[Cite as State v. Seaburn, 2017-Ohio-7115.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-17-12

        v.

RICHARD “FRED” SEABURN,                                   OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 16 CR 0106

                                      Judgment Affirmed

                            Date of Decision:   August 7, 2017




APPEARANCES:

        Gene P. Murray for Appellant

        Rebeka Beresh for Appellee
Case No. 13-17-12



PRESTON, P.J.

       {¶1} Defendant-appellant, Richard F. Seaburn (“Seaburn”), appeals the

March 16, 2017 judgment entry of sentence of the Seneca County Court of Common

Pleas. For the reasons that follow, we affirm.

       {¶2} This case stems from a search warrant issued on October 15, 2015 and

executed on October 20, 2015. Through the execution of said warrant at a residence

on East High Street in Fostoria, Ohio, law enforcement discovered numerous

prescription pills, scales, cellular phones, a stun gun, and $450.00 in currency.

       {¶3} On June 1, 2016, the Seneca County Grand Jury indicted Seaburn on:

Count One of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2),

(C)(1)(c), a felony of the second degree; Counts Two and Three of aggravated

possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), felonies of the fifth

degree; Count Four of endangering children in violation of R.C. 2919.22(A),

(E)(2)(a), a misdemeanor of the first degree; and Count Five of possessing criminal

tools in violation of R.C. 2923.24(A), (C), a felony of the fifth degree. (Doc. No.

1). Count One includes a specification alleging that the offense was committed in

the vicinity of a juvenile, as well as a specification alleging that $450.00 in currency,

in addition to cellular phones, and a stun gun were used to facilitate the offense and

thus are subject to forfeiture under R.C. 2981.02. (Id.).



                                          -2-
Case No. 13-17-12


       {¶4} On June 17, 2016, Seaburn appeared for arraignment and pled not guilty

to all of the charges and specifications in the indictment. (Doc. No. 12).

       {¶5} On October 3, 2016, Seaburn filed a motion to suppress evidence,

seeking the suppression of the fruits of the October 20, 2015 search of his home

because, as relevant here, the search took place after the expiration of the three-day

time limit within which the police had to execute the search warrant. (Doc. No. 41).

On October 27, 2016, the State filed a memorandum in opposition to Seaburn’s

motion to suppress evidence. (Doc. No. 43). The trial court denied the motion to

suppress evidence on November 9, 2016. (Doc. No. 44).

       {¶6} On February 23, 2017, Seaburn appeared for a change-of-plea hearing

and, pursuant to a negotiated plea agreement, pled no contest with a stipulated

finding of guilty to each of the counts in the indictment. (Doc. Nos. 52, 53). The

trial court found Seaburn guilty of the charges to which he pled no contest. (Doc.

No. 60). The forfeiture of the items identified in the specifications was effectuated

via a contract between the parties. (Doc. No. 60).

       {¶7} On March 15, 2017, the trial court sentenced Seaburn to three years in

prison as to Count One, ten months in prison as to Count Two, ten months in prison

as to Count Three, 90 days in jail as to Count Four, and ten months in prison as to

Count Five, with all sentences to be served concurrently for a total of three years of

incarceration. (Doc. No. 61). The trial court further ordered that Seaburn pay a


                                         -3-
Case No. 13-17-12


$7,500 fine. (Id.). The trial court filed its judgment entry of sentence on March 16,

2017. (Id.).

       {¶8} Seaburn filed his notice of appeal on April 14, 2017. (Doc. No. 63).

He brings one assignment of error for our review.

                               Assignment of Error

       In An Abuse Of Its Discretion, The Trial Court Reversibly Erred
       By Overruling The Defendant-Appellant’s Motion To Suppress
       Evidence That Was Seized Not [sic] “Within Three Days” From
       The Residence Of Defendant-Appellant, As Expressly Required
       On The Face Of The Search Warrant, Thereby Violating The
       Fourth Amendment To The Constitution Of The United States,
       And Also Violating Due Process Of Law, By Contradicting The
       Literal And Expectational [sic] Plain Meaning Of Said Expressly
       Written Court-Ordered Three Days Time Limit, Not Only Upon
       The Person And Whose [sic] Residence Is Named In The Said
       Search Warrant, But Also Upon The General Public Which Has
       The Right To Know That Three Days Means Three Days, And
       Not Subject To A Cynical, Untrue[,] And Improper State
       Interpretation Of How It Tells And Tolls Time: Time And Time
       Again.

       {¶9} In his sole assignment of error, Seaburn argues that the trial erred by

denying his motion to suppress evidence. Specifically, he argues that the trial court

erred in denying his motion to suppress evidence because the search at issue took

place beyond the three-day time limit imposed on the face of the warrant. Seaburn

argues that Crim.R. 45(A)’s tolling provisions are intended to toll time when the

clerk of courts is not available to file documents, not to provide law enforcement




                                         -4-
Case No. 13-17-12


additional time to execute search warrants where, as here, nothing stopped law

enforcement from executing the search warrant during the course of the weekend.

       {¶10} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of witnesses.

Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a

ruling on a motion to suppress, “an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Burnside at

¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s

conclusions of law, however, our standard of review is de novo, and we must

independently determine whether the facts satisfy the applicable legal standard. Id.,

citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶11} The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution protect individuals against unreasonable

searches and seizures by the government, and they protect privacy interests where

an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist.

Franklin Nos. 13AP-654 and 13AP-655, 2014-Ohio-3105, ¶ 15, quoting Smith v.

