[Cite as State v. Elmore, 2016-Ohio-129.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JEFFREY E. ELMORE : Case No. 2015 AP 06 0026
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2014 CR 11 0311
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: January 13, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL J. ERNEST GEORGE URBAN
Assistant Prosecuting Attorney 116 Cleveland Avenue. NW, Suite 808
125 E. High Avenue Canton, Ohio 44702
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015 AP 06 0026 2
Baldwin, J.
{¶1} Appellant State of Ohio appeals a judgment of the Tuscarawas County
Common Pleas Court granting a motion to suppress evidence filed by appellee Jeffrey
E. Elmore.
STATEMENT OF FACTS AND CASE
{¶2} Around midnight on August 28, 2014, Deputy Travis Stocker of the
Tuscarawas County Sheriff’s Department was on routine patrol in the area of River Road.
He observed a white car parked in a wooded area, near the Tuscarawas River. He also
saw what appeared to be a camp fire burning. Although he travels the road often, he
had never known of this area to be used for camping.
{¶3} Deputy Stocker stopped to investigate. As he approached the scene, he
noted three people sitting near the fire, and two men standing behind a tent. He asked
the group if they had permission to be on the property, and they responded that they did
not. They also indicated that they did not know who owned the property. Deputy Stocker
first checked the identification of the two men behind the tent, Damian Nelson and
appellee, and discovered active arrest warrants for both of the men. After placing them
under arrest and placing them in the patrol car, he checked the identification of the
remaining three people: Chloe Kidd, Alec Alderman, and Rachel Hundley. There were
no warrants for these three individuals. At this point the officer believed that Alderman,
Kidd and Hundley were free to leave, although in his opinion they probably subjectively
felt like they could not leave. His cruiser was blocking the white car, which belonged to
Alderman.
Tuscarawas County, Case No. 2015 AP 06 0026 3
{¶4} The deputy then walked behind the tent where Nelson and appellee were
standing when he approached the scene earlier. When arresting Nelson and appellee,
the deputy noted that they appeared to be under the influence of a drug because they
did not respond to him, and they were drowsy as if they might fall asleep standing up.
On the ground behind the tent, Deputy Stocker found a 20-ounce plastic bottle containing
a clear liquid, a baggie containing a green leafy substance, a joint, and coffee filters
stuffed inside a cigarette package.
{¶5} Deputy Stocker looked inside the car. Without opening the door or shining
a flashlight into the car, he by moonlight observed a clear hose which in his experience
was often used to make methamphetamine. The deputy also saw a pipe above the
steering wheel. The pipe was made from a broken light bulb wrapped in aluminum foil,
and the bottom was burned. The pipe was consistent with pipes the deputy had
previously seen that were used to cook methamphetamine.
{¶6} When the deputy asked Alderman about the hose, Alderman claimed in a
defensive manner that it was not his. Alderman, Kidd and Hundley all denied ownership
of the pipe. The deputy called a canine unit. The dog, Figo, alerted on the vehicle at the
trunk and the passenger door. A search of the vehicle produced the pipe with residue,
the clear hose, and a butane torch.
{¶7} Deputy Stocker went back to the tent. He lifted a corner of the tent near
where appellee and Nelson had been standing and found a folded piece of paper
containing brown powder. Inside the tent, the officer found more coffee filters and 50-75
aluminum foil balls, which from his experience he knew to be of a type used when starting
the process of making methamphetamine. He also found a bag about 25 yards from the
Tuscarawas County, Case No. 2015 AP 06 0026 4
tent which contained items used in the manufacture of methamphetamine: opened cold
medicine packets, muriatic acid, Drano, and pipe cutters.
{¶8} Appellee, Alderman, Nelson and Kidd were indicted for illegal assembly or
possession of chemicals for the manufacturing of drugs (R.C. 2925.041(A)) and illegal
use or possession of drug paraphernalia (R.C. 2925.14). Appellee filed a motion to
suppress evidence. Following a hearing, the court granted the motion to suppress,
holding that “the encounter between the law enforcement agents of the State of Ohio
and these individual Defendants on 8/28/2014 should have been terminated once certain
individuals were arrested on outstanding warrants and after the investigating law
enforcement officer(s) did not announce that these three remaining Defendants at the
location in question were under the arrest for the crime of Criminal Trespass.” Judgment,
June 2, 2015, page 3.
{¶9} The State of Ohio appeals, assigning a single error:
{¶10} “THE APPELLEE DID NOT HAVE A REASONABLE EXPECTATION OF
PRIVACY AS A TRESPASSER.”
{¶11} The State argues that appellee lacks standing to challenge the search
because he was a trespasser without a reasonable expectation of privacy. The State
further argues that the deputy had a reasonable suspicion of criminal activity to justify
the detention of Alderman, Kidd and Hundley at the scene.
