[Cite as State v. Binkley, 2013-Ohio-3695.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :      Hon. John W. Wise, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
BRUCE ALLEN BINKLEY                           :      Case No. 2013CA00014
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2012CR1343(A)



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 26, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      EUGENE O'BYRNE
Prosecuting Attorney                                 101 Central Plaza South
                                                     Suite 500
By: RONALD MARK CALDWELL                             Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00014                                                     2

Farmer, P.J.

       {¶1}    On October 2, 2012, the Stark County Grand Jury indicted appellant,

Bruce Allen Binkley, on one count of illegal manufacture of drugs in violation of R.C.

2925.04 and one count of illegal possession of chemicals for the manufacture of drugs

in violation of R.C. 2925.041.     Said charges arose after police officers discovered

certain items in appellant's vehicle which was parked at the residence of David and

Susan Ashworth. Mr. Ashworth was in the process of making repairs to the vehicle.

After Mr. Ashworth opened the trunk, police officers discovered items used to

manufacture methamphetamine.

       {¶2}    On October 31, 2012, appellant filed a motion to suppress, claiming an

illegal search and seizure. A hearing was held on November 7, 2012. By judgment

entry filed November 8, 2012, the trial court denied the motion. Appellant filed a motion

to reconsider on December 10, 2012. A hearing was held on January 2, 2013. The trial

court did not change its previous ruling.

       {¶3}    On January 9, 2013, appellant pled no contest to the charges.          By

judgment entry filed January 16, 2013, the trial court found appellant guilty and

sentenced him to an aggregate term of four years in prison.

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

consideration. Assignment of error is as follows:

                                              I

       {¶5}    "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION

TO    SUPPRESS        EVIDENCE       IN     VIOLATION   OF    HIS   RIGHT      AGAINST

UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH
Stark County, Case No. 2013CA00014                                                            3


AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

14 OF THE OHIO CONSTITUTION."

                                               I

       {¶6}    Appellant claims the trial court erred in denying his motion to suppress.

We disagree.

       {¶7}    There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the

trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State

v. Williams, 86 Ohio App.3d 37 (4th Dist.1993).          Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger. 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
Stark County, Case No. 2013CA00014                                                        4

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

      {¶8}   Appellant argues the police did not have a reason to conduct a

warrantless search of his vehicle. As explained by our brethren from the Sixth District in

State v. Washington, 6th Dist. Lucas No. L-09-1186, 2010-Ohio-2580, ¶ 10:



             However,     certain   exigent   circumstances     allow   warrantless

      searches. For instance, a warrantless search may be permitted by the

      court when there is imminent danger evidence will be lost or destroyed if a

      search is not imminently conducted. Cupp v. Murphy (1973), 412 U.S.

      291, 294-296. In the case of the automobile, a warrantless search may be

      permitted because of the inherent mobility of the vehicle if there is a risk

      the evidence would be lost or destroyed without an immediate search.

      South Dakota v. Opperman (1976), 428 U.S. 364, 367. In addition, a

      warrantless search may be permitted if necessary to protect or preserve

      life in the face of an immediate emergency. State v. Price (1999), 134

      Ohio App.3d 464, 468. Finally, a warrantless search may be permitted if

      the contraband is in clear view of the officer. Thompson v. Louisiana

      (1984), 469 U.S. 17.



      {¶9}   During the first hearing, the trial court found the "plain view" exception to a

warrant applied (November 7, 2012 T. at 47-48):
Stark County, Case No. 2013CA00014                                                      5


             Nevertheless, upon approaching that vehicle they did in plain view

      see a peroxide bottle utilized with regard to Meth operations from the

      experience of the officer.

             That, plus the prior information he had relative to the Defendant

      and the Defendant's operation in and of itself without regard to whether or

      not the Ashworths opened the trunk with a key at whose direction, that in

      and of itself, the viewing of what was in the vehicle and the prior

      information they had with regard to the Defendant would give probable

      cause to search that vehicle and the trunk of that vehicle.



      {¶10} During the second hearing on the motion to reconsider, the trial court

heard additional testimony and concluded the following (January 2, 2013 T. at 28):



             Well, whatever the reasons, the Court is satisfied with the testimony

      of the additional hearing that's been provided to you. The officer has

      testified, he's re-testified under oath.    He did, in fact, observe this

      infamous peroxide bottle in plain view.

             There is no changes from the Court's previous decision. Motion to

      Suppress stands as overruled and will continue to be overruled.



      {¶11} The focus of the second hearing was the credibility of the testifying officer,

Alliance Police Detective Bob Rajcan. Appellant argues because his vehicle was up on

jacks, it was not possible for Detective Rajcan to observe the peroxide bottle in plain
Stark County, Case No. 2013CA00014                                                       6


view.    Appellant supported his argument by pointing out that the bottle was not

documented on the property sheet.

