State v. BurroughsState v. Burroughs
Case Information
*1
[Cite as
State v. Burroughs
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-19-91 v.
KENNEDY M. BURROUGHS, O P I N I O N DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 19-CR-205 Judgment Affirmed
Date of Decision: September 14, 2020
APPEARANCES:
Sheena Bateman-Carothers for Appellant
Nathan Heiser for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Kennedy M. Burroughs (“Burroughs”), appeals the November 26, 2019 judgment entry of sentence the Marion County Court of Common Pleas. For the reasons that follow, we affirm. This case stems from the January 27, 2019 execution of a warrant for
Burroughs’s arrest for a misdemeanor-obstruction offense by Officer Chris Coburn (“Officer Coburn”)—along with two additional officers—of the Marion Police Department at Burroughs’s residence in Marion. (Aug. 6, 2019 Tr. at 3-4, 16). When law enforcement arrived at Burroughs’s residence, Officer Coburn informed Burroughs that “she had a warrant and then she shut the door and locked it.” ( Id. at 4). After Burroughs closed and locked the door, Officer Coburn “looked to the window and saw her grabbing a bunch of plastic baggies and running to the back of the house.” ( Id. at 5). However, Officer Coburn did not know what was in the baggies. ( Id. at 17). Thereafter, law enforcement entered the residence and Officer Coburn
found Burroughs (with only her phone in her hand) and a juvenile in a bedroom— the portion of the house to which he saw Burroughs retreat with the plastic baggies. ( Id. at 6). ( See also State’s Ex. A). Suspecting that Burroughs may have destroyed evidence, Officer Coburn “went into the bathroom that was attached to [the room in which he found Burroughs] and [he] checked the toilet, and it didn’t look like it was flushed. [He] checked the back of the toilet, and there was nothing in there.” (Aug. 6, 2019 Tr. at 6). While inspecting the toilet, Officer Coburn saw a “zipped” (or closed) bookbag with “a plastic baggie hanging out of it” sitting next to the toilet in the bathroom. ( Id. at 6, 11). However, he could not see what was in the plastic baggie and “[n]othing else about that bag showed that there was contraband or weapons or anything in that bag * * * .” ( Id. at 20-21). Officer Coburn also saw in plain view “a bunch of marijuana shake and roaches” next to the bed in the bedroom in which he found Burroughs. ( Id. at 11). Officer Coburn executed the warrant and arrested Burroughs. ( Id. at
21). He then escorted her and the juvenile to the living room prior to transferring Burroughs to a police cruiser, and waited “for Lieutenant [Mark] Elliott [(“Lieutenant Elliott”)] to get there and kind of take over on the decision making.” ( Id. at 13, 21-22). The residence was secure prior to Lieutenant Elliott’s arrival. ( Id. at 23). After Lieutenant Elliott arrived at the residence, he detected an odor of
marijuana in the residence and observed “marijuana shake in areas of the house.” (Id. at 47). Lieutenant Elliott asked Officer Coburn where the bathroom was located, then went to the bathroom (without going to any other portion of the residence) to conduct a “sweep” for officer safety. ( Id. at 62, 64). ( See also id. at 73-74). He “saw the bag laying on the floor. [He] saw plastic baggies hanging out of it. Looked in it to make sure there was no kind of weapon or anything that could hurt [them] and moved on.” ( Id. at 46). Lieutenant Elliott saw “[p]ieces of plastic baggies” hanging out of the bookbag but could not see what was inside the plastic baggies. ( Id. at 53). According to Lieutenant Elliott, the other officers at the scene (prior to
his arrival to the residence) relayed to him by radio that Burroughs “shut the door in their face” when they informed her that they were there to serve the arrest warrant and “said they saw her running to the back of the house to dispose of evidence.” ( Id. at 46). However, Lieutenant Elliott could not recall (prior to him opening the bookbag) whether he knew that Burroughs was collecting the plastic baggies when Officer Coburn saw her run to the back of the residence. ( Id. at 46-47). Likewise, Lieutenant Elliott did not see “anything in a plastic baggie before [opening the bookbag] in the house”—he only suspected that contraband might be found in the bookbag; however, his main purpose for searching the bookbag was to search for weapons. ( Id. at 49, 53-54, 59). When Lieutenant Elliott opened the bookbag, he discovered marijuana. ( Id. at 14, 46). Because he did not find any weapons, Lieutenant Elliott abandoned the bookbag and left the scene while the other law enforcement officers looked for additional drug evidence in the residence, finding “marijuana edibles next to the bed.” ( Id. at 15, 48).
