[Cite as State v. Bolen,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-16-01

v.

BRIAN P. BOLEN, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 13-CR-0134

Judgment Affirmed

Date of Decision: November 21, 2016

APPEARANCES:

James E. Melle for Appellant

Derek W. DeVine for Appellee Case No. 13-16-01

SHAW, P.J.

{¶1} Defendant-appellant, Brian P. Bolen, appeals the December 8, 2015

judgment entry of sentence issued by the Seneca County Common Pleas Court

journalizing his convictions by no contest plea on one count of Possession of

Marijuana and one count of Tampering with Evidence, and sentencing him to serve

six years in prison on the Possession of Marijuana conviction and eighteen months

in prison on the Tampering with Evidence conviction, to be served concurrently.

On appeal, Bolen assigns as error the trial court overruling his combined “Motion

to Suppress Evidence and for Order in Limine.”

{¶2} On August 14, 2013, the Seneca County Grand Jury returned a two

count indictment against Bolen alleging Count One, Possession of Marijuana, in

violation of R.C. 2925.11(A),(C)(3)(f), a felony of the second degree, and Count

Two of Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of

the third degree. The charges arose from the execution of a search warrant, which

resulted in the seizure of several items including, six bails of marijuana totaling

59.27 pounds, numerous live plants, and other drugs and drug-related items. The

events leading up to the execution of the warrant involved two open burn incidents

that occurred on a vacant lot next to Bolen’s home. While Officer Brandon Bell of

the Fostoria Police Department was investigating the second open burn incident, he

smelled and observed marijuana plants growing behind Bolen’s home. After

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receiving no response from knocking at the front and back doors and hearing people

move around inside, he attempted to make contact with the occupants by knocking

on a ground level window near the property line with the vacant lot, through which

he observed marijuana remnants and drug paraphernalia on a kitchen table inside

the home. Officer Bell’s observations of the live marijuana plants and the marijuana

remnants and drug paraphernalia formed the basis for the issuance of the search

warrant of Bolen’s home.

{¶3} On March 19, 2015, Bolen appeared for arraignment and pleaded not

guilty to the charges in the indictment.

{¶4} On October 13, 2015, Bolen filed a “Motion to Suppress Evidence and

for Order in Limine.” Bolen raised several issues alleging the search warrant to be

defective, including that the warrant was not authorized to be executed at night, the

supporting affidavit was not properly sworn to, and Officer Bell’s continued

viewing inside the residence through the window exceeded the scope of the initial

reason for him being on the premises and therefore constituted an unlawful

warrantless search. Bolen also argued that the “plain view” exception to the warrant

requirement did not apply. The State filed a response to Bolen’s arguments for

suppression.

{¶5} On November 16, 2015, the trial court held a hearing on Bolen’s

“Motion to Suppress Evidence and for Order in Limine.”

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First Open Burn Incident

{¶6} The prosecution presented the testimony of personnel from the Fostoria

Fire Department to establish that on July 22, 2012, at 5:01 p.m., the fire department

received a report of an “open burn complaint” on a vacant lot near Spruce Street in

Fostoria. (Supp. Hrg. at 13). The three-feet-high fire consisted mainly of brush and

limbs and was located approximately fifty feet from the closest structure. Scott

Basinger, Shift Captain with Fostoria Fire Department, testified that he spoke to a

man who admitted to starting the fire to “clean up the area a little bit” and advised

him that it was illegal to burn debris in this manner. (Id. at 25). Capt. Basinger

explained that it is not typical protocol for the fire department to take the names of

people they encounter on an open burn complaint. Therefore, he did not know the

name of the man and could not identify the man as Bolen in court.1 However, Capt.

Basinger observed the man enter a home adjacent to the burn site and identified the

home located at 576 Spruce Street, which was later determined to belong to Bolen,

from a photograph introduced at the hearing. The fire was cleared at approximately

5:18 p.m. and the fire department personnel returned to the station.

Second Open Burn Incident

{¶7} Later that night, at approximately 9:57 p.m., fire department personnel

were called back to the same location on the vacant lot, this time by law

1 For reasons not apparent from the record, the suppression hearing took place nearly three and half years after the incident.

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enforcement, who had been dispatched there to investigate a second open burn

complaint. The second fire was burning in the same place as the first, but was larger

than before. Capt. Basinger again responded to the call and was greeted by Officer

Brandon Bell of the Fostoria Police Department at the scene. Capt. Basinger relayed

information to Officer Bell about the man they encountered at the prior incident,

who admitted to starting the fire.

{¶8} Together, Capt. Basinger and Officer Bell went to the residence where

Capt. Basinger had seen the man enter a few hours before, which was identified as

the house located at 576 Spruce Street. According to Capt. Basinger, they first

approached the rear door.2 Capt. Basinger recalled motion sensor lights illuminating

and lighting up the entire backyard of the residence, which provided a clear view of

the items in backyard. He also noticed lights on in the interior of the home. When

no one answered, they walked around to the front door, which also had no response.

He then conversed with Officer Bell, who asked him if anyone from the fire

department noticed the marijuana plants growing in the backyard. Capt. Basinger

stated he did not notice the plants. After the attempts to make contact with the man

at the rear and front doors, Capt. Basinger returned to assist with clearing the fire,

which was completed by 10:38 p.m.

