State v. Armstrong

[Cite as State v. Armstrong, 2013-Ohio-2618.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2012-P-0018
- vs - :

LEONARD J. ARMSTRONG, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas.
Case No. 2011 CR 0425.

Judgment: Affirmed in part; reversed in part and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Shubhra N. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH 44224-4379 (For
Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Leonard J. Armstrong, appeals the judgment of the Portage

County Court of Common Pleas. After entering a plea of no contest to count one of the

indictment charging appellant with the offense of murder, in violation of R.C. 2903.02(A)

and R.C. 2929.02, and count two, murder, in violation of R.C. 2903.02(B) and R.C.

2929.02, appellant was sentenced to a definite term of imprisonment of life with parole
eligibility after 15 years. For the following reasons, we affirm in part, reverse in part,

and remand this matter for proceedings consistent with this opinion.

{¶2} Appellant was indicted on two counts of murder, pursuant to R.C.

2903.02(A) and (B), for the death of Jeffrey Sipes. Appellant entered a plea of not guilty

by reason of insanity. Following an evaluation at the Summit Psychological Association,

the parties stipulated to the findings of the evaluation that appellant was sane and able

to stand trial. Appellant filed a motion to suppress his statements made to police on

June 16, 17, 21, and 22, 2011. Appellant also moved to suppress a black memo

notebook taken from his apartment by the police pursuant to a search warrant.

{¶3} At the hearing on the motion to suppress, the state presented the

testimony of Detective DiJerome of the City of Kent Police Department who was

assigned to the investigation of the murder of Sipes, which occurred on June 6, 2011.

Sipes was found in his apartment with multiple stab wounds. A broken kitchen knife

was also found in his apartment—the blade was found on the kitchen counter, and the

handle was found in the hallway of the apartment. DNA was found on the handle of the

knife.

{¶4} After learning that appellant had lived with Sipes and may have a key to

his apartment, Detective DiJerome ran a background check on appellant and

discovered he had a criminal history in New Jersey and Florida. Detective DiJerome

then learned the DNA on the knife had a partial hit on the CODIS database from

someone in New Jersey. Detective DiJerome, along with another officer, went to

appellant’s apartment on June 16, 2011, to speak with him regarding Sipes. Detective

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DiJerome testified that the conversation lasted nine minutes. Detective DiJerome

stated he did not advise appellant of his rights, as he was not under arrest.

{¶5} Detective DiJerome testified that on the following day, June 17, 2011, he

and Officer Ennermoser again visited appellant’s apartment to interview him. This

interview lasted 16 minutes. Again, Detective DiJerome testified that he did not advise

appellant of his rights because he was not under arrest, “he was free to leave at any

time,” and the interview occurred at his own residence. Officer Ennermoser reiterated

that the interview was conducted at appellant’s apartment and that he was not in

custody.

{¶6} During this visit, Detective DiJerome obtained a DNA sample “because

[the officers] were checking anybody that had actually been in the apartment to try to

eliminate them.” During this conversation, Detective DiJerome learned that appellant

had stopped by Sipes’ apartment in April 2011 and had a bowl of soup, and that he had

a previous disagreement with Sipes.

{¶7} Then, on June 21, 2011, Detective DiJerome and Officer Ennermoser

again interviewed appellant; this interview lasted 14 minutes. Detective DiJerome

stated they had confirmation that appellant’s DNA was found on the knife handle found

in Sipes’ apartment. Detective DiJerome testified that when he arrived at appellant’s

apartment, he informed appellant he was not under arrest and was free to leave at any

time, but that he wanted to show appellant some pictures. Officer Ennermoser testified

that Detective DiJerome informed appellant he was not under arrest and did not have to

answer any questions.

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 {¶8} At this visit, Detective DiJerome showed appellant a picture of the knife

handle and informed appellant that his DNA was found on it. Appellant stated he should

speak with an attorney. After appellant made this statement, Detective DiJerome and

Officer Ennermoser left the apartment.

