State v. DiazState v. Diaz
APPEARANCES:
For Plaintiff-Appellee
JOHN D. FERRERO
PROSECUTING ATTORNEY
KRISTINE W. BEARD
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
For Defendant-Appellant
BERNARD L. HUNT
2395 McGinty Road, NW
North Canton, Ohio 44720
{¶1} Defendant-Appellant Concepcion Diaz appeals from his conviction, in the Court of Common Pleas, Stark County, on several felony counts connected to his illegal cultivation of marihuana. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On October 3, 2015, one of appellant‘s next-door neighbors made a complaint to Alliance law enforcement officials that Appellant Diaz was growing marihuana in his backyard at 130 West Vine. Officers from the Alliance Police Department responded. They were familiar with appellant‘s home based upon prior complaints of drug activity at that location. Officer Shannon McCalla stood on the complainant‘s property and observed three marihuana plants in buckets in an empty swimming pool in the back yard of appellant‘s home. The plants were protected by a wire fence. See Tr. at 4-8.
{¶3} At the time in question, appellant was inside the house with a female companion, Sarah Jackson. After Officer McCalla had observed the plants, the officers went up to the rear of the house. Officer Donald Bartolet, observing activity in the rear part of the house‘s interior, walked onto the back porch and knocked on a sliding glass door. Through this door the officers observed appellant and Sarah Jackson cutting dried marihuana and putting it in jars. The officers also observed a digital scale and other drug paraphernalia in the kitchen. Appellant answered the door and spoke in a cooperative manner with the officers. Appellant admitted he was growing marihuana in the backyard. Appellant told the officers how to get through the fence and into the pool area. Tr. at 11, 14, 46. Officer McCalla thereupon entered the pool area and retrieved the three marihuana plants.
{¶4} Appellant was nonetheless reluctant to consent to the search of his home; accordingly, Detective Minich, who had arrived at the scene, left to obtain a search warrant. In the meantime, appellant and Jackson were permitted to go back inside, accompanied by the officers, to get their coats and some cigarettes. The officers secured the property and performed a protective sweep of the house. Appellant and Jackson sat in a police cruiser while the warrant was being obtained.
{¶5} As a result of the ensuing search of the house after the two officers returned with the warrant, more than 3000 grams of marihuana were seized. Appellant was arrested at the scene. On December 24, 2015, appellant was indicted on felony
{¶6} On January 28, 2016, appellant filed a motion to suppress. Appellant filed a supplement to the suppression motion on February 17, 2016. Following a hearing, the trial court denied the motion to suppress.
{¶7} On April 26, 2016, appellant pled no contest to and was found guilty of possession of marihuana (
{¶8} On April 29, 2016, appellant was sentenced to twelve months in prison for the count of possession marihuana, twelve months for the count of illegal cultivation, and twelve months for trafficking in marihuana. The terms were ordered to be served concurrently.
{¶9} On June 6, 2016, appellant filed a notice of appeal, subsequently obtaining leave from this Court for a delayed appeal. He herein raises the following two Assignments of Error:
{¶10} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO SUPPRESS.
{¶11} “II. THE TRIAL COURT ERRED WHEN IT ADMITTED HEARSAY EVIDENCE DURING THE MOTION TO SUPPRESS HEARING.”
I.
{¶12} In his First Assignment of Error, appellant contends the trial court erred in overruling his motion to suppress. We disagree.
{¶13} There are three methods of challenging on appeal a trial court‘s ruling on a motion to suppress. First, an appellant may challenge the trial court‘s finding of fact. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this third type of claim, an appellate court must independently determine, without deference to the trial court‘s conclusion, whether the facts meet the appropriate legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United States Supreme Court has held that “* * * as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911.
Outside Property Search
{¶14} We first consider the officers’ seizure of the marihuana plants from the empty swimming pool in appellant‘s back yard.
{¶15} The
{¶16} A
{¶17} However, “[p]olice are privileged to go upon private property when in the proper exercise of their duties.” See State v. Cook, 5th Dist. Muskingum Nos. 2010–CA-40, 2010–CA-41, 2011-Ohio-1776, ¶ 65, citing State v. Chapman (1994), 97 Ohio App.3d 687, 647 N.E.2d 504. Furthermore, the porch of a residence has been held to be a public place for purposes of Fourth Amendment analysis. Id. at ¶ 66, citing State v. Swonger, 10th Dist. Franklin No. 09AP1166, 2010–Ohio-4995, ¶ 15.
{¶18} In the case sub judice, we agree with the State‘s responsive argument that appellant‘s rear porch under these circumstances did not fall under the rubric of “curtilage” for purposes of the
Interior Home Search
{¶19} We next consider the officers’ entry into appellant‘s home and the seizure of items therein. The United States Supreme Court has held that “ ‘[a]t the very core [of the
{¶21} The United States Supreme Court has held that officers who enter and seize a home to preserve the status quo while waiting for a search warrant do not commit an independently sanctionable violation of the
{¶22} Under the circumstances presented, we hold any evidence taken from the appellant‘s house, pursuant to the search warrant ultimately obtained, was not seized in violation of the
Miranda Warnings
{¶23} Appellant lastly contends that any statements he made at the scene should have been suppressed for want of compliance with the Miranda rule. However,
{¶24} Our review of appellant‘s suppression motion and supplement reveals he did not properly raise a challenge under Miranda before the trial court. There is a brief undeveloped reference to Miranda in a final “memorandum in support” in the trial court file; however, this document was not filed until after the suppression hearing. We therefore invoke the doctrine of waiver as to said issue.
II.
{¶26} In his Second Assignment of Error, appellant contends the trial court erred in admitting alleged hearsay evidence over objection during the hearing on his motion to suppress, specifically Officer McCalla‘s testimony as to the neighbor‘s statements, and Officer Minich‘s statements regarding information from another police department about appellant‘s alleged drug activities.
{¶27} The
{¶28} Appellant‘s Second Assignment of Error is therefore overruled.
{¶29} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Baldwin, J., concur.
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