[Cite as State v. Harrington, 2013-Ohio-1864.]


                                        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-                                             :
                                                 :
TIMOTHY R. HARRINGTON                            :   Case No. 12-CA-31
                                                 :
        Defendant-Appellant                      :   OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 11-CR-152



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 6, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOCELYN S. KELLY                                     THOMAS R. ELWING
239 W. Main Street                                   60 West Columbus Street
Suite 101                                            Pickerington, OH 43147
Lancaster, OH 43130
Fairfield County, Case No. 12-CA-31                                                     2

Farmer, J.

       {¶1}   On April 8, 2011, the Fairfield County Grand Jury indicted appellant,

Timothy Harrington, on one count of engaging in a pattern of corrupt activity in violation

of R.C. 2923.32, fifteen counts of burglary in violation of R.C. 2911.12, one count of

attempted burglary in violation of R.C. 2911.12 and 2923.02, six counts of breaking and

entering in violation of R.C. 2911.13, four counts of vandalism in violation of R.C.

2909.05, one count of grand theft in violation of R.C. 2913.02, and one count of

receiving stolen property in violation of R.C. 2913.51.       All charges stemmed from

various thefts of copper pipe and wire from area vacant homes.

       {¶2}   On August 4, 2011, appellant filed a motion to suppress all evidence,

claiming an unlawful and warrantless trespass upon his property by a police officer who

installed a GPS tracking device on his vehicle. The GPS unit was authorized to be

placed on appellant's vehicle via an entry signed by a Franklin County municipal court

judge. A hearing on the suppression motion was held on September 2, 2011. By

journal entry filed February 22, 2012, the trial court denied the motion.

       {¶3}   On May 2, 2012, appellant pled no contest to all but the grand theft count

and the receiving stolen property count which were dismissed. By judgment entry filed

May 23, 2012, the trial court sentenced appellant to an aggregate sentence of fifteen

years in prison, three years suspended in lieu of five years of community control.

       {¶4}   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-31                                                           3


                                               I

       {¶5}    "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION

TO SUPPRESS EVIDENCE RESULTING FROM POLICE INSTALLATION OF A GPS

TRACKING DEVICE ON APPELLANT'S AUTOMOBILE WITHOUT A VALID SEARCH

WARRANT IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14,

ARTICLE I OF THE OHIO CONSTITUTION."

                                               I

       {¶6}    Appellant claims the trial court erred in denying his motion to suppress.

We disagree.

       {¶7}    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
Fairfield County, Case No. 12-CA-31                                                    4


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

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."

      {¶8}   Appellant argues the warrantless trespass upon his driveway and the

installation of a GPS device on his vehicle violated his rights under the Fourth

Amendment. By entry filed February 2, 2011, a Franklin County municipal court judge

granted police the right to place a GPS tracking device on appellant's vehicle. Our first

determination is whether this entry was a violation of appellant's Fourth Amendment

rights. For the following reasons, we find granting the request was not a violation of

appellant's protections against unlawful and warrantless seizures.

      {¶9}   On February 2, 2011, Reynoldsburg Police Detective Michael Binder

appeared before the municipal court judge and set forth via affidavit his reasons,

observations, and the facts leading to the request for the installation of the electronic

tracking device. The judge granted the installation of the device on the specific vehicle

allegedly being used to transport the suspect and the stolen copper to and from the

crime scenes:



             1. Those member's of the Reynoldsburg Police Department are

      authorized to install and operate an electronic tracking device on subject

      vehicle at 1996 Pontiac Sunfire, red in color, Ohio License EWP6062, VIN

      # 1G2JB1247T7576575 during the daytime or nighttime. The electronic
Fairfield County, Case No. 12-CA-31                                                      5


       tracking device may be operated and monitored continuously throughout

       the period of this court order and may be monitored when the subject

       vehicle is located in a place where there is a reasonable expectation of

       privacy.

              2. That members of the Reynoldsburg Police Department may

       surreptitiously enter the above described subject vehicle for the explicit

       purpose of installing and removing said electronic tracking device, and to

       reenter the subject vehicle at any time to make mechanical adjustments

       should the device be rendered inoperable.



