STATE OF OHIO, Plaintiff-Appellee, v. ARON LAURENCE RICH, Defendant-Appellant.
CASE NO. CA2012-03-044
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/11/2013
2013-Ohio-857
RINGLAND, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-09-1434
Strauss Troy Co., LPA, Martin S. Pinales, Candace C. Crouse, Federal Reserve Bldg., 150 East Fourth Street, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶ 1} Defendant-appellant, Aron Laurence Rich, appeals from his conviction in the Butler County Common Pleas Court for complicity to trafficking in cocaine, trafficking in cocaine, possession of cocaine and a major drug offender specification. For the reasons that follow, we affirm Rich‘s conviction.
{¶ 2} On August 27, 2011, Hamilton Police Detective Joey Hamilton was investigating
{¶ 3} Upon receiving this information, Detective Thompson rented a Chevy HHR and attached a magnetic Global-Positioning-System (GPS) tracking device underneath the vehicle‘s rear bumper to allow the detective to monitor the vehicle‘s movements via a GPS website and relay this information to his fellow police officers who would be conducting physical surveillance of the vehicle. Detective Thompson then transferred the vehicle to the CI. The CI used the HHR to pick up Rubio, and the two of them drove to the Dayton airport and picked up Sanchez, and then the three of them returned to Hamilton. The police had outfitted the CI with a wire, and therefore his conversations with Rubio and Sanchez were recorded.
{¶ 4} On August 29, 2011, Rich, along with Horacio Bernabe and Bhoj Ghale, traveled in a Chevy Aveo to the Wal-Mart on Cincinnati-Dayton Road, Butler County, Ohio (the Butler County Wal-Mart) and went inside the store. Shortly thereafter, Rubio and Sanchez, traveling in the HHR that Detective Thompson had provided to the CI, arrived at the Butler County Wal-Mart. Surveillance video from the store‘s parking lot shows that Rich, Bernabe and Ghale arrived at 6:11 p.m.; Rubio and Sanchez arrived nine minutes later.
{¶ 5} At 6:38 p.m., Rich, Bernabe and Ghale walked back to the Aveo in which they had arrived. After the three shook hands, Bernabe and Ghale got into the Aveo, while Rich entered the HHR that had been driven there by Rubio and Sanchez. Then the two vehicles left the Butler County Wal-Mart, with Bernabe and Ghale leaving together in the Aveo and Rich leaving, alone, in the HHR. Surveillance video from inside the Butler County Wal-Mart
{¶ 6} Cincinnati Police Officer Dan Kowalski, who was wearing plain clothes and driving an unmarked vehiсle, was conducting physical surveillance of the suspects at the Butler County Wal-Mart. When Officer Kowalski saw Rich get into the HHR and drive away, he and several of his fellow officers began following Rich in the HHR and Bernabe and Ghale in the Aveo, as those two vehicles drove south into Hamilton County, Ohio and exited the highway onto Glendale-Milford Road, at which time the HHR and Aveo split up into different directions.
{¶ 7} Cincinnati Police Officer Colleen Deegan, who was also conducting physical surveillance of the suspects, saw the HHR drive near to the Wal-Mart on Glendale-Milford Road, Hamilton County, Ohio (Hamilton County Wal-Mart), and then saw the HHR execute an illegal U-turn and head in the opposite direction on I-75 North. Officer Dеegan saw that the HHR was being driven by a white male. Rich is white; Bernabe and Ghale, like Rubio and Sanchez, are Hispanic.
{¶ 8} About 20 minutes later, Officer Deegan saw the HHR with the white male driver return to the Hamilton County Wal-Mart. The surveillance video from the Hamilton County Wal-Mart shows that at 7:17 p.m., Rich parked the HHR, got out and went inside the store. At 7:31 p.m., Rubio and Sanchez arrived at the store in Rubio‘s Lincoln Continental. Several minutes later, Rubio entered the HHR, which had been driven there by Rich, while Sanchez returned to the Lincoln. Rich, Bernabe and Ghale got into the Aveo. All three vehicles left the Hamilton County Wal-Mart, and shortly thereafter, all three vehicles were stopped by the police.
