[Cite as State v. Binkley, 2013-Ohio-3695.]
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- : : BRUCE ALLEN BINKLEY : Case No. 2013CA00014 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012CR1343(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO EUGENE O'BYRNE Prosecuting Attorney 101 Central Plaza South Suite 500 By: RONALD MARK CALDWELL Canton, OH 44702 110 Central Plaza South Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2013CA00014 2
Farmer, P.J.
{¶1} On October 2, 2012, the Stark County Grand Jury indicted appellant,
Bruce Allen Binkley, on one count of illegal manufacture of drugs in violation of R.C.
2925.04 and one count of illegal possession of chemicals for the manufacture of drugs
in violation of R.C. 2925.041. Said charges arose after police officers discovered
certain items in appellant's vehicle which was parked at the residence of David and
Susan Ashworth. Mr. Ashworth was in the process of making repairs to the vehicle.
After Mr. Ashworth opened the trunk, police officers discovered items used to
manufacture methamphetamine.
{¶2} On October 31, 2012, appellant filed a motion to suppress, claiming an
illegal search and seizure. A hearing was held on November 7, 2012. By judgment
entry filed November 8, 2012, the trial court denied the motion. Appellant filed a motion
to reconsider on December 10, 2012. A hearing was held on January 2, 2013. The trial
court did not change its previous ruling.
{¶3} On January 9, 2013, appellant pled no contest to the charges. By
judgment entry filed January 16, 2013, the trial court found appellant guilty and
sentenced him to an aggregate term of four years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
TO SUPPRESS EVIDENCE IN VIOLATION OF HIS RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH Stark County, Case No. 2013CA00014 3
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
14 OF THE OHIO CONSTITUTION."
{¶6} Appellant claims the trial court erred in denying his motion to suppress.
We disagree.
{¶7} 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 findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this 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
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "... as a general matter Stark County, Case No. 2013CA00014 4
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶8} Appellant argues the police did not have a reason to conduct a
warrantless search of his vehicle. As explained by our brethren from the Sixth District in
State v. Washington, 6th Dist. Lucas No. L-09-1186, 2010-Ohio-2580, ¶ 10:
However, certain exigent circumstances allow warrantless
searches. For instance, a warrantless search may be permitted by the
court when there is imminent danger evidence will be lost or destroyed if a
search is not imminently conducted. Cupp v. Murphy (1973), 412 U.S.
291, 294-296. In the case of the automobile, a warrantless search may be
permitted because of the inherent mobility of the vehicle if there is a risk
the evidence would be lost or destroyed without an immediate search.
South Dakota v. Opperman (1976), 428 U.S. 364, 367. In addition, a
warrantless search may be permitted if necessary to protect or preserve
life in the face of an immediate emergency. State v. Price (1999), 134
Ohio App.3d 464, 468. Finally, a warrantless search may be permitted if
the contraband is in clear view of the officer. Thompson v. Louisiana
(1984), 469 U.S. 17.
{¶9} During the first hearing, the trial court found the "plain view" exception to a
warrant applied (November 7, 2012 T. at 47-48): Stark County, Case No. 2013CA00014 5
Nevertheless, upon approaching that vehicle they did in plain view
see a peroxide bottle utilized with regard to Meth operations from the
experience of the officer.
That, plus the prior information he had relative to the Defendant
and the Defendant's operation in and of itself without regard to whether or
not the Ashworths opened the trunk with a key at whose direction, that in
and of itself, the viewing of what was in the vehicle and the prior
information they had with regard to the Defendant would give probable
cause to search that vehicle and the trunk of that vehicle.
{¶10} During the second hearing on the motion to reconsider, the trial court
heard additional testimony and concluded the following (January 2, 2013 T. at 28):
Well, whatever the reasons, the Court is satisfied with the testimony
of the additional hearing that's been provided to you. The officer has
testified, he's re-testified under oath. He did, in fact, observe this
infamous peroxide bottle in plain view.
There is no changes from the Court's previous decision. Motion to
Suppress stands as overruled and will continue to be overruled.
{¶11} The focus of the second hearing was the credibility of the testifying officer,
Alliance Police Detective Bob Rajcan. Appellant argues because his vehicle was up on
jacks, it was not possible for Detective Rajcan to observe the peroxide bottle in plain Stark County, Case No. 2013CA00014 6
view. Appellant supported his argument by pointing out that the bottle was not
documented on the property sheet.
