State v. Harrison

[Cite as State v. Harrison, 2024-Ohio-884.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY

STATE OF OHIO,
CASE NO. 8-23-10
PLAINTIFF-APPELLEE,

v.

KANDALE L. HARRISON, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court
Trial Court No. CR 20 07 0162

Judgment Affirmed

Date of Decision: March 11, 2024

APPEARANCES:

Alison Boggs for Appellant

Nathan Yohey for Appellee
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ZIMMERMAN, J.

{¶1} Defendant-appellant, Kandale L. Harrison (“Harrison”), appeals the

April 12, 2023 judgment entry of sentence of the Logan County Court of Common

Pleas. Harrison argues that the trial court erred by denying his motion to suppress

evidence seized incidental to a May 27, 2020 warrantless search of his vehicle

because R.C. 2967.131, the statute under which the warrantless search was

premised, is unconstitutional. For the reasons that follow, we affirm.

{¶2} On July 14, 2020, the Logan County Grand Jury indicted Harrison on

four counts: Count One of possession of a fentanyl-related compound in violation

of R.C. 2925.11(A), (C)(11)(c), a third-degree felony; Counts Two and Three of

possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), fifth-degree

felonies; and Count Four of the illegal conveyance of drugs of abuse onto grounds

of specified governmental facility in violation of R.C. 2921.36(A)(2), (G)(2), a

third-degree felony. Harrison committed the offenses alleged in the indictment

while he was on post-release control in another case. Harrison appeared for

arraignment on July 23, 2020 and entered pleas of not guilty.

{¶3} On November 4, 2020, Harrison filed a motion to suppress evidence

seized incident to searches conducted on May 27, 2020 and July 13, 2020,

respectively.1 Harrison filed a supplement to his motion to suppress on July 16,

1
In a previous case, this court recited much of the factual and procedural background of this case, and we
will not duplicate those efforts here. See State v. Harrison, 3d Dist. Logan No. 8-21-31, 2022-Ohio-741.

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2021 in which he alleged that the May 27, 2020 search of his vehicle was conducted

without a warrant and not pursuant to any exception to the warrant requirement of

the Fourth Amendment. Specifically, Harrison argued that his agreement with the

Adult Parole Authority (“APA”) consenting to warrantless searches was not

voluntary since “that the ‘parole exception search’ does not apply as a matter of law

because [post-release control] is insufficiently a parallel to parole.” (Doc. No. 110).

{¶4} After a hearing on August 25, 2021, the trial court suppressed the

evidence seized incident to the May 27, 2020 search but denied Harrison’s motion

to suppress any evidence seized incident to the July 13, 2020 search. Specifically,

the trial court concluded that APA Officer Alex McKirahan (“Officer McKirahan”)

“did not have reasonable grounds to search [Harrison] or his motor vehicle pursuant

to the warrant search Condition No. 7 of his [post-release-control] supervision.”

(Doc. No. 124). The trial court reasoned that the search of [Harrison’s] vehicle on

May 27, 2020, was not based on probable cause” since Officer Jerrod Hostetler’s

(“Officer Hostetler”) of the Bellefontaine Police Department “calling APA Officer

McKirahan to the scene prolonged the detention of [Harrison] beyond the time

reasonable for completing that mission” and because “Officer Hostetler did not

observe [Harrison] engage in a drug transaction or observe in plain view an drugs

on [Harrison] or in the motor vehicle.” (Id.).

{¶5} On September 27, 2021, the State appealed the trial court’s decision.

On March 14, 2022, this court reversed the trial court’s decision and remanded the

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case for further proceedings after concluding that “APA Officer McKirahan’s verbal

arrest order was justified pursuant to R.C. 2967.15 because he had reasonable cause

to believe [that Harrison violated] the Conditions of Supervision based on facts

relayed that Harrison was observed operating a vehicle with a suspended license in

Bellefontaine and that he was possibly involved in suspected drug activity.” State

v. Harrison, 3d Dist. Logan No. 8-21-31, 2022-Ohio-741, ¶ 14.

{¶6} Following remand of the case to the trial court, Harrison filed a motion

on February 24, 2023 requesting that the trial court address his argument regarding

his “motion to suppress on the alternative grounds [as to the May 27, 2020 search]

raised by the defense.” (Doc. No. 170). As alternative grounds, Harrison alleged

“that R.C. 2967.131, by authorizing a search without a warrant of a person on post-

release control, is unconstitutional” because it required that he—as an individual on

post-release control—involuntarily forfeit his constitutional right to be free from

unreasonable search and seizure. The State filed a memorandum in opposition to

Harrison’s motion on February 28, 2023. Ultimately, the trial court denied

Harrison’s motion to suppress evidence on March 3, 2023 after concluding that R.C.

2967.131(C) is constitutional.

