State v. Johnson

[Cite as State v. Johnson, 2015-Ohio-4115.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO :

:

Plaintiff-Appellee : C.A. CASE NO. 26509

:

v. : T.C. NO. 13CR3359

:

DEWAYNE JOHNSON : (Criminal Appeal from

: Common Pleas Court)

Defendant-Appellant :

:

:

:

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OPINION

Rendered on the ___30th__ day of ___September____, 2015.

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CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Assistant Prosecuting Attorney, 301 W.

Third Street, 5th Floor, Dayton, Ohio 45422

Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 111 W. First Street, Suite 518,

Dayton, Ohio 45402

Attorney for Defendant-Appellant

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FROELICH, P.J.

{¶ 1} After the trial court overruled his motion to suppress, Dewayne A. Johnson

pled no contest in the Montgomery County Court of Common Pleas to possession of

heroin, in an amount more than 100 grams, but less than 500 grams, a second-degree

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felony. The trial court found him guilty and sentenced him to a mandatory three years in

prison, to be served concurrently with his sentence in another case, and suspended his

driver’s license for six months.

{¶ 2} Johnson appeals from his conviction, claiming that the trial court erred in

overruling his motion to suppress. For the following reasons, the trial court’s judgment

will be affirmed.

{¶ 3} Sergeant Rhett Close and Officer Kyle Treon of the Riverside Police

Department testified on behalf of the State at the suppression hearing. Their testimony,

which the trial court found to be credible, established the following facts.

{¶ 4} For two or three weeks in October 2013, the Riverside Police Department

received multiple reports that an individual called “Wheezy” and a woman, Nikky Caddell,

were driving around Riverside in a rented brown or tan Kia sedan and/or staying at the

Microtel, located on Linden Avenue. The reports indicated that Wheezy was possibly

armed and selling and/or in possession of heroin and crack cocaine. The initial reports

were made anonymously; more recent callers had identified themselves and indicated

they were relatives of Caddell. In response to the calls, officers attempted to locate the

vehicle, but they were unable to do so.

{¶ 5} On October 30, 2013, Sergeant Rhett Close heard a dispatch about Wheezy

that conveyed similar information as the previous reports. Officer Stamper, in an

unmarked police vehicle, drove to the Microtel and informed Close that he had spotted

the vehicle at the Microtel. Sgt. Close drove up in a marked cruiser and saw a man

exiting a brown or tan Kia that was parked in a space on the right side of the hotel parking

lot. Sgt. Close saw the man walking towards the front door carrying a backpack.

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{¶ 6} Sgt. Close, who was in uniform, approached the man (later identified as

Johnson) and told him to stop. Close asked Johnson his name, but Johnson refused to

provide it. Because the calls indicated that Wheezy was likely armed, the sergeant

patted Johnson down and checked his backpack for weapons; no weapons were found.

{¶ 7} Eventually, Johnson identified himself, and officers ran his name through

the LEADS computer system, which indicated that Johnson had several outstanding

warrants. After the warrants were verified, Johnson was placed under arrest.

{¶ 8} The officers located Caddell, the woman with whom Johnson was staying,

in a room at the Microtel; the hotel room was reserved in her name. Caddell was

transported to the hospital for treatment for heroin withdrawal. The police informed

Microtel staff that the room was being vacated; Sgt. Close stated, “[W]e make a practice

of doing that.”

{¶ 9} Because the car was a rental vehicle, Sgt. Close decided to impound the Kia,

and he instructed other officers to conduct an inventory search. Close testified that

officers also attempted to make contact with the rental company to let it know where the

vehicle was going to be towed. Close indicated that he decided to have the vehicle

towed based on Microtel’s “verbal” policy (which is not in the record) and the Riverside

Police Department’s tow policy, with an effective date of September 15, 2011. Sgt. Close

stated that Riverside’s tow policy allows the police to immediately tow a vehicle, for

safekeeping, if a person has been arrested.

{¶ 10} Officers Treon and Schmidt conducted the inventory search in the Microtel

parking lot prior to the vehicle’s being towed. Two plastic baggies containing numerous

gel capsules with suspected heroin were located in the middle console of the vehicle; one

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baggie had 74 capsules and the other had 54 capsules. Officers also located a baggie

of suspected marijuana and four packages of suspected cocaine. The officers did not

obtain a search warrant for the vehicle.

