State v. Fawcett

2020 Ohio 1004

• Court: Ohio Court of Appeals
• Decided: March 12, 2020
• Docket: 19CA000027
• Status: Published

Opinion

[Cite as State v. Fawcett, 2020-Ohio-1004.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : KEVIN R. FAWCETT, JR. : Case No. 19CA000027 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 18CR07-0210

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 12, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. MCCONVILLE KEVIN J. GALL Knox County Prosecutor DalSanto & Gall, LLC 117 East High Street, Suite 234 33 West Main Street. Suite 109 Mount Vernon, Ohio 43050 Newark, Ohio 43055 Knox County, Case No. 19CA000027 2

Baldwin, J.

{¶1} Defendant-appellant Kevin Fawcett, Jr. appeals from the denial by the Knox

County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 2, 2018, the Knox County Grand Jury indicted appellant on one

count of carrying concealed weapons in violation of R.C. 2923.12(A)(1), a misdemeanor

of the first degree, and one count of aggravated possession of drugs in violation of R.C.

2925.11(A), a felony of the second degree. The indictment also contained a forfeiture

specification. At his arraignment on July 3, 2018, appellant entered a plea of not guilty to

the charges.

{¶3} Appellant, on January 25, 2019, filed a Motion to Suppress, arguing that the

search of appellant’s vehicle was illegal because it was conducted without a warrant or

probable cause. A hearing on the motion was held on March 14, 2019.

{¶4} Detective Jessica Butler of the Mount Vernon Police Department testified

that on June 17, 2018, she was working as a drug interdiction officer and had specialized

training in drug investigations. On June 17, 2018, she was on duty and was in uniform

driving a marked police department vehicle. Detective Butler testified that at

approximately 8:23 p.m., she observed appellant drive past her driving a red Honda. She

testified that a few months before, she had issued appellant a citation for driving under

suspension and ran him through LEADS. She then learned that appellant’s license was

suspended and that the plate on the Honda was to a different vehicle. Detective Butler

testified that the plate came back to a black Honda with a different year. She further Knox County, Case No. 19CA000027 3

testified that the VIN came back to a female and the plate to a male. Detective Butler

initiated a traffic stop of appellant’s vehicle.

{¶5} Detective Butler testified that appellant “was making furtive movements,

kind of moving all over the front of the vehicle. It made me pretty nervous. I’m familiar with

[appellant’s] history involving loaded weapons in vehicles and narcotics. I asked for other

officers to assist me as [appellant] eventually pulled over.” Transcript of suppression

hearing at 10. When she asked appellant if he had any weapons, he pointed towards the

passenger floorboard. A BB gun with a silencer on it was on the front passenger

floorboard. Detective Butler testified that the BB gun looked like a real gun.

{¶6} Back-up units arrived shortly thereafter. Appellant, who was the only

occupant in the vehicle, told Detective Butler than the vehicle belonged to his brother and

that he was just driving it. Detective Butler decided to impound the vehicle because

appellant had a suspended license and was the only person in the vehicle, because they

were stopped in the roadway where there was no place to park, and because the plates

did not match the VIN which came back to a woman in Licking County.

{¶7} Appellant was removed from the vehicle because the officers wanted to

make sure that the gun was, in fact, a BB gun. He was detained and placed in handcuffs,

although he was not told that he was under arrest at that point. Detective Butler testified

that Mount Vernon had had policy since 1990 for vehicle inventories and that she was

trained on following Mount Vernon’s policy. While awaiting a tow truck, Detective Butler

and Patrolman Miller began inventorying the vehicle. During the search, they found two

swords directly behind the driver’s seat sitting on that back seat and a bullet at the center

console area near the gear shift. The officer testified that the bullet was a .22 short for a Knox County, Case No. 19CA000027 4

tiny gun. Appellant, when asked if there were any weapons, specifically a gun, on him or

in his vehicle, “was not very happy with the question, said there was not.” Transcript of

suppression hearing at 19. Upon finding the swords, Detective Butler told appellant that

he was being arrested for carrying concealed weapons. A search of appellant’s person

yielded BBs in his pocket for the BB gun. During the search of the vehicle, Detective

Butler testified that she found that the center console was “off center, like you could tell it

had been lifted up.” Transcript of suppression hearing at 21. When she popped up the

center console, she found a cigarette pack containing three baggies of

methamphetamines and a smoking drug pipe with residue. She testified that the cigarette

pack contained “ends of baggies, like sticking out of it, and you could tell there was

something in there.” Transcript of suppression hearing at 22. Testing later confirmed the

substance to be methamphetamine.

