[Cite as State v. Burroughs,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-19-91

v.

KENNEDY M. BURROUGHS, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 19-CR-205

Judgment Affirmed

Date of Decision: September 14, 2020

APPEARANCES:

Sheena Bateman-Carothers for Appellant

Nathan Heiser for Appellee Case No. 9-19-91

ZIMMERMAN, J.

{¶1} Defendant-appellant, Kennedy M. Burroughs (“Burroughs”), appeals

the November 26, 2019 judgment entry of sentence the Marion County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} This case stems from the January 27, 2019 execution of a warrant for

Burroughs’s arrest for a misdemeanor-obstruction offense by Officer Chris Coburn

(“Officer Coburn”)—along with two additional officers—of the Marion Police

Department at Burroughs’s residence in Marion. (Aug. 6, 2019 Tr. at 3-4, 16).

When law enforcement arrived at Burroughs’s residence, Officer Coburn informed

Burroughs that “she had a warrant and then she shut the door and locked it.” (Id. at

4). After Burroughs closed and locked the door, Officer Coburn “looked to the

window and saw her grabbing a bunch of plastic baggies and running to the back of

the house.” (Id. at 5). However, Officer Coburn did not know what was in the

baggies. (Id. at 17).

{¶3} Thereafter, law enforcement entered the residence and Officer Coburn

found Burroughs (with only her phone in her hand) and a juvenile in a bedroom—

the portion of the house to which he saw Burroughs retreat with the plastic baggies.

(Id. at 6). (See also State’s Ex. A). Suspecting that Burroughs may have destroyed

evidence, Officer Coburn “went into the bathroom that was attached to [the room in

which he found Burroughs] and [he] checked the toilet, and it didn’t look like it was

-2- Case No. 9-19-91

flushed. [He] checked the back of the toilet, and there was nothing in there.” (Aug.

6, 2019 Tr. at 6). While inspecting the toilet, Officer Coburn saw a “zipped” (or

closed) bookbag with “a plastic baggie hanging out of it” sitting next to the toilet in

the bathroom. (Id. at 6, 11). However, he could not see what was in the plastic

baggie and “[n]othing else about that bag showed that there was contraband or

weapons or anything in that bag * * * .” (Id. at 20-21). Officer Coburn also saw in

plain view “a bunch of marijuana shake and roaches” next to the bed in the bedroom

in which he found Burroughs. (Id. at 11).

{¶4} Officer Coburn executed the warrant and arrested Burroughs. (Id. at

21). He then escorted her and the juvenile to the living room prior to transferring

Burroughs to a police cruiser, and waited “for Lieutenant [Mark] Elliott

[(“Lieutenant Elliott”)] to get there and kind of take over on the decision making.”

(Id. at 13, 21-22). The residence was secure prior to Lieutenant Elliott’s arrival.

(Id. at 23).

{¶5} After Lieutenant Elliott arrived at the residence, he detected an odor of

marijuana in the residence and observed “marijuana shake in areas of the house.”

(Id. at 47). Lieutenant Elliott asked Officer Coburn where the bathroom was

located, then went to the bathroom (without going to any other portion of the

residence) to conduct a “sweep” for officer safety. (Id. at 62, 64). (See also id. at

73-74). He “saw the bag laying on the floor. [He] saw plastic baggies hanging out

-3- Case No. 9-19-91

of it. Looked in it to make sure there was no kind of weapon or anything that could

hurt [them] and moved on.” (Id. at 46). Lieutenant Elliott saw “[p]ieces of plastic

baggies” hanging out of the bookbag but could not see what was inside the plastic

baggies. (Id. at 53).

{¶6} According to Lieutenant Elliott, the other officers at the scene (prior to

his arrival to the residence) relayed to him by radio that Burroughs “shut the door

in their face” when they informed her that they were there to serve the arrest warrant

and “said they saw her running to the back of the house to dispose of evidence.”

(Id. at 46). However, Lieutenant Elliott could not recall (prior to him opening the

bookbag) whether he knew that Burroughs was collecting the plastic baggies when

Officer Coburn saw her run to the back of the residence. (Id. at 46-47).

