged on counts 2, 5 and 6, and sentenced appellant to concurrent prison terms of six months to five years on each of the three counts.

Appellant has timely brought this appeal from the trial court's denial of his motion to suppress, presenting the following as error for review:

"The court erred [in] denying the appellant's motion to suppress."

In his motion to suppress and upon appeal, appellant challenges the legality of the search of the truck, the detention of appellant and the search of the garage and the seizure of its contents.

The Fourth Amendment right to be free from unreasonable searches and seizures cannot be vicariously asserted. In order to challenge a search or seizure on Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in the area searched, and the burden is upon the defendant to prove facts sufficient to establish such an expectation. United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619; Rawlings v. Kentucky (1980), 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633; Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387; Alderman v. United States (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

Although a person possesses a lesser expectation of privacy in his vehicle than in his home, United States v. Chadwick (1977), 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; United States v. Martinez-Fuerte (1976), 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116, appellant established at the suppression hearing that he had rented the truck and had the right to exclude others from it at the time of the search. Nothing in the record indicates appellant abandoned his expectation of privacy in the truck which was legally parked on a public street. Thus, appellant established his right to challenge the reasonableness of the search of the truck by the police.

It is clear from the record the search of the truck was constitutionally permissible. Due to its mobility, a vehicle may be searched without a warrant upon probable cause. Cady v. Dombrowski (1973), 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706; Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In the instant case, the police had reliable information from a police radio broadcast concerning a burglary in progress at 4367 East 143rd Street involving a green truck. Upon arriving at the scene the police observed appellant's green truck parked a few doors away from the address where the burglary was reported in progress. Under these circumstances, the police were justified in conducting a warrantless search of the truck and any evidence it may have contained before it could be driven away.

It is also clear, however, that nothing was seized during the search of the truck. Appellant contends information was gained during the search, in the form of the rental agreement, linking appellant to the crime charged. The rental agreement does not establish a link between appellant and the garage located at 4316 East 143rd Street, or with the items seized therefrom. The information gained from...