State v. Metz

[Cite as State v. Metz, 2021-Ohio-3060.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY

State of Ohio Court of Appeals No. WM-20-008

Appellee Trial Court No. 19 CR 255

v.

Joshua A. Metz DECISION AND JUDGMENT

Appellant Decided: September 3, 2021

*****

Edward Stechschulte, for appellant.

*****

ZMUDA, P.J.

I. Introduction

{¶ 1} This matter is before the court on appeal of the judgment of the Williams

County Court of Common Pleas, denying the motion to suppress of appellant, Joshua

Metz. After appellant entered a no contest plea, the trial court sentenced him to three
years of community control and 180 days in jail, with all 180 days stayed, and imposed a

$1,000 fine. For the reasons that follow, we affirm.

II. Background and Procedural History

{¶ 2} On August 20, 2019, the combined assets of the Williams County Sheriff’s

Office, the Ohio Highway Patrol, the Village of Edon Police, and the six-county

MANUNIT drug task force responded to reports of a potential abduction and hostage

situation, identifying the alleged perpetrator as Anthony Arquette. The search for the

alleged victim and Arquette included several cell phone “pings,” an IP location trace on

the alleged victim’s computer, and alerts on several vehicles linked to Arquette. Two of

those vehicles, a blue suburban and silver minivan, were titled to appellant, but the

investigation yielded information that appellant had loaned the suburban to Arquette.

{¶ 3} Police eventually narrowed their search to the area north of Pulaski, and

after several hours, Williams County Sheriff Deputy Doug Moser spotted the blue

suburban and the silver minivan at the Graziani residence in Pulaski. Deputy Moser

called for backup, and was instructed to remain on scene and prevent anyone from

leaving. As he waited, he observed a man and a woman leave the house, enter a silver

minivan, and begin exiting the driveway in the vehicle. Activating his lights, Deputy

Moser blocked the minivan’s exit from the driveway, near the road.

{¶ 4} Williams County Sheriff Lieutenant Greg Ruskey responded to the scene

soon after, along with numerous other law enforcement officers. Lieutenant Ruskey

assisted Deputy Moser in detaining the man and woman, identified as appellant and his

2.
wife, Cindy. Lieutenant Ruskey and Deputy Moser secured the two in “investigative

detention,” and advised them they were not free to go. Deputy Moser removed objects

from appellant’s pockets and placed him in the back of his cruiser, in handcuffs. The

deputies questioned appellant and his wife, separately, trying to locate the alleged

abduction victim. They learned that the alleged victim and her boyfriend, Arquette, were

inside the house. Brian Graziani exited the house during this questioning, and he, too,

was detained.

{¶ 5} For the next 15-30 minutes, appellant, Cindy, and Graziani remained in

“investigative detention” at the scene while the gathered law enforcement engaged in

negotiations to remove the targets of their manhunt from the home. Eventually, it

became clear that no abduction had occurred, but Arquette had active warrants. Deputy

Moser was assigned to take Arquette into custody and transport him to the jail. Deputy

Moser then removed appellant from the back of his cruiser, removed appellant’s

handcuffs, returned all items taken from appellant’s pockets but mistakenly kept his

identification, and told appellant he was free to go. Cindy was released, as well.

{¶ 6} Appellant and Cindy returned to their minivan and waited for the exit to

clear. As soon as Deputy Moser drove off, clearing the way to the road, Graziani’s

mother arrived and pulled in right behind appellant’s vehicle. Law enforcement vehicles

were parked on either side of appellant, and he did not feel he could ask Mrs. Graziani to

move or ask permission to drive through the grass to reach the road. Appellant remained

3.
at the scene, seated in the driver’s seat of his minivan while Cindy sat in the shade of a

nearby tree.

{¶ 7} At this point, while appellant was free to go but blocked by vehicles, the

focus of law enforcement turned to the Graziani’s home. In the course of negotiating

Arquette’s surrender, Lieutenant Ruskey and others smelled the odor of burnt marijuana

emanating from the house. He requested consent to search the home, but the Grazianis

declined at first, consenting only after learning a warrant would be obtained. Lieutenant

Ruskey also learned that appellant wished to leave, but had been asked for consent to

search his minivan first, to “make sure nothing illegal from the house was leaving the

property.” Appellant gave consent and signed a consent to search card, but deputies did

not search his vehicle.

