STATE OF OHIO, Plaintiff-Appellee, - vs - KIMBALL LEE PETTIFORD, Defendant-Appellant.
CASE NO. CA2017-05-010
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
3/19/2018
[Cite as State v. Pettiford, 2018-Ohio-1015.]
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI20160218
Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Kimball Pettiford, appeals his convictions in the Fayette County Court of Common Pleas for possession of heroin, possession of drug abuse instruments, and illegal possession of drug abuse paraphernalia.
{¶ 2} The Washington Courthouse Police Department received a report of a possible drug overdose and responded to Pettiford‘s home. Upon arrival, Pettiford was located lying
{¶ 3} Pettiford regained consciousness and claimed that he had been consuming alcohol and that he had not been inside the house the entire day. Police placed Pettiford in a police cruiser after he refused medical assistance. Police then seized the dog leash, hypodermic syringes, a cup, a spoon, and a cotton ball. Officers also seized a white piece of paper containing a powder substance and a small rock near the paper. Officers performed a field test of the seized substances, and the test was positive for heroin.
{¶ 4} Pettiford was arrested and later indicted for possession of heroin, drug instruments, and drug abuse paraphernalia. Pettiford pled not guilty, and filed a motion to suppress the items seized from his home. After a hearing on the matter, the trial court overruled the motion to suppress. Pettiford‘s defense counsel later moved to withdraw from representatiоn, claiming a breakdown in communication after Pettiford blamed counsel for the trial court‘s denial of the motion to suppress. The trial court granted defense counsel‘s motion to withdraw, and appointed Pettiford new counsel.
{¶ 5} Pettiford ultimately pled no contest to the charges, and the trial court found him guilty on each. The state and Pettiford submitted an agreed sentence, which was accepted by the trial court, of six months on count one, 90 days on count two, and 30 days on count three, with all sentences to be served concurrently. Pettiford now appeals his convictions, raising the following assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN APPLYING THE PLAIN VIEW EXCEPTION TO
{¶ 8} Pettiford argues in his first assignment of error that the trial сourt erred in denying his motion to suppress.
{¶ 9} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court assumes the role of the trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Id. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Id. Accepting these facts as true, the appellate court must then independently determine, as a matter of law, and without deference to the trial cоurt‘s conclusions, whether the trial court applied the proper legal standard. Id.
{¶ 10} The
{¶ 11} If an individual does not act to preserve the privacy afforded by the
{¶ 12} Although society generally respects a person‘s expectations of privacy in a dwelling, what a person chooses voluntarily to expose to public view thereby loses its
{¶ 13} These
{¶ 14} The plain view doctrine authorizes the warrantless seizure of evidence if thе initial intrusion leading to the discovery of the evidence was lawful and the incriminating or illegal nature of the items was immediately apparent. State v. Simmons, 12th Dist. Butler No. CA2012-11-229, 2013-Ohio-5088, ¶ 18. The “immediately apparent” requirement is satisfied when police have probable cause to associate an object with criminal activity. Young, 2015-Ohio-1347. The requisite probable cause may arise from the character of the property itself or the circumstances in which it is discovered, and police officers may rely on their specialized knowledge, training, and experience in establishing probable cause to identify items as contraband. Id.
{¶ 15} Another exception to the warrant requirement occurs when officers encounter exigent circumstances. The Ohio Supreme Court applies exigent circumstances as an exception to the warrant requirement for instances of both search and seizure. State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10. “The exigencies of [a] situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the
{¶ 16} “The exigent circumstances doctrine requires probable cause plus exigent circumstances to effectuate a warrantless entry of [a] home.” State v. Wilson, 12th Dist. Clinton No. CA2006-03-008, 2007-Ohio-353, ¶ 22. “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that [an] offense has been committed.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 73. In determining whether probable cause exists, a court must look at the “totality of the circumstances.” State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, ¶ 16. Probable cause is viewed under an objective standard. State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 14.