{¶7} Likewise, Lieutenant Elliott did not see “anything in a plastic baggie

before [opening the bookbag] in the house”—he only suspected that contraband

might be found in the bookbag; however, his main purpose for searching the

bookbag was to search for weapons. (Id. at 49, 53-54, 59). When Lieutenant Elliott

opened the bookbag, he discovered marijuana. (Id. at 14, 46). Because he did not

find any weapons, Lieutenant Elliott abandoned the bookbag and left the scene

while the other law enforcement officers looked for additional drug evidence in the

residence, finding “marijuana edibles next to the bed.” (Id. at 15, 48).

-4- Case No. 9-19-91

{¶8} On May 15, 2019, the Marion County Grand Jury indicted Burroughs

on one count of possession of marijuana in violation of R.C. 2925.11(A), (C)(3), a

fifth-degree felony. (Doc. No. 1). Burroughs appeared for arraignment on May 20,

2019 and entered a plea of not guilty. (Doc. No. 4).

{¶9} On July 19, 2019, Burroughs filed a motion to suppress evidence,

alleging that law enforcement unlawfully searched the bookbag and a green cup

found in the bathroom of her residence. (Doc. No. 16). The State filed a

memorandum in opposition to Burroughs’s motion to suppress evidence on August

6, 2019. (Doc. No. 21). After a suppression hearing on August 6, 2019, the trial

court on August 15, 2019 denied Burroughs’s motion to suppress evidence after

concluding that law enforcement had “a lawful basis to open the bookbag since it

was found in plain view and because he had probable cause to conclude that it

contained contraband.”1 (Doc. No. 22).

{¶10} On September 23, 2019, Burroughs withdrew her plea of not guilty

and entered a plea of no contest to possessing marijuana. (Doc. No. 24). The trial

court accepted Burroughs’s no-contest plea and found her guilty. (Doc. Nos. 24,

27); (Sept, 23, 2019 Tr. at 16). On November 25, 2019, the trial court sentenced

1 Although the trial court did not rule on the lawfulness of law enforcement’s search of the green cup, we presume that the trial court denied suppression of any evidence obtained from law enforcement’s search of the green cup. See State v. Barnhart, 6th Dist. Erie No. E-18-046,

; State v. Sweeney, 8th Dist. Cuyahoga No. 97414,

; State v. Anderson, 11th Dist. Geauga No. 2003-G-2540,

.

-5- Case No. 9-19-91

Burroughs to two years of community control. (Doc. No. 27); (Nov. 25, 2019 Tr.

at 4). The trial court filed its judgment entry of sentence on November 26, 2019.

(Doc. No. 27).

{¶11} On December 26, 2019, Burroughs filed a notice of appeal, and raises

one assignment of error for our review. (Doc. No. 28).

Assignment of Error

The Trial Court Erred In Denying Defendant, Appellant’s Motion to Suppress Evidence.

{¶12} In her sole assignment of error, Burroughs argues that the trial court

erred by denying her motion to suppress evidence. Specifically, Burroughs argues

that law enforcement’s search and seizure of the bookbag found in her bathroom

was conducted without a warrant and not pursuant to any exception to the warrant

requirement of the Fourth Amendment.

Standard of Review

{¶13} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside,

,

,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of witnesses.

See also State v. Carter,

(1995). When reviewing a

ruling on a motion to suppress, “an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Burnside at

-6- Case No. 9-19-91

¶ 8, citing State v. Fanning,

(1982). With respect to the trial court’s

conclusions of law, however, our standard of review is de novo, and we must

independently determine whether the facts satisfy the applicable legal standard.

citing State v. McNamara,

(4th Dist. 1997).

Analysis

{¶14} “The Fourth Amendment to the United States Constitution, as applied

to the states through the Fourteenth Amendment, and Ohio Constitution, Article I,

Section 14, protects individuals against ‘unreasonable searches and seizures’ by the

government and protects privacy interests where an individual has a reasonable

expectation of privacy.” State v. Fielding, 10th Dist. Franklin Nos. 13AP-654 and

13AP-655,

, quoting Smith v. Maryland,

,

(1979). See also State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-

27,

. “An expectation of privacy is protected by the Fourth

Amendment where (1) an individual has exhibited a subjective expectation of

privacy, and (2) that expectation of privacy is one that ‘society is prepared to

recognize as “reasonable.”’” Fielding at ¶ 15, quoting

, quoting Katz

v. United States,

,

(1967) (Harlan, J., concurring).