{¶7} On March 2, 2023, Harrison withdrew his pleas of not guilty and

entered pleas of no contest to Counts One and Three of the indictment. In exchange

for Harrison’s change of pleas, the State agreed to dismiss Counts Two and Four.

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The trial court accepted Harrison’s no-contest pleas, found him guilty, and

dismissed Counts Two and Four.

{¶8} On April 12, 2023, the trial court sentenced Harrison to 12 months in

prison on Counts One and Three, respectively, and ordered that he serve the prison

terms concurrently for an aggregate sentence of 12 months in prison. (Doc. No.

176).

{¶9} On May 10, 2023, Harrison filed his notice of appeal and raises one

assignment of error for our review.

Assignment of Error

Ohio Revised Code Section 2967.131 is Unconstitutional As
Applied to Mr. Harrison And Any Other Similarly Situated
Individuals Who Are Placed On Post-Release Control After They
Served Their Entire Prison Sentence.

{¶10} In his assignment of error, Harrison argues that the trial court erred by

denying his motion to suppress evidence seized incident to the May 27, 2020 search.

Specifically, Harrison contends that law enforcement’s May 27, 2020 search of his

vehicle was conducted without a warrant and not pursuant to any exception to the

warrant requirement of the Fourth Amendment because R.C. 2967.131 is

unconstitutional.

Standard of Review

{¶11} 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,

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¶ 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).

Analysis

{¶12} “The Fourth Amendment to the United States Constitution, as applied

to the states through the Fourteenth Amendment, and Ohio Constitution, Article I,

Section 14, protects individuals against ‘unreasonable searches and seizures’ by the

government and protects 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,

99 S.Ct. 2577 (1979). When “determining whether a search is reasonable under the

Fourth Amendment, the United States Supreme Court has applied an approach that

assesses ‘“on the one hand, the degree to which it intrudes upon an individual’s

privacy and, on the other, the degree to which it is needed for the promotion of

legitimate governmental interests.”’” State v. Campbell, 170 Ohio St.3d 278, 2022-

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Ohio-3626, ¶ 9, quoting Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193

(2006), quoting United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587 (2001).

{¶13} “Generally, any evidence obtained in violation of the Fourth

Amendment, as well as any evidence seized subsequent to such violation, must be

suppressed as ‘fruit of the poisonous tree.’” Fielding at ¶ 15, quoting Wong Sun v.

United States, 371 U.S. 471, 488, 83 S.Ct. 407 (1963). See also State v. Jenkins, 3d

Dist. Union No. 14-10-10, 2010-Ohio-5943, ¶ 9 (The Fourth Amendment does not

explicitly provide “that violations of its provisions against unlawful searches and

seizures will result in the suppression of evidence obtained as a result of such

violation, but the United States Supreme Court has held that the exclusion of

evidence is an essential part of the Fourth Amendment.”), 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).

{¶14} “Subject to specific exceptions, which the State has the burden of

establishing, warrantless searches are unreasonable per se under the Fourth

Amendment.” State v. Atkinson, 9th Dist. Lorain No. 19CA011481, 2020-Ohio-

3522, ¶ 13, citing State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 98.

“Warrantless seizures of personal property are generally considered unreasonable

under the Fourth Amendment unless there is probable cause to believe the property

is or contains contraband or evidence of a crime and the seizure falls within an

established exception to the warrant requirement.” State v. Jackson, 12th Dist.

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Madison No. CA2019-03-006, 2020-Ohio-2677, ¶ 19, citing United States v. Place,

462 U.S. 696, 701, 103 S. Ct. 2637 (1983).

{¶15} In Ohio, R.C. 2967.131 authorizes warrantless searches of individuals

on post-release control. That statute provides, in its relevant part, that

during a period of post-release control of a felon imposed under
section 2967.28 of the Revised Code, authorized field officers of the
authority who are engaged within the scope of their supervisory duties
or responsibilities may search, with or without a warrant, the person
of the individual or felon, the place of residence of the individual or
felon, and a motor vehicle, another item of tangible or intangible
personal property, * * * if the field officers have reasonable grounds
to believe that the individual or felon has left the state, is not abiding
by the law, or otherwise is not complying with the terms and
conditions of the individual’s or felon’s * * * post-release control.

R.C. 2967.131(C) (2000) (current version at R.C. 2967.131(C)(1) (2023)). See State

v. Crandall, 9th Dist. Summit No. 29925, 2021-Ohio-3724, ¶ 7 (noting that R.C.

2967.131 permits a warrantless search of an individual’s property when the

searching officer has reasonable grounds to believe that person is in violation of the

law or his or her post-release control). Importantly, the statute further provides that

the APA

shall provide each individual * * * who is under post-release control
with a written notice that informs the individual or felon that
authorized field officers of the authority who are engaged within the
scope of their supervisory duties or responsibilities may conduct those
types of searches during the period of * * * post-release control if they
have reasonable grounds to believe that the individual or felon has left
the state, is not abiding by the law, or otherwise is not complying with
the terms and conditions of the individual’s or felon’s * * * post-
release control.

