[Cite as State v. Armstrong, 2013-Ohio-2618.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2012-P-0018 - vs - :
LEONARD J. ARMSTRONG, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas. Case No. 2011 CR 0425.
Judgment: Affirmed in part; reversed in part and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Shubhra N. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH 44224-4379 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Leonard J. Armstrong, appeals the judgment of the Portage
County Court of Common Pleas. After entering a plea of no contest to count one of the
indictment charging appellant with the offense of murder, in violation of R.C. 2903.02(A)
and R.C. 2929.02, and count two, murder, in violation of R.C. 2903.02(B) and R.C.
2929.02, appellant was sentenced to a definite term of imprisonment of life with parole eligibility after 15 years. For the following reasons, we affirm in part, reverse in part,
and remand this matter for proceedings consistent with this opinion.
{¶2} Appellant was indicted on two counts of murder, pursuant to R.C.
2903.02(A) and (B), for the death of Jeffrey Sipes. Appellant entered a plea of not guilty
by reason of insanity. Following an evaluation at the Summit Psychological Association,
the parties stipulated to the findings of the evaluation that appellant was sane and able
to stand trial. Appellant filed a motion to suppress his statements made to police on
June 16, 17, 21, and 22, 2011. Appellant also moved to suppress a black memo
notebook taken from his apartment by the police pursuant to a search warrant.
{¶3} At the hearing on the motion to suppress, the state presented the
testimony of Detective DiJerome of the City of Kent Police Department who was
assigned to the investigation of the murder of Sipes, which occurred on June 6, 2011.
Sipes was found in his apartment with multiple stab wounds. A broken kitchen knife
was also found in his apartment—the blade was found on the kitchen counter, and the
handle was found in the hallway of the apartment. DNA was found on the handle of the
knife.
{¶4} After learning that appellant had lived with Sipes and may have a key to
his apartment, Detective DiJerome ran a background check on appellant and
discovered he had a criminal history in New Jersey and Florida. Detective DiJerome
then learned the DNA on the knife had a partial hit on the CODIS database from
someone in New Jersey. Detective DiJerome, along with another officer, went to
appellant’s apartment on June 16, 2011, to speak with him regarding Sipes. Detective
2 DiJerome testified that the conversation lasted nine minutes. Detective DiJerome
stated he did not advise appellant of his rights, as he was not under arrest.
{¶5} Detective DiJerome testified that on the following day, June 17, 2011, he
and Officer Ennermoser again visited appellant’s apartment to interview him. This
interview lasted 16 minutes. Again, Detective DiJerome testified that he did not advise
appellant of his rights because he was not under arrest, “he was free to leave at any
time,” and the interview occurred at his own residence. Officer Ennermoser reiterated
that the interview was conducted at appellant’s apartment and that he was not in
custody.
{¶6} During this visit, Detective DiJerome obtained a DNA sample “because
[the officers] were checking anybody that had actually been in the apartment to try to
eliminate them.” During this conversation, Detective DiJerome learned that appellant
had stopped by Sipes’ apartment in April 2011 and had a bowl of soup, and that he had
a previous disagreement with Sipes.
{¶7} Then, on June 21, 2011, Detective DiJerome and Officer Ennermoser
again interviewed appellant; this interview lasted 14 minutes. Detective DiJerome
stated they had confirmation that appellant’s DNA was found on the knife handle found
in Sipes’ apartment. Detective DiJerome testified that when he arrived at appellant’s
apartment, he informed appellant he was not under arrest and was free to leave at any
time, but that he wanted to show appellant some pictures. Officer Ennermoser testified
that Detective DiJerome informed appellant he was not under arrest and did not have to
answer any questions.
3 {¶8} At this visit, Detective DiJerome showed appellant a picture of the knife
handle and informed appellant that his DNA was found on it. Appellant stated he should
speak with an attorney. After appellant made this statement, Detective DiJerome and
Officer Ennermoser left the apartment.