2 Photographs depicting the burn site and Bolen’s house introduced at the hearing reveal that the vacant lot was situated next to Bolen’s home providing a clear and an unobstructed side view of Bolen’s entire property from the lot.

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{¶9} Officer Bell also provided testimony regarding the second open burn

incident. He explained that law enforcement was dispatched to the location of the

second fire and that they were aware of a prior fire set there hours before. Officer

Bell knew that the vacant lot was separate from the 576 Spruce Street home.

{¶10} Officer Bell explained that when he arrived to the vacant lot to

investigate the fire, he could smell the odor of raw marijuana emanating in the air.3

He estimated the site of the fire being twenty-five to thirty feet from the nearest

structure, which was the home at 576 Spruce Street. He could see into the backyard

of the 576 Spruce Street property because of the light illuminated from the fire truck

and other external sources. (Supp. Hrg. at 88). He observed marijuana plants

growing behind the home. He also shined his flashlight into the backyard of the 576

Spruce Street property to confirm his observation of the marijuana plants. (Id. at

72). He testified that he did not need to be on the 576 Spruce Street property to

observe the marijuana plants. (Id. at 73). He informed fire department personnel

about seeing the marijuana plants while still on the vacant lot and asked if they had

noticed the plants during the first open burn call, to which they indicated no. (Id. at

89-90). He explained at that point he was investigating both the open burn

complaint and the marijuana plants he observed.

3 Officer Bell testified to his six years of training, education, and experience in marijuana detection in the marijuana eradication unit. He also is a K-9 handler and uses raw marijuana for training purpose.

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{¶11} Officer Bell attempted to make contact with the residents by knocking

on the front and rear doors of the home. When he approached the rear door of the

home, he again noticed the marijuana plants when the motion sensor lights

illuminated. He recalled seeing lights on inside and hearing people move inside the

home, but no one answered the knocks on the doors. Office Bell then approached a

window on the side of the house facing the open vacant lot where the fire was

located. He explained why he approached the window: “To try, attempt to make

contact with someone based on the fact I knocked on the front, rear door. I could

hear people inside. At that point, I didn’t know if maybe they were in a room that

they couldn’t hear me, so I knocked on the window then.” (Supp. Hrg. at 77).

{¶12} According to Officer Bell, the window stood approximately three feet

from the ground. Standing three to four feet from the window, Officer Bell could

see a kitchen table through the blinds, which were opened and titled at an angle. On

the table, there appeared to be a paper plate with what looked like a “marijuana

pipe” and “some kind of marijuana remnants on the plate.” (Supp. Hrg. at 78).

Officer Bell took a photograph of what he observed through the window for

“preservation of evidence.” (Id. at 96). He could not recall if he was on the curtilage

of the property when he took the photograph because there was nothing to indicate

the property line. He also photographed the marijuana plants in the backyard.

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{¶13} Officer Bell requested a search warrant for the 576 Spruce Street

property based upon (1) his smell and observation of the marijuana plants growing

behind the home, and (2) his observation of the suspected marijuana and drug

paraphernalia through the window of the home. He also relayed information to law

enforcement that he knocked on the front and rear doors of the residence and no one

answered. Detective Gabriel Wedge of the Fostoria Police Department prepared the

search warrant and supporting affidavit based upon the information obtained by

Officer Bell and presented them to the Tiffin-Fostoria Municipal Court Judge, who

reviewed the documents and authorized the execution of the search warrant. During

the execution of the search warrant, Officer Bell encountered Bolen in the home.

He also found several personal effects belonging to Bolen in the home, as well as

the six bails of marijuana totaling 59.27 pounds, numerous live plants, and other

drugs and drug-related items.

{¶14} On November 30, 2015, the trial court overruled Bolen’s “Motion to

Suppress Evidence and for Order in Limine,” finding that the odor of raw marijuana

detected by Officer Bell and his subsequent observation of the marijuana plants in

the backyard of Bolen’s property were sufficient to constitute probable cause to

support the issuance of the search warrant. The trial court also found that the “plain

view” exception applied to the drugs and drug-related items observed through the

window. Specifically, the trial court concluded:

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The odor of marijuana alone, when detected by a person competent to identify it, is enough to justify the issuance of a search warrant. Here, Officer Bell observed marijuana plants on the property at 576 Spruce Street, and also observed suspected marijuana and drug paraphernalia through the window of the residence while trying to make contact with the occupants. The viewing of the marijuana plants in the yard alone would be enough to justify the search warrant.

***

Defendant also argues that Officer’s [sic] Bell’s look inside the window and observation of alleged marijuana and drug paraphernalia does not fall within the “plain view” exception to the warrant requirement. Officer Bell, however, was lawfully on the property when he observed the marijuana plants on the property and other items through the widow of the home. He looked through the window in an attempt to contact the occupants of the home, which was within the scope of his authority.

(Doc. No. 52 at 3-4.)

{¶15} The trial court further found no merit in Bolen’s arguments regarding

the alleged search warrant defects based upon an unauthorized nighttime search and

an improper supporting affidavit.

