[Cite as State v. Seaburn, 2017-Ohio-7115.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-17-12
v.
RICHARD “FRED” SEABURN, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 16 CR 0106
Judgment Affirmed
Date of Decision: August 7, 2017
APPEARANCES:
Gene P. Murray for Appellant
Rebeka Beresh for Appellee
Case No. 13-17-12
PRESTON, P.J.
{¶1} Defendant-appellant, Richard F. Seaburn (“Seaburn”), appeals the
March 16, 2017 judgment entry of sentence of the Seneca County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a search warrant issued on October 15, 2015 and
executed on October 20, 2015. Through the execution of said warrant at a residence
on East High Street in Fostoria, Ohio, law enforcement discovered numerous
prescription pills, scales, cellular phones, a stun gun, and $450.00 in currency.
{¶3} On June 1, 2016, the Seneca County Grand Jury indicted Seaburn on:
Count One of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2),
(C)(1)(c), a felony of the second degree; Counts Two and Three of aggravated
possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), felonies of the fifth
degree; Count Four of endangering children in violation of R.C. 2919.22(A),
(E)(2)(a), a misdemeanor of the first degree; and Count Five of possessing criminal
tools in violation of R.C. 2923.24(A), (C), a felony of the fifth degree. (Doc. No.
1). Count One includes a specification alleging that the offense was committed in
the vicinity of a juvenile, as well as a specification alleging that $450.00 in currency,
in addition to cellular phones, and a stun gun were used to facilitate the offense and
thus are subject to forfeiture under R.C. 2981.02. (Id.).
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{¶4} On June 17, 2016, Seaburn appeared for arraignment and pled not guilty
to all of the charges and specifications in the indictment. (Doc. No. 12).
{¶5} On October 3, 2016, Seaburn filed a motion to suppress evidence,
seeking the suppression of the fruits of the October 20, 2015 search of his home
because, as relevant here, the search took place after the expiration of the three-day
time limit within which the police had to execute the search warrant. (Doc. No. 41).
On October 27, 2016, the State filed a memorandum in opposition to Seaburn’s
motion to suppress evidence. (Doc. No. 43). The trial court denied the motion to
suppress evidence on November 9, 2016. (Doc. No. 44).
{¶6} On February 23, 2017, Seaburn appeared for a change-of-plea hearing
and, pursuant to a negotiated plea agreement, pled no contest with a stipulated
finding of guilty to each of the counts in the indictment. (Doc. Nos. 52, 53). The
trial court found Seaburn guilty of the charges to which he pled no contest. (Doc.
No. 60). The forfeiture of the items identified in the specifications was effectuated
via a contract between the parties. (Doc. No. 60).
{¶7} On March 15, 2017, the trial court sentenced Seaburn to three years in
prison as to Count One, ten months in prison as to Count Two, ten months in prison
as to Count Three, 90 days in jail as to Count Four, and ten months in prison as to
Count Five, with all sentences to be served concurrently for a total of three years of
incarceration. (Doc. No. 61). The trial court further ordered that Seaburn pay a
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$7,500 fine. (Id.). The trial court filed its judgment entry of sentence on March 16,
2017. (Id.).
{¶8} Seaburn filed his notice of appeal on April 14, 2017. (Doc. No. 63).
He brings one assignment of error for our review.
Assignment of Error
In An Abuse Of Its Discretion, The Trial Court Reversibly Erred
By Overruling The Defendant-Appellant’s Motion To Suppress
Evidence That Was Seized Not [sic] “Within Three Days” From
The Residence Of Defendant-Appellant, As Expressly Required
On The Face Of The Search Warrant, Thereby Violating The
Fourth Amendment To The Constitution Of The United States,
And Also Violating Due Process Of Law, By Contradicting The
Literal And Expectational [sic] Plain Meaning Of Said Expressly
Written Court-Ordered Three Days Time Limit, Not Only Upon
The Person And Whose [sic] Residence Is Named In The Said
Search Warrant, But Also Upon The General Public Which Has
The Right To Know That Three Days Means Three Days, And
Not Subject To A Cynical, Untrue[,] And Improper State
Interpretation Of How It Tells And Tolls Time: Time And Time
Again.
{¶9} In his sole assignment of error, Seaburn argues that the trial erred by
denying his motion to suppress evidence. Specifically, he argues that the trial court
erred in denying his motion to suppress evidence because the search at issue took
place beyond the three-day time limit imposed on the face of the warrant. Seaburn
argues that Crim.R. 45(A)’s tolling provisions are intended to toll time when the
clerk of courts is not available to file documents, not to provide law enforcement
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additional time to execute search warrants where, as here, nothing stopped law
enforcement from executing the search warrant during the course of the weekend.
{¶10} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as
such, is in the best position to evaluate the evidence and the credibility of witnesses.
Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a
ruling on a motion to suppress, “an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible evidence.” Burnside at
¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s
conclusions of law, however, our standard of review is de novo, and we must
independently determine whether the facts satisfy the applicable legal standard. Id.,
citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
{¶11} The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution protect individuals against unreasonable
searches and seizures by the government, and they protect privacy interests where
an individual has a reasonable expectation of privacy. State v. Fielding, 10th Dist.
