State v. AlihassanState v. Alihassan
Rendered on March 1, 2012
Ron O‘Brien, Prosecuting Attorney, and Sarah W. Creedon, for appellee.
Luftman, Heck, and Associates, and Daniel J. Sabol, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶1} Adam A. Alihassan, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a plea of guilty, of aggravated possession of drugs, in violation of
{¶3} Once inside, the officers handcuffed appellant and performed a “protective sweep” of the apartment. During the sweep, the officers saw more drugs in the apartment. Leighty asked appellant for consent to search the apartment. Appellant asked to make a phone call first. Appellant subsequently consented to the search and signed a consent form. Officers conducted a search of the apartment and confiscated more drugs.
{¶4} Appellant was charged with two counts of aggravated possession of drugs and possession of marijuana. Appellant filed a motion to suppress evidence, claiming his Fourth Amendment rights were violated when the officers entered his apartment without a warrant and when they conducted the protective sweep of his apartment without justification. Appellant also asserted that his later consent to search his residence was tainted by the previous violations.
THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT‘S MOTION TO SUPPRESS EVIDENCE.
{¶6} Appellant argues in his sole assignment of error that the trial court erred when it denied his motion to suppress evidence. The standard of review with respect to a motion to suppress is limited to determining whether the trial court‘s findings are supported by competent, credible evidence. State v. Lattimore, 10th Dist. No. 03AP-467, 2003-Ohio-6829, ¶5. In a hearing on a motion to suppress, the trial court assumes the
{¶7} A citizen‘s right to be free from unreasonable search and seizure is stronger in one‘s own home than it is in a public place. Payton v. New York (1980), 445 U.S. 573, 586, 100 S.Ct. 1371, 1380. Invasion of the sanctity of the home is the chief evil against which the Fourth Amendment‘s warrant requirement is directed. United States v. United States District Court (1972), 407 U.S. 297, 92 S.Ct. 2125. A warrantless entry and search of a private residence is presumptively unreasonable. Payton; Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091. The government must overcome the presumption that warrantless searches of homes are per se unreasonable by demonstrating that the search falls within one of the few, well-recognized exceptions to the warrant requirement. Welsh; State v. Kessler (1978), 53 Ohio St.2d 204, 373. Thus, the government bears the burden of proving an exception to the warrant requirement. Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two of the syllabus.
{¶8} The following exceptions to the search warrant requirement have been recognized by the Supreme Court of Ohio: (1) search incident to a lawful arrest; (2)
{¶9} Generally, actions taken by the police are deemed reasonable under the Fourth Amendment, regardless of the individual officer‘s state of mind, as long as the circumstances, viewed objectively, justify the action. Brigham City v. Stuart (2006), 547 U.S. 398, 404, 126 S.Ct. 1943, 1948, citing Scott v. United States (1978), 436 U.S. 128, 138, 98 S.Ct. 1717, 1723. Accordingly, the officer‘s subjective motivation is irrelevant to the analysis. See id. Evidence obtained in violation of the Fourth Amendment is barred by the Exclusionary Rule. Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684.
{¶10} Appellant‘s first contention is that the trial court erred when it found the officers, who were standing outside of appellant‘s apartment doorway, properly entered his apartment under the “plain-view” doctrine after seeing contraband inside the apartment, without a warrant, exigent circumstances or consent. The plain-view exception to the warrant requirement permits a law enforcement officer to seize clearly incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. State Dept. of Public Safety v. Marchbank (Mar. 29, 2001), 10th Dist. No. 00AP-1026, citing State v. Claytor (1993), 85 Ohio App.3d 623, 628. “The doctrine embodies the understanding that privacy must be protected by the individual, and if a police officer is lawfully on a person‘s property and observes objects in plain or open view, no warrant is required to look at them.” State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, ¶16, citing Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301. In Buzzard at ¶15, the
{¶11} Under the plain-view exception to the search warrant requirement, police may seize evidence in plain view during a lawful search if (1) the seizing officer is lawfully present at the place from which the evidence can be plainly viewed; (2) the seizing officer has a right of access to the object itself; and (3) the object‘s incriminating character is immediately apparent. Horton at 136-37.
