[Cite as State v. Furniss, 2013-Ohio-2064.]


                                        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-                                          :
                                              :
CHARLES FURNISS                               :      Case No. 12-CA-41
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 12 CR 0110



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 13, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOCELYN S. KELLY                                     AARON CONRAD
239 West Main Street                                 120½ East Main Street
Suite 101                                            Lancaster, OH 43130
Lancaster, OH 43130
Fairfield County, Case No. 12-CA-41                                                      2

Farmer, J.

       {¶1}   On October 8, 2011, Lancaster Police Officer James Hall stopped

appellant, Charles Furniss, for speeding. Officer Matt Mullet arrived as backup. When

appellant retrieved his registration from his glove compartment, a padded case fell to

the floorboard. Officer Mullet asked to see the case and appellant handed it over.

Officer Mullet opened the case and discovered a glass pipe containing marijuana

residue. Appellant was ordered out of his vehicle whereupon his person was searched

and pills, marijuana, and money were found in his pockets. Appellant identified the pills

and admitted to selling them. He was then arrested, read his Miranda rights, and taken

to the police station.

       {¶2}   On February 24, 2012, the Fairfield County Grand Jury indicted appellant

on one count of aggravated trafficking in drugs in violation of R.C. 2925.03 and one

count of aggravated possession of drugs in violation of R.C. 2925.11.

       {¶3}   On March 28, 2012, appellant filed a motion to suppress, claiming an

illegal search of his vehicle and his person, and statements made during a custodial

interrogation prior to his Miranda rights violated his Fifth Amendment rights. A hearing

was held on May 14, 2012. By entry filed July 3, 2012, the trial court suppressed

appellant's statements made at the scene and denied the motion in all other respects.

       {¶4}   On July 10, 2012, appellant pled no contest to aggravated trafficking in

drugs and the remaining count was dismissed. By judgment entry filed July 18, 2012,

the trial court found appellant guilty and sentenced him to fourteen months in prison.

       {¶5}   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-41                                                           3


                                               I

       {¶6}    "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION

TO SUPPRESS."

                                               I

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

We disagree.

       {¶8}    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

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
Fairfield County, Case No. 12-CA-41                                                      4

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."

       {¶9}    Appellant's motion argued an illegal search of his vehicle and his person,

and statements made during a custodial interrogation prior to his Miranda rights violated

his Fifth Amendment rights. The trial court suppressed the custodial statements made

at the scene relative to identification of the pills and his admission to selling drugs. As

to the other prongs, the trial court denied the motion. We concur with the trial court's

conclusions.

       {¶10} In its entry filed July 3, 2012, the trial court found there was probable

cause to open and search the padded case that fell to the floorboard:



               Viewing the totality of the circumstances, the Court finds that Ofc.

       Mullet did have probable cause to open and search the padded case.

       Although the details of the case's appearance were no longer clear to Ofc.

       Mullet at the time of the evidentiary hearing, Ofc. Mullet clearly referenced

       the same object as described in the incident report he completed just after

       the incident and described by Ofc. Hall in his testimony. More importantly,

       Ofc. Mullet credibly articulated specific grounds that he reasonably

       believed a crime was being committed or that contraband was present in

       the case. Specifically, Ofc. Mullet testified that he had encountered similar

       cases in the course of his duties and that such a case had contained a

       glass marijuana pipe every time that he had encountered one. Although

       there might be other uses for such a case, it was not unreasonable for
Fairfield County, Case No. 12-CA-41                                                  5


      Ofc. Mullet to draw the conclusion that possession of such a case

      indicated that Defendant was in possession of marijuana or drug

      paraphernalia.



      {¶11} The trial court also found appellant consented to the search of his person

and it was not a mere acquiescence to authority:



             Considering all of the facts and circumstances, the Court finds that

      Defendant's consent to a search of his person was voluntary and not a

      mere acquiescence to a claim of authority. Even considering Defendant's

      evident fear during his encounter with officers Hall and Mullet, the Court

      finds that officer's Hall and Mullet did not take any unusual or coercive

      actions to cause Defendant to experience that fear. In addition, unlike in

      Robinette, Defendant did not face the implicit threat that he would be

      subject to an increased sanction if he did not comply with the request for a

      search. At the time of the request, Defendant knew that Officer Mullet had

      discovered his marijuana pipe and a small amount of marijuana. He had

      every reason to expect that he would be arrested soon and may have

      reasonably believed that he was in the process of being arrested. There

      was nothing for Defendant to gain by consenting to a search of his person

      before that apparently impending arrest.         Further, throughout the

      encounter Defendant had been cooperative with the police, taking the

      keys out of his ignition, promptly identifying himself, and handing over his
Fairfield County, Case No. 12-CA-41                                                     6


         pipe case. Considering the encounter as a whole, the Court finds that the

         State met its burden to establish consent by a preponderance of the

         evidence.



         {¶12} Although granting the motion to suppress relative to appellant's

statements made at the scene, the trial court found the post-Miranda statements made

at the police department were "sufficiently attenuated as to dissipate the taint of his

suppressed statements." See, July 3, 2012 Entry.