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(Emphasis added.) R.C. 2967.131(C) (2000) (current version at R.C.

2967.131(C)(2) (2023)).

{¶16} In this case, Harrison argues that the trial court erred by denying his

motion to suppress evidence seized incident to the May 27, 2020 warrantless search

of his vehicle after concluding that R.C. 2967.131 is constitutional. Specifically,

Harrison contends that “[t]he application of [R.C.] 2967.131 to [him] and other

persons situated like him, on [post-release control], is unconstitutional” because

“lessoning [sic] the constitutional protections of the Fourth Amendment of the

[United States] Constitution and in Ohio, Article I, Section 14 * * * cannot be

justified in any manner when a person is forced to sign away constitutional rights,

without any benefit to the person.” (Emphasis added.) (Appellant’s Brief at 13).

That is, Harrison challenges the constitutionality of the statute because, as he

contends, “an inmate is coerced into signing the conditions, which include forcibly

waiving constitutional rights, or face more prison time without having to have

committed any sort of criminal offense.” (Emphasis added.) (Id. at 11).

{¶17} “‘An enactment of the General Assembly is presumed to be

constitutional, and before a court may declare it unconstitutional it must appear

beyond a reasonable doubt that the legislation and constitutional provisions are

clearly incompatible.’” State v. Brown, 3d Dist. Marion No. 9-10-12, 2010-Ohio-

4546, ¶ 9, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955),

paragraph one of the syllabus. “‘That presumption of validity of such legislative

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enactment cannot be overcome unless it appear[s] that there is a clear conflict

between the legislation in question and some particular provision or provisions of

the Constitution.’” Id., quoting Xenia v. Schmidt, 101 Ohio St. 437 (1920),

paragraph two of the syllabus.

{¶18} “A statute may be challenged on constitutional grounds in two ways:

(1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as

applied to the facts of the case.” Id. at ¶ 10, citing Harrold v. Collier, 107 Ohio

St.3d 44, 2005-Ohio-5334, ¶ 37, citing Belden v. Union Central Life Ins. Co., 143

Ohio St. 329 (1944), paragraph four of the syllabus. “To mount a successful facial

challenge, the party challenging the statute must demonstrate that there is no set of

facts or circumstances under which the statute can be upheld.” Id., citing Harrold

at ¶ 37, citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095 (1987).

“Where it is claimed that a statute is unconstitutional as applied, the challenger must

present clear and convincing evidence of a presently existing set of facts that make

the statute unconstitutional and void when applied to those facts.” Id., citing

Harrold at ¶ 38, citing Belden at paragraph six of the syllabus.

{¶19} Harrison’s constitutional challenge is misplaced. Critically, Harrison

overlooks that the warrantless-search authorization is not controlled by consent.

Rather, the APA’s warrantless-search authorization is prescribed by statute. Indeed,

R.C. 2967.131(C) describes the situations under which a warrantless search may

occur. Moreover, and perhaps more importantly, the statute imparts that such

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“written notice” of the APA’s statutory authorization is to be provided to the

individual. In other words, the APA is not required to obtain the individual’s

consent to be subject to warrantless searches. Instead, the individual is statutorily

subject to such warrantless searches and he or she is to be provided written notice

of the APA’s statutory authority to conduct such searches. Thus, any signature

obtained from an individual is simply the acknowledgment of the individual’s

receipt of such written notice.

{¶20} Moreover, like similarly-worded statutes, R.C. 2967.131(C) has

passed “constitutional muster.” See Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct.

3164 (1987), paragraph one of the syllabus; United States v. Loney, 331 F.3d 516,

521 (6th Cir.2003). See also State v. Benton, 82 Ohio St.3d 316, 318 (1998).

Indeed, the General Assembly codified R.C. 2967.131 in the wake of the United

States Supreme Court’s approval of a similar Wisconsin statute. See, e.g., State v.

Mattison, 2d Dist. Montgomery No. 17554, 1999 WL 957648, *2 (Sept. 3, 1999)

(noting that R.C. 2967.131 “appears to have been enacted in response to the United

States Supreme Court’s decision in Griffin * * * , which considered the

constitutionality of a similarly-worded Wisconsin regulation that permitted

probation officers to conduct a warrantless search of a probationer’s home so long

as the probation officers had ‘reasonable grounds to believe’ that contraband was

present”). We see no reason to depart from that rationale in this case.

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{¶21} As a result, Harrison did not present clear and convincing evidence of

presently existing facts which render R.C. 2967.131 unconstitutional and void when

applied to those facts. Consequently, the trial court did not err by denying

Harrison’s motion to suppress evidence seized incident to the May 27, 2020 search.

{¶22} Accordingly, Harrison’s assignment of error is overruled.

{¶23} 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

WALDICK and MILLER, J.J., concur.

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