[Cite as State v. Land, 2014-Ohio-1877.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLANT, CASE NO. 9-13-39
v.
DURAIN J. LAND, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 13-CR-0223
Judgment Reversed and Cause Remanded
Date of Decision: May 5, 2014
APPEARANCES:
Kevin P. Collins for Appellee
Denise M. Martin for Appellant
Case No. 9-13-39
ROGERS, J.
{¶1} Plaintiff-Appellant, the State of Ohio, appeals the judgment of the
Court of Common Pleas of Marion County, suppressing the State’s evidence. On
appeal, the State argues that the trial court erred by: (1) holding a suppression
hearing after the commencement of trial without the defendant filing a motion to
suppress; (2) denying the State due process; and (3) improperly suppressing the
State’s evidence. For the reasons that follow, we reverse the trial court’s
judgment.
{¶2} On May 9, 2013, the Marion County Grand Jury returned a one count
indictment against Land charging him with one count of possession of heroin in
violation of R.C. 2925.11(A)/(C)(6), a felony of the fourth degree.
{¶3} This matter proceeded to trial on August 8, 2013. Land and his trial
counsel had discussed filing a motion to suppress the heroin that was found on
Land’s person, but decided against it as part of their trial strategy. Trial Tr., p. 96.
The State called two witnesses, Trooper Ruth and Detective Isom, both of whom
described how they came into contact with Land after pulling over the vehicle he
was a passenger in for a traffic violation.
{¶4} Detective Isom testified that when Land stepped out of the vehicle, he
could see a plastic bag, which he believed contained narcotics, hanging out of
Land’s pants. Detective Isom testified at first he tried to shake Land’s pants in an
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attempt to get the narcotics to fall to the ground, but was unsuccessful.
Eventually, Land removed the bag from his pants after Detective Isom asked him
“do you want to get it or do you want me to get it[?]” Id. at p. 91.
{¶5} After Detective Isom finished testifying, the trial court excused the
jury and sua sponte held a suppression hearing to determine “whether a motion to
suppress should have been filed and whether that motion [sic] should have been
suppressed.” Id. at p. 97. The State and the trial court then had the following
relevant discussion:
State: I can’t get past the fact, I guess, that we’re at the trial now
and we’re discussing, you know, the suppression issues and I think I
need to look into that as well.
Trial Court: Okay. If the defense is that -- let’s say the facts are that
it was an unconstitutional search, however it’s admitted because
defense counsel didn’t file a motion to suppress, that would be
ineffective assistance of counsel and we’re back to the same place,
the conviction then becomes nullified.
State: Would that be an issue that he would address on appeal?
Trial Court: Well, if it’s unconstitutional, I’m not supposed to cover
my eyes to that. I’m supposed to make that ruling myself. I’m not
supposed to just cover my eyes and say, we’ll let the Court of
Appeals deal with that.
State: I would ask for a recess, Your Honor, in order for us to look
fully into this issue.
Trial Court: How long of a recess do you need?
State: Well, I’m going to need to do a little research, so, I don’t
know, maybe an hour or two.
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Trial Court: Well, I don’t want to recess this for an hour.
Id. at p. 102-103.
{¶6} The trial court then took a short recess. When back on the record, the
State again informed the court that it was not prepared to defend a motion to
suppress at that time. The State requested additional time to research the
suppression issue. The trial court then stated, “I would think before you present
evidence in Court you would make an evaluation regarding the constitutionality of
the recovery of evidence.” Id. at p. 106.
{¶7} At this point in the hearing, Land’s trial counsel started offering
additional reasons why he did not file a motion to suppress:
Defense Counsel: I had -- I had contacted [the State] sometime last
week, Thursday possibly, about the DVD of this, so I got it Friday.
Trial Court: You hadn’t seen the DVD before Friday?
Defense Counsel: No, I got it Friday, I didn’t know it existed.
Trial Court: Okay. Why is that?
The State: I wasn’t aware that there was a DVD. It was not turned
in with our original package. I didn’t note it in the report and Doug
did bring it to my attention. whether [sic] it was last Friday, I can’t
say for certain, but he was provided with a copy of it.
Defense Counsel: Because Officer’s Isom’s testimony of, are you
going to get it or am I going to get it, that’s the first time I heard that.
It’s not in any other report. I was provided a report by Detective
Isom yesterday at 11:55 [a.m.]. [The State] emailed this to me and
that was the first time where there was comment [sic] made that my
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client was the one that reached into his own pants and removed the
items from his pants. So in part that’s why I had not filed a motion
to suppress, and I didn’t file it earlier based on the other information.
