2013 Ohio 5773
Ohio Ct. App.2013Background
- On Nov. 5, 2010 two Youngstown officers (Kelly and Mulligan) in an unmarked white Crown Victoria, wearing task-force/K-9 uniforms (not standard traffic uniforms), observed a Buick fail to signal when turning into a driveway.
- Officers activated lights and stopped the vehicle in the driveway; Kelly approached the passenger side and saw the driver make a motion to his waist and place an object on the floor.
- The passenger abruptly exited, tossed a purse into nearby yard/bushes, and was seated on the ground by officers.
- While standing at the open passenger door, Kelly illuminated the interior and saw a plastic bag on the center hump that he recognized as crack cocaine based on training and experience.
- Appellant was arrested for possession and cited for failing to signal. He moved to suppress the drugs; the trial court denied the motion, he pled no contest, was convicted, and appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lagese) | Held |
|---|---|---|---|
| 1. Competency of officers to testify under R.C. 4549.14/Evid.R.601(C) | Officers were part of a street-crimes unit and not exclusively engaged in traffic enforcement, so they were competent to testify. | Officers used an unmarked cruiser and nonstandard uniforms; thus they were incompetent under R.C. 4549.13/4549.14 to testify about a traffic stop. | Court: Officers were not exclusively engaged in traffic enforcement; statute/Rule does not bar testimony. Competency upheld. |
| 2. Lawfulness of the traffic stop (Fourth Amendment) | Stop was reasonable: officers observed a turn without signaling (traffic violation), providing probable cause to stop the car. | Stop was unlawful because of improper markings/unmarked cruiser and alleged need for exigent circumstances for driveway seizure. | Court: Stop lawful based on traffic violation; unmarked vehicle/uniforms irrelevant because officers’ main duty was not traffic enforcement. |
| 3. Seizure of contraband under plain-view doctrine | Item was in plain view during a lawful stop and immediately apparent (or supported by probable cause via officer expertise) to be contraband—warrantless seizure permissible. | Seizure required exigent circumstances to seize from a vehicle parked on private driveway. | Court: Plain-view seizure valid; no exigency required for plain-view seizure of contraband in a vehicle after lawful stop. |
| 4. Preservation/waiver of exigent-circumstances argument | State: Appellant failed to raise exigency at trial; cannot raise on appeal; regardless the authority cited is inapposite. | Appellant raised exigency in reply brief on appeal; contends driveway seizure required exigent circumstances. | Court: Issue waived; even on plain-error review, argument lacks merit—cases cited by appellant distinguishable; automobiles are treated differently than homes. |
Key Cases Cited
- Cady v. Dombrowski, 413 U.S. 433 (1973) (Fourth Amendment reasonableness standard governs searches/seizures)
- United States v. Sharpe, 470 U.S. 675 (1985) (not all seizures are unreasonable; reasonableness is the ultimate standard)
- Dayton v. Erickson, 76 Ohio St.3d 3 (1996) (traffic stop reasonable where probable cause exists to believe a traffic violation occurred)
- Arizona v. Hicks, 480 U.S. 321 (1987) (plain-view seizure requires probable cause to associate the property with criminal activity)
- California v. Carney, 471 U.S. 386 (1985) (automobiles present exigency/ready mobility and diminished expectation of privacy compared to homes)
- State v. Burnside, 100 Ohio St. 152 (2003) (standard of review for suppression: trial court factual findings afforded deference; legal conclusions reviewed de novo)
- State v. Brown, 158 Ohio App.3d 21 (2004) (plain-view doctrine requires lawful initial intrusion and that incriminating nature be immediately apparent)