547 N.E.2d 360 | Ohio Ct. App. | 1988
This cause is before this court on appeal from a judgment of the Lucas County Court of Common Pleas wherein that court granted the motion to suppress evidence of Leslie A. Taub and Ron Swartz, defendants-appellees. The state of Ohio, plaintiff-appellant, filed a timely notice of appeal asserting the following assignments of error:
"First Assignment of Error:
"The trial court erred when finding the defendants had standing to assert Fourth Amendment claims.
"Second Assignment of Error:
"The plain view doctrine was not properly considered by the trial court since the court incorrectly found that Detective Neipp's presence on the premises was a trespass, and, his subsequent discovery of the seized evidence was anticipated."
On January 22, 1987, at approximately 11:15 a.m., Detective Sergeant Fred Neipp received a telephone call from the Lucas County Prosecutor, Anthony G. Pizza, who informed him that there was to be an "airplane" pyramid sales meeting at 12:00 noon at the Midas Muffler Shop at 1100 Monroe Street, Toledo, Ohio. Detective Neipp arranged for portable sound recording equipment and organized a group of fellow officers to act as a back-up unit and watch the premises from the street. There was no effort made to obtain a search warrant.
Detective Neipp proceeded to 1100 Monroe Street, and in conducting preliminary surveillance noticed an eight and one-half inch by eleven inch homemade sign in the window of the Midas Muffler Shop which simply stated "meeting" with a large arrow pointing to a door several feet from the main entrance. Detective Neipp saw several individuals enter the building through the other door which was locked and unlocked for each individual *6 by a "doorman." Detective Neipp gained entry to the building by walking closely behind another person who had just come around the corner, making it appear that he was entering with this other individual. The doorman did not ask Detective Neipp for identification or deny him admittance. Detective Neipp entered peaceably, without force or objection from anyone. Detective Neipp admitted that no one ever expressly invited him into the meeting room or expressly gave his consent to his being present.
Once inside, Detective Neipp was greeted by appellee Taub, who shook his hand, welcomed him to the meeting, and offered him coffee and bagels. Thereafter, Detective Neipp went to the rest room where he activated a tape recorder hidden on his person. He then returned to the meeting room and mingled with the group of twenty-five to thirty persons, listening to and recording their conversations. Detective Neipp was approached several times by appellee Taub and others who kept asking his identity, occupation, and from whom he had received information about the meeting. Detective Neipp gave his true name, but did not reveal his true occupation, giving a former side occupation instead. Upon it becoming apparent that no one in the group had invited the detective to the meeting, he was specifically told that it was a private meeting and that he would have to leave. In being accompanied to the exit by appellee Taub, Detective Neipp identified himself as a police officer. Thereupon, most of the people at the meeting left and no arrests were made.
Before being asked to leave, Detective Neipp observed appellee Swartz standing behind a table upon which documents which Detective Neipp described as "airplane charts" were being worked on. Also on the table were a brown portfolio briefcase or letter file and a Purolator envelope which appeared to contain other documents. After everyone except appellee Taub had vacated the room, Detective Neipp confiscated everything on the table. Appellee Taub denied that the items were his, but protested their seizure. A short time later, the detective saw appellee Swartz and told him that if he wished the return of the items, the detective would meet him outside the building. Appellee Swartz did not meet the detective outside, but within an hour, counsel for appellee Swartz was in contact with Detective Neipp to demand return of the seized property.
On March 19, 1987, appellees were indicted by the grand jury and charged with violating Ohio's prohibition of pyramid sales plan or program, R.C.
As a result of a hearing on a suppression motion, all of the seized property was suppressed. At oral argument before this appellate court, appellant conceded that the brown portfolio briefcase or letter file and Purolator envelope were properly suppressed. Appellant disputes only the suppression of the "airplane charts" which were lying in plain view on the table. Appellant contends that these items were in plain view and that appellees have no standing to raise a Fourth Amendment issue because they had abandoned the seized property.