{¶ 8} Instead, just after appellant signed the consent card in preparation for

leaving, Williams County Sheriff Deputy Michelle Jacob arrived.1 Deputy Jacob

observed appellant, sitting in his car with the door open. As she approached, she noticed

appellant reach toward his waistband or pocket area, and it caused her concern for officer

safety. Deputy Jacob asked appellant to step out of the minivan, voicing her safety

concerns. When appellant complied, Deputy Jacob saw the top of a Ziploc bag sticking

out of the same pocket to which appellant had been reaching. Deputy Jacob pulled the

1
Deputy Jacob had been on scene earlier for a brief time, but left to obtain a search
warrant for the house. After she was just a few miles away, the Grazianis consented to a
search of their home, and Deputy Jacob was called back to the scene.

4.
Ziploc the rest of the way out and observed “dirty looking meth,” later tested and

confirmed as methamphetamine.

{¶ 9} Appellant was charged with aggravated possession of drugs in violation of

R.C. 2925.11(A) and (C)(1)(a). He was arraigned on January 13, 2020, and entered a

plea of not guilty. On February 4, 2020, appellant moved to suppress the evidence,

seized from his pocket without a warrant. On March 11, 2020, the trial court held a

hearing on the motion to suppress. Deputy Moser, Lieutenant Ruskey, Deputy Jacob,

appellant, and Cindy each testified regarding the events of August 20, 2019.

{¶ 10} Deputy Moser recounted the events regarding his arrival on scene,

detention of appellant, Cindy, and Brian Graziani with Lieutenant Ruskey’s assistance,

and eventual exit with Arquette in custody. He also indicated he returned some tattoo

tools, taken from appellant’s pocket, and told appellant he was free to go. Deputy Moser

forgot to return appellant’s identification, and did not return a folding knife, stuck in the

ground near another deputy for safekeeping.

{¶ 11} Lieutenant Ruskey testified that he assisted in detaining appellant, his wife,

and Graziani, and after smelling marijuana emanating from the house, requested Deputy

Jacob come to the scene to assist investigating possible narcotics use. When questioned

regarding his request to search appellant’s vehicle, Lieutenant Ruskey testified as

follows:

Q: Do you remember the exact words you used or a general

colloquy?

5.
 A: Yeah, normally we just say while we’re here, you know

suspected drug use going on inside the residence, before you guys leave

we’d like to take a look through your vehicle, make sure there isn’t

anything illegal inside the vehicle.

Q: At that time, would the Metz’s have been handcuffed?

A: I don’t believe they were handcuffed.

Q: Had you returned their property to them?

A: I don’t recall having any of their property. He had a knife

that was stuck in the ground just for safekeeping by Deputy Moser but I

don’t recall, I personally don’t recall taking any of their property.

Lieutenant Ruskey testified that appellant gave consent to search his vehicle prior to the

Grazianis giving consent to search their house.

{¶ 12} Deputy Jacob testified that she arrived on scene after Deputy Moser took

Arquette away. She indicated she is the narcotics officer, and was responsible for

obtaining a search warrant for the home that day. She never asked to search appellant’s

vehicle. Instead, as she arrived and walked toward Lieutenant Ruskey, who was her

superior at the scene, she immediately noted appellant make a movement toward his

waist or pocket, and told appellant, “You’re making me worry, could you step out of the

vehicle?” Once appellant stepped out, Deputy Jacob recognized the Ziploc bag as

common storage for drugs. She removed the bag, tested it, and advised appellant it was

meth. Appellant admitted he had been trying to hide it and denied it was his.

6.
 {¶ 13} Appellant testified that he and Cindy went to the house to give Graziani a

tattoo, and were just leaving when Deputy Moser blocked their vehicle and detained

them. He acknowledged that Deputy Moser eventually told him he was free to go, but his

vehicle remained blocked for about 5-10 minutes while Deputy Moser secured Arquette

for transport. As soon as Deputy Moser drove off, Graziani’s mother pulled in behind

him, blocking him again. Mrs. Graziani and her son were then busy speaking to the

officers that wished to search the home. Cindy felt overheated in the minivan and exited

the vehicle to sit in the shade of a nearby tree. Appellant, also, did not want to leave

without his folding knife, which held sentimental value. At this point, appellant testified,

he was no longer trying to leave.