{¶ 9} No drugs were found in the Lincoln, which had been driven to the Hamilton County Wal-Mart by Rubio and then was driven away from that store by Sanchez, who was driving the vehicle at the time it was stopped. However, eight kilos of cocaine were found
{¶ 10} The police discovered the cocaine in Rich‘s storage locker as a result of information they gathered from the GPS tracking device attаched to the HHR. The police learned from the tracking device that after the HHR made the illegal U-turn witnessed by Officer Deegan, the vehicle traveled to the storage facility on East Kemper Road and stayed there for approximately ten minutes. The police learned from the storage facility‘s manager Amberlie Lawson that Rich had the rented storage locker in 2010 and that Lawson recognized Rich because he often came to his storage locker. After a drug dog “alerted” on Rich‘s storage locker, the police obtained a search warrant for the locker. When the police executed the warrant, they discovered two toolboxes that contained cocaine and crack cocaine. The police also found fingerprints on one of the toolboxes that were later determined to be Rich‘s fingerprints.
{¶ 11} An 11-count indictment was handed down against Rubio, Rich and Sanchez, charging them with various counts of complicity to trafficking in cocaine, trafficking in cocaine and possession of cocaine, with a major drug offender specification attached to each count. Five of the 11 counts in the indictment were directed at Rich, who was indicted on one count of complicity to trafficking in cocaine (Count Four), two counts of trafficking in cocaine (Counts Five and Seven), and two counts of possession of cocaine (Cоunt Six and Eight), with a major drug offender specification attached to each of those five counts. Rubio and Sanchez subsequently entered into plea bargains with the state, while Rich chose to proceed to trial.
{¶ 12} Prior to trial, Rich moved to suppress the evidence seized by police as a result
{¶ 13} A hearing was held on Rich‘s motion to suppress, at which Detective Thompson testified for the state and Rich testified for the limited purpose of establishing that he had standing to bring a Fourth Amendment challenge to the police‘s warrantless use of the GPS tracking device. Rich testified that he received permission to use the HHR from one of his co-conspirators, Bernabe, but acknowledged that he did not know from whom Bernabe had received permission to use the vehicle.
{¶ 14} At the close of the hearing, the trial court overruled Rich‘s motion to suppress for two reasons:
{¶ 15} First, the trial court, citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421 (1978), noted that a defendant must have standing in order to challenge the constitutionality of a search or seizure; that nonowners of a vehicle generally do not have standing to raise such a challenge; and that even if a defendant is legitimately present in a vehicle, that fact does not necessarily give the defendant a legitimate expectation of privacy. The trial court found that the question of whether a person has a legitimate expectation of privacy turns on the facts and circumstances of each case, and that under the facts and circumstances of this one, Rich did not have a reasonable expectation of privacy in the HHR since he had obtained possession of that vehicle “several times removed” from the person who had rented it, i.e., Detective Thompson.
{¶ 16} Second, the trial court noted that leaving aside the issue of whether or not Rich had standing to challenge the constitutionality of the poliсe‘s warrantless use of a GPS tracking device, the police did not need to obtain a warrant to install and use the GPS
{¶ 17} Several days later, the trial court overruled Rich‘s motion to compel the state to produce “all officer notes and summaries of actions taken in furtherance of the investigation of this matter by law enforcement.” Rich‘s motion was made in response to the defense‘s having seen Detective Thompson refer to certain written notes during his testimony at the suppression hearing. The notes related to Detective Thomson‘s investigation of Rich and his co-conspirators. The trial court ovеrruled the motion to compel, finding that the notes were “work product” and thus were exempt from disclosure under
{¶ 18} At Rich‘s three-day jury trial, the state presented testimony from a number of witnesses, including Detective Thompson and his fellow officers who followed and then arrested Rich on the day in question. The state also presented testimony from its fingerprint expert, Detective Mark Henson, who testified that the fingerprints found on one of the toolboxes in Rich‘s storage locker were Rich‘s fingerprints. The jury acquitted Rich of one count of trafficking in cocaine and one count of possession of cocaine, but convicted him of the remaining charges and specifications. The trial court sentencеd Rich to serve ten years in prison and to pay a $10,000 fine.
{¶ 19} Rich now appeals, assigning the following as error:
{¶ 20} Assignment of Error No. 1:
{¶ 21} THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO SUPPRESS.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED IN DENYING RICH‘S
{¶ 24} Assignment of Error No. 3:
{¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO EXCLUDE THE STATE‘S EXPERT WITNESS AT TRIAL.