{¶9} On June 22, 2011, Detective DiJerome, along with Detective Bassett,
Officer Harris, and Officer Ennermoser, arrived at appellant’s apartment to execute a
search warrant. Detective DiJerome testified that the purpose of the search warrant
was to look for the following: “Any object or item that may contain biological evidence
(blood/DNA), including but not limited to shoes or clothing. Key(s) to apartment building
located at 933 Lawrence Drive, and keys(s) to apartment #303, located at 933
Lawrence Drive, located in the City of Kent, County of Portage, State of Ohio.”
{¶10} Appellant was home when the officers knocked on his door. Appellant
was advised he was free to leave and was not under arrest, and the officers were there
to execute a search warrant. He chose to remain on his front porch during the search of
his apartment.
{¶11} Detective DiJerome testified that during his search he opened a drawer
and found a memo book, which he knew, in his experience, could be used to conceal
items such as keys and money. He testified that he opened the memo book in search
of the key to Sipes’ apartment and any biological evidence that may have been
transferred to its pages. He observed a writing about the homicide of Sipes on the third
page. The entry stated: “Man killed in apartment. Silver Meadows. Police
Investigating. Mystery. Beware.”
4 {¶12} Officer Ennermoser, who had taken a picture of the aforementioned entry,
flipped the page. On the following page of the memo book, the entry stated: “Sir, I
awoke at 9:30 am. Tuesday morning. It was very dark and raining. I don’t know why,
then it started to dawn on a new exodus on Sunday, June 5, I did indeed kill Jeffrey
Sipes. Approximate.”
{¶13} Detective DiJerome testified that he did not look through any of the other
pages, but he took the memo book to appellant and asked if it belonged to him and if it
was his writing. Appellant confirmed both. Detective DiJerome returned to the inside of
the apartment to continue the search while Officer Ennermoser stayed with appellant on
the front porch.
{¶14} Officer Ennermoser then asked appellant if an accident occurred in Sipes’
apartment, to which appellant replied, “No.” Appellant informed Officer Ennermoser that
he did not wish to speak with her, and not replying, she remained kneeling by his side.
Appellant then began to talk about his dysfunctional family, becoming increasingly
agitated.
{¶15} At this point, Detective DiJerome joined appellant and Officer Ennermoser
on the front porch. Detective DiJerome testified that he had overheard some of this
conversation. In response to Detective DiJerome’s statement that appellant may feel
better if he just told the truth, appellant confessed to killing Sipes. Appellant was not
Mirandized until he was at the police station.
{¶16} The trial court overruled appellant’s motion to suppress. Appellant was
sentenced, and he then appealed to this court.
{¶17} As his first assignment of error, appellant states:
5 {¶18} “The trial court committed reversible error and plain error in denying
Armstrong’s motion to suppress the black memo notebook taken from his apartment.”
{¶19} An appellate court’s review of a decision on a motion to suppress involves
issues of both law and fact. State v. Burnside, 100 Ohio St. 152, 2003-Ohio-5372, ¶8.
During a suppression hearing, the trial court acts as the trier of fact and sits in the best
position to weigh the evidence and evaluate the credibility of the witnesses. Id., citing
State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, an appellate court is
required to uphold the trial court’s findings of facts, provided they are supported by
competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982).
Once an appellate court determines whether the trial court’s factual findings are
supported, the court must then engage in a de novo review of the trial court’s
application of the law to those facts. State v. Lett, 11th Dist. No. 2008-T-0116, 2009-
Ohio-2796, ¶13, citing State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201,
¶19.
{¶20} On appeal, appellant argues the search warrant did not authorize the
police officers to search his private papers or writings, and thus, the search and seizure
of the black notebook and the writings contained therein were beyond the scope of the
warrant and should be suppressed.
{¶21} Conversely, appellee maintains the search warrant authorized the officers
to search for “biological/DNA material,” and therefore, the search of the memo book was
within the scope of the search warrant.