        {¶12} In Harris v. United States, 390 U.S. 234, 236 (1968), the United States

Supreme Court held "it has long been settled that objects falling in plain view of an

officer who has a right to be in the position to have that view are subject to seizure and

may be introduced in evidence." In Texas v. Brown, 460 U.S. 730, 738 (1983), then

Justice Rehnquist explained the plain view doctrine does not set limitations on "open

view" sightings:



               "***objects such as weapons or contraband found in a public place

        may be seized by the police without a warrant. The seizure of property in

        plain view involves no invasion of privacy and is presumptively

        reasonable, assuming there is probable cause to associate the property

        with criminal activity." A different situation is presented, however, when

        the property in open view is "situated on private premises to which access

        is not otherwise available for the seizing officer."***"[P]lain view" provides

        grounds for seizure of an item when an officer's access to an object has

        some prior justification under the Fourth Amendment. (Citations omitted.)



        {¶13} In Katz, Ohio Arrest, Search and Seizure, Section 13.01, at 214 (1997

Ed.), a two part test is set forth that must be met to justify a plain view search and

seizure: the "intrusion affording the plain view must be lawful" and the "incriminating

nature of the evidence must be immediately apparent to the seizing authority."
Stark County, Case No. 2013CA00014                                                    7


      {¶14} During an investigation of appellant relating to the manufacture of

methamphetamine, Detective Rajcan conducted a follow-up interview with David and

Susan Ashworth.      November 7, 2012 T. at 6-7.     As the interview concluded, Mr.

Ashworth asked Detective Rajcan to check appellant's vehicle which was in his

driveway up on jacks as he was going to replace the fuel pump.         Id. at 7-8.   Mr.

Ashworth was concerned about items in the vehicle that could explode.          Id. at 9.

Detective Rajcan explained he could not "just go ahead and go in [appellant's] vehicle,

but he could check himself while we were there." Id. Mr. Ashworth decided to open the

vehicle and check himself. Id. at 10. As Mr. Ashworth retrieved the keys, Detective

Rajcan walked up to the vehicle, looked into the passenger window, and observed a

plastic bottle of peroxide "which is a precursor used in manufacturing Meth." Id. Mr.

Ashworth unlocked the vehicle and opened the trunk. Id. A strong odor of fumes came

from the vehicle.    Id. Large garbage bag were found therein with "different things

sticking out," containing items generally associated with the manufacture of

methamphetamine. Id. at 10-11.

      {¶15} During the second hearing, Detective Rajcan gave a reasonable

explanation for the omission of the peroxide bottle from the property sheet (January 2,

2013 T. at 18-19):



             I didn't think it was an issue or I would have documented it very

      thoroughly if I thought the plain view was an issue. The fact of the matter

      is, I wasn't searching this car. I got stopped as I was leaving. I ended up

      taking voluntary statements stating that they stopped me and did this for a
Stark County, Case No. 2013CA00014                                                       8


         safety reason. I didn't think plain view was even going to be an issue. I

         never - - that never even came to my mind whatsoever that plain view was

         even going to be an issue in this case whatsoever or I would have

         documented it thoroughly in that case.



         {¶16} After two hearings on the matter, the trial court resolved the credibility

issue of Detective Rajcan's observation of the peroxide bottle in plain view in the state's

favor.    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 (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.

         {¶17} Clearly Detective Rajcan's presence on the property in and around the

vehicle was lawful as the resident, Mr. Ashworth, asked him to remain on the property

for safety reasons as he checked the vehicle, and Detective Rajcan was aware that

peroxide was a "precursor used in manufacturing Meth." Accepting Detective Rajcan's

testimony as true, the item was in plain view. Given this plain view observation with

Detective Rajcan's knowledge about the owner of the vehicle and his suspected

involvement in the manufacture of methamphetamine, we find the trial court did not err

in denying appellant's motion to suppress.

         {¶18} The sole assignment of error is denied.
Stark County, Case No. 2013CA00014                                          9


      {¶19} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




                                      _______________________________
                                      Hon. Sheila G. Farmer



                                      _______________________________
                                      Hon. John W. Wise



                                      _______________________________
                                      Hon. Craig R. Baldwin


SGF/sg 85
[Cite as State v. Binkley, 2013-Ohio-3695.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
BRUCE ALLEN BINKLEY                            :
                                               :
        Defendant-Appellant                    :       CASE NO. 2013CA00014




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer



                                               _______________________________
                                               Hon. John W. Wise



                                               _______________________________
                                               Hon. Craig R. Baldwin