{¶ 26} Assignment of Error No. 4:
{¶ 27} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO REQUIRE THE STATE TO TURN OVER A POLICE REPORT PRIOR TO TRIAL.
{¶ 28} In his first assignment of error, Rich argues the trial court erred in denying his motion to suppress from evidence any information gathered by police through their warrantless use of the GPS tracking device they installed on the HHR. Rich asserts that contrary to what the trial court held, he did have standing to challenge the warrantless use of a GPS device to track the HHR‘s movements because he had permission to drive the HHR. He cites several cases in support of his argument, including State v. Brooks, 12th Dist. No. CA99-01-002 (Dec. 6, 1999); and State v. Mack, 6th Dist. No. S-95-030, 1996 WL 21048, *3 (Jan. 19, 1996).
{¶ 29} Rich further argues the trial court erred when it found that even if he had standing to raise a constitutional challenge to the warrantless installation and use of a GPS tracking device on the HHR, the police still were not required to obtain a warrant prior to using the GPS tracking device to monitor the vehicle‘s movements, given this court‘s decision in Johnson, 190 Ohio App.3d at 758, 2010-Ohio-5808. Rich contends that United States v. Jones, __ U.S. __, 132 S.Ct. 945 (2012) “suggests that the [United States Supreme] Court is leaning toward concluding that the use of GPS technology to monitor a person‘s movements on public streets is a search under the Fourth Amendment.” (Emphasis sic.) Therefore, Rich requests that this court find that the police‘s warrantless use of a GPS tracking device on the HHR to track the vehicle‘s movements was “an unconstitutional violation of [his] Fourth
{¶ 30} In Johnson, the police attached a GPS tracking device to the undercarriage of a van ownеd by Johnson, a suspected drug trafficker. The officers placed the GPS tracking device on Johnson‘s van while it was parked at his home. The officers’ use of the tracking device led to Johnson‘s arrest for drug trafficking. Johnson moved to suppress the evidence seized from him, arguing the warrantless installation and use of a GPS tracking device violated his Fourth Amendment rights against unreasonable searches and seizures. The trial court overruled the motion, and Johnson was convicted.
{¶ 31} On direct appeal, we affirmed the trial court‘s denial of Johnson‘s motion to suppress. This court held that a criminal defendant does not have a reasonable expectation of privacy in the undercarriage of his vehicle and that “placing the GPS on Johnson‘s van and monitoring its movements did not constitute a search or seizure under either the federal or Ohio constitutions.” However, our decision in Johnson was vacated by the Ohio Supreme Court, which remanded the cause to the Butler County Common Pleas Court for application of the United States Supreme Court‘s decision in Jones, 132 S.Ct. 945. State v. Johnson, 131 Ohio St.3d 301, 2012-Ohio-975, ¶ 1.
{¶ 32} In Jones, the United States Supreme Court held that the government‘s attachment of a GPS tracking device to a vehicle and its subsequent use of that device to monitor the vehicle‘s movements on public streets, constitutes a “search,” for purposes of the Fourth Amendment. Id. at 949. Rich acknowledges that Jones cannot be viewed as controlling in this case, since Jones involved a “classic trespassory search,” see id. at 954, in which the government attached a GPS device to a vehicle registered to the wife of the defendant in that case, Jones. Jones’ wife who had given him permission to drive the vehicle, and the government acknowledged that Jones was the “exclusive driver” of the
{¶ 33} In this case, by contrast, the police installed the GPS tracking device on the HHR before Rich took possession of the vehicle, and therefore there was no trespass in this case. Nevertheless, Rich argues the Jones court recognized that “trespass” is not the exclusive test for determining whether a Fourth Amendment violation occurred and that under Jones, situations involving merely the transmission of electronic signals without trespass remain subject to the аnalysis called for by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967).
{¶ 34} The Katz approach to whether Fourth Amendment protections apply in a given circumstance involves a two-part inquiry: (1) whether the individual exhibited a subjective expectation of privacy, and (2) whether the individual‘s subjective expectation of privacy is one that society is prepared to recognize as reasonable. See United States v. Knotts, 460 U.S. 276, 280-281, 103 S.Ct. 1081 (1983) (discussing Katz).
