[Cite as State v. Nelms, 2017-Ohio-1466.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27167
:
v. : Trial Court Case No. 16-CR-47
:
DEVON L. NELMS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of April, 2017.
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MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
CHRISTOPHER W. THOMPSON, Atty. Reg. No. 0055379, Law Office of the Public
Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
.............
HALL, P.J.
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{¶ 1} Devon Nelms appeals the trial court’s overruling of his motion to suppress
the illegal drugs found in his vehicle. The vehicle was parked directly in front of a
commercial building, and police officers searched the vehicle under a warrant authorizing
a search of the building and its “surrounding curtilage.” The trial court concluded that the
premises search warrant covered the vehicle. We agree, so we affirm.
I. Background
{¶ 2} Detective Jason Barnes of the Dayton Police Department submitted the
affidavit supporting the application for a search warrant. In the affidavit, he describes three
controlled heroin buys arranged by the police using a confidential informant. During the
first one, Detective Barnes watched a man identified as Jordan Alford drive up in a white
Buick Regal and sell the informant heroin. After the sale, Barnes saw the same Buick
parked on the premises at 3606 West Third Street in Dayton. During the second buy,
Detective Barnes watched the informant buy heroin from an unknown man standing on
the street. After the sale, the man got into the white Buick, which was parked on the 3606
West Third Street premises. During the third controlled buy, Detective Barnes was
watching the premises at 3606 West Third Street. He saw Alford exit the door on the north
side of the building and get into the driver’s seat of the parked Buick. While Detective
Barnes stayed, Detective Brian Dedrick followed the Buick and saw Alford sell the
informant heroin. After the sale, Alford drove the Buick back to 3606 West Third Street,
and Detective Barnes saw him again park it on the premises. He saw Alford exit the
vehicle and enter the building through the north-side door.
{¶ 3} A warrant was issued on October 26 that authorized a search for, among
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other things, illegal drugs, controlled substances, and drug-related paraphernalia. The
areas authorized to be searched included the person of Alford and the unidentified male
involved in the second controlled buy and the building, a “commercial garage,” at 3606
West Third Street and its “surrounding curtilage.” On October 29, Detective Barnes,
Detective Dedrick, and other police officers executed the warrant. At the suppression
hearing, Detective Dedrick testified that he watched the premises for about an hour before
they executed the warrant. He saw Nelms’s blue two-door Chevrolet Monte Carlo parked
in front of the building, next to the door on the building’s north side. The vehicle had
backed in, and Dedrick said that he saw movement inside. Police were waiting until the
occupants of the vehicle got out before executing the warrant. Detective Barnes explained
that they were going to execute the warrant two days earlier when the white Buick was
there. But while they were preparing the warrant, the Buick left. A marked police cruiser
attempted to pull it over, because it was listed on the search warrant, but the Buick refused
to stop and fled. The officer did not give chase, and the Buick was not located. So this
time, Detective Barnes was not taking any chances. He was waiting until the occupants
of the Monte Carlo got out. As they waited and watched, they saw the man in the
passenger seat get out to let someone into the car and then get out to let the person out
again. This happened several times. Then the vehicle left the premises only to return ten
to fifteen minutes later and again back into a parking space beside the entrance door.
After a few minutes, Detective Dedrick saw Alford get out of the passenger side and
Nelms get out of the driver side and walk into the garage. It was then that the police
swooped in with the warrant.
{¶ 4} Detective Barnes testified that initially a protective sweep of the Monte Carlo
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was done. The officer who did the sweep found no one inside the vehicle and saw no
contraband. Inside the building, police arrested three individuals—Nelms, Wilbur Bolds
(the owner of the property), and Alford. Later, Detective Barnes ordered that a full search
of Nelms’s vehicle be done because it was on the property’s “surrounding curtilage.”
During this search, paperwork in Alford’s name was found in the passenger door and
cocaine, marijuana, and heroin was found in the center console.
{¶ 5} Nelms was indicted on one count of possession of heroin, one count of
possession of cocaine, and one count of possession of marijuana. He moved to suppress
the evidence found in his vehicle, arguing that the search was beyond the scope of the
warrant. After the suppression hearing, the trial court overruled Nelms’s motion to
suppress. The court concluded that “the scope of the search warrant was not exceeded.”