{¶22} In evaluating a suppression motion as the trier of fact, the trial court is
required to state its essential findings of fact on the record pursuant to Crim.R. 12(F).
6 That rule states, “[w]here factual issues are involved in determining a motion, the court
shall state its essential findings on the record.” (Emphasis added.) The underlying
rationale of Crim.R. 12(F) is to allow for effective judicial review. State v. Marinacci, 5th
Dist. No. 99-CA-37, 1999 Ohio App. LEXIS 5279, *4 (Nov. 3, 1999).
{¶23} In overruling appellant’s motion to suppress, the trial court did not make
any factual findings. The trial court only stated that appellant’s motion to suppress was
without merit, and thus, the notebook and its contents may be introduced as evidence at
trial.
{¶24} A trial court’s failure to set forth the essential findings may not be fatal,
however, in the absence of defendant’s timely request or if the appellate record
provides a sufficient basis to review appellant’s assigned error. See State v. Sands,
11th Dist. No. 2006-L-171, 2007-Ohio-35, ¶35; City of Bedford v. McLeod, 7th Dist. No.
94649, 2011-Ohio-3380, ¶17; and State v. Benner, 40 Ohio St.3d 301 (1988) (“in order
to invoke the rule, the defendant must request that the court state its essential findings
of fact in support of its denial of a motion”).
{¶25} At the outset, we recognize that, although it has not been addressed by
the parties, the search warrant is so broadly stated that it is virtually limitless. It
authorizes a search for a key to the victim’s apartment and also for biological
evidence/DNA. The search warrant does not specify whose DNA, but it must be
assumed it is the DNA of the victim, because the officers had previously taken
appellant’s DNA sample. There is, however, no indication why the officers had probable
cause to believe the victim’s DNA was in appellant’s apartment; the only reference to
blood was that appellant’s DNA was found on the broken knife in the victim’s apartment.
7 The search for the victim’s DNA in appellant’s apartment appears strikingly overbroad.
It is fairly common knowledge that DNA is prevalent; it is microscopic. This broad
permission, without any stated probable cause that would lead one to believe some
particular bit of DNA was present, may have given the officers impermissibly broad
authority to conduct this search. If the search was intended to seek blood, it should
have simply been limited to that specific type of DNA.
{¶26} There can be few things more private, and therefore more protected from
unwarranted intrusion, than one’s private notebook. According to the testimony at the
suppression hearing, the notebook may have been a place to hide a key and/or it may
have plausibly contained DNA evidence. The testimony, however, reveals no
justification to believe the victim’s DNA was inside the notebook or, specifically, what
type of DNA the notebook may have contained. Further, even if the notebook was a
place to conceal a key, it does not warrant a page-by-page perusal of the book.
Additionally, the testimony at the suppression hearing reveals that Detective DiJerome
was not only searching for biological evidence or a key but “anything else that may be
pertinent.” A search warrant should not give an officer carte blanche authority to search
appellant’s apartment. The items to be located and seized pursuant to a search warrant
must be identified with sufficient particularity.
{¶27} At the hearing, Officer Ennermoser testified that Detective DiJerome came
across a “small notebook and he happene[d] to show me a page that has a writing in
it[.]” Officer Ennermoser makes it clear she read the notebook because of the
“interesting journal article”—not because of the search for DNA or a key, as stated in
8 the warrant; she flipped the page and read the next entry of appellant’s notebook which
was appellant’s confession.
{¶28} The dissent justifies the trial court’s ruling by stating that “once seized, the
incriminating contents of the notebook [fall] under the plain view doctrine.” The
dissent’s discussion regarding the “incriminating statements” found in the notebook
does not properly apply to those exceptions that have developed to eliminate the
necessity of a warrant. The dissent suggests the Fourth Amendment permits the officer
to seize evidence under the search warrant but then concludes, paradoxically, that there
must be an exception to the warrant requirement to read the notebook. However, the
plain view exception to the requirement of a warrant is not applicable.