       {¶10} Appellant argues regardless of a review of sworn-to facts by a neutral

magistrate and the entry, the placing of the GPS device was a warrantless trespass. In

support of his position, appellant cites the case of United States v. Jones, ___ U.S. ___,

132 S.Ct. 945 (2012). Although Jones does state that the warrantless placing of a GPS

tracking device upon a vehicle is against the Fourth Amendment guarantees of

unreasonable searches and seizures, it does not address an authorized placing of a

GPS device by the state.      In addressing the issue of a non-trespass, the majority

revisited its decision in Katz v. United States, 389 U.S. 347 (1967). In Katz, the United

States Supreme Court found the placement of an unwarranted eavesdropping device in

a public telephone booth was not a search envisioned by the Fourth Amendment.

Although Katz may be particularly relevant to the inquiry as to the location of the vehicle

when the GPS device was placed, it does not answer the question if a neutral

magistrate may grant the placement of the device. In particular, the Jones court leads
Fairfield County, Case No. 12-CA-31                                                    6


one to the impression that the specific issue is for another day. The day may have just

arrived.

       {¶11} The Fourth Amendment takes its historic roots from the use by the colonial

government of general search warrants (Writs of Assistance).            As a result, our

Constitutional framers determined that a violation of privacy is only reasonable by a

warrant "supported by probable cause and specifically describing the place to be

searched and the thing to be seized." Katz, Ohio Arrest, Search and Seizure, Section

1:4, at 13 (2009 Ed.)



              In determining the sufficiency of probable cause in an affidavit

       submitted in support of a search warrant, "[t]he task of the issuing

       magistrate is simply to make a practical, common-sense decision whether,

       given all the circumstances set forth in the affidavit before him, including

       the 'veracity' and 'basis of knowledge' of persons supplying hearsay

       information, there is a fair probability that contraband or evidence of a

       crime will be found in a particular place."

              In reviewing the sufficiency of probable cause in an affidavit

       submitted in support of a search warrant issued by a magistrate, neither a

       trial court nor an appellate court should substitute its judgment for that of

       the magistrate by conducting a de novo determination as to whether the

       affidavit contains sufficient probable cause upon which that court would

       issue the search warrant. Rather, the duty of a reviewing court is simply

       to ensure that the magistrate had a substantial basis for concluding that
Fairfield County, Case No. 12-CA-31                                                      7


       probable cause existed. In conducting any after-the-fact scrutiny of an

       affidavit submitted in support of a search warrant, trial and appellate

       courts should accord great deference to the magistrate's determination of

       probable cause, and doubtful or marginal cases in this area should be

       resolved in favor of upholding the warrant.



State v. George, 45 Ohio St.3d 325 (1989), paragraphs one and two of the syllabus,

following Illinois v. Gates, 462 U.S. 213 (1983).



       {¶12} Do the facts presented in this case meet the minimum requirements of

probable cause and specific description? We answer in the affirmative. The municipal

court judge reviewed an affidavit that set forth specific facts and observations that

clearly met the probable cause standard.            Further, the issuing entry specifically

identified the vehicle upon which the device was to be placed including possible

locations.

       {¶13} Although much is made about the lack of service of the execution of the

warrant, we find that is a distinction without a difference. The issue is whether the

search was authorized under the scrutiny of probable cause. We note the order is very

similar to entries for other eavesdropping devices. As noted in Jones, the GPS device

is merely shortcutting the actual personal surveillance of the subject vehicle as it

traverses the public roads.

       {¶14} We conclude the test of Katz v. United States, supra, and its progeny have

been met as to the entry authorizing the warrant.
Fairfield County, Case No. 12-CA-31                                                           8


       {¶15} The second inquiry is whether the police, in fulfilling the directives of the

entry, had the right to enter upon appellant's private property to place the device in his

vehicle. The specific issue is whether appellant's expectation of privacy extends to the

vehicle parked in his own driveway.

       {¶16} One Federal Circuit Court and one California Appellate Court pre-Jones

have discussed whether the placing of a tracking device in the undercarriage of a

vehicle while parked in a driveway is in fact the "curtilage" of the property and included

in an owner's expectation of privacy. See, United States v. McIver, 186 F.3d 1119 (9th

Cir.1999) and The People v. Daniel George Zichwic, 94 Cal.App.4th 944 (2001). Both

cases recognize it is the placement of the parked vehicle in relation to the residence

that determines if it is in the curtilage. The Zichwic court held at 953 that just like any

other visitor to a residential property, a police officer is entitled to walk on to parts of the

curtilage that are not fenced off:



              Defendant contends that the police searched his property when

       "they trespassed into the curtilage of his home." The concept of curtilage

       has been employed to identify what property is protected by the Fourth

       Amendment. In Oliver v. United States (1984) 466 U.S. 170 [104 S.Ct.

