[Cite as State v. Myers, 2014-Ohio-1039.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13 COA 023
LINDSAY E. MYERS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 13 CRB 390AB


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         March 14, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

DAVID M. HUNTER                                MATTHEW J. MALONE
ASSISTANT LAW DIRECTOR                         LAW OFFICE OF MATTHEW J. MALONE
1213 East Main Street                          11 1/2 East 2nd Street
Ashland, Ohio 44805                            Ashland, Ohio 44805
Ashland County, Case No. 13 COA 023                                                      2

Wise, J.

       {¶1}   Appellant Lindsay E. Myers appeals the decision of the Ashland Municipal

Court denying her motion to suppress.

       {¶2}   Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   At the suppression hearing on May 14, 2013, Officer Bloodhart of the

Ashland Police Department testified to the following:

       {¶4}   On April 6, 2013, at approximately 3:18 a.m., Officer Bloodhart was on

patrol in Ashland, Ohio, when he saw a legally parked, idling vehicle on Cleveland

Avenue. (T. at 17, 39). Officer Bloodhart further noticed that the driver of the vehicle,

later determined to be Appellant Lindsay Myers, was "slumped down in front of the

steering wheel" and he was concerned that she was asleep or passed out behind the

wheel of a running vehicle. (T. at 18-20).

       {¶5}   Officer Bloodhart exited his vehicle to check on Myers. (T. at 22). As he

approached, Myers sat up and rolled down the window. (T. at 23). Officer Bloodhart

noticed that Myers had "red, watery eyes, and [he] could smell a strong odor of air

freshener and also a strong odor of an alcoholic beverage being emitted from the

vehicle." Id. Myers then exited her vehicle at Officer Bloodhart's request to perform field

sobriety tests. (T. at 24, 27-32).

       {¶6}   Based on Myers’ performance, Officer Bloodhart determined that she was

under the influence of alcohol. He read Myers her Miranda rights, placed her under

arrest and secured her in his cruiser. (T. at 31-32). Officer Bloodhart then advised

Myers that "[he] was going to go get her personal effects, cell phone, purse, keys, and
Ashland County, Case No. 13 COA 023                                                  3


secure her vehicle", to which Myers did not respond. (T. at 32-33). Officer Bloodhart

then went back to Myer's vehicle and, as he removed her cell phone and car remote

from the center console, he smelled the odor of burnt marijuana. (T. at 33). He then

observed a marijuana pipe underneath the stereo and a baggie of raw marijuana inside

a cup in the center console. (T. at 33-35, 49). Neither the marijuana nor the marijuana

pipe was observable from the outside of the vehicle. (T. at 48).

      {¶7}   On May 3, 2013, Appellant Myers filed a motion to suppress which the trial

court overruled by judgment entry on June 11, 2013.

      {¶8}   On July 3, 2013, Appellant Myers entered no contest pleas to both counts.

On the drug paraphernalia charge, the trial court sentenced Appellant to 30 days

incarceration with 15 days suspended, fined her $250, placed her on probation for one

year and suspended her driver’s license for six (6) months.        On the possession of

marijuana charge, the trial court sentenced Appellant to 30 days incarceration with 15

days suspended, to be run concurrently with the paraphernalia sentence, an additional

$250 fine and an additional six (6) months license suspension.

      {¶9}   Appellant now appeals, assigning the following errors for review:

                                 ASSIGNMENTS OF ERROR

      {¶10} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

TO SUPPRESS EVIDENCE SEIZED FROM HER VEHICLE BY FAILING TO APPLY

THE APPROPRIATE TEST OR CORRECT LAW TO THE FINDINGS OF FACT.

      {¶11} “II. THE TRIAL COURT ERRED BY FINDING THAT THE EVIDENCE

SEIZED WAS IN PLAIN VIEW OF THE OFFICER UPON HIS SECOND RETURN TO

APPELLANT'S VEHICLE.”
Ashland County, Case No. 13 COA 023                                                        4


                                            I., II.

       {¶12} In her First and Second Assignments of Error, Appellant argues that the

trial court erred in denying her motion to suppress. We disagree.

       {¶13} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328,

713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of

fact and, as such, is in the best position to resolve questions of fact and to evaluate

witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A

reviewing court is bound to accept the trial court's findings of fact if they are supported

by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d 142, 675

N.E.2d 1268. Accepting these facts as true, the appellate court must independently

determine as a matter of law, without deference to the trial court's conclusion, whether

the trial court's decision meets the applicable legal standard. State v. Williams (1993),

86 Ohio App.3d 37, 619 N.E.2d 1141.

       {¶14} 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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (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
Ashland County, Case No. 13 COA 023                                                       5


37, 619 N.E.2d 1141 (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. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as

a general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

       {¶15} In the instant case, Appellant argues the trial court erred in allowing the

evidence of an unconstitutional search of his vehicle. Appellant argues that the trial

court in its decision denying her motion to suppress, erred in reasoning that that the

officer’s search of Appellant’s vehicle was justified as a search incident to a valid arrest

and/or the items seized were in plain view.