{¶16} On December 7, 2015, Bolen withdrew his previously tendered not

guilty pleas and entered pleas of no contest with consent to a finding of guilt to the

charges stated in the indictment. As part of the plea agreement, Bolen agreed to

surrender the house located at 576 Spruce Street. The trial court accepted Bolen’s

no contest pleas and found him guilty of the second degree felony Possession of

Marijuana and the third degree felony Tampering with Evidence charges.

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{¶17} The trial court sentenced Bolen to a mandatory six-year prison term

for the Possession of Marijuana offense and an eighteen-month prison term for the

Tampering with Evidence offense. The trial court ordered the prison terms to be

served concurrently.

{¶18} Bolen filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S COMBINED MOTION IN LIMINE AND MOTION TO SUPPRESS.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN FAILING TO FIND THAT OFFICER BELL UNLAWFULLY ENTERED THE CURTILAGE OF DEFENDANT’S RESIDENCE WITHOUT A WARRANT AND CONDUCTED A WARRANTLESS SEARCH OF THE INSIDE OF THE RESIDENCE BY LOOKING THROUGH A ONE INCH OPENING BETWEEN SLATS OF A KITCHEN WINDOW BLIND ON THE SIDE WINDOW AFTER 10 P.M.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED IN FINDING AND CONCLUDING THAT THE ITEMS OBSERVED BY OFFICER BELL THROUGH THE KITCHEN WINDOW WERE IN PLAIN VIEW.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN FAILING TO FIND THE SEARCH WARRANT, OBTAINED AFTER A WARRANTLESS SEARCH, WAS TAINTED AND THE RESULTS OF THE SEARCH MUST BE SUPPRESSED AND THE SURRENDERED PROPERTY RETURNED.

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ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE SEARCH OF THE SEIZED COMPUTERS WAS UNCONSTITUTIONAL BECAUSE IT WAS DERIVATIVE OF THE ITEMS SEIZED AS A RESULT OF THE TAINTED SEARCH WARRANT.

ASSIGNMENT OF ERROR NO. VI

THE TRIAL COURT ERRED IN DENYING DEFENDANT HIS CONSTITUTIONAL RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE, 1, SECTION 14 OF THE OHIO CONSTITUTION.

First, Second, Third, and Fourth Assignments of Error

{¶19} Due to the interrelated nature of these assignments of error, we elect

to address them together.

{¶20} In his first and second assignments for error, Bolen claims that the trial

court erred in overruling his Combined Motion in Limine and Motion to Suppress.

Specifically, Bolen argues that Officer Bell conducted an unconstitutional

warrantless search of his home at 576 Spruce Street when Officer Bell looked

through the window and observed the marijuana remnants and drug paraphernalia

on the kitchen table inside. Bolen further claims in his third assignment of error that

the trial court erred in determining that the plain view exception to the warrant

requirement applied because Officer Bell was not permitted to be in the location

where he viewed the evidence through the window. In his fourth assignment of

error, Bolen contends that the search warrant subsequently obtained for his home

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was tainted because the affiant officer included a description of Officer Bell’s

observation through the window as one of the grounds for probable cause in the

supporting affidavit. For all these reasons, Bolen maintains that the evidence

obtained during the execution of the search warrant should be suppressed as fruits

of the poisonous tree and that the trial court erred in overruling his motion to

suppress.

Standard of Review

{¶21} Under Ohio law, “[a]ppellate 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.” State v. Burnside,

,

, ¶ 8, citing State v. Mills,

,

(1992). Accordingly, “an appellate court must accept the trial

court’s findings of fact if they are supported by competent, credible evidence.”

citing State v. Fanning,

(1982). Further, “[a]ccepting 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.”

citing State v. McNamara,

, (4th

Dist. 1997).

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Officer Bell was Lawfully Positioned Outside the Window

{¶22} On appeal, Bolen focuses almost exclusively on Officer Bell’s conduct

of looking into the side window of the home as the basis for contending an

unconstitutional warrantless search occurred.4 The primary tenant of Bolen’s

position on appeal is that Officer Bell was not permitted to be on the curtilage

outside the ground floor window when he observed the marijuana remnants and

drug paraphernalia on a kitchen table through the window. Thus, Bolen attempts to

isolate this moment of time without giving due consideration to the facts and

circumstances leading up to Officer Bell’s decision to knock on the window, which

are also necessary to review in determining whether Officer Bell’s conduct was

reasonable under the Fourth Amendment.

{¶23} It is undisputed that Officer Bell was dispatched to investigate the

second open burn incident on the vacant lot adjacent to the 576 Spruce Street

property. There, he was told by the firefighters attending to the fire that a man living

at the home situated on the 576 Spruce Street property admitted to starting the first

open burn hours earlier. While standing on the vacant lot at the site of the fire,

Officer Bell also detected the odor of raw marijuana and observed marijuana plants

growing in the backyard of the home situated on the 576 Spruce Street property.

4 Bolen argues that two unlawful searches “were made from a position where [Officer Bell] was not lawfully authorized to be:” (1) when Officer Bell looked through the window and observed the marijuana remnants and drug paraphernalia, and (2) when Officer Bell took a photograph of the items to preserve evidence. (Appt. Brief at 12).

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{¶24} At the suppression hearing, Officer Bell testified to his experience and

expertise in detecting and identifying the odor of raw marijuana. See note 3, supra.

