[Cite as State v. Diaz,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2016 CA 00113 CONCEPCION DIAZ

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2015CR01601

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 23, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO BERNARD L. HUNT PROSECUTING ATTORNEY 2395 McGinty Road, NW KRISTINE W. BEARD North Canton, Ohio 44720 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2016 CA 00113 2

Wise, J.

{¶1} Defendant-Appellant Concepcion Diaz appeals from his conviction, in the

Court of Common Pleas, Stark County, on several felony counts connected to his illegal

cultivation of marihuana. Appellee is the State of Ohio. The relevant facts leading to this

appeal are as follows.

{¶2} On October 3, 2015, one of appellant’s next-door neighbors made a

complaint to Alliance law enforcement officials that Appellant Diaz was growing

marihuana in his backyard at 130 West Vine. Officers from the Alliance Police Department

responded. They were familiar with appellant’s home based upon prior complaints of drug

activity at that location. Officer Shannon McCalla stood on the complainant's property and

observed three marihuana plants in buckets in an empty swimming pool in the back yard

of appellant’s home. The plants were protected by a wire fence. See Tr. at 4-8.

{¶3} At the time in question, appellant was inside the house with a female

companion, Sarah Jackson. After Officer McCalla had observed the plants, the officers

went up to the rear of the house. Officer Donald Bartolet, observing activity in the rear

part of the house’s interior, walked onto the back porch and knocked on a sliding glass

door. Through this door the officers observed appellant and Sarah Jackson cutting dried

marihuana and putting it in jars. The officers also observed a digital scale and other drug

paraphernalia in the kitchen. Appellant answered the door and spoke in a cooperative

manner with the officers. Appellant admitted he was growing marihuana in the backyard.

Appellant told the officers how to get through the fence and into the pool area. Tr. at 11,

14, 46. Officer McCalla thereupon entered the pool area and retrieved the three

marihuana plants. Stark County, Case No. 2016 CA 00113 3

{¶4} Appellant was nonetheless reluctant to consent to the search of his home;

accordingly, Detective Minich, who had arrived at the scene, left to obtain a search

warrant. In the meantime, appellant and Jackson were permitted to go back inside,

accompanied by the officers, to get their coats and some cigarettes. The officers secured

the property and performed a protective sweep of the house. Appellant and Jackson sat

in a police cruiser while the warrant was being obtained.

{¶5} As a result of the ensuing search of the house after the two officers returned

with the warrant, more than 3000 grams of marihuana were seized. Appellant was

arrested at the scene. On December 24, 2015, appellant was indicted on felony charges

of marihuana possession, illegal cultivation of marihuana, and trafficking in marihuana.

He thereafter entered pleas of not guilty to all charges.

{¶6} On January 28, 2016, appellant filed a motion to suppress. Appellant filed

a supplement to the suppression motion on February 17, 2016. Following a hearing, the

trial court denied the motion to suppress.

{¶7} On April 26, 2016, appellant pled no contest to and was found guilty of

possession of marihuana (R.C. 2925.11(A)(C)(3)(d)), illegal cultivation of marihuana

(R.C. 2925.04(A)(C)(5)(d), and trafficking in marihuana (R.C. 2925.03(A)(2)(C)(3)(c)).

{¶8} On April 29, 2016, appellant was sentenced to twelve months in prison for

the count of possession marihuana, twelve months for the count of illegal cultivation, and

twelve months for trafficking in marihuana. The terms were ordered to be served

concurrently. Stark County, Case No. 2016 CA 00113 4

{¶9} On June 6, 2016, appellant filed a notice of appeal, subsequently obtaining

leave from this Court for a delayed appeal. He herein raises the following two

Assignments of Error:

{¶10} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION

TO SUPPRESS.

{¶11} “II. THE TRIAL COURT ERRED WHEN IT ADMITTED HEARSAY

EVIDENCE DURING THE MOTION TO SUPPRESS HEARING.”

I.