{¶ 14} When Deputy Jacob arrived, appellant claimed she never spoke to him and

there was no “making me nervous” talk. Instead, appellant testified that Deputy Jacob

“motioned with her finger” and directed him out of the minivan. She then pulled the bag

from his pocket.

{¶ 15} Cindy’s testimony was similar to appellant’s, with one notable exception.

Cindy indicated that Deputy Jacob asked appellant “what’s that in your pocket,” a couple

of times. In response, Cindy stated, appellant handed Deputy Jacob what was in his

pocket.

{¶ 16} The trial court held the motion in abeyance, permitting the parties to file

proposed findings of fact and conclusions of law. On May 27, 2020, the trial court

denied the motion by written decision.

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 {¶ 17} The trial court determined appellant and his wife were no longer in

“investigative detention,” but were nevertheless unable to leave as their car was blocked

by law enforcement and non-law enforcement vehicles parked around their minivan. The

trial court also determined that Deputy Jacob encountered appellant within the “first three

minutes of her arrival at the scene” and she was unaware that appellant had previously

been detained by Deputy Moser. Noting Deputy Jacob’s extensive experience in law

enforcement and her six years serving with the narcotics task force, the trial court

determined Deputy Jacob alerted to appellant’s movement, ordered appellant out of his

vehicle for officer safety, and identified the Ziploc bag as a “common method of storing

and transferring illegal drugs or narcotics.” Deputy Jacob’s account of events, moreover,

was corroborated by Cindy Metz, who testified the deputy asked appellant “what is that

in your pocket?”

{¶ 18} While the trial court determined the search of appellant’s pocket occurred

during an investigatory detention, the court also acknowledged the “chaotic scene” that

day, and judged Deputy Jacob’s conduct in light to the totality of the circumstances. At

the time Deputy Jacob encountered appellant, sitting in his vehicle with the door open,

law enforcement had investigated a potential hostage situation, searched for Arquette to

arrest him on an outstanding warrant, and investigated the presence of illegal drugs at the

house. The trial court deemed Deputy Jacob’s command to appellant to exit his vehicle

for officer safety appropriate, based on appellant’s “furtive movement,” and determined

the Ziploc bag observed by Deputy Jacob was evidence in plain view.

8.
 {¶ 19} After the trial court’s denial of his motion to suppress, appellant changed

his plea and entered a plea of no contest to the single count of aggravated possession of

drugs. The trial court sentenced appellant to three years of community control and 180

days in the Corrections Center of Northwest Ohio, with all 180 days stayed. The trial

court also imposed a $1,000 fine.

{¶ 20} Appellant filed a timely appeal of this judgment.

III. Assignments of Error

{¶ 21} Appellant now asserts a single assignment of error, with three issues for

review, as follows:

The Trial Court erred when it denied Appellant’s Motion to

Suppress.

IV. Analysis

{¶ 22} Appellant argues that the evidence taken from his pocket should have been

suppressed, raising arguments relative to the intrusion in removing him from his vehicle,

the inadvertent discovery of contraband in “plain view,” and the propriety of the field test

of the evidence. In response, the appellee, the state of Ohio, filed no appellate brief.

{¶ 23} Our review of a decision, denying a motion to suppress, “presents a mixed

question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. In reviewing the ruling, we accept – as true – the trial court’s factual

findings if they are supported by credible evidence in the record, and “independently

determine, without deference to the conclusion of the trial court, whether the facts satisfy

9.
the applicable legal standard.” Burnside at ¶ 8, citing State v. McNamara, 124 Ohio

App.3d 706, 711, 707 N.E.2d 539 (4th Dist.1997).

{¶ 24} The Fourth Amendment protects an individual’s “subjective expectation of

privacy if that expectation is reasonable and justifiable.” (Citation omitted.) State v.

Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 14. An individual

fails to preserve that privacy, however, by ‘leaving an object in the plain view of the

public.” Id. at ¶ 15, citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967).