As noted by the trial court in its judgment entry overruling Bolen’s motion to

suppress, the Supreme Court of Ohio has found that “[t]he smell of marijuana, alone,

by a person qualified to recognize the odor, is sufficient to establish probable cause

to conduct a search.” State v. Moore,

(2000), paragraph one of the

syllabus. “Moore makes no clear distinction between the smell of burnt marihuana

and the smell of fresh marihuana.” State v. Navarro, 3d Dist. Seneca No. 13-15-28,

. Thus, based upon the odor of raw marijuana and the

observation of the marijuana plants behind the home, Officer Bell garnered the

requisite probable cause to obtain a search warrant before ever stepping foot upon

the 576 Spruce Street property.

{¶25} Notwithstanding this fact, Officer Bell specifically testified that he

walked onto the 576 Spruce Street property with Capt. Basinger to investigate both

the open burn incident and the marijuana plants by speaking to the occupants inside

the home. The record is unclear as to whether Officer Bell and Capt. Basinger

approached the rear or front door of the home first. Bolen appears to take issue with

the fact that Officer Bell may have initially approached the rear door, by entering

the curtilage of the home from the adjacent vacant lot to do so, rather than first

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approaching the front door.5 The curtilage is the area around a home that a resident

may reasonably expect to enjoy the sanctity and privacy of the home and is protected

from unreasonable searches and seizure under the Fourth Amendment. Oliver v.

United States,

,

,

(1984).

{¶26} However, “[a] law enforcement officer may enter a home’s curtilage

without a warrant if he has a legitimate law-enforcement objective, and the intrusion

is limited.” Turk v. Comerford,

(6th Cir. 2012), citing

United States v. Weston,

(8th Cir. 2006). “One such permissible

warrantless intrusion is the investigative technique known as ‘knock and talk,’

where a police officer knocks on the front door of a home for purposes of speaking

to the occupants or asking for consent to search the premises.” Pritchard v.

Hamilton Twp. Bd. of Trustees,

(6th Cir. 2011). “An officer

may initiate a knock and talk without any objective level of suspicion.”

; State v. Miller, 2d Dist. Montgomery No. 24609,

.

{¶27} To this end, Officer Bell’s entrance upon the curtilage of the home to

conduct a “knock and talk” with the person who had previously admitted to the

firefighters that he started the first fire and/or to the occupants who may have

knowledge regarding the marijuana plants were clearly legitimate law-enforcement

5 We note that the photographs depicting the home situated on 576 Spruce Street and the adjacent vacant lot show that there were no fences or landscaping demarking the property line between the two parcels, and there was an unobstructed view of the entire property from the vacant lot.

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objectives and provided limited intrusion on the occupant’s expectation of privacy.

Notably, in approaching the back door to conduct a “knock and talk,” Officer Bell

was able to more closely observe the live marijuana plants growing in the back yard

of the 576 Spruce Street property, confirming his initial determination from the

vacant lot.

{¶28} In attempting to make contact with the occupants of the home, Officer

Bell knocked multiple times on both the front and back doors. It was at this time

that Officer Bell observed interior lights illuminated and heard moving people inside

the home. Officer Bell testified that the lack of response to his knocking on the

doors and the indication of someone inside the home prompted him to approach the

ground level window located at the side of the home near the vacant lot.6 He

explained his specific intention in approaching the window was “[a]t that point, I

didn’t know if maybe [the occupants] were in a room that they couldn’t hear me, so

I knocked on the window then.” (Supp. Hrg. at 77). The record demonstrates that

it was while Officer Bell was attempting to make contact with the occupants at the

window that he observed the remnants of marijuana and drug paraphernalia on a

nearby kitchen table, which, in addition to the live marijuana plants, formed one of

6 Officer Bell testified that he was standing three to four feet from the window when he knocked. He also indicated that since the incident occurred at night, visibility was limited and there no light source to indicate the property line between the 576 Spruce Street property and the vacant lot.

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the two independent bases of probable cause for obtaining the search warrant of the

home.

{¶29} Bolen contends that Officer Bell was not permitted to be on the

curtilage outside the ground level window. However, “where knocking at the front

door is unsuccessful in spite of indications that someone is in or around the house,

an officer may take reasonable steps to speak with the person being sought out even

where such steps require an intrusion into the curtilage.” Hardesty v. Hamburg,

Twp.,

(6th Cir. 2006). Under the circumstances outlined above

and considering each step taken by Officer Bell in the investigation of the second

open burn incident and the live marijuana plants, including conducting a “knock and

talk,” we do not find it was unreasonable for Officer Bell to approach the ground

level window near the burn site to make contact with the occupants whom he

suspected to be inside the home nor did such conduct constitute an impermissible

intrusion upon the occupants’ privacy in violation of the Fourth Amendment.

{¶30} Accordingly, we do not find error in the trial court’s determination that

Officer Bell “was lawfully on the property when he observed the marijuana plants

on the property and other items through the window of the home. He looked through

the window in an attempt to contact the occupants of the home, which was within

the scope of his authority.” (Doc. No. 52 at 3-4.)