                                 OPENING OF PADDED CASE

         {¶13} Appellant's challenge to the opening of the padded case is predicated

upon a lack of credibility of the officers' descriptions of the case. Appellant argues the

officers' limited observation of the padded case was insufficient to establish probable

cause.

         {¶14} In State v. Halczyszak, 25 Ohio St.3d 301 (1986), paragraphs three and

four of the syllabus, the Supreme Court of Ohio held the following:



                3. The "immediately apparent" requirement of the "plain view"

         doctrine is satisfied when police have probable cause to associate an

         object with criminal activity.

                4. In ascertaining the required probable cause to satisfy the

         "immediately apparent" requirement, police officers may rely on their

         specialized knowledge, training and experience;***.
Fairfield County, Case No. 12-CA-41                                                        7


       {¶15} Officer Hall described appellant's demeanor during the traffic stop as

"white-knuckled on the steering wheel shaking."         T. at 9.   Both officers observed

appellant's attempt to retrieve his registration from his glove compartment. Appellant

opened it, slammed it shut, opened it again, and a small padded case fell out. T. at 10,

43. Appellant attempted to kick it back under the seat out of the officers' sight. T. at 43.

       {¶16} Both officers had seen a similar case the night before that contained a

glass marijuana pipe.      T. at 10, 43-44.      Officer Mullet testified he immediately

recognized the unopened case as a case for a glass pipe used in marijuana

consumption. T. at 44. Officer Mullet asked to see the case and appellant handed it

over to him. Id. Inside he discovered a glass pipe containing marijuana residue. Id.

       {¶17} There is sufficient evidence in the record to support the trial court's

conclusion that the padded case was immediately recognizable to both officers. Their

conclusion that it was a drug-carrying device was substantiated by their own

experiences.

                         SEARCH OF APPELLANT'S PERSON

       {¶18} Appellant argues the search of his person outside his vehicle was a fishing

exhibition for drugs because there was no reason to suspect that he was armed.

       {¶19} The record contains the undisputed testimony from both officers that

appellant consented to the search of his person. T. at 10-11, 16, 45. There is sufficient

evidence in the record to support the trial court's conclusion that appellant consented to

the search.
Fairfield County, Case No. 12-CA-41                                                     8


                    APPELLANT'S ORAL/WRITTEN STATEMENTS

      {¶20} After appellant's statements and admissions to the police officers at the

scene, he was read his Miranda rights, transported to the police station, and given his

Miranda rights again. T. at 19, 50. Thereafter, he made additional statements. T. at

19. Appellant argues that but for having made the initial incriminating statements he

would not have made any statements after being Mirandized.             He argues these

statements were tainted by coercion.

      {¶21} In Missouri v. Seibert, 542 U.S. 600 (2004), the United States Supreme

Court reviewed a case regarding two statements, one made before Miranda warnings

were given and one afterwards. In determining whether the second statement was

admissible, the court at 615 listed the factors they considered in its review: "the

completeness and detail of the questions and answers in the first round of interrogation,

the overlapping content of the two statements, the timing and setting of the first and the

second, the continuity of police personnel, and the degree to which the interrogator's

questions treated the second round as continuous with the first."

      {¶22} In the case sub judice, appellant's first statements were made outside his

vehicle. T. at 26-27, 45-46. Appellant was then Mirandized and transported to the

police station. T. at 19, 50. An inventory search of his vehicle was completed, the

Major Crimes Unit had been contacted, and appellant was Mirandized again prior to his

second statements. T. at 17-19. Given the length of time and difference of places

between the two statements, we concur with the trial court's analysis that the connection

between the two statements "was sufficiently attenuated as to dissipate the taint of his

suppressed statements."
Fairfield County, Case No. 12-CA-41                                             9


      {¶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. concur and

Hoffman, J. concurs separately.




                                          s/ Sheila G. Farmer_______________



                                          s/ W. Scott Gwin__________________



                                          _______________________________

                                                      JUDGES

SGF/sg 919
Fairfield County, Case No. 12-CA-41                                                     10

Hoffman, J., concurring

       {¶25} I concur in the majority’s analysis and disposition of Appellant’s sole

assignment of error with the singular exception I would overrule the search of the

padded case on the basis of the “exigent circumstances” exception to the search

warrant requirement.1

       {¶26} Unlike the majority, I do not believe opening the padded case is justified

under the “plain view” exception. While I recognize the binding precedent set forth in

State v. Halczyszak (1986), 25 Ohio St.3d 301, I find it significantly factually

distinguishable from the case sub judice.

       {¶27} In Halczyszak, the officers entered an auto body shop and observed

various autos in different stages of assembly and found the auto, described in the

search warrant in the beginning stages of disassembly positioned next to a “stripped-

out” auto. Halczyszak did not involve the opening of an otherwise closed container as is

involved herein. As such, I find Halczyszak inapplicable.



                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN




1
 Because the officer opened the padded case before he conducted the search of
Appellant’s person, I find the “search incident to a lawful arrest” exception inapplicable.
[Cite as State v. Furniss, 2013-Ohio-2064.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
CHARLES FURNISS                                :
                                               :
        Defendant-Appellant                    :        CASE NO. 12-CA-41




        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