{¶ 11} The trial court found that the officers had a reasonable and articulable

suspicion of criminal activity to justify stopping Johnson. The trial court noted that the

police were investigating a tip made by an identified citizen informant and that the tip was

reliable, thus justifying an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). The court found that Johnson was detained “long enough

to confirm his identity and determine whether he had outstanding warrants for his arrest.”

Because Johnson had outstanding warrants, the officers lawfully arrested him.

{¶ 12} As for the search of the vehicle, the trial court determined that “once

Defendant was arrested, RPD, pursuant to its tow policy and Ohio Law, lawfully

inventoried the vehicle including its compartments.” It further concluded that the

automobile exception justified the warrantless search of the vehicle. Finally, the trial

court concluded that the incriminating character of the items found was readily apparent,

permitting the officers to lawfully seize the suspected heroin without a warrant.

Accordingly, the trial court overruled the motion to suppress.

{¶ 13} Johnson appeals the trial court’s suppression ruling. On appeal, Johnson

claims that the officers “operated outside the scope of their power when they decided to

impound a vehicle in the general vicinity, which led to the discovery of evidence used

against [him].” He argues that the officers were not entitled to search his vehicle under

the automobile exception to the warrant requirement or as a search incident to an arrest.

He further asserts that the officers had no authority to conduct an inventory search of the

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vehicle.

{¶ 14} Johnson does not challenge the trial court’s conclusion that the stop and

seizure of his person was lawful. He concedes that the police were entitled to ask for his

identification, to determine whether he had any outstanding warrants, and to arrest him

on those warrants. Accordingly, we will confine our analysis to the officers’ search of

Johnson’s vehicle.

{¶ 15} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

{¶ 16} At the outset, we disagree with the trial court that the search of Johnson’s

vehicle was authorized pursuant to the automobile exception. Under the automobile

exception, police may conduct a warrantless search of a vehicle if there is probable cause

to believe that the vehicle contains contraband, and exigent circumstances necessitate a

search or seizure. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992);

Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.E.2d 442 (1999). A

vehicle’s mobility is the traditional justification for this exception to the warrant

requirement. Mills at 367; Dyson at 467. “[T]he automobile exception does not have a

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separate exigency requirement: ‘If a car is readily mobile and probable cause exists to

believe it contains contraband, the Fourth Amendment * * * permits police to search the

vehicle without more.’” Dyson at 467, quoting Pennsylvania v. Labron, 518 U.S. 938,

940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).

{¶ 17} Generally, “[t]he immobilization of the vehicle or low probability of its being

moved or evidence being destroyed does not remove the officers’ justification to conduct

a search pursuant to the automobile exception.” State v. Russell, 2d Dist. Montgomery

No. 19901, 2004-Ohio-1700, ¶ 34. See Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct.

3079, 73 L.Ed.2d 750 (1982).

{¶ 18} Here, the police had received repeated calls from both anonymous and

identified citizen informants that Johnson and Caddell were travelling together in a brown

or tan Kia sedan and/or staying at the Microtel, that Johnson was likely armed, and that

Johnson might possess heroin or crack cocaine. These reports may have created a

reasonable and articulable suspicion that Johnson possessed drugs, but the officers had

no additional information to create probable cause to believe that the Kia contained

contraband. A drug-sniffing dog had not been called to the scene, and there is no

evidence that Johnson admitted that drugs were located in the vehicle or that the officers

saw drugs in plain view inside the vehicle prior to the search. In the absence of probable

cause to believe the Kia contained contraband, the officers were not permitted to search

the vehicle under the automobile exception.

{¶ 19} Sgt. Close testified that he decided to impound the Kia and that the officers

conducted an inventory search prior to towing it. We have described the inventory

exception to the warrant requirement of the Fourth Amendment, stating:

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“[T]he ‘inventory exception’ to the warrant requirement of the Fourth

Amendment permits the police to conduct a warrantless search to produce

an inventory of the contents of an impounded vehicle.” To satisfy the

inventory exception, the vehicle must be lawfully impounded, the inventory

search must be conducted pursuant to reasonable standardized procedures

and also not be a pretext for an evidentiary search. With respect to the

standardized policy requirement, “‘the evidence presented must

demonstrate that the police department has a standardized, routine policy,

demonstrate what that policy is, and show how the officer’s conduct

conformed to that policy.’”

