[Cite as State v. Sanders, 2012-Ohio-1540.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97120
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
STEPHEN P. SANDERS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-538842
BEFORE: Celebrezze, J., Blackmon, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: April 5, 2012 ATTORNEY FOR APPELLANT
Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Oscar E. Albores Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Stephen Sanders, appeals his convictions for drug trafficking and
possession of criminal tools, arguing that the trial court erred in denying his motion to
suppress, the court considered improper factors at sentencing, and the court’s plea
colloquy was defective. After a thorough review of the record and the law, we affirm
appellant’s convictions.
I. Factual and Procedural History
{¶2} On June 17, 2010, appellant was traveling on I-271 at a high rate of speed.
Village of Orange police officer Sam Borgia initiated a traffic stop of appellant’s vehicle
for traveling 79 m.p.h. in a 60 m.p.h. zone. Officer Borgia entered the license plate
number into his in-car computer system. The vehicle came back registered to appellant
and also showed an outstanding traffic warrant for his arrest from the city of Bedford.
The warrant information indicated that appellant was armed and dangerous. Officer
Borgia also obtained a photograph of appellant on his computer screen, which matched
the person seated in the vehicle. Officer Borgia remained in his police car while he
waited for backup because of the “armed and dangerous” designation in the warrant.
Before backup could arrive, appellant was in the process of opening his vehicle door, and
it appeared to Borgia that he was getting out of his vehicle. Officer Borgia then initiated
a controlled arrest of appellant by yelling commands, which appellant followed.
Appellant walked backwards toward the police car and was ordered to the ground. He was then handcuffed and asked if he was Stephen Sanders, to which he replied that he
was. He was then placed in the back of the police car and informed that he was under
arrest. Back-up then arrived.
{¶3} Officer Borgia contacted dispatch to inform them of the situation and to get
confirmation of the warrant. He then began searching the vehicle, he said, because there
was no person to take possession of it and it would have to be towed. He indicated the
search was an inventory search. The dashboard video footage from Officer Borgia’s
vehicle shows appellant’s arrest and the search of his vehicle. Officer Borgia cannot be
seen filling out any paperwork while conducting the search, but another officer, identified
as Officer Sherwood, filled out the inventory sheet and can be seen on the video.
{¶4} Officer Borgia searched the front passenger compartment and discovered a
quantity of marijuana in a zip-top freezer bag in the glove box. He then searched the
trunk and discovered an open black plastic garbage bag that contained six more large,
zip-top freezer bags of marijuana. At some point during the search, the Bedford
warrant was confirmed, but Officer Borgia could not state when.
{¶5} After the discovery of this quantity of marijuana, Officer Borgia radioed to
dispatch to inform Bedford that it would no longer receive appellant pursuant to the
warrant, but that he would be charged in Orange. Appellant was arrested and charged
with drug trafficking, drug possession, and possession of criminal tools.
{¶6} A suppression hearing was conducted on January 26, 2011, where Officer
Borgia indicated that the search conducted was an inventory search done prior to towing appellant’s vehicle. The state presented the tow inventory sheet filled out at the scene of
appellant’s arrest and the village of Orange tow policy. The inventory sheet indicated
that it was started at 8:00 p.m. by Officer Sherwood, and the dash camera footage showed
that the stop of appellant was initiated at 7:53 p.m. Appellant’s identity was confirmed
at 7:56 p.m.
{¶7} The trial court found that the police acted in good faith in arresting appellant
pursuant to the warrant and that the vehicle could be searched prior to it being towed
because there were no other occupants who could take possession of it. The trial court
denied appellant’s suppression motion. Appellant then entered pleas of no contest to the
charges against him, and the trial court found him guilty, merged the trafficking and
possession counts, and sentenced appellant to an aggregate sentence of five years in
prison — five years for trafficking concurrent to one year for possession of criminal tools,
and concurrent to a one-year sentence in another case.
{¶8} Appellant then filed the instant appeal assigning three errors.