“Generally, any evidence obtained in violation of the Fourth Amendment, as well

as any evidence seized subsequent to such violation, must be suppressed as ‘fruit of

the poisonous tree.’”

quoting Wong Sun v. United States,

, 83

-7- Case No. 9-19-

(1963). See also State v. Jenkins, 3d Dist. Union No. 14-10-10, 2010-

Ohio-5943, ¶ 9 (The Fourth Amendment does not explicitly provide “that violations

of its provisions against unlawful searches and seizures will result in the suppression

of evidence obtained as a result of such violation, but the United States Supreme

Court has held that the exclusion of evidence is an essential part of the Fourth

Amendment.”), citing Mapp v. Ohio,

,

(1961) and

Weeks v. United States,

,

(1914).

{¶15} Warrantless searches and seizures of person’s home and personal

property are presumed unreasonable unless an exception to the warrant requirement

is shown. See State v. Jackson, 12th Dist. Madison No. CA2019-03-006, 2020-

Ohio-2677, ¶ 19 (“Warrantless seizures of personal property are generally

considered unreasonable under the Fourth Amendment unless there is probable

cause to believe the property is or contains contraband or evidence of a crime and

the seizure falls within an established exception to the warrant requirement.”), citing

United States v. Place,

,

(1983); State v. Yost, 5th

Dist. Perry No. 18-CA-00024,

, ¶ 23 (“A warrantless search of a

person’s home is presumed unreasonable unless an exception to the warrant

requirement is shown.”), citing State v. Diaz, 5th Dist. Stark No. 2016 CA 00113,

, citing State v. Angelo, 9th Dist. Summit No. 24751, 2009-

Ohio-6966, ¶ 10. “At a suppression hearing, the State bears the burden of

-8- Case No. 9-19-91

establishing that a warrantless search and seizure falls within one of the exceptions

to the warrant requirement, and that it meets Fourth Amendment standards of

reasonableness.” Steinbrunner at ¶ 12, citing Xenia v. Wallace,

(1988), paragraph two of the syllabus, State v. Kessler,

(1978), and Maumee v. Weisner,

(1999).

{¶16} In this case, the trial court concluded that law enforcement’s search

and seizure of the bookbag were lawfully conducted under the plain-view exception

to the search-warrant requirement. “The plain view doctrine represents the

requirement that an individual must protect his or her privacy, and should an officer

observe items in plain view from a place where the officer is entitled to be, no

warrant is required.” Jackson at ¶ 19, citing State v. Buzzard,

,

, ¶ 16. Thus, “[i]t is well established that law enforcement officers

do not need a search warrant to seize incriminating evidence discovered in a place

where they have a right to be under the plain-view exception to the search-warrant

requirement.” (Emphasis added.) State v. Parsons, 3d Dist. Henry No. 7-16-08,

, citing State v. Bazrawi, 10th Dist. Franklin No. 12AP-1043,

, ¶ 32, citing Horton v. California,

,

(1990) and State v. Williams,

(1978). “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

-9- Case No. 9-19-91

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.”’” (Emphasis

added.)

quoting Bazrawi at ¶ 32, quoting State v. Alihassan, 10th Dist. Franklin

No. 11AP-578,

, ¶ 11, citing

.

{¶17} “Under the first prong, “[t]he plain-view exception permits a law

enforcement officer to seize clearly incriminating contraband only when it is

discovered in a place where the officer has a right to be.” (Emphasis added.) State

v. Garrett, 2d Dist. Montgomery No. 27630,

, quoiting

Alihassan at ¶ 20. The second prong of the plain-view analysis “requires this court

to determine whether the officers had a lawful right of access to the evidence

discovered in plain view.” Id. at ¶ 33.

{¶18} Finally, under the last prong of the plain-view analysis, “it must be

determined whether the incriminating nature of the evidence observed by the

officers was immediately apparent.” Id. at ¶ 30. “‘An object’s incriminating nature

is immediately apparent when a police officer has probable cause to believe the item

is associated with criminal activity.’” Id., quoting State v. Bales, 2d Dist.

