STATE OF OHIO, Plаintiff-Appellant, vs. SENECA WILSON, Defendant-Appellee.
APPEAL NO. C-170408
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 20, 2018
2018-Ohio-2377
TRIAL NO. B-1607098B
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 20, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellee.
{¶1} The state of Ohio has appealed from the trial court‘s entry granting defendant-appellee Seneca Wilson‘s motion to suppress. We hold that the trial court erred in granting the suppression motion, and accordingly reverse its decision.
Factual Background
{¶2} Wilson was arrested after police discovered a marijuana cigarette, a digital scale, and a bag of marijuana in his vehicle. The grand jury returned an indictment charging Wilson with two counts of trafficking in marijuana and one count of possession of marijuana.
{¶3} Wilson filed a motion tо suppress all evidence that the state sought to introduce. At the suppression hearing, Cincinnati Police Officer Andrew Fusselman testified that he was investigating a potential drug transaction between two individuals, when Wilson approached him and asked what the police were doing. Officer Fusselman immediately noticed a strong odor of burnt marijuana on Wilson‘s person. When asked why he smеlled of marijuana, Wilson stated that there was a joint in his car, which was parked nearby. Officer Fusselman‘s partner saw a marijuana cigarette in the center console cup holder оf Wilson‘s vehicle.
{¶4} Officer Fusselman asked Wilson if the officers would find anything else in the vehicle, and Wilson stated that the car also contained a bag of marijuana. Wilson unlocked his vehicle for the officers to search. The marijuana cigarette, a digital scale, and a plastic bag containing marijuana were found in the car. Officer Fusselman then searched Wilson‘s person, but nothing was recovered. Officer Fusselman testified that, following the personal search, he was informed by another
{¶5} After receiving this information, Officer Fusselman walked down the street and spoke to the individual identified by his fellow officer. When asked by Officer Fusselman what Wilson had given to him, the individual stated that Wilson had given him money. He gave that money, approximately $2,700, to Officer Fusselman.
{¶6} The trial court granted Wilsоn‘s motion to suppress. It‘s entry included the following findings:
The Court finds that one of the officers frisked the Defendant and found nothing on him. This was a valid Terry stop at that point. They detained him for approximately 15 mоre minutes. This was illegal because nothing was found on the Terry pat-down (frisk). The Court finds that one of the officers then saw something in Defendant‘s car, which appeared to be, according to the officer, a marijuana cigarette.
The statements, the evidence, including marijuana found in the car and the scale found in the car, are the result of an illegal search due to the illegаl detention.
The money was seized also as a result of an illegal search of a third party because it was based on a statement made by the
Defendant to the officers while he was being detained but before he was given a Miranda warning. Although the marijuana cigarette was in plain view of one of the officers, the car was not unlocked initially. So a search warrant was necessary to search the vehicle at that point. The officer testified that the car was unlocked by the Defendant, but, according to his testimony, there is no mention that he asked the Defendant for consent to search the vehicle.
{¶7} The state argues in a single assignment of error that the trial court erred in granting Wilson‘s motion to suppress. Our review of the trial court‘s ruling on a suppression motion involves a mixed question of law and fact. We must accept the trial court‘s findings of fact if they are supported by competent and credible evidence, but we review de novo the trial court‘s application of the law to the relevant facts. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We will not defer to the trial court‘s factual findings where those findings are “clearly erroneous.” State v. Ward, 1st Dist. Hamilton No. C-160560, 2017-Ohio-8141, ¶ 22.
Erroneous Finding of Fact
{¶8} The trial court found that Wilson had initially been subjected to a lawful Terry stop, but had then been illegally detained for approximately 15 minutes after no contraband had been found during the Terry stop. The trial court‘s subsequent legal conclusions were based on its determination that Wilson had been illegally detained.
{¶9} This factual finding by the trial court was clearly erroneous. See Ward at ¶ 22. Officer Fusselman testified that he had been infоrmed by a fellow officer that
Search of the Automobile
{¶10} Unreasonable searches and seizures are prohibited by the
{¶11} Here, the trial court specifically found that a marijuana cigarette in the center console of Wilson‘s vehicle had been in the plain view of one of the officers. The observation of the marijuana cigarette provided probable cause for the officers to believe that the vehicle contained contraband аnd to conduct a warrantless search under the automobile exception to the warrant requirement. See State v. Hamilton, 1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 16 (officers were justified in searching a vehicle after thеy saw marijuana inside the vehicle); Ward,
{¶12} In addition to the automobile exception, the warrantless search of Wilson‘s vehicle was also supported by the plain-view exception to the wаrrant requirement. The warrantless seizure of an object in the plain view of an officer will not violate the
{¶13} Once the officers viewed the marijuana cigarette inside the vehicle, they were justified in searching it. That the vehicle‘s doors were locked is irrelevant, and the trial court‘s conclusion that the locked doors required the officers to obtain a warrant was in error. The trial court‘s determination that Wilson‘s consent was necessary before the vehicle could be searched wаs also erroneous. The officers had probable cause to conduct a warrantless search of the vehicle under both the
Suppression of Money
{¶14} The trial court suppressed the money that Wilson had given to a third party, stating in its entry that “[t]he monеy was seized also as a result of an illegal search of a third party because it was based on a statement made by the Defendant to the officers while he was being detained but before he was given a Miranda warning.”
{¶15} Officer Fusselman did not speak with Wilson about the individual down the street until after he had learned of Wilson‘s interaction with that individual from a fellow officer. Because Officer Fusselman had an independent source that led him to discover the money from the third party, the money was not excludable as fruit of the poisonous tree, as the trial court had determined. Sеe State v. Carter, 69 Ohio St.3d 57, 67, 630 N.E.2d 355 (1994) (the exclusionary rule is inapplicable where the police have an independent source for discovery of the evidence).
Conclusion
{¶16} The trial court erred in suppressing evidenсe found during the warrantless search of Wilson‘s automobile because the search was valid under both the automobile and plain view-exceptions to the warrant requirement. It additionally erred in suppressing the money that Wilson had handed off after leaving the scene of the investigation because the money was obtained based on information received from an indepеndent source. Consequently, the state‘s assignment of error is sustained.
Judgment reversed and cause remanded.
CUNNINGHAM, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.