[Cite as State v. Thompson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25658 Plaintiff-Appellant : : Trial Court Case No. 2012-CR-1602 v. : : PETER E. THOMPSON, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellee : : ........... OPINION Rendered on the 1st day of November, 2013. ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

J. DAVID TURNER, Atty. Reg. #0017456, Post Office Box 291771, Kettering, Ohio 45429 Attorney for Defendant-Appellee

.............

HALL, J.,

{¶ 1} The state appeals the order of the trial court suppressing the heroin and

cocaine found in the defendant’s car during a warrantless search. Because we conclude that the

search was lawful under the automobile exception, we reverse. 2

FACTS

{¶ 2} In July 2012, Peter Thompson was charged with possession of heroin and

cocaine after these drugs were found in his car. Thompson moved to suppress the drugs. At the

hearing, only the police officer who had searched the car and found the drugs testified. Based

on his testimony, the trial court found the following facts.

{¶ 3} Sergeant John Riegel has been a Dayton Police Officer for ten years. He spent

two of the later years as a narcotics detective. The last year and a half he has been assigned to

the Fifth District. During the late morning of May 24, 2012, Riegel was driving his marked

cruiser when he saw a car turn, what he thought was, a little too fast for the conditions. The car

was being driven by Thompson. The car passed Riegel, and he watched it turn into an alley

without signaling. Intending to stop the car for failing to signal a turn, Riegel turned his cruiser

around and followed it into a parking lot behind an apartment building. Riegel knew from his

experience as a narcotics detective that “there have been a lot of complaints about drug activity

at [these] apartments.” (Tr. 9).

{¶ 4} Sergeant Riegel parked his cruiser directly behind Thompson’s car and ran

after Thompson, who was already walking rapidly towards the front of the building. When

Riegel caught up, he asked Thompson if Thompson lived in the building. Thompson replied

that he did not. Riegel then asked Thompson if he had a driver’s license. Thompson replied

that he had a temporary permit. When Riegel “ran Thompson’s information,” he discovered

that Thompson’s temporary driver’s permit had been suspended. The trial court’s written

decision describes what happened next:

Prior to placing Thompson in the cruiser, Riegel conducted a patdown. No 3

weapons were found. However, Riegel testified that as he began the patdown,

Thompson “was shaking so violently that it immediately made me concerned for

my safety. In my 10 years of experience on the police department, I’ve rarely had

someone shaking like that . . . . When someone is shaking like that, it makes me

concern [sic] for my safety that they may have a weapon. For some reason they’re

not just like the average person is concerned about the police stop but they may be

potentially preparing to assault me.” [sic]

Therefore Sgt. Riegel handcuffed

Thompson before placing him in the cruiser.

Sgt. Riegel’s arrest of Thompson and placing him in the cruiser then led

Riegel to - and enabled Riegel to - return to the Bonneville to confirm no one else

was in the car. Standing outside of the Bonneville - and without opening any car

door - Riegel “noticed a single marijuana cigarette in the center console of the car

and the open area where you would put cups.”

Based on Riegel’s law

enforcement training and experience, it was readily apparent to him that the

substance was marijuana.

(February 22, 2013 Decision and Entry Sustaining “Motion to Suppress,” 3).

{¶ 5} Riegel testified that if the driver of a vehicle does not have a valid license and no

one else is present to drive the vehicle, the Dayton Police Department’s policy is to tow it. And

before towing, said Riegel, the department’s policy is to inventory the vehicle’s contents. Riegel

called for backup. When it arrived, he entered Thompson’s car, seized the marijuana cigarette,

and conducted an inventory search. Inside the center console he found heroin and cocaine. 4

{¶ 6} Based on these facts, the trial court sustained Thompson’s motion to suppress.1

The court concluded that the drugs must be excluded as “fruit of the poisonous tree” because

Thompson’s arrest was unlawful. The court said that the offense for which Riegel initially

arrested Thompson–operating a motor vehicle without a valid license, a violation of R.C.

4510.12–could have been only a minor misdemeanor, R.C. 4510.12(C)(2),2 for which a person

may not be arrested, R.C. 2935.26.3 And it was the arrest, said the court, that led to the discovery

of the drugs in Thompson’s car, since the inventory search was premised on, and Riegel’s ability

to look in the car was a result of, the arrest.4

{¶ 7} The state appealed.