I had Trooper Ruth’s report and such. That’s some of the reasons
why I did what I did.
Id. at p. 107-108.
{¶8} The trial court, before allowing either party to present evidence at the
suppression hearing, offered its opinion on why the evidence was not admissible:
Plain view doesn’t give you the right to go make an intrusion, and
here’s a case that’s very helpful on this. It’s just a Court of Appeals
case. It’s State v. Davis, 133 Ohio App.3d 114. [Sic] Officers
observed, I think, marijuana plants, they could see those from the
sidewalk, so that officers [sic] had a right to be there. They could
see those inside the house through the window of the house, so they
were in plain view, I mean, because the officers could observe them
and the officers were in a place where they had a right to be.
However, that didn’t give them grounds to enter the house because
the plain view doctrine does not give you grounds to go make an
intrusion.
Now, the facts here are a little unusual because you have an
item that was, at least a portion of it, was in plain view. Although in
some of the plain view cases you have where someone – you see a
stereo and the plain view doctrine doesn’t give them authority to lift
up the stereo to look at the serial number to then determine it’s
stolen property. If they can see the stereo, if they can see the serial
number without moving the stereo, then that’s okay, but they can’t
lift it up, even though that’s a very minimal additional intrusion. So
I don’t think plain view works here.
I don’t think consent works because, I mean, we’ve got
multiple officers there. He’s been stopped by force. They’ve
already tried to shake his pants, which wasn’t something he
consented to. He never was asked for consent. He just said, well,
are you going to give them up or am I going to have to go in and get
them, that’s really telling him he doesn’t have a choice. So I don’t
think consent works.
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I don’t think search incident to arrest works because there
wasn’t an arrest made. I think Knowles v. Iowa addresses that issue.
***
And I don’t think exigent circumstances works because the
officer was asked about do -- well, were you worried about the drugs
getting lost or destroyed, is that why you needed to get those right
away, he said, well, we prefer to get them rather than to have to go
prepare a warrant and look for a judge. That’s not exigent
circumstances either.
Id. at p. 108-111.
{¶9} After explaining why none of the warrant exceptions applied to
Land’s case, the trial court told the State it could offer evidence on the motion to
suppress after another short recess. When back on the record, the State called
Detective Isom to testify. Detective Isom testified that when Land exited the
vehicle, he saw part of a plastic bag sticking out from Land’s pants. He also stated
that it is common for individuals to hide narcotics in their pants. Detective Isom
tried to grab the plastic bag but was not able to because the plastic bag fell further
into Land’s boxer shorts. After his failed attempt to retrieve the drugs, Detective
Isom asked Land “if he was going to remove it or [if] he wanted me to remove it.”
Id. at p. 129. Detective Isom testified that Land said that he would get it and that
he never told him “no.” Id. at p. 130. Detective Isom also testified, “I think at the
point that he knew that I had seen it and that I had asked him that he knew he was
busted and he was complying, he gave it to me.” Id.
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{¶10} On cross-examination, Detective Isom stated that Land was not in
handcuffs at the time he handed over the narcotics. The trial court then asked
Detective Isom the following questions:
Trial Court: -- and then you said you proceeded, you grabbed
[Land’s] clothes and shook them.
Detective Isom: I grabbed them and -- well, I don’t know about
shaking, but I think on the video you can see I kind of (Indicating).
Trial Court: Did you ask him before you did that?
Detective Isom: Did I ask him what?
Trial Court: Whether you could shake his clothes, pull his clothes,
do any of that?
Detective Isom: No.
***
Trial Court: And you have how many officers present?
***
Detective Isom: Myself, Trooper Ruth, Detective Utley, and I think
Detective Troutman, and I’m not quite sure when Detective Elliott
got there, at what point.
***
Trial Court: And do you think -- I mean, do you think that [Land]
felt he had any choice at the point?
Detective Isom: To say no?
Trial Court: Yes.
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Detective Isom: Sure he did.
Trial Court: And why do you say that?
Detective Isom: Because I asked him.
Trial Court: Well, you asked him. You know, officers ask a lot of
questions, but normally you ask with the intent that the person
comply. Like, you know, you stop someone, you ask them for their
driver’s license. It’s not really a question, per se, is it? It’s more of
a direction; isn’t that correct?
Detective Isom: I really don’t know what you’re getting at, but I’m
not sure --
Trial Court: And this was a much more intense situation than just a
traffic stop at that point. I mean, you’re there with multiple drug
officers because you think you’ve found drugs at this point.
Id. at p. 131-135.