Montgomery No. 24897,

, citing State v. Halczyszak,

(1986) and Texas v. Brown,

,

(1983). See also State v. Holmes, 3d Dist. Allen No. 1-18-52,

. “‘In ascertaining the required probable cause to satisfy the “immediately

-10- Case No. 9-19-91

apparent” requirement, police officers may rely on their specialized knowledge,

training and experience.’” Holmes at ¶ 46, quoting Halczyszak at paragraph four of

the syllabus. “The criminal character of an object may be immediately apparent

because of the nature of the article and the circumstances in which it is discovered.”

Garrett at ¶ 30, quoting State v. Olden, 2d Dist. Montgomery No. 23137, 2010-

Ohio-215, ¶ 29, citing State v. Dunson, 2d Dist. Montgomery No. 22219, 2007-

Ohio-6681, ¶ 24.

{¶19} In this case, Burroughs does not dispute that law enforcement were

lawfully present in her residence when Officer Coburn (followed by Lieutenant

Elliott) observed the bookbag in plain view or that law enforcement had a lawful

right of access to the bookbag. (Appellant’s Brief at 9-10). See Garrett at ¶ 23,

citing Florida v. Jardines,

,

(2013). See also R.C.

2935.12. Rather, Burroughs challenges the trial court’s conclusion that the criminal

character of the bookbag was immediately apparent. However, even if we assume

without deciding that law enforcement had probable cause to believe that the

bookbag was associated with criminal activity—that is, that the criminal character

of the bookbag was immediately apparent—that conclusion supports only law

enforcement’s authority to seize the bookbag under the plain-view exception based

on the facts presented by this case—not the authority to search the bookbag. See

Brown,

(Stevens, J., concurring) (noting “that the

-11- Case No. 9-19-91

constitutionality of a container search is not automatically determined by the

constitutionality of the prior seizure” and that “[s]eparate inquiries are necessary,

taking into account the separate interests at stake”); United States v. Fore, W.D.N.C.

No. 1:15cr06,

, *8 (Sept. 18, 2015) (“Moreover, even where the

seizure of a container is warranted under the plain view doctrine, the doctrine may

not allow officers to actually search that container.”). See also State v. Wehr, 5th

Dist. Richland No. 14CA46,

(“Many a closed container is

accessible; opening it requires justification.”), citing United States v. Chadwick,

,

(1977).

{¶20} “‘[A]lthough the plain view doctrine may support the warrantless

seizure of a container believed to contain contraband, any subsequent search of its

concealed contents must either be accompanied by a search warrant or justified by

one of the [other] exceptions to the warrant requirement.’” State v. Johnson, 7th

Dist. Jefferson No. 15 JE 0020,

, quoting United States v.

Williams,

(4th Cir. 1994), citing United States v. Jacobsen,

,

(1984) (noting that “[e]ven when government agents

may lawfully seize * * * a package to protect loss or destruction of suspected

contraband, the Fourth Amendment requires that they obtain a warrant before

examining the contents of such a package”), Brown at 749-751 (Stevens, J.,

concurring) (stating that the plain-view doctrine supports the warrantless seizure of

-12- Case No. 9-19-91

a closed container but not the warrantless search of its contents that are not visible

to law enforcement), and United States v. Corral,

(10th Cir. 1992)

(“In cases involving closed containers * * * the plain view doctrine may support the

warrantless seizure of a container believed to contain contraband but any subsequent

search of the concealed contents of the container must be accompanied by a warrant

or justified by one of the exceptions to the warrant requirement.”). See also State v.

Hamm, 6th Dist. Huron No. H-90-37,

, *3 (Nov. 15, 1991) (“The

general rule regarding searches of closed containers is, where an officer has

probable cause to believe that a closed container contains contraband, the Fourth

Amendment permits seizure of the container pending issuance of a warrant to search

it, if exigent circumstances or some other recognized exception to the warrant

requirement is present.”), citing United States v. Place,

,

(1983); Katz, Ohio Arrest, Search and Seizure, Section 15:6, at 387 (2015).

“Courts have drawn a distinction between the plain view seizure of a container and

the subsequent search of that container, because its seizure under the plain view

doctrine ‘does not compromise the interest in preserving the privacy of its

contents,’” while its search does.” Johnson at ¶ 21, quoting Williams at 197, quoting

Horton,

, and citing United States v. Donnes,

(10th Cir. 1991). See also State v. Telthorster, 5th Dist. Licking No.

