State v. Young
| Decision Date | 09 July 2012 |
| Docket Number | CASE NO. CA2011-06-066 |
| Citation | 2012 Ohio 3131 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. KEVIN L. YOUNG, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
David P. Fornshell, Warren County Prosecuting Attorney, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Ryan L. DeBra, 4914 Ridge Avenue, Cincinnati, Ohio 45209, for defendant-appellant
{¶ 1} Defendant-appellant, Kevin Young, appeals a decision of the Warren County Court of Common Pleas denying his motion to suppress.
{¶ 2} On January 18, 2011, appellant was indicted for carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree felony. Appellant was charged because of items found in his backpack during the search of a vehicle in which he was a passenger. Prior to trial, appellant moved to suppress the evidence. Following a suppression hearing,the trial court overruled appellant's motion.
{¶ 3} On December 2, 2010, several officers with the Warren County Sheriff's Office were patrolling an area known for drug trafficking between State Route 122 and Interstate 75 in Middletown, Ohio. At approximately 9 p.m., an undercover officer named Detective Wetzel advised over the police radio that he observed a male suspect, now known as appellant, sitting inside a green Volvo with Illinois license plates in a Kroger parking lot. Detective Wetzel's attention was drawn to the vehicle because appellant had parked far away from Kroger and made no attempt to enter the store. A short time later, Detective Wetzel saw appellant exit the Volvo carrying a black backpack, at which time he was picked up by a male and female in a white minivan. Detective Wetzel radioed this information to the other police units, and several undercover officers began following the minivan.
{¶ 4} Detective Wetzel subsequently contacted Deputy Brian Lewis, a certified narcotics canine handler, to bring his drug detection dog to conduct a preliminary detection for illegal controlled substances. The canine immediately alerted to the presence of narcotics on the both driver and passenger sides of the Volvo. The officers relayed this information to the units following the minivan, including Detective Dan Schweitzer.
{¶ 5} At the suppression hearing, Detective Schweitzer testified that he had worked for the Warren County Drug Task Force since 2001, and had advanced training in narcotics detection and interdiction. Detective Schweitzer explained that after the minivan left Kroger, it went into a Wendy's drive-through. The van then drove toward a nearby Meijer, where the driver looped around the parking lot and finally parked in a distant lot. When the three occupants exited the minivan, they looked around suspiciously in a manner that, based on Detective Schweitzer's experience, was indicative of an attempt to determine the existence of police surveillance. As the subjects walked toward Meijer, Detective Schweitzer recognized the other male passenger as Brian Robbins, a known drug dealer who was under indictmentfor a drug-related offense in Warren County. Detective Schweitzer notified the other police units that he had identified Robbins, and continued to wait outside Meijer for the individuals to exit the store.
{¶ 6} A few minutes later, the subjects got back into the minivan and began to exit the parking lot. Detective Schweitzer advised all units that the driver had signaled a right turn, but that she suddenly flipped on her left turn signal and made an erratic turn to the left. At this time, Detective Schweitzer radioed for a police cruiser to make a traffic stop.
{¶ 7} During the stop, the officers observed Robbins making furtive gestures in the front seat of the minivan, as if trying to conceal something in his jacket, which was located in the back seat. The officers removed Robbins from the vehicle and patted him down for weapons, but found nothing. When asked why he was reaching for his jacket, Robbins indicated that he had stashed marijuana in the jacket pocket. After finding the marijuana, the officers received consent from the driver to search the rest of the minivan. At some point after receiving the driver's consent, the officers removed appellant from the vehicle and placed him in a police car.
{¶ 8} In conducting the search, the officers came across appellant's backpack, and opened it, finding a digital scale, a small bag of marijuana, a pistol, and some ammunition. Appellant admitted that the backpack, digital scale, and marijuana belonged to him, but denied owning the pistol and the ammunition.
{¶ 9} After reviewing the evidence, the trial court denied appellant's motion to suppress. First, the court found that the canine alert on the Volvo gave the police probable cause not only to search the Volvo, but also to search and arrest appellant for possession of illegal drugs. The court also found that the police were authorized to search the minivan and all of its contents, based upon the driver's consent and various additional factors. In so holding, the court stated:
{¶ 10} The court also found that the automobile exception to the warrant requirement applied, due to the exigency of the situation.
{¶ 11} Following the denial of his motion to suppress, appellant pled no contest to the concealed weapon charge, and was sentenced to three years of community control.
{¶ 12} Appellant timely appeals, raising one assignment of error for review:
{¶ 13} THE ARREST, SEARCH, AND SEIZURE OF APPELLANT WAS IN VIOLATION OF APPELLANT'S FOURTH AMENDMENT RIGHT TO BE SECURE AGAINST UNREASONABLE AND WARRANTLESS SEARCHES AND SEIZURES.
{¶ 14} In his sole assignment of error, appellant argues that the trial court erroneously denied his motion to suppress, where the officers violated his constitutional rights under the Fourth Amendment.
{¶ 15} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100. "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." Id., quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. "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.
{¶ 16} The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, provides, "[t]he right of the people to be secure intheir 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." Section 14, Article I of the Ohio Constitution, nearly identical to its federal counterpart, likewise prohibits unreasonable searches and seizures. See State v. Kinney, 83 Ohio St.3d 85, 87 (1998).
{¶ 17} For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967). This requires a two-step analysis. First, there must be probable cause. If probable cause exists, then a search warrant must be obtained unless an exception to the warrant requirement applies. If the state fails to satisfy either step, the evidence seized in the unreasonable search must be suppressed. See Mapp v. Ohio, 367 U.S. 643, 654, 81 S.Ct. 1684 (1961); Maumee v. Weisner, 87 Ohio St.3d 295, 297 (1999).
{¶ 18} It is undisputed that the officers herein acted without a warrant. Thus, we must determine whether one of the delineated exceptions to the warrant requirement applies.
{¶ 19} Here, the trial court first found that the canine alert created probable cause to search the Volvo. Ohio courts have consistently upheld this finding, and appellant does not challenge this decision. See, e.g., State v. Grenoble, 12th Dist. No. CA2010-09-011, 2011-Ohio-2343, ¶ 30, appeal not accepted, 129 Ohio St.3d 1505, 2011-Ohio-5358.
{¶ 20} However, the trial court also found that the canine alert, standing alone, gave the officers probable cause to search and arrest appellant. Appellant apparently disagrees, as he argues that the police lacked probable cause to arrest him prior to the traffic stop.
{¶ 21} To make a warrantless arrest, there must be probable cause. "The probable-cause standard is incapable of precise definition or quantification into percentages because itdeals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795 (2003). However, "[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt, * * * and that the belief of guilt must be particularized with respect to the person to be searched or seized * * *." Id., citing Ybarra v. Illinois, 444 U.S. 85, 91,100 S.Ct. 338 (1979). "To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Pringle at 371, quoting Ornelas v....
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