{¶ 17} During the hearing on Pettiford‘s motion to suppress, the state presented evidence that officers seized the items from Pettiford‘s house with constitutional authority. First, and regarding plain view, the record is clear that officers were legally on the premises because they were responding to an emergency call that someone had overdosed at Pettiford‘s residence. Upon arrival, officers located Pettiford on the front porch of his home and were legally on the premises as first responders to offer emergency assistance.
{¶ 18} The responding officer testified at the hearing that when he arrived at Pettiford‘s residence, he observed the unresponsive Pettiford lying on the porch. The officer then approached to check Pettiford‘s vital signs, entering the porch area necessarily. Once there, the оfficer could see into the living room through the open front door and closed screen door. The officer testified that the items of contraband were approximately six to seven feet away from him when he initially made his observation. The officer clearly observed a dog
{¶ 19} In addition to being on the premises legally, we also find that the incriminating or illegal nature of the items was immediately apparent and that officers had probable cause to associate the objects with criminal activity. The officеr testified that the dog leash was looped through itself to be used as a tourniquet and that he also observed syringes on the table. Tourniquets and syringes are drug paraphernalia commonly used to assist in the injection of heroin, and the nature of the items was immediately apparent to associate them with drug use. Thus, the requirements for application of the plain view doctrine are clearly present.1
{¶ 20} Moreover, we find that there was probable cause to establish the existence of exigent circumstances during the time that officers provided emergency assistance to Pettiford and during the time officers entered the home. The responding offiсer testified that he and other officers did not know if anyone else was in the home as they provided aid to Pettiford. The officer further testified that part of his decision to enter the home while waiting for the life squad to arrive was specific to not knowing if anyone else was in the home.
{¶ 21} This evidence supports the warrantless entry into Pettiford‘s home and seizure of the contraband in plain view. The officers were unaware if anyone else was in the home at the time they arrived and began offering emergency assistance to Pettiford. It was reasonable for officers to objectively question their safety or the safety of others given that Pettiford had exited his house after a drug overdose, was unresponsive, and could not inform officers if anyone else was inside the home.
{¶ 23} We also recognize the possibility that someone inside the home, even if not a threat to offiсers or otherwise in need of medical care, could have interfered with the officers’ ability to seize the contraband had officers stopped to secure a warrant. The testifying officer clearly observed multiple syringes, thus indicating the possibility that someone else was in the home and had reason to remove the suspected drugs and drug paraphernalia because they were incriminating evidence. While Pettiford relies on the fact that the responding officer announced his presence twice and received no answer from the house, it is entirely reasonable for an officer to believe that another drug user in the house would not willingly acknowledge his or her presence at an obvious crime scene.
{¶ 24} The dissent would have the police walk away from an unsecured residence with drugs and syringes inside or, in the alternative, have new officers called to the scene and enter the residence for the undaunting task of guarding the immediately-apparent contraband in order that the responding officers can leave to obtain a search warrant for purposes of entering and seizing the contraband being guarded. Such a suggestion is
{¶ 25} The finding of probable cause for exigent circumstances is based on the totality of the circumstances, and is an objective determination.3 The circumstances were such that officers arrived after an emergency call, found Pettiford unresponsive, tried to provide medical assistance, and did not know if anyone else was inside the home as a threat, someone in need of medical assistance, or someone who could destroy evidence. As such, there was probable cause to support the officers’ entrance into Pettiford‘s home based upon exigent circumstances.
{¶ 26} After reviewing the record, we find that the warrantlеss search was nonetheless reasonable based on the plain view doctrine and exigent circumstances. As such, Pettiford‘s first assignment of error is overruled.
{¶ 27} Assignment of Error No. 2:
{¶ 28} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION OF PETTIFORD‘S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 29} Pettiford argues in his second assignment of error that he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, appellant must show his trial counsel‘s performance was deficient, and that he was prejudiced as a
{¶ 30} The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.