{¶9} On June 22, 2011, Detective DiJerome, along with Detective Bassett,

Officer Harris, and Officer Ennermoser, arrived at appellant’s apartment to execute a

search warrant. Detective DiJerome testified that the purpose of the search warrant

was to look for the following: “Any object or item that may contain biological evidence

(blood/DNA), including but not limited to shoes or clothing. Key(s) to apartment building

located at 933 Lawrence Drive, and keys(s) to apartment #303, located at 933

Lawrence Drive, located in the City of Kent, County of Portage, State of Ohio.”

{¶10} Appellant was home when the officers knocked on his door. Appellant

was advised he was free to leave and was not under arrest, and the officers were there

to execute a search warrant. He chose to remain on his front porch during the search of

his apartment.

{¶11} Detective DiJerome testified that during his search he opened a drawer

and found a memo book, which he knew, in his experience, could be used to conceal

items such as keys and money. He testified that he opened the memo book in search

of the key to Sipes’ apartment and any biological evidence that may have been

transferred to its pages. He observed a writing about the homicide of Sipes on the third

page. The entry stated: “Man killed in apartment. Silver Meadows. Police

Investigating. Mystery. Beware.”

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 {¶12} Officer Ennermoser, who had taken a picture of the aforementioned entry,

flipped the page. On the following page of the memo book, the entry stated: “Sir, I

awoke at 9:30 am. Tuesday morning. It was very dark and raining. I don’t know why,

then it started to dawn on a new exodus on Sunday, June 5, I did indeed kill Jeffrey

Sipes. Approximate.”

{¶13} Detective DiJerome testified that he did not look through any of the other

pages, but he took the memo book to appellant and asked if it belonged to him and if it

was his writing. Appellant confirmed both. Detective DiJerome returned to the inside of

the apartment to continue the search while Officer Ennermoser stayed with appellant on

the front porch.

{¶14} Officer Ennermoser then asked appellant if an accident occurred in Sipes’

apartment, to which appellant replied, “No.” Appellant informed Officer Ennermoser that

he did not wish to speak with her, and not replying, she remained kneeling by his side.

Appellant then began to talk about his dysfunctional family, becoming increasingly

agitated.

{¶15} At this point, Detective DiJerome joined appellant and Officer Ennermoser

on the front porch. Detective DiJerome testified that he had overheard some of this

conversation. In response to Detective DiJerome’s statement that appellant may feel

better if he just told the truth, appellant confessed to killing Sipes. Appellant was not

Mirandized until he was at the police station.

{¶16} The trial court overruled appellant’s motion to suppress. Appellant was

sentenced, and he then appealed to this court.

{¶17} As his first assignment of error, appellant states:

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 {¶18} “The trial court committed reversible error and plain error in denying

Armstrong’s motion to suppress the black memo notebook taken from his apartment.”

{¶19} An appellate court’s review of a decision on a motion to suppress involves

issues of both law and fact. State v. Burnside, 100 Ohio St. 152, 2003-Ohio-5372, ¶8.

During a suppression hearing, the trial court acts as the trier of fact and sits in the best

position to weigh the evidence and evaluate the credibility of the witnesses. Id., citing

State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, an appellate court is

required to uphold the trial court’s findings of facts, provided they are supported by

competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982).

Once an appellate court determines whether the trial court’s factual findings are

supported, the court must then engage in a de novo review of the trial court’s

application of the law to those facts. State v. Lett, 11th Dist. No. 2008-T-0116, 2009-

Ohio-2796, ¶13, citing State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201,

¶19.

{¶20} On appeal, appellant argues the search warrant did not authorize the

police officers to search his private papers or writings, and thus, the search and seizure

of the black notebook and the writings contained therein were beyond the scope of the

warrant and should be suppressed.

{¶21} Conversely, appellee maintains the search warrant authorized the officers

to search for “biological/DNA material,” and therefore, the search of the memo book was

within the scope of the search warrant.