II. Law and Analysis
A. Inventory Search Incident to Impoundment
{¶9} Appellant first asserts that “[he] was denied due process of law when the
court overruled [his] motion to suppress.”
{¶10} Appellant argues that the warrant was never produced at the suppression
hearing and that Officer Borgia did not confirm the warrant before arresting him or
searching the vehicle. Relying on State v. Smartt, 61 Ohio App.3d 137, 572 N.E.2d 204 (8th Dist.1989), appellant argues that the state must produce the warrant at the
suppression hearing to prove the factual basis for the arrest and inventory search.
{¶11} “Appellate review of a trial court’s ruling on a motion to suppress presents
mixed questions of law and fact.” State v. McNamara, 124 Ohio App.3d 706, 710, 707
N.E.2d 589 (4th Dist.1997). An appellate court must accept the factual findings of the
trial court as long as they are supported by competent, credible evidence, but may
disregard the trial court’s factual findings if they are clearly erroneous. State v. Long,
127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). However, the application of
the law to those facts is subject to de novo review. State v. Polk, 8th Dist. No. 84361,
2005-Ohio-774, ¶ 2.
{¶12} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them per se unreasonable unless an
exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). The analysis for a search requires a two-step inquiry where probable cause is
required and, if it exists, a search warrant must be obtained unless an exception applies.
State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804. “If the state fails to
satisfy either step, the evidence seized in the unreasonable search must be suppressed.”
Id. at 49, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); AL
Post 763 v. Ohio Liquor Control Comm., 82 Ohio St.3d 108, 111, 694 N.E.2d 905 (1998).
{¶13} An inventory search is a well-defined exception to the warrant requirement.
State v. Mesa, 87 Ohio St.3d 105, 108, 717 N.E.2d 329 (1999), citing Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). An inventory search is
conducted pursuant to administrative procedures
to protect an individual’s property while it is in police custody, protect police against claims of lost, stolen or vandalized property, and protect police from dangerous instrumentalities. [Mesa] at 109, citing South Dakota v. Opperman (1976), 428 U.S. 364, 369. Because inventory searches are unrelated to criminal investigations, probable cause is not implicated, but rather the validity of the search is judged by the reasonableness standard. State v. Hobbs, 8th Dist. No. 85889, 2005-Ohio-3856, ¶ 20. {¶14} Here, we must determine whether the inventory search was done for the
purpose explained above or whether it was a pretextual search carried out for
investigative purposes.
{¶15} In Smartt, the police received a radio bulletin about a man with a gun in a
red BMW parked outside a nightclub. Officers were dispatched to that location and
arrested the man after seeing the gun in plain view. The officers also discovered cocaine
during an inventory search. The trial court suppressed the evidence and this court
agreed finding that,
[w]here an investigative stop is made in response to a police radio broadcast, the burden is upon the state to show the factual basis for the stop, at a hearing on a motion to suppress. The specific nature of the information contained in a police bulletin cannot alone be used to prove that the action of the police was based upon reliable information. (Citations omitted.) Id., 61 Ohio App.3d at 138, 572 N.E.2d 204.
Here, there was no investigative stop. Appellant was stopped for speeding.
{¶16} To stop a person suspected of being wanted for criminal activity in reliance
on a flyer or bulletin, the state has the burden to show that the officer making the stop
acted in objective reliance on the information contained within, the issuing agency for the bulletin or flyer possessed a reasonable suspicion justifying the stop, and that the stop that
in fact occurred was not significantly more intrusive than would have been permitted the
issuing department. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d
604 (1985).
{¶17} However, no investigatory stop was made here. Appellant was validly
stopped for speeding and arrested because of an active warrant. “An arrest warrant
charges law-enforcement officers to arrest the person for whom the warrant was issued.
R.C. 2935.02; Crim.R. 4(D).” State v. Walker-Stokes, 180 Ohio App.3d 36,
2008-Ohio-6552, 903 N.E.2d 1277, ¶ 38 (2d Dist.). An arrest warrant issued by a court
is different from a flyer or bulletin.
