State v. Otte

660 N.E.2d 711, 74 Ohio St. 3d 555
Ohio Supreme Court·Decided February 21, 1996·No. No. 94-2622·Published·Cited by 297 cases

Opinion

Cook, J.

We have reviewed Otte’s seven propositions of law, independently weighed the aggravating circumstances against the mitigating factors and evaluated the proportionality and appropriateness of the death penalty. For the following reasons, we affirm the judgment of the court of appeals and uphold the convictions and death sentence.

Proposition of Law One — Car Search

In his first proposition of law, Otte contends that the trial court should have suppressed the evidence (guns, ammunition, pillow with red stain, and checkbook) found in the police search of the 1962 Impala. Otte lacks standing to challenge the search of the Impala because he admitted that he had stolen the car from his grandfather. A car thief has no legitimate expectation of privacy in a stolen car and therefore lacks standing to challenge its search. Rakas v. Illinois (1978), 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 395.

Otte does, however, have standing to argue that the items in the car should have been suppressed as “fruits of the poisonous tree” because the police lacked probable cause to arrest him.

An arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make the arrest at that time. State v. Timson (1974), 38 Ohio St.2d 122, 67 O.O.2d 140, 311 N.E.2d 16, paragraph one of the syllabus. Probable cause exists when the arresting officer has sufficient information from a reasonably trustworthy source to warrant a prudent person in believing that the suspect has committed or was committing the offense. Id., citing State v. Fultz (1968), 13 Ohio St.2d 79, 42 O.O.2d 259, 234 N.E.2d 593.

Contrary to Otte’s assertion, there was probable cause to arrest in this case. The police knew that Mary Ann Campangna had seen a stranger enter Wasikowski’s apartment on February 12. She described him and sent police to Mike Carroll for further information. She also told them that she heard a loud sound, that she never saw him leave the apartment, and that the man had used Carroll’s name. Campangna was an average citizen, not an “informant from the criminal milieu.” 1 LaFave, Search and Seizure (1987) 611, Section 3.3. Police could therefore “assume that they [were] dealing with a credible person * * *.” Id. at 718, Section 3.4(a).

Carroll identified the man as “Gary” from Indiana and described the distinctive car he drove, a red 1962 Chevrolet Impala. Carroll’s description of “Gary” matched Campangna’s description of the man who entered Wasikowski’s apartment. Carroll later told police that Gary would be at Gypsy and Rob’s around 7:30 p.m. Officers watching the bar did not see Otte or the car, but around 8:00 p.m., they received word from Carroll’s fiancee that Carroll and Otte had left the [560] bar and would return around 8:30 p.m. The officers resumed their surveillance, saw the red 1962 Impala, and stopped it.

The police had reason to believe that the information given by Carroll was reliable. Carroll had known Otte for a month and a half, knew where he came from, knew that he frequented Gypsy and Rob’s, and described his distinctive car. Moreover, since Otte used Carroll’s name when speaking to Campangna, police had independent reason to believe that Otte and Carroll knew each other.

Carroll’s information was confirmed when the 1962 Chevrolet showed up near the bar at 8:30 p.m., as Carroll’s fiancee (presumably passing along information from Carroll) told police. Familiarity with a person’s itinerary suggests “inside information,” and reliability. Alabama v. White (1990), 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301, 310.

Police found Wasikowski’s body with a gunshot wound. Campangna’s presumptively reliable information strongly indicated that the man she saw was the person who shot Wasikowski. Since Otte fit Campangna’s description, police could reasonably believe that he was the killer. When police saw a red 1962 Impala with Indiana plates near Gypsy and Rob’s that supported Carroll’s reliability, and they could stop the car on the justifiable assumption that Otte was driving it. On stopping the car, the officers saw that Otte matched Campangna’s description and Otte’s passenger, Carroll, stated that “the guns are in the trunk.” These facts amount to probable cause to stop and arrest Otte.

As to Otte’s claim that the items found in the Impala should be suppressed, even if Otte does have standing to challenge the search of the vehicle, we find that the items were properly seized under three well-established exceptions to the warrant requirement. See State v. Brown (1992), 63 Ohio St.3d 349, 350, 588 N.E.2d 113, 114. The guns could be retrieved from the trunk because Mike Carroll’s statement gave the police probable cause to believe that the guns (contraband) were in the trunk. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The ammunition and pillow could be taken from the passenger compartment because they were in the officers’ plain view. Texas v. Brown (1983), 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502. And Kostura’s checkbook and the keys could be retrieved from the glove box incident to the inventory search of the car.1 South Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; State v. Hathman (1992), 65 Ohio St.3d 403, 604 N.E.2d 743.

Accordingly, Otte’s first proposition of law is overruled.

[561] Proposition of Law Two — Suppression of Statements

In his second proposition of law, Otte contends that his confession statements to the police on February 14 and 16 should have been suppressed because the state failed to show they were voluntary.

On February 13, the date he was arrested, Otte was questioned by Det. Bomba. Bomba read Otte his Miranda rights, which Otte indicated he understood. Otte denied any involvement in the murders and claimed he hadn’t been at the Pleasant Lake apartment complex on February 12 and 13.

The next day, February 14, Det. DeSimone questioned Otte. DeSimone testified that Otte seemed calm and composed, was not shaking, showed no withdrawal symptoms, did not complain of illness, and did not appear to be under the influence of drugs or alcohol. DeSimone read Otte his Miranda rights, Otte indicated he understood his rights, then waived them. Otte next made an oral confession, which DeSimone tape-recorded. DeSimone testified that he made no promises or threats. After confessing, Otte asked DeSimone “what he could get”; DeSimone told him he could get the death penalty, but never said he could avoid it by confessing.

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State v. Otte, 660 N.E.2d 711, 74 Ohio St. 3d 555 (Ohio 1996).

660 N.E.2d 711 (State v. Otte) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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