-13- Case No. 9-19-91

97CA87,

, *4 (Dec. 24, 1997) (noting that “once seized,” “the next

issue becomes whether * * * the container may be opened without a warrant”).

{¶21} Indeed, “[i]t is well established that an individual has a heightened

expectation of privacy in the contents of a closed container.” Johnson at ¶ 21, citing

Chadwick,

. “Luggage, handbags, paper bags, and other containers

are common repositories for one’s papers and effects, and the protection of these

items from state intrusion lies at the heart of the Fourth Amendment.”

citing

the Fourth Amendment to the U.S. Constitution. “By placing his [or her]

possessions inside a container, an individual manifests an intent that his possessions

be ‘preserve[d] as private,’ and thus kept ‘free from public examination.’”

quoting Katz, 389 U.S. at 351and

.

{¶22} One recognized exception to the warrant requirement which permits

law enforcement to search a closed container (which is lawfully seized under the

plain-view exception) is the single-purpose container exception. See Williams at

197, citing

; Brown at 749-751 (Stevens, J., concurring), and

. A single-purpose container is a container that “‘by [its] very nature cannot

support any reasonable expectation of privacy because [its] contents can be inferred

from [its] outward appearance.’”

, quoting Arkansas v. Sanders,

,

(1979), abrogated on other grounds, California v. Acevedo,

,

(1991), and citing Robbins v. California, 453 U.S.

-14- Case No. 9-19-91

420,

(1981), overruled on other grounds, United States v. Ross,

,

(1982). See also United States v. Miller,

(9th Cir. 1985). That is, “‘when a container is “not closed,” or

“transparent,” or when its “distinctive configuration * * * proclaims its contents,”

the container supports no reasonable expectation of privacy and the contents can be

said to be in plain view.’” Holmes,

, quoting

, quoting

, and

. See Johnson at ¶ 21 (“If

an object is in a closed container, the object ‘is not in plain view and the container

may not be opened unless the packing gives away the contents.’”), quoting Katz,

Ohio Arrest, Search and Seizure, Section 13:01, at 221 (1997), citing Williams,

(“When a container has been legally seized, and its contents are a

foregone conclusion, we hold that a subsequent search of the container is lawful

under the plain view container doctrine.”). “Hence, ‘where the contents of a seized

container are a foregone conclusion, [the] prohibition against warrantless searches

of containers under the plain view doctrine does not apply.’”

,

quoting

. In other words, “where the police already possess knowledge

approaching certainty as to the contents of the container, the search of the container

does not unreasonably infringe upon the individual interest in preserving the privacy

of those contents.”

, citing Brown at 751, fn. 5 (Stevens, J.,

-15- Case No. 9-19-91

concurring) (“[I]n evaluating whether a person’s privacy interests are infringed,

‘virtual certainty’ is a more meaningful indicator than visibility.”).

{¶23} Furthermore, “[u]nderstood best, the single-purpose container

exception is an outgrowth of the plain view doctrine subject to the same

requirements.” Armstrong, Single-Purpose Containers: The Circuit Split Presents

A Battle Between Values As Disparate As Gen. & Specific Warrants, 51

Hous.L.Rev. 1115, 1130 (2014), citing

. That is, in addition to

being identified as a single-purpose container, “[t]he officer who encounters a

package must lawfully be in the location where it is found, the officer must have a

lawful right to access the package, and the criminal nature of the package’s contents

must be immediately apparent.”

citing

.

{¶24} Although the single-purpose container exception is widely recognized,

there is a split between jurisdictions as to its application. See United States v.

Tejada,

(7th Cir. 2008) (noting that what constitutes a package

that proclaims its contents “is an issue that has divided the circuits”). Compare

(“Law enforcement officers should not be permitted under the single-

purpose container rule set out in Sanders footnote 13 to conduct warrantless

searches of containers that, though unrevealing in appearance, are discovered under

circumstances supporting a strong showing of probable cause.”) with Williams at

197 (“In determining whether the contents of a container are a foregone conclusion,

-16- Case No. 9-19-91

the circumstances under which an officer finds the container may add to the apparent

nature of its contents.”). See also Lucier, You Can Judge A Container by Its Cover:

The Single-Purpose Container Exception & the Fourth Amendment, 76

U.Chi.L.Rev. 1809, 1819-1824 (2009); Armstrong, Single-Purpose Containers at

1131-1139.

