State v. Wintermeyer

• Decision Date: 27 June 2017
• Docket Number: No. 16AP–381,16AP–381
• Citation: 2017 Ohio 5521,93 N.E.3d 397
• Parties: STATE of Ohio, Plaintiff–Appellant, v. Justin W. WINTERMEYER, Defendant–Appellee.
• Court: Ohio Court of Appeals

93 N.E.3d 397

2017 Ohio 5521

STATE of Ohio, Plaintiff–Appellant,

v.Justin W. WINTERMEYER, Defendant–Appellee.

No. 16AP–381

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on June 27, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellant. Argued: Seth L. Gilbert.

On brief: Dustin M. Blake Co., LLC, and Dustin M. Blake, Columbus, for appellee. Argued: Dustin M. Blake.

DECISION

DORRIAN, J.

{¶ 1} Plaintiff-appellant, State of Ohio, appeals the May 10, 2016 decision and entry of the Franklin County Court of Common Pleas granting the motion to suppress filed by defendant-appellee, Justin W. Wintermeyer. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} On October 23, 2015, a Franklin County Grand Jury filed an indictment charging defendant with a single count of possession of heroin, in violation of R.C. 2925.11, a felony of the fifth degree.

{¶ 3} On February 15, 2016, defendant filed a motion to suppress evidence. On February 22, 2016, the state filed a memorandum contra defendant's motion to suppress evidence. On April 5, 2016, the trial court held a hearing on defendant's motion to suppress. At the suppression hearing, Officer Ryan Wise of the Columbus Division of Police provided unopposed testimony as the sole witness called by the state.

{¶ 4} Officer Wise testified that on March 8, 2014, he was working patrol from 7 p.m. to 5 a.m. on the west side of Columbus. On that evening, he was dispatched to investigate a report that a vacant residence had an open window and may have been burglarized. Officer Wise met Officer Brad Foulk at the residence. The officers found an open window in the rear of the residence but were unable to gain entrance through the window. While they waited for someone to arrive with a key, Officer Foulk stood in front of the residence and Officer Wise stood behind the residence in the back yard, which abutted on an alley.

{¶ 5} Around 8:50 p.m., as he was standing in the back yard, Officer Wise heard individuals talking in the alley. Although it was dark, Officer Wise observed two individuals who stopped in the alley directly behind the yard in which Officer Wise was standing. While he was able to observe the individuals in the alley, Officer Wise thought that they did not see him. One of the individuals, later identified as defendant, walked through a back yard on the other side of the alley into a residence while the second individual, who was referred to at the suppression hearing as Mr. Carlson, remained in the alley. After "approximately one to two minutes," defendant exited the residence on the other side of the alley and walked back into the alley. (Tr. at 11.) Officer Wise testified that as soon as defendant entered the alley, he handed something to the other person.

{¶ 6} Officer Wise testified he was approximately 10 to 15 feet away from where defendant and Carlson were standing in the alley. Based on his observations, Officer Wise thought "they went inside the house and purchased narcotics," followed by "[a]n exchange, hand-to-hand exchange." (Tr. at 12.) Officer Wise proceeded to shine his flashlight on defendant and Carlson and began walking toward them. When he shined his flashlight on them, he saw "a small plastic object" in Carlson's hand. (Tr. at 12.) Officer Wise stated that the object was "a small object, maybe the size of my pinkie there wrapped up in plastic wrap." (Tr. at 13.) Officer Wise also described the item as "a plastic cellophane bag or Saran Wrap." (Tr. at 13.)

{¶ 7} Officer Wise testified that "[a]s I shined the flashlight and walked up to them I could see the individual was still holding the plastic baggie in his hand. At that point I reached down and grabbed it and observed it contain[ed] a brown substance, which was consistent with heroin." (Tr. at 14.) Officer Wise then radioed that he had two suspects detained in the alley and requested assistance. Officer Wise testified he detained defendant and Carlson "[a]s soon as I walked up on them and saw the plastic baggie, which I suspected was heroin." (Tr. at 15.) Officer Foulk met Officer Wise in the alley and took the item confiscated by Officer Wise for testing. Officer Foulk reported that he received a positive field test for heroin. At that point, defendant and Carlson were placed under arrest.

{¶ 8} On April 10, 2016, defendant filed a supplement to his motion to suppress. On May 10, 2016, the trial court filed a decision and entry granting defendant's motion to suppress.