{¶12} Appellant asserts that the critical issue in the present case is the second element in Horton; that is, whether Leighty had a right of access to the marijuana and grinder inside the apartment. We agree with appellant that Leighty did not have a right of access to the marijuana and grinder. In the trial court‘s decision, the second requirement in Horton was not directly addressed. The decision focuses mainly on the first requirement in Horton that Leighty was lawfully present outside the front door when he saw the marijuana and grinder. This court does not dispute the trial court‘s analysis in this respect. However, the analysis stops short of addressing whether Leighty could have then lawfully entered the premises without first obtaining a warrant under the plain-view doctrine.
{¶13} There exists a substantial amount of case law addressing whether a police officer standing outside of the premises may enter the premises after seeing illegal activity taking place inside the premises. Our review of these cases reveals several with aspects analogous to the circumstances in this case that support the conclusion that
{¶14} In State v. Davis (1999), 133 Ohio App.3d 114, officers responded to a complaint of loud music inside an apartment. When officers arrived, they saw several people inside the apartment through a sliding glass door, and they appeared to be underage and holding beer cans. After arresting the two underage tenants outside the apartment, officers entered the apartment and arrested others, including the defendants, for underage consumption. Prior to trial, the court denied the defendants’ motion to suppress. On appeal, the court of appeals reversed. The appellate court held that the police unlawfully entered the premises without a warrant, and no exigent circumstances were present. The court noted that no violence was involved and none of the individuals were armed. Additionally, there was no likelihood that anyone would escape, as the police could have secured the only exit door. The court also rejected the state‘s argument that the time required to obtain a search warrant would have allowed destruction or dissipation of evidence, as beer cans and bottles are hard to destroy beyond the point of recognition, and there was no evidence of beer bottles being broken or beer cans being crushed.
{¶15} In State v. Kesler (1996), 111 Ohio App.3d 98, two police officers approached the defendant‘s apartment to investigate a disturbance call. Through a screen door, the officers saw the defendant sitting on a couch with a dish on his lap, which he put into a drawer after noticing the police. The officers believed there was marijuana on the dish and immediately entered the apartment to arrest the defendant.
{¶16} In State v. West, 8th Dist. No. 87234, 2006-Ohio-4267, a police officer responded to a domestic violence call at an apartment. In the hallway, the officer saw an extension cord coming from under the door of an apartment that was plugged into a hallway outlet. The officer unplugged the plug, and a male opened the door. The male appeared startled, and the officer saw the defendant run to the back of the apartment.