{¶8} On cross-examination, Detective Butler testified that she removed the

center console even though she did not have a search warrant because she was looking

for a gun and did not want to put the vehicle in the outside impound lot with a gun in it.

On redirect, she testified that the center console was not attached with any screws and

that when she lifted it up, it popped up. The center console was directly next to the driver’s

seat.

{¶9} Patrolman Zachary Miller of the Mount Vernon Police Department testified

that he responded to a call for back-up assistance from Detective Butler. He testified that

during the inventory search, he found a metal pipe on the back seat that had a “switch or

lever in the middle of it.” Transcript of suppression hearing at 42. When he operated the

lever, he discovered two concealed blades. Detective Butler advised him that it was a Knox County, Case No. 19CA000027 5

weapon. After appellant was arrested and transported to jail, Patrolman Miller found two

bats in the trunk area with writing on them and a .22 caliber short round. The round of

ammunition was found near the gear shift.

{¶10} Pursuant to a Decision and Entry filed on March 27, 2019, the trial court

denied the Motion to Suppress. The trial court found that the further search of the vehicle,

including the console area, was justified by the inventory search and based upon probable

cause that the vehicle contained “additional evidence of the presence of a pistol capable

of firing the .22 caliber round found on the top of the console.”

{¶11} On June 4, 2019, appellant pleaded no contest to aggravated possession

of drugs and the remaining count and forfeiture specification were dismissed. As

memorialized in a Sentencing Entry filed on July 5, 2019, appellant was sentenced to five

years in prison.

{¶12} Appellant now raises the following assignment of error on appeal:

{¶13} “I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S

MOTION TO SUPPRESS.”

I

{¶14} Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Motion to Suppress. We disagree.

{¶15} Appellate review of a trial court's decision to grant or deny a motion to

suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328,

713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, Knox County, Case No. 19CA000027 6

652 N.E.2d 988. A reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d

142, 675 N.E.2d 1268 (4th Dist. 1996). Accepting these facts as true, the appellate court

must independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other

grounds.

{¶16} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist. 1991). 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, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a 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, 620 N.E.2d 906 (8th Dist. 1994).

{¶17} In the case sub judice, the trial court denied appellant’s Motion to Suppress

on two grounds. The trial court found that the further search of the vehicle, including the

console area, was justified by the inventory search and based upon probable cause that Knox County, Case No. 19CA000027 7

the vehicle contained “additional evidence of the presence of a pistol capable of firing the

.22 caliber round found on the top of the console.”

{¶18} “Inventory searches involve administrative procedures conducted by law

enforcement officials and are intended to (1) protect an individual's property while it is in

police custody, (2) protect police against claims of lost, stolen or vandalized property, and

(3) protect police from dangerous instrumentalities.” State v. Mesa, 87 Ohio St.3d 105,

108, 1999-Ohio-253, 717 N.E.2d 329, citing South Dakota v. Opperman, 428 U.S. 364,

369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). “Because inventory searches are

administrative caretaking functions unrelated to criminal investigations, the policies

underlying the Fourth Amendment warrant requirement, including the standard of

probable cause, are not implicated.” Mesa at 108, citing Opperman at 370, 96 S.Ct. 3092.

“Rather, the validity of an inventory search of a lawfully impounded vehicle is judged by

the Fourth Amendment's standard of reasonableness.” Mesa at 108.

{¶19} In Ohio, a standard inventory search of a lawfully impounded automobile is

permissible. State v. Robinson, 58 Ohio St.2d 478, 12 O.O.3d 394, 391 N.E.2d 317

(1979), syllabus.

{¶20} As noted by the Ohio Supreme Court in Blue Ash v. Kavanagh, 113 Ohio

St.3d 67, 2007-Ohio-1103, 810 N.E.2d 810 at paragraph 11:

While focusing primarily on inventory searches rather than impoundment,

South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d

1000, is instructive. The United States Supreme Court concluded that a

routine inventory search of a lawfully impounded vehicle is not

unreasonable within the meaning of the Fourth Amendment when Knox County, Case No. 19CA000027 8

performed pursuant to standard police practice and when the evidence does

not demonstrate that the procedure involved is merely a pretext for an

evidentiary search of the impounded vehicle. The court held that “[i]n the

interests of public safety and as part of what the Court has called

‘community caretaking functions,’ * * * automobiles are frequently taken into

police custody. * * * The authority of police to seize and remove from the

streets vehicles impeding traffic or threatening public safety and

convenience is beyond challenge.” Id. at 368–369, 96 S.Ct. 3092, 49

L.Ed.2d 1000, quoting **813 Cady v. Dombrowski (1973), 413 U.S. 433,

441, 93 S.Ct. 2523, 37 L.Ed.2d 706. See, also, State v. Robinson (1979),

58 Ohio St.2d 478, 480, 12 O.O.3d 394, 391 N.E.2d 317.

{¶21} Here, the evidence shows that Detective Butler had legitimate reasons to

impound appellant’s vehicle. Detective Butler testified that she decided to impound the

vehicle because appellant had a suspended license and was the only person in the

vehicle, because they were stopped in the roadway where there was no place to park,

and because the plates did not match the VIN which came back to a woman in Licking

County.