{¶ 31} After reviewing the record, we find that Pettiford received effective assistance of counsel. The record is clear that defense counsel argued the motion to suppress and presented cogent arguments as to why the motion should be granted. While the trial court overruled the motion, its decision does not render defense counsеl‘s assistance in the matter deficient. There is no indication in the record that the results of the motion to suppress would have been different had defense counsel taken a different approach or presented other evidence. This is especially true where the items seized were clearly in plain view and exigent circumstances existed to permit officers to perform the warrantless seizure of the drugs and related paraphernalia.
{¶ 32} Having found that Pettiford received effective assistance of counsel, we overrule his second assignment of error.
{¶ 33} Judgment affirmed.
RINGLAND, P.J., concurs.
M. POWELL, J., dissenting.
{¶ 34} I dissent from the majority‘s affirmance of the trial court‘s denial of Pettiford‘s motion to suppress.
{¶ 35} The trial court denied Pettiford‘s motion to suppress the warrantless seizure of the heroin, drug abuse instruments, and drug paraphernalia (the “contraband“) based upon the plain view doctrine and the exigent circumstances exception to the
{¶ 36} This case involves a warrantless entry into a person‘s home and a warrantless seizure of contraband. “Where there is no search warrant, the burden falls оn the state to show that a search comes within one of the judicially recognized exceptions.” State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49, 51 (1985). See also Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988); State v. Taylor, 77 Ohio App.3d 223, 225 (12th Dist.1991). Thus, Pettiford is not required to establish that the seizure of the contraband was illegal. Rather, it is incumbent upon the state to show that either the plain view doctrine or the exigent circumstances exception to the warrant requirement authorized the warrantless seizure of the contraband under the
{¶ 37} The United States Supreme Court has described the plain view doctrine as follows:
It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the
Fourth Amendment in arriving at the place from which the evidenсe could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plainview, its incriminating character must also be “immediately apparent.” * * * Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.
(Citations omitted.) Horton v. California, 496 U.S. 128, 136-137, 110 S. Ct. 2301 (1990). See also State v. Spence, 12th Dist. Butler No. CA2002-05-107, 2003-Ohio-4237, ¶ 24; Ohio Dept. of Liquor Control v. Fraternal Order of Eagles Aerie 2293, 112 Ohio App.3d 94, 98 (10th Dist.1996); and State v. Wangul, 8th Dist. Cuyahoga No. 79393, 2002 Ohio App. LEXIS 564, *10-11 (Feb. 14, 2002).
{¶ 38} Because the requirements of the plain view doctrine that an officer be “lawfully located in a place from which the object can be plainly sеen” and that the officer “have a lawful right of access to the object itself” oftentimes coincide, it is easy to confuse these two elements as one and the same. However, as the facts of this case illustrate, there are occasions where these elements do not coincide, thus requiring that they be independently satisfied. Accordingly, a police officer must not only be constitutionally located in a place from which the item to be seized is plainly visible, but he must also be able to access the item consistent with the
{¶ 39} The police had a lawful right to be on Pettiford‘s porch as an incident of their response to the report of Pettiford‘s apparent overdose. It was from this lawful vantage point that the police observed, in open view, the contraband in Pettiford‘s home that was eventually seized. This observation did not violate the
Nonetheless,
the limits on the [plain view] doctrine are implicit in the statement of its rationale. The first of these is that plain viеw alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle * * * that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.
(Emphasis sic.) Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022 (1971).
{¶ 40} In commenting upon these implicit limitations of the plain view doctrine, the Fourth Appellate District has observed that “while the observation of something that is in ‘open view’ does not amount to a search, this discovery does not justify a subsequent warrantless seizure absent some specific exception to the warrant requirement.” State v. Bradford, 4th Dist. Adams No. 09CA880, 2010-Ohio-1784, ¶ 36. Hence, the officer‘s mere observation of the contraband lying on Pettiford‘s coffee table, through the screen door on Pettiford‘s porch, did not justify the warrantless entry into Pettiford‘s home to access and seize that contraband.