{¶22} In evaluating a suppression motion as the trier of fact, the trial court is

required to state its essential findings of fact on the record pursuant to Crim.R. 12(F).

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That rule states, “[w]here factual issues are involved in determining a motion, the court

shall state its essential findings on the record.” (Emphasis added.) The underlying

rationale of Crim.R. 12(F) is to allow for effective judicial review. State v. Marinacci, 5th

Dist. No. 99-CA-37, 1999 Ohio App. LEXIS 5279, *4 (Nov. 3, 1999).

{¶23} In overruling appellant’s motion to suppress, the trial court did not make

any factual findings. The trial court only stated that appellant’s motion to suppress was

without merit, and thus, the notebook and its contents may be introduced as evidence at

trial.

{¶24} A trial court’s failure to set forth the essential findings may not be fatal,

however, in the absence of defendant’s timely request or if the appellate record

provides a sufficient basis to review appellant’s assigned error. See State v. Sands,

11th Dist. No. 2006-L-171, 2007-Ohio-35, ¶35; City of Bedford v. McLeod, 7th Dist. No.

94649, 2011-Ohio-3380, ¶17; and State v. Benner, 40 Ohio St.3d 301 (1988) (“in order

to invoke the rule, the defendant must request that the court state its essential findings

of fact in support of its denial of a motion”).

{¶25} At the outset, we recognize that, although it has not been addressed by

the parties, the search warrant is so broadly stated that it is virtually limitless. It

authorizes a search for a key to the victim’s apartment and also for biological

evidence/DNA. The search warrant does not specify whose DNA, but it must be

assumed it is the DNA of the victim, because the officers had previously taken

appellant’s DNA sample. There is, however, no indication why the officers had probable

cause to believe the victim’s DNA was in appellant’s apartment; the only reference to

blood was that appellant’s DNA was found on the broken knife in the victim’s apartment.

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The search for the victim’s DNA in appellant’s apartment appears strikingly overbroad.

It is fairly common knowledge that DNA is prevalent; it is microscopic. This broad

permission, without any stated probable cause that would lead one to believe some

particular bit of DNA was present, may have given the officers impermissibly broad

authority to conduct this search. If the search was intended to seek blood, it should

have simply been limited to that specific type of DNA.

{¶26} There can be few things more private, and therefore more protected from

unwarranted intrusion, than one’s private notebook. According to the testimony at the

suppression hearing, the notebook may have been a place to hide a key and/or it may

have plausibly contained DNA evidence. The testimony, however, reveals no

justification to believe the victim’s DNA was inside the notebook or, specifically, what

type of DNA the notebook may have contained. Further, even if the notebook was a

place to conceal a key, it does not warrant a page-by-page perusal of the book.

Additionally, the testimony at the suppression hearing reveals that Detective DiJerome

was not only searching for biological evidence or a key but “anything else that may be

pertinent.” A search warrant should not give an officer carte blanche authority to search

appellant’s apartment. The items to be located and seized pursuant to a search warrant

must be identified with sufficient particularity.

{¶27} At the hearing, Officer Ennermoser testified that Detective DiJerome came

across a “small notebook and he happene[d] to show me a page that has a writing in

it[.]” Officer Ennermoser makes it clear she read the notebook because of the

“interesting journal article”—not because of the search for DNA or a key, as stated in

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the warrant; she flipped the page and read the next entry of appellant’s notebook which

was appellant’s confession.

{¶28} The dissent justifies the trial court’s ruling by stating that “once seized, the

incriminating contents of the notebook [fall] under the plain view doctrine.” The

dissent’s discussion regarding the “incriminating statements” found in the notebook

does not properly apply to those exceptions that have developed to eliminate the

necessity of a warrant. The dissent suggests the Fourth Amendment permits the officer

to seize evidence under the search warrant but then concludes, paradoxically, that there

must be an exception to the warrant requirement to read the notebook. However, the

plain view exception to the requirement of a warrant is not applicable.