{¶22} In the case sub judice, Detective Butler testified that the inventory search

was conducted in accordance with the Mount Vernon Police Department policy, which

was admitted into evidence. The following testimony was adduced when she was asked

about the Mount Vernon policy relating to the inventory of impounded vehicles:

{¶23} Q: And tell me what the Mount Vernon policy is about inventory of vehicles

that are impounded? Knox County, Case No. 19CA000027 9

{¶24} A: Would you like me to sum it up or read the - -

{¶25} Q: Well, you can sum it up.

{¶26} A: Okay.

{¶27} Q: Or read from the appropriate section, that’s - - that’s fine too.

{¶28} A: Well, let me see if I can.

{¶29} Q: I mean your understanding of the policy is obviously relevant to this

proceeding.

{¶30} A: Yeah. During the inventory obviously we’re going to, anything of value,

over $25 we need to put on the inventory sheet. We need to note that, you know, it was

in there. That way in case something happens, if it gets broken into or something comes

up missing, we have it on record that that was in the vehicle. During that we can look in

like glove boxes, just kind of search in - - in and around the vehicle, open up the glove

box, center console, see if there’s anything of value.

{¶31} Transcript of Suppression hearing at 17-18.

{¶32} The United States Supreme Court recognizes an “automobile exception” to

the Fourth Amendment's requirement that police officers must generally obtain a warrant

before conducting a search. State v. Ivery, 11th Dist Lake No.2011–L–081, 2012–Ohio–

1270, ¶ 23, citing California v. Carney, 471 U.S. 386, 390 S.Ct. 2066, 85 L.Ed.2d 406

(1985). Under the automobile exception, there is no need to demonstrate that a “separate

exigency” exists to justify the search. Id., citing Maryland v. Dyson, 527 U.S. 465, 466,

119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). “If a car is readily mobile and probable cause

exists to believe that it contains contraband, the Fourth Amendment thus permits police Knox County, Case No. 19CA000027 10

to search the vehicle without more.” Id., citing Pennsylvania v. Labron, 518 U.S. 938, 940,

116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).

{¶33} In United States v. Ross, the United States Supreme Court clarified

restrictions which the Fourth Amendment places on vehicle searches, holding that the

permissible scope of a vehicle search is “no greater than a magistrate could have

authorized by issuing a warrant based on the probable cause that justified the search.”

456 U.S. 798, 818, 102 S.Ct. 2157, 72 L.Ed.2d 572(1982). Thus, compartments and

packages within a vehicle, which could contain the illicit object for which the police have

probable cause to believe exists, may also be searched. State v. Gonzales, 6th Dist.

Wood No. WD–07–060, 2009–Ohio–168, ¶ 17. After an officer has probable cause to

believe that a vehicle contains contraband, a permissible search of the vehicle is “defined

by the object of the search and the places in which there is probable cause to believe it

may be found.” Ross, supra, at 824.

{¶34} While conducting the inventory search, Detective Butler found a concealed

weapon and a .22 “short, tiny bullet for a tiny gun” in the center console area near the

gear shift. Transcript of suppression hearing at 19. In response to finding the bullet, she

asked appellant if there were any weapons, specifically a gun, on him or in his vehicle.

According to her, “he was not very happy with the question. He said there was not.” Id.

The officers then performed a weapon search of the vehicle.

{¶35} Based on the foregoing, we find that the officers conducted a lawful

inventory of appellant’s impounded vehicle pursuant to police policy and that that the

officers had probable cause to further search for the presence weapons, including

searching the center console, after finding the bullet and the swords. Knox County, Case No. 19CA000027 11

{¶36} Based on the foregoing, we find that the trial court did not err in denying

appellants Motion to Suppress. We concur with the trial court that further search of the

vehicle, including the console area, was justified by the inventory search and based upon

probable cause that the vehicle contained “additional evidence of the presence of a pistol

capable of firing the .22 caliber round found on the top of the console.”

{¶37} Appellant’s sole assignment of error is, therefore, overruled.

{¶38} Accordingly, the judgment of the Knox County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.