{¶8} On May 15, 2019, the Marion County Grand Jury indicted Burroughs on one count of possession of marijuana in violation of R.C. 2925.11(A), (C)(3), a fifth-degree felony. (Doc. No. 1). Burroughs appeared for arraignment on May 20, 2019 and entered a plea of not guilty. (Doc. No. 4). On July 19, 2019, Burroughs filed a motion to suppress evidence,
alleging that law enforcement unlawfully searched the bookbag and a green cup found in the bathroom of her residence. (Doc. No. 16). The State filed a memorandum in opposition to Burroughs’s motion to suppress evidence on August 6, 2019. (Doc. No. 21). After a suppression hearing on August 6, 2019, the trial court on August 15, 2019 denied Burroughs’s motion to suppress evidence after concluding that law enforcement had “a lawful basis to open the bookbag since it was found in plain view and because he had probable cause to conclude that it contained contraband.” [1] (Doc. No. 22). On September 23, 2019, Burroughs withdrew her plea of not guilty
and entered a plea of no contest to possessing marijuana. (Doc. No. 24). The trial court accepted Burroughs’s no-contest plea and found her guilty. (Doc. Nos. 24, 27); (Sept, 23, 2019 Tr. at 16). On November 25, 2019, the trial court sentenced Burroughs to two years of community control. (Doc. No. 27); (Nov. 25, 2019 Tr. at 4). The trial court filed its judgment entry of sentence on November 26, 2019. (Doc. No. 27).
{¶11} On December 26, 2019, Burroughs filed a notice of appeal, and raises one assignment of error for our review. (Doc. No. 28).
Assignment of Error
The Trial Court Erred In Denying Defendant, Appellant’s Motion to Suppress Evidence. In her sole assignment of error, Burroughs argues that the trial court
erred by denying her motion to suppress evidence. Specifically, Burroughs argues that law enforcement’s search and seizure of the bookbag found in her bathroom was conducted without a warrant and not pursuant to any exception to the warrant requirement of the Fourth Amendment.
Standard of Review A review of the denial of a motion to suppress involves mixed
questions of law and fact.
State v. Burnside
,
Analysis “The Fourth Amendment to the United States Constitution, as applied
to the states through the Fourteenth Amendment, and Ohio Constitution, Article I,
Section 14, protects individuals against ‘unreasonable searches and seizures’ by the
government and protects privacy interests where an individual has a reasonable
expectation of privacy.”
State v. Fielding
, 10th Dist. Franklin Nos. 13AP-654 and
13AP-655,
property are presumed unreasonable unless an exception to the warrant requirement
is shown.
See State v. Jackson
, 12th Dist. Madison No. CA2019-03-006, 2020-
Ohio-2677, ¶ 19 (“Warrantless seizures of personal property are generally
considered unreasonable under the Fourth Amendment unless there is probable
cause to believe the property is or contains contraband or evidence of a crime and
the seizure falls within an established exception to the warrant requirement.”), citing
United States v. Place
,
and seizure of the bookbag were lawfully conducted under the plain-view exception
to the search-warrant requirement. “The plain view doctrine represents the
requirement that an individual must protect his or her privacy, and should an officer
observe items in plain view from a place where the officer is entitled to be, no
warrant is required.”
Jackson
at ¶ 19, citing
State v. Buzzard
,
enforcement officer to seize clearly incriminating contraband only when it is
discovered in a place where the officer has a right to be.” (Emphasis added.)
State
v. Garrett
, 2d Dist. Montgomery No. 27630,
determined whether the incriminating nature of the evidence observed by the
officers was immediately apparent.”
Id.
at ¶ 30. “‘An object’s incriminating nature
is immediately apparent when a police officer has probable cause to believe the item
is associated with criminal activity.’”
Id.
, quoting
State v. Bales
, 2d Dist.
Montgomery No. 24897,
lawfully present in her residence when Officer Coburn (followed by Lieutenant
Elliott) observed the bookbag in plain view or that law enforcement had a lawful
right of access to the bookbag. (Appellant’s Brief at 9-10).
See Garrett
at ¶ 23,
citing
Florida v. Jardines
, 569 U.S. 1, 8, 133 S.Ct. 1409 (2013).
See also
R.C.