{¶ 25} The “plain view” doctrine provides an exception to the warrant

requirement, permitting seizure of “evidence, instrumentalities or fruits of a crime

without the necessity of having first obtained a search warrant specifically naming such

items.” (Citation omitted.) State v. Williams, 55 Ohio St.2d 82, 84, 377 N.E.2d 1013

(1978). The requirements for “plain view” are “(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.” Id at paragraph one of the syllabus.

{¶ 26} Appellant raises issues that align with the requirements for seizure of

evidence that is in “plain view.” He argues the illegality of the intrusion, pretext for the

search, and the benign nature of the baggie prior to the deputy’s intrusion within a

“closed container.” We address each issue in turn.

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 Lawful Intrusion

{¶ 27} In challenging the trial court’s decision, appellant first argues that the

investigatory detention lasted far beyond the time appropriate for a Terry stop, and

therefore, the intrusion permitting plain view of the baggie was not lawful. See Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment to the

United States Constitution prohibits unreasonable searches and seizures.” State v.

Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 9; see also Ohio

Constitution, Article I, Section 14.

{¶ 28} An officer may perform a Terry stop if that officer has “a reasonable

suspicion based on specific and articulable facts that criminal behavior has occurred or is

imminent.” Hairston at ¶ 9, citing Terry, 392 U.S. at 30. The “reasonable-suspicion”

standard requires less than the threshold for probable cause, with determination based on

the totality of circumstances as viewed by the reasonable and prudent police officer,

observing the scene and reacting to unfolding events. Hairston at ¶ 10, citing United

States v. Sokolov, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2ds 1 (1989); State v.

Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

{¶ 29} As an initial matter, we note that the trial court determined that, “from the

perspective of the [appellant], they couldn’t drive away” and the “‘investigatory stop’

continued.” However, the record does not support this conclusion. Appellant testified

that, once Deputy Moser drove off, Mrs. Graziani blocked his egress and he chose not to

ask her to move her car or drive through the grass to reach the road. Furthermore, he

11.
acknowledged that – by the time Deputy Jacob arrived – he was no longer trying to leave.

Therefore, we disagree with the trial court’s conclusion that the “investigatory stop”

continued after Deputy Moser left the scene. Because the trial court’s decision focused

only on Deputy Jacob’s conduct, however, without regard for the initial detention by

Deputy Moser, we find the trial court correctly applied the law in denying appellant’s

motion to suppress.

{¶ 30} Appellant first argues the duration of his non-consensual detention went

beyond that which would have been permitted for an investigative stop pursuant to Terry.

However, his argument relies on a misstatement of the facts, as demonstrated by

testimony at the suppression hearing. For example, while Deputy Moser did retain

appellant’s identification and law enforcement vehicles were parked around appellant’s

minivan, as argued by appellant, by the time Deputy Jacob arrived appellant had – by his

own admission – abandoned his attempt to leave and consented to a search of his

minivan. Furthermore, it appeared that appellant’s departure was not imminent, as his

wife was outside the vehicle, relaxing under a nearby tree.

{¶ 31} The only detention, relevant in this case, arose from Deputy Jacob’s contact

with appellant. This was the only contact examined by the trial court relative to the

evidence seized in appellant’s case. Despite concluding there was a continuous

detention, the trial court noted Deputy Jacob’s arrival to the “crazy” scene to investigate a

suspected drug house, and her immediate officer safety concerns, unrelated to any initial

detention. Specifically, the trial court noted that the scene began as a potential hostage

12.
crisis, pivoted to an arrest of Arquette on warrants, and ended with a drug investigation,

targeting the Graziani house. The trial court determined that Deputy Jacob removed

appellant from his vehicle after viewing suspicious movement causing safety concerns,

unrelated to any prior detention.

{¶ 32} The trial court, in this case, properly analyzed Deputy Jacob’s conduct

based on her observation of appellant’s furtive movement at the scene of a drug

investigation. While appellant argues pretext, his wife corroborated the deputy’s stated

concern over what he had in his pocket. A brief stop for a limited, protective inquiry was

reasonable in these circumstances. “When an officer is justified in believing that the

individual whose suspicious behavior he is investigating at close range is armed and

presently dangerous to the officer or to others, it would appear to be clearly unreasonable

to deny the officer the power to take necessary measures to determine whether the person

is in fact carrying a weapon and to neutralize the threat of physical harm.” State v. Bobo,

37 Ohio St.3d 177, 180-181, 524 N.E.2d 489 (1988), quoting Terry, 392 U.S. at 24, 88

S.Ct. 1868, 20 L.Ed.2d 889.

