[Cite as State v. Burroughs, 2020-Ohio-4417.]
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
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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
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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).
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{¶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, 2019-Ohio-5002, ¶ 11, fn. 1; State v. Sweeney, 8th Dist. Cuyahoga No. 97414, 2012-Ohio-3152, ¶ 9; State v. Anderson, 11th Dist. Geauga No. 2003-G-2540, 2004-Ohio-3192, ¶ 3, fn. 3.
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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, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 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.
Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (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
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¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (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. Id.,
citing State v. McNamara, 124 Ohio App.3d 706 (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, 2014-Ohio-3105, ¶ 15, quoting Smith v. Maryland, 442 U.S. 735, 740,
99 S.Ct. 2577 (1979). See also State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-
27, 2012-Ohio-2358, ¶ 12. “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 Smith at 740, quoting Katz
v. United States, 389 U.S. 347, 361, 88 S.Ct. 507 (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.’” Id., quoting Wong Sun v. United States, 371 U.S. 471, 488, 83
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S.Ct. 407 (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, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961) and
Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (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, 462 U.S. 696, 701, 103 S. Ct. 2637 (1983); State v. Yost, 5th
Dist. Perry No. 18-CA-00024, 2019-Ohio-5446, ¶ 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,
2017-Ohio-262, ¶ 16, citing State v. Angelo, 9th Dist. Summit No. 24751, 2009-
Ohio-6966, ¶ 10. “At a suppression hearing, the State bears the burden of
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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, 37 Ohio St.3d 216
(1988), paragraph two of the syllabus, State v. Kessler, 53 Ohio St.2d 204, 207
(1978), and Maumee v. Weisner, 87 Ohio St.3d 295, 297 (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, 112 Ohio St.3d 451,
2007-Ohio-373, ¶ 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,
2017-Ohio-1315, ¶ 29, citing State v. Bazrawi, 10th Dist. Franklin No. 12AP-1043,
2013-Ohio-3015, ¶ 32, citing Horton v. California, 496 U.S. 128, 136, 110 S.Ct.
2301 (1990) and State v. Williams, 55 Ohio St.2d 82, 84 (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
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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.) Id., quoting Bazrawi at ¶ 32, quoting State v. Alihassan, 10th Dist. Franklin
No. 11AP-578, 2012-Ohio-825, ¶ 11, citing Horton at 136-137.
{¶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, 2018-Ohio-4530, ¶ 23, 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, 2012-Ohio-4968, ¶ 25, citing State v. Halczyszak, 25 Ohio
St.3d 301, 304 (1986) and Texas v. Brown, 460 U.S. 730, 741-742, 103 S.Ct. 1535
(1983). See also State v. Holmes, 3d Dist. Allen No. 1-18-52, 2019-Ohio-2485, ¶
46. “‘In ascertaining the required probable cause to satisfy the “immediately
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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, 569 U.S. 1, 8, 133 S.Ct. 1409 (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, 460 U.S. at 749-750 (Stevens, J., concurring) (noting “that the
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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, 2015 WL 8785381, *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, 2014-Ohio-4396, ¶ 26 (“Many a closed container is
accessible; opening it requires justification.”), citing United States v. Chadwick, 433
U.S. 1, 14-15, 97 S.Ct. 2476 (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, 2017-Ohio-5708, ¶ 21, quoting United States v.
Williams, 41 F.3d 192, 197 (4th Cir.1994), citing United States v. Jacobsen, 466
U.S. 109, 114, 104 S.Ct. 1652 (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
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a closed container but not the warrantless search of its contents that are not visible
to law enforcement), and United States v. Corral, 970 F.2d 719, 725 (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, 1991 WL 254061, *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, 462 U.S. 696, 701, 103 S.Ct.
2637 (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, 496 U.S. at 141, fn. 11, and citing United States v. Donnes, 947 F.2d 1430,
1436-1437 (10th Cir.1991). See also State v. Telthorster, 5th Dist. Licking No.
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97CA87, 1997 WL 973456, *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, 433 U.S. at 13. “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.” Id., 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.’” Id.,
quoting Katz, 389 U.S. at 351and Chadwick at 11.
{¶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 Jacobsen at 114; Brown at 749-751 (Stevens, J., concurring), and Corral
at 725. 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.’” Donnes at 1437, quoting Arkansas v. Sanders, 442
U.S. 753, 99 S.Ct. 2586 (1979), abrogated on other grounds, California v. Acevedo,
500 U.S. 565, 111 S.Ct. 1982 (1991), and citing Robbins v. California, 453 U.S.
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420, 101 S.Ct. 2841 (1981), overruled on other grounds, United States v. Ross, 456
U.S. 798, 102 S.Ct. 2157 (1982). See also United States v. Miller, 769 F.2d 554,
556-560 (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, 2019-Ohio-2485, at ¶ 51, quoting Donnes at
1437, quoting Robbins at 427, and Sanders at 764, fn. 13. 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, 41
F.3d at 198 (“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.’” Holmes at ¶ 51,
quoting Corral at 725. 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.” Corral at 725-726, citing Brown at 751, fn. 5 (Stevens, J.,
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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 Miller at 556-557. 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.” Id., citing Miller at 556-557.
{¶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, 524 F.3d 809, 813 (7th Cir. 2008) (noting that what constitutes a package
that proclaims its contents “is an issue that has divided the circuits”). Compare
Miller at 560 (“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,
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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, 1997 WL 973456, 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, 904 F.2d 1149, 1155-1156 (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 Sanders at 764, fn.
13, Jacobsen at 119, Brown at 750-751, (Stevens, J., concurring); Miller, at 560,
and United States v. Eschweiler, 745 F.2d 435, 440 (7th Cir.1984).
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{¶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
Telthorster at *5. See also Wehr, 2014-Ohio-4396, at ¶ 28. But see State v. Wise,
6th Dist. Huron No. H-06-038, 2007-Ohio-3113, ¶ 20 (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
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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, 398 F.3d 802,
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812 (6th Cir.2005) (noting that “courts have imputed collective knowledge about
criminal investigations to law enforcement officials”), citing Collins v. Nagle, 892
F.2d 489, 495 (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, 544 F.2d 242, 260 (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, 160 F.3d 1078, 1087 (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.
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{¶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, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8; Carter, 72 Ohio St.3d
at 552. 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).
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{¶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, 2014-Ohio-1964, ¶ 20
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(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.
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, 41 F.3d 192, 196 (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
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is incriminating on its face.” Id. citing Horton v. California, 496 U.S. 128, 136–37,
110 S.Ct. 2301, 110 L.Ed.2d 112 (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, 2017-Ohio-5708, ¶ 21 citing Katz Ohio Arrest, Search and Seizure
(1997 Ed.) 214, Section 13.01 at 221, citing U.S. v. Williams, 41 F.3d 192 (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
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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, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (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, 466 U.S. 109, 114, 104 S.Ct.
1652, 80 L.Ed.2d 85 (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, 494 U.S. 541, 110
S.Ct. 1288, 108 L.Ed.2d 464 (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
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seizure of the property, pending issuance of a warrant to examine its contents[.]”
U.S. v. Place, 462 U.S. 696, 701, 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, 460 U.S. 730, 103 S.Ct. 1535, 75
L.Ed.2d 502 (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.
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