State v. Smith

[Cite as State v. Smith, 2012-Ohio-845.]

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

STATE OF OHIO :
: Appellate Case No. 24540
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-2297
v. :
:
SHAWN D. SMITH : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........

OPINION

Rendered on the 2nd day of March, 2012.

...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

TARA C. DANCING, Atty. Reg. #0077277, 1158 Kauffman Avenue, Fairborn, Ohio 45324
Attorney for Defendant-Appellant

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

HALL, J.

{¶ 1} Shawn D. Smith appeals from his conviction and sentence following a

no-contest plea to one count of marijuana possession, in an amount of 5,000 grams or greater

but less than 20,000 grams, a third-degree felony.
 2

{¶ 2} In his sole assignment of error, Smith contends the trial court erred in

overruling his motion to suppress evidence.

{¶ 3} The record reflects that Smith was charged with possession of marijuana and

possession of drug paraphernalia. He filed a suppression motion in October 2010. The trial

court held a November 4, 2010, hearing on the motion. The only witnesses at the hearing were

Dayton police officers. One of the officers, Bryan Dedrick, testified that he responded to 2722

North Main Street on July 23, 2010 to investigate a reported shooting. Dedrick and another

officer approached the residence, and Dedrick knocked on the door. Smith opened the door as

other officers arrived. Dedrick told Smith about the shooting complaint and asked if the

officers could enter the house to make sure no one was shot. Smith consented. Several officers

then entered the house to look for a shooting victim. Upon entering the house, Dedrick noticed

that it contained little furniture. In the kitchen, he saw marijuana, scales, and plastic baggies

next to the stove. He also smelled a “pungent” odor of raw marijuana in the house. Another

officer saw what appeared to be heroin in a baggie and a handgun on a mantle in the living

room. Based on these observations, sergeant Mark Speirs removed Smith from the house and

placed him in a police car.

{¶ 4} While in an upstairs bedroom, officer Kevin Cooper observed a “brick” of

currency wrapped with a rubber band sticking out of a floor register cover. Cooper retrieved

the currency, which he had seen without touching the cover. Another officer, Dan Mamula,

testified about looking for a shooting victim in a first-floor closet. After looking inside the

closet, Mamula closed the door. As he did, he glanced down and saw a large clear plastic bag

containing what appeared to be marijuana. The bag was inside an air-return vent on the floor.
 3

A second officer, Sean Humphrey, also testified about seeing the bag in the vent. Humphrey

was able to see a “green, leafy, substance” in the bag without manipulating the grate covering

the vent. Humphrey proceeded to remove the grate and retrieve the bag, which he believed

contained marijuana. As he removed the bag from the vent, Humphrey felt three or four more

bags inside the hole. He removed them as well. Humphrey then looked inside the vent and,

using a flashlight, saw additional marijuana bags and a rifle farther back. He proceeded to

remove a few more bags and the rifle. When he could not reach all of the remaining bags,

Humphrey went to the basement, removed a duct-work cover, and retrieved the ones he had

been unable to reach from above. Police discovered a total of thirteen bags in the hole, and

each contained approximately one pound of marijuana.

{¶ 5} Based on the foregoing facts, the trial court overruled Smith’s motion to

suppress in a ruling from the bench. The trial court later overruled a motion for

reconsideration of its suppression ruling.1 Smith pled no contest to the marijuana-possession

charge, a third-degree felony, and the State dismissed the drug-paraphernalia charge. The trial

court sentenced Smith to community control and imposed other sanctions. This appeal

followed.