The case turns on whether the initial intrusion was lawful or whether the detective was otherwise properly in a position from which he could view the particular area. Texas v. Brown (1983),
For the reasons derived from the cases which follow, this court finds that Detective Neipp's initial entry was lawful. Therefore, the second prong of the above discussion need not be dealt with.
The Supreme Court, in Mancusi v. DeForte (1968),
"* * * The Fourth Amendment guarantees that `The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' * * * This Court has held that the word `houses,' as it appears in the Amendment, is not to be taken literally, and that the protection of the Amendment may extend to commercial premises. See, e.g., See v. Seattle,
As was stated in Hoffa v. United States (1966),
"* * * What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something inhis filing cabinet, in his desk drawer, or in his pocket, he hasthe right to know it will be secure from an unreasonable searchor an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in [United States v.] Jeffers [(1951),
However, "* * * the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even inhis own home or office, is not a subject of Fourth Amendmentprotection. See Lewis v. United States,
The United States Supreme Court, in Lewis v. United States
(1966),
"* * * A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. * * *"
In Lewis, the occupant-defendant's contemplated purpose in inviting the undercover agent to his home was to execute a felonious sale of narcotics to the undercover agent and, the court held, "* * * [d]uring neither of his visits to petitioner's home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a necessary part of his illegal business. * * *" Id. at 210. The court denounced any authority on the part of an agent who gained entry by invitation to conduct a general search for incriminating materials, citing Gouled v. United States (1921),
In State v. Pi Kappa Alpha Fraternity (1986),
"Pursuant to Section
In Hoffa, supra, an old friend of Hoffa's was allowed to overhear certain conversations of Hoffa's. The old friend was, at the time of the conversations, a government informer. The conversations were used against Hoffa in a subsequent trial. Hoffa argued that the failure of the informer to reveal his role negated the consent Hoffa had given to the informer to be in the room and listen to the conversation. The Supreme Court rejected the argument and found no Fourth Amendment violation, reasoning that "* * * [the informant] was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that [the informant] would not reveal his wrongdoing. * * *" (Footnote omitted.) Id. at 302.
More recently, in State v. Van Newhouse (1987),
In State v. Anglada (1976),
"* * * two narcotics investigators, pursuing a matter unconnected with either defendant, and attempting to ascertain the identity of occupants of a certain house, went to the local mayor's house for assistance. One of the defendants, later discovered to be the mayor's husband, answered the door. Because of the nature of his attire, and unaware at the time that the man was the mayor's husband, the investigators chose not to reveal their identities as law enforcement officials. Rather, after having been invited into the house to await the return of the mayor, they suggested to defendant that they were interested in purchasing a home in the immediate locale. During the course of the ensuing conversation inside defendants' home, defendant husband made several statements about the use of marijuana in the home by himself and his wife, and the general use of marijuana throughout the municipality. The investigators observed a pipe and rolling papers on the living room table in plain view. When the mayor returned home, the conversation continued and the investigators pursued their assumed roles because of the information imparted by the mayor's husband and the evidence of marijuana use they had observed.
"About eight days later, on July 10, 1974, one of the investigators, this time equipped with a concealed recording device, again visited defendants' home, again in the same assumed role. She was again invited into the home by defendant husband and once inside observed green vegetative matter which she believed to be marijuana. On speaking a prearranged code word, *10 other investigators entered the home and arrested defendant who, at the time of his arrest, was found smoking a marijuana cigarette. A search warrant was then obtained and a full scale search of defendants' home ensued. The marijuana plant was seized as a result of this warranted search. The codefendant wife arrived home shortly thereafter, and she was also arrested and charged."
The two were charged and convicted of possession and cultivation of marijuana.
The court rejected defendants' contention that "* * * their consent to the entry of the investigators into their home, procured as it was by deception, cannot be viewed as consent, and that the intrusion, unsupported by a duly issued warrant, and otherwise without probable cause, ran afoul of Fourth Amendment guarantees. * * *" Id.
