[Cite as State v. Lorenzo,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26214

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANTONIO J. LORENZO COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2011 02 0323

DECISION AND JOURNAL ENTRY

Dated: July 5, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Internal Revenue Service agents raided Antonio Lorenzo’s office looking

for documents in connection with its investigation of Mr. Lorenzo. In a small closet,

Agent Michael Fatula found a bulky manila envelope. He opened it and saw a bunch of

syringes and vials. Thinking that there could be a compact disc or portable flash drive at

the bottom of the envelope, he emptied its contents onto a couch. Looking over the

items, he noticed that the vials said “testosterone” on them and “immediately” realized

that they might contain contraband. The federal agents contacted local police, who

arrested Mr. Lorenzo. The Grand Jury indicted him for possession of drugs and

possession of drug-abuse instruments. Mr. Lorenzo moved to suppress the evidence

found during the search of his office, but the trial court denied his motion. Following a 2

trial to the bench, the court found him guilty of the offenses and sentenced him to 90 days

in jail. Mr. Lorenzo has appealed, arguing that the trial court incorrectly denied his

motion to suppress and his motion for judgment of acquittal. We affirm in part because

the court correctly denied Mr. Lorenzo’s motion to suppress and there was sufficient

evidence to support his conviction for possession of drugs. We reverse Mr. Lorenzo’s

conviction for possession of drug-abuse instruments because there was no evidence that

he had used the syringes “to unlawfully administer or use a dangerous drug . . . or to

prepare a dangerous drug . . . .” R.C. 2925.12(A).

MOTION TO SUPPRESS

{¶2} Mr. Lorenzo’s first assignment of error is that the trial court incorrectly

denied his motion to suppress. A motion to suppress evidence presents a mixed question

of law and fact. State v. Burnside,

,

, at ¶ 8.

Generally, a reviewing court “must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.”

But see State v. Metcalf, 9th Dist. No.

23600,

(Dickinson, J., concurring). The reviewing court “must

then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.” Burnside,

, at ¶

8.

{¶3} Mr. Lorenzo has argued that it was improper for the State to seize the vials

of testosterone and syringes because they were not within the scope of the Internal

Revenue Service’s warrant and did not satisfy the plain view exception to the warrant

requirement. “The plain view doctrine is grounded on the proposition that once police 3

are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that

item is lost.” State v. Blackert, 9th Dist. No. 15409,

, *4 (July 22,

1992). Under the plain view doctrine, “an officer may seize an item without a warrant if

the initial intrusion leading to the item’s discovery was lawful and it was ‘immediately

apparent’ that the item was incriminating.” State v. Waddy,

(1992) (quoting Coolidge v. New Hampshire,

(1971)); see Horton v.

California,

(1990).

{¶4} According to Mr. Lorenzo, the evidence presented at the suppression

hearing did not establish that it was immediately apparent to Agent Fatula that the vials

and syringes were contraband. The Ohio Supreme Court has held that “[t]he

‘immediately apparent’ requirement of the ‘plain view’ doctrine is satisfied when police

have probable cause to associate an object with criminal activity.” State v. Halczyszak,

, paragraph three of the syllabus (1986); see Arizona v. Hicks, 480 U.S

321, 326 (1987). “In ascertaining the required probable cause to satisfy the ‘immediately

apparent’ requirement, police officers may rely on their specialized knowledge, training

and experience[.]” Halczyszak,

at paragraph four of the syllabus. The

United States Supreme Court has also explained that, in the context of determining

whether contraband is in plain view, “probable cause is a flexible, common-sense

standard. It merely requires that the facts available to the officer would ‘warrant a man

of reasonable caution in the belief,’ that certain items may be contraband or stolen

property or useful as evidence of a crime; it does not demand any showing that such a

belief be correct or more likely true than false.” Texas v. Brown,

, 742 4

(1983) (quoting Carroll v. United States,

(1925)). “A ‘practical,

nontechnical’ probability that incriminating evidence is involved is all that is required.”

(quoting Brinegar v. United States,

(1949)).

{¶5} Mr. Lorenzo has argued that, to be immediately apparent, an officer not

only has to have probable cause that an item is contraband, his determination must arise

from his “instantaneous sensory perception” of the suspicious item. United States v.

Garcia,

(6th Cir. 2007). According to Mr. Lorenzo, Agent Fatula saw

the vials of testosterone when they were inside the manila envelope but did not

immediately recognize them as contraband. It was not until he emptied the contents of

the envelope out and read the words on the side of the vials that he realized they might

contain an illicit substance.