{¶29} Under [the plain view] doctrine, if police are lawfully in a position

from which they view an object, if its incriminating character is

immediately apparent, and if the officers have a lawful right of

access to the object, they may seize it without a warrant. If,

however, the police lack probable cause to believe that an object in

plain view is contraband without conducting some further search of

the object – i.e., if ‘its incriminating character [is not] “immediately

apparent,”’ Horton, supra, at 136 – the plain-view doctrine cannot

justify its seizure. Arizona v. Hicks, 480 U.S. 321, 94 L. Ed. 2d 347,

107 S. Ct. 1149 (1987).” Minn. v. Dickerson, 508 U.S. 366, 375

(1993).

{¶30} The seizure here was not contraband. It was evidence in the form of a

writing that could have been attributed to appellant. This was not within the scope of

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the search warrant. The trial court, therefore, erred in overruling appellant’s motion to

suppress the black memo notebook found in appellant’s apartment.

{¶31} Appellant’s first assignment of error has merit.

{¶32} Appellant’s second assignment of error states:

{¶33} “The trial court committed reversible and plain error in denying

Armstrong’s motion to suppress his statements to the police.”

{¶34} Appellant argues he was entitled to be advised of the Miranda warnings,

as he was in custody. Appellant argues his statements were not voluntarily made.

Appellant cites that two officers arrived at his home on June 16 and 17, 2011, and that

these officers knew appellant’s DNA matched the DNA on the knife found at the murder

scene.

{¶35} Statements obtained during the custodial interrogation of a

defendant are not admissible at trial unless the police have used

procedural safeguards to secure the defendant’s Fifth Amendment

right against self-incrimination and Sixth Amendment right to

representation. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86

S. Ct. 1602, 16 L. Ed. 2d 694. ‘Only custodial interrogation triggers

the need for Miranda warnings.’ State v. Lynch, 98 Ohio St.3d 514,

2003-Ohio-2284, at ¶47 (emphasis sic); State v. Biros, 78 Ohio

St.3d 426, 440. ‘Custodial interrogation’ means ‘questioning

initiated by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of action in any

significant way.’ Miranda, 384 U.S. at 444.

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{¶36} There are two aspects to the issue of whether a person is ‘in

custody’ for the purposes of Miranda. Thompson v. Keohane

(1995), 516 U.S. 99, 112. ‘[F]irst, what were the circumstances

surrounding the interrogation; and second, given those

circumstances, would a reasonable person have felt he or she was

not at liberty to terminate the interrogation and leave.’ Id. (footnote

omitted); Berkemer v. McCarty (1984), 468 U.S. 420, 442,

(determination of whether a suspect was in custody at a particular

time requires an inquiry into ‘how a reasonable man in the

suspect’s position would have understood his situation’). In order

for custodial interrogation to occur, there must be ‘a “formal arrest

or restraint on freedom of movement” of the degree associated with

a formal arrest.’ California v. Beheler (1983), 463 U.S. 1121, 1125,

quoting Oregon v. Mathiason (1977), 429 U.S. 492, 495. An

‘objective test’ is applied in making this determination. Thompson,

516 U.S. at 112. A ‘determination of custody depends on the

objective circumstances of the interrogation, not on the subjective

views harbored by either the interrogating officers or the person

being questioned.’ Stansbury v. California (1994), 511 U.S. 318,

323.