{¶12} In Harris v. United States, 390 U.S. 234
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[Cite as State v. Binkley, 2013-Ohio-3695.]
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- : : BRUCE ALLEN BINKLEY : Case No. 2013CA00014 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012CR1343(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO EUGENE O'BYRNE Prosecuting Attorney 101 Central Plaza South Suite 500 By: RONALD MARK CALDWELL Canton, OH 44702 110 Central Plaza South Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2013CA00014 2
Farmer, P.J.
{¶1} On October 2, 2012, the Stark County Grand Jury indicted appellant,
Bruce Allen Binkley, on one count of illegal manufacture of drugs in violation of R.C.
2925.04 and one count of illegal possession of chemicals for the manufacture of drugs
in violation of R.C. 2925.041. Said charges arose after police officers discovered
certain items in appellant's vehicle which was parked at the residence of David and
Susan Ashworth. Mr. Ashworth was in the process of making repairs to the vehicle.
After Mr. Ashworth opened the trunk, police officers discovered items used to
manufacture methamphetamine.
{¶2} On October 31, 2012, appellant filed a motion to suppress, claiming an
illegal search and seizure. A hearing was held on November 7, 2012. By judgment
entry filed November 8, 2012, the trial court denied the motion. Appellant filed a motion
to reconsider on December 10, 2012. A hearing was held on January 2, 2013. The trial
court did not change its previous ruling.
{¶3} On January 9, 2013, appellant pled no contest to the charges. By
judgment entry filed January 16, 2013, the trial court found appellant guilty and
sentenced him to an aggregate term of four years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION
TO SUPPRESS EVIDENCE IN VIOLATION OF HIS RIGHT AGAINST
UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH Stark County, Case No. 2013CA00014 3
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
14 OF THE OHIO CONSTITUTION."
{¶6} Appellant claims the trial court erred in denying his motion to suppress.
We disagree.
{¶7} 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 findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this 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
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "... as a general matter Stark County, Case No. 2013CA00014 4
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶8} Appellant argues the police did not have a reason to conduct a
warrantless search of his vehicle. As explained by our brethren from the Sixth District in
State v. Washington, 6th Dist. Lucas No. L-09-1186, 2010-Ohio-2580, ¶ 10:
However, certain exigent circumstances allow warrantless
searches. For instance, a warrantless search may be permitted by the
court when there is imminent danger evidence will be lost or destroyed if a
search is not imminently conducted. Cupp v. Murphy (1973), 412 U.S.
291, 294-296. In the case of the automobile, a warrantless search may be
permitted because of the inherent mobility of the vehicle if there is a risk
the evidence would be lost or destroyed without an immediate search.
South Dakota v. Opperman (1976), 428 U.S. 364, 367. In addition, a
warrantless search may be permitted if necessary to protect or preserve
life in the face of an immediate emergency. State v. Price (1999), 134
Ohio App.3d 464, 468. Finally, a warrantless search may be permitted if
the contraband is in clear view of the officer. Thompson v. Louisiana
(1984), 469 U.S. 17.
{¶9} During the first hearing, the trial court found the "plain view" exception to a
warrant applied (November 7, 2012 T. at 47-48): Stark County, Case No. 2013CA00014 5
Nevertheless, upon approaching that vehicle they did in plain view
see a peroxide bottle utilized with regard to Meth operations from the
experience of the officer.
That, plus the prior information he had relative to the Defendant
and the Defendant's operation in and of itself without regard to whether or
not the Ashworths opened the trunk with a key at whose direction, that in
and of itself, the viewing of what was in the vehicle and the prior
information they had with regard to the Defendant would give probable
cause to search that vehicle and the trunk of that vehicle.
{¶10} During the second hearing on the motion to reconsider, the trial court
heard additional testimony and concluded the following (January 2, 2013 T. at 28):
Well, whatever the reasons, the Court is satisfied with the testimony
of the additional hearing that's been provided to you. The officer has
testified, he's re-testified under oath. He did, in fact, observe this
infamous peroxide bottle in plain view.
There is no changes from the Court's previous decision. Motion to
Suppress stands as overruled and will continue to be overruled.