{¶25} We agree with the jurisdictions that conclude that the determination

regarding whether a container constitutes a single-purpose container should be

based on the facts and circumstances surrounding the discovery of the container.

See Telthorster,

, at *5 (applying “all the circumstances

surrounding the seizure of the tied-off piece of plastic, the training and experience

of the officers, and the uniqueness of the container” to determine whether a

container may be searched under the single-purpose container exception); United

States v. Cardona-Rivera,

(7th Cir. 1990) (“Several

Justices—almost certainly a majority—believe however that if the shape or other

characteristics of the container, taken together with the circumstances in which it is

seized (from a suspected drug dealer, or a harmless old lady?), proclaim its contents

unambiguously, there is no need to obtain a warrant.”), citing

,

, Brown at 750-751, (Stevens, J., concurring); Miller, at 560,

and United States v. Eschweiler,

(7th Cir. 1984).

-17- Case No. 9-19-91

{¶26} Accordingly, based on our review of the specific facts and

circumstances of this case, we conclude that law enforcement was authorized to

search the bookbag under the single-purpose container exception. At the

suppression hearing, the State presented evidence that (based on the totality of the

circumstances) it was a foregone conclusion to law enforcement that the bookbag

contained contraband. That is, the circumstances under which the bookbag was

discovered (coupled with the knowledge and experience of the law enforcement

officers who observed the bookbag) not only proclaimed its contents but rendered

the criminal nature of the contents of the bookbag immediately apparent. See

. See also Wehr,

. But see State v. Wise,

6th Dist. Huron No. H-06-038,

(concluding that law

enforcement was not authorized to search a backpack even though law enforcement

“may have been extremely confident that the backpack contained marijuana”).

{¶27} Specifically, Officer Coburn testified at the suppression hearing that

Burroughs closed and locked the door after he informed her that he was present to

serve a warrant for her arrest. Officer Coburn then saw Burroughs grab “a bunch of

plastic baggies” and retreat “to the back of the house”. (Aug. 6, 2019 Tr. at 5). He

testified (based on his training and experience) that he believed that the baggies

“looked like things that people keep drugs in” and he feared that she “was going to

flush drugs” because she was “moving around and running to the back, as if she was

-18- Case No. 9-19-91

in a hurry to get rid of something * * * .” (Id. at 5-6). So Officer Coburn breached

Burroughs’s door and “found her in the back-left room where [he] saw her run to,”

then he “went into the bathroom that was attached to that room” where he saw the

bookbag with “a plastic baggie hanging out of it” which resembled the plastic

baggies he saw Burroughs with prior to his entry into the residence. (Id. at 6-7).

Importantly, Officer Coburn further observed marijuana next to the bed in the

bedroom in which Burroughs was located.

{¶28} Likewise, Lieutenant Elliott observed that “[b]aggies [were] hanging

out of” the bookbag prior to his search of the bookbag. (Id. at 49). (See also id. at

46). Drawing on his 17 years of training and experience, Lieutenant Elliott testified

that he thought that the bookbag was “[l]ikely used to store drugs” based on his

observation of the plastic baggies protruding from the bookbag as well has his

detection of the odor of marijuana in the residence as well as marijuana shake on

the table. (Id.). Specifically, Lieutenant Elliott testified (based on his training and

experience) that the discovery of marijuana and plastic baggies in the residence was

indicative that narcotics were being packaged in the house. (Id. at 44).

{¶29} Therefore, based on the collective knowledge of law enforcement at

the time Lieutenant Elliott searched the bookbag, we conclude that the contents of

the bookbag were not only a foregone conclusion but that the criminal nature of the

contents was also immediately apparent. See United States v. Yoon,

,

-19- Case No. 9-19-91

812 (6th Cir. 2005) (noting that “courts have imputed collective knowledge about

criminal investigations to law enforcement officials”), citing Collins v. Nagle,

(6th Cir. 1989) (noting that “[m]any circuits, including our own, have

determined that probable cause may be established from the collective knowledge

of the police rather than solely from the officer who actually made the arrest”) and

United States v. Woods,

(6th Cir. 1976) (describing the collective

knowledge theory as imputing mutual knowledge to “a group of agents in close

communication with one another [who] determine[ ] that it is proper to arrest an

individual”); United States v. Walker,

(6th Cir. 1998). Thus,

law enforcement’s warrantless search of the bookbag was permissible under the

single-purpose container exception under the totality of the circumstances present

in this case.