Maryland, 442 U.S. 735, 740, 99S.Ct. 2577 (1979). An expectation of privacy is

protected where an individual has manifested a subjective expectation of privacy


                                          -5-
Case No. 13-17-12


and that expectation is one that society recognizes as reasonable. Id., citing Smith

at 740, citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring). While the Fourth Amendment does not specifically provide that

unlawful searches and seizures will result in the suppression of ill-gotten evidence,

the United States Supreme Court has held that the exclusion of evidence is an

essential part of the Fourth Amendment. State v. Jenkins, 3d Dist. Union No. 14-

10-10, 2010-Ohio-5943, ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684

(1961) and Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).

       {¶12} “Crim.R. 41 governs the issuance of search warrants.”           State v.

Shaulis, 9th Dist. Wayne No. 01CA0044, 2002 WL 242104, *1 (Feb. 20, 2002).

Crim.R. 41(C)(2) provides that a search warrant “shall command the officer to

search, within three days, the person or place named or the property specified.”

Crim.R. 41(C)(2). While search warrants must ordinarily be executed within three

days of their issuance, Crim.R. 45(A) provides

       In computing any period of time prescribed or allowed by these rules,

       by the local rules of any court, by order of court, or by any applicable

       statute, the date of the act or event from which the designated period

       of time begins to run shall not be included. The last day of the period

       so computed shall be included, unless it is a Saturday, Sunday, or legal

       holiday, in which event the period runs until the end of the next day


                                         -6-
Case No. 13-17-12


       which is not Saturday, Sunday, or legal holiday. When the period of

       time prescribed or allowed is less than seven days, intermediate

       Saturdays, Sundays, and legal holidays shall be excluded in

       computation.

       {¶13} Applying the law above, we conclude that the trial court did not err in

denying Seaburn’s motion to suppress evidence. State v. Baker, 6th Dist. Lucas

Nos. L-15-1295 and L-12-1324, 2017-Ohio-1074, ¶ 17 (finding that a four-day gap

between the issuance and execution of a search warrant is permissible because of

the tolling provisions of Crim.R. 45(A)). We begin by emphasizing that nothing in

the language of Crim.R. 45 suggests that it is not applicable to the execution of

warrants by law enforcement officers. See Crim.R. 45(A). Further, nothing in the

text of the warrant indicates any intention by the issuing judge to make the criminal

rules inapplicable in this case by ordering the search warrant to be served in a time

period other than set forth in Crim.R. 41. (Doc. No. 41). In fact, the face of the

warrant commands those who execute it to bring the products of their search before

the judge “to be disposed of and dealt with according to law.” (Id.). The criminal

rules, including Crim.R. 45(A), are unquestionably part of the law.

       {¶14} Although the search warrant would ordinarily have to be executed in

three days, Crim.R. 45(A) and applicable case law establish that the time for the

execution of the search warrant was tolled in this case. Crim.R. 45(A); Baker at ¶


                                         -7-
Case No. 13-17-12


17. In State v. Baker, the Sixth District Court of Appeals confronted a set of facts

in which the appellant argued that a search was invalid because it took place

pursuant to a warrant that was issued on September 26, 2014 but was not executed

until September 30, 2014. Id. The court noted that the search in question was not

conducted within three days of the warrant’s issuance, but the court further noted

that Crim.R. 45 provides for the tolling of time in certain situations.          Id.

Specifically, Crim.R. 45 provides that, when the period of time prescribed under the

rules is fewer than seven days, “intermediate Saturdays, Sundays, and legal holidays

shall be excluded in computation.” Crim.R. 45.

       {¶15} Other courts have held likewise under similar circumstances. The

Eighth District Court of Appeals applied Crim.R. 45(A) to the execution of search

warrants by law enforcement and held that a six-day gap between the issuance and

execution of two search warrants was permissible where Crim.R. 45(A) required

that three of those six days be excluded from computation. State v. Coleman, 8th

Dist. Cuyahoga No. 91058, 2009-Ohio-1611, ¶ 57-58. The Second District Court

of Appeals likewise held that Crim.R. 45(A) “clearly and unambiguously applies”

to the execution of search warrants by law enforcement despite the appellant’s

argument that it did not apply because warrants are ordinarily executed during

weekends. State v. Crane, 2d Dist. Montgomery No. 17967, 2000 WL 216931, *2

(Feb. 25, 2000).


                                        -8-
Case No. 13-17-12


       {¶16} In the instant case, the search warrant permitting the search of

Seaburn’s residence was issued on October 15, 2015. (Doc. No. 41). The search

warrant was executed October 20, 2015. (Id.). Thus, five days separated the search

warrant’s issuance from its execution. (Id.). The date on which the warrant was

issued is excluded from computation; this is to say that computation begins on

October 16, 2015. Crim.R. 45(A). Because the period of time permitted for the

warrant’s execution was fewer than seven days, October 17 and 18 must also be

excluded from computation because they were a Saturday and Sunday, respectively.

Id. Once October 17 and 18 are excluded from computation, the result is the

conclusion that the warrant was executed within three days as required by the rule.

Baker at ¶ 17; Crim.R. 45(A). Therefore, we conclude that the trial court relied on

competent and credible evidence in denying Seaburn’s motion to suppress evidence.

Crim.R. 45(A).

       {¶17} Seaburn’s assignment of error is overruled.

       {¶18} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




                                        -9-