II. Assignment of Error

{¶ 9} The state appeals and assigns the following single assignment of error for our review:

The trial court committed reversible error in sustaining Wintermeyer's motion to suppress.

III. Discussion

{¶ 10} The state argues on appeal that the trial court erred in granting defendant's motion to suppress because he lacks the requisite standing. "[A] motion to suppress must ‘state with particularity the legal and factual issues to be resolved,’ thereby placing the prosecutor and court ‘on notice of those issues to be heard and decided by the court and, by omission, those issues which are otherwise being waived.’ " Columbus v. Ridley , 2015-Ohio-4968, 50 N.E.3d 934, ¶ 23, quoting State v. Shindler , 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994). "In general, issues not raised by a party during a suppression hearing cannot be raised for the first time on appeal." State v. Thomas , 10th Dist. No. 14AP-185, 2015-Ohio-1778, 2015 WL 2191107, ¶ 37, citing State v. Bing , 134 Ohio App.3d 444, 449, 731 N.E.2d 266 (9th Dist. 1999). Here, the state did not raise the issue of standing at the suppression hearing. Instead, the state focused its arguments on whether Officer Wise possessed reasonable suspicion or probable cause to investigate defendant's actions.¹

The state's failure to argue the issue of standing in the trial court constitutes a waiver of such issues for purposes of appeal. State v. Boyd , 2d Dist. No. 25182, 2013-Ohio-1067, 2013 WL 1189012, ¶ 32 (finding the state waived the issue of whether the defendant had standing to challenge the constitutionality of search). See also ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 16 ; State v. Neal , 10th Dist. No. 15AP-771, 2016-Ohio-1406, 2016 WL 1288000, ¶ 29 ; Clemens v. Nelson Fin. Group, Inc. , 10th Dist. No. 14AP-537, 2015-Ohio-1232, 2015 WL 1432604, ¶ 27, citing Niskanen v. Giant Eagle , Inc. , 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34 ("Generally, a party waives the right to raise on appeal an argument it could have raised, but did not, in earlier proceedings."); Ridley at ¶ 28. Compare State v. Muldrow , 2016-Ohio-4774, 68 N.E.3d 260, ¶ 20.

A. Standard of Review

{¶ 11} "The review of a motion to suppress is a mixed question of law and fact." State v. Castagnola , 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 32, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In evaluating the motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best position to resolve factual questions and evaluate the credibility of witnesses. Burnside at ¶ 8. Therefore, we 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, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. See also State v. Johnson , 10th Dist. No. 13AP-637, 2014-Ohio-671, 2014 WL 746657, ¶ 6 ("We apply a de novo standard in determining whether the trial court properly denied appellant's motion to suppress.").

{¶ 12} The trial court made the following factual findings, which we must accept as true if they are supported by competent, credible evidence:

Officer Wise's testimony revealed that on the evening of March 8, 2014, Officer Wise was dispatched to 625 S. Burgess Ave. to investigate a report of an open window and possible burglary. As Officer Wise was standing in the backyard of 625 S. Burgess Ave., he heard and saw two men walking in the alley. The men stopped behind a house across the alley from where Officer Wise was standing. He saw one of the men, later identified as Defendant Wintermeyer, leave the alley, walk up to and enter a house. After several minutes, Defendant Wintermeyer exited the house and returned to his companion in the alley. Officer Wise testified that neither of the men had done anything suspicious up to this point.

As Defendant Wintermeyer was returning to his companion, Officer Wise noticed that Wintermeyer was holding a small object in his hand, which he appeared to hand to his companion. Officer Wise decided to investigate. He turned on his flashlight, identified himself as a police officer and approached the men. Neither of the men attempted to flee. As Officer Wise approached, he observed that the object Defendant Wintermeyer had handed to his companion appeared to be a small plastic bag. Officer Wise then reached out and took the bag from the companion's hand. After taking the plastic bag, Officer Wise was able to see that the bag contained a brown substance, which Officer Wise immediately suspected was heroin. Officer Wise arrested Defendant Wintermeyer, placed him in the back of the cruiser, and had the contents of the plastic bag field-tested by another officer. The result was positive for heroin.

(Decision and Entry at 1–2.)

B. Applicable Law

1. Constitutional Protections

{¶ 13} The Fourth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, provides that "[t]he 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...