[Cite as State v. Brown, 2019-Ohio-3684.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28153
                                                 :
 v.                                              :   Trial Court Case No. 2018-CR-1758
                                                 :
 DONTRAVES D. BROWN                              :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                         Rendered on the 13th day of September, 2019.

                                            ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ADAM J. ARNOLD, Atty. Reg. No. 0088791, 120 West Second Street, Suite 1717,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............




TUCKER, J.
                                                                                             -2-


       {¶ 1} Dontraves Brown entered a no contest plea after his motion to suppress

evidence was overruled, and he was found guilty of aggravated possession of drugs.

The trial court correctly overruled Brown’s motion to suppress. Thus, the trial court’s

judgment will be affirmed.



                                Facts and Procedural History

       {¶ 2} This factual recitation mirrors the factual findings set forth in the trial court’s

decision overruling Brown’s suppression motion.

       {¶ 3} Dayton police officers Mark Orick and Ross Nagy were on patrol when, after

dark, they pulled into the parking lot of Gina’s Liquor located on Germantown Road. As

they entered the parking lot, the officers saw a Chevy Tahoe parked in the lot, and they

further noticed that the Tahoe’s occupant (who turned out to be Brown) was closely

watching the officers’ cruiser as it drove through the lot. This prompted the officers to

drive toward the Tahoe. As the cruiser approached, Brown exited the Tahoe and quickly

walked into the liquor store.

       {¶ 4} The officers parked and exited the cruiser. Using flashlights, they peered

into, but did not in any fashion enter, the now unoccupied Tahoe. In the area between

the driver’s seat and the front passenger seat, Orick observed a plastic bag containing

what he immediately recognized, based upon his experience, as probable

methamphetamine. Orick informed Nagy of his observation. At this point, Brown exited

the liquor store.     Nagy, seeing Brown, seized the probable methamphetamine.

Immediately thereafter, Brown was arrested.

       {¶ 5} The seized substance was confirmed to be methamphetamine, and Brown
                                                                                            -3-


was indicted for aggravated possession of drugs, a second degree felony. After his

suppression motion was overruled, Brown pleaded no contest to the indicted charge and

was found guilty.    The trial court imposed a mandatory two-year prison term.            This

appeal followed.



                                    Standard of Review

       {¶ 6} When reviewing a decision on a motion to suppress, an appellate court must

accept the trial court’s factual findings as long as the findings are supported by credible

evidence. State v. Walker, 2d Dist. Montgomery No. 24542, 2010-Ohio-847, ¶ 17. But

an appellate court’s review of the trial court’s legal conclusions is de novo. Id.



                                          Analysis

       {¶ 7} Brown’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION

       TO SUPPRESS EVIDENCE BECAUSE THERE WAS NO LAWFUL STOP,

       THERE WAS NO REASONABLE ARTICULABLE SUSPICION THAT

       CRIMINAL ACTIVITY WAS AFOOT, AND THE SEARCH AND SEIZURE

       WAS UNLAWFUL.

       {¶ 8} The officers did not conduct a search implicating the Fourth Amendment

when they looked through the Tahoe’s windows. A driver “possesses ‘no legitimate

expectation of privacy shielding that portion of the interior of an automobile which may be

viewed from outside the vehicle by either inquisitive passersby or diligent police officers.’ ”

State v. Thompson, 2d Dist. Montgomery No. 25658, 2013-Ohio-4825, ¶ 11, quoting State
                                                                                            -4-

v. Bazrawi, 10th Dist. Franklin No. 12AP-1043, 2013-Ohio-3015, ¶ 16. See also State v.

McClain, 2d Dist. Montgomery No. 19710, 2003-Ohio-5329. Moreover, an officer’s use

of a flashlight to better illuminate a vehicle’s interior does not convert the officer’s action

into a search implicating the Fourth Amendment. Texas v. Brown, 460 U.S. 730, 740,

103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (“[T]he use of artificial means to illuminate a

darkened area simply does not constitute a search, and thus triggers no Forth

Amendment protection.”). See also State v. Lewis, 2d Dist. Montgomery No. 22726,

2009-Ohio-158, ¶ 15; State v. Dooley, 2d Dist. Clark No. 2014-CA-3, 2015-Ohio-343,

¶ 23.

        {¶ 9} The officers’ immediate recognition that the observed bag contained

probable methamphetamine triggers a plain view discussion. An item is subject to a

warrantless seizure when the seizing officer is in a place he is entitled to be, and the

officer, upon observing the item, immediately recognizes it as probable contraband or

other evidence of criminal activity. Dooley at ¶ 21, quoting Thompson at ¶ 13, quoting

State v. Pounds, 2d Dist. Montgomery No. 21257, 2006-Ohio-3040, ¶ 19. An officer does

not need to be “absolutely certain” the item is contraband or other evidence of a crime;

probable cause regarding the item’s incriminating nature is sufficient.           Id., quoting

Pounds at ¶ 19, citing State v. Stiffler, 2d Dist. Montgomery No. 21008, 2006-Ohio-46,

¶ 15.

        {¶ 10} Officers Orick and Nagy were in a place (a public parking lot) where they

were entitled to be, and, while so positioned, saw and instantly recognized probable

methamphetamine inside the Tahoe. Having observed the probable methamphetamine

in plain view inside Brown’s vehicle, the officers were entitled to seize the evidence as
                                                                                -5-

probable contraband. See Pounds at ¶ 21. Thus, the seizure of the methamphetamine

did not violate the Fourth Amendment.

      {¶ 11} Brown’s assignment of error is overruled.



                                     Conclusion

      {¶ 12} The judgment of the Montgomery County Common Pleas Court is affirmed.



                                   .............



WELBAUM, P.J. and DONOVAN, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Adam J. Arnold
Hon. Richard Skelton