{¶18} When police act in good faith on a warrant, even when the warrant is invalid
for some reason, the U.S. Supreme Court has held that evidence obtained as a result of the
good faith reliance should not be suppressed. Herring v. U.S., 555 U.S. 135, 129 S.Ct.
695, 172 L.Ed.2d 496 (2009), citing United States v. Leon, 468 U.S. 897, 921, 104 S.Ct.
3405, 82 L.Ed.2d 677, fn.22 (1984).
{¶19} The trial court accepted the warrant information printout that was supplied
to Officer Borgia from his in-car computer system and his testimony that the warrant was
confirmed by Bedford during the stop as proof of the validity of an active warrant for
appellant’s arrest. 1 Citing to case law dealing with flyers, bulletins, and radio
1It is troubling that the state did not introduce the Bedford warrant. This simple step would have disposed of several of appellant’s arguments on appeal. broadcasts, appellant claims that Officer Borgia did not act reasonably in this case and
that the state did not introduce evidence of the reliability of the information contained in
the warrant.
{¶20} Here, Officer Borgia acted reasonably in arresting appellant on an
outstanding warrant.
{¶21} Appellant also argues that Officer Borgia did not confirm the warrant before
beginning the search, and therefore, he did not have any basis for doing an inventory
search. However, Officer Borgia testified that he immediately arrested appellant for the
warrant, and that its status as an active warrant was confirmed shortly thereafter.
{¶22} The state produced a printout of the officer’s in-car computer system that
showed the warrant information as Officer Borgia saw it when he entered the license
plate of the vehicle he stopped. It indicated that appellant had an outstanding traffic
warrant from the city of Bedford and that the individual was armed and dangerous.
Officer Borgia testified that the driver of the vehicle matched the description included
with the warrant and that the photograph from the Department of Motor Vehicles that
came up on his screen closely resembled the person driving the vehicle. Officer Borgia
also did not ask to see appellant’s driver’s license, vehicle registration, and proof of
insurance as he normally does in a traffic stop because, he testified, he was arresting
appellant and transporting him to Bedford because of the active warrant.
{¶23} Appellant argues that the search was for investigative purposes, not an
inventory search, and that there is some evidence to that effect. Officer Borgia testified that upon opening the driver’s door when he started his search, he noticed a large number
of air fresheners in the vehicle. He testified that this raised suspicion in his mind. He
then opened the glove compartment on the passenger side, and a bag of marijuana fell
out. However, the inventory sheet indicates that an inventory search was initiated within
minutes of appellant’s arrest and not as some afterthought used to justify a search.
{¶24} The state, arguing various other inapplicable exceptions to the warrant
requirement, attempts to suggest that Officer Borgia had probable cause to search the
vehicle and the trunk. No such exceptions, other than an inventory search and possibly
inevitable discovery based on an inventory search, apply in this case. Officer Borgia did
not have probable cause to search the vehicle according to Arizona v. Gant, 556 U.S. 332,
129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
{¶25} In Gant, the Court held that “police may search a vehicle incident to a recent
occupant’s arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest[,]” unless another exception to the warrant requirement
applies. Id. at 351.
{¶26} No evidence of the crime for which the stop was initiated — speeding —
could reasonably be expected to be found within the vehicle. Also, appellant was under
arrest and not in the vehicle when the search was conducted. He would not gain access
to or be returned to the vehicle where he could regain possession of some contraband or
weapon. This case hinges on the validity of the inventory search. {¶27} Gant and similar cases from this district have addressed searches of a
lawfully parked vehicle and upheld the suppression of evidence. State v. Thomas, 8th
Dist. No. 91891, 2009-Ohio-3461, (“When a vehicle is legally parked, police may not
search it incident to arrest and conduct an inventory search”). However, where a vehicle
is validly subject to impoundment, this court and others have held that an inventory
search is a valid procedure to ensure the safety of the owner’s property and to protect
police and towing contractors from claims of damage. State v. Kemp, 8th Dist. No.