{¶37} * * *

{¶38} The Due Process Clause of the Fourteenth Amendment’s

guarantee that no State shall ‘deprive any person of life, liberty, or

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 property, without due process of law’ condemns the use of coercive

police conduct that renders a confession involuntary. See, e.g.,

Miller v. Fenton (1985), 474 U.S. 104, 109-110, 106 S. Ct. 445, 88

L. Ed. 2d 405, and the cases cited therein. ‘In deciding whether a

defendant’s confession is involuntarily induced, the court should

consider the totality of the circumstances, including the age,

mentality, and prior criminal experience of the accused; the length,

intensity, and frequency of interrogation; the existence of physical

deprivation or mistreatment; and the existence of threat or

inducement.’ State v. Edwards (1976), 49 Ohio St.2d 31, 358

N.E.2d 1051, paragraph two of the syllabus; State v. Clark (1988),

38 Ohio St.3d 252, 261, 527 N.E.2d 844 (‘[w]hile voluntary waiver

and voluntary confession are separate issues, the same test is

used to determine both, i.e., whether the action was voluntary

under the totality of the circumstances’). In re J.C., 11th Dist. No.

2011-G-3017, 2011-Ohio-5864, ¶74-78.

{¶39} With respect to the interview of June 16, 2011, the record demonstrates

appellant was questioned in his apartment. During the questioning, appellant was

advised that he was not under arrest, he was free to leave, and he was not required to

answer the officers’ questions. Although appellant argues he was not advised of his

Miranda warnings, he was not subject to a custodial interrogation, for it is well

established that, under Miranda, the Fifth Amendment right to counsel does not vest

until a defendant is in custody. See Edwards v. Arizona, 451 U.S. 477, 484 (1981)

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(“when an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation even if he has been advised

of his rights”). (Emphasis added.) See also McNeil v. Wisconsin, 501 U.S. 171, 182, fn.

3 (1991). (The Supreme Court of the United States stated: “We have in fact never held

that a person can invoke his Miranda rights anticipatorily, in a context other than

‘custodial interrogation.’ * * * If the Miranda right to counsel can be invoked at a

preliminary hearing, it could be argued, there is no logical reason why it could not be

invoked by a letter prior to arrest, or indeed even prior to identification as a suspect.”

(Emphasis added.))

{¶40} Similarly, the June 17, 2011 interview occurred at appellant’s apartment.

Again, appellant was advised that he was not under arrest, he was free to leave, and he

was not required to answer the officers’ questions. During the questioning, appellant

stated that “maybe he should speak to an attorney.” Although the officers attempted to

continue to question appellant, he “shut down” and the questioning ceased.

{¶41} On June 21, 2011, the officers again went to appellant’s apartment. At

this encounter, the officers informed appellant that his DNA was on the knife handle

found in Sipes’ apartment. The officers informed appellant that he was not under arrest,

he was free to leave at any time, and he did not have to answer any questions. The

officers then proceeded to show appellant pictures of the knife’s handle. Appellant

stated he should speak with an attorney. After appellant made this statement, the

officers left the apartment. Although the trial court did not enter written findings of fact

or conclusions of law with respect to the June 21, 2011 encounter, it appears the court

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did not suppress any statements made by appellant to the officers because appellant

was not in custody.

{¶42} On June 22, 2011, the officers arrived at appellant’s apartment to execute

a search warrant. The officers informed appellant that he was free to leave during the

execution of the warrant. Appellant, however, chose to remain on the front porch.

{¶43} After reading the pages of the notebook found in appellant’s apartment,

which contained appellant’s confession to the murder of Sipes, the officers confronted

appellant. Detective DiJerome approached appellant on the front porch and asked

appellant, “is this your notebook?” Appellant responded, “yes.” Detective DiJerome

then asked appellant, “is this your writing?” Appellant responded, “yes, it is.” As we

held the reading and seizing of the notebook was unlawful, all statements relating to the

notebook are to be suppressed as they are considered “fruits” of the officers’ unlawful

seizure of the notebook. Wong Sun v. United States, 371 U.S. 471, 482 (1963) (“Nor do

the policies underlying the exclusionary rule invite any logical distinction between

physical and verbal evidence.”)