{¶17} In State v. Robinson (1995), 103 Ohio App.3d 490, after receiving a citizen‘s complaint, two plainclothes officers went to a hallway leading to the defendant‘s apartment. The officers smelled marijuana. An officer knocked on the defendant‘s door. The defendant opened the door, and the odor of the marijuana came out of the opened door. When the defendant saw the officers standing at the door with their badges displayed, he attempted to close the door, but was prevented from doing so when an officer inserted her flashlight between the door and the doorframe. The officers identified themselves as police officers and ordered the defendant to open the door. As the officers struggled to force the door inward, and the defendant tried to bar their entry, the officers
{¶18} In State v. Mims, 6th Dist. No. OT-05-030, 2006-Ohio-862, officers received a tip that the defendant was growing marijuana in his backyard, and six days later, officers went to defendant‘s home, which was enclosed by a six-foot tall privacy fence. One officer stood upon a telephone pole lying on the ground and looked over the top of the fence. He saw defendant as well as several marijuana plants growing. The officer asked the defendant permission to enter the backyard through a garage in the back of the yard, but the defendant refused. The officer then told the defendant to meet him at the gate in the front of the yard. The two talked outside the gate, and the defendant admitted
{¶19} In State v. Jenkins (1995), 104 Ohio App.3d 265, a police officer learned from sources that the defendant was using and selling drugs out of his apartment. The officer went to the defendant‘s apartment and knocked on the door. Although the defendant opened a window shade in response to the knock, he refused to allow the officer, who was dressed in civilian clothes, to enter. Just as the defendant let go of the window shade, the officer saw him run away. Believing the defendant was going to destroy the drugs, the officer kicked in the defendant‘s door and entered the home to find the defendant flushing drugs down the toilet. The defendant was charged with drug offenses, and his later motion to suppress was denied by the trial court. On appeal, the court of appeals reversed. The court found the officer‘s entry into the home was unlawful, and no exigent circumstances existed. The court concluded that exigent circumstances, if
{¶20} In the present case, there can be no dispute that Leighty had a right to be present at the threshold of the door when he saw the marijuana and grinder inside appellant‘s apartment. Appellant was under arrest at the time he opened his door to let his dog inside, and Leighty was entitled to be immediately beside appellant. However, Leighty had no lawful right to cross the threshold of the doorway and access the interior of appellant‘s apartment. The above cases illustrate clearly that Leighty‘s seeing the drugs gave him probable cause to obtain a search warrant, but he could not lawfully access the interior premises without such and based upon the plain-view doctrine alone. The plain-view exception permits a law enforcement officer to seize clearly incriminating contraband only when it is discovered in a place where the officer has a right to be. See Marchbank. Leighty was only lawfully in the common public area outside appellant‘s apartment. He had no right to be inside the apartment, where appellant had a clear expectation of privacy. Thus, in order for Leighty to have had a lawful right to access the interior of appellant‘s apartment, some exigent circumstance must have existed.