{¶12} 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
Tuscarawas County, Case No. 2015 AP 06 0026 5
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d
1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(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, 619 N.E.2d 1141
(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, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d
906 (1993); Guysinger, supra. As the United States Supreme Court held in Ornelas v.
U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “[A]s a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.”
{¶13} The Fourth Amendment protects persons from “unreasonable searches and
seizures” by the government. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206,
811 N.E.2d 68, ¶ 8, citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of
Appeals, 63 Ohio St.3d 354, 364, 588 N.E.2d 116 (1992). Section 14, Article I of the
Ohio Constitution is interpreted to provide the same protections as the Fourth
Amendment. State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997).
Evidence seized in violation of the Fourth Amendment will be suppressed pursuant to
Tuscarawas County, Case No. 2015 AP 06 0026 6
the exclusionary rule. Jackson, 2004-Ohio-3206, at ¶ 8, 102 Ohio St.3d 380, 811 N.E.2d
68. However, the defendant must have a reasonable expectation of privacy in the
evidence seized for standing to challenge the search or seizure. Id., citing Alderman v.
United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The
defendant bears the burden of establishing that he had a legitimate expectation of
privacy in the area searched. State v. Dennis, 79 Ohio St.3d 421, 426, 683 N.E.2d 1096
(1997).
{¶14} Ownership or possession of incriminating evidence does not alone justify a
finding of standing. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633
(1980). Instead, the pivotal inquiry is “whether [the defendant] had an expectation of
privacy in the area searched.” (Emphasis added.) United States v. Salvucci, 448 U.S.
83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 629 (1980). While an overnight guest in
a home may claim the protection of the Fourth Amendment, one who is merely present
with the consent of the homeowner may not. State v. Renner, 12th Dist. Clinton No.
CA2002–08–033 2003-Ohio-6550, ¶10, citing Minnesota v. Carter, 525 U.S. 83, 119
S.Ct. 469, 471, 142 L.Ed.2d 373 (1998).
{¶15} Further, when an individual intentionally or voluntarily places his or her
property in a place where he has no legitimate expectation of privacy, such as an
abandoned shack or as a trespasser upon another’s property, he has no legitimate
reasonable expectation that they will remain undisturbed and has no standing or right to
contest a search. United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978). He has
no more expectation of privacy than if he had placed the item in plain view, and he cannot
object to its seizure. Id.
Tuscarawas County, Case No. 2015 AP 06 0026 7
{¶16} The trial court found that the officer did not have authority to detain Hundley,
Kidd and Alderman at the scene without placing them under arrest for trespass. The
court held that the police encounter with these three individuals had to terminate at the
point when appellee and Nelson were arrested.
{¶17} However, the evidence of drug activity seized from the ground behind the
tent was not seized as a result of the continued detention of Alderman, Kidd and Hundley.
Whether or not they were free to leave or were lawfully or unlawfully detained, the officer
was not required to leave the premises, as neither appellee nor the other individuals had
a reasonable expectation of privacy in the real property. All of the individuals present at
the site told the officer that they did not know who owned the property and that they did
not have permission to be there. Nothing in the record suggests that appellee had a
reasonable expectation of privacy in the area searched. Therefore, appellee lacked
standing to object to the search of the real property.
{¶18} In addition, nothing in the record indicates that appellee had any expectation
of privacy in the car, the tent, or the bag that was searched. The car belonged to
Alderman, and no one claimed ownership of the tent or the bag. As the items were
voluntarily left in an area in which appellee did not have an expectation of privacy, he
lacks standing to challenge the seizure and search. The trial court erred in granting the
motion to suppress.
Tuscarawas County, Case No. 2015 AP 06 0026 8
{¶19} The assignment of error is sustained. The judgment of the Tuscarawas
County Common Pleas Court is reversed. This case is remanded to that court for further
proceedings according to law. Costs are assessed to appellee.
By: Baldwin, J.
Delaney, J. concur.
Hoffman, P.J. concurs
separately
Tuscarawas County, Case No. 2015 AP 06 0026 9
Hoffman, P.J., concurring
{¶20} I concur with the majority Appellee did not have a reasonable expectation
of privacy as to any item laying out in the open area. I am not persuaded Appellee did
not have a reasonable expectation of privacy as to items found in or under the tent nor to
items in his vehicle. I do not believe the fact Appellee did not have express permission
from the owner of the property to be there does not automatically result in a trespass –
particularly when ownership of the land is never established.
{¶21} The deputy testified there were no, no-trespassing signs in the area. I am
not convinced mere presence of the property of another automatically results in an
abandonment of all expectation of privacy as to any and all items brought onto the
property.
{¶22} Nevertheless, I concur in the result reached by the majority based upon the
evolving reasonable suspicion of criminal activity under the facts of this case.1
1Though argued, Appellant did not separately assign as error the trial court’s decision
on this ground.