The court emphasized that "* * * until the search warrant issued following the investigators' second visit to defendants' home, no search, within the normal meaning of that term, took place. A search implies some exploratory investigation and pryinginto hidden places for that which is concealed. State v.Griffin,
The court then discussed Hoffa, supra; Lewis, supra; andGouled, supra, and held:
"Here, defendant[s] did not know that the intruders were police officers; indeed, that lack of knowledge is central to their argument. Consequently, they knew that they did not have to consent to their entry. They chose to permit strangers to entertheir home and chose to confide their unlawful activities tothese total strangers. Their exposure resulted, not from violation of principles pertaining to the sanctity of their home, but rather from their misplaced trust in persons about whom they knew nothing. Neither the Fourth Amendment nor the analogous provision of the New Jersey Constitution (N.J. S.A. Const. (1947), Art. I, par. 7) provides them with protection in those circumstances." (Emphasis added.) Id. at 363,
Commonwealth v. Ginter (1981),
The court also held that the limited seizure of some bottles of liquor from the bar which were in plain sight did not violate the Fourth Amendment, distinguishing it from the general ransacking and rummaging condemned in Gouled, supra. Ginter, supra, at 18,
In Commonwealth v. Weimer (1978),
In the case sub judice, as in Ginter, supra, and Weimer,supra, Detective Neipp entered silently without being stopped or asked for identification by the doorman. Thus, Detective Neipp gained entrance by silently representing that he was invited to the meeting and that his purpose in attending was to be involved in the "airplane" pyramid sales scheme. This is distinct from the situation in Pi Kappa Alpha, supra, where the agents expressly misstated their true purpose which was a lawful purpose of touring the house in contemplation of a brother's joining the fraternity. The present case is analogous to the situation inLewis, supra, where the purpose expressed, to conduct drug transactions, was illegal.
Detective Neipp did not attempt to conceal his presence; everyone in the room could see and hear him. Cf. Katz, supra
(unlawful unwarranted electronic surveillance of telephone booth); Silverman v. United States (1961),
The next inquiry is whether a free and voluntary consent to enter was given to Detective Neipp by defendants-appellees.
Detective Neipp tried to appear to enter with someone, but an attentive doorman could have observed his presence and prevented his entrance. Detective Neipp was silent upon entering. Appellees did not prevent Detective Neipp's entry by having someone check everyone's identification or have them present a written invitation at the door. Detective Neipp did not conceal his presence in the room. He did not volunteer that he was a police officer. *12 Appellees asked who he was, but not until after he had already entered. He was not immediately asked to leave upon giving an evasive answer as to how he knew about the meeting.
Detective Neipp did not expressly misrepresent his true purpose; he did not misrepresent that his purpose was a legal one. Cf. Pi Kappa Alpha Fraternity, supra. Detective Neipp implied that his purpose was the illegal one of "airplane" scheming contemplated by appellees. Accord Lewis, supra (drug transaction).
Thus, this court holds that it can be inferred from the circumstances that there was a free and voluntary consent to enter and therefore a lawful initial intrusion.
