[Cite as State v. Smith, 2018-Ohio-1564.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.      17CA011180

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CURTIS J. SMITH                                      COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   16CR093642

                                 DECISION AND JOURNAL ENTRY

Dated: April 23, 2018



        CALLAHAN, Judge.

        {¶1}     Curtis Smith appeals his convictions from the Lorain County Court of Common

Pleas. This Court affirms.

                                                I.

        {¶2}     As Mr. Smith points out in his merit brief, the pertinent facts underlying this

appeal are not in dispute. According to the testimony adduced at a suppression hearing, Mr.

Smith called the police after noticing that his friend, who was sleeping at his apartment, had

stopped breathing. The Wellington Police Department and EMS responded to the scene, and

EMS transported Mr. Smith’s friend to the hospital. Mr. Smith’s friend passed away shortly

thereafter as a result of a drug overdose.

        {¶3}     According to a detective from the Wellington Police Department, hospital

personnel told him that a family member of Mr. Smith’s deceased friend left the hospital in a

highly agitated state and was possibly headed to Mr. Smith’s apartment to exact some sort of
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revenge. Concerned for Mr. Smith’s safety, the detective went back to Mr. Smith’s apartment

and knocked on the door. After no one answered, the detective waited in the parking lot until

Mr. Smith arrived home with a female companion about ten minutes later. The detective again

knocked on the door. Mr. Smith answered the door and the detective advised him of the possible

threat to his personal safety. The detective then asked Mr. Smith whether he would like him to

search his apartment for an intruder. Mr. Smith verbally consented to the search of his apartment

and allowed the detective to enter.

       {¶4}    While conducting the search, the detective specifically asked Mr. Smith if he

could search his bedroom since the bedroom door was closed and Mr. Smith previously denied

the police access to that room when they responded to the drug overdose call. Mr. Smith

verbally consented to the search of his bedroom. Upon entering, the detective saw drugs and

drug paraphernalia on top of a dresser, as well as on top of a nightstand. Those items included

glass pipes containing burnt residue consistent with marijuana, cotton balls, and a powdery white

substance. The detective performed a field test on the white substance, which tested positive for

ecstasy. The detective then asked Mr. Smith whether there were any other drug-related items in

the apartment, to which Mr. Smith responded in the negative. After advising Mr. Smith that he

could call for a K-9 narcotics dog to search the apartment, Mr. Smith lifted up the mattress in his

bedroom and pulled out two spoons containing residue, as well as syringes.

       {¶5}    A grand jury indicted Mr. Smith on two counts of possession of drugs in violation

of Revised Code Section 2925.11(A), one count of possession of drug abuse instruments in

violation of Section 2925.12(A), and one count of possession of drug paraphernalia in violation

of Section 2925.14(C)(1). Mr. Smith initially pleaded not guilty and moved to suppress the

evidence found in his bedroom. The trial court held a hearing on the matter and subsequently
                                                3


denied his motion, finding, in part, that Mr. Smith consented to the search of his apartment, and

that the detective discovered the illegal items in plain view. Thereafter, Mr. Smith changed his

plea to no contest. The trial court found him guilty on all charges and sentenced him to two

years of community control. Mr. Smith now appeals, raising one assignment of error for this

Court’s review.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-
       APPELLANT SMITH’S MOTION TO SUPPRESS BECAUSE [THE
       DETECTIVE’S] SEARCH OF SMITH’S APARTMENT BEDROOM FOR
       DRUGS VIOLATED DEFENDANT-APPELLANT SMITH’S FOURTH
       AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES.

       {¶6}    In his assignment of error, Mr. Smith argues that the trial court erred when it

denied his motion to suppress. This Court disagrees.

       {¶7}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. A reviewing court “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 (1982). “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.” Id., citing State v. McNamara, 124 Ohio App.3d 706,

710 (4th Dist.1997). This Court, therefore, grants deference to the trial court’s findings of fact,

but conducts a de novo review of whether the trial court applied the appropriate legal standard to

those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th Dist.).

       {¶8}    The Fourth Amendment to the United States Constitution, applied to the states

through the Fourteenth Amendment, and Article I, Section 14 of the Ohio Constitution protect
                                               4


persons against unreasonable searches and seizures by the government. See State v. Orr, 91

Ohio St.3d 389, 391 (2001) (noting that these two provisions provide the same level of

protection). “For a search or seizure to be reasonable under the Fourth Amendment, it must be

based upon probable cause and executed pursuant to a warrant.” State v. Moore, 90 Ohio St.3d

47, 49 (2000). “Searches conducted without a warrant are presumptively unreasonable, unless an

exception to the warrant requirement applies.” State v. Jones, 9th Dist. Lorain No. 12CA010270,

2013-Ohio-2375, ¶ 8, citing Payton v. New York, 445 U.S. 573, 586 (1980). “Where there is no

search warrant, the burden falls on the state to show that a search comes within one of the

judicially recognized exceptions[,]” including “consent signifying waiver of constitutional

rights” and “the plain-view doctrine.” State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49,

51 (1985).