2935.12. Rather, Burroughs challenges the trial court’s conclusion that the criminal
character of the bookbag was immediately apparent. However, even if we assume
without deciding that law enforcement had probable cause to believe that the
bookbag was associated with criminal activity—that is, that the criminal character
of the bookbag was immediately apparent—that conclusion supports
only
law
enforcement’s authority to seize the bookbag under the plain-view exception based
on the facts presented by this case—not the authority to search the bookbag.
See
Brown
, 460 U.S. at 749-750 (Stevens, J., concurring) (noting “that the
constitutionality of a container search is not automatically determined by the
constitutionality of the prior seizure” and that “[s]eparate inquiries are necessary,
taking into account the separate interests at stake”);
United States v. Fore
, W.D.N.C.
No. 1:15cr06,
seizure of a container believed to contain contraband, any subsequent search of its
concealed contents must either be accompanied by a search warrant or justified by
one of the [other] exceptions to the warrant requirement.’”
State v. Johnson
, 7th
Dist. Jefferson No. 15 JE 0020,
law enforcement to search a closed container (which is lawfully seized under the
plain-view exception) is the single-purpose container exception.
See Williams
at
197, citing
Jacobsen
at 114;
Brown
at 749-751 (Stevens, J., concurring), and
Corral
at 725. A single-purpose container is a container that “‘by [its] very nature cannot
support any reasonable expectation of privacy because [its] contents can be inferred
from [its] outward appearance.’”
Donnes
at 1437, quoting
Arkansas v. Sanders
, 442
U.S. 753,
exception is an outgrowth of the plain view doctrine subject to the same requirements.” Armstrong, Single-Purpose Containers: The Circuit Split Presents A Battle Between Values As Disparate As Gen. & Specific Warrants , 51 Hous.L.Rev. 1115, 1130 (2014), citing Miller at 556-557. That is, in addition to being identified as a single-purpose container, “[t]he officer who encounters a package must lawfully be in the location where it is found, the officer must have a lawful right to access the package, and the criminal nature of the package’s contents must be immediately apparent.” Id. , citing Miller at 556-557. Although the single-purpose container exception is widely recognized,
there is a split between jurisdictions as to its application.
See United States v.
Tejada
,
regarding whether a container constitutes a single-purpose container should be
based on the facts and circumstances surrounding the discovery of the container.
See Telthorster
, 1997 WL 973456, at *5 (applying “all the circumstances
surrounding the seizure of the tied-off piece of plastic, the training and experience
of the officers, and the uniqueness of the container” to determine whether a
container may be searched under the single-purpose container exception);
United
States v. Cardona-Rivera
, 904 F.2d 1149, 1155-1156 (7th Cir.1990) (“Several
Justices—almost certainly a majority—believe however that if the shape or other
characteristics of the container, taken together with the circumstances in which it is
seized (from a suspected drug dealer, or a harmless old lady?), proclaim its contents
unambiguously, there is no need to obtain a warrant.”), citing
Sanders
at 764, fn.
13,
Jacobsen
at 119,
Brown
at 750-751, (Stevens, J., concurring);
Miller
, at 560,
and
United States v. Eschweiler
,
out of” the bookbag prior to his search of the bookbag. (
Id.
at 49). (
See also id.
at
46). Drawing on his 17 years of training and experience, Lieutenant Elliott testified
that he thought that the bookbag was “[l]ikely used to store drugs” based on his
observation of the plastic baggies protruding from the bookbag as well has his
detection of the odor of marijuana in the residence as well as marijuana shake on
the table. (
Id.
). Specifically, Lieutenant Elliott testified (based on his training and
experience) that the discovery of marijuana and plastic baggies in the residence was
indicative that narcotics were being packaged in the house. (
Id.
at 44).
Therefore, based on the collective knowledge of law enforcement at
the time Lieutenant Elliott searched the bookbag, we conclude that the contents of
the bookbag were not only a foregone conclusion but that the criminal nature of the
contents was also immediately apparent.
See United States v. Yoon
,
a single-purpose container (based on the specific facts and circumstances of this case), Burroughs further argues that the trial court’s findings that (1) “the baggies were like other baggies that contained drugs”; (2) “the bookbag contained the same baggies [Burroughs] was seen grabbing off the table”; and (3) “multiple baggies were hanging out of the bookbag, prior to its search” are not supported by competent, credible evidence. (Appellant’s Brief at 5-7). Burroughs’s challenges to the trial court’s factual findings are without merit. First, Burroughs contends that the trial court’s factual findings that
“the baggies were like other baggies that contained drugs” and that “the bookbag
contained the same baggies [Burroughs] was seen grabbing off the table” are not
supported by competent, credible evidence because Officer Coburn testified that he
did not know what was in the baggies or provide any “descriptive evidence in the
form of shape, color, etc., to warrant him forming the conclusion it was the same
baggie he saw in [Burroughs’s] possession earlier.” (Appellant’s Brief at 5-7).
