[Cite as State v. Elmore, 2016-Ohio-129.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :      JUDGES:
                                            :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant               :      Hon. Patricia A. Delaney, J.
                                            :      Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
JEFFREY E. ELMORE                           :      Case No. 2015 AP 06 0026
                                            :
        Defendant - Appellee                :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Tuscarawas County
                                                   Court of Common Pleas, Case No.
                                                   2014 CR 11 0311




JUDGMENT:                                          Reversed and Remanded




DATE OF JUDGMENT:                                  January 13, 2016




APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

MICHAEL J. ERNEST                                  GEORGE URBAN
Assistant Prosecuting Attorney                     116 Cleveland Avenue. NW, Suite 808
125 E. High Avenue                                 Canton, Ohio 44702
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015 AP 06 0026                                             2




Baldwin, J.

      {¶1}    Appellant State of Ohio appeals a judgment of the Tuscarawas County

Common Pleas Court granting a motion to suppress evidence filed by appellee Jeffrey

E. Elmore.

                            STATEMENT OF FACTS AND CASE

      {¶2}    Around midnight on August 28, 2014, Deputy Travis Stocker of the

Tuscarawas County Sheriff’s Department was on routine patrol in the area of River Road.

He observed a white car parked in a wooded area, near the Tuscarawas River. He also

saw what appeared to be a camp fire burning. Although he travels the road often, he

had never known of this area to be used for camping.

      {¶3}    Deputy Stocker stopped to investigate. As he approached the scene, he

noted three people sitting near the fire, and two men standing behind a tent. He asked

the group if they had permission to be on the property, and they responded that they did

not. They also indicated that they did not know who owned the property. Deputy Stocker

first checked the identification of the two men behind the tent, Damian Nelson and

appellee, and discovered active arrest warrants for both of the men. After placing them

under arrest and placing them in the patrol car, he checked the identification of the

remaining three people:   Chloe Kidd, Alec Alderman, and Rachel Hundley. There were

no warrants for these three individuals. At this point the officer believed that Alderman,

Kidd and Hundley were free to leave, although in his opinion they probably subjectively

felt like they could not leave. His cruiser was blocking the white car, which belonged to

Alderman.
Tuscarawas County, Case No. 2015 AP 06 0026                                             3


      {¶4}   The deputy then walked behind the tent where Nelson and appellee were

standing when he approached the scene earlier. When arresting Nelson and appellee,

the deputy noted that they appeared to be under the influence of a drug because they

did not respond to him, and they were drowsy as if they might fall asleep standing up.

On the ground behind the tent, Deputy Stocker found a 20-ounce plastic bottle containing

a clear liquid, a baggie containing a green leafy substance, a joint, and coffee filters

stuffed inside a cigarette package.

      {¶5}   Deputy Stocker looked inside the car. Without opening the door or shining

a flashlight into the car, he by moonlight observed a clear hose which in his experience

was often used to make methamphetamine. The deputy also saw a pipe above the

steering wheel. The pipe was made from a broken light bulb wrapped in aluminum foil,

and the bottom was burned.       The pipe was consistent with pipes the deputy had

previously seen that were used to cook methamphetamine.

      {¶6}   When the deputy asked Alderman about the hose, Alderman claimed in a

defensive manner that it was not his. Alderman, Kidd and Hundley all denied ownership

of the pipe. The deputy called a canine unit. The dog, Figo, alerted on the vehicle at the

trunk and the passenger door. A search of the vehicle produced the pipe with residue,

the clear hose, and a butane torch.

      {¶7}   Deputy Stocker went back to the tent. He lifted a corner of the tent near

where appellee and Nelson had been standing and found a folded piece of paper

containing brown powder. Inside the tent, the officer found more coffee filters and 50-75

aluminum foil balls, which from his experience he knew to be of a type used when starting

the process of making methamphetamine. He also found a bag about 25 yards from the
Tuscarawas County, Case No. 2015 AP 06 0026                                               4


tent which contained items used in the manufacture of methamphetamine: opened cold

medicine packets, muriatic acid, Drano, and pipe cutters.

      {¶8}   Appellee, Alderman, Nelson and Kidd were indicted for illegal assembly or

possession of chemicals for the manufacturing of drugs (R.C. 2925.041(A)) and illegal

use or possession of drug paraphernalia (R.C. 2925.14). Appellee filed a motion to

suppress evidence. Following a hearing, the court granted the motion to suppress,

holding that “the encounter between the law enforcement agents of the State of Ohio

and these individual Defendants on 8/28/2014 should have been terminated once certain

individuals were arrested on outstanding warrants and after the investigating law

enforcement officer(s) did not announce that these three remaining Defendants at the

location in question were under the arrest for the crime of Criminal Trespass.” Judgment,

June 2, 2015, page 3.

      {¶9}   The State of Ohio appeals, assigning a single error:

      {¶10} “THE APPELLEE DID NOT HAVE A REASONABLE EXPECTATION OF

PRIVACY AS A TRESPASSER.”