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The Plain View Doctrine Applies

{¶31} This leads us to address Bolen’s third assignment of error under which

he argues the trial court erred in concluding that the plain view doctrine applied to

the facts of this case—specifically, that the marijuana remnants and drug

paraphernalia were in Officer Bell’s plan view when he knocked on the window to

make contact with the occupants. Pursuant to the plain view doctrine, the

warrantless search or seizure by a law enforcement officer of an object in plain view

does not violate the Fourth Amendment if (1) the officer did not violate the Fourth

Amendment in arriving at the place where the object could be plainly viewed, (2)

the officer has a lawful right of access to the object, and (3) the incriminating

character of the object is immediately apparent. State v. Robinson,

(1st Dist. 1995), citing Horton v. California,

, 136–137,

,

(1990).

{¶32} Bolen’s primary objection to the trial court’s application of the plain

view doctrine to this case is his contention that Officer Bell was not lawfully

positioned on the curtilage outside the window when he observed the marijuana

remnants and drug paraphernalia. However, light of our previous discussion on this

point, we similarly find no error in the trial court’s determination that the plain view

doctrine applied to the facts of this case.

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The Search Warrant is Valid

{¶33} In his fourth assignment of error, Bolen argues that the search warrant

was invalid. The search warrant executed in this case had two primary grounds for

establishing probable cause (1) the marijuana plants Officer Bell observed growing

in the area behind the home and (2) the marijuana remnants and drug paraphernalia

Officer Bell viewed through the window while attempting to make contact with the

occupants. Bolen does not dispute that Officer Bell’s observation and olfactory

detection from the vacant lot of the marijuana plants growing in the backyard

constituted probable cause to obtain a search warrant. Instead, he claims that Officer

Bell’s conduct of looking through the ground level window amounted to an

unlawful search and tainted the entire search warrant requiring the results of the

search to be suppressed.

{¶34} Notwithstanding our determination that no illegal search occurred in

this matter, even assuming arguendo that Officer Bell had not been properly

positioned outside the window while conducting a legitimate law-enforcement

objective, we are not persuaded by Bolen’s arguments that including a description

of Officer Bell’s observations through the window in the supporting affidavit

invalidated the search warrant. Bolen relies heavily on a prior case decided by this

Court, State v. Foster, in support of his contention that the warrant should be

invalidated as “fruits of the poisonous tree.” See Foster, 3d Dist. Allen No. 1-14-

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54,

. However, a review of Foster reveals the facts in that case are

readily distinguishable.

{¶35} There, law enforcement conducted a warrantless search of a home

under the pretense of completing a search for intruders after receiving call from the

alarm company indicating that a home alarm had been sounded. Foster at ¶ 2. The

officers observed the front door cracked open upon responding.

When inside

the home, the officers pulled bags off a shelf and found large amounts of money and

crack cocaine. Id. at ¶ 3. At a subsequent hearing, the officers admitted that under

the circumstances they should have obtained a search warrant prior to opening the

bags and acknowledged that the bags could not be hiding an intruder, but they

nevertheless elected to proceed with the warrantless search. Id. at ¶ 10. After no

intruders were found in the home, the officers called for a search warrant of the

home, citing the money and the crack cocaine as the basis for probable cause. Id.

at ¶ 3. Foster appealed the trial court’s overruling of his motion to suppress in that

case.

{¶36} This Court determined on appeal that the money and crack cocaine

should have been suppressed by the trial court because they were the result of an

illegal warrantless search. Id. at ¶ 15. We also determined that “[b]ecause the

‘fruits’ of the illegal search were included as a basis for the warrant, the warrant

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itself was tainted and we have no way of knowing whether a warrant would have

been issued in this case absent the statement that they had found cocaine.” Id.

{¶37} In the instant case, there were two separate and distinct grounds

establishing probable cause in the affidavit accompanying the search warrant of the

home. In its judgment entry overruling Bolen’s motion to suppress, the trial court

specifically found that Officer Bell’s observation and smell of the marijuana plants

alone constituted probable cause to “justify the issuance of a search warrant.” (Doc.

No. 52 at 3). Moreover, Officer Bell’s detection and confirmation of the marijuana

plants growing in the backyard of the property occurred prior to and was

independent from his observation of the marijuana remnants and drug paraphernalia

through the window. Thus, there was no causal connection between the two bases

for probable cause. Consequently, we find no error in the trial court’s conclusion

that even without the description of the evidence viewed as a result of Officer Bell

looking through the window, the detection of the marijuana plants alone justified

the issuance of the search warrant.

{¶38} We further note that “[t]he exclusionary rule bars the use of evidence

secured by an unconstitutional search and seizure.” State v. Johnson,

,

, ¶ 40, citing Weeks v. United States,

,

,

(1914) (announcing the exclusionary rule), and Mapp v.

Ohio,

,

,

(1961) (extending the

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exclusionary rule to the states). Application of the exclusionary rule to evidence

found as a result of an unconstitutional search and seizure is not a personal

constitutional right to be exercised by the defendant.

citing Davis v. United

States,

,

,

(2011). “[T]he

exclusionary rule’s ‘sole purpose * * * is to deter future violations of the Fourth

Amendment[,] and [w]here suppression fails to yield “appreciable deterrence,”

exclusion is “clearly * * * unwarranted.” ’ ”

quoting

, quoting

United States v. Janis,

,

,

(1976).