       1735, 80 L.Ed.2d 214], the United States Supreme Court "recognized that

       the Fourth Amendment protects the curtilage of a house and that the

       extent of the curtilage is determined by factors that bear upon whether an

       individual reasonably may expect that the area in question should be

       treated as the home itself." (United States v. Dunn (1987) 480 U.S. 294,

       300 [107 S.Ct. 1134, 1139, 94 L.Ed.2d 326].) Dunn articulated several
Fairfield County, Case No. 12-CA-31                                                     9


       factors relevant to determining whether a location is within the curtilage,

       including "the proximity of the area claimed to be curtilage to the home,

       whether the area is included within an enclosure surrounding the home,

       the nature of the uses to which the area is put, and the steps taken by the

       resident to protect the area from observation by people passing by." (Id.

       at p. 301 [107 S.Ct. at p. 1139.].)

              However, the law is clear that not every technical trespass onto the

       curtilage amounts to a search. Just like any other visitor to a residence, a

       police officer is entitled to walk onto parts of the curtilage that are not

       fenced off. "Whether a driveway is protected from entry by police officers

       depends on the circumstances. The fact that a driveway is within the

       curtilage of a house is not determinative if its accessibility and visibility

       from a public highway rule out any reasonable expectation of privacy.

       (United States v. Magana (9th Cir. 1975) 512 F.2d 1169, 1171.)" (United

       States v. Smith (6th Cir. 1986) 783 F.2d 648, 651.)



       {¶17} Under the facts, the Zichwic court found at 956 that the normal route for a

visitor to reach the defendant's front door would be to walk up the driveway from the

street and by necessity navigate around any parked vehicles; therefore, the "trespass"

was not a violation of the defendant's right of privacy.

       {¶18} In McIver, the court found a truck parked outside the garage was not

within the curtilage of the residence. The court at 1126 relied on the specific facts that
Fairfield County, Case No. 12-CA-31                                                  10


the driveway and the apron in front of the garage were open to observation from

passing persons and there was no fence or gate present.

      {¶19} Ohio courts have also recognized that some properties, although within

the curtilage, are not provided Constitutional protection. See, State v. Crenshaw, 8th

Dist. No. 90635, 2008-Ohio-4859 (an officer could walk up a driveway, but could not

enter a fenced backyard); State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373 (an

officer could look in a crack of a garage door); State v. Terlesky, 7th Dist. No. 05 MA

237, 2007-Ohio-3402 (an officer could look in a window of a closed business).

      {¶20} Reynoldsburg Police Detective Tye Downard personally installed the

device on appellant's vehicle during the early morning hours. T. at 34. The vehicle was

parked in the driveway "facing in where the driver's seat is closer to the house and the

rear bumper was down where the sidewalk area is." T. at 35. The vehicle was not

enclosed by a fence or a gate and no signs or warnings or "no trespassing" signs were

posted. Id. Detective Downard testified in order to install the device, he got down on

the ground, slid under the vehicle, and attached it to the metal frame. T. at 43. He

testified the normal course to approach the front door of the property would include

passing the vehicle in the driveway. T. at 50.

      {¶21} Based upon the specific facts of this case, we find no constitutional

infringement by the officer who merely approached and passed the vehicle as any other

visitor would. We find the trial court did not err in upholding the placement of the GPS

device pursuant to the entry and order of the municipal court judge.

      {¶22} Under the "fruit of the poisonous tree" doctrine, appellant argues the

state's statements and the search warrant obtained for his residence were based upon
Fairfield County, Case No. 12-CA-31                                                     11


information procured via the GPS device. Appellant argues this tainted evidence used

for the search warrant requires suppression. Based upon our finding that there was no

Constitutional violation in placing the GPS device, we find this argument to be moot.

      {¶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. and

Hoffman, J. concur.




                                            s / Sheila G. Farmer______________



                                            _s/ W. Scott Gwin________________



                                            s/ William B. Hoffman_____________

                                                           JUDGES

SGF/sg 23
[Cite as State v. Harrington, 2013-Ohio-1864.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                    :
                                                 :
        Plaintiff-Appellee                       :
                                                 :
-vs-                                             :        JUDGMENT ENTRY
                                                 :
TIMOTHY R. HARRINGTON                            :
                                                 :
        Defendant-Appellant                      :        CASE NO. 12-CA-31




        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 / Sheila G. Farmer______________



                                                 _s/ W. Scott Gwin________________



                                                 s/ William B. Hoffman_____________

                                                              JUDGES