       {¶9}   Here, Mr. Smith makes three primary arguments in support of his position that the

trial court erred when it denied his motion to suppress. First, Mr. Smith argues that he did not

freely and voluntarily consent to the search of his apartment. In this regard, he argues that he

was “trapped” into giving consent because the detective advised him of an unverified threat to

his personal safety. Second, Mr. Smith argues that, even if he consented to the search of his

apartment, the detective’s search exceeded the scope of the consent because the detective closely

inspected personal items in his bedroom rather than simply conducting a protective sweep for the

presence of an intruder. Third, Mr. Smith argues that the plain-view exception does not apply

because the antecedent search violated his constitutional rights. He again argues that he did not

freely and voluntarily consent to the search, and that – even if he did – the detective’s close

inspection of the items found in his bedroom went beyond the scope of the granted consent. This

Court will address each argument in turn.
                                                5


       {¶10} Regarding Mr. Smith’s consent, the State was required to “show by ‘clear and

positive’ evidence that the consent was ‘freely and voluntarily’ given based on the totality of the

circumstances.” State v. Cooper, 9th Dist. Summit No. 21494, 2003-Ohio-5161, ¶ 12, quoting

Ohio v. Posey, 40 Ohio St.3d 420, 427 (1988). As previously noted, the detective testified that

he received information from hospital personnel advising him of a potential threat to Mr. Smith’s

safety, that he went to Mr. Smith’s apartment to advise Mr. Smith of the threat, that he offered to

search Mr. Smith’s apartment, and that Mr. Smith consented to the search for the purpose of

locating a possible intruder.   In rendering its decision, the trial court determined that the

detective provided credible testimony. Having reviewed the record, this Court finds that the trial

court’s findings of fact were supported by competent, credible evidence. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, at ¶ 8. Thus, despite Mr. Smith’s argument that he was “trapped”

into giving consent, the totality of the circumstances indicate that he freely and voluntarily

consented to the search of his apartment.

       {¶11} Regarding Mr. Smith’s argument that the detective’s search of his apartment

exceeded the scope of the granted consent, this Court finds that his argument lacks merit.

“Under [the plain view] doctrine, an officer may seize an item without a warrant if the initial

intrusion leading to the item’s discovery was lawful and it was ‘immediately apparent’ that the

item was incriminating.” State v. Waddy, 63 Ohio St.3d 424, 442 (1992). “The discovery need

not be inadvertent.” State v. Littell, 9th Dist. Summit No. 27020, 2014-Ohio-4654, ¶ 10, quoting

Waddy at 442, fn. 5. “The ‘immediately apparent’ requirement of the ‘plain view’ doctrine is

satisfied when police have probable cause to associate an object with criminal activity.” State v.

Halczyszak, 25 Ohio St.3d 301 (1986), paragraph three of the syllabus. “In ascertaining the

required probable cause to satisfy the ‘immediately apparent’ requirement, police officers may
                                                 6


rely on their specialized knowledge, training and experience * * *.” Id. at paragraph four of the

syllabus.

       {¶12} Here, the detective testified that after being granted consent to search Mr. Smith’s

bedroom, he observed the glass pipes, cotton balls, and white substance in plain view on Mr.

Smith’s nightstand and dresser. The detective further testified that, based upon his training and

experience as a law enforcement officer, he immediately recognized those items as being

incriminating. The trial court found that the detective provided credible testimony in this regard.

       {¶13} Mr. Smith does not dispute these facts, but argues that the detective “took a detour

from his permissible task of searching for an intruder in the apartment to conducting a

warrantless drug search * * *.” The fact that the purpose of the search was to locate a potential

intruder, however, does not prevent an officer from discovering and examining items in plain

view that the officer immediately recognizes as incriminating. See State v. White, 2d Dist.

Montgomery No. 23905, 2011-Ohio-503, ¶ 27 (affirming the trial court’s denial of a motion to

suppress evidence of illegal drugs discovered in plain view in an apartment despite the fact that

the tenant only gave the police consent to search the apartment for a fugitive); State v. Hawley,

20 Ohio App.3d 59, 61 (8th Dist.1984), quoting United States v. Roberts, 619 F.2d 379, 381 (5th

Cir.1980) (“[p]olice officers are not required to ignore the significance of items in plain view

even when the full import of the objects cannot be positively ascertained without some

examination.”). This Court, therefore, rejects Mr. Smith’s argument.

       {¶14} Lastly, as previously noted, Mr. Smith argues that the plain-view exception does

not apply because the antecedent search violated his constitutional rights. Because his argument

in this regard relies upon his prior two arguments (i.e., that he did not freely and voluntarily

consent to the search, and that – even if he did – the detective’s close inspection of the items
                                                 7


found in his bedroom went beyond the scope of the granted consent), which this Court has

rejected, we likewise reject Mr. Smith’s argument that the plain-view exception does not apply.

       {¶15}    In light of the foregoing, Mr. Smith’s assignment of error is overruled.

                                                III.

       {¶16} Mr. Smith’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
                                         8


SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MARK S. ONDREJECH, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
