[Cite as State v. James, 2016-Ohio-7262.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,
                                                          CASE NO. 5-16-14
       PLAINTIFF-APPELLEE,

      v.

MARK A. JAMES,                                            OPINION

       DEFENDANT-APPELLANT.



                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2015-CR-00032

                                      Judgment Affirmed

                            Date of Decision: October 11, 2016



APPEARANCES:

        Kenneth J. Rexford for Appellant

        Mark C. Miller for Appellee
Case No. 5-16-14


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Mark James (“James”) appeals the judgment of the

Court of Common Pleas of Hancock County for denying his motion to suppress.

For the reasons set forth below, the judgment of the lower court is affirmed.

       {¶2} In January 2015, the Findlay Police Department and METRICH Drug

Task Force initiated an investigation of James for drug trafficking. Over the course

of this investigation, law enforcement monitored three controlled buys of illegal

drugs from James. This process began when a confidential informant (“CI”)

contacted Detective Marcia Hill (“Hill”) with information about James’s drug

related activities. Tr. 57. The CI then agreed to participate in a controlled buy of

drugs from James. Id.

       {¶3} On January 26, 2015, Hill fitted the CI with both audio and video

recorders at a predetermined location. Tr. 56. The audio recorder was also a

transmitter that police could monitor during the controlled buy. Tr. 59. The video

recorder, however, did not have a transmitter, and the police could not view the

video images during the course of the operation. Tr. 59-60. Hill drove the CI to

James’s apartment complex and watched the CI walk to the apartment building. The

CI knocked on James’s door. James then opened the door and let the CI inside. The

CI handed James $100 in prerecorded funds, and James gave the CI a packet that

contained 0.33 grams of heroin. Tr. 69. The CI then left the apartment and returned

to the predetermined location with Hill. Tr. 63.

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       {¶4} On January 27, 2015, Hill oversaw another controlled buy of heroin

between the CI and James. Tr. 69. Again, Hill and the CI met at a predetermined

location where the CI was fitted with both audio and video recording devices. Tr.

70. They drove to the apartment, and the CI walked into the apartment wherein the

CI obtained 0.27 grams of heroin from James in exchange for $100 in prerecorded

funds. Tr. 75. This time, however, the video camera equipment malfunctioned and

failed to record the transaction. Hill was still able to hear the transaction over the

audio transmitter. Tr. 74.

       {¶5} The final controlled buy occurred on February 3, 2015. Tr. 75. Hill

and the CI generally followed the same pattern as in the previous two operations.

After reaching the apartment complex with Hill, the CI entered into James’s

apartment. Tr. 77. The CI went into the back bedroom where James opened an

eyeglass case filled with packets. Id. He instructed the CI to select a couple, which

the CI promptly did. Id. The CI then gave James $200 in prerecorded funds and

left the apartment. Tr. 75. Altogether, the CI was in the apartment for 2½ to 3

minutes and returned to Hill with 0.45 grams of heroin. Tr. 78. After the transaction

occurred, Hill viewed these events on the video recording device. Tr. 77.

       {¶6} On the basis of these three transactions, Hill obtained a warrant to

search James’s apartment for contraband. Tr. 82. Law enforcement executed this

warrant on February 4, 2015, and found heroin, cocaine, and other drug

paraphernalia in his apartment. Tr. 83. James was indicted with three counts of

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heroin trafficking under R.C. 2925.03(A) and one count of heroin possession under

R.C. 2925.11(A). Doc. 1.

       {¶7} The defense submitted a motion to suppress the evidence discovered

pursuant to the warrant. Doc. 49. The motion argued that the use of a covert video

camera inside of James’s apartment by a confidential informant was a warrantless

search of a home and, therefore, a Fourth Amendment violation. Id. The trial court

orally denied the motion to suppress on September 25, 2016. As part of a plea

bargain, the first three counts of drug trafficking were dropped, and James pled no

contest to the possession of heroin charge. Doc. 83. The trial court imposed a

seven-year prison term on November 12, 2015. Doc. 84. James now appeals the

trial court’s decision to overrule the motion to suppress on Fourth Amendment

grounds and raises the following assignment of error.

       The trial court erred by not suppressing the fruits of a warrantless
       search of Mr. James’s residence, thereby denying to Mr. James
       his right to freedom from unreasonable searches and seizures as
       guaranteed to him by both the United States Constitution and the
       Ohio Constitution.

James asserts that the three controlled buys constituted a warrantless search of his

residence because law enforcement used a covert video recorder during their

operations. Since these controlled buys formed the probable cause supporting the

search warrant, James asserts that the trial court erred by not suppressing the fruits

of the search of his residence.




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       {¶8} On appeal, review of a trial court’s judgment on a motion to suppress is

“a mixed question of law and fact.” State v. Fittro, 3d Dist. Marion No. 9-14-19,

2015-Ohio-1884, ¶ 11.

       When considering a motion to suppress, the trial court assumes
       the role of trier of fact and is therefore in the best position to
       resolve factual questions and evaluate the credibility of witnesses.
       State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d 972.
       Consequently, an appellate court must accept the trial court’s
       findings of fact if they are supported by competent, credible
       evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437
       N.E.2d 583. Accepting these facts as true, the appellate court must
       then independently determine, without deference to the
       conclusion of the trial court, whether the facts satisfy the
       applicable legal standard. State v. McNamara (1997), 124 Ohio
       App.3d 706, 707 N.E.2d 539.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       {¶9} The Fourth Amendment protects the right of people to be free from

unreasonable searches and seizures in their homes. The Ohio Constitution reiterates

this guarantee and has been applied as providing the same level of protection as the

United States Constitution. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795,

25 N.E.3d 993, ¶ 11 citing State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762

(1997). Warrantless searches of a home are “presumptively unreasonable.” Payton

v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). “A

‘search’ occurs when an expectation of privacy that society is prepared to consider

reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.C.t

1652, 1656, 80 L.Ed.2d 85 (1984). If the defense shows a warrantless search


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occurred, the state bears the burden of proving the search was legal. Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1998).