{¶ 35} Rich argues he had a subjective expectation of privacy that the police would not use a GPS tracking device to track his every move and that his subjective expectation of privacy should be recognized by society as an objectively reasonable one. We disagree. The facts show that Rich received permission to use the HHR from one of his co conspirators, Bernabe, who had received permission to use the vehicle from another of their co-conspirators, Rubio, who had received permission to use the vehicle from the CI, who had received the vehicle from Detective Thompson. We agree with the trial court that under these circumstances in which Rich was “several times removed” from the person who rented the vehicle, i.e., Detective Thompson, Rich did not have an objectively reasonable expectation of privacy in the vehicle.
{¶ 36} There is an additional reason for upholding the trial court‘s ruling in this case.
{¶ 37} In this case, there was “binding appellate precedent” that previously authorized warrantless GPS monitoring in this appellate district, namely, our decision in Johnson. Our decision in Johnson was adopted by the First District in State v. Winningham, 1st Dist. No. C-110134, 2011-Ohio-6229, which like Johnson, was later vacated by the Ohio Supreme Court and remanded to the Hamilton County Common Pleas Court for applicatiоn of Jones. State v. Winningham, 132 Ohio St.3d 77, 2011-Ohio-1998, ¶ 2.
{¶ 38} Rich points out that there were other appellate districts in this state that disagreed with our decision in Johnson; that the issue of whether or not warrantless GPS monitoring was constitutional had been appealed to the Ohio Supreme Court; and that Jones was pending before the United States Supreme Court at the time Rich was being tried in this case. However, the police in this district had both a right and a duty to follow this court‘s decision in Johnson until it was overruled by a higher court, which did not occur until after Rich was convicted and sentenced in this case. As a result, we find that the “good-faith” or “binding appellate precedent” exception set forth in Davis applies to this case, and therefore this case is not subject to the exclusionary rule. Accordingly, the trial court did not err in
{¶ 39} In light of the foregoing, Rich‘s first assignment of error is overruled.
{¶ 40} In his second assignment of error, Rich asserts that the trial court erred in denying his
{¶ 41} In reviewing a trial court‘s denial of a
{¶ 42}
{¶ 43}
{¶ 44} Therefore, Rich‘s second assignment of error is overruled.
{¶ 45} In his third assignment оf error, Rich argues the trial court abused its discretion when it permitted the state‘s fingerprint expert, Detective Henson, to testify at trial because the state failed to provide the defense with a “complete expert report,” prior to trial, as required by
{¶ 46}
(K) Expert Witnesses; Reports. An expert witness for either side shall prepare a written report summarizing the expert witness‘s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert‘s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert‘s testimony at trial.
{¶ 47} Prior to trial, the state provided the defense with an “Evidence Submission Form” prepared by Detective Henson, which discussed two fingerprint images taken from one of the toolboxes found in Rich‘s storage locker. The evidence submission form indicated that one of the fingerprint images contained seven characteristics that matched Rich‘s “#2” finger, and the other contained five characteristics that matched Rich‘s “#3” finger. The form
{¶ 48} Immediately before calling Detective Henson to the witness stand, the state provided the defense with Detective Henson‘s PowerPoint presentation which he intended to present to the jury. The presentation stated that one of the two latent fingerprints found on the toolbox actually had eight, and not just seven, matching characteristics with Rich‘s known fingerprint, and that a third latent fingerprint had been found on the toolbox that had at least four characteristics that matched Rich‘s known fingerprint. The presentation concluded that the “[s]imultaneous latent prints [found on the toolbox] matched against the simultaneous known рrints of Aaron [sic] Rich have a total of 17+ matching characteristics.”
{¶ 49} Upon receiving a copy of the PowerPoint presentation, Rich requested that it be excluded from evidence because it had not been turned over to the defense as required by
{¶ 50} Detective Henson presented his PowerPoint presentation to the jury, informing them that two fingerprints had been found on the toolbox that had a total of 13 (and not just 12) characteristics that matched Rich‘s known fingerprints, and that a third fingerprint was also found on the toolbox that had at least four characteristics that matched Rich‘s known
{¶ 51} The following day, the defense renewed its objection to not receiving Detective Henson‘s PowerPoint presentation before trial. When the trial court asked the defense if Detective Henson had testified to anything that had not been contained in the material that had been provided to them prior to trial, including the evidence submission form, the defense responded that Detective Henson had testified “[m]ore completely” in that he “testified with his analysis and how he reached it, and it is the analysis that is contained in [the PowerPoint presentation].” When the trial court asked the defense if there was anything else, the defense responded, “no.”
