[Cite as State v. Furniss, 2013-Ohio-2064.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J, -vs- : : CHARLES FURNISS : Case No. 12-CA-41 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 12 CR 0110
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOCELYN S. KELLY AARON CONRAD 239 West Main Street 120½ East Main Street Suite 101 Lancaster, OH 43130 Lancaster, OH 43130 Fairfield County, Case No. 12-CA-41 2
Farmer, J.
{¶1} On October 8, 2011, Lancaster Police Officer James Hall stopped
appellant, Charles Furniss, for speeding. Officer Matt Mullet arrived as backup. When
appellant retrieved his registration from his glove compartment, a padded case fell to
the floorboard. Officer Mullet asked to see the case and appellant handed it over.
Officer Mullet opened the case and discovered a glass pipe containing marijuana
residue. Appellant was ordered out of his vehicle whereupon his person was searched
and pills, marijuana, and money were found in his pockets. Appellant identified the pills
and admitted to selling them. He was then arrested, read his Miranda rights, and taken
to the police station.
{¶2} On February 24, 2012, the Fairfield County Grand Jury indicted appellant
on one count of aggravated trafficking in drugs in violation of R.C. 2925.03 and one
count of aggravated possession of drugs in violation of R.C. 2925.11.
{¶3} On March 28, 2012, appellant filed a motion to suppress, claiming an
illegal search of his vehicle and his person, and statements made during a custodial
interrogation prior to his Miranda rights violated his Fifth Amendment rights. A hearing
was held on May 14, 2012. By entry filed July 3, 2012, the trial court suppressed
appellant's statements made at the scene and denied the motion in all other respects.
{¶4} On July 10, 2012, appellant pled no contest to aggravated trafficking in
drugs and the remaining count was dismissed. By judgment entry filed July 18, 2012,
the trial court found appellant guilty and sentenced him to fourteen months in prison.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: Fairfield County, Case No. 12-CA-41 3
I
{¶6} "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION
TO SUPPRESS."
{¶7} Appellant claims the trial court erred in denying his motion to suppress.
We disagree.
{¶8} 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 485 (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 Fairfield County, Case No. 12-CA-41 4
in Ornelas v. U.S., 116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶9} Appellant's motion argued an illegal search of his vehicle and his person,
and statements made during a custodial interrogation prior to his Miranda rights violated
his Fifth Amendment rights. The trial court suppressed the custodial statements made
at the scene relative to identification of the pills and his admission to selling drugs. As
to the other prongs, the trial court denied the motion. We concur with the trial court's
conclusions.
{¶10} In its entry filed July 3, 2012, the trial court found there was probable
cause to open and search the padded case that fell to the floorboard:
Viewing the totality of the circumstances, the Court finds that Ofc.
Mullet did have probable cause to open and search the padded case.
Although the details of the case's appearance were no longer clear to Ofc.
Mullet at the time of the evidentiary hearing, Ofc. Mullet clearly referenced
the same object as described in the incident report he completed just after
the incident and described by Ofc. Hall in his testimony. More importantly,
Ofc. Mullet credibly articulated specific grounds that he reasonably
believed a crime was being committed or that contraband was present in
the case. Specifically, Ofc. Mullet testified that he had encountered similar
cases in the course of his duties and that such a case had contained a
glass marijuana pipe every time that he had encountered one. Although
there might be other uses for such a case, it was not unreasonable for Fairfield County, Case No. 12-CA-41 5
Ofc. Mullet to draw the conclusion that possession of such a case
indicated that Defendant was in possession of marijuana or drug
paraphernalia.
{¶11} The trial court also found appellant consented to the search of his person
and it was not a mere acquiescence to authority:
Considering all of the facts and circumstances, the Court finds that
Defendant's consent to a search of his person was voluntary and not a
mere acquiescence to a claim of authority. Even considering Defendant's
evident fear during his encounter with officers Hall and Mullet, the Court
finds that officer's Hall and Mullet did not take any unusual or coercive
actions to cause Defendant to experience that fear. In addition, unlike in
Robinette, Defendant did not face the implicit threat that he would be
subject to an increased sanction if he did not comply with the request for a
search. At the time of the request, Defendant knew that Officer Mullet had
discovered his marijuana pipe and a small amount of marijuana. He had
every reason to expect that he would be arrested soon and may have
reasonably believed that he was in the process of being arrested. There
was nothing for Defendant to gain by consenting to a search of his person
before that apparently impending arrest. Further, throughout the
encounter Defendant had been cooperative with the police, taking the
keys out of his ignition, promptly identifying himself, and handing over his Fairfield County, Case No. 12-CA-41 6
pipe case. Considering the encounter as a whole, the Court finds that the
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[Cite as State v. Furniss, 2013-Ohio-2064.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J, -vs- : : CHARLES FURNISS : Case No. 12-CA-41 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 12 CR 0110
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOCELYN S. KELLY AARON CONRAD 239 West Main Street 120½ East Main Street Suite 101 Lancaster, OH 43130 Lancaster, OH 43130 Fairfield County, Case No. 12-CA-41 2
Farmer, J.
