State v. Frazier

2018 Ohio 4291

Opinion

[Cite as State v. Frazier, 2018-Ohio-4291.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J Plaintiff – Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 18-COA-006 OLIVIA R. FRAZIER

Defendant – Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas Case No. 17-CRI-091

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 22, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL CHRISTINA I. REIHELD Ashland County Prosecuting Attorney Reiheld Law Firm 110 Cottage Street P.O. Box 532 Ashland, OH 44805 Dansville, OH 43014 Ashland County, Case No. 18-COA-006 2

Hoffman, J. {¶1} Appellant Olivia R. Frazier appeals the judgment entered by the Ashland

County Common Pleas Court convicting her of aggravated possession of drugs (R.C.

2925.11(A)) and possessing drug abuse instruments (R.C. 2925.12(A)) following her plea

of no contest, and sentencing her to an aggregate term of incarceration of nine months.

Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 13, 2017, Loudonville police received a 911 call concerning a non-

responsive, unconscious female. Both police and EMS responded to the address. Based

on past calls to the residence, and specifically prior interactions with Appellant at the

residence, police believed the call to be related to a drug overdose. On overdose calls,

police respond with EMS because they carry Narcan. Further, patients revived by Narcan

often become violent immediately thereafter, and police respond in order to protect EMS

personnel.

{¶3} Captain James Coey and Patrolman Shawn Gorell arrived at the home

about the same time as the EMS. Appellant’s mother ushered them into the home, where

Appellant was found unconscious in a bedroom. The room was small and Ptl. Gorell

waited outside, while Cpt. Coey stood just inside the doorway of the room. Cpt. Coey

noted items in plain view in the room which, based on his training and experience, he

associated with heroin addiction. He saw Q-tips and small tiny cotton balls, some stained

brown, on a bedside table. Cpt. Coey knew heroin users often pull the cotton tips off Q-

tips, and use the tiny cotton ball as a filter to draw melted-down heroin to a syringe. He

also saw a tube of antibiotic cream, which heroin users often use to prevent infection at

the injection site. He saw the corner of a baggie, used to make a small bindle for heroin. Ashland County, Case No. 18-COA-006 3

In another location he saw a spoon with a dried white substance and a bottle cap, which

he knew heroin users often use to liquefy and heat heroin. On an air conditioner which

was sitting atop another small table, he saw a syringe.

{¶4} Appellant almost immediately responded to the Narcan treatment. Upon

revival, she admitted she had snorted heroin. EMS personnel, aided by Ptl. Gorell, took

Appellant from the room to the ambulance for transport to the hospital. Ptl. Gorell went

back into the house, where Cpt. Coey had remained to collect evidence.

{¶5} Appellant was indicted by the Ashland County Grand Jury with one count of

aggravated possession of drugs and one count of possessing drug abuse instruments.

She filed a motion to suppress the evidence taken from the bedroom. Following an

evidentiary hearing, the trial court overruled the motion to suppress. She then entered a

plea of no contest to the charges, and was sentenced to an aggregate term of

incarceration of nine months. It is from the January 22, 2018 judgment of conviction and

sentence Appellant prosecutes her appeal, assigning as error:

“THE TRIAL COURT ERRED BY REFUSING TO GRANT APPELLANT’S

MOTION TO SUPPRESS BECAUSE (1) THE CAPTAIN FAILED TO

OBTAIN A SEARCH WARRANT AND DISCOVERED THE ITEMS WHEN

HE REMAINED IN A PLACE HE NO LONGER HAD ANY RIGHT TO BE

FOLLOWING ABATEMENT OF AN EMERGENCY AND (2) THE

OFFICER’S STATEMENT THAT THE ITEMS WERE IN PLAIN SIGHT

DURING THE EMERGENCY ARE [SIC] NOT SUPPORTED BY

COMPETENT, CREDIBLE EVIDENCE.” Ashland County, Case No. 18-COA-006 4

{¶6} 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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). Second, an

appellant may argue the trial court failed to apply the appropriate test or correct law to the

findings of fact, in which case an appellate court can reverse the trial court for committing

an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (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, 641

N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);

Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”

{¶7} ”When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate the Ashland County, Case No. 18-COA-006 5

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243,

652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

{¶8} Appellant argues Cpt. Coey’s testimony he saw drug paraphernalia in plain

view is not credible. She argues he could not have seen the items in her room until after

she was removed from the room, and he was not at this point lawfully on the premises

because the emergency had abated.

{¶9} Under the plain view exception to the search warrant requirement, police

may seize items in plain view during a lawful search if (1) the seizing officer is lawfully

present at the place from which the evidence can 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. Horton v. California, 496 U.S. 128, 136–37 (1990). The Ohio

Supreme Court has held the “immediately apparent” requirement of the “plain view”

doctrine is met when police have probable cause to associate an object with criminal

activity. State v. Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d 925 (1986). In ascertaining

the required probable cause, police officers may rely on their specialized knowledge,

training and experience. Id.

{¶10} Cpt. Coey was lawfully present in Appellant’s bedroom at the time he

testified he saw the evidence in plain view. Appellant’s mother “ushered” him into the

residence to tend to Appellant, who was unconscious in a bedroom. Tr. 15.

{¶11} Appellant argues Cpt. Coey’s testimony he was inside the bedroom is not

credible because the room was too small to hold the EMS personnel, Appellant, and Cpt.

Coey, and also because Ptl. Gorell testified Cpt. Coey was not in the room. She argues Ashland County, Case No. 18-COA-006 6

Exhibit 1, a photograph taken near the doorway, demonstrates the drug paraphernalia,

specifically, the syringe and the stained cotton swabs, were not visible in plain view.

{¶12} On direct examination, Cpt. Coey testified he was inside the room. On

cross-examination, he testified he stood just inside the doorway. Ptl. Gorell testified Cpt.

Coey was “in the doorway, so he could see into the room.” Tr. 70. The evidence supports

the conclusion Cpt. Coey was in a position to see inside the room.

{¶13} Appellant points to Exhibit 1, a photograph taken from the doorway, to argue

the syringe and stained cotton swabs were not in plain view, and the large number of Q-

tips and antibiotic cream were not incriminating by themselves. We note photographs

may not always reveal details visible to the naked eye. Further, in the photograph,

someone is partially blocking the view of the air conditioner, which may not have been

the situation the entire time EMS personnel worked on Appellant.

{¶14} While the photograph does not clearly show some of the cotton swabs were

stained brown, the photograph does show a large number of Q-tips and tiny cotton balls.

Cpt. Coey testified from his experience, heroin users often pull the tops from Q-tips to

make small cotton swabs which are used as a filter to draw melted-down heroin to a

syringe. Police officers were aware when they responded to the call Appellant had

overdosed in the past. Narcan, which is used for the sole purpose of opiate reversal, was

administered to Appellant, and she almost immediately responded to the treatment and

revived. Upon waking up, she admitted to snorting heroin. At this point, police had

probable cause to believe the cotton swabs, visible in plain view in the photograph taken

from the doorway, were drug paraphernalia. The police could therefore enter the room

to seize the cotton balls which Cpt. Coey had observed in plain view from his vantage Ashland County, Case No. 18-COA-006 7

point in the doorway. Photographs taken from inside the room clearly demonstrate some

of the cotton swabs were stained brown, and a syringe was laying in plain view on top of

the air conditioner. We find the items seized from the room were admissible pursuant to

the plain view exception to the warrant requirement.

{¶15} The trial court did not err in overruling Appellant’s motion to suppress.

{¶16} The judgment of the Ashland County Common Pleas Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur