[Cite as State v. Harris, 2017-Ohio-770.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
FLEMMON HARRIS                               :       Case No. 16CA54
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2016-CR-0218




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 2, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL M. ROGERS                                     DALE M. MUSILLI
38 South Park Street                                 105 Sturges Avenue
Mansfield, OH 44902                                  Mansfield, OH 44903
Richland County, Case No. 16CA54                                                        2

Wise, Earle, J.

       {¶1}   Defendant-Appellant, Flemmon Harris, appeals the July 19, 2016 judgment

of the Court of Common Pleas of Richland County, Ohio, denying his motion to suppress

evidence. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2}   On November 16, 2015, Mansfield Police Officer John Meyer arrived at

109/111 Wood Street in Mansfield, a former duplex converted into a single residence, to

serve an arrest warrant on one Christopher Elliot.

       {¶3}   Upon arriving at the residence, Officer Meyer observed the front door open.

He looked in and witnessed appellant and others, sitting around a table covered with

suspected drugs and drug paraphernalia. Officer Meyer announced his presence and

appellant grabbed a baggie containing suspected drugs and threw it underneath the table.

Officer Meyer entered the residence to process the scene.

       {¶4}   On April 8, 2016, the Richland County Grand Jury indicted appellant on one

count of possession of heroin in violation of R.C. 2925.11. On July 12, 2016, appellant

filed a motion to suppress, claiming an illegal search. A hearing was held on July 19,

2016. At the conclusion of the hearing, the trial court denied the motion, finding Officer

Meyer had a legitimate reason for being at the residence and had probable cause to

believe he was observing criminal activity in plain view. The trial court memorialized its

decision in a judgment entry filed July 19, 2016.

       {¶5}   A jury trial commenced on July 19, 2016. A mistrial was declared, and a

second trial commenced on August 29, 2016. The jury found appellant guilty as charged.
Richland County, Case No. 16CA54                                                         3


By judgment entry filed August 31, 2016, the trial court sentenced appellant to twelve

months in prison.

      {¶6}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

      {¶7}   "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS."

                                             I

      {¶8}   Appellant claims the trial court erred in denying his motion to suppress as

Officer Meyer lacked probable cause to enter the residence. We disagree.

      {¶9}   As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio

St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



             "Appellate review of a motion to suppress presents a mixed question

      of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

      797 N.E.2d 71, ¶ 8. In ruling on 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." Id.,

      citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On

      appeal, we "must accept the trial court's findings of fact if they are supported

      by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

      19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

      "independently determine as a matter of law, without deference to the
Richland County, Case No. 16CA54                                                          4


      conclusion of the trial court, whether the facts satisfy the applicable legal

      standard." Id.



      {¶10} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal."

      {¶11} As explained by this court in State v. Diaz, 5th Dist. Stark No. 2016 CA

00113, 2017-Ohio-262, ¶ 16-17:



             A warrantless search of a person's home is presumed unreasonable

      unless an exception to the warrant requirement is shown. State v. Angelo,

      9th Dist. Summit No. 24751, 2009–Ohio–6966, ¶ 10. But there are several

      judicially recognized exceptions to the search warrant requirement. One of

      these is the "plain view" doctrine. See State v. Akron Airport Post 8975

      (1985), 19 Ohio St.3d 49, 51, 482 N.E.2d 606.            Under the plain view

      exception, 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. State v. Justice, 5th Dist. Fairfield No. 10 CA 41, 2011-Ohio-

      4004, ¶ 34, citing Horton v. California (1990), 496 U.S. 128, 136-37, 110

      S.Ct. 2301, 110 L.Ed.2d 112. Thus, while the plain view exception gives

      rise to probable cause, it does not allow an officer to unlawfully trespass
Richland County, Case No. 16CA54                                                        5


      upon property to seize an item in the absence of a warrant, consent, or

      some other recognized exigency. See State v. Littell, 2014-Ohio-4654, 21,

      21 N.E.3d 675 N.E.3d 675, ¶ 10 (9th Dist.Summit), citing Soldal v. Cook

      County, Ill., 506 U.S. 56, 66, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992); Texas

      v. Brown, 460 U.S. 730, 738–739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)

      (plurality opinion).

             However, "[p]olice are privileged to go upon private property when in

      the proper exercise of their duties." See State v. Cook, 5th Dist. Muskingum

      Nos. 2010-CA-40, 2010-CA-41, 2011-Ohio-1776, ¶ 65, citing State v.

      Chapman (1994), 97 Ohio App.3d 687, 647 N.E.2d 504. Furthermore, the

      porch of a residence has been held to be a public place for purposes of

      Fourth Amendment analysis. Id. at ¶ 66, 647 N.E.2d 504, citing State v.

      Swonger, 10th Dist. Franklin No. 09AP1166, 2010-Ohio-4995, ¶ 15.



      {¶12} During the suppression hearing, Officer Meyer testified he arrived at

109/111 Wood Street in Mansfield to serve an arrest warrant on one Christopher Elliot,

who had listed that address as his last known address. July 19, 2016 T. at 7, 12. Officer

Meyer stated he was very familiar with the address as "[w]e get calls there quite often

dealing with dogs at large, drug use, prostitution, things of that nature." Id. at 7. He

explained the building used to be a duplex, but he knew from prior calls the two halves

were connected in the back. Id. at 8.

      {¶13} As Officer Meyer approached the residence, the front door was wide open.

Id. at 7. He explained in his normal patrolling, he drove by the residence quite often and
Richland County, Case No. 16CA54                                                          6

the door "is always open." Id. at 9. Officer Meyer stood on the porch outside the front

door, and without going in, observed several individuals around a coffee table covered

with "heroin paraphernalia, burnt spoons, loaded needles, [and] baggies***in plain view."

Id. at 7, 14. He observed one individual (Steven Stephens) "getting ready to pull the

heroin into a needle." Id. at 19. Officer Meyer was "probably five to six feet" away. Id. at

9. After Officer Meyer announced himself, appellant said "oh shit," and grabbed an item

off the table and threw it underneath the table. Id. at 7, 14, 21. Officer Meyer stated he

suspected the item contained drugs. Id. at 16.

       {¶14} One of the four individuals, Steven Stephens, testified the front door was

closed and Officer Meyer opened the door and "[c]ame right in." Id. at 32-33.

       {¶15} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d

180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 552 N.E.2d 1159.

       {¶16} At the conclusion of the hearing, the trial court denied the motion to

suppress, stating the following (Id. at 39-40):



              And the Court has to make credibility calls all the time. In this case,

       I find Officer Meyer to be credible as far as his testimony. He did have a

       legitimate reason to be there. He did have an arrest warrant for an individual

       who had left that address as his residence. The address is - - even though

       there's 111 and 109, they are apparently one unit. They are connected.
Richland County, Case No. 16CA54                                                          7


      They are attached. They're no longer two separate units. So I believe the

      officer had justification, a legal right to be there to serve the arrest warrant.

             You are correct, Attorney Avery, the inadvertence has been

      removed. The incriminating nature of the residence immediately apparent.

      That standard has been made probable cause. So what that means is the

      officer had to have probable cause to believe that the items he saw were

      associated with criminal activity. His testimony is that he, in fact, knew that

      the liquid was heroin, that the items were - - he recognizes heroin and drug

      paraphernalia, the spoon, the liquid, the other items, and the item that was

      thrown on the floor. So I believe there was justification for him to seize

      those items.

             Again, it's not as if he's not entitled to be at that residence. He did

      have arrest warrants for someone who has listed that as the residence. He

      has a right to actually be there and check the residence and made sure that

      Mr. Elliott is not there. He also has a right, once he sees those items

      through the open door, he has a right to seize those. So I'll overrule the

      motion to suppress.



      {¶17} Based upon the foregoing cited testimony, we concur with the trial court's

analysis. Officer Meyer was lawfully present on the premises, had a right of access to

the evidence, and the evidence's incriminating character was immediately apparent.

Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301 (1990).
Richland County, Case No. 16CA54                                                        8


      {¶18} Upon review, we find the trial court did not err in denying appellant's motion

to suppress.

      {¶19} The sole assignment of error is denied.

      {¶20} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Wise, John, J. concur.




EEW/sg 221