{¶44} After questioning appellant regarding the notebook, Detective DiJerome

returned into the apartment to continue his search while appellant remained on the

porch with Officer Ennermoser. The record reveals that during his conversations with

Officer Ennermoser, appellant requested an attorney and stated that he did not wish to

speak. Officer Ennermoser testified that after each break in conversation, she informed

appellant that it was his right not to speak. Appellant, without prompting by Officer

Ennermoser, spoke of his dysfunctional family and his dealings with Sipes. At this

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point, Detective DiJerome made the statement that appellant may feel better if he just

told the truth. Appellant then confessed to killing Sipes.

{¶45} Here, appellant’s statements were not prompted by questioning initiated

by law enforcement officers. The record reveals no evidence of coercive or

overreaching police conduct. Appellant did not make this admission regarding the

killing of Sipes in response to any question by the police. Because appellant was not

subject to a custodial interrogation on June 22, 2011, he was not subject to Miranda.

Therefore, other than the statements related to the writing in his journal, appellant’s

statements should not be suppressed.

{¶46} Appellant’s second assignment of error has merit to the extent indicated.

{¶47} Based on our disposition of appellant’s first and second assignments of

error, we find appellant’s third, fourth, and fifth assignments of error, all related to

sentencing issues, moot.

{¶48} This case is remanded to the trial court for further proceedings consistent

with this opinion. On remand, the trial court must proceed from the point at which the

error occurred. See, e.g., State v. Clark, 1st Dist. No. C-920603, 1993 Ohio App. LEXIS

4926 (Sept. 8, 1993).

{¶49} Based on the opinion of this court, the judgment of the Portage County

Court of Common Pleas is hereby affirmed in part, reversed in part, and remanded.

CYNTHIA WESTCOTT RICE, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

____________________

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DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

{¶50} I dissent and would affirm the decision of the trial court, both with respect

to the validity of the search warrant and the suppression of Armstrong’s confession.

{¶51} “In search and seizure cases where a warrant is involved, the requisite

specificity necessary therein usually varies with the nature of the items to be seized.”

State v. Benner, 40 Ohio St.3d 301, 307, 533 N.E.2d 701 (1988). “[T]he key inquiry is

whether the warrants could reasonably have described the items more precisely than

they did.” Id.; State v. Hale, 2nd Dist. No. 23582, 2010-Ohio-2389, ¶ 71 (a broad

description of items to be searched or seized is “valid if it ‘is as specific as

circumstances and nature of the activity under investigation permit’ and enables the

searchers to identify what they are authorized to seize”) (citations omitted).

{¶52} In the present case, the warrant authorized the search and/or seizure of

“[a]ny object or item that may contain biological evidence (blood/DNA), including but not

limited to shoes or clothing” and “[k]ey(s) to apartment building located at 933 Lawrence

Drive.” As the accompanying affidavit makes clear, Armstrong’s DNA had been found

on the murder weapon at the victim’s apartment, and so it would be reasonable to

believe that items containing the victim’s blood/DNA might be found in Armstrong’s

apartment. It would be impossible for police officers to specifically identify all possible

objects that might carry evidence of the victim’s blood/DNA, although the warrant

identifies the two most likely sources of such evidence - shoes and clothing.

{¶53} Contrary to the majority’s position, neither the law nor the circumstances

of the present case demand greater specificity. In Benner, the Ohio Supreme Court

approved a warrant “authorizing the search of [the defendant’s] houses and his truck for

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‘fibers and hairs and other trace evidence for comparison.’” Benner at 307. The court

acknowledged that the language was “very broad,” but concluded that the warrant

“placed a meaningful restriction on the executing officers, viz., they could only seize

those items that could be sources of fibers and hairs.” Id. Similarly, in the present

case, the officers could only seize items that contained the victim’s blood/DNA; items

such as furniture or electronically stored data did not come within the warrant’s scope.

{¶54} As to the discovery of the notebook, Detective DiJerome testified:

{¶55} During the search, I open a drawer and I found a memo book, and

in my experience sometimes people conceal items; keys, money,

whatever, in these types of notebooks. I flip open the notebook

looking for any biological evidence, maybe something that might

have been transferred in there, looking for the key and I see a

writing in there about the homicide of Mr. Sipes.