Franklin Nos. 13AP-654 and 13AP-655, 2014-Ohio-3105, ¶ 15, quoting Smith v.
Maryland, 442 U.S. 735, 740, 99S.Ct. 2577 (1979). An expectation of privacy is
protected where an individual has manifested a subjective expectation of privacy
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and that expectation is one that society recognizes as reasonable. Id., citing Smith
at 740, citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring). While the Fourth Amendment does not specifically provide that
unlawful searches and seizures will result in the suppression of ill-gotten evidence,
the United States Supreme Court has held that the exclusion of evidence is an
essential part of the Fourth Amendment. State v. Jenkins, 3d Dist. Union No. 14-
10-10, 2010-Ohio-5943, ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684
(1961) and Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).
{¶12} “Crim.R. 41 governs the issuance of search warrants.” State v.
Shaulis, 9th Dist. Wayne No. 01CA0044, 2002 WL 242104, *1 (Feb. 20, 2002).
Crim.R. 41(C)(2) provides that a search warrant “shall command the officer to
search, within three days, the person or place named or the property specified.”
Crim.R. 41(C)(2). While search warrants must ordinarily be executed within three
days of their issuance, Crim.R. 45(A) provides
In computing any period of time prescribed or allowed by these rules,
by the local rules of any court, by order of court, or by any applicable
statute, the date of the act or event from which the designated period
of time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, Sunday, or legal
holiday, in which event the period runs until the end of the next day
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which is not Saturday, Sunday, or legal holiday. When the period of
time prescribed or allowed is less than seven days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in
computation.
{¶13} Applying the law above, we conclude that the trial court did not err in
denying Seaburn’s motion to suppress evidence. State v. Baker, 6th Dist. Lucas
Nos. L-15-1295 and L-12-1324, 2017-Ohio-1074, ¶ 17 (finding that a four-day gap
between the issuance and execution of a search warrant is permissible because of
the tolling provisions of Crim.R. 45(A)). We begin by emphasizing that nothing in
the language of Crim.R. 45 suggests that it is not applicable to the execution of
warrants by law enforcement officers. See Crim.R. 45(A). Further, nothing in the
text of the warrant indicates any intention by the issuing judge to make the criminal
rules inapplicable in this case by ordering the search warrant to be served in a time
period other than set forth in Crim.R. 41. (Doc. No. 41). In fact, the face of the
warrant commands those who execute it to bring the products of their search before
the judge “to be disposed of and dealt with according to law.” (Id.). The criminal
rules, including Crim.R. 45(A), are unquestionably part of the law.
{¶14} Although the search warrant would ordinarily have to be executed in
three days, Crim.R. 45(A) and applicable case law establish that the time for the
execution of the search warrant was tolled in this case. Crim.R. 45(A); Baker at ¶
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17. In State v. Baker, the Sixth District Court of Appeals confronted a set of facts
in which the appellant argued that a search was invalid because it took place
pursuant to a warrant that was issued on September 26, 2014 but was not executed
until September 30, 2014. Id. The court noted that the search in question was not
conducted within three days of the warrant’s issuance, but the court further noted
that Crim.R. 45 provides for the tolling of time in certain situations. Id.
Specifically, Crim.R. 45 provides that, when the period of time prescribed under the
rules is fewer than seven days, “intermediate Saturdays, Sundays, and legal holidays
shall be excluded in computation.” Crim.R. 45.
{¶15} Other courts have held likewise under similar circumstances. The
Eighth District Court of Appeals applied Crim.R. 45(A) to the execution of search
warrants by law enforcement and held that a six-day gap between the issuance and
execution of two search warrants was permissible where Crim.R. 45(A) required
that three of those six days be excluded from computation. State v. Coleman, 8th
Dist. Cuyahoga No. 91058, 2009-Ohio-1611, ¶ 57-58. The Second District Court
of Appeals likewise held that Crim.R. 45(A) “clearly and unambiguously applies”
to the execution of search warrants by law enforcement despite the appellant’s
argument that it did not apply because warrants are ordinarily executed during
weekends. State v. Crane, 2d Dist. Montgomery No. 17967, 2000 WL 216931, *2
(Feb. 25, 2000).
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{¶16} In the instant case, the search warrant permitting the search of
Seaburn’s residence was issued on October 15, 2015. (Doc. No. 41). The search
warrant was executed October 20, 2015. (Id.). Thus, five days separated the search
warrant’s issuance from its execution. (Id.). The date on which the warrant was
issued is excluded from computation; this is to say that computation begins on
October 16, 2015. Crim.R. 45(A). Because the period of time permitted for the
warrant’s execution was fewer than seven days, October 17 and 18 must also be
excluded from computation because they were a Saturday and Sunday, respectively.
Id. Once October 17 and 18 are excluded from computation, the result is the
conclusion that the warrant was executed within three days as required by the rule.
Baker at ¶ 17; Crim.R. 45(A). Therefore, we conclude that the trial court relied on
competent and credible evidence in denying Seaburn’s motion to suppress evidence.
Crim.R. 45(A).
{¶17} Seaburn’s assignment of error is overruled.
{¶18} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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State v. Seaburn
Combined Opinion