1 Thompson’s motion also asked the trial court to suppress statements that he made to Riegel. The state does not challenge the exclusion of these statements. 2 If the offender’s driver’s license or permit is expired at the time of the offense, the offense is a minor misdemeanor. R.C. 4510.12(C)(2). If in addition, within the past three years the offender has at least twice been convicted of or pleaded guilty to violating R.C. 4510.12, or a similar municipal ordinance, the offense is a first-degree misdemeanor. R.C. 4510.12(C)(2). The trial court said that Sergeant Riegel did not testify about knowing of any such prior violations. 3 R.C. 2935.26(A) prohibits a police officer from arresting a person for committing a minor misdemeanor, except in certain situations listed in the statute. Riegel testified that Thompson’s temporary permit had been suspended. For driving with a suspended temporary permit, Thompson could have been charged with driving under suspension, R.C. 4510.11, a first-degree misdemeanor. Or if his permit had been suspended under R.C. Chapter 4509, Thompson could have been charged with driving under a financial-responsibility suspension, R.C. 4510.16, an initial violation of which is an unclassified misdemeanor. Or if his permit had been suspended for operating his vehicle under the influence of drugs or alcohol, Thompson could have been charged with driving under an OVI suspension, R.C. 4510.14, a first-degree misdemeanor. All of these are arrestable offenses. Although the record does not reveal the reason that Thompson’s permit was suspended, we do not need to determine whether Riegel could lawfully arrest Thompson, as we will explain. 4 The trial court also concluded that the inventory search was unlawful because the state had failed to establish that the search was done in accordance with a standardized impoundment and inventory policy. The state does not challenge this conclusion. 5

ANALYSIS

{¶ 8} The state challenges the trial court’s suppression of the heroin and cocaine found

in Thompson’s car. The standard used to review a suppression order has been succinctly stated by

the Ohio Supreme Court:

Appellate review of a motion to suppress presents a mixed question of law and

fact. When considering a motion to suppress, the trial court assumes the role of

trier of fact and is therefore in the best position to resolve factual questions and

evaluate the credibility of witnesses. Consequently, an appellate court must accept

the trial court’s findings of fact if they are supported by competent, credible

evidence. Accepting these facts as true, the appellate court must then

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

whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside,

,

,

.

{¶ 9} The state assigns two errors to the suppression order. The first assignment of

error alleges that the trial court erred in concluding that Thompson’s initial arrest was unlawful.

The second assignment of error alleges that the trial court erred in concluding that the search of

Thompson’s car was unlawful. We begin with the second assignment of error.

{¶ 10} The Fourth Amendment to the United Stated Constitution prohibits unreasonable

searches and seizures. Stopping an automobile constitutes a “seizure.” Delaware v. Prouse,

,

,

(1979). “[W]here an officer has an articulable

reasonable suspicion or probable cause to stop a motorist for any criminal violation, including a

minor traffic violation, the stop is constitutionally valid * * *.” Dayton v. Erickson, 76 Ohio 6

St.3d 3, 11-12,

(1996) (police officer stopped the vehicle after seeing the

vehicle fail to signal a turn); State v. Mays,

,

,

(reasonable suspicion or probable cause is sufficient). Thus if a police officer sees

a vehicle commit a traffic offense, the officer may lawfully stop the vehicle. State v. Dukes, 2d

Dist. Montgomery No. 25488,

.

{¶ 11} Under (what some have called) the “open view” doctrine, “where an officer can

observe contraband without making a prior physical intrusion into a constitutionally protected

area, such as when an officer ‘sees an object * * * within a vehicle,’ there ‘has been no search at

all.’” State v. Bazrawi, 10th Dist. Franklin No. 12AP-1043,

, ¶ 15, quoting State

v. Harris,

,

(8th Dist. 1994), quoting 1 LaFave, Search and

Seizure, Section 2.2(a) (2d Ed. 1987). This is because the driver possesses “‘no legitimate

expectation of privacy shielding that portion of the interior of an automobile[,] which may be

viewed from outside the vehicle by either inquisitive passersby or diligent police officers.’” Id. at

¶ 16, quoting Texas v. Brown,

,

,

(1983).

{¶ 12} Sergeant Riegel’s looking in Thompson’s car and seeing the marijuana cigarette

does not implicate the Fourth Amendment. Compare State v. McClain, 2d Dist. Montgomery No.

