[Cite as State v. McClafferty, 2018-Ohio-4659.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                   :         OPINION

                   Plaintiff-Appellant,           :
                                                            CASE NO. 2018-P-0013
         - vs -                                   :

 BRETT M. MCCLAFFERTY,                            :

                   Defendant-Appellee.            :


 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
 00775.

 Judgment: Reversed and remanded.


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

 Sean C. Buchanan, Slater & Zurz, One Cascade Plaza, Suite 2210, Akron, OH 44308
 (For Defendant-Appellee).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, the State of Ohio, appeals suppression of evidence seized during

a search. The state maintains that suppression is improper as the evidence was in the

officer’s plain view while executing a valid warrant. We reverse and remand.

        {¶2}      Appellee, Brett M. McClafferty, was investigated for three separate

incidents. One involves this case. Another involves a fraud complaint surrounding a

Bitcoin purchase, and the last, unauthorized use of a credit card.
      {¶3}   In the present case, appellee was indicted on one count of grand theft and

two counts of identity fraud. One identity fraud count pertains to appellee’s sister, Erin

McClafferty, and alleges that appellee recklessly obtained and used her identity to open

a bank account. The other two counts assert that appellee stole $7,500 from Goodfellas

Roofing by fraudulently transferring funds from the company’s account to the account

opened under his sister’s name.

      {¶4}   While these charges were pending, appellee was investigated on an

unrelated matter by the City of Streetsboro Police Department due to a complaint from

Lisa Belcastro involving fraud in a bitcoin purchase from appellee. A warrant was issued

to search appellee’s parent’s home where appellee resided. The warrant covers a laptop

computer and “[e]vidence and property to include confiscated information regarding

‘bitcoin’ activity and solicitations for ‘MAC Capital’ and account/client information and

deposits of Lisa Belcastro.”

      {¶5}   The warrant was executed by Arvin Clar, a special agent for the Ohio

Bureau of Criminal Investigation. Initially, appellee’s mother escorted Agent Clar to the

basement where he seized appellee’s laptop. He next searched appellee’s bedroom,

where he observed a piece of paper sticking out of a book. Agent Clar opened the book

and saw a copy of Erin McClafferty’s social security card and a copy of one of her banking

statements. Agent Clar seized both items.

      {¶6}   Appellee’s trial counsel learned that the state planned to introduce copies

of the social security card and banking statement at trial in the present case. Counsel

moved to suppress both on the basis that the search warrant does not cover items

belonging to Erin McClafferty. Agent Clar was the sole witness at the suppression

hearing. When asked why he seized the two items, he testified that he was aware of yet

                                            2
another unrelated incident involving appellee in which his sister alleged unauthorized use

of a credit card: “When I saw the Social Security card of Erin McClafferty, I believed that

that was part and parcel of a prior case.”

       {¶7}   In its judgment granting the motion to suppress, the trial court concluded

that neither of the items seized by Agent Clar were covered under the search warrant or

in plain view. The state appeals that decision certifying that suppression renders the

state’s proof so weak in its entirety that any reasonable possibility of effective prosecution

has been destroyed.

       {¶8}   Appellant asserts two assignments of error:

       {¶9}   “[1.] As [appellee] presented no evidence in support of his motion to

suppress evidence seized pursuant to a warrant, the trial court erred in granting the

motion.

       {¶10} “[2.] Assuming arguendo this court reaches the merits of the trial court’s

decision, the trial court erred in granting [appellee’s] motion to suppress because the

challenged evidence was legally seized.”

       {¶11} Resolution of the second assignment is dispositive. Under that assignment,

the state argues that the motion to suppress should have been overruled because either

the copies of the social security card and banking statement are covered under the search

warrant, or they were in Agent Clar’s plain view as he was conducting a lawful search.

For the following reasons, the evidence was legally seized under the plain view exception

to the Fourth Amendment.

