[Cite as State v. Nelms, 2017-Ohio-1466.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 27167
                                                  :
 v.                                               :   Trial Court Case No. 16-CR-47
                                                  :
 DEVON L. NELMS                                   :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                              Rendered on the 21st day of April, 2017.

                                             ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

CHRISTOPHER W. THOMPSON, Atty. Reg. No. 0055379, Law Office of the Public
Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

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

HALL, P.J.
                                                                                            -2-




       {¶ 1} Devon Nelms appeals the trial court’s overruling of his motion to suppress

the illegal drugs found in his vehicle. The vehicle was parked directly in front of a

commercial building, and police officers searched the vehicle under a warrant authorizing

a search of the building and its “surrounding curtilage.” The trial court concluded that the

premises search warrant covered the vehicle. We agree, so we affirm.

                                       I. Background

       {¶ 2} Detective Jason Barnes of the Dayton Police Department submitted the

affidavit supporting the application for a search warrant. In the affidavit, he describes three

controlled heroin buys arranged by the police using a confidential informant. During the

first one, Detective Barnes watched a man identified as Jordan Alford drive up in a white

Buick Regal and sell the informant heroin. After the sale, Barnes saw the same Buick

parked on the premises at 3606 West Third Street in Dayton. During the second buy,

Detective Barnes watched the informant buy heroin from an unknown man standing on

the street. After the sale, the man got into the white Buick, which was parked on the 3606

West Third Street premises. During the third controlled buy, Detective Barnes was

watching the premises at 3606 West Third Street. He saw Alford exit the door on the north

side of the building and get into the driver’s seat of the parked Buick. While Detective

Barnes stayed, Detective Brian Dedrick followed the Buick and saw Alford sell the

informant heroin. After the sale, Alford drove the Buick back to 3606 West Third Street,

and Detective Barnes saw him again park it on the premises. He saw Alford exit the

vehicle and enter the building through the north-side door.

       {¶ 3} A warrant was issued on October 26 that authorized a search for, among
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other things, illegal drugs, controlled substances, and drug-related paraphernalia. The

areas authorized to be searched included the person of Alford and the unidentified male

involved in the second controlled buy and the building, a “commercial garage,” at 3606

West Third Street and its “surrounding curtilage.” On October 29, Detective Barnes,

Detective Dedrick, and other police officers executed the warrant. At the suppression

hearing, Detective Dedrick testified that he watched the premises for about an hour before

they executed the warrant. He saw Nelms’s blue two-door Chevrolet Monte Carlo parked

in front of the building, next to the door on the building’s north side. The vehicle had

backed in, and Dedrick said that he saw movement inside. Police were waiting until the

occupants of the vehicle got out before executing the warrant. Detective Barnes explained

that they were going to execute the warrant two days earlier when the white Buick was

there. But while they were preparing the warrant, the Buick left. A marked police cruiser

attempted to pull it over, because it was listed on the search warrant, but the Buick refused

to stop and fled. The officer did not give chase, and the Buick was not located. So this

time, Detective Barnes was not taking any chances. He was waiting until the occupants

of the Monte Carlo got out. As they waited and watched, they saw the man in the

passenger seat get out to let someone into the car and then get out to let the person out

again. This happened several times. Then the vehicle left the premises only to return ten

to fifteen minutes later and again back into a parking space beside the entrance door.

After a few minutes, Detective Dedrick saw Alford get out of the passenger side and

Nelms get out of the driver side and walk into the garage. It was then that the police

swooped in with the warrant.

       {¶ 4} Detective Barnes testified that initially a protective sweep of the Monte Carlo
                                                                                         -4-


was done. The officer who did the sweep found no one inside the vehicle and saw no

contraband. Inside the building, police arrested three individuals—Nelms, Wilbur Bolds

(the owner of the property), and Alford. Later, Detective Barnes ordered that a full search

of Nelms’s vehicle be done because it was on the property’s “surrounding curtilage.”

During this search, paperwork in Alford’s name was found in the passenger door and

cocaine, marijuana, and heroin was found in the center console.

       {¶ 5} Nelms was indicted on one count of possession of heroin, one count of

possession of cocaine, and one count of possession of marijuana. He moved to suppress

the evidence found in his vehicle, arguing that the search was beyond the scope of the

warrant. After the suppression hearing, the trial court overruled Nelms’s motion to

suppress. The court concluded that “the scope of the search warrant was not exceeded.”

