No. 82697. | Ohio Ct. App. | Dec 11, 2003
{¶ 2} On September 6, 2002, after receiving an anonymous tip as to his location, Cuyahoga County sheriff's deputies arrested1 appellant at a home located at 2961 East 66th Street, Cleveland, Ohio.2 Upon entering the bedroom of the East 66th Street residence, the deputies arrested and handcuffed appellant. While conducting a protective sweep for weapons, deputies observed in plain view a small amount of marijuana on the dresser. After obtaining consent-to-search forms from appellant, Victoria, and Victor, the deputies searched the residence. While searching the closet of the bedroom where appellant was arrested, deputies found one digital scale and 28 bags of marijuana hidden inside the sleeve of a winter jacket. Appellant was charged with drug possession, drug trafficking, and possession of criminal tools. He pled not guilty. On December 26, 2002, appellant moved to suppress the evidence obtained during the search. Following the hearing on his motion to suppress, appellant entered a plea of no contest.3 The trial court sentenced appellant to a six-month term of imprisonment.
{¶ 3} It is from the denial of his motion to suppress that appellant advances one assignment of error for our review.
{¶ 5} "In considering a motion to suppress, the trial court assumes the role of trier of fact, and is in the best position to resolve factual questions and evaluate the credibility of the witnesses. Consequently, in reviewing a trial court decision on a motion to suppress, an appellate court must accept the trial court's findings of fact if they are supported by competent credible evidence. An appellate court, however, determines as a matter of law, without deferring to the trial court's conclusions, whether the law has been appropriately applied to those facts." State v. Martin, Cuyahoga App. No. 82026, 2003-Ohio-4058.
{¶ 6} Appellant argues that the entire search of the premises was invalid because the state did not have an arrest warrant for the East 66th Street location. The state entered into evidence appellant's arrest warrant which listed his address as 1300 Superior Avenue, Apartment 1207, Cleveland, Ohio.4 Appellant contends that since the arrest warrant was effectuated at another address, the deputies only recourse was to obtain a search warrant for the East 66th Street location. Appellant concludes that since the state failed to obtain the search warrant, the evidence against appellant was illegally obtained. We find no merit to this argument.
{¶ 7} "Warrantless searches are presumptively unreasonable under the
{¶ 8} As an initial matter, we find the trial court properly found that a valid arrest took place. Appellant argues that "the arrest warrant was defective since it was used to enter the premises located on East 66th Street." To effectuate the arrest at a residence other than that of the offenders, law enforcement must have an arrest warrant plus "reason to believe" that a defendant was in another's house. State v.Yerkey, 2001-Ohio-1792.
{¶ 9} In the case sub judice, the deputies received a tip that appellant was located at the house on East 66th Street. Upon approaching the home, the deputies knocked on the door, stated who they were looking for, and confirmed that appellant was in the home at the time. Under these circumstances, the deputies had sufficient reason to believe they had located appellant.5 Having found that appellant's arrest was proper, we turn our analysis to the search that took place in the home.
{¶ 10} When reviewing the "search incident to arrest" exception to warrantless searches, courts must be mindful of the exception's twofold purpose: to deny access to weapons and to prevent the concealment or destruction of evidence. State v. Cherry, 2003-Ohio-3146. The United States Supreme Court has held that areas immediately adjoining the place of arrest are also subject to search. The court held: "That as an incident to the arrest, the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Maryland v. Buie (1990),
{¶ 11} In the case sub judice, the search of the area around appellant was proper. According to the transcript, the deputies searched the area around the bed and the adjoining dresser as part of a protective sweep. Appellant argues that this protective sweep was unnecessary and illegal, in part, because the area that was searched was too broad, considering appellant was handcuffed at the time. The fact that appellant was handcuffed does not necessarily mean that he was incapable of using a weapon or other item to harm the deputies, or that the area was otherwise safe. Cherry, supra. Appellant also alleges that a deputy looked in the bedroom closet during the purported protective sweep. Specifically, appellant argues in his appellate brief that "* * * Deputy Sheriff Charo further admitted that Officer Church looked into the closet during the purported `protective sweep' id., p. 38." However, appellant clearly misreads the transcript. Our review of the transcript reveals:
"Q. Now, when he was sweeping the place, did Officer Church look in thecloset? "A. Yes, sir. Oh, I'm sorry. I misunderstood your question. "Q. Did he look in the closet? "A. For the sweep or the search? "Q. During the sweep. "A. No, sir. That wasn't within arm's reach."
{¶ 12} The trial court had competent credible evidence in which to determine the closet was not searched prior to the deputies' receipt of the signed consent-to-search forms.
{¶ 13} In regards to the consent-to-search forms, appellant argues that his consent was coerced and that the search was completed before he was asked to sign the form. The state argues that after the deputies identified appellant, he was informed of his
{¶ 14} We find that there is no evidence to suggest the deputies acted improperly. The trial court weighed the credibility of the witnesses, and its decision was supported by competent credible evidence.
{¶ 15} Appellant's assignment of error is overruled.
{¶ 16} The judgment is affirmed.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Kenneth A. Rocco, A.J. and Patricia A. Blackmon, J., concur.