{¶6} It is true that one definition of “immediate” means “occurring, acting, or

accomplished without loss of time: made or done at once: Instant.” Webster’s Third

New Int’l Dict. 1129 (1993). Another, however, is “acting or being without the

intervention of another object, cause, or agency: Direct: Proximate . . . being or

occurring without reference to other states or factors: Intuitive.”

{¶7} In Texas v. Brown,

(1983), an officer stopped Clifford Brown

at a routine driver’s-license checkpoint. While Mr. Brown was searching through his

pockets for his license, the officer saw a small balloon fall between his legs. The officer

recognized the balloon as being consistent with drug possession. When Mr. Brown

reached for the glove compartment, the officer altered his position to obtain a better view

and saw that it contained several small plastic vials and quantities of loose white powder. 5

{¶8} In analyzing whether the officer properly seized the items in the car, the

Supreme Court noted that “the fact that [the officer] ‘changed his position’ and ‘bent

down at an angle so he could see what was inside’ Brown’s car, is irrelevant to Fourth

Amendment analysis.” Texas v. Brown,

(1983). The Supreme Court

also explained that “the use of the phrase ‘immediately apparent’ [in its prior cases] was .

. . an unhappy choice of words, since it can be taken to imply that an unduly high degree

of certainty as to the incriminatory character of evidence is necessary for an application

of the ‘plain view’ doctrine.”

. It concluded that an officer does not have to

“know” that certain items are contraband to seize them.

. He only has to have

probable cause.

{¶9} In Arizona v. Hicks,

(1987), police officers entered an

apartment in hot pursuit of a gunman. Once inside, one of the officers noticed two sets of

expensive stereo equipment that were out of character for the apartment, and suspected

they were stolen. He, therefore, moved some of the equipment to record its serial

numbers. The United States Supreme Court held that the manipulation of the stereo

equipment constituted a search “separate and apart” from the search for the shooter.

. It also held that, because the State had conceded that the officer only had a

reasonable suspicion that the stereo equipment was stolen, he could not use the plain

view exception to justify his warrantless search. It explained, however, that “a truly

cursory inspection—one that involves merely looking at what is already exposed to view,

without disturbing it—is not a ‘search’ for Fourth Amendment purposes, and therefore

does not even require reasonable suspicion.”

. 6

{¶10} In this case, it does not matter whether the test for “immediately apparent”

requires an officer to instantly recognize that an item may be contraband. Agent Fatula

testified that he was searching through the items in a small closet in Mr. Lorenzo’s office

when he came across an eight-and-a-half-by-eleven-inch-sized manila envelope. He

opened it and saw that it was stuffed with syringes and two vials of a clear liquid.

Because the scope of the Internal Revenue Service’s search warrant included electronic

documents that could be contained on a compact disc or small flash drive, he dumped the

contents of the envelope onto a couch to see if there was anything else in it. When he

looked down at the contents of the envelope, he saw the word “testosterone” written on

the side of the vials and it was “immediately apparent to [him] that this could . . . [be]

contraband.” He also testified that, upon seeing the word testosterone “my initial

judgment was that it was something illegal.” The trial court found his testimony credible.

{¶11} The word “testosterone” was printed in bold black letters on the side of the

vials that were inside the envelope. Agent Fatula noticed the word as he inspected the

contents of the envelope that he had legally emptied onto a couch in Mr. Lorenzo’s

office. Upon reading the words, which, under Hicks, did not constitute a search, he

immediately suspected that the vials and syringes were contraband. He, therefore, had

probable cause to seize them. See State v. Waddy,

(1992)

(explaining requirements for application of the plain view doctrine).

{¶12} Mr. Lorenzo has asserted that, even if Agent Fatula had probable cause to

believe that the vials contained contraband, it was not federal agents who seized the vials

and syringes. Rather, the Internal Revenue Service contacted local police, who entered 7

his office and “ultimately seized and took control over the items.” He has argued that the

local officers were unauthorized to enter his office without their own search warrant.

{¶13} Mr. Lorenzo has not cited any case law in support of his argument that state

law enforcement authorities may not seize evidence found in plain view by federal law

enforcement authorities. To the contrary, this Court has determined that, once law

enforcement personnel observe an item that they recognize as contraband in plain view,

the owner loses his right to privacy in the item. See State v. Blackert, 9th Dist. No.