{¶12} In his First Assignment of Error, appellant contends the trial court erred in

overruling his motion to suppress. We disagree.

{¶13} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982),

,

; State v. Williams (1993),

,

; State v. Curry

(1994),

,

; State v. Claytor (1993),

,

; State v. Guysinger (1993),

,

. The United States Supreme Court has held that “* * * as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo Stark County, Case No. 2016 CA 00113 5

on appeal.” Ornelas v. U.S. (1996),

,

,

.

Outside Property Search

{¶14} We first consider the officers’ seizure of the marihuana plants from the

empty swimming pool in appellant’s back yard.

{¶15} The Fourth Amendment to the United States Constitution protects the “right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures * * *.” This Fourth Amendment protection against

warrantless home entries extends to the curtilage of an individual's home. See United

States v. Dunn,

,

(1987).

{¶16} A warrantless search of a person's home is presumed unreasonable unless

an exception to the warrant requirement is shown. State v. Angelo, 9th Dist. Summit No.

24751,

, ¶ 10. But there are several judicially recognized exceptions to

the search warrant requirement. One of these is the “plain view” doctrine. See State v.

Akron Airport Post 8975 (1985),

,

. Under the plain

view exception, police may seize evidence in plain view during a lawful search if (1) the

seizing officer is lawfully present at the place from which the evidence can be plainly

viewed; (2) the seizing officer has a right of access to the object itself; and (3) the object's

incriminating character is immediately apparent. State v. Justice, 5th Dist. Fairfield No.

10 CA 41,

, citing Horton v. California (1990),

, 136–

37. Thus, while the plain view exception gives rise to probable cause, it does not allow an

officer to unlawfully trespass upon property to seize an item in the absence of a warrant,

consent, or some other recognized exigency. See State v. Littell,

, 21 Stark County, Case No. 2016 CA 00113

, ¶ 10 (9th Dist. Summit), citing Soldal v. Cook County, Ill.,

,

(1992); Texas v. Brown,

, 738–739,

(1983)

(plurality opinion).

{¶17} However, “[p]olice are privileged to go upon private property when in the

proper exercise of their duties.” See State v. Cook, 5th Dist. Muskingum Nos. 2010–CA–

40, 2010–CA–41,

, citing State v. Chapman (1994),

,

. Furthermore, the porch of a residence has been held to be a public

place for purposes of Fourth Amendment analysis. Id. at ¶ 66, citing State v. Swonger,

10th Dist. Franklin No. 09AP1166, 2010–Ohio–4995, ¶ 15.

{¶18} In the case sub judice, we agree with the State’s responsive argument that

appellant’s rear porch under these circumstances did not fall under the rubric of “curtilage”

for purposes of the Fourth Amendment. We note that after the uniformed officers had

seen the plants from their observation point on the neighbor’s property, they proceeded

onto the aforesaid porch and knocked on appellant’s sliding glass doors, causing

appellant to come out to speak with them. The officers advised appellant that they had

observed marihuana growing in his backyard. Appellant did not refuse to talk with the

officers at that point; he was cooperative and told the officers how to get through the wire

fence surrounding the swimming pool. One of the officers followed his directions, entered

the fenced-in area, and retrieved the marihuana plants. As such, we hold this portion of

the search in question fell under the plain view exception, buttressed by appellant’s

implicit granting of consent to search the pool area via his cooperation and his instructions

to the officers concerning the outdoor marihuana plants. Therefore, the trial court did not

err in refusing to exclude said contraband evidence obtained by the officers. Stark County, Case No. 2016 CA 00113 7

Interior Home Search

{¶19} We next consider the officers’ entry into appellant’s home and the seizure

of items therein. The United States Supreme Court has held that “ ‘[a]t the very core [of

the Fourth Amendment] stands the right of a man to retreat into his own home and there

be free from unreasonable governmental intrusion.’ ” (Brackets sic.) Payton v. New York

(1980),

, 589–590,

,

, quoting Silverman v.

United States (1961),

,

,

.