{¶29} Under [the plain view] doctrine, if police are lawfully in a position
from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of
access to the object, they may seize it without a warrant. If,
however, the police lack probable cause to believe that an object in
plain view is contraband without conducting some further search of
the object – i.e., if ‘its incriminating character [is not] “immediately
apparent,”’ Horton, supra, at 136 – the plain-view doctrine cannot
justify its seizure. Arizona v. Hicks, 480 U.S. 321, 94 L. Ed. 2d 347,
107 S. Ct. 1149 (1987).” Minn. v. Dickerson, 508 U.S. 366, 375
(1993).
{¶30} The seizure here was not contraband. It was evidence in the form of a
writing that could have been attributed to appellant. This was not within the scope of
9 the search warrant. The trial court, therefore, erred in overruling appellant’s motion to
suppress the black memo notebook found in appellant’s apartment.
{¶31} Appellant’s first assignment of error has merit.
{¶32} Appellant’s second assignment of error states:
{¶33} “The trial court committed reversible and plain error in denying
Armstrong’s motion to suppress his statements to the police.”
{¶34} Appellant argues he was entitled to be advised of the Miranda warnings,
as he was in custody. Appellant argues his statements were not voluntarily made.
Appellant cites that two officers arrived at his home on June 16 and 17, 2011, and that
these officers knew appellant’s DNA matched the DNA on the knife found at the murder
scene.
{¶35} Statements obtained during the custodial interrogation of a
defendant are not admissible at trial unless the police have used
procedural safeguards to secure the defendant’s Fifth Amendment
right against self-incrimination and Sixth Amendment right to
representation. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86
S. Ct. 1602, 16 L. Ed. 2d 694. ‘Only custodial interrogation triggers
the need for Miranda warnings.’ State v. Lynch, 98 Ohio St.3d 514,
2003-Ohio-2284, at ¶47 (emphasis sic); State v. Biros, 78 Ohio
St.3d 426, 440. ‘Custodial interrogation’ means ‘questioning
initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any
significant way.’ Miranda, 384 U.S. at 444.
10 {¶36} There are two aspects to the issue of whether a person is ‘in
custody’ for the purposes of Miranda. Thompson v. Keohane
(1995), 516 U.S. 99, 112. ‘[F]irst, what were the circumstances
surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave.’ Id. (footnote
omitted); Berkemer v. McCarty (1984), 468 U.S. 420, 442,
(determination of whether a suspect was in custody at a particular
time requires an inquiry into ‘how a reasonable man in the
suspect’s position would have understood his situation’). In order
for custodial interrogation to occur, there must be ‘a “formal arrest
or restraint on freedom of movement” of the degree associated with
a formal arrest.’ California v. Beheler (1983), 463 U.S. 1121, 1125,
quoting Oregon v. Mathiason (1977), 429 U.S. 492, 495. An
‘objective test’ is applied in making this determination. Thompson,
516 U.S. at 112. A ‘determination of custody depends on the
objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person
being questioned.’ Stansbury v. California (1994), 511 U.S. 318,
323.
{¶37} * * *
{¶38} The Due Process Clause of the Fourteenth Amendment’s
guarantee that no State shall ‘deprive any person of life, liberty, or
11 property, without due process of law’ condemns the use of coercive
police conduct that renders a confession involuntary. See, e.g.,
Miller v. Fenton (1985), 474 U.S. 104, 109-110, 106 S. Ct. 445, 88
L. Ed. 2d 405, and the cases cited therein. ‘In deciding whether a
defendant’s confession is involuntarily induced, the court should
consider the totality of the circumstances, including the age,
mentality, and prior criminal experience of the accused; the length,
intensity, and frequency of interrogation; the existence of physical
deprivation or mistreatment; and the existence of threat or
inducement.’ State v. Edwards (1976), 49 Ohio St.2d 31, 358
N.E.2d 1051, paragraph two of the syllabus; State v. Clark (1988),
38 Ohio St.3d 252, 261, 527 N.E.2d 844 (‘[w]hile voluntary waiver
and voluntary confession are separate issues, the same test is
used to determine both, i.e., whether the action was voluntary
under the totality of the circumstances’). In re J.C., 11th Dist. No.