15409,

, *4 (July 22, 1992) (citing Illinois v. Andreas,

(1983) (“No protected privacy interest remains in contraband . . . once government

officers lawfully have . . . identified [it] . . . as illegal.”). Courts have also held that,

absent a state constitutional or statutory proscription, federal authorities may validly

transfer seized evidence to state authorities. See State v. Mollica,

(N.J. 1989). Under the facts of this case, it appears that, even though the federal agents

did not take physical possession of the syringes and vials, they constructively seized the

items, and, later, transferred them to local authorities. While the transfer happened to

have taken place in Mr. Lorenzo’s office, it did not violate his constitutional rights. Mr.

Lorenzo’s first assignment of error is overruled.

JUDGMENT OF ACQUITTAL

{¶14} Mr. Lorenzo’s second assignment of error is that the trial court incorrectly

denied his motion for judgment of acquittal. Under Rule 29(A) of the Ohio Rules of

Criminal Procedure, a defendant is entitled to a judgment of acquittal on a charge against

him “if the evidence is insufficient to sustain a conviction . . . .” Whether a conviction is 8

supported by sufficient evidence is a question of law that this Court reviews de novo.

State v. Thompkins,

(1997); State v. West, 9th Dist. No.

04CA008554,

. We must determine whether, viewing the evidence

in a light most favorable to the prosecution, it could have convinced the average finder of

fact of Mr. Lorenzo’s guilt beyond a reasonable doubt. State v. Jenks,

, paragraph two of the syllabus (1991).

POSSESSION OF DRUGS

{¶15} The trial court found Mr. Lorenzo guilty of possession of drugs under

Section 2925.11(A) of the Ohio Revised Code. Under that section, “[n]o person shall

knowingly obtain, possess, or use a controlled substance.” Mr. Lorenzo has argued that

the State did not present any evidence that he knowingly possessed the vials of

testosterone.

{¶16} “A person acts knowingly, regardless of his purpose, when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances

probably exist.” R.C. 2901.22(B). “Possess” means “having control over a thing or

substance . . . .” R.C. 2925.01(K). It may be actual or constructive. State v. McShan,

(8th Dist. 1991). Possession “may not be inferred solely from

mere access to the thing or substance through ownership or occupation of the premises

upon which the thing or substance is found.” R.C. 2925.01(K). In order to constructively

possess an item, one must be conscious of its presence and able to exercise dominion and

control over it. State v. Hankerson,

(1982). “[T]he crucial issue is 9

not whether the accused had actual physical contact with the article concerned, but

whether the accused was capable of exercising dominion [and] control over it.” State v.

Ruby,

, 2002–Ohio–5381, ¶ 30 (citing State v. Brooks,

(6th Dist. 1996)). A person’s knowledge about the presence of drugs can

be inferred from circumstantial evidence. State v. Little, 9th Dist. No. 09CA009539,

2010–Ohio–101, ¶ 20.

{¶17} Agent Fatula testified that he found the testosterone in a small closet in Mr.

Lorenzo’s third-floor office. Labeling on the vials indicated that the testosterone had

been manufactured in May 2010. Mr. Lorenzo’s bookkeeper testified that there was only

one stairwell up to Mr. Lorenzo’s office, that Mr. Lorenzo typically kept the door locked,

and that only she and Mr. Lorenzo had a key. On cross-examination, the bookkeeper

noted that the furniture in Mr. Lorenzo’s office had been purchased at an estate auction.

To rebut the possibility that the items in the closet had belonged to the previous owner of

the office furniture and had merely been inside the furniture at the time Mr. Lorenzo

purchased it, the State established that the person who had previously owned the furniture

died in February 2010, three months before the testosterone was manufactured.

{¶18} Viewing the evidence in a light most favorable to the State, we conclude

that there was sufficient evidence to support Mr. Lorenzo’s conviction for possession of

drugs. The testosterone was in a closet in Mr. Lorenzo’s personal office, that he

generally kept locked, and to which only one other person, a young woman, had a key.

Furthermore, the testosterone was manufactured after the death of the previous owner of

the furniture that was in the office, eliminating the possibility that the manila envelope 10

merely came into the office with the furniture. We, therefore, conclude that there was

sufficient evidence to support Mr. Lorenzo’s conviction for possession of drugs.

POSSESSION OF INSTRUMENTS OF DRUG ABUSE

{¶19} The trial court also found Mr. Lorenzo guilty of possession of drug-abuse

instruments under Section 2925.12 of the Ohio Revised Code. Under Section

2925.12(A), “[n]o person shall knowingly make, obtain, possess, or use any instrument,

article, or thing the customary and primary purpose of which is for the administration or

use of a dangerous drug, other than marihuana, when the instrument involved is a

hypodermic or syringe . . . and the instrument, article, or thing involved has been used by

the offender to unlawfully administer or use a dangerous drug, other than marihuana, or

to prepare a dangerous drug, other than marihuana, for unlawful administration or use.”