       {¶12} In considering the scope of a search executed pursuant to a valid warrant,

the United States Supreme Court has stated:

       {¶13} “A lawful search of fixed premises generally extends to the entire area in

                                              3
which the object of the search may be found and is not limited by the possibility that

separate acts of entry or opening may be required to complete the search. Thus, a

warrant that authorizes an officer to search a home for illegal weapons also provides

authority to open closets, chests, drawers, and containers in which the weapon might be

found. A warrant to open a footlocker to search for marihuana would also authorize the

opening of packages found inside. * * * When a legitimate search is under way, and when

its purpose and its limits have been precisely defined, nice distinctions between closets,

drawers, and containers, in the case of a home, * * * must give way to the interest in the

prompt and efficient completion of the task at hand.” (Footnotes omitted.) United States

v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed2d 572 (1982).

      {¶14} Under Ross, a police officer executing a search warrant has the authority to

open and look inside any container that is large enough to contain an item listed in the

warrant. Thus, an officer is permitted to open a box when the warrant authorizes him to

look for any amount of illegal drugs. United States v. McManaman, N.D.Iowa No. CR10-

4024-MWB, 2010 WL 4103530, *10 (Oct. 18, 2010). Similarly, an officer does not need

a second warrant to open a safe in a hotel room when the original warrant authorizes him

to look for checks, receipts, ledgers, and personal papers. State v. Brewster, 157 Ohio

App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162, ¶36.

      {¶15} Here, appellee has not challenged the validity of the search warrant. That

warrant authorizes a search for account information in relation to Lisa Belcastro regarding

the bitcoin investigation. Given that account information may be found on a single piece

of paper located within the pages of a book, Agent Clair was authorized to open the book

and look at the papers.

      {¶16} When an officer finds an object during a valid search not referenced in the

                                            4
warrant, the plain view doctrine applies to whether seizure violates the Fourth

Amendment. See McManaman, supra; United States v. Evans, 966 F.2d 398, 400 (8th

Cir.1992); State v. Seibert, 5th Dist. Tuscarawas No. 2004-AP-060048, 2005-Ohio-275,

¶15. “‘An example of the applicability of the “plain view” doctrine is the situation in which

the police have a warrant to search a given area for specified objects, and in the course

of the search come across some other article of incriminating character.’ Coolidge v. New

Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037-38, 29 L.Ed2d 564 (1970).” Evans,

at 400.

       {¶17} “Under the plain-view exception to the search warrant requirement, police

may seize evidence 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, 136-137 (1990).” State v.

Zerucha, 11th Dist. Ashtabula No. 2015-A-0031, 2016-Ohio-1300, ¶17.

       {¶18} Given that Agent Clar was executing a warrant that allowed him to search

for documents or papers regarding bitcoin activity, he was lawfully present in appellee’s

bedroom and had the right to access the papers in the book. The outcome turns upon

whether the incriminating nature of the social security card and the banking statement is

immediately apparent.

       {¶19} “‘Immediately apparent’ means that the officer must have had probable

cause to believe the item is contraband. Arizona v. Hicks (1987), 480 U.S. 321, 326, 107

S.Ct. 1149, 94 L.Ed.2d 347. Probable cause merely requires that the facts available to

the officer would warrant a person of reasonable caution in the belief that a certain item

may be contraband. A practical probability that incriminating evidence is involved is all

                                              5
that is required. Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d

502.” Seibert, 2005-Ohio-275, ¶17.

       {¶20} In making the probable cause determination, an officer can rely upon his

specialized knowledge, training, and experience. State v. Hakim, 8th Dist. Cuyahoga No.

105679, 2018-Ohio-492, ¶25, quoting State v. Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d

925 (1986), paragraph four of the syllabus.

       {¶21} As noted above, both papers Agent Clar seized pertain to appellee’s sister,

Erin. Agent Clar had knowledge of a prior incident in which Erin made allegations

involving appellee’s unauthorized use of her credit card. Given that the seized papers

were found in appellee’s bedroom, Agent Clar had a reasonable belief of their

incriminating character including, at the very least, identity fraud.

       {¶22} As all three requirements for the plain view doctrine are satisfied, the

seizure was permissible and the trial court erred in granting appellee’s motion to

suppress. The state’s second assignment has merit, and all other arguments raised are

moot. See App.R. 12(A)(1)(c).

       {¶23} The judgment of the Portage County Court of Common Pleas is reversed,

and this case is remanded for further proceedings consistent with this opinion.


CYNTHIA WESTCOTT RICE, J.

TIMOTHY P. CANNON, J.,

concur.




                                              6