{¶1} On October 8, 2011, Lancaster Police Officer James Hall stopped
appellant, Charles Furniss, for speeding. Officer Matt Mullet arrived as backup. When
appellant retrieved his registration from his glove compartment, a padded case fell to
the floorboard. Officer Mullet asked to see the case and appellant handed it over.
Officer Mullet opened the case and discovered a glass pipe containing marijuana
residue. Appellant was ordered out of his vehicle whereupon his person was searched
and pills, marijuana, and money were found in his pockets. Appellant identified the pills
and admitted to selling them. He was then arrested, read his Miranda rights, and taken
to the police station.
{¶2} On February 24, 2012, the Fairfield County Grand Jury indicted appellant
on one count of aggravated trafficking in drugs in violation of R.C. 2925.03 and one
count of aggravated possession of drugs in violation of R.C. 2925.11.
{¶3} On March 28, 2012, appellant filed a motion to suppress, claiming an
illegal search of his vehicle and his person, and statements made during a custodial
interrogation prior to his Miranda rights violated his Fifth Amendment rights. A hearing
was held on May 14, 2012. By entry filed July 3, 2012, the trial court suppressed
appellant's statements made at the scene and denied the motion in all other respects.
{¶4} On July 10, 2012, appellant pled no contest to aggravated trafficking in
drugs and the remaining count was dismissed. By judgment entry filed July 18, 2012,
the trial court found appellant guilty and sentenced him to fourteen months in prison.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: Fairfield County, Case No. 12-CA-41 3
I
{¶6} "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION
TO SUPPRESS."
{¶7} Appellant claims the trial court erred in denying his motion to suppress.
We disagree.
{¶8} 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 485 (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 Fairfield County, Case No. 12-CA-41 4
in Ornelas v. U.S., 116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶9} Appellant's motion argued an illegal search of his vehicle and his person,
and statements made during a custodial interrogation prior to his Miranda rights violated
his Fifth Amendment rights. The trial court suppressed the custodial statements made
at the scene relative to identification of the pills and his admission to selling drugs. As
to the other prongs, the trial court denied the motion. We concur with the trial court's
conclusions.
{¶10} In its entry filed July 3, 2012, the trial court found there was probable
cause to open and search the padded case that fell to the floorboard:
Viewing the totality of the circumstances, the Court finds that Ofc.
Mullet did have probable cause to open and search the padded case.
Although the details of the case's appearance were no longer clear to Ofc.
Mullet at the time of the evidentiary hearing, Ofc. Mullet clearly referenced
the same object as described in the incident report he completed just after
the incident and described by Ofc. Hall in his testimony. More importantly,
Ofc. Mullet credibly articulated specific grounds that he reasonably
believed a crime was being committed or that contraband was present in
the case. Specifically, Ofc. Mullet testified that he had encountered similar
cases in the course of his duties and that such a case had contained a
glass marijuana pipe every time that he had encountered one. Although
there might be other uses for such a case, it was not unreasonable for Fairfield County, Case No. 12-CA-41 5
Ofc. Mullet to draw the conclusion that possession of such a case
indicated that Defendant was in possession of marijuana or drug
paraphernalia.
{¶11} The trial court also found appellant consented to the search of his person
and it was not a mere acquiescence to authority:
Considering all of the facts and circumstances, the Court finds that
Defendant's consent to a search of his person was voluntary and not a
mere acquiescence to a claim of authority. Even considering Defendant's
evident fear during his encounter with officers Hall and Mullet, the Court
finds that officer's Hall and Mullet did not take any unusual or coercive
actions to cause Defendant to experience that fear. In addition, unlike in
Robinette, Defendant did not face the implicit threat that he would be
subject to an increased sanction if he did not comply with the request for a
search. At the time of the request, Defendant knew that Officer Mullet had
discovered his marijuana pipe and a small amount of marijuana. He had
every reason to expect that he would be arrested soon and may have
reasonably believed that he was in the process of being arrested. There
was nothing for Defendant to gain by consenting to a search of his person
before that apparently impending arrest. Further, throughout the
encounter Defendant had been cooperative with the police, taking the
keys out of his ignition, promptly identifying himself, and handing over his Fairfield County, Case No. 12-CA-41 6
pipe case. Considering the encounter as a whole, the Court finds that the
State met its burden to establish consent by a preponderance of the
evidence.
{¶12} Although granting the motion to suppress relative to appellant's
statements made at the scene, the trial court found the post-Miranda statements made
at the police department were "sufficiently attenuated as to dissipate the taint of his
suppressed statements." See, July 3, 2012 Entry.
OPENING OF PADDED CASE
{¶13} Appellant's challenge to the opening of the padded case is predicated
upon a lack of credibility of the officers' descriptions of the case. Appellant argues the
officers' limited observation of the padded case was insufficient to establish probable
cause.