{¶39} Unlike in Foster where the law enforcement officers admitted that

they should have obtained a warrant before they searched the contents of the bags

inside the home, in this case, the record indicates that Officer Bell reasonably and

accurately believed he was acting within in the scope of his authority to conduct a

“knock and talk” with the occupants of the home when he approached the window

and viewed the marijuana remnants and the drug paraphernalia. More importantly,

the police conduct in actually searching and seizing the items in this case was based

upon approval of these circumstances by the municipal judge in a search warrant

affirming that these observations constituted probable cause and were therefore

executed lawfully in good faith.

{¶40} The exclusionary rule generally applies where police exhibit “

‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment

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rights, * * * ” but not “when the police act with an objectively ‘reasonable good-

faith belief’ that their conduct is lawful.” Davis v. United States, supra,

. If the police “conduct involves only simple, ‘isolated’ negligence, the

deterrence rationale loses much of its force, and exclusion cannot ‘pay its way.’ “

at 2427–2428, citing United States v. Leon,

,

,

(1984). “[A]n assessment of the flagrancy of the police misconduct

constitutes an important step in the calculus.”

.

Accordingly, we find no merit in Bolen’s arguments that the inclusion of Officer

Bell’s observation through the ground floor window as one basis for establishing

probable cause somehow rendered the search warrant invalid. 7

{¶41} Based on the foregoing discussion, we conclude that the trial court did

not err in overruling Bolen’s motion to suppress. Bolen’s first, second, third, and

fourth assignments of error are overruled.

7 Bolen cites a handful of cases in support of his argument that all the evidence seized as a result of the execution of the search warrant must be suppressed. See e.g., State v. Vondenhuevel, 3d Dist. Logan No. 8- 04-15,

; State v. Morgan, 5th Dist. Fairfield No. 13-CA-30,

; State v. Peterson, 2d Dist. Montgomery No. 22008,

,

. In citing these cases, Bolen appears to be advocating for a bright line rule stating that an officer can never be lawfully positioned on or near the curtilage of the home regardless of the particular facts and circumstances of the case and the reasonableness of the officer’s conduct in effectuating a legitimate law-enforcement objective. To the contrary, each of these cases highlights the importance of a case-by-case analysis rather than a sweeping rule on this issue. Moreover, none of the cases cited by Bolen involve the same set of facts as in this case and we find these cases to be inapposite to the one currently before us.

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Fifth Assignment of Error

{¶42} In his fifth assignment of error, Bolen argues that the trial court erred

in failing to suppress the results from the search of his three computers. The record

reflects that a second warrant was issued for the contents of the computer after the

seizure of the computers pursuant to the execution of the first search warrant. Bolen

first argues the second warrant issued for the computer contents was invalid based

on his presumption that the first warrant for the seizure of the computers was tainted

by an illegal search. However, since we have already dispensed with that argument

and found the first search warrant valid, we do not find merit in Bolen’s argument

in this respect.

{¶43} Bolen alternatively argues that the first search warrant was flawed

because the supporting affidavit was so expansive that it failed to meet the

particularity requirement under the Fourth Amendment to properly seize the

computers. Incidentally, Bolen failed to raise this particular argument regarding the

computers in his “Motion to Suppress Evidence and for Order in Limine” and now

contends the issue was preserved under a generalized statement in the motion to

suppress that “all of the evidence gathered in this case” should be suppressed.

Arguably, Bolen’s claim on appeal with respect to the computers is waived.

{¶44} Nevertheless, Bolen cites State v. Castagnola in support of this

contention that the warrant description of what was to be seized was overly broad.

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,

. However, a review of that case reveals it to be

fact specific and distinguishable from the present case. See also State v. Knoefel,

11th Dist. Lake No. No. 2014-L-088,

(noting the

limited application of Castagnola). Moreover, the record demonstrates that the

contents of the computer revealed its user was Bolen and it had “various searches

on it indicating marijuana-related questions and K2 or spice type of questions

related to that.” (Plea and Sent. Hrg. at 19). It is unclear how suppression of the

computer’s contents would affect the outcome of Bolen’s case on appeal when he

plead no contest to a second degree felony possession offense based upon the

amount of marijuana found in the home. Accordingly, we do not find that the trial

court erred in failing to suppress the results from the search of Bolen’s three

computers and we overrule Bolen’s fifth assignment of error.

Sixth Assignment of Error

{¶45} In his sixth assignment of error, Bolen claims his plea agreement is a

“nullity” based upon his allegation that his Fourth Amendment rights were violated.

Having already considered and rejected Bolen’s arguments with respect to Officer

Bell’s conduct of knocking on the ground floor window, we do not find merit in his

claim that the plea agreement is a “nullity.” Bolen also argues that the forfeiture of

the 576 Spruce Street property, the transfer of which only appears in the record as

part of the plea agreement, was improper because it was not charged in the

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indictment as required by R.C. 2941.1417 and a civil forfeiture action was not

commenced within 60 days as provided by R.C. 2981.03(F) and R.C. 2981.05.

Notably, the State did not address this argument raised by Bolen in its brief.