Despite Officer Coburn’s testimony that he did not know what was in the baggies
and the absence of any descriptive testimony, Officer Coburn testified (based on his
training and experience) that he thought that the baggies “looked like things that
people keep drugs in” and that the plastic baggie that he saw protruding from the
bookbag resembled the plastic baggies he saw Burroughs collect as she retreated to
the rear of the residence. (Aug. 6, 2019 Tr. at 5-7). Since the trial court is in the
best position to evaluate the credibility of witnesses, it was within the province of
the trial court to find Officer Coburn’s description of the plastic baggies credible.
See Burnside
,
enforcement observed “multiple baggies were hanging out of the bookbag, prior to its search” is not supported by competent, credible evidence because Officer Coburn testified that he saw only “a plastic baggie hanging out of” the bookbag. (Aug. 6, 2019 Tr. at 6, 19-20). However, even though Officer Coburn recalled seeing a single baggie protruding from the bookbag, Lieutenant Elliott (as we noted above) recalled seeing “plastic baggies ” protruding from the bookbag prior to his search of it. (Emphasis added.) ( Id. at 49). ( See also id. at 46). Notwithstanding this contradiction, whether there was a single or multiple plastic baggies protruding from the bookbag, our conclusion that the totality of the circumstances surrounding law enforcement’s discovery of the bookbag permitted its search under the single- purpose container exception is not altered. Importantly, the trial court’s factual finding that some amount of plastic baggies (similar to the plastic baggies that Burroughs was seen collecting as she was retreating to the rear of the residence) were observed protruding from the bookbag is supported by competent, credible evidence. Accordingly, Burroughs’s argument is specious. For these reasons, the trial court did not err by denying Burroughs’s
motion to suppress evidence obtained from its warrantless search and seizure of the
bookbag (albeit for a different reason than stated in the trial court’s decision).
See
State v. Holland
, 10th Dist. Franklin No. 13AP-790,
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed SHAW, P.J., concurs.
/jlr
WILLAMOWSKI, J., dissents. Having reviewed the record, I respectfully dissent from the majority’s
determination that the single purpose exception applied in this case. The
determination as to whether a plain view exception to a warrant applies is reviewed
de novo.
U.S. V. Williams
,
bookbag that is in question, as that was the closed container. “If an object is in a
closed container, the object ‘is not in plain view and the container may not be opened
unless the packing gives away the contents.’ ”
State v. Johnson,
7 th Dist. Jefferson
No. 15 JE 0020,
bookbag in the first place. Lieutenant Elliott testified that he opened the bookbag to search for weapons for the purpose of officer safety. However, at the time the bag was initially opened, the suspect was in the police car in handcuffs and the house had been secured. The bag was not accessible by anyone. Thus there simply was no legally proper reason to search the bag for weapons. Officer Coburn even testified that he did not open the bookbag when he saw it while Burroughs was still in the home because he believed they would need a search warrant to do so. Tr. 26- 27, 36-37. The trial court in this case found that the bookbag “may have been
evidence of a crime, contraband, or otherwise subject to seizure.” Doc. 22. The
trial court based this upon the holding of the U.S. Supreme Court in
Arizona v.
Hicks
,
to obtain a search warrant for the bookbag. The proper course of action in this case
would have been for the officers to seize the bookbag as suspicious and then obtain
a warrant to open it, as was noted by the majority. Unfortunately in this case, the
officers chose to forego the warrant and just proceed with the warrantless search.
Officer Coburn admitted that they did not have the consent of anyone to search the
bookbag. Tr. 35. There were no exigent circumstances nor any other warrant
exception that existed to permit this. Although the bookbag was in plain view, the
contents were not and the contents were not readily apparent. No warrant was
needed to seize the closed container in plain view. However a warrant was required
to search the closed package.
Texas v. Brown
,
Notes
[1] Although the trial court did not rule on the lawfulness of law enforcement’s search of the green cup, we
presume that the trial court denied suppression of any evidence obtained from law enforcement’s search of
the green cup.
See State v. Barnhart
, 6th Dist. Erie No. E-18-046,