       {¶16} 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 (1967), 389 U.S. 347, 357, 88 S.Ct. 507.

“Unreasonable searches and seizures are constitutionally prohibited. Ohio Const. Sec.

14, Art. I; U.S. Const. Amend. IV and XIV; Maryland v. Buie (1990), 494 U.S. 325, 331

[110 S.Ct. 1093, 108 L.Ed.2d 276]; State v. Robinette (1997), 80 Ohio St.3d 234, 238–

239 [685 N.E.2d 762]. For a search or seizure to be reasonable, it must be supported by

a warrant or based upon an exception to the warrant requirement. Katz v. United States

(1967), 389 U.S. 347, 357 [88 S.Ct. 507, 19 L.Ed.2d 576].” State v. Adams, 7th Dist. No.

08 MA 246, 2011-Ohio-5361.
Ashland County, Case No. 13 COA 023                                                         6


       {¶17} The Ohio Supreme Court has recognized seven exceptions to the warrant

requirement: “(a) [a] search incident to a lawful arrest; (b) consent signifying waiver of

constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) probable cause to

search, and the presence of exigent circumstances; or (f) the plain-view doctrine,” State

v. Akron Airport Post No. 8975, 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985), certiorari

denied 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 777 (1986); or (g) an “administrative

search,” Stone v. Stow, 64 Ohio St.3d 156, 164, 593 N.E.2d 294, fn. 4 (1992).

                                     Incident to Lawful Arrest

       {¶18} The trial court found that the search in this case was incident to arrest,

which as set forth above is recognized as an exception to the general prohibition

against warrantless searches. Chimel v. California, 395 U.S. 752, 762–63, 89 S

.Ct.2034, 23 L.Ed.2d 685 (1969); Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173

L.Ed.2d 485 (2009). “The exception derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations.” Id. at 338, citing United

States v. Robinson, 414 U.S. 218, 230–234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973);

Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Under

Gant, a search incident to a lawful arrest is permitted “when an arrestee is within

reaching distance of the vehicle or it is reasonable to believe the vehicle contains

evidence of the offense of arrest.” Id. at 346. Reasonableness “is measured in objective

terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33,

39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

       {¶19} Here, Appellant was not within reaching distance of anything in her vehicle

at the time of the subject search, having already been secured in the officer’s patrol car.
Ashland County, Case No. 13 COA 023                                                         7


We therefore find that the “search incident to lawful arrest” exception does not apply

here.

        {¶20} We do however find that the officer’s actions in returning to Appellant’s

vehicle to roll up the driver’s side window, turn off the ignition and collect Appellant’s

purse and cell phone fall within the exception of a care-taking function. (T. at 33, 46-

47). He did not return to the vehicle with an investigatory purpose. However, once he

reached into the vehicle he observed an odor or burnt marijuana and then saw a multi-

colored marijuana pipe in plain view in the console under the stereo. (T. at 33, 47). He

also observed the arm rest/console between the front seats was open and that a cup

was located in the console with what appeared to be a baggie of marijuana inside. (T. at

49).

                                             Plain view

        {¶21} In Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d

1067 (1968), the United States Supreme Court held “it has long been settled that

objects falling in plain view of an officer who has a right to be in the position to have that

view are subject to seizure and may be introduced in evidence.” In Texas v. Brown, 460

U.S. 730, 738, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), then Justice Rehnquist

explained the plain view doctrine does not set limitations on “open view” sightings:

        {¶22} “ * * *objects such as weapons or contraband found in a public place may

be seized by the police without a warrant. The seizure of property in plain view involves

no invasion of privacy and is presumptively reasonable, assuming there is probable

cause to associate the property with criminal activity.” * * * “[P]lain view” provides
Ashland County, Case No. 13 COA 023                                                      8


grounds for seizure of an item when an officer's access to an object has some prior

justification under the Fourth Amendment. (Citations omitted.)

       {¶23} In Katz, Ohio Arrest, Search and Seizure, Section 13.01, at 214 (1997

Ed.), a two part test is set forth that must be met to justify a plain view search and

seizure: the “intrusion affording the plain view must be lawful” and the “incriminating

nature of the evidence must be immediately apparent to the seizing authority.”

       {¶24} Based on the facts as presented in this case, we find that Officer

Bloodhart’s actions in returning to Appellant’s vehicle were lawful as he was performing

a safe-keeping/care-taking function in turning off the engine, collecting Appellant’s purse

and cell phone and locking the vehicle. Accepting the officer’s testimony as true, the

pipe and marijuana were in plain view. Given this plain view observation we find the trial

court did not err in denying Appellant's motion to suppress.

       {¶25} Based on the foregoing, we find Appellant’s First and Second

Assignments of Error not well-taken and overrule same.

       {¶26} For the foregoing reasons, the decision of the Municipal Court of Ashland

County, Ohio, is affirmed.

By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.



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