{¶46} Pursuant to R.C. 2981.03, a prosecutor may seek forfeiture of a seized

property by either including a forfeiture specification in the charging instrument,

R.C. 2981.04, or by filing a civil action, R.C. 2981.05, or both. State v. Hagan, 11th

Dist. Ashtabula No.2014-A-0013,

. The record in this case

contains no indication that the prosecution pursued a civil forfeiture complaint

pursuant to R.C. 2981.05, therefore, the issue raised by Bolen can only pertain to

criminal forfeiture.

{¶47} It is well recognized that forfeitures are not favored and, whenever

possible, forfeiture statutes must be construed so as to avoid a forfeiture of property.

State v. West, 8th Dist. Cuyahoga Nos. 97391 and 97900,

, citing

State v. Lilliock,

, 25–26 (1982). With regard to criminal forfeiture,

R.C. 2981.04(A)(1) describes the manner in which criminal forfeiture proceedings

are to be initiated.

Property described in division (A) of section 2981.02 of the Revised Code may be forfeited under this section only if the complaint, indictment, or information charging the offense or municipal violation, or the complaint charging the delinquent act, contains a specification of the type described in section 2941.1417 of the Revised Code that sets forth all of the following to the extent it is reasonably known at the time of the filing:

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(a) The nature and extent of the alleged offender’s or delinquent child’s interest in the property;

(b) A description of the property;

(c) If the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense.

{¶48} R.C. 2981.04(A)(1)(emphasis added).

{¶49} Section 2941.1417(A) of the Revised Code sets forth the language to

be included in a forfeiture specification contained in the charging instrument and

states:

Property is not subject to forfeiture in a criminal case unless the indictment, count in the indictment, or information charging the offense specifies, to the extent it is reasonably known at the time of filing, the nature and extent of the alleged offender's interest in the property, a description of the property, and, if the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense. The specification shall be stated at the end of the body of the indictment, count, or information and shall be in substantially the following form:

“SPECIFICATION (or SPECIFICATION TO THE FIRST COUNT). The grand jurors (or insert the person's or prosecuting attorney's name when appropriate) further find and specify that (set forth the alleged offender's interest in the property, a description of the property subject to forfeiture, and any alleged use or intended use of the property in the commission or facilitation of the offense).”

{¶50} R.C. 2941.1417(A)(emphasis added).

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{¶51} Thus, the plain and unambiguous language of R.C. 2981.04(A)(1) and

R.C. 2941.1417(A) requires the State to include a forfeiture specification in the

charging document if the State intends to pursue criminal forfeiture of the

defendant’s property.8 These statutes are designed to apprise the defendant of the

State’s reasons supporting its allegation that the property in question is subject to

criminal forfeiture. See State v. Little, 12th Dist. Butler No. CA2014-01-020, 2014-

Ohio-4756, ¶ 34, fn. 4 (“Notice * * * is a procedural requirement contained in both

R.C. 2981.04(A)(1) and (2) that must be given to the alleged offender in order to

establish the trial court’s authority to order forfeiture.”).

{¶52} Here, the record demonstrates that the State failed to include a

forfeiture specification in the indictment as required by R.C. 2981.04(A)(1). The

statute clearly indicates the legislative intent that property that is reasonably

foreseen to be subject to forfeiture may be forfeited “only if” the charging document

contains the necessary forfeiture specification under R.C. 2941.1417. Moreover,

8 We note that R.C. 2981.04(A)(2) provides an alternative method for the State to comply with the statutory notice requirement if (1) the property subject to forfeiture is not reasonably foreseen to be subject to forfeiture at the time of filing the charging instrument, and (2) the prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice to the offender under the applicable criminal rule. “In all other instances, i.e., where the property is reasonably foreseen to be subject to forfeiture, the state must comply with provisions found in R.C. 2981.04(A)(1).” State v. Little, 12th Dist. Butler No. CA2014-01-020, 2014- Ohio-4756, ¶ 31. Here, there is nothing in the record to suggest that the property at 576 Spruce Street was not reasonably foreseen by the State to be subject to forfeiture at the time of filing the charging instrument given the fact that the offenses included in the indictment were based upon conduct that occurred while utilizing the premises. Nevertheless, the record further indicates that the State did not comply with the notice requirements of R.C. 2981.04(A)(2) because it also failed to include notice of its allegation that the property was subject to forfeiture in the bill of particulars as required by the statute. See R.C. 2981.04(A)(2) citing Crim.R. 7(E).

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while the plea agreement in this case mentioned the address of the property at issue,

the record is devoid of any evidence that the State apprised Bolen of the nature and

extent of his interest in the property or the alleged use or intended use of the property

in the commission or facilitation of the offenses. Simply put, there is nothing in the

record to demonstrate that the State attempted to comply with any of the statutory

forfeiture requirements.

{¶53} In fact, the only mention of the 576 Spruce Street property in this case

is found in the “sentencing recommendation” portion of the written plea agreement,

which appears in the record as follows:

If the Defendant enters a plea of No Contest with a Consent to a Finding of Guilty to the charges as stated in the indictment, the Parties will jointly recommend to the Court that the Defendant be sentenced for Count One to a mandatory prison term of six (6) years to be served concurrently with the sentence Defendant is serving out of Wyandot County and, for Count Two, a stated prison term of eighteen (18) months, to be served concurrently with Count One for a total stated prison term of six (6) years mandatory. The Defendant further agrees to surrender the house located at 576 Spruce Street, Fostoria, Seneca County, Ohio. The parties will further recommend the Defendant pay court costs. The parties otherwise reserve the right to speak at sentencing.

