         [Cite as State v. Wilson, 2018-Ohio-2377.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NO. C-170408
                                                          TRIAL NO. B-1607098B
        Plaintiff-Appellant,                          :
                                                             O P I N I O N.
  vs.                                                 :

SENECA WILSON,                                        :

    Defendant-Appellee.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 20, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    The state of Ohio has appealed from the trial court’s entry granting

defendant-appellee Seneca Wilson’s motion to suppress. We hold that the trial court

erred in granting the suppression motion, and accordingly reverse its decision.

                                Factual Background


       {¶2}   Wilson was arrested after police discovered a marijuana cigarette, a

digital scale, and a bag of marijuana in his vehicle. The grand jury returned an

indictment charging Wilson with two counts of trafficking in marijuana and one

count of possession of marijuana.

       {¶3}   Wilson filed a motion to suppress all evidence that the state sought to

introduce. At the suppression hearing, Cincinnati Police Officer Andrew Fusselman

testified that he was investigating a potential drug transaction between two

individuals, when Wilson approached him and asked what the police were doing.

Officer Fusselman immediately noticed a strong odor of burnt marijuana on Wilson’s

person. When asked why he smelled of marijuana, Wilson stated that there was a

joint in his car, which was parked nearby.        Officer Fusselman’s partner saw a

marijuana cigarette in the center console cup holder of Wilson’s vehicle.

       {¶4}   Officer Fusselman asked Wilson if the officers would find anything else

in the vehicle, and Wilson stated that the car also contained a bag of marijuana.

Wilson unlocked his vehicle for the officers to search. The marijuana cigarette, a

digital scale, and a plastic bag containing marijuana were found in the car. Officer

Fusselman then searched Wilson’s person, but nothing was recovered.           Officer

Fusselman testified that, following the personal search, he was informed by another



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officer that shortly before Wilson’s interaction with Officer Fusselman, the officer

had conducted a pat-down search of Wilson. During that pat-down, the officer had

found, but had not confiscated, a large amount of cash on Wilson. That officer had

permitted Wilson to leave the scene of the investigation, and witnessed Wilson walk

down the street and speak with another individual.

       {¶5}   After receiving this information, Officer Fusselman walked down the

street and spoke to the individual identified by his fellow officer. When asked by

Officer Fusselman what Wilson had given to him, the individual stated that Wilson

had given him money.        He gave that money, approximately $2,700, to Officer

Fusselman.

       {¶6}   The trial court granted Wilson’s motion to suppress.             It’s entry

included the following findings:

              The Court finds that one of the officers frisked the Defendant

       and found nothing on him. This was a valid Terry stop at that point.

       They detained him for approximately 15 more minutes.             This was

       illegal because nothing was found on the Terry pat-down (frisk). The

       Court finds that one of the officers then saw something in Defendant’s

       car, which appeared to be, according to the officer, a marijuana

       cigarette.

              The statements, the evidence, including marijuana found in the

       car and the scale found in the car, are the result of an illegal search due

       to the illegal detention.

              The money was seized also as a result of an illegal search of a

       third party because it was based on a statement made by the




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       Defendant to the officers while he was being detained but before he

       was given a Miranda warning.

               Although the marijuana cigarette was in plain view of one of the

       officers, the car was not unlocked initially. So a search warrant was

       necessary to search the vehicle at that point. The officer testified that

       the car was unlocked by the Defendant, but, according to his

       testimony, there is no mention that he asked the Defendant for

       consent to search the vehicle.

       {¶7}    The state argues in a single assignment of error that the trial court

erred in granting Wilson’s motion to suppress. Our review of the trial court’s ruling

on a suppression motion involves a mixed question of law and fact. We must accept

the trial court’s findings of fact if they are supported by competent and credible

evidence, but we review de novo the trial court’s application of the law to the relevant

facts. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

We will not defer to the trial court’s factual findings where those findings are “clearly

erroneous.” State v. Ward, 1st Dist. Hamilton No. C-160560, 2017-Ohio-8141, ¶ 22.

                              Erroneous Finding of Fact


       {¶8}    The trial court found that Wilson had initially been subjected to a

lawful Terry stop, but had then been illegally detained for approximately 15 minutes

after no contraband had been found during the Terry stop.             The trial court’s

subsequent legal conclusions were based on its determination that Wilson had been

illegally detained.

       {¶9}    This factual finding by the trial court was clearly erroneous. See Ward

at ¶ 22. Officer Fusselman testified that he had been informed by a fellow officer that



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a pat-down search had been conducted on Wilson, and that Wilson had been

released following the pat-down. The record unequivocally indicates that Wilson

then physically left the scene of the investigation and walked farther down the street.