(Citations omitted.) State v. Thompson, 2d Dist. Montgomery No. 26130, 2014-Ohio-

4244, ¶ 38. “If, during a valid inventory search of a lawfully impounded vehicle, a law-

enforcement official discovers a closed container, the container may only be opened as

part of the inventory process if there is in existence a standardized policy or practice

specifically governing the opening of such containers.” State v. Hathman, 65 Ohio St.3d

403, 604 N.E.2d 743 (1992), paragraph two of the syllabus, quoted by State v. Favors,

2d Dist. Montgomery No. 24921, 2012-Ohio-3596, ¶ 21.

{¶ 20} Johnson claims that the police were not authorized to impound the Kia,

because there was no evidence that he was the “operator” of the vehicle. He cites

Codified Ordinances of Riverside 303.08(a)(7), which provides that police officers are

“authorized to provide for the removal of a vehicle under the following circumstances: * *

* (7) When any vehicle is left unattended either on public or private property due to the

removal of an ill, injured or arrested operator, or due to the abandonment thereof by the

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operator during or immediately after pursuit by a law enforcement officer.” The terms

“driver” and “operator” are defined as “every person who drives or is in actual physical

control of a vehicle.” Codified Ordinances of Riverside 301.10, citing R.C. 4511.01(Y).

{¶ 21} Sgt. Close testified that he had received several reports of a couple driving

in a brown or tan Kia and that the couple was staying at the Microtel. After being

informed by Officer Stamper that the vehicle was located at the Microtel, he (Close) pulled

up to the hotel and saw a “male getting out of the vehicle and walking across the parking

lot.” Sgt. Close stated that he could see that the vehicle was a Kia, brown or tan in color.

The man in the parking lot was later identified as Johnson. Although Johnson was not

stopped by the police while he was driving the vehicle, Sgt. Close’s testimony reasonably

established that Johnson was the “operator” of the Kia in the Microtel parking lot.

{¶ 22} The State asserts that Sgt. Close’s decision to impound Johnson’s rental

vehicle was authorized under Microtel’s policies and the Riverside Police Department’s

tow policy. Sgt. Close indicated that Microtel did not have a written policy regarding the

towing of vehicles in its lot, and there was no testimony as to the substance of Microtel’s

policy. Thus, the State has not established what Microtel’s policy is and that the

Riverside officers’ conduct conformed to that policy. We therefore cannot conclude that

the impounding of the vehicle was authorized by Microtel’s policy.

{¶ 23} The Riverside Police Department’s tow policy, Policy and Procedure Order

61-5, provides:

III. Authority

Pursuant to the Ohio Revised Code, a vehicle may be immediately removed

and impounded from public or private property by a police agency, if any of

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the following apply: * * *

7. If the vehicle is hampering the use of private property by the

owner or person in charge of that property or is parked in a manner

which impedes the movement of another vehicle.

***

9. If the driver has been arrested (for safe keeping).

(Emphasis sic.) The tow policy further provides:

VII. Vehicle Inventory

In order to provide protection and safety of the officers involved, the

owner/driver of an impounded vehicle and the Department, it is the

policy of this Department to routinely inventory all impounded

vehicles.

Section VII of the police department’s tow policy describes the scope of the search,

including when closed and locked containers may be opened.

{¶ 24} There is no evidence that the Kia was hampering the use of Microtel’s

property or that Microtel requested that Johnson’s vehicle be impounded. The State

could not rely on paragraph seven of the tow policy.

{¶ 25} The trial court reasonably concluded, however, that the Kia was lawfully

impounded under paragraph nine of the police department’s tow policy. Johnson, the

driver of the vehicle, was arrested pursuant to outstanding warrants. The State

presented testimony that Caddell was Johnson’s companion and had rented the Microtel

room, but there was no evidence that Caddell was authorized to drive the Kia, which was

a rental vehicle; further, Caddell had been removed from the property and transported to

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the hospital. Having lawfully arrested Johnson, the operator of the Kia, the Riverside

police officers acted in conformity with the department’s tow policy when it decided to

impound, for safekeeping, Johnson’s rental vehicle.