{¶30} Notwithstanding the quantum of evidence establishing the bookbag as

a single-purpose container (based on the specific facts and circumstances of this

case), Burroughs further argues that the trial court’s findings that (1) “the baggies

were like other baggies that contained drugs”; (2) “the bookbag contained the same

baggies [Burroughs] was seen grabbing off the table”; and (3) “multiple baggies

were hanging out of the bookbag, prior to its search” are not supported by

competent, credible evidence. (Appellant’s Brief at 5-7). Burroughs’s challenges

to the trial court’s factual findings are without merit.

-20- Case No. 9-19-91

{¶31} First, Burroughs contends that the trial court’s factual findings that

“the baggies were like other baggies that contained drugs” and that “the bookbag

contained the same baggies [Burroughs] was seen grabbing off the table” are not

supported by competent, credible evidence because Officer Coburn testified that he

did not know what was in the baggies or provide any “descriptive evidence in the

form of shape, color, etc., to warrant him forming the conclusion it was the same

baggie he saw in [Burroughs’s] possession earlier.” (Appellant’s Brief at 5-7).

Despite Officer Coburn’s testimony that he did not know what was in the baggies

and the absence of any descriptive testimony, Officer Coburn testified (based on his

training and experience) that he thought that the baggies “looked like things that

people keep drugs in” and that the plastic baggie that he saw protruding from the

bookbag resembled the plastic baggies he saw Burroughs collect as she retreated to

the rear of the residence. (Aug. 6, 2019 Tr. at 5-7). Since the trial court is in the

best position to evaluate the credibility of witnesses, it was within the province of

the trial court to find Officer Coburn’s description of the plastic baggies credible.

See Burnside,

,

, at ¶ 8; Carter,

. Therefore, we reject Burroughs’s arguments challenging the trial court’s

factual findings that “the baggies were like other baggies that contained drugs” and

that “the bookbag contained the same baggies [Burroughs] was seen grabbing off

the table.” (Appellant’s Brief at 5, 7).

-21- Case No. 9-19-91

{¶32} Next, Burroughs’s contends that the trial court’s finding that law

enforcement observed “multiple baggies were hanging out of the bookbag, prior to

its search” is not supported by competent, credible evidence because Officer Coburn

testified that he saw only “a plastic baggie hanging out of” the bookbag. (Aug. 6,

2019 Tr. at 6, 19-20). However, even though Officer Coburn recalled seeing a single

baggie protruding from the bookbag, Lieutenant Elliott (as we noted above) recalled

seeing “plastic baggies” protruding from the bookbag prior to his search of it.

(Emphasis added.) (Id. at 49). (See also id. at 46). Notwithstanding this

contradiction, whether there was a single or multiple plastic baggies protruding from

the bookbag, our conclusion that the totality of the circumstances surrounding law

enforcement’s discovery of the bookbag permitted its search under the single-

purpose container exception is not altered. Importantly, the trial court’s factual

finding that some amount of plastic baggies (similar to the plastic baggies that

Burroughs was seen collecting as she was retreating to the rear of the residence)

were observed protruding from the bookbag is supported by competent, credible

evidence. Accordingly, Burroughs’s argument is specious.

{¶33} For these reasons, the trial court did not err by denying Burroughs’s

motion to suppress evidence obtained from its warrantless search and seizure of the

bookbag (albeit for a different reason than stated in the trial court’s decision). See

State v. Holland, 10th Dist. Franklin No. 13AP-790,

, ¶ 20

-22- Case No. 9-19-91

(affirming the trial court’s denial of Holland’s motion to suppress evidence “for a

different reason than stated in the trial court’s decision”). Thus, Burroughs’s

assignment of error is overruled.

{¶34} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J., concurs.