{¶11} The trial court then orally made its decision. The trial court stated
that it considered Detective Isom’s testimony at trial in addition to his testimony at
the suppression hearing and found that the evidence was unconstitutionally
obtained and granted the motion to suppress it had raised sua sponte. The State
then moved for a stay of the proceedings so it could appeal the trial court’s
judgment to this court.
{¶12} The State filed this timely appeal, presenting the following
assignments of error for our review.
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Assignment of Error No. I
THE COURT ABUSED ITS DISCRETION WHEN IT
IMPROPERLY SUPPRESSED THE STATE’S EVIDENCE
SUA SPONTE AFTER THE COMMENCEMENT OF TRIAL
AND WITHOUT ANY MOTION TO SUPPRESS BEFORE
THE COURT.
Assignment of Error No. II
THE STATE WAS DENIED DUE PROCESS WHEN THE
COURT SUA SPONTE HELD A SUPPRESSION HEARING
TO SUPPRESS THE STATE’S EVIDENCE.
Assignment of Error No. III
THE COURT IMPROPERLY SUPPRESSED THE
EVIDENCE.
Assignment of Error No. I
{¶13} In its first assignment of error, the State argues that the trial court
abused its discretion by improperly suppressing the State’s evidence when it sua
sponte conducted a suppression hearing after the commencement of the trial and
without any motion to suppress before the court. We agree.
{¶14} Initially, we must note “[i]n our adversary system, in both civil and
criminal cases, in the first instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the parties present.”
Greenlaw v. United States, 554 U.S. 237, 243-245 (2008). This is because the
“parties know what is best for them, and are responsible for advancing the facts
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and arguments entitling them to relief.” Castro v. United States, 540 U.S. 375,
386 (2003) (Scalia, J., concurring in part and concurring in the judgment).
{¶15} Pursuant to Crim.R. 12(D), a motion to suppress must be filed within
35 days of arraignment “or seven days before trial, whichever is earlier.”
However, in the interest of justice, the trial court has the discretion to extend the
time for making pretrial motions. Crim.R. 12(D). Further, Crim.R. 12(H) states
that the failure of the defendant to raise defenses prior to trial “shall constitute
waiver of the defenses or objections, but the court for good cause shown may
grant relief from the waiver.” While the trial court correctly noted in its judgment
entry that the trial court may extend the time for making a motion to suppress,
Land never made a written or an oral motion to suppress.
{¶16} “A trial court cannot sua sponte issue and then grant a motion to
suppress.” (Emphasis sic.) State v. Wallace, 7th Dist. Mahoning Nos. 11 MA
137-145, 11 MA 149-155, 11 MA 146, 11 MA 147, 11 MA 148, 2012-Ohio-6270,
¶ 19, citing State v. Hamilton, 97 Ohio App.3d 648 (3d Dist.1994). Further, it is
an abuse of discretion for a court to override a party’s deliberate waiver of a
defense. See Day v. McDonough, 547 U.S 198, 202 (2006) (“And we would count
it an abuse of discretion to override a State’s deliberate waiver of a limitations
defense.”).
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{¶17} Here, it is undisputed that Land’s trial counsel never filed a written
motion to suppress. Initially, the trial court asked Land’s trial counsel why he had
not filed a motion to suppress, and his trial counsel responded that he had talked to
Land, and together, they agreed it was in Land’s best interest not to file the
motion. The trial court essentially called Land’s trial counsel ineffective and
overrode Land’s waiver of his defense. Instead of removing Land’s “ineffective”
trial counsel, it proceeded to argue Land’s case on his behalf:
Plain view doesn’t give you the right to go make an intrusion, and
here’s a case that’s very helpful on this. It’s just a Court of Appeals
case. It’s State v. Davis, 133 Ohio App.3d 114. [Sic] Officers
observed, I think, marijuana plants, they could see those from the
sidewalk, so that officers [sic] had a right to be there. They could
see those inside the house through the window of the house, so they
were in plain view, I mean, because the officers could observe them
and the officers were in a place where they had a right to be.
However, that didn’t give them grounds to enter the house because
the plain view doctrine does not give you grounds to go make an
intrusion. * * * So I don’t think plain view works here.
I don’t think consent works because, I mean, we’ve got multiple
officers there. He’s been stopped by force. They’ve already tried to
shake his pants, which wasn’t something he consented to. He never
was asked for consent. He just said, well, are you going to give
them up or am I going to have to go in and get them, that’s really
telling him he doesn’t have a choice. So I don’t think consent works.
I don’t think search incident to arrest works because there
wasn’t an arrest made. I think Knowles v. Iowa addresses that issue.