{¶ 33} Recognizing the evolving circumstances that day, the trial court considered

the propriety of Deputy Jacob’s reaction based solely on the circumstances she observed

at the scene of a drug investigation: a man, sitting in a minivan, reaching for or making

furtive movement toward his pocket. The ongoing detention, accordingly, was not part of

the trial court’s analysis into reasonable suspicion as it related to Deputy Jacob’s

command to exit the vehicle. The circumstances observed by Deputy Jacob, moreover,

13.
did justify a brief stop to ensure appellant was not armed or posing any threat.

Appellant’s argument regarding the lawfulness of the stop, accordingly, lacks merit.

Inadvertent Discovery

{¶ 34} Appellant next argues that the trial court misapplied the “plain view”

doctrine, challenging the motive of Deputy Jacob in ordering him from his vehicle and

the inadvertent discovery of contraband in “plain view.” In contrast to the deputy’s

testimony, appellant argues Deputy Jacob conducted a warrantless search to discover

evidence of a crime, an argument lacking any support in the record.

{¶ 35} This challenge relies on appellant’s disagreement with Deputy Jacob’s

testimony. However, the trial court was in the best position to evaluate that testimony

and consider the deputy’s credibility. The trial court was also free to find that testimony

more credible than appellant’s. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796

N.E.2d 506, ¶ 15, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992),

citing State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982); State v. Moore, 81

Ohio St.3d 22, 31, 689 N.E.2d 1 (1998).

{¶ 36} Here, the record demonstrates that Deputy Jacob asked appellant to step

from his vehicle based on her concerns for officer safety. Deputy Jacob testified that she

viewed and immediately recognized the incriminating nature of the plastic baggie,

protruding from appellant’s pocket, occurring at the scene of an ongoing drug

investigation. Specifically, she testified on direct:

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 So I responded to the scene. * * * I walked over to Lieutenant

Ruskey which was standing beside [appellant’s] vehicle, I think it was a

van. [Appellant] was seated in the driver’s seat. There was nobody in the

passenger seat. The door was open. I approached Lieutenant Ruskey and

asked him for an update, which is what’s going on? While I was speaking

with Lieutenant Ruskey, I saw [appellant] make some motion toward his

waistband, pocket area that made me very uncomfortable as far as safety

concerns. So I asked [appellant] if he would step out of the vehicle because

I felt uneasy. I think I said to him I don’t like the movements you’re

making. You’re making me worry, could you step out of the vehicle?

When he stepped out of the vehicle and actually stood up, I saw the top of a

zip lock bag sticking out of the pocket that he was making the motion by.

In my training and experience, I know that zip lock bags are a common way

to store drugs.

{¶ 37} On cross examination, Deputy Jacob reiterated her concern for officer

safety, demonstrating the way appellant moved, stating, “And see my weapons right

there. That’s what I’m saying, when he’s doing this, he’s seated and he’s doing this.”

Deputy Jacob also emphasized her training and experience in recognizing drugs, stating,

“I was seeing drugs in plain view” based on the baggie protruding from appellant’s

pocket prior to removing it the rest of the way.

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 {¶ 38} Appellant disputes Deputy Jacob’s testimony as credible, but the trial court

clearly disagreed. In denying the motion to suppress, the trial court found the deputy’s

account regarding her concern for safety and the immediately apparent nature of the

baggie as indicative of drugs, considering the circumstances observed by her that day, to

be credible. Other jurisdictions have reached the same conclusion, and determined that

trained officers might view a partially visible, plastic baggie as an immediately apparent

indication of illegal drugs. See e.g. State v. Strothers, 2d Dist. Montgomery No. 18322,

2000 WL 1867594 (Dec.22, 2000) (officer entitled to seize and/or search baggie sticking

out of a sweat-jacket pocket, based on the immediately apparent, incriminating nature of

the baggie at the scene of a drug investigation); State v. Barr, 86 Ohio App.3d 227, 234,

620 N.E.2d 242 (8th Dist.1993) (based on circumstances, police “possessed the required

probable cause to associate the visible plastic bag with criminal activity); State v. Brown,

10th Dist. Franklin No. 18AP-754, 2019-Ohio-3160, (baggie protruding from closed

hand, outside a known drug house, constituted evidence of drugs in plain view, providing

probable cause for detention); State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670 (12th

Dist.) (less than an inch of a clear plastic baggie protruding from defendant’s hand

sufficient to support reasonable articulable suspicion of drug activity, justifying stop).