{¶ 41} The state relies upon the plain view doctrine and our opinion in State v. Young, 12th Dist. Warren No. CA2014-05-074, 2015-Ohio-1347, to argue that the lawful presence of the police on Pettiford‘s pоrch, within the curtilage of the home, was all that was necessary to justify their warrantless entry into the home to seize the contraband. In Young, we held that a police officer was lawfully within the curtilage of Young‘s home when the officer entered the rear patio to conduct a “knock and talk.” While on the patio, the officer observed a garbage can sitting on the patio with an open trash bag containing evidence of the manufacture of methamphetamine. We determined that the plain view doctrine applied to the seizure of the evidence because a “knock and talk” provided a legitimate law enforcement purposе for the officer to be within the curtilage of the home on the patio. Young provides an excellent
{¶ 42} Exigent circumstances may also serve as an exception to the
{¶ 43} The state did not argue exigent circumstances in the trial court or on appeal, instead relying entirely upon the plain view doctrine as justification for the entry into Pettiford‘s home and the seizure of the contraband. Nonetheless, the trial court found exigent circumstances, apparently related to preservation of the evidence and Pettiford‘s medical condition. Preservation of evidence and response to a medical emergency may serve as exigent circumstances. However, the evidence on the record does not support the existence of the exigent circumstances relied upon by the trial court in denying Pettiford‘s motion to suppress.
Because marijuana and other narcotics are “easily and quickly hidden or destroyed,” the Ohio Supreme Court has recognized that there are times where a “warrantless search may be justified to preserve evidence.” However, “[n]otwithstanding the ease in which narcotics can be destroyed, a warrantless entry into the home of a suspected drug trafficker, effected without an оbjectively reasonable basis for concluding that the destruction of the evidence is imminent, does not pass constitutional muster.” The “mere possibility of the loss or destruction of evidence is an insufficient basis for the warrantless entry of a house to prevent the destruction of evidence.” Rather, there must be a “real likelihood” that the evidence is in danger of being destroyed.
(Citations omitted.) Norman at ¶ 52.
{¶ 45} In this case, the evidence establishes nothing beyond a “mere possibility” that third persons were present in Pettiford‘s home who might dispose of the contraband before the police could obtain a search warrant, thus, failing to justify the warrantless entry into Pettiford‘s home and the seizure of the contraband.
{¶ 47} In Norman, we rejected a claim of exigent circumstances based upon a concern that other persons may have been present in a basement apartment with access to
We find that the totality of the circumstances in this case does not support a finding of exigent circumstances as there was no basis for Velde or Workman to believe, or even suspect, that there was anyone in the basement or that there was a real likelihood that the marijuana in the basement was in danger of being destroyеd. At the motion to suppress hearing, both Velde and Workman testified that the whereabouts of appellant were unknown. Although both Velde and Workman testified it was “possible” appellant was in the basement, and therefore could have been destroying evidence, neither Velde nor Workman heard any noise coming from the basement or saw anyone entering or exiting the basement. Velde admitted that she “didn‘t really think that there was anyone in the basement.” Workman testified her sole basis for believing someone was down in the basement stemmed from the absence of the basement‘s second tenant, appellant, rather than from any noises or observations she made while at the scene.
{¶ 48} As this case and Norman demonstrate, it is common that the police are unable to conclusively exclude the presence of others within an area sought to be searched. Just as in this case, police will frequently be concerned in these situations that the lack of indicia that others are present is because any other such persons are unwilling or unable to reveal their presence. However, this uncertainty is not a “reasonable belief” supported by “positive, specific evidence,” but rather a “concern” supported by a “possibility.” Finding that the exigent circumstances exception is established upon the latter is not оnly contrary to well-established law, but would represent a gross expansion of the exception to include circumstances that are not truly “exigent.”
{¶ 49} Neither was Pettiford‘s medical treatment established as an exigent circumstance. Although the trial court found that the warrantless entry into the home and the
{¶ 50} The police were lawfully present on Pettiford‘s porch and lawfully observed the contraband from that vantage point through the screen door. Their observations gave rise to probable cause to search and seize that visible contraband. However, their observations did not provide them with lawful access to the contraband, absent a search warrant or some exception to the