***
And I don’t think exigent circumstances works because the
officer was asked about do -- well, were you worried about the drugs
getting lost or destroyed, is that why you needed to get those right
away, he said, well, we prefer to get them rather than to have to go
prepare a warrant and look for a judge. That’s not exigent
circumstances either.
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(Emphasis added.) Trial Tr., p. 108-111.
{¶18} Even at this point, when the trial court indicated that it was inclined
to suppress the evidence, Land did not orally move to suppress the evidence or ask
the trial court for relief from his waiver pursuant to Crim.R. 12(H). Further, after
the trial court explained why it believed none of the warrant exceptions applied, it
then allowed the State and Land to present evidence at the suppression hearing.
{¶19} Based on the facts of this case, we find that the trial court abused its
discretion in first sua sponte raising the motion to suppress in contradiction to
Land’s trial strategy and then taking an adversarial position by essentially ruling
on the motion before allowing the State or Land to present any evidence on the
matter.
{¶20} Accordingly, we sustain the State’s first assignment of error.
Assignment of Error No. II
{¶21} In its second assignment of error, the State argues that the trial court
erred in conducting a suppression hearing without giving it notice and opportunity
to respond to the newly raised issue. We agree.
{¶22} It is well-established that if a trial court raises an issue sua sponte it
must afford both parties notice and an opportunity to prepare a response to the
newly raised issue. See McDonough, 547 U.S. at 210 (“Of course, before acting
on its own initiative, a court must accord the parties fair notice and an opportunity
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to present their positions.”); see generally State ex rel. Edwards v. Toledo City
School Dist. Bd. Of Edn., 72 Ohio St.3d 106 (1995); see also Jones v. Alvarez,
12th Dist. Butler No. CA2006-10-257, 2008-Ohio-1994, ¶ 29 (“The trial court’s
decision to raise, sua sponte, the issue of mutual mistake and to decide that issue
without giving Alvarez an opportunity to present evidence and argument on the
issue was unreasonable and, therefore, an abuse of discretion.”); N. Olmstead Auto
Paint & Supply Co. v. Lettieri, 9th Dist. Lorain No. 91CA005211, 1992 WL
174637, *3 (July 22, 1992) (“We find that the trial court erred by raising the
defense sua sponte, and determining the action upon that issue, without first
providing notice to the parties and an opportunity to respond.”); Bishop Kandel
Realty v. Meadows, 3d Dist. Hancock No. 5-91-9, 1991 WL 234135, *3 (trial
court erred in sua sponte raising an affirmative defense without first giving
appellant an opportunity to respond).
{¶23} In this matter, the trial court did not allow the State time to respond
to the newly raised issue of suppression. While the court allowed for two short
recesses, it denied the State’s request for an hour-long recess or a continuance so it
could properly research the issue of suppression. The trial court stated that the
State should have made “an evaluation regarding the constitutionality of the
recovery of the evidence” before it had gone to trial. Trial Tr., p. 106-107.
However, the Ohio Supreme Court has held that “the prosecutor cannot be
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expected to anticipate the specific legal and factual grounds upon which the
defendant challenges the legality of a warrantless search.” Xenia v. Wallace, 37
Ohio St.3d 216, 218 (1988). Further, the defendant’s failure to timely object to the
illegality of the acquired evidence will lead the prosecutor to “believe that the
defendant has no objection to such illegally acquired evidence. As a result, the
prosecutor may reasonably rely upon such evidence as sufficient to establish [the]
defendant’s guilt * * *.” State v. Davis, 1 Ohio St.2d 28, 31 (1964).
{¶24} While the trial court allowed two short recesses, this did not afford
either party adequate time to prepare arguments and present their positions
concerning a complex constitutional issue that a motion to suppress presents. As
such, we find that the trial court erred in denying the State time to adequately
defend against the trial court’s motion to suppress.
{¶25} Accordingly, we sustain the State’s second assignment of error.
Assignment of Error No. III
{¶26} In its third assignment of error, the State argues that the trial court
erred in suppressing its evidence. Since we have held that the trial court erred not
only by conducting a suppression hearing but also in denying the State adequate
opportunity to defend against the motion to suppress, reviewing the improper
suppression hearing on the merits would be imprudent. Further, our resolution of
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the State’s first and second assignments of error renders its third assignment of
error moot. Consequently, we decline to address it. App.R. 12(A)(1)(c).
{¶27} Having found error prejudicial to the State in the first and second
assignments of error, we reverse the trial court’s judgment and remand this matter
for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. concurs.
PRESTON, J., concurs in Judgment Only.
/jlr
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