2011-G-3017, 2011-Ohio-5864, ¶74-78.
{¶39} With respect to the interview of June 16, 2011, the record demonstrates
appellant was questioned in his apartment. During the questioning, appellant was
advised that he was not under arrest, he was free to leave, and he was not required to
answer the officers’ questions. Although appellant argues he was not advised of his
Miranda warnings, he was not subject to a custodial interrogation, for it is well
established that, under Miranda, the Fifth Amendment right to counsel does not vest
until a defendant is in custody. See Edwards v. Arizona, 451 U.S. 477, 484 (1981)
12 (“when an accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised
of his rights”). (Emphasis added.) See also McNeil v. Wisconsin, 501 U.S. 171, 182, fn.
3 (1991). (The Supreme Court of the United States stated: “We have in fact never held
that a person can invoke his Miranda rights anticipatorily, in a context other than
‘custodial interrogation.’ * * * If the Miranda right to counsel can be invoked at a
preliminary hearing, it could be argued, there is no logical reason why it could not be
invoked by a letter prior to arrest, or indeed even prior to identification as a suspect.”
(Emphasis added.))
{¶40} Similarly, the June 17, 2011 interview occurred at appellant’s apartment.
Again, appellant was advised that he was not under arrest, he was free to leave, and he
was not required to answer the officers’ questions. During the questioning, appellant
stated that “maybe he should speak to an attorney.” Although the officers attempted to
continue to question appellant, he “shut down” and the questioning ceased.
{¶41} On June 21, 2011, the officers again went to appellant’s apartment. At
this encounter, the officers informed appellant that his DNA was on the knife handle
found in Sipes’ apartment. The officers informed appellant that he was not under arrest,
he was free to leave at any time, and he did not have to answer any questions. The
officers then proceeded to show appellant pictures of the knife’s handle. Appellant
stated he should speak with an attorney. After appellant made this statement, the
officers left the apartment. Although the trial court did not enter written findings of fact
or conclusions of law with respect to the June 21, 2011 encounter, it appears the court
13 did not suppress any statements made by appellant to the officers because appellant
was not in custody.
{¶42} On June 22, 2011, the officers arrived at appellant’s apartment to execute
a search warrant. The officers informed appellant that he was free to leave during the
execution of the warrant. Appellant, however, chose to remain on the front porch.
{¶43} After reading the pages of the notebook found in appellant’s apartment,
which contained appellant’s confession to the murder of Sipes, the officers confronted
appellant. Detective DiJerome approached appellant on the front porch and asked
appellant, “is this your notebook?” Appellant responded, “yes.” Detective DiJerome
then asked appellant, “is this your writing?” Appellant responded, “yes, it is.” As we
held the reading and seizing of the notebook was unlawful, all statements relating to the
notebook are to be suppressed as they are considered “fruits” of the officers’ unlawful
seizure of the notebook. Wong Sun v. United States, 371 U.S. 471, 482 (1963) (“Nor do
the policies underlying the exclusionary rule invite any logical distinction between
physical and verbal evidence.”)
{¶44} After questioning appellant regarding the notebook, Detective DiJerome
returned into the apartment to continue his search while appellant remained on the
porch with Officer Ennermoser. The record reveals that during his conversations with
Officer Ennermoser, appellant requested an attorney and stated that he did not wish to
speak. Officer Ennermoser testified that after each break in conversation, she informed
appellant that it was his right not to speak. Appellant, without prompting by Officer
Ennermoser, spoke of his dysfunctional family and his dealings with Sipes. At this
14 point, Detective DiJerome made the statement that appellant may feel better if he just
told the truth. Appellant then confessed to killing Sipes.