{¶56} Detective DiJerome’s testimony, which is not contradicted or impeached,

demonstrates the propriety of seizing the notebook as possibly concealing the key to

the victim’s apartment and/or biological evidence linking Armstrong to the victim.

Compare State v. Mansfield, 9th Dist. No. 06CA0022-M, 2007-Ohio-333, ¶ 21 (seizure

of a notebook was permissible where the warrant “only allowed seizure of ‘[a]ny type of

pornography depicting child pornography, videos, pictures and magazines’”).

{¶57} The majority faults Detective DiJerome for not specifying “what type of

DNA the notebook may have contained.” Supra at ¶ 26. Justification for seizure of the

notebook does not require testimony specifying what type of DNA Detective DiJerome

expected to find. The notebook may have belonged to Sipes or contained a key or

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some other property from Sipes’ apartment, thus linking Armstrong to the murder. The

type of DNA the evidence might carry is a matter properly for forensics.

{¶58} Once seized, the incriminating contents of the notebook fell under the

plain view doctrine. State v. Williams, 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978),

paragraph one of the syllabus (“[i]n order for evidence to be seized under the plain view

exception to the search warrant requirement it must be shown that (1) the initial

intrusion which afforded the authorities the plain view was lawful; (2) the discovery of

the evidence was inadvertent; and (3) the incriminating nature of the evidence was

immediately apparent to the seizing authorities”).

{¶59} The majority is perplexed by the necessity of a warrant to seize the

notebook as well as an exception to the warrant-requirement to read the notebook.

There is no contradiction. The issue is whether the police were lawfully in a position to

view the contents of Armstrong’s notebook. The search warrant authorized the police to

search Armstrong’s apartment for DNA evidence linking Armstrong to Sipes’ murder

and/or a key to Sipes’ apartment. Detective DiJerome testified that he examined the

notebook looking for biological evidence and/or a key, which, in his experience, may be

concealed in such a notebook. While looking for the key, he noticed the writings about

Sipes’ murder. Since the writings about Sipes’ murder did not fall within the warrant’s

scope, Detective DiJerome could only proceed if, as was the case, the incriminating

nature of the writings was apparent.

{¶60} Contrary to the majority’s position, the plain view doctrine does properly

apply in these circumstances.

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 {¶61} [The] cases make clear that when conditions justify an agent in

examining a ledger, notebook, journal, or similar item, he or she

may briefly peruse writing contained therein. See also United

States v. Chesher, 678 F.2d 1353, 1356-57 n.2 (9th Cir.1982);

United States v. Ochs, 595 F.2d 1247, 1256-59 & n.8 (2d Cir.), cert.

denied, 444 U.S. 955, 100 S. Ct. 435, 62 L. Ed. 2d 328 (1979). The

justification may arise from “a ‘reasonable suspicion’ to believe that

the discovered item is evidence,” Wright, 667 F.2d [793,] 798 (9th

Cir.1982)], as in Hillyard, Wysong, and Damitz; or it may arise from

the authority conferred by a warrant to search for certain items

which might reasonably be expected to be found within such a

book, as here. In either case, the plain view doctrine would permit

brief perusal of the book’s contents and, consequently, its seizure if

such perusal gives the examining agent probable cause to believe

that the book constitutes evidence.

{¶62} United States v. Issacs, 708 F.2d 1365, 1370 (9th Cir.1983); State v.

Sautter, 6th Dist. No. L-88-324, 1989 Ohio App. LEXIS 3101, *16-17 (Aug. 11, 1989)

(“[a] number of courts * * * have upheld * * * the seizure of documents during an

otherwise valid search as in ‘plain view’ notwithstanding the fact that some perusal,

generally fairly brief, of the documents was clearly necessary in order for the police to

perceive the relevance of the documents to crime”) (citation omitted).

{¶63} For the foregoing reasons, I respectfully dissent and would affirm the

decision of the court below.

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