{¶14} In State v. Halczyszak, 25 Ohio St.3d 301 (1986), paragraphs three and
four of the syllabus, the Supreme Court of Ohio held the following:
3. The "immediately apparent" requirement of the "plain view"
doctrine is satisfied when police have probable cause to associate an
object with criminal activity.
4. In ascertaining the required probable cause to satisfy the
"immediately apparent" requirement, police officers may rely on their
specialized knowledge, training and experience;***. Fairfield County, Case No. 12-CA-41 7
{¶15} Officer Hall described appellant's demeanor during the traffic stop as
"white-knuckled on the steering wheel shaking." T. at 9. Both officers observed
appellant's attempt to retrieve his registration from his glove compartment. Appellant
opened it, slammed it shut, opened it again, and a small padded case fell out. T. at 10,
43. Appellant attempted to kick it back under the seat out of the officers' sight. T. at 43.
{¶16} Both officers had seen a similar case the night before that contained a
glass marijuana pipe. T. at 10, 43-44. Officer Mullet testified he immediately
recognized the unopened case as a case for a glass pipe used in marijuana
consumption. T. at 44. Officer Mullet asked to see the case and appellant handed it
over to him. Id. Inside he discovered a glass pipe containing marijuana residue. Id.
{¶17} There is sufficient evidence in the record to support the trial court's
conclusion that the padded case was immediately recognizable to both officers. Their
conclusion that it was a drug-carrying device was substantiated by their own
experiences.
SEARCH OF APPELLANT'S PERSON
{¶18} Appellant argues the search of his person outside his vehicle was a fishing
exhibition for drugs because there was no reason to suspect that he was armed.
{¶19} The record contains the undisputed testimony from both officers that
appellant consented to the search of his person. T. at 10-11, 16, 45. There is sufficient
evidence in the record to support the trial court's conclusion that appellant consented to
the search. Fairfield County, Case No. 12-CA-41 8
APPELLANT'S ORAL/WRITTEN STATEMENTS
{¶20} After appellant's statements and admissions to the police officers at the
scene, he was read his Miranda rights, transported to the police station, and given his
Miranda rights again. T. at 19, 50. Thereafter, he made additional statements. T. at
19. Appellant argues that but for having made the initial incriminating statements he
would not have made any statements after being Mirandized. He argues these
statements were tainted by coercion.
{¶21} In Missouri v. Seibert, 542 U.S. 600 (2004), the United States Supreme
Court reviewed a case regarding two statements, one made before Miranda warnings
were given and one afterwards. In determining whether the second statement was
admissible, the court at 615 listed the factors they considered in its review: "the
completeness and detail of the questions and answers in the first round of interrogation,
the overlapping content of the two statements, the timing and setting of the first and the
second, the continuity of police personnel, and the degree to which the interrogator's
questions treated the second round as continuous with the first."
{¶22} In the case sub judice, appellant's first statements were made outside his
vehicle. T. at 26-27, 45-46. Appellant was then Mirandized and transported to the
police station. T. at 19, 50. An inventory search of his vehicle was completed, the
Major Crimes Unit had been contacted, and appellant was Mirandized again prior to his
second statements. T. at 17-19. Given the length of time and difference of places
between the two statements, we concur with the trial court's analysis that the connection
between the two statements "was sufficiently attenuated as to dissipate the taint of his
suppressed statements." Fairfield County, Case No. 12-CA-41 9
{¶23} The sole assignment of error is denied.
{¶24} The judgment of the Court of Common Pleas of Fairfield County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. concur and
Hoffman, J. concurs separately.
s/ Sheila G. Farmer_______________
s/ W. Scott Gwin__________________
_______________________________
JUDGES
SGF/sg 919 Fairfield County, Case No. 12-CA-41 10
Hoffman, J., concurring
{¶25} I concur in the majority’s analysis and disposition of Appellant’s sole
assignment of error with the singular exception I would overrule the search of the
padded case on the basis of the “exigent circumstances” exception to the search
warrant requirement.1
{¶26} Unlike the majority, I do not believe opening the padded case is justified
under the “plain view” exception. While I recognize the binding precedent set forth in
State v. Halczyszak (1986), 25 Ohio St.3d 301, I find it significantly factually
distinguishable from the case sub judice.
{¶27} In Halczyszak, the officers entered an auto body shop and observed
various autos in different stages of assembly and found the auto, described in the
search warrant in the beginning stages of disassembly positioned next to a “stripped-
out” auto. Halczyszak did not involve the opening of an otherwise closed container as is
involved herein. As such, I find Halczyszak inapplicable.
________________________________ HON. WILLIAM B. HOFFMAN
1 Because the officer opened the padded case before he conducted the search of Appellant’s person, I find the “search incident to a lawful arrest” exception inapplicable. [Cite as State v. Furniss, 2013-Ohio-2064.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : CHARLES FURNISS : : Defendant-Appellant : CASE NO. 12-CA-41
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed. Costs to
appellant.
s/ William B. Hoffman_______________