Nelms then pleaded no contest to possession of heroin and possession of cocaine, and
the marijuana-possession charge was dismissed. He was sentenced to a total of three
years in prison.
{¶ 6} Nelms appealed.
II. Analysis
{¶ 7} Nelms’s sole assignment of error challenges the trial court’s suppression
decision. “Review of a trial court’s ruling on a motion to suppress is ‘a mixed question of
law and fact.’ We accept the trial court’s factual findings as long as they are supported by
competent, credible evidence. However, we review de novo the application of the law to
these facts.” (Citations omitted.) State v. Belton, Ohio Sup.Ct. Slip Opinion No. 2016-
Ohio-1581, ¶ 100, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
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A. The warrant covered Nelms’s vehicle
{¶ 8} The premises search warrant here authorizes a search for illegal drugs and
other items in the commercial building at 3606 West Third Street and on its “surrounding
curtilage.” Nelms argues that the property did not have any curtilage for his vehicle to be
on. We have said that “using ‘curtilage’ in connection with commercial premises is
somewhat of a misnomer since the term typically is associated with the yard or enclosed
space surrounding a dwelling house.” State v. Trammel, 2d Dist. Montgomery No. 17196,
1999 WL 22884, *3 (Jan. 22, 1999). Curtilage—the area immediately adjacent to a home
which an individual reasonably expects is private—is regarded as “ ‘part of the home itself
for Fourth Amendment purposes.’ ” Florida v. Jardines, _ U.S. _, 133 S.Ct. 1409, 1414,
185 L.Ed.2d 495 (2013), quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct.
1735, 80 L.Ed.2d 214 (1984). We have said that “the Fourth Amendment applies to
commercial premises, and extends to areas that can be equated with the ‘curtilage’ of a
private home.” Trammel at *6. This area “can include the grounds surrounding the
premises, if the premises fit within the traditional Fourth Amendment analysis, i.e., the
area is one in which the owner has a reasonable expectation of privacy.” Id. at *4.
{¶ 9} Nelms argues that the owner of the property here did not have a reasonable
expectation of privacy in any of the area surrounding the building, because the entire area
was open to the public—no fences, hedges, or the like suggested a private area.
Certainly, Nelms says, the parking area in front of the building where his vehicle was
found was public. But whether the building here actually had curtilage doesn’t matter.
“Surrounding curtilage” is used in the warrant simply to describe the area around the
building. As we have said, in search warrants, “ ‘curtilage’ has been used * * * to designate
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the area surrounding a commercial property, whether that area be a parking lot or fenced
area.” Trammel at *4. The key question here is whether the warrant and its terminology
permitted the search of Nelms’s vehicle.
{¶ 10} “Although police may be lawfully on the premises with a valid search
warrant, the search is limited to those areas which may reasonably contain the items
listed in the warrant.” State v. Halczyszak, 25 Ohio St.3d 301, 323, 496 N.E.2d 925
(1986), fn. 9. Any container found on the premises may be searched if it could contain the
object of the search. United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982) (holding that “[a] lawful search of fixed premises generally extends to
the entire area in which the object of the search may be found and is not limited by the
possibility that separate acts of entry or opening may be required to complete the
search”). This includes a vehicle. “Ohio appellate courts have recognized that such a
warrant [authorizing the search of curtilage] extends to permit search of motor vehicles
located within the curtilage of the premises.” (Citations omitted.) State v. Ballez, 6th Dist.
Lucas No. L-10-1012, 2010-Ohio-4720, ¶ 13 (citing cases). This Court in particular has
so held. See State v. Simpson, 2d Dist. Montgomery No. 19011, 2002 WL 441488 (Mar.
22, 2002) (holding that “surrounding curtilage” in a search warrant for a residence
included a vehicle parked in the garage attached to the home). Indeed, courts in most
jurisdictions say that vehicles found on the curtilage of a target premises may be
searched. 2 Wayne R. LaFave, Search and Seizure, Section 4.10(c) (5th Ed.2012) (citing
numerous cases). “The assumption [made by these courts] seems to be that a vehicle
should be viewed in the same way as any other personal effects found on the described
premises.” Id.