{¶45} Here, appellant’s statements were not prompted by questioning initiated
by law enforcement officers. The record reveals no evidence of coercive or
overreaching police conduct. Appellant did not make this admission regarding the
killing of Sipes in response to any question by the police. Because appellant was not
subject to a custodial interrogation on June 22, 2011, he was not subject to Miranda.
Therefore, other than the statements related to the writing in his journal, appellant’s
statements should not be suppressed.
{¶46} Appellant’s second assignment of error has merit to the extent indicated.
{¶47} Based on our disposition of appellant’s first and second assignments of
error, we find appellant’s third, fourth, and fifth assignments of error, all related to
sentencing issues, moot.
{¶48} This case is remanded to the trial court for further proceedings consistent
with this opinion. On remand, the trial court must proceed from the point at which the
error occurred. See, e.g., State v. Clark, 1st Dist. No. C-920603, 1993 Ohio App. LEXIS
4926 (Sept. 8, 1993).
{¶49} Based on the opinion of this court, the judgment of the Portage County
Court of Common Pleas is hereby affirmed in part, reversed in part, and remanded.
CYNTHIA WESTCOTT RICE, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
____________________
15 DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶50} I dissent and would affirm the decision of the trial court, both with respect
to the validity of the search warrant and the suppression of Armstrong’s confession.
{¶51} “In search and seizure cases where a warrant is involved, the requisite
specificity necessary therein usually varies with the nature of the items to be seized.”
State v. Benner, 40 Ohio St.3d 301, 307, 533 N.E.2d 701 (1988). “[T]he key inquiry is
whether the warrants could reasonably have described the items more precisely than
they did.” Id.; State v. Hale, 2nd Dist. No. 23582, 2010-Ohio-2389, ¶ 71 (a broad
description of items to be searched or seized is “valid if it ‘is as specific as
circumstances and nature of the activity under investigation permit’ and enables the
searchers to identify what they are authorized to seize”) (citations omitted).
{¶52} In the present case, the warrant authorized the search and/or seizure of
“[a]ny object or item that may contain biological evidence (blood/DNA), including but not
limited to shoes or clothing” and “[k]ey(s) to apartment building located at 933 Lawrence
Drive.” As the accompanying affidavit makes clear, Armstrong’s DNA had been found
on the murder weapon at the victim’s apartment, and so it would be reasonable to
believe that items containing the victim’s blood/DNA might be found in Armstrong’s
apartment. It would be impossible for police officers to specifically identify all possible
objects that might carry evidence of the victim’s blood/DNA, although the warrant
identifies the two most likely sources of such evidence - shoes and clothing.
{¶53} Contrary to the majority’s position, neither the law nor the circumstances
of the present case demand greater specificity. In Benner, the Ohio Supreme Court
approved a warrant “authorizing the search of [the defendant’s] houses and his truck for
16 ‘fibers and hairs and other trace evidence for comparison.’” Benner at 307. The court
acknowledged that the language was “very broad,” but concluded that the warrant
“placed a meaningful restriction on the executing officers, viz., they could only seize
those items that could be sources of fibers and hairs.” Id. Similarly, in the present
case, the officers could only seize items that contained the victim’s blood/DNA; items
such as furniture or electronically stored data did not come within the warrant’s scope.
{¶54} As to the discovery of the notebook, Detective DiJerome testified:
{¶55} During the search, I open a drawer and I found a memo book, and
in my experience sometimes people conceal items; keys, money,
whatever, in these types of notebooks. I flip open the notebook
looking for any biological evidence, maybe something that might
have been transferred in there, looking for the key and I see a
writing in there about the homicide of Mr. Sipes.