      {¶11} The State argues that appellee lacks standing to challenge the search

because he was a trespasser without a reasonable expectation of privacy. The State

further argues that the deputy had a reasonable suspicion of criminal activity to justify

the detention of Alderman, Kidd and Hundley at the scene.

      {¶12} 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
Tuscarawas County, Case No. 2015 AP 06 0026                                              5

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(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, 619 N.E.2d 1141

(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, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d

906 (1993); Guysinger, supra. 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), “[A]s a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”

      {¶13} The Fourth Amendment protects persons from “unreasonable searches and

seizures” by the government. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206,

811 N.E.2d 68, ¶ 8, citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of

Appeals, 63 Ohio St.3d 354, 364, 588 N.E.2d 116 (1992). Section 14, Article I of the

Ohio Constitution is interpreted to provide the same protections as the Fourth

Amendment. State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997).

Evidence seized in violation of the Fourth Amendment will be suppressed pursuant to
Tuscarawas County, Case No. 2015 AP 06 0026                                             6

the exclusionary rule. Jackson, 2004-Ohio-3206, at ¶ 8, 102 Ohio St.3d 380, 811 N.E.2d

68.   However, the defendant must have a reasonable expectation of privacy in the

evidence seized for standing to challenge the search or seizure. Id., citing Alderman v.

United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The

defendant bears the burden of establishing that he had a legitimate expectation of

privacy in the area searched. State v. Dennis, 79 Ohio St.3d 421, 426, 683 N.E.2d 1096

(1997).

      {¶14} Ownership or possession of incriminating evidence does not alone justify a

finding of standing. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633

(1980). Instead, the pivotal inquiry is “whether [the defendant] had an expectation of

privacy in the area searched.” (Emphasis added.) United States v. Salvucci, 448 U.S.

83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 629 (1980). While an overnight guest in

a home may claim the protection of the Fourth Amendment, one who is merely present

with the consent of the homeowner may not. State v. Renner, 12th Dist. Clinton No.

CA2002–08–033 2003-Ohio-6550, ¶10, citing Minnesota v. Carter, 525 U.S. 83, 119

S.Ct. 469, 471, 142 L.Ed.2d 373 (1998).

      {¶15} Further, when an individual intentionally or voluntarily places his or her

property in a place where he has no legitimate expectation of privacy, such as an

abandoned shack or as a trespasser upon another’s property, he has no legitimate

reasonable expectation that they will remain undisturbed and has no standing or right to

contest a search. United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978). He has

no more expectation of privacy than if he had placed the item in plain view, and he cannot

object to its seizure. Id.
Tuscarawas County, Case No. 2015 AP 06 0026                                               7


      {¶16} The trial court found that the officer did not have authority to detain Hundley,

Kidd and Alderman at the scene without placing them under arrest for trespass.         The

court held that the police encounter with these three individuals had to terminate at the

point when appellee and Nelson were arrested.

      {¶17} However, the evidence of drug activity seized from the ground behind the

tent was not seized as a result of the continued detention of Alderman, Kidd and Hundley.

Whether or not they were free to leave or were lawfully or unlawfully detained, the officer

was not required to leave the premises, as neither appellee nor the other individuals had

a reasonable expectation of privacy in the real property. All of the individuals present at

the site told the officer that they did not know who owned the property and that they did

not have permission to be there. Nothing in the record suggests that appellee had a

reasonable expectation of privacy in the area searched. Therefore, appellee lacked

standing to object to the search of the real property.

      {¶18} In addition, nothing in the record indicates that appellee had any expectation

of privacy in the car, the tent, or the bag that was searched. The car belonged to

Alderman, and no one claimed ownership of the tent or the bag. As the items were

voluntarily left in an area in which appellee did not have an expectation of privacy, he

lacks standing to challenge the seizure and search. The trial court erred in granting the

motion to suppress.
Tuscarawas County, Case No. 2015 AP 06 0026                                         8


      {¶19} The assignment of error is sustained. The judgment of the Tuscarawas

County Common Pleas Court is reversed. This case is remanded to that court for further

proceedings according to law. Costs are assessed to appellee.



By: Baldwin, J.

Delaney, J. concur.

Hoffman, P.J. concurs
separately
Tuscarawas County, Case No. 2015 AP 06 0026                                               9

Hoffman, P.J., concurring

       {¶20} I concur with the majority Appellee did not have a reasonable expectation

of privacy as to any item laying out in the open area. I am not persuaded Appellee did

not have a reasonable expectation of privacy as to items found in or under the tent nor to

items in his vehicle. I do not believe the fact Appellee did not have express permission

from the owner of the property to be there does not automatically result in a trespass –

particularly when ownership of the land is never established.

       {¶21} The deputy testified there were no, no-trespassing signs in the area. I am

not convinced mere presence of the property of another automatically results in an

abandonment of all expectation of privacy as to any and all items brought onto the

property.

       {¶22} Nevertheless, I concur in the result reached by the majority based upon the

evolving reasonable suspicion of criminal activity under the facts of this case.1




1Though argued, Appellant did not separately assign as error the trial court’s decision
on this ground.