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{¶ 11} Typically, a vehicle found on the premises is owned or controlled by the
owner of the premises. Few cases address a situation like the one here, a vehicle owned
by a visitor found on commercial premises that are the target of a search warrant. Some
federal circuit courts say that a premises search warrant also covers a vehicle that
appears to be owned or controlled by the premises owner. See, e.g., United States v.
Gottschalk, 915 F.2d 1459, 1461 (10th Cir.1990) (saying that the scope of a premises
warrant includes “those vehicles which appear, based on objectively reasonable indicia
present at the time of the search, to be so controlled”); United States v. Patterson, 278
F.3d 315, 318 (4th Cir.2002) (saying that the scope of a premises warrant includes
vehicles on the premises that “reasonably appear” to be controlled by the premises
owner). In the case of a warrantless search of a vehicle, the U.S. Supreme Court has said
that there is no “distinction among packages or containers based on ownership.”
Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). If
there is probable cause to search the vehicle, held the Court, police “may inspect
passengers’ belongings found in the car that are capable of concealing the object of the
search.” Id. at 307.
{¶ 12} Following the above approach, we believe that if there is probable cause to
search commercial premises—which is the basis on which a warrant for the premises
would issue—a vehicle found on the premises may be searched if police officers have
reason to believe that the vehicle is associated with the premises. That is the case here.
Jordan Alford was involved in three drug sales using a white Buick that he would park in
front of the building at 3606 West Third Street. This could be why the search warrant
permits the search of not only Alford’s person and the building but also the “surrounding
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curtilage.” As it happened, on the day that police executed the warrant, the white Buick
was not there (probably because it had eluded police when an attempt to stop it happened
two days earlier) but Alford was. And he spent a lot of time inside another vehicle parked
on the premises—Nelms’s. The activity around Nelms’s vehicle was suspicious, and its
leaving and shortly returning was reminiscent of Alford’s use of the Buick. The officer
reasonably could have believed that Alford was using Nelms’s vehicle to sell drugs, just
as he had used the Buick.
{¶ 13} We hold that Nelms’s vehicle was covered by the search warrant. The trial
court found that the vehicle was on the curtilage because it was “parked directly in front
of the subject property immediately in front of the door.” (Tr. 32). Given where the vehicle
was found, we agree that it was in the area described in the warrant as the “surrounding
curtilage.” And what police saw during the hour they spent watching the premises before
executing the warrant gave them reason to believe that Nelms’s vehicle was associated
with not only the premises but also Alford, who was specifically named as a target of the
search.
B. The search good-faith exception applies
{¶ 14} Even if Nelms’s vehicle were not covered by the warrant, we would
conclude that suppression is not appropriate under the good-faith exception to the
exclusionary rule.
{¶ 15} “[S]uppression is not an automatic consequence of a Fourth Amendment
violation. Instead, the question turns on the culpability of the police and the potential of
exclusion to deter wrongful police conduct.” Herring v. United States, 555 U.S. 135, 137,
129 S.Ct. 695, 172 L.Ed.2d 496 (2009). The good-faith exception applies to police errors
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and limits exclusion to those errors that are shown to be more than the result of mere
negligence. “To trigger the exclusionary rule,” the U.S. Supreme Court has said, “police
conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system.”
Id. at 144. Sufficiently deliberate and culpable conduct is conduct that is “deliberate,
reckless, or grossly negligent conduct, or in some circumstances recurring or systemic
negligence.” Id. Here, the police searched Nelms’s vehicle under the good-faith belief that
it was covered by the warrant. This belief was entirely reasonable. And there is no
evidence that the officers conduct reached even the level of mere negligence. Applying
the exclusionary rule in this circumstance would not be appropriate.
{¶ 16} The sole assignment of error is overruled.
III. Conclusion
{¶ 17} We have overruled the assignment of error presented. The trial court’s
judgment is affirmed.
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WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck
Michael J. Scarpelli
Christopher W. Thompson
Hon. Gregory F. Singer
State v. Nelms
Combined Opinion