{¶56} Detective DiJerome’s testimony, which is not contradicted or impeached,
demonstrates the propriety of seizing the notebook as possibly concealing the key to
the victim’s apartment and/or biological evidence linking Armstrong to the victim.
Compare State v. Mansfield, 9th Dist. No. 06CA0022-M, 2007-Ohio-333, ¶ 21 (seizure
of a notebook was permissible where the warrant “only allowed seizure of ‘[a]ny type of
pornography depicting child pornography, videos, pictures and magazines’”).
{¶57} The majority faults Detective DiJerome for not specifying “what type of
DNA the notebook may have contained.” Supra at ¶ 26. Justification for seizure of the
notebook does not require testimony specifying what type of DNA Detective DiJerome
expected to find. The notebook may have belonged to Sipes or contained a key or
17 some other property from Sipes’ apartment, thus linking Armstrong to the murder. The
type of DNA the evidence might carry is a matter properly for forensics.
{¶58} Once seized, the incriminating contents of the notebook fell under the
plain view doctrine. State v. Williams, 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978),
paragraph one of the syllabus (“[i]n order for evidence to be seized under the plain view
exception to the search warrant requirement it must be shown that (1) the initial
intrusion which afforded the authorities the plain view was lawful; (2) the discovery of
the evidence was inadvertent; and (3) the incriminating nature of the evidence was
immediately apparent to the seizing authorities”).
{¶59} The majority is perplexed by the necessity of a warrant to seize the
notebook as well as an exception to the warrant-requirement to read the notebook.
There is no contradiction. The issue is whether the police were lawfully in a position to
view the contents of Armstrong’s notebook. The search warrant authorized the police to
search Armstrong’s apartment for DNA evidence linking Armstrong to Sipes’ murder
and/or a key to Sipes’ apartment. Detective DiJerome testified that he examined the
notebook looking for biological evidence and/or a key, which, in his experience, may be
concealed in such a notebook. While looking for the key, he noticed the writings about
Sipes’ murder. Since the writings about Sipes’ murder did not fall within the warrant’s
scope, Detective DiJerome could only proceed if, as was the case, the incriminating
nature of the writings was apparent.
{¶60} Contrary to the majority’s position, the plain view doctrine does properly
apply in these circumstances.
18 {¶61} [The] cases make clear that when conditions justify an agent in
examining a ledger, notebook, journal, or similar item, he or she
may briefly peruse writing contained therein. See also United
States v. Chesher, 678 F.2d 1353, 1356-57 n.2 (9th Cir.1982);
United States v. Ochs, 595 F.2d 1247, 1256-59 & n.8 (2d Cir.), cert.
denied, 444 U.S. 955, 100 S. Ct. 435, 62 L. Ed. 2d 328 (1979). The
justification may arise from “a ‘reasonable suspicion’ to believe that
the discovered item is evidence,” Wright, 667 F.2d [793,] 798 (9th
Cir.1982)], as in Hillyard, Wysong, and Damitz; or it may arise from
the authority conferred by a warrant to search for certain items
which might reasonably be expected to be found within such a
book, as here. In either case, the plain view doctrine would permit
brief perusal of the book’s contents and, consequently, its seizure if
such perusal gives the examining agent probable cause to believe
that the book constitutes evidence.
{¶62} United States v. Issacs, 708 F.2d 1365, 1370 (9th Cir.1983); State v.
Sautter, 6th Dist. No. L-88-324, 1989 Ohio App. LEXIS 3101, *16-17 (Aug. 11, 1989)
(“[a] number of courts * * * have upheld * * * the seizure of documents during an
otherwise valid search as in ‘plain view’ notwithstanding the fact that some perusal,
generally fairly brief, of the documents was clearly necessary in order for the police to
perceive the relevance of the documents to crime”) (citation omitted).
{¶63} For the foregoing reasons, I respectfully dissent and would affirm the
decision of the court below.