[Cite as State v. Mock,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2012-L-066 - vs - :

CLIFFORD D. MOCK, :

Defendant-Appellant. :

Criminal Appeal from the Court of Common Pleas, Case No. 11 CR 000731.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff- Appellee).

R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Clifford D. Mock, appeals the judgment of the Lake County

Court of Common Pleas denying his motion to suppress evidence based on an alleged

unconstitutional stop. Appellant also contends he suffered ineffective assistance of

counsel in that other issues which would have changed the outcome of his case were

not argued in his suppression motion. For the following reasons, the judgment is

affirmed. {¶2} On November 19, 2011, at approximately 2:45 a.m., Mentor Police Officer

Christian Lawrence observed a green Ford Explorer repeatedly cross the center-lane

while traveling north on a clear and dry two-lane road. Believing the driver may be

intoxicated, the officer initiated a traffic stop of the automobile. As the officer

approached, he observed two occupants in the vehicle. Appellant was the front-seat

passenger, and one Miss Sopher was the driver. During the stop, Miss Sopher

provided a license and established herself as the valid owner of the vehicle. Appellant

was also asked for his information. Appellant did not provide identification but, instead,

provided a fictitious name. When asked again, appellant provided a portion of his name

before finally giving his complete name. Officer Lawrence discovered an outstanding

warrant for appellant’s arrest; thus, appellant was placed under arrest and positioned in

the back of the police cruiser.

{¶3} After appellant’s arrest, Officer Lawrence, now with the help of a backup

officer, again approached the SUV where Miss Sopher remained. The officers asked

Miss Sopher out of the vehicle. Miss Sopher inquired into the status of appellant.

Officer Lawrence explained that appellant had been arrested due to an active warrant.

Officer Lawrence then asked whether appellant may have left something in Miss

Sopher’s automobile. Miss Sopher, seemingly surprised at the information involving her

former passenger, informed Officer Lawrence she did not know whether appellant had

left anything in her vehicle. She informed the officers they were free to check her

vehicle. The officers searched her automobile, finding in the backseat a partially

opened duffle bag with a clear plastic bag in a twisted knot protruding outward. Officer

Lawrence, pushing the bag open, discovered narcotics and drug paraphernalia. The

2 duffle bag also contained what appeared to be work-related materials, including papers

and folders. Officer Lawrence questioned Miss Sopher about the bag and asked her if it

contained anything that should not be there. Officer Lawrence explained that Miss

Sopher appeared puzzled at the questioning. Miss Sopher, without hesitation,

explained the bag belonged to her and was her work bag. Officer Lawrence then

questioned appellant about whether anything illegal was in the vehicle. Officer

Lawrence testified that appellant declared “it’s all mine,” though appellant did not specify

the item or items to which he referred. Appellant was subsequently charged with

possession of heroin and possession of criminal tools, both with forfeiture specifications.

{¶4} Appellant filed a motion to suppress the evidence. In his motion, appellant

did not contest the initial stop. Instead, appellant contended Officer Lawrence had no

reason to ask appellant for identification—essentially, that it was an unlawful continued

detention unrelated to the purpose of the initial stop (suspicion of driver intoxication).

Appellant urged the court to suppress all further evidence and statements from the stop.

The trial court held a suppression hearing during which Officer Lawrence testified to the

above-framed factual points. Upon consideration, the trial court denied the motion to

suppress.

{¶5} Appellant now appeals and asserts two assignments of error for

consideration by this court. Appellant’s first assignment of error states:

{¶6} “The trial court erred when it denied the Defendant-Appellant’s motion to

suppress in violation of his due process rights and rights against unreasonable search

and seizure as guaranteed by Sections 10 and 14, Article I of the Ohio Constitution and

the Fourth and Fourteenth Amendments to the United States Constitution.”

3 {¶7} In his first assignment of error, appellant does not contest the trial court’s

suppression ruling. Instead, appellant raises new arguments. He contends that the

automobile search constituted an invalid search incident to arrest and that Miss

Sopher’s consent to search her automobile was involuntary. Appellant acknowledges

these arguments were never advanced before the trial court in any capacity but, rather,

maintains the trial court committed plain error in failing to exclude the evidence on these

grounds.

{¶8} A motion to suppress evidence “is the proper vehicle for raising

constitutional challenges based on the exclusionary rule[.]” State v. French,

(1995). Pursuant to Crim.R. 12(C), motions to suppress evidence on the

grounds that the evidence was illegally obtained must be made before trial. State v.