{¶ 52} In support of his assertion that the state violated
{¶ 53} Therefore, the only issue properly before us is Rich‘s argument that Detective Henson‘s expert report regarding the fingerprints found on the toolbox should have been
{¶ 54}
{¶ 55} Furthermore, the state‘s purpose in admitting Detective Henson‘s fingerprint expert testimony was to provide additional circumstantial evidence that tied Rich to the cocaine found in his storage locker. However, this testimony was merely cumulative to other overwhelming circumstantial evidence that the state presented that tied Rich to his storage locker in which a large amount of cocaine was discovered in the toolboxes located there. Included in this other circumstantial evidence is the fact that the storage locker had been rented by Rich in June 2010, the manager of the storage facility, Lawson, was able to identify Rich at trial because Rich had come to his storage locker often, and that, on the day in question, Rich‘s storage locker was accessed at the same time he was observed driving to
{¶ 56} Given the foregoing, Rich‘s third assignment of error is overruled.
{¶ 57} In his fourth assignment of error, Rich argues the trial court abused its discretion when it refused to compel the state to turn over to him, prior to trial, Detective Thompson‘s written investigative notes, the existence of which came to light at the hearing held on Rich‘s motion to suppress. Rich asserts that these notes constitute a “police report,” for purposes of
{¶ 58} Detective Thompson‘s written notes summarize the conversations that occurred between the CI, Rubio and Sanchez on their August 27, 2011 trip to and from the Dayton Airport. The notes also record the movements of Rich, Rubio, Sanchez, Bernabe and Ghale from 6:00 p.m. to 7:48 p.m. on August 29, 2011, and the observations of the suspects’ movements made by Detective Thompson‘s fellow officers that day. During his testimony at the suppression hearing, Detective Thompson referred to the notes in question to refresh his memory of the events surrounding his investigation of Rich. Rich‘s counsel argued that Detective Thompson‘s notes constituted a police “report,” for purрoses of
{¶ 59} We note, parenthetically, that Rich‘s defense counsel failed to ask the trial court to order the state to produce Detective Thompson‘s written investigative notes under
{¶ 60}
(B) Discovery: Right to Copy or Photograph. Upon receipt of a written demand for discovery by the defendant, and except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions оf this rule:
* * *
(6) All reports from peace officers * * * [.]
* * *
(J) Information Not Subject to Disclosure. The following items are not subject to disclosure under this rule:
(1) Materials subject to the work product protection. Work product includes, but is not limited to, reports, memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense of the case[.]”
{¶ 61} The 2010 Staff Notes to
{¶ 62} Prior to 2010,
(B)(2) Except as provided in subsection (B)(1)(a), (b), (D), (f), and (g), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of the statements made by the witnesses or prospective witnesses to state agents.
{¶ 63} In State v. Carballo, 12th Dist. No. CA88-02-006, 1989 WL 121077, *2-3 (Oct. 16, 1989), this court held that a police officer‘s notes and surveillance log of a defendant‘s activities were police investigation materials that fell within former
{¶ 64} The first question that must be addressed is whether Detective Thompson‘s notes are a police “report” for purposes of
{¶ 65} The state argues that only “official” reports, such as the initial reports of an offense, reports of an incident taken at the scene and arrest reports, are the type of reports that must be provided in discovery under
{¶ 66} The state argues, in the alternative, that a police officer‘s notes are entitled to “work product” protection under
{¶ 67} “Work product,” as used in connection with the contents of police reports, has been traditionally defined as those portions of the report that contain “‘the officer‘s investigative decisions, interpretations and interpolations[.]‘” State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, ¶ 43, quoting State v. Jenkins, 15 Ohio St.3d 164, 225 (1984). The portions of a police report that are found to constitute work product are “‘privileged and excluded from discovery under
{¶ 68} The information in Detective Thompson‘s notes could be interpreted as containing material related to the “investigative decisions” of Detective Thompson and his fellow officers. Even if they could not, we still would find any error the trial court may have committеd in not ordering the state to disclose the notes to Rich to have been harmless. Most, if not all, of the information contained in the notes came out during the trial, none of the information in the notes was exculpatory, and none of the information would have been of material assistance to Rich in preparing his defense. See
{¶ 69} In light of the foregoing, Rich‘s fourth assignment of error is overruled.
{¶ 70} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.