Nelms then pleaded no contest to possession of heroin and possession of cocaine, and

the marijuana-possession charge was dismissed. He was sentenced to a total of three

years in prison.

       {¶ 6} Nelms appealed.

                                       II. Analysis

       {¶ 7} Nelms’s sole assignment of error challenges the trial court’s suppression

decision. “Review of a trial court’s ruling on a motion to suppress is ‘a mixed question of

law and fact.’ We accept the trial court’s factual findings as long as they are supported by

competent, credible evidence. However, we review de novo the application of the law to

these facts.” (Citations omitted.) State v. Belton, Ohio Sup.Ct. Slip Opinion No. 2016-

Ohio-1581, ¶ 100, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8.
                                                                                          -5-

                         A. The warrant covered Nelms’s vehicle

       {¶ 8} The premises search warrant here authorizes a search for illegal drugs and

other items in the commercial building at 3606 West Third Street and on its “surrounding

curtilage.” Nelms argues that the property did not have any curtilage for his vehicle to be

on. We have said that “using ‘curtilage’ in connection with commercial premises is

somewhat of a misnomer since the term typically is associated with the yard or enclosed

space surrounding a dwelling house.” State v. Trammel, 2d Dist. Montgomery No. 17196,

1999 WL 22884, *3 (Jan. 22, 1999). Curtilage—the area immediately adjacent to a home

which an individual reasonably expects is private—is regarded as “ ‘part of the home itself

for Fourth Amendment purposes.’ ” Florida v. Jardines, _ U.S. _, 133 S.Ct. 1409, 1414,

185 L.Ed.2d 495 (2013), quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct.

1735, 80 L.Ed.2d 214 (1984). We have said that “the Fourth Amendment applies to

commercial premises, and extends to areas that can be equated with the ‘curtilage’ of a

private home.” Trammel at *6. This area “can include the grounds surrounding the

premises, if the premises fit within the traditional Fourth Amendment analysis, i.e., the

area is one in which the owner has a reasonable expectation of privacy.” Id. at *4.

       {¶ 9} Nelms argues that the owner of the property here did not have a reasonable

expectation of privacy in any of the area surrounding the building, because the entire area

was open to the public—no fences, hedges, or the like suggested a private area.

Certainly, Nelms says, the parking area in front of the building where his vehicle was

found was public. But whether the building here actually had curtilage doesn’t matter.

“Surrounding curtilage” is used in the warrant simply to describe the area around the

building. As we have said, in search warrants, “ ‘curtilage’ has been used * * * to designate
                                                                                           -6-


the area surrounding a commercial property, whether that area be a parking lot or fenced

area.” Trammel at *4. The key question here is whether the warrant and its terminology

permitted the search of Nelms’s vehicle.

       {¶ 10} “Although police may be lawfully on the premises with a valid search

warrant, the search is limited to those areas which may reasonably contain the items

listed in the warrant.” State v. Halczyszak, 25 Ohio St.3d 301, 323, 496 N.E.2d 925

(1986), fn. 9. Any container found on the premises may be searched if it could contain the

object of the search. United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72

L.Ed.2d 572 (1982) (holding that “[a] lawful search of fixed premises generally extends to

the entire area in which the object of the search may be found and is not limited by the

possibility that separate acts of entry or opening may be required to complete the

search”). This includes a vehicle. “Ohio appellate courts have recognized that such a

warrant [authorizing the search of curtilage] extends to permit search of motor vehicles

located within the curtilage of the premises.” (Citations omitted.) State v. Ballez, 6th Dist.

Lucas No. L-10-1012, 2010-Ohio-4720, ¶ 13 (citing cases). This Court in particular has

so held. See State v. Simpson, 2d Dist. Montgomery No. 19011, 2002 WL 441488 (Mar.