{¶20} The record of the suppression hearing indicates that appellant, despite his

earlier cooperation regarding the outdoor marihuana plants, did not wish to consent to the

officers’ entry into his house. As such, a detective left the scene to request a search

warrant. When the protective sweep of the house commenced, and while the officers were

escorting appellant and Jackson to one of the police cruisers, the aforesaid actions to

obtain a warrant were already in progress. The officers did not collect any evidence until

they had a valid search warrant to enter the home. Tr. at 42, 49, 64.

{¶21} The United States Supreme Court has held that officers who enter and seize

a home to preserve the status quo while waiting for a search warrant do not commit an

independently sanctionable violation of the Fourth Amendment, as long as they had

probable cause at the moment of entry and the seizure is not unreasonably long. See

Segura v. United States,

,

. In this instance, the officers

had seen marihuana-related activity through the glass doors on the back porch, giving Stark County, Case No. 2016 CA 00113 8

them probable cause of ongoing criminal activity in the house, and a warrant was secured

the same day before the seizure of any contraband from inside the house.1

{¶22} Under the circumstances presented, we hold any evidence taken from the

appellant’s house, pursuant to the search warrant ultimately obtained, was not seized in

violation of the Fourth Amendment. Furthermore, the search warrant was at least partially

based on information obtained independently of the seizure of the marijuana plants and

the protective sweep of the house.2 Therefore, the trial court again did not err in refusing

to exclude the interior contraband evidence obtained by the officers.

Miranda Warnings

{¶23} Appellant lastly contends that any statements he made at the scene should

have been suppressed for want of compliance with the Miranda rule. However, Crim.R.

47 states that a motion to suppress “shall state with particularity the grounds upon which

it is made.” The State's burden of proof in a motion to suppress hearing is limited to those

contentions that are asserted with sufficient particularity to place the prosecutor and court

on notice of the issues to be decided. See Johnstown v. Jugan, 5th Dist. Licking No.

95CA90,

. Failure of the defendant to adequately raise the basis of his

challenge constitutes a waiver of that issue on appeal. City of Xenia v. Wallace (1988),

, 218–219,

.

1 By comparison, in Segura, the drug evidence at issue was held admissible even though “[t]he warrant was issued and the search was performed *** some 19 hours after the agents' initial entry into the apartment.”

. 2 The State maintains the search warrant was obtained with information “wholly independently” of the seizure of the plants and the officers’ initial entry and protective sweep of the house. See State’s Brief at 12. However, Detective Minich’s search warrant affidavit, as found in the trial court file, does mention the plants as well as mason jars of marihuana observed upstairs in the house. Stark County, Case No. 2016 CA 00113 9

{¶24} Our review of appellant’s suppression motion and supplement reveals he

did not properly raise a challenge under Miranda before the trial court. There is a brief

undeveloped reference to Miranda in a final “memorandum in support” in the trial court

file; however, this document was not filed until after the suppression hearing. We

therefore invoke the doctrine of waiver as to said issue.

{¶25} Appellant's First Assignment of Error is overruled.

II.

{¶26} In his Second Assignment of Error, appellant contends the trial court erred

in admitting alleged hearsay evidence over objection during the hearing on his motion to

suppress, specifically Officer McCalla’s testimony as to the neighbor's statements, and

Officer Minich’s statements regarding information from another police department about

appellant's alleged drug activities.

{¶27} The Ohio Rules of Evidence give a trial judge broad discretion concerning

the admissibility of evidence presented at a suppression hearing. State v. Edwards, 5th

Dist. Tuscarawas No.

, 2003 AP 09 0077, ¶ 18. However, at a suppression

hearing, a trial court may rely on hearsay and other evidence, even though that evidence

would not be admissible at trial. See Maumee v. Weisner (1999),

,

, quoting United States v. Raddatz (1980),

,

,

. Stark County, Case No. 2016 CA 00113 10

{¶28} Appellant's Second Assignment of Error is therefore overruled.

{¶29} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.

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