{¶21} We find there were no exigent circumstances to provide an exception to the warrant requirement. The trial court found that the officers were justified to enter the residence and secure the marijuana and grinder in order to prevent its destruction or removal. The state supports the trial court‘s conclusion by arguing that police had a reasonable belief that there existed third parties that may have been present inside the residence, and they would have been tipped off to the officers’ presence when appellant
{¶22} We disagree with the state‘s contentions. There was no evidence presented that the marijuana and grinder were in danger of destruction or removal. Although Leighty testified he knew there had been prior disturbance calls to the apartment regarding appellant and his girlfriend, he never said that he believed appellant‘s girlfriend lived at the apartment, and he admitted that people can have domestic disturbances when they do not live together. Leighty also admitted he heard no voices coming from inside the apartment, the television was not on, and there were no indications that a person was in the apartment. Although Leighty first testified that he heard no noises coming from inside the apartment, he later said he heard “noises” inside, and the noises were from an aquarium. Importantly, Leighty never testified that he believed the noises were made by people inside the apartment.
{¶23} With no evidence of any third parties present in the apartment, there was no risk of destruction of the evidence. Although, conceivably, the dog could have ingested the small amount of marijuana on the table, the grinder would not have been easily destroyed. See Andrews (an aluminum beer can is not in imminent danger of destruction); Davis (beer cans and bottles are not easily destroyed). Also, even if third parties would have been present inside the apartment, we fail to see how the appearance of the dog inside the apartment would have, in and of itself, “tipped off” any occupant as to appellant‘s arrest. Under the circumstances, as pointed out in all of the cases cited
{¶24} Having found the intrusion was contrary to the Fourth Amendment, and having found no exigent circumstances existed, we must now look at whether appellant consented to the search, an exception to the warrant requirement. The trial court found that appellant consented to the search when he signed the consent form. We disagree. Initially, the trial court was working under the assumption that the police officer‘s initial entry into the apartment was lawful. Given our finding that the initial entry was a violation of the Fourth Amendment, and the trial court‘s additional finding that the subsequent protective sweep was a violation of the Fourth Amendment, the circumstances as to the voluntariness of the consent must be viewed from the perspective that the consent was obtained on the heels of two prior Fourth Amendment violations. This is particularly relevant because the trial court specifically relied upon the fact that appellant‘s use of the phone prior to consent vitiated the “relatively minor police misconduct” in performing the protective sweep. In fact, there were two instances of unlawful intrusion, with Leighty‘s
{¶25} We also note that appellant defined his scope of consent prior to the initial intrusion. Appellant apparently consented to have Leighty view the inside of his apartment while he opened the door “halfway,” but then appellant attempted to shut the door. It was at the moment he tried to bar the officer‘s further entry that appellant implicitly ceased any consent. See, e.g., Robinson (the defendant communicated to the officers the limited scope of his consent to the initial intrusion when he attempted to bar the officers’ entry into the apartment by closing the door). Thus, the police were alerted to the fact that appellant was not consenting to his entry and search of the apartment when appellant tried to shut the door to keep them out.