Johnson, 11th Dist. No. 2011-T-0075,

, ¶14. Further, a suppression

motion must state with particularity the grounds upon which it is made. Crim.R. 47.

{¶9} Failure to abide by Crim.R. 12(C) constitutes waiver of the defenses or

objections. Crim.R. 12(H). Here, it is undisputed that appellant failed to assert the

constitutional claims of an invalid search incident to arrest and involuntary consent,

thereby waiving those claims. Indeed, by failing to advance these arguments in his

suppression motion before the trial court, the state did not have notice of the issues and

an opportunity to prepare its case. The trial court did not make any findings of fact on

these points because the matters were not raised and there was no evidence placed

before it at the suppression hearing. See, e.g., Village of Kirtland Hills v. Medancic,

11th Dist. Nos. 2011-L-136 & 2011-L-137,

, ¶8. Consequentially, this

appellate court is unable to conduct its ordinary standard of review as there are no

4 factual findings upon which to defer and no application of law to apply. See State v.

McDivitt, 11th Dist. No. 2011-L-129,

, ¶13-14.

{¶10} Appellant recognizes this point but argues the trial court’s failure to

exclude the evidence on the grounds upon which he now relies is plain error, pursuant

to Crim.R. 52(B). Notice of plain error is to be “taken with utmost caution and only to

prevent a manifest miscarriage of justice[.]” State v. Reives-Bey, 9th Dist. No. 25128,

. However, we question the propriety of a plain error analysis in

the context of a defendant’s failure to make constitutional arguments in a suppression

motion. Under appellant’s line of reasoning, the trial court, to avoid the alleged error in

this case, would have been required to raise new suppression issues on behalf of

appellant, request the parties to present evidence on those matters, and then evaluate

the issues.

{¶11} Nonetheless, appellant would not have been able to assert his arguments

in the first instance. Though neither party addresses it, the issue of standing is a

threshold determination in analyzing whether a defendant’s constitutional rights were

violated. Certainly, appellant has the ability to challenge the seizure of Miss Sopher’s

automobile which restricted his movement as a passenger. See, e.g., State v. Jackson,

11th Dist. No. 2011-L-107,

, ¶18. However, appellant does not

demonstrate that he has standing to challenge the constitutionality of Miss Sopher’s

consent to search her automobile. See State v. Jalloh, 2d Dist. No. 24972, 2012-Ohio-

5314, ¶31, citing Rakas v. Illinois,

(1978) (“a passenger has no standing

to challenge the vehicle’s search if that passenger has no proprietary or possessory

interest in the vehicle”). Appellant similarly does not illustrate how he would have

5 standing to challenge the search of the duffle bag which Miss Sopher claimed as her

personal property. See generally Rawlings v. Kentucky,

(1980) (defendant

had no standing to challenge constitutionality of a search that uncovered defendant’s

drugs in companion’s purse). Indeed, appellant does not profess to have a proprietary

or possessory interest in his companion’s vehicle or her duffle bag. Further, appellant

does not demonstrate how any evidence from a search could be characterized as “fruit

of the poisonous tree” stemming from an alleged unreasonable seizure, especially when

he does not challenge on appeal the trial court’s determination that the seizure was not

unreasonably initiated or extended.

{¶12} Appellant’s first assignment of error is without merit.

{¶13} Appellant’s second assignment of error states:

{¶14} “The Defendant-Appellant’s due process rights and rights to fair trial as

guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Section 10 of the Ohio Constitution were violated by ineffective assistance

of counsel.”

{¶15} In his second assignment of error, appellant contends he suffered

ineffective assistance of trial counsel because his suppression motion did not contain

any of the arguments upon which he now relies: i.e., invalid search incident to arrest

and involuntary consent. However, as explained above, these grounds, if pursued,

would have proved fruitless due to the issue of standing. Pursuant to Strickland v.

Washington,

(1984), we cannot conclude the outcome would have been

any different had these issues been raised. Further, on this record, it is equally

plausible that trial counsel assessed the strength of the various arguments and tactically

6 determined the issue of the driver’s consent to search her own vehicle should not be

raised by appellant and could adversely affect the credibility of the entire motion.

Indeed, we must indulge a strong presumption that trial counsel’s assistance fell within

the wide range of reasonable professional assistance.

{¶16} Appellant’s second assignment of error is without merit.

{¶17} The judgment of the Lake County Court of Common Pleas is hereby

affirmed.

DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE., J.,

concur.

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