95802, 2011-Ohio-4235; State v. Swinderman, 5th Dist. No. 2009-AP-100050,
2010-Ohio-2659.
{¶28} In demonstrating that the vehicle was subject to tow, Officer Borgia testified
that the vehicle was parked on the left-hand median on I-271 during a period of heavy
traffic. He stated the vehicle could not be left there, and no one else was available to
drive it. The state produced the village of Orange local ordinance and procedure for
towing a vehicle, which fit the situation presented in this case. A tow truck was called,
and an inventory sheet was started minutes after appellant’s arrest. Under these
circumstances, the trial court’s determination that contraband was discovered during a
valid inventory search was the correct one.
{¶29} Appellant, in his reply brief, relies on United States v. Lopez, 567 F.3d 755
(6th Cir.2009) as a case factually similar. However, Lopez does not consider the
inventory exception in its opinion. It appears not to have been raised in that case. It is
raised here, and we continue to hold that police may search a vehicle to conduct an inventory prior to impounding or towing it, as recognized in Mesa, 87 Ohio St.3d 105,
717 N.E.2d 329 (1999). Gant did not address the inventory exception because the
vehicle in that case was lawfully parked, and we decline to extend its holding to a context
not considered therein.
B. Maximum Term of Incarceration
{¶30} Appellant next argues that he “was denied due process of law when the
court sentenced [him] to a maximum term of imprisonment based upon impermissible
factors.”
{¶31} The Ohio Supreme Court has set forth the proper standard for the review of
sentencing determinations made in felony cases in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, which was adopted by this court as recognized in State
v. Brunning, 8th Dist. No. 95376, 2011-Ohio-1936, ¶ 16, fn.2.
{¶32} Appellate courts must first “examine the sentencing court’s compliance with
all applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first prong
is satisfied, then we review the trial court’s decision under an abuse-of-discretion
standard. Id. To constitute an abuse of discretion, the ruling must be unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983). {¶33} There is no argument here that the sentence is outside the statutory range, so
we must determine if the trial court abused its discretion in imposing a maximum term for
a third-degree felony conviction of drug trafficking.
{¶34} R.C. 2929.11(A) provides that
a court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶35} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must
consider when determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.
{¶36} In the present case, appellant argues he received the maximum sentence
based on improper findings by the trial court. During the sentencing hearing, after
appellant indicated he had no job and started selling marijuana to support his family, the
trial court stated:
So you thought you’d destroy the lives of some other people’s children by dealing in marijuana; is that it?
I’ll feed my children by destroying other people’s children. I’ll provide drugs, marijuana, to other people’s children, but I’ll use the proceeds to feed my children. That’s not a net positive for the community is it, Mr. Sanders?
{¶37} Appellant points to this statement and the fact that no victim impact
statement or other evidence from victims appears in the record. However, the trial court also stated that it considered all required factors in crafting appellant’s sentence. The
fact that at the time of sentencing appellant was also being sentenced on another drug
case he had been arrested on while this case was pending indicates the court did not abuse
its discretion in imposing the maximum sentence for drug trafficking. Appellant’s
disregard for the laws relating to the sale of controlled substances indicates that the need
for incapacitating the offender was high in this case. R.C. 2929.11(A).
{¶38} The trial court was not required to make findings in order to impose a
maximum sentence. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶
97. The trial court’s discussion about the harm to the community is also not an improper
factor. State v. Hudson, 8th Dist. No. 83359, 2004-Ohio-1452, ¶ 13; State v. Sieng, 10th
Dist. No. 06AP-852, 2007-Ohio-1502, ¶ 17; State v. Hess, 5th Dist. No. 2003-CA-00098,
2004-Ohio-7311.
{¶39} The trial court did not abuse its discretion in sentencing appellant to five
years in prison.