/jlr

WILLAMOWSKI, J., dissents.

{¶35} Having reviewed the record, I respectfully dissent from the majority’s

determination that the single purpose exception applied in this case. The

determination as to whether a plain view exception to a warrant applies is reviewed

de novo. U.S. V. Williams,

(4th Cir. 1994). “The following three

conditions must be satisfied in order to justify the warrantless seizure of an item

under the plain view doctrine: (1) the seizing officer must be lawfully present at the

place from which he can plainly view the evidence; (2) the officer has a lawful right

of access to the object itself; and (3) it is immediately apparent that the item seized

-23- Case No. 9-19-91

is incriminating on its face.”

citing Horton v. California,

, 136–37,

,

(1990).

{¶36} In this case, it was not the search of the baggies, but the search of the

bookbag that is in question, as that was the closed container. “If an object is in a

closed container, the object ‘is not in plain view and the container may not be opened

unless the packing gives away the contents.’ ” State v. Johnson, 7th Dist. Jefferson

No. 15 JE 0020,

, ¶ 21 citing Katz Ohio Arrest, Search and Seizure

(1997 Ed.) 214, Section 13.01 at 221, citing U.S. v. Williams,

(4th Cir.

1994). The bookbag was not opaque, was closed, and the officers did not know

what it contained. All of the testimony indicates that although the officers suspected

that the baggie partially sticking out of the bookbag contained drugs, which were

not within plain view, they did not know what was in the bookbag. Thus, the

criminal nature of the bookbag was not readily apparent.

{¶37} Additionally, the officers still needed the legal right to look inside the

bookbag in the first place. Lieutenant Elliott testified that he opened the bookbag

to search for weapons for the purpose of officer safety. However, at the time the

bag was initially opened, the suspect was in the police car in handcuffs and the house

had been secured. The bag was not accessible by anyone. Thus there simply was

no legally proper reason to search the bag for weapons. Officer Coburn even

testified that he did not open the bookbag when he saw it while Burroughs was still

-24- Case No. 9-19-91

in the home because he believed they would need a search warrant to do so. Tr. 26-

27, 36-37.

{¶38} The trial court in this case found that the bookbag “may have been

evidence of a crime, contraband, or otherwise subject to seizure.” Doc. 22. The

trial court based this upon the holding of the U.S. Supreme Court in Arizona v.

Hicks,

,

,

(1987). However, the facts in

Hicks were about the manipulation of an object to see a serial number, not the

opening of a closed container. The Court held that the officer violated the Fourth

Amendment by turning the object to view the serial number despite the fact that the

item was in plain view because the officer lacked probable cause to do so. Even in

situations where officers may reasonably seize a sealed package to prevent the

destruction of evidence, the Fourth Amendment requires the officers to obtain a

warrant prior to opening the item. U.S. v. Jacobsen,

,

,

(1984). The Supreme Court has held that although the Fourth

Amendment permits a detention of property, the search of that property requires a

“judicial warrant issued upon probable cause.” Smith v. Ohio,

,

,

(1990). “Where law enforcement authorities have

probable cause to believe that a container holds contraband or evidence of a crime,

but have not secured a warrant, the Court has interpreted the Amendment to permit

-25- Case No. 9-19-91

seizure of the property, pending issuance of a warrant to examine its contents[.]”

U.S. v. Place,

, 103 S.Ct.2637, 77 LE. 2d 110 (1983).

{¶39} Based upon the facts of this case, the officers did have probable cause

to obtain a search warrant for the bookbag. The proper course of action in this case

would have been for the officers to seize the bookbag as suspicious and then obtain

a warrant to open it, as was noted by the majority. Unfortunately in this case, the

officers chose to forego the warrant and just proceed with the warrantless search.

Officer Coburn admitted that they did not have the consent of anyone to search the

bookbag. Tr. 35. There were no exigent circumstances nor any other warrant

exception that existed to permit this. Although the bookbag was in plain view, the

contents were not and the contents were not readily apparent. No warrant was

needed to seize the closed container in plain view. However a warrant was required

to search the closed package. Texas v. Brown,

,

,

(1983). That was not done in this case. Thus, I would have granted the

motion to suppress as to the contents of the bookbag. For these reasons, I

respectfully dissent.

-26-