{¶ 6} “Under the standard of review for a motion to suppress, an appellate court

must accept as true the trial court’s supported findings of fact and then independently

determine, without deference to the conclusion of the trial court, whether the facts satisfy the

1
In its written decision denying reconsideration, the trial court stated: “On December 16, 2010, Judge Wagner overruled
Defendant’s Motion to Suppress upon which an evidentiary hearing had been held. For the reasons stated in Judge Wagner’s ruling from the
bench, Defendant’s motion to suppress is overruled.” (Doc. #25 at 1). Unfortunately, the record before us does not include Judge Wagner’s
“oral ruling from the bench” or any recording of it.
 4

applicable legal standard.” State v. Leveck, 2d Dist. Montgomery No. 23970, 2011-Ohio-1135,

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

{¶ 7} In the present case, the facts are established by the officers’ uncontroverted hearing

testimony. The question is whether those facts reveal a Fourth Amendment violation. We

agree with the trial court that they do not. As set forth above, several officers arrived at 2722

North Main Street in response to a call reporting a shooting. Smith answered the officers’

knock at his door. Officer Dedrick asked whether they could enter the house to search for a

shooting victim. Smith consented. Nothing in the record indicates that his consent was

anything other than voluntary. Therefore, the officers’ entry into the home was lawful. State

v. White, 2d Dist. Montgomery No. 23905, 2011-Ohio-503, ¶13 (recognizing that voluntary

consent justifies a warrantless entry into a home).

{¶ 8} Having obtained permission to enter to search for a shooting victim, the officers were

permitted to search anywhere a victim reasonably might be found. State v. Arrington, 96 Ohio

App.3d 375, 377, 645 N.E.2d 96 (12th Dist.1994) (“The scope of a consent search is limited

by the terms of its authorization and is generally defined by the expressed object of the

search.”). As noted above, while conducting their lawful search, officers saw marijuana,

scales, clear plastic baggies, a “brick” of currency, and a handgun in plain view. As he was

closing a closet door, officer Mamula also looked down and noticed a large clear plastic bag

containing what appeared to be additional marijuana. (Hearing transcript at 75). On cross

examination, Mamula stated that it was not “immediately apparent” that the baggie contained

marijuana until he took a “closer look.” (Id. at 82). Upon looking closely, however, Mamula

believed that it was in fact marijuana. (Id. at 90). Officer Humphrey also saw the bag in the
 5

vent. He described it as containing a “green, leafy, substance.” (Id. at 95). The record reflects

that Humphrey took pictures of the bag in the vent before the cover was removed. (Id. at 84,

95). Based on his testimony and our review of photographs showing what the officers saw, we

believe the initial quart-size bag of marijuana was subject to seizure under the plain-view

exception of the Fourth Amendment’s warrant requirement. See, e.g., State v. Riley, 2d Dist.

Montgomery No. 22517, 2008-Ohio-2896, ¶32 (noting that the plain-view doctrine applies

where (1) the officer did not violate the Fourth Amendment in arriving at the place from

which the object could be viewed, (2) the officer had a lawful right of access to the object, and

(3) the incriminating character of the object was immediately apparent).

{¶ 9} While retrieving the bag in plain view, Humphrey felt additional bags in the

hole. (Id. at 96, 104-106). Having seen one large bag of marijuana in plain view in the vent,

Humphrey had probable cause to believe the other bags he felt in the vent also contained

marijuana. Compare State v. Strothers, 2d Dist. Montgomery No. 18322, 2000 WL 1867594,

*3 (Dec. 22, 2000) (applying the analogous plain-view exception to find no Fourth

Amendment violation where, during the course of removing exposed evidence, an officer

“discovered other evidence below it”). Therefore, the seizure did not violate the Fourth

Amendment.

{¶ 10} Finally, having lawfully retrieved several bags of marijuana from the vent, we

do not believe Humphrey created any meaningful invasion of Smith’s privacy interest when he

peered into the same hole and saw more marijuana bags beyond his reach. The fact that

Humphrey shined a flashlight into the hole does not persuade us otherwise. Id.; see, also, State

v. Kirk, Montgomery No. 8249, 1984 WL 5434, *3 (Jan. 26, 1984) (recognizing “that the use
 6

of a flashlight does not in and of itself constitute a search”). Upon seeing the additional

marijuana bags, Humphrey had a legal right to retrieve them as well.

{¶ 11} Based on the reasoning set forth above, we conclude that the trial court

properly overruled Smith’s suppression motion. His assignment of error is overruled, and the

judgment of the Montgomery County Common Pleas Court is affirmed.

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

GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck
R. Lynn Nothstine
Tara C. Dancing
Hon. Steven K. Dankof