Mr. Lorenzo has argued that the State failed to present any evidence that the syringes

found in his office had “been used . . . to unlawfully administer or use a dangerous drug .

. . or to prepare a dangerous drug . . . for unlawful administration or use.”

{¶20} The only syringes that law enforcement officers found in Mr. Lorenzo’s

office were still sealed in their original packaging. We, therefore, agree with Mr.

Lorenzo that there was no evidence that they had “been” used to administer, use, or

prepare a dangerous drug under Section 2925.12(A). See State v. Sanders, 7th Dist. No.

78 C.A. 41,

, *1 (June 20, 1978) (“An essential element of Ohio

Revised Code Section 2925.12(A) is that there must be proof that the syringe involved

had been used by the offender to unlawfully administer or use a dangerous drug or to

prepare a dangerous drug.”). We note that the State did not charge Mr. Lorenzo with 11

violating Section 2925.14(C), which prohibits possession of, among other things,

hypodermic syringes for the purpose of using them to inject a controlled substance into

the human body. R.C. 2925.14(A)(12).

{¶21} The trial court correctly denied Mr. Lorenzo’s motion for judgment of

acquittal regarding his conviction for possession of drugs under Section 2925.11(A), but

incorrectly denied it regarding his conviction for possession of drug-abuse instruments

under Section 2925.12(A). Mr. Lorenzo’s second assignment of error is sustained in part

and overruled in part.

CONCLUSION

{¶22} The trial court correctly denied Mr. Lorenzo’s motion to suppress. It

correctly denied his motion for judgment of acquittal regarding his conviction for

possession of testosterone, but incorrectly denied his motion for judgment of acquittal

regarding his conviction for possession of drug-abuse instruments. The judgment of the

Summit County Common Pleas Court is affirmed in part and reversed in part, and this

matter is remanded for proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded. ______

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 12

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

______________________________ CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P.J. CONCURS.

BELFANCE, J. DISSENTING.

{¶23} I respectfully dissent because I do not believe that Agent Fatula had

probable cause to seize the testosterone vials.

{¶24} Under the plain view doctrine, the warrantless seizure of an object does not

violate the Fourth Amendment if (1) the officer did not violate the amendment in arriving

at the place from which the evidence could be plainly viewed, (2) the item is in plain

view, and (3) the incriminating character of object is immediately apparent. Horton v.

California,

(1990). In practice, this third prong requires that an

officer have probable cause to believe that the object is contraband. See Arizona v. Hicks,

(1987). Probable cause exists when a person is aware of facts and 13

circumstances that would warrant a person of reasonable caution to believe that the item

observed contains contraband. See Carroll v. United States,

(1925).

{¶25} It is the third prong that is at issue in this case. Agent Fatula testified that,

after he emptied out the manila envelope, he saw “‘testosterone’” written on the side of

two vials. The prosecutor asked Agent Fatula if it was “immediately apparent to [him]

that [the vials] could * * * be[] contraband[,]” to which Agent Fatula responded

affirmatively. However, the question is not whether something could be contraband but,

rather, whether the facts and circumstances would warrant a person of reasonable caution

to believe that it is contraband. On cross-examination, Agent Fatula admitted that he had

“no reason to believe that [the needles and the vials] were illegal contraband[]” when he

first saw them. He also agreed that he did not “have any reason to believe that Mr.

Lorenzo or anyone else had illegal contraband by virtue of the two vials[.]” He then

stated that, “[l]acking a prescription to go along with [the vial], [his] initial judgment was

that it was something illegal.” However, Agent Fatula also admitted that, “in order for

[him] to [determine whether a prescription existed,] [he] would have to inquire as to

whether or not Mr. Lorenzo or someone else had a prescription for testosterone[.]” Thus,

although Agent Fatula’s suspicions were aroused, it is clear that he recognized that

possession of the testosterone could be legal or could be illegal and he needed more

information to determine whether or not the vials were illegal contraband. Thus, unlike a

situation where one comes upon a scale, a mound of white powder, and baggies, the

illegality of the testosterone was not immediately apparent to the agent. 14

{¶26} It is evident that Agent Fatula’s testimony, even if believed did not

demonstrate that he immediately knew that the testosterone was illegal. The fact that

Agent Fatula agreed when the prosecutor asked him whether it was immediately apparent

to him that the items could be contraband, is a conclusory statement that does not satisfy

the plain view probable cause analysis. First, asking whether something could be

contraband is another means of asking whether the person had some reasonable grounds

for suspicion that the item could be contraband. However, mere reasonable suspicion

does not satisfy the probable cause standard. Second, the probable cause standard cannot

be met by the witness offering a conclusory statement. For example, a court could not

determine that probable cause existed merely because an officer testified that he “had

probable cause;” there would have to be facts in the record to support the conclusion.