{¶ 26} During the inventory search of the vehicle, the officers lawfully found

numerous gel capsules with suspected heroin, a baggie of suspected marijuana, and four

packages of suspected cocaine. The trial court did not err in overruling Johnson’s motion

to suppress the evidence.

{¶ 27} Johnson’s assignment of error is overruled.

{¶ 28} The trial court’s judgment will be affirmed.

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DONOVAN, J., concurs.

WELBAUM, J., concurring.

{¶ 29} I concur with the majority except for its conclusion that the officers did not

have probable cause to search the tan Kia at the Microtel under the automobile exception.

The majority found that the information known to the officers created a reasonable,

articulable suspicion that Johnson was likely armed and might have possessed drugs, but

that there was insufficient evidence to establish the officers had probable cause to believe

contraband was located in the vehicle. I very respectfully disagree with that finding.

{¶ 30} It appears that our difference of opinion begins with our perception of the

evidence known to the officers, as the majority interpreted the officers’ testimony

differently than the trial court and myself. The majority found that the police had received

information that Johnson was likely armed and that he might have been in possession of

heroin or crack cocaine. However, the trial court found that “[t]he caller stated that

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Wheezy was likely armed and that the pair were selling heroin and crack cocaine.”

(Emphasis added.) Order Overruling Motion to Suppress (Apr. 16, 2014), Montgomery

County Court of Common Pleas Case No. 2013 CR 03359, Docket No. 66, p. 1. There

is sufficient evidence in the record to support the trial court’s interpretation of the

evidence. Accordingly, we should not disturb it.

{¶ 31} Prior to the search, the officers had received between five and seven calls

over a three-week period concerning the armed drug trafficking activity of Johnson and

his female companion while driving around Riverside in a brown or tan rented Kia. The

caller(s) said that the pair was staying at the Microtel. Some of the calls were

anonymous, but on at least one occasion the caller identified herself as a relative of

Johnson’s female companion. See Trans. (Jan. 22, 2014), p. 24, ln. 21-23. It is well

established that “[i]nformation from an ordinary citizen who has personally observed what

appears to be criminal conduct carries with it indicia of reliability, and is therefore

presumed to be reliable.” (Citations omitted.) State v. Reed, 2d Dist. Montgomery No.

23357, 2010-Ohio-299, ¶ 44.

{¶ 32} Sergeant Rhett Close testified that the information received was “that the

male was possibly armed and selling and/or in possession of heroin and crack cocaine.”

Trans., p. 10, ln. 9-10. Close also testified that “[w]e had received multiple calls over the

length of time saying [the suspect] was armed.” Id. at 16, ln. 17-18. In addition, Close

testified that on October 30 and 31, 2013, they received a call “that there was a rental car

being [a] brown or tan Kia in the area of the Microtel potentially with a subject with [the]

alias of Wheezy and a white female in the vehicle, and again possible (sic) armed with

heroin and crack cocaine.” Id. at 12, ln. 16-20.

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{¶ 33} Close arrived at the Microtel within 15 to 20 minutes after receiving the last

call. He observed a vehicle and Johnson, both fitting the description. Johnson was

carrying a backpack and walking away from the vehicle. Close searched Johnson’s

backpack but found no firearm. Initially, Johnson refused to identify himself, but

eventually gave the officers his name. The officers were then able to determine that

Johnson had multiple outstanding warrants for his arrest and arrested him. Johnson’s

female companion was found in the motel room “going through withdrawals of heroin and

was actually transported to the hospital.” Id. at 17-18, ln. 1-2. Thereafter, an inventory

of the Kia was completed under the Riverside Police Department policy. While

conducting the inventory, officers found the drugs that serve as the basis of this case.

{¶ 34} In addition to the inventory exception to the warrant requirement, the trial

court found a second justification for the warrantless search of Johnson’s rental vehicle.

The trial court concluded that under the circumstances, the officers had probable cause

to believe the rental vehicle contained contraband to justify a search under the automobile

exception. I agree with that conclusion and concur in the judgment.

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Copies mailed to:

Christina E. Mahy

Charles W. Slicer, III

Hon. Steven K. Dankof