C. Plea Colloquy
{¶40} Appellant finally argues that he “was denied due process of law when the
court did not inform [him] of the effect of the no-contest plea.”
{¶41} Crim.R. 11(C) governs the process that a trial court must use before
accepting a felony plea of guilty or no contest. With respect to the required colloquy,
Crim.R. 11(C)(2) provides: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶42} The analysis differs based on the type of right alleged to have been
deficiently explained. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621. Two standards have developed depending upon whether the right is a
constitutional or nonconstitutional one. In explaining constitutional rights, the trial court
must strictly comply with Crim.R. 11, while nonconstitutional rights require only
substantial compliance. Id. at ¶ 14-15.
{¶43} Appellant complains that the trial court’s explanation of the effect of a no
contest plea was deficient. This is addressing a nonconstitutional right, which means
that the trial court must substantially comply with this mandate. “‘Substantial
compliance means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving.’” Id. at ¶ 15, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Furthermore, a
defendant who challenges his * * * plea on the basis that it was not knowingly,
intelligently, and voluntarily made must show a prejudicial effect.” Id.
{¶44} Here, the trial court explained:
Court: And you do understand that if you plead no contest, you’re not telling me you’re guilty, right?
Sanders: Right. Court: But you’re going to end up getting convicted of it anyway, right?
Sanders: Yes ma’am.
Court: By pleading no contest, you hope, will preserve your ability to take the Court’s ruling on the suppression motion to the Court of Appeals to see if they agree or disagree, right?
{¶45} After this exchange, the trial court also explained the consequences of
pleading guilty, and then the court informed appellant of the rights he was giving up and
the possible penalties in a thorough colloquy. Appellant argues that the trial court must
inform him that “[t]he plea of no contest is not an admission of defendant’s guilt, but it is
an admission of the truth of the facts alleged in the indictment, information, or complaint,
and the plea or admission shall not be used against the defendant in any subsequent civil
or criminal proceedings.”
{¶46} “‘The essence of the “no contest” plea, is that the accused cannot be heard
in defense.’” State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 424, 662 N.E.2d 370, 373
(1996), quoting State v. Herman, 31 Ohio App.2d 134, 140, 286 N.E.2d 296 (6th Dist.1971), quoting Rueger, Schneider’s Ohio Criminal Code 49, Section 10.1, fn. 4 (3d
Ed.1963). Where a trial court at least partially addressed the effects of a no contest plea
and the colloquy is not otherwise infirm, the appellant must make a showing of prejudice
in order to withdraw a plea. State v. Singleton, 169 Ohio App.3d 585, 2006-Ohio-6314,
863 N.E.2d 1114 (2d Dist.). This showing can be made by demonstrating that appellant
would not otherwise have made the plea. Veney at ¶ 15.
{¶47} Here, appellant stated on the record that his attorney had explained the
various options he had and that he had chosen to plead no contest and appeal the trial
court’s decision regarding his motion to suppress. The court’s full advisement of the
effect of a no contest plea would have made no difference in this case. Also, appellant
has made no argument that he was prejudiced or that he would have not pled no contest if
this advisement was given.
{¶48} Substantial compliance is sufficient for this nonconstitutional right, and the
court’s explanation is sufficient where appellant has made no argument regarding
prejudice.
III. Conclusion
{¶49} Evidence of drug trafficking was discovered during a valid inventory search
where appellant was arrested pursuant to an active warrant and the vehicle was going to
be towed. Therefore, the trial court did not err in denying appellant’s motion to suppress.
The trial court also did not err in imposing the maximum sentence where appellant was
convicted in another drug case as he was awaiting trial in the instant case. Finally, the trial court’s colloquy on the effect of a no contest plea, while sparse, was at least
something, requiring appellant to show prejudice in order to withdraw his plea. No
prejudice was shown here. Therefore, appellant’s convictions for drug trafficking and
possession of criminal tools are affirmed.
{¶50} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, A.J., and KENNETH A. ROCCO, J., CONCUR