{¶11} The focus of the second hearing was the credibility of the testifying officer,
Alliance Police Detective Bob Rajcan. Appellant argues because his vehicle was up on
jacks, it was not possible for Detective Rajcan to observe the peroxide bottle in plain Stark County, Case No. 2013CA00014 6
view. Appellant supported his argument by pointing out that the bottle was not
documented on the property sheet.
{¶12} In Harris v. United States, 390 U.S. 234, 236 (1968), the United States
Supreme Court held "it has long been settled that objects falling in plain view of an
officer who has a right to be in the position to have that view are subject to seizure and
may be introduced in evidence." In Texas v. Brown, 460 U.S. 730, 738 (1983), then
Justice Rehnquist explained the plain view doctrine does not set limitations on "open
view" sightings:
"***objects such as weapons or contraband found in a public place
may be seized by the police without a warrant. The seizure of property in
plain view involves no invasion of privacy and is presumptively
reasonable, assuming there is probable cause to associate the property
with criminal activity." A different situation is presented, however, when
the property in open view is "situated on private premises to which access
is not otherwise available for the seizing officer."***"[P]lain view" provides
grounds for seizure of an item when an officer's access to an object has
some prior justification under the Fourth Amendment. (Citations omitted.)
{¶13} In Katz, Ohio Arrest, Search and Seizure, Section 13.01, at 214 (1997
Ed.), a two part test is set forth that must be met to justify a plain view search and
seizure: the "intrusion affording the plain view must be lawful" and the "incriminating
nature of the evidence must be immediately apparent to the seizing authority." Stark County, Case No. 2013CA00014 7
{¶14} During an investigation of appellant relating to the manufacture of
methamphetamine, Detective Rajcan conducted a follow-up interview with David and
Susan Ashworth. November 7, 2012 T. at 6-7. As the interview concluded, Mr.
Ashworth asked Detective Rajcan to check appellant's vehicle which was in his
driveway up on jacks as he was going to replace the fuel pump. Id. at 7-8. Mr.
Ashworth was concerned about items in the vehicle that could explode. Id. at 9.
Detective Rajcan explained he could not "just go ahead and go in [appellant's] vehicle,
but he could check himself while we were there." Id. Mr. Ashworth decided to open the
vehicle and check himself. Id. at 10. As Mr. Ashworth retrieved the keys, Detective
Rajcan walked up to the vehicle, looked into the passenger window, and observed a
plastic bottle of peroxide "which is a precursor used in manufacturing Meth." Id. Mr.
Ashworth unlocked the vehicle and opened the trunk. Id. A strong odor of fumes came
from the vehicle. Id. Large garbage bag were found therein with "different things
sticking out," containing items generally associated with the manufacture of
methamphetamine. Id. at 10-11.
{¶15} During the second hearing, Detective Rajcan gave a reasonable
explanation for the omission of the peroxide bottle from the property sheet (January 2,
2013 T. at 18-19):
I didn't think it was an issue or I would have documented it very
thoroughly if I thought the plain view was an issue. The fact of the matter
is, I wasn't searching this car. I got stopped as I was leaving. I ended up
taking voluntary statements stating that they stopped me and did this for a Stark County, Case No. 2013CA00014 8
safety reason. I didn't think plain view was even going to be an issue. I
never - - that never even came to my mind whatsoever that plain view was
even going to be an issue in this case whatsoever or I would have
documented it thoroughly in that case.
{¶16} After two hearings on the matter, the trial court resolved the credibility
issue of Detective Rajcan's observation of the peroxide bottle in plain view in the state's
favor. We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).
The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶17} Clearly Detective Rajcan's presence on the property in and around the
vehicle was lawful as the resident, Mr. Ashworth, asked him to remain on the property
for safety reasons as he checked the vehicle, and Detective Rajcan was aware that
peroxide was a "precursor used in manufacturing Meth." Accepting Detective Rajcan's
testimony as true, the item was in plain view. Given this plain view observation with
Detective Rajcan's knowledge about the owner of the vehicle and his suspected
involvement in the manufacture of methamphetamine, we find the trial court did not err
in denying appellant's motion to suppress.
{¶18} The sole assignment of error is denied. Stark County, Case No. 2013CA00014 9
{¶19} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Baldwin, J. concur.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. John W. Wise
_______________________________ Hon. Craig R. Baldwin
SGF/sg 85 [Cite as State v. Binkley, 2013-Ohio-3695.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : BRUCE ALLEN BINKLEY : : Defendant-Appellant : CASE NO. 2013CA00014
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.