Similarly, the fact that Agent Fatula agreed with a term of art used by the prosecutor

cannot form the basis of determining that the incriminating nature of the item was

immediately apparent to him. Instead, the agent would have to offer a factual basis for

the conclusion.

{¶27} “[A]n officer may rely on specialized knowledge and training ‘to draw

inferences and make deductions that might well elude an untrained person.’” State v.

Halczyszak,

(1986), quoting Texas v. Brown,

(1983) (Powell, J., concurring in judgment). In Brown, the officer observed a tied-off

balloon on the seat of the defendant’s car.

. When the defendant opened his

glove compartment, the officer observed several small plastic vials, loose white powder,

and an open bag of party balloons.

. The officer testified that “he was aware, 15

both from his participation in previous narcotics arrests and from discussions with other

officers, that balloons tied in the manner of the one possessed by [the defendant] were

frequently used to carry narcotics.”

. This knowledge, combined with the

items observed in the glove compartment, provided probable cause for the officer to seize

the balloon.

{¶28} However, Agent Fatula did not claim any specialized knowledge or training

that would provide a basis for it being immediately apparent to him that the vials he

discovered were illegal. He did not claim any specialized knowledge concerning steroids

or restricted substances of any kind. He was a special agent for the Internal Revenue

Service, and nothing in the record indicates that his experience extends beyond the scope

of his duties there. There is nothing in the record that indicates that his responsibilities

include drug enforcement. For this reason, this case is incongruous with Brown.

{¶29} More analogous to this case is State v. Dabbs,

(12th

Dist. 1992), in which the appellate court had occasion to consider the issue of whether the

illegality of a photograph found in plain view was immediately apparent to police. In

Dabbs, police executed a search warrant at the defendant’s house looking for drugs and

drug paraphernalia.

. Though not mentioned in the affidavit, the police had

also been informed by the defendant’s daughter that the defendant had taken nude

pictures of a 13-year-old girl, though the daughter believed she had destroyed all of the

pictures.

During their search of the house, the police seized photographs depicting a

female in various stages of undress.

Though the police later determined that the girl

in the photograph was 13 years old, the appellate court affirmed the trial court’s 16

suppression of the pictures. The court agreed with the trial court that, because the photo

showed “‘* * * a mature female body which no more obviously belong[ed] to a minor

than to a young adult[,]’” the illegal nature of the pictures was not readily apparent and,

therefore, the police lacked probable cause to seize them.

.

{¶30} As in Dabbs, while Agent Fatula’s suspicions were aroused, he did not

offer any testimony from which to conclude that the illegal nature of the vials was

immediately apparent to him. Agent Fatula discovered the vials in a manila envelope

containing packaged needles. As Agent Fatula admitted on cross-examination, he

observed no other incriminating facts, nor did he claim specialized knowledge or training

that would have allowed him to determine that the testosterone was likely to be

contraband. In fact, Agent Fatula sought a second opinion from his supervisor, who did

not testify. Significantly, Mr. Lorenzo was then asked whether he had a prescription for

the testosterone. The fact that the agents had to make further inquiry from Mr. Lorenzo,

underscores the fact that it was not immediately apparent that the vials were contraband.

Testosterone has many legal uses. Thus, even if the trial court found Agent Fatula’s

testimony that he thought that the vials could be contraband to be credible, an

assumption, or hunch, is not a substitute for probable cause. See Terry v. Ohio,

(1968).

{¶31} At best, Agent Fatula’s “initial judgment” that the vials could be

“something illegal[]” was a reasonable suspicion but probably better described as a

hunch. See Hicks,

(holding that reasonable suspicion is insufficient

to conduct a search or seizure under the plain view doctrine). Thus, I cannot say that he 17

had probable cause to seize the vials and, therefore, believe that the testosterone vials

should be suppressed. Accordingly, I dissent.

APPEARANCES:

JACK MORRISON, JR., Attorney at Law, and THOMAS R. HOULIHAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.