(Doc. No. 57 at 3)(emphasis added).

{¶54} The trial court held the change of plea and sentencing hearings

simultaneously. After conducting the Crim. R. 11 colloquy with Bolen, Bolen

changing his plea and signing the written plea agreement, and the trial court

accepting Bolen’s plea, the trial court proceeded to sentencing. Defense Counsel

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requested that the trial court implement the agreed-upon sentencing

recommendation set forth in the negotiated plea agreement. Defense Counsel also

informed the trial court of the following transaction.

Defense Counsel: I would further indicate for the record that I have been given an executed warranty deed for the property at 576 Spruce Street and that property has been successfully surrendered to the City of Fostoria. So I, I have that in my possession.

(Dec. 7, 2015 Hrg. at 21).

{¶55} The trial court proceeded to pronounce the sentence at which point the

following exchange transpired.

Trial Court: I’m ordering that you forfeit the real estate at 576 Spruce Street, Fostoria, Seneca County, Ohio. And order that you pay court costs in this case.

***

Defense Counsel: Your Honor, may I interrupt you?

Trial Court: You may.

Defense Counsel: Are you sure that you want to put an order on to forfeit since Mr. Bolen’s already transferred? I’m just thinking about all that language from the last couple Court of Appeals cases on what’s required to go through the forfeiture.

Prosecutor: We really didn’t consider this a forfeiture, Your Honor. We consider this a surrender.

Trial Court: I will take it out.

Prosecutor: And that’s why we included it in our—

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Trial Court: Thank you, [Defense Counsel]. I will take it out. It is not—will not be in the sentencing order and I vacate that portion of what I discussed on forfeiture. All right.

Defense Counsel: Thank you, Your Honor.

(Id. at 27-28).

{¶56} In accordance with the foregoing discussion between counsel and the

trial court, there is nothing in the trial court’s judgment entry of sentence mentioning

the 576 Spruce Street property as “surrendered,” “forfeited,” or otherwise

transferred in conjunction with the disposition of this criminal case.

{¶57} In sum, because the State did not invoke the criminal forfeiture

procedure by including a specification in the indictment or subsequently providing

statutory notice in a bill of information9 and because the trial court did not include

an order effectuating the transfer of possession of Bolen’s property in connection

with this case, we find there is no order compelling the transfer of the property in

the case before us. Accordingly, we find Bolen’s arguments and assignment of error

as they pertain to an improper forfeiture are moot as there is no order of forfeiture

issued by the trial court regarding the 576 Spruce Street property for us to review.

9 Notably, some appellate courts have held that when the State failed to properly initiate criminal forfeiture proceedings pursuant to R.C. 2981.04(A), the trial court does not have the authority to order forfeiture of the property as part of its sentence. See State v. Little, 12th Dist. Butler No. CA2014-01-020,

(finding the initiation of criminal forfeiture proceedings pursuant to the statute as constituting a matter of subject-matter jurisdiction that cannot be waived). See, e.g., State v. Christian, 2d Dist. Montgomery No. 25256, 2014–Ohio–2672, ¶ 136 (finding unpersuasive the State’s argument that appellant waived the notice requirement by failing to object to the forfeiture in the trial court); see also State v. Mbodji,

, 2011–Ohio–2880, ¶ 10 (objections to subject-matter jurisdiction cannot be waived).

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{¶58} For all these reasons, the assignments of error are overruled and the

judgment is affirmed.

Judgment Affirmed

PRESTON, J., concurs.

ROGERS, J., concurring separately.

{¶59} I concur with the opinion of the majority including the result reached

on the issue of forfeiture, since there is no order to review. I write separately only

to express my concern that the tactic of surrender of property, as opposed to

forfeiture, raises concerns we cannot answer in this opinion.

{¶60} Ohio law does not favor forfeiture. State ex rel. Pizza v. Rezcallah,

(1998). Thus, forfeiture is only proper if the correct steps are

taken.

The language of R.C. 2941.1417 could not be more clear and unequivocal. ‘Property is not subject to forfeiture in a criminal case’ unless the required information is contained in the specification. R.C. 2981.04(A)(1) is equally clear.

(Emphasis added) State v. Schmidt, 3d Dist. Seneca No. 13-13-07,

(Rogers, J., dissenting), quoting R.C. 2941.1417.

Further, R.C. 2981.04(A)(1) provides, in part,

Property described in division (A) of section 2981.02 of the Revised Code may be forfeited under this section only if the complaint, indictment, or information charging the offense or municipal

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violation, or the complaint charging the delinquent act, contains a specification of the type described in section 2941.1417 of the Revised Code that sets forth all of the following to the extent it is reasonably known at the time of the filing: * * *

(Emphasis added.)

{¶61} Because the surrender takes place in the context of a criminal

prosecution, I think the terminology is mere semantics. The State appears to be

coercing a prohibited forfeiture without due process, which raises issues of ethics

and professionalism for both the prosecution and defense counsel.

/jlr

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