22, 2002) (holding that “surrounding curtilage” in a search warrant for a residence

included a vehicle parked in the garage attached to the home). Indeed, courts in most

jurisdictions say that vehicles found on the curtilage of a target premises may be

searched. 2 Wayne R. LaFave, Search and Seizure, Section 4.10(c) (5th Ed.2012) (citing

numerous cases). “The assumption [made by these courts] seems to be that a vehicle

should be viewed in the same way as any other personal effects found on the described

premises.” Id.
                                                                                       -7-


       {¶ 11} Typically, a vehicle found on the premises is owned or controlled by the

owner of the premises. Few cases address a situation like the one here, a vehicle owned

by a visitor found on commercial premises that are the target of a search warrant. Some

federal circuit courts say that a premises search warrant also covers a vehicle that

appears to be owned or controlled by the premises owner. See, e.g., United States v.

Gottschalk, 915 F.2d 1459, 1461 (10th Cir.1990) (saying that the scope of a premises

warrant includes “those vehicles which appear, based on objectively reasonable indicia

present at the time of the search, to be so controlled”); United States v. Patterson, 278

F.3d 315, 318 (4th Cir.2002) (saying that the scope of a premises warrant includes

vehicles on the premises that “reasonably appear” to be controlled by the premises

owner). In the case of a warrantless search of a vehicle, the U.S. Supreme Court has said

that there is no “distinction among packages or containers based on ownership.”

Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). If

there is probable cause to search the vehicle, held the Court, police “may inspect

passengers’ belongings found in the car that are capable of concealing the object of the

search.” Id. at 307.

       {¶ 12} Following the above approach, we believe that if there is probable cause to

search commercial premises—which is the basis on which a warrant for the premises

would issue—a vehicle found on the premises may be searched if police officers have

reason to believe that the vehicle is associated with the premises. That is the case here.

Jordan Alford was involved in three drug sales using a white Buick that he would park in

front of the building at 3606 West Third Street. This could be why the search warrant

permits the search of not only Alford’s person and the building but also the “surrounding
                                                                                         -8-


curtilage.” As it happened, on the day that police executed the warrant, the white Buick

was not there (probably because it had eluded police when an attempt to stop it happened

two days earlier) but Alford was. And he spent a lot of time inside another vehicle parked

on the premises—Nelms’s. The activity around Nelms’s vehicle was suspicious, and its

leaving and shortly returning was reminiscent of Alford’s use of the Buick. The officer

reasonably could have believed that Alford was using Nelms’s vehicle to sell drugs, just

as he had used the Buick.

       {¶ 13} We hold that Nelms’s vehicle was covered by the search warrant. The trial

court found that the vehicle was on the curtilage because it was “parked directly in front

of the subject property immediately in front of the door.” (Tr. 32). Given where the vehicle

was found, we agree that it was in the area described in the warrant as the “surrounding

curtilage.” And what police saw during the hour they spent watching the premises before

executing the warrant gave them reason to believe that Nelms’s vehicle was associated

with not only the premises but also Alford, who was specifically named as a target of the

search.

                       B. The search good-faith exception applies

       {¶ 14} Even if Nelms’s vehicle were not covered by the warrant, we would

conclude that suppression is not appropriate under the good-faith exception to the

exclusionary rule.

       {¶ 15} “[S]uppression is not an automatic consequence of a Fourth Amendment

violation. Instead, the question turns on the culpability of the police and the potential of

exclusion to deter wrongful police conduct.” Herring v. United States, 555 U.S. 135, 137,

129 S.Ct. 695, 172 L.Ed.2d 496 (2009). The good-faith exception applies to police errors
                                                                                        -9-


and limits exclusion to those errors that are shown to be more than the result of mere

negligence. “To trigger the exclusionary rule,” the U.S. Supreme Court has said, “police

conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and

sufficiently culpable that such deterrence is worth the price paid by the justice system.”

Id. at 144. Sufficiently deliberate and culpable conduct is conduct that is “deliberate,

reckless, or grossly negligent conduct, or in some circumstances recurring or systemic

negligence.” Id. Here, the police searched Nelms’s vehicle under the good-faith belief that

it was covered by the warrant. This belief was entirely reasonable. And there is no

evidence that the officers conduct reached even the level of mere negligence. Applying

the exclusionary rule in this circumstance would not be appropriate.

      {¶ 16} The sole assignment of error is overruled.

                                     III. Conclusion

      {¶ 17} We have overruled the assignment of error presented. The trial court’s

judgment is affirmed.

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




WELBAUM, J. and TUCKER, J., concur.


Copies mailed to:

Mathias H. Heck
Michael J. Scarpelli
Christopher W. Thompson
Hon. Gregory F. Singer