{¶26} Regardless, we find appellant‘s consent was not voluntary. When, as here, a defendant‘s consent is obtained after illegal police activity, “[t]he consent will be held voluntary only if there is proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior illegal action.” State v. Retherford (1994), 93 Ohio App.3d 586, 602, citing Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1323 (1983). Factors to consider in determining whether the consent is sufficiently removed from the taint of the illegal police activity include the length of time between the illegal activity and the subsequent search, the presence of intervening circumstances, and the purpose and flagrancy of the misconduct. See United States v. Richardson, 949 F.2d 851, 858 (6th Cir. 1991);
{¶27} In the present case, the two Fourth Amendment violations occurred about 15-20 minutes before appellant signed the consent. This is a “short” period, which the trial court also admitted in its decision. A short temporal gap between unlawful police activity and a defendant‘s consent to search weighs heavily against a finding that the consent was an act of free will sufficient to purge the taint of the earlier police conduct. See State v. Torres, 6th Dist. No. L-07-1306, 2008-Ohio-2090, ¶21 (consent obtained within 15 minutes of the illegal seizure of appellant‘s keys is not a significant time lapse), citing United States v. Washington, 387 F.3d 1060, 1073 (9th Cir. 2004) (holding that 15 minutes was insufficient), and United States v. Maez, 872 F.2d 1444, 1456 (10th Cir. 1989) (holding that 45 minutes was insufficient).
{¶28} However, the trial court here found that, despite this short period between the illegal activity and the consent, there was an intervening circumstance sufficient to break the chain of illegality and dissipate the taint of the prior illegal action, in that appellant asked to use his telephone prior to signing the consent form. Again, we disagree with the trial court that appellant‘s use of his phone broke the chain of illegality and dissipated the taint of the two recent Fourth Amendment violations. There was a lack of evidence regarding the nature, subject-matter, and duration of the phone call. Leighty had no memory with regard to the circumstances surrounding the phone call, and he did
{¶29} However, the trial court then concluded that, even assuming that the consent was tainted and invalid, the evidence seized by the police would have been admissible under the inevitable discovery doctrine. Pursuant to the inevitable discovery doctrine, illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation. State v. Perkins (1985), 18 Ohio St.3d 193,
{¶30} Here, the trial court based its application of the inevitable discovery doctrine on the premise that the police were lawfully present in appellant‘s residence pursuant to the “plain-view” doctrine, and once they saw the grinder and marijuana, they would have had sufficient probable cause to obtain a warrant and, consequently, seize the evidence anyway. We find the application of the inevitable discovery doctrine under the current circumstances is inappropriate. “[T]he inevitable discovery doctrine exception does not apply in situations where the government‘s only argument is that it had probable cause for the search.” United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000). “To apply the inevitable discovery doctrine whenever police could have obtained a warrant, yet chose not to, would essentially eliminate the warrant requirement and encourage police to proceed without a neutral and detached magistrate‘s probable cause determination.” (Emphasis sic.) State v. Coyle (Mar. 15, 2000), 4th Dist. No. 99 CA 2480; see also State v. Pearson (1996), 114 Ohio App.3d 153, 163 (“the state‘s argument [that the inevitable discovery doctrine applies because the police possessed probable cause and could have obtained a search warrant] would obviate any Fourth Amendment warrant requirement as long as it could be shown later that a warrant would in all probability have been obtained“); United States v. Echegoyen, 799 F.2d 1271, 1280 fn.7 (9th Cir. 1986) (“to
{¶31} This line of reasoning applies to the present case. If we were to apply the inevitable discovery doctrine to the present circumstances, the Fourth Amendment would be rendered impotent in all similar cases in which a court later determines that the police, in fact, had probable cause to perform the warrantless search. It would also encourage police to engage in their own Fourth Amendment speculation without a prior probable cause determination by a court and foster a “search-first” mentality that disregards constitutional safeguards. In essence, the foundation of the Fourth Amendment would be completely undercut by applying the inevitable discovery doctrine to every case where there is a post-warrantless search determination of probable cause. Therefore, we find the inevitable discovery doctrine does not apply to the present circumstances, pursuant to Souza, Coyle, Pearson, Echegoyen, and Johnson. For these reasons, the trial court erred when it denied appellant‘s motion to suppress. Appellant‘s assignment of error is sustained.
Judgment reversed and cause remanded.
CONNOR, J., concurs.
SADLER, J., dissents.
SADLER, J., dissenting.
{¶33} I would affirm the trial court‘s decision denying appellant‘s motion to suppress because (1) appellant validly consented to the search of his apartment, and (2) Officer Leighty‘s testimony proves the contraband would have been inevitably discovered based on information obtained during an independent investigation. Therefore, I respectfully dissent.
{¶34} Even if I were to assume that the entry and protective sweep in this case were unlawful,1 I disagree with the majority‘s conclusion that the officers’ conduct “tainted” appellant‘s decision to consent to the search of his apartment. For consent to be tainted as “fruit of the poisonous tree,” it must result from an “exploitation” of the prior illegality. State v. LaPrairie, 2d Dist. No. 2010CA-0009, 2011-Ohio-2184, ¶51, citing Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 417. Factors to consider in determining whether consent was causally connected to the illegality include (1) the temporal proximity between the illegal activity and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.
{¶35} Significantly, the majority agrees that no purposeful or flagrant police misconduct occurred. This factor is often considered “the most important because it is tied directly to the rationale underlying the exclusionary rule, deterrence of police misconduct.” United States v. Shaw (C.A.6, 2006), 464 F.3d 615, 630 (internal quotations omitted). The United States Supreme Court, describing the factor as “particularly” significant, found purposeful and flagrant misconduct where the officers were aware of the “impropriety” of their misconduct, embarked on an “expedition for evidence in the hope that something might turn up,” and acted in a manner that “calculated to cause surprise, fright, and confusion.” Brown, 422 U.S. at 605, 95 S.Ct. at 2262.