19710,

(saying that a police officer’s “looking into the open passenger

windows while standing outside the vehicle does not constitute a search for Fourth Amendment

purposes”). But his warrantless search of the car does.

{¶ 13} “Warrantless searches are per se unreasonable under the Fourth Amendment

subject to only a few well established exceptions.” State v. Pounds, 2d Dist. Montgomery No.

21257,

, citing Katz v. United States,

,

, 19 7

L.Ed.2d 576 (1967). Two such exceptions are the plain-view exception and the automobile

exception. Under the plain-view exception, “police may seize an article when its incriminating

nature is immediately apparent to an officer who comes in contact with the item through lawful

activity.”

citing Coolidge v. New Hampshire,

,

,

(1971). Under the automobile exception, police may warrantlessly search a vehicle that they have

probable cause to believe contains contraband. State v. Moore,

,

(2000). Seeing a contraband item in plain view in a vehicle gives police probable cause to

believe that the vehicle contains other contraband items as well. Pounds at ¶ 21 (seeing

marijuana inside the vehicle gave the police officer probable cause to believe the vehicle

contained other contraband so he could search it under the automobile exception). The scope of

the search extends to anywhere in the vehicle that contraband might be hidden. United States v.

Ross,

,

,

(1982).

{¶ 14} Here, when Sergeant Riegel looked inside Thompson’s car, he saw in plain view

what he immediately believed was a marijuana cigarette. This gave Riegel probable cause to

search the entire passenger compartment, including the center console. Therefore the search was

lawful.

{¶ 15} We further conclude that the search was based on a source independent of

Thompson’s arrest, so the exclusionary rule does not apply. We have explained the exclusionary

rule’s application this way:

“The exclusionary rule is a judicially created remedy applied to exclude

evidence from the government’s case in chief when it has been obtained by police

through an illegal search or seizure in violation of the Fourth Amendment. Mapp 8

v. Ohio (1961),

,

,

. The exclusionary

rule applies not only to primary evidence directly obtained by police during an

illegal search or seizure but also to ‘derivative evidence,’ that is, evidence

discovered from knowledge gained by the police as a result of the illegal search or

seizure. Silverthorne Lumber Co. v. U.S. (1920),

,

,

. Derivative evidence is known as ‘fruit of the poisonous tree.’ Nardone

v. U.S. (1939),

,

,

.” State v. Kelly (Sept. 24,

1993), Clark App. No. 3007.

“In order for derivative evidence to be suppressed, the evidence must have

been obtained by exploitation of the illegal search or seizure, and therefore be

tainted by it. In applying the exclusionary rule, courts do not utilize a ‘but for’ test,

which would include any evidence that would not have come to light but for the

search [or seizure] performed by the police. Instead, the evidence must be the

product of the illegality concerned.” State v. Freeman, Montgomery App. No.

18798,

(citations omitted). “[T]he fruit-of-the poisonous-tree

doctrine is generally subject to three qualifications: (1) the independent source

doctrine; (2) the inevitable discovery rule; and (3) the attenuated connection

principle.” United States v. Stamper (C.A.

, 2004), Case No. 02-6389.

State v. Cranford, 2d Dist. Montgomery No. 20633,

. We believe that

Rigel’s checking Thompson’s car, because of Thompson’s extreme nervousness, to see if there

were other occupants is unrelated to, and not resulting from, his decision to physically arrest

Thompson. The record is not clear as to precisely when Riegel decided to arrest Thompson rather 9

than issue him a citation, but it was sometime after Riegel placed Thompson in the cruiser and

confirmed that Thompson was driving under suspension. Had the search been supported only by

a desire to inventory the car’s contents because Thompson was going to jail, we might be inclined

to find a more direct connection between the physical arrest and the search. But because we

conclude that the search had an independent source, we do not address that issue.

{¶ 16} The second assignment of error is sustained.

{¶ 17} We need not decide the first assignment of error, concerning the lawfulness of

Thompson’s initial arrest. Sergeant Riegel’s looking in the car and seeing the marijuana cigarette

are sufficient by themselves to render the search lawful, and the authority for that search was not

the result of any unlawful conduct. The first assignment of error is moot.

{¶ 18} The trial court’s suppression order is reversed with respect to the items seized

from Thompson’s car; the rest of the order is affirmed. This case is remanded for further

proceedings.

.............

FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck April F. Campbell J. David Turner Hon. Dennis J. Langer