       {¶10} No reasonable expectation of privacy, however, exists where an

individual willingly exposes criminal wrongdoing to another person. State v.

Geraldo, 68 Ohio St.2d 120, 122-123 429 N.E.2d 141, 144 22 O.O.3d 366 (1981)

citing Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374

(1966). In choosing to reveal wrongdoing, an individual assumes the risk that their

associate may violate their confidence and report the illegal conduct. Id. The

wrongdoer also assumes the risk that their associate could be a government agent or

confidential informant. United States v. White, 401 U.S. 745, 749, 91 S.Ct. 1122,

1125, 28 L.Ed.2d 453 (1971) citing Lewis v. United States, 385 U.S. 206, 87 S.Ct.

424, 17 L.Ed.2d 312 (1966).

       {¶11} When the associate is a government agent, no Fourth Amendment

protection exists for revelations of wrongdoing even if the “the same agent,

unbeknown to the defendant, carries electronic equipment to record the defendant’s

words and the evidence so gathered is later offered in evidence.” Id. citing Lopez v.

United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

       “If the conduct and revelations of an agent operating without
       electronic equipment do not invade the defendant’s
       constitutionally justifiable expectations of privacy, neither does a
       simultaneous recording of the same conversations made by the
       agent or by transmissions received from the agent to whom the
       defendant is talking and whose trustworthiness the defendant
       necessarily risks.”

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Geraldo, supra at 122.

        {¶12} Questions exist over whether covert video recordings are similarly

permissible in this type of situation under the Fourth Amendment. In State v.

Taylor, a case very similar to the one before this court, the defendant invited a

confidential informant into his home on three separate occasions. State v. Taylor,

4th Dist. Lawrence No. 15CA12, 2016-Ohio-2781. The confidential informant was

outfitted with covert video and audio recording devices that captured the three

controlled buys of illegal narcotics inside the defendant’s home. Id. at ¶ 5. On the

basis of these controlled buys, police obtained a search warrant of the defendant’s

home and discovered contraband. Id. at ¶ 6. On appeal, the defendant argued that

the covert video and audio recording of the interior of his home by a confidential

informant was an illegal search. Id. at ¶ 34. The Fourth District found “the

wrongdoer has no reasonable expectation of privacy in what he openly reveals to a

supposed accomplice.” Since the defendant “invited the confidential informant into

his house—her presence was with his knowledge and consent.” Id. at ¶ 38.

Therefore, no search occurred and no warrant was required. Id.

        {¶13} In this case, James argues that the use of a covert video recording

device within a home constitutes a search that requires a warrant.1 In this situation,

the residential setting of these illegal activities does not afford James the heightened


1
  The simultaneous transmission of a video recording is not at issue in the present case. While the CI’s
equipment was capable of both audio recording and audio transmission, it was only capable of video
recording and not video transmission.

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protections typically afforded to private homes because he invited the CI into his

apartment and consented to the presence of the CI inside his residence. Id. at ¶ 38.

The CI was, therefore, in a lawful position within James’s apartment. The video

camera was fitted to the CI’s person with the consent of the CI and only taped the

interior of James’s residence from the perspective of the CI’s legal vantage point.

See United States v. Yang, 281 F.3d 534, 548 (6th Cir. 2002). The video footage

was limited to the duration of the CI’s presence in James’s apartment. No additional

police surveillance of the interior of James’s residence occurred prior to the CI’s

entry or after the CI’s departure. After the controlled buy was completed, the police

saw video footage that was limited to the places to which the CI was invited and the

criminal conduct James knowingly exposed to their confidential informant.

       {¶14} Further, the video recording device captured criminal wrongdoing that

was revealed by James to a “supposed accomplice.” Taylor at ¶ 36. As in Taylor,

Id. at ¶ 5, James voluntarily chose to reveal to the CI James’s criminal activities on

three separate occasions after he invited the CI to enter into his home. Tr. 75.

During all three controlled buys, James exchanged illegal drugs for prerecorded

funds. Id. In the final controlled buy, James even revealed that he hid his stash of

illegal drugs in an eyeglasses case stored in his bedroom. Tr. 77. Since “the Fourth

Amendment does not protect a wrongdoer’s misplaced belief that a person to whom

he voluntarily confides his wrongdoing will not reveal it”, James had no reasonable

expectation of privacy for the police to infringe upon by capturing his illegal

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activities on video. Taylor. at ¶ 36 citing Hoffa, 385 U.S. 293, 87 S.Ct. 408, 17

L.Ed.2d 374.

       {¶15} Since the CI was invited into James’s apartment, the CI’s presence as

a confidential informant in his apartment did not infringe upon James’s privacy

rights. Further, James did not have a reasonable expectation of privacy in his

criminal activities, so no search of his apartment occurred. For these reasons, the

covert recordings of these three transactions were constitutionally permissible. See

Geraldo at 22. Accordingly, the assignment of error is overruled.

       {¶16} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Hancock

County is affirmed.

                                                               Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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