{¶36} I believe the absence of purposeful and flagrant misconduct in this case weighs strongly against suppression. The officers did not arrive at appellant‘s doorstep unannounced for the purpose of conducting a suspicionless search for contraband. Appellant had been lawfully arrested for felony drug possession, and he (not the officers) voluntarily requested access to his apartment before being taken to the station. When appellant freely opened his door and revealed more drugs in plain view, Officer Leighty believed that the entry was justified by the plain-view doctrine and that the limited protective sweep was authorized to discover the existence of third parties in the premises. (Tr. 23-24.) In fact, Officer Leighty failed to discover contraband during the limited sweep because, according to his testimony, his only concern at that time was finding third parties, not evidence. (Tr. 31.) The trial court accepted this testimony as credible when it
{¶37} In finding that appellant‘s consent was tainted, the majority relies heavily on the temporal-proximity factor. In my view, however, this factor alone cannot invalidate consent. As the Sixth Circuit has stated, “no case (to our knowledge) holds that temporal proximity alone, without any other indicia of causation, justifies suppression.” United States v. Clariot (C.A.6, 2011), 655 F.3d 550, 555. Although 15 to 20 minutes elapsed before appellant consented in this case, other courts have found consent to be valid after similar periods of time based on the existence of intervening circumstances and the lack of purposeful or flagrant misconduct. See, e.g., United States v. Snype (C.A.2, 2006), 441 F.3d 119, 135 (consent valid even though only 20 minutes had elapsed between illegal entry and consent to search); United States v. Delancy (C.A.11, 2007), 502 F.3d 1297, 1310-11 (10 to 20 minutes); United States v. Oguns (C.A.2, 1990), 921 F.2d 442, 447-48 (“only * * * a few minutes“). “The exclusionary rule forbids the government from using evidence caused by an illegal seizure, not evidence found around the time of a seizure.” Clariot, 655 F.3d at 555 (emphasis sic).
{¶38} I also disagree with the majority‘s finding that no intervening circumstances occurred. While the majority addresses one event (the phone call), I believe that several intervening circumstances existed to sever any “taint” from the officers’ conduct. Immediately after the sweep, police removed appellant‘s handcuffs, allowed him to use his phone, advised him in writing of his Fourth Amendment right to refuse consent, and informed him of his Miranda rights. The majority finds the phone call to be insignificant because Officer Leighty could not testify as to the nature of the call; however, I believe it
{¶39} Under these circumstances, I believe appellant validly consented to the search of his apartment. Even if the entry and sweep were unlawful, the multiple intervening events and, most importantly, the complete lack of purposeful or flagrant police misconduct removed any “taint” from the officers’ conduct.
{¶40} Regardless, even if appellant‘s consent was invalid, I believe the evidence discovered in the apartment “would have been ultimately or inevitably discovered during the course of a lawful investigation.” State v. Perkins (1985), 18 Ohio St.3d 193, 196, following Nix v. Williams (1984), 467 U.S. 431, 444, 104 S.Ct. 2501, 2509. Under the inevitable discovery doctrine, the evidence must show, within a reasonable probability, that law enforcement would have discovered the evidence in question apart from the unlawful conduct. State v. Ewing, 10th Dist. No. 09AP-776, 2010-Ohio-1385, ¶26. The rationale behind the inevitable-discovery doctrine is that “the prosecution should not be placed in a worse position at trial because of some earlier police misconduct when the
{¶41} Here, Officer Leighty specifically testified that he “would have” applied for a warrant after discovering the pound of marijuana during appellant‘s arrest and seeing more marijuana in plain view on appellant‘s table. (Tr. 29, 37.) This conclusion was based on Officer Leighty‘s years of experience with narcotics warrants and familiarity with the warrant-application procedure of the detective bureau. (Tr. 37.) Because the officers discovered contraband during a “separate” investigation, the trial court correctly found that the evidence would have been inevitably discovered.
{¶42} The majority states that the inevitable-discovery doctrine cannot apply where the government‘s only argument is that a warrant “could have” been obtained based on probable cause. While the majority warns that application of the inevitable-discovery doctrine would foster a “search-first” mentality that disregards constitutional safeguards, the United States Supreme Court has rejected the same criticism of the independent-source doctrine where, as here, the evidence shows that police honestly, but mistakenly, believed the entry was justified by exigent circumstances. Murray v. United States (1988), 487 U.S. 533, 108 S.Ct. 2529, fn.2. Nevertheless, the trial court in this case did not base its inevitable-discovery finding on mere after-the-fact speculation that police could have applied for a warrant to search the residence. As explained above, Officer Leighty specifically testified that he “would have” applied for a warrant based on the information obtained during his investigation. Therefore, I believe the trial court correctly applied the inevitable-discovery doctrine.
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