After speaking to a third party, Wilson then voluntarily returned to the scene of the

investigation and initiated a conversation with Officer Fusselman.      The record is

devoid of support for the trial court’s finding that Wilson had been detained for 15

minutes following the initial Terry stop.

                              Search of the Automobile


       {¶10} Unreasonable searches and seizures are prohibited by the Fourth

Amendment to the United States Constitution. Accord Ohio Constitution, Article 1,

Section 14. Unless a recognized exception applies, warrantless searches are per se

unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967). Under the automobile exception to the warrant requirement, officers are

permitted to “conduct a warrantless search of a lawfully stopped automobile if they

have probable cause to believe that the vehicle contains contraband.” State v. Jones,

1st Dist. Hamilton No. C-130069, 2014-Ohio-1201, ¶ 6, citing United States v. Ross,

456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

       {¶11} Here, the trial court specifically found that a marijuana cigarette in the

center console of Wilson’s vehicle had been in the plain view of one of the officers.

The observation of the marijuana cigarette provided probable cause for the officers to

believe that the vehicle contained contraband and to conduct a warrantless search

under the automobile exception to the warrant requirement. See State v. Hamilton,

1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 16 (officers were

justified in searching a vehicle after they saw marijuana inside the vehicle); Ward,



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1st Dist. Hamilton No. C-160560, 2017-Ohio-8141, at ¶ 18 (recognizing that officers

have probable cause to search an automobile where they observe contraband in plain

view while conversing with the vehicle’s occupants).

       {¶12} In addition to the automobile exception, the warrantless search of

Wilson’s vehicle was also supported by the plain-view exception to the warrant

requirement. The warrantless seizure of an object in the plain view of an officer will

not violate the Fourth Amendment where “(1) the officer did not violate the Fourth

Amendment in arriving at the place from which the object could be plainly viewed,

(2) the discovery of the evidence was inadvertent, and (3) its incriminating nature

was immediately apparent.” State v. Mitchem, 1st Dist. Hamilton No. C-130351,

2014-Ohio-2366, ¶ 10. Here, officers were lawfully investigating a drug transaction

that occurred in close proximity to Wilson’s vehicle; their discovery of the marijuana

cigarette was inadvertent and occurred as they were investigating the separate drug

transaction; and the incriminating nature of the marijuana cigarette was

immediately apparent, as it was in the plain view of one of the officers.

Consequently, the warrantless search of Wilson’s vehicle was not in violation of the

Fourth Amendment.

       {¶13} Once the officers viewed the marijuana cigarette inside the vehicle,

they were justified in searching it. That the vehicle’s doors were locked is irrelevant,

and the trial court’s conclusion that the locked doors required the officers to obtain a

warrant was in error. The trial court’s determination that Wilson’s consent was

necessary before the vehicle could be searched was also erroneous. The officers had

probable cause to conduct a warrantless search of the vehicle under both the




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automobile and plain-view exceptions to the warrant requirement, and they did not

additionally need Wilson’s consent prior to executing the search.

                               Suppression of Money


       {¶14} The trial court suppressed the money that Wilson had given to a third

party, stating in its entry that “[t]he money was seized also as a result of an illegal

search of a third party because it was based on a statement made by the Defendant to

the officers while he was being detained but before he was given a Miranda warning.”

       {¶15} Officer Fusselman did not speak with Wilson about the individual

down the street until after he had learned of Wilson’s interaction with that individual

from a fellow officer. Because Officer Fusselman had an independent source that led

him to discover the money from the third party, the money was not excludable as

fruit of the poisonous tree, as the trial court had determined. See State v. Carter, 69

Ohio St.3d 57, 67, 630 N.E.2d 355 (1994) (the exclusionary rule is inapplicable where

the police have an independent source for discovery of the evidence).

                                     Conclusion


       {¶16} The trial court erred in suppressing evidence found during the

warrantless search of Wilson’s automobile because the search was valid under both

the automobile and plain view-exceptions to the warrant requirement.                 It

additionally erred in suppressing the money that Wilson had handed off after leaving

the scene of the investigation because the money was obtained based on information

received from an independent source. Consequently, the state’s assignment of error

is sustained.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} The trial court’s judgment granting Wilson’s motion to suppress is

reversed, and this cause is remanded for further proceedings consistent with the law

and this opinion.

                                               Judgment reversed and cause remanded.



CUNNINGHAM, P.J., and MILLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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