There being a lawful initial intrusion, there is no unlawful police conduct to prevent a determination that appellees Swartz and Taub voluntarily abandoned the "airplane charts" and thereby lost their standing to object. See United States v. Maryland,supra; United States v. Coleman, supra. This court determines that appellees did voluntarily abandon the "airplane charts":
"* * * The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search [or the seizure]. United States v. Edwards, supra,
First, appellee Taub lacked standing to object to the seizure because he expressly denied any interest in the seized property. As for appellee Swartz, he was in immediate possession of the documents. He could have picked them up from the table and taken them with him when he left. Instead, he fled the meeting room without them and did not return to retrieve them. Such is the same situation which existed in Colbert, supra. In Colbert, the defendants were approached for questioning by police officers while walking down the street because one defendant fit the description of a wanted suspected felon. Id. at 175. When approached, the defendants set the briefcases they were carrying down on the sidewalk. Id. After a brief exchange in which the defendants disclaimed any ownership interest in the briefcases, the defendants began to walk away, leaving the briefcases on the sidewalk. Id. Thereafter, defendants were arrested for failing to carry a Selective Service registration certificate. Id. The briefcases were searched and discovered to contain sawed-off shotguns. Id. The defendants were indicted and convicted of possession of unregistered shotguns with illegal barrel lengths.Id. On appeal, the appellate court held that the trial court properly admitted the evidence because the defendants had abandoned the briefcases and therefore had no standing to object.Id. at 176-177. Accord State v. Freeman (1980),
Accordingly, appellant's first assignment of error is found well-taken.
Nevertheless, even assuming, arguendo, that appellees had standing to challenge the admission of the evidence, we reach the second and *13
third requirements of the "plain view" doctrine which are: "* * * (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent."State v. Williams (1978),
In reading State v. Halczyszak (1986),
"1. A generalized expectation by police officers that stolen autos or auto parts other than those specified in the search warrant might be found on the premises to be searched does not offend the `inadvertent discovery' requirement of the `plain view' doctrine.
"2. The `inadvertent discovery' requirement may be satisfied when police lack antecedent probable cause, i.e., an advanceparticularized knowledge of, or intent to seize, those objects ultimately seized.
"3. The `immediately apparent' requirement of the `plain view' doctrine is satisfied when police have probable cause to associate an object with criminal activity.
"4. In ascertaining the required probable cause to satisfy the `immediately apparent' requirement, police officers may rely on their specialized knowledge, training and experience; and the presence of an auto theft expert at the scene of a lawful search does not offend the Fourth Amendment.
"5. State v. Wilmoth (1982),
Detective Neipp had seen documents in connection with other pyramid sales schemes prior to entering the meeting room. He thus could, by merely viewing the documents without doing anything more, plainly associate the documents he saw on the table with criminal activity and meet the third requirement that the incriminating nature of the evidence be immediately apparent. "* * * [T]he mere act of viewing a VIN is not a search within themeaning of the Fourth Amendment so long as police are lawfully ina position to make the observation. * * *" Id. at 306, 25 OBR at 365,
The "inadvertent discovery" requirement is a bit more troublesome. However, inadvertence is necessarily intertwined with the lawfulness of the intrusion. If the detective was not allowed in, but instead had forced his way in, his view of the documents could not be said to have been inadvertent. Likewise, if he had ransacked the room, the discovery would not be inadvertent. In Van Newhouse, supra, *14 the assistant prosecutor received information that the glass art object might be at the defendants' house. Thus, he had a general expectation that the glass would be there, but until he went there and saw the object in plain sight on top of the television, he could not be said to have had particularized knowledge that the object would be at the place where it was seized. AccordHalczyszak, supra, at paragraphs one and two of the syllabus; andTexas v. Brown, supra. Had the assistant prosecutor gone hunting in other rooms, his discovery of the glass would not have been inadvertent. Van Newhouse, supra.
The same situation exists here. Detective Neipp received information that an "airplane" meeting was probably going to be held at 12:00 at the Midas Muffler Shop. He thus had a generalized expectation that items relating to a pyramid sales scheme might be present. He did not have particularized knowledge that the documents would be there. He did not go hunting and ransacking. His discovery thus was inadvertent.
Accordingly, appellant's second assignment of error is found well-taken. The "airplane charts" were improperly suppressed.
On consideration whereof, the decision of the Lucas County Court of Common Pleas is reversed as to the "airplane charts" which were lying in plain view on the table. This case is remanded to said court for further proceedings not inconsistent with this decision. Costs to abide final determination.
Judgment reversed and cause remanded.
RESNICK, P.J., CONNORS and HANDWORK, JJ., concur.