{¶ 39} In disputing “plain view,” appellant offers only his difference of opinion

regarding the significance of a Ziploc baggie at the scene of a drug investigation.

Appellant also argues, without support from the record, that “the search was not

performed to search for weapons,” in contrast to Deputy Jacob’s testimony that she was

16.
concerned for officer safety after observing appellant reaching toward his waist or pocket

in a furtive manner. Appellant further contends that a “pat-down” is limited to a search

for weapons and does not extend to evidence of a crime. There was no “pat-down”

performed in this case. Moreover, even if Deputy Jacob had performed a pat-down, the

frisk allowed under Terry has been extended to permit seizure of nonthreatening

contraband detected within the confines of a Terry search. State v. Purley, 6th Dist.

Wood No. WD-18-011, 2019-Ohio-3931, ¶ 40, citing Minnesota v. Dickerson, 508 U.S.

366, 373-375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (additional citation omitted.).

{¶ 40} Considering the record in this case, with deference to the trial court’s

determination that Deputy Jacob had a concern for officer safety and recognized the

baggie as an immediately apparent indication of illegal drugs, we find no error in

application of the “plain view” doctrine in this instance.

Apparent Contraband and Field Test

{¶ 41} In his final argument, appellant argues that the trial court should have

suppressed evidence of methamphetamine because Deputy Jacob performed a field test

without a warrant, characterizing the field test as a search of a closed container.

However, a field test of an apparent illicit substance, visible within the Ziploc baggie,

was not a search implicating any privacy interest, and appellant identifies no “closed

container” referenced anywhere in the record.

{¶ 42} We previously determined that the baggie was in plain view, sticking out of

appellant’s pocket, and therefore, properly seized without a warrant. The issue, therefore,

17.
is whether the field test constituted a search that infringed upon a legally protected

privacy interest. The United State Supreme Court has determined there is no legitimate

privacy interest violated by a field test to identify the presence of drugs, once properly

seized. See United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85

(1984).

{¶ 43} In Jacobsen, employees of a private freight carrier discovered a badly

damaged package, revealing a white powdery substance concealed inside layers of

wrapping. They notified the Drug Enforcement Agency and an agent removed some of

the powder to perform a field test, which confirmed the substance was cocaine. Jacobson

at 111. The defendant filed a motion to suppress, arguing, in part, that the field test was a

warrantless search and seizure. The trial court denied the motion, the defendant was

convicted, and the issue was subsequently certified to and accepted by the United States

Supreme Court for review “because field tests play an important role in the enforcement

of the narcotics law[.]” Jacobson at 113.

{¶ 44} The Fourth Amendment protects “two types of expectations, one involving

‘searches,’ the other ‘seizures.’” Id. A search involves an infringement of “an

expectation of privacy that society is prepared to consider reasonable[.]” Id. A seizure

results from “meaningful interference with an individual’s possessory interests in that

property.” Id. The Court in Jacobson determined a private actor – the freight carrier’s

employee – first viewed the white powder inside the package, and the agent’s subsequent

inspection of the package “enabled the agent to learn nothing that had not previously

18.
been learned during the private search.” Id at 120. Therefore, inspecting the package

was not deemed a “search” that implicated the Fourth Amendment. Id.

{¶ 45} Removing a baggie containing white power, furthermore, was not deemed

a search in violation of any Fourth Amendment protection. Based on the condition in

which the agent viewed the package, “the package could no longer support any

expectation of privacy; it was just like a balloon ‘the distinctive character [of which]

spoke volumes as to its contents, particularly to the trained eye of the officer.” The agent

could temporarily seize the package, without a warrant, as an object containing apparent

contraband. Id. at 121, citing United States v. Place, 462 U.S. 696, 700, 103 S.Ct. 2637,

77 L.Ed.2d 110 (1983) (additional citations omitted.).

{¶ 46} The field test of the white powder, likewise, did not constitute a “search” or

a “seizure” for purposes of the Fourth Amendment. In reaching this conclusion, the

Court in Jacobsen reasoned:

The question remains whether the additional intrusion occasioned by

the field test, which had not been conducted by the Federal Express agents

and therefore exceeded the scope of the private search, was an unlawful

“search” or “seizure” within the meaning of the Fourth Amendment.

The field test at issue could disclose only one fact previously

unknown to the agent – whether or not a suspicious white powder was

cocaine. It could tell him nothing more, not even whether the substance

was sugar or talcum powder. We must first determine whether this can be

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 considered a “search” subject to the Fourth Amendment-did it infringe an

expectation of privacy that society is prepared to consider reasonable?

The concept of an interest in privacy that society is prepared to

recognize as reasonable is, by its very nature, critically different from the

mere expectation, however well justified, that certain facts will not come to

the attention of the authorities. Indeed, this distinction underlies the rule

that Government may utilize information voluntarily disclosed to a

governmental informant, despite the criminal’s reasonable expectation that

his associates would not disclose confidential information to the authorities.

See United States v. White, 401 U.S. 745, 751-752, 91 S.Ct. 1122, 1125-

1126, 28 L.Ed.2d 453 (1971) (plurality opinion).

A chemical test that merely discloses whether or not a particular

substance is cocaine does not compromise any legitimate interest in

privacy. This conclusion is not dependent on the result of any particular

test. It is probably safe to assume that virtually all of the tests conducted

under circumstances comparable to those disclosed by this record would

result in a positive finding; in such cases, no legitimate interest has been

compromised. But even if the results are negative – merely disclosing that

the substance is something other than cocaine – such a result reveals

nothing of special interest. Congress has decided – and there is no question

about its power to do so – to treat the interest in “privately” possessing

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 cocaine as illegitimate; thus governmental conduct that can reveal whether

a substance is cocaine, and no other arguably “private” fact, compromises

no legitimate privacy interest.

***

We have concluded * * * that the initial “seizure” of the package and

its contents was reasonable. Nevertheless, as Place also holds, a seizure

lawful at its inception can nevertheless violate the Fourth Amendment

because its manner of execution unreasonably infringes possessory interests

protected by the Fourth Amendment's prohibition on “unreasonable

seizures.” Here, the field test did affect respondents' possessory interests

protected by the Amendment, since by destroying a quantity of the powder

it converted what had been only a temporary deprivation of possessory

interests into a permanent one. To assess the reasonableness of this

conduct, “[w]e must balance the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” * * *

Applying this test, we conclude that the destruction of the powder

during the course of the field test was reasonable. The law enforcement

interests justifying the procedure were substantial; the suspicious nature of

the material made it virtually certain that the substance tested was in fact

contraband. Conversely, because only a trace amount of material was

21.
 involved, the loss of which appears to have gone unnoticed by respondents,

and since the property had already been lawfully detained, the “seizure”

could, at most, have only a de minimis impact on any protected property

interest.

Jacobsen, 466 U.S. at 122–125, 104 S.Ct. 1652, 80 L.Ed.2d 85, citing Place, 462 U.S. at

703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (additional citations omitted.).

{¶ 47} In this case, Deputy Jacob seized the baggie as contraband, in plain view.

She immediately suspected the baggie contained “dirty looking meth” based on its

appearance, and a field test confirmed the presence of methamphetamine. As in

Jacobsen, the nature of the baggie as contraband was apparent to Deputy Jacob, a trained

officer serving with the drug task force. The field test, moreover, implicated no privacy

right as the law protects no privacy interest in the possession of an illicit drug, and the

test itself would indicate only whether the substance was as expected – methamphetamine

– and nothing more. Accordingly, Deputy Jacob did not need a warrant to conduct a field

test under the circumstances.

{¶ 48} Therefore, upon due consideration of the record in this case, we find no

error in the trial court’s denial of appellant’s motion to suppress. Appellant’s sole

assignment of error is found not well-taken.

22.
 V. Conclusion

{¶ 49} For the forgoing reasons, we affirm the judgment of the Williams County

Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, P.J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

23.