State v. Lane

[Cite as State v. Lane, 2023-Ohio-4044.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230126

TRIAL NO. B-2200110

Plaintiff-Appellant, :

:

VS. O P I N I O N.

:

VICTOR LANE, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 8, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Ronald W.

Springman, Jr., Chief Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Cornelius “Carl” Lewis, for Defendant-Appellee.

OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} A stop premised on two outstanding drug-trafficking warrants spiraled

into a new seven-count indictment on multiple drug- and weapons-related felonies.

Defendant-appellee Victor Lane moved to suppress the evidence against him, insisting

the stop ran afoul of his constitutional rights. The trial court agreed and granted his

motion to suppress, prompting the state’s appeal. After reviewing the record and

applicable case law, we agree that the trial court erred in granting the motion to

suppress, so we sustain the state’s sole assignment of error and reverse the trial court’s

judgment.

I.

{¶2} In January 2022, a Cincinnati police officer assigned to track down a

few people with open warrants zeroed in on Mr. Lane, with two open drug-trafficking

warrants. From police surveillance, the officer spotted the minivan Mr. Lane was

known to drive in the parking lot of an apartment complex and observed him exit from

an apartment and enter the minivan. As he pulled out of the complex’s parking lot,

the officer intercepted him by stopping his vehicle. The officer ordered him to exit

from the minivan, handcuffed him, and placed him in custody.

{¶3} After securing Mr. Lane (and being joined by backup), the officer, using

a flashlight, looked into the minivan and observed an open backpack with a large

plastic bag containing what he believed to be marijuana in plain view. The officers

then opened the door, secured the evidence, and searched the minivan. In the same

backpack, officers found cocaine, a loaded semiautomatic handgun, and a digital scale.

Elsewhere in the minivan, officers found another bag containing marijuana and cash.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} The Hamilton County grand jury returned a seven-count indictment

against Mr. Lane, charging various weapons-related offenses, drug trafficking, and

drug possession. Mr. Lane requested that the trial court suppress the evidence

discovered, maintaining officers had no right to search the minivan because he could

not access the vehicle at the time of the search, and the officers had no reason to believe

that any contraband existed in the minivan. After a hearing, the trial court granted

the motion to suppress, indicating that the “plain view” exception did not apply

because the officer’s conduct was deliberate, rather than inadvertent. The state now

appeals.

II.

{¶5} In its sole assignment of error, the state challenges the trial court’s plain

view ruling, seeking to justify the search under the automobile exception to the

warrant requirement because the discovery of marijuana in plain view provided the

officers with probable cause to search the minivan.

{¶6} This court’s review of a motion to suppress “presents a mixed question

of law and fact.” State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96

N.E.3d 262, ¶ 14, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. We “must accept the trial court’s findings of fact if they are supported

by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437

N.E.2d 583 (1982). “ ‘But we must independently determine whether the facts satisfy

the applicable legal standard.’ ” State v. Thompson, 1st Dist. Hamilton No. C-200388,

2021-Ohio-3184, ¶ 10, quoting State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066,

882 N.E.2d 945, ¶ 11 (1st Dist.).

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶7} In this case, although the trial court found Mr. Lane’s motion “to be well

taken” and granted his motion to suppress, it did not make any explicit findings of fact

for us to review. Therefore, we must “ ‘directly examine the record to determine

whether there [was] sufficient evidence to demonstrate that the trial court’s decision

was supported by the record and legally justified.’ ” State v. Pate, 1st Dist. Hamilton

Nos. C-130490 and C-130492, 2014-Ohio-2029, ¶ 11, quoting State v. Shields, 1st Dist.

Hamilton No. C-100362, 2011-Ohio-1912, ¶ 9.

{¶8} Generally, “warrantless searches are per se unreasonable.” State v.

Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.). But

there are “a few well-established exceptions” to the warrant requirement. State v.

Ulmer, 1st Dist. Hamilton Nos. C-190304, C-190305 and C-190306, 2020-Ohio-4689,

¶ 13, citing State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶ 13 (1st Dist.). And the

state asserts that the plain view and automobile exceptions together justified the

warrantless search of Mr. Lane’s minivan and the subsequent seizure of marijuana,

cocaine, a gun, and cash.

{¶9} A warrantless search of a lawfully stopped automobile does not violate

the Fourth Amendment if the officer has “ ‘probable cause to believe the vehicle

contains contraband.’ ” State v. O’Neal, 1st Dist. Hamilton No. C-220541, 2023-Ohio-

3268, ¶ 15, quoting State v. Acoff, 2017-Ohio-8182, 100 N.E.3d 87, ¶ 23 (1st Dist.).

Generally, the observation of contraband in plain view “provide[s] probable cause for

the officers to believe the vehicle contain[s] contraband and to conduct a warrantless

search under the automobile exception to the warrant requirement.” State v. Wilson,

1st Dist. Hamilton No. C-170408, 2018-Ohio-2377, ¶ 11, citing State v. Hamilton, 1st

Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 16.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} When the United States Supreme Court first articulated the plain view

exception, “it prescribed a ‘three-part analysis. First, the initial intrusion that brought

the police into a position to view the object must have been legitimate. Second, the

police must have inadvertently discovered the object. Third, the incriminating nature

of the object must have been immediately apparent.’ ” Thompson, 1st Dist. Hamilton

No. C-200388, 2021-Ohio-3184, at ¶ 12, quoting State v. Halczyszak, 25 Ohio St.3d

301, 303, 496 N.E.2d 925 (1986). However, the Court later clarified that the Fourth

Amendment does not impose an inadvertence requirement in the plain view analysis,

reasoning that applying a standard dependent “upon the subjective state of mind of

the officer” causes significant difficulty in attaining “evenhanded law enforcement.”

Horton v. California, 496 U.S. 128, 138, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). As a

result, the inquiry largely collapses into a consideration of whether the officers

legitimately had a right to be where they witnessed the incriminating evidence, and

the incriminating nature of the evidence must be readily apparent.

{¶11} The trial court, however, seemed to resurrect the inadvertence

requirement, emphasizing: “The question is why. Why did the officer go around and

look in the car, his purpose is done * * *. I don’t know why he went around the vehicle

and was looking inside.” But this type of subjective scrutiny into the officer’s state of

mind is exactly what the Supreme Court dispensed with in Horton. See City of Dayton

v. Erickson, 76 Ohio St.3d 3, 6, 665 N.E.2d 1091 (1996) (“[T]he question whether a

Fourth Amendment violation occurred * * * depends upon an objective assessment of

the officer’s actions at the time of the traffic stop, and not upon the officer’s actual

(subjective) state of mind.”); State v. Maddox, 2021-Ohio-586, 168 N.E.3d 613, ¶ 16

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OHIO FIRST DISTRICT COURT OF APPEALS

(10th Dist.) (“In determining whether probable cause exists, courts may not look to

events that occurred after the search or to the subjective intent of the officers.”).

{¶12} On appeal, Mr. Lane acknowledges that inadvertence is no longer

required for a plain view search under the Fourth Amendment, Thompson, 1st Dist.

Hamilton No. C-200388, 2021-Ohio-3184, but he seeks to salvage the suppression

ruling by pointing to Article 1, Section 14 of the Ohio Constitution, insisting that the

state charter supplies an inadvertence requirement not found in its federal

counterpart. However, even if the Ohio Constitution required inadvertence—and Mr.

Lane fails to point to any Ohio authority substantiating the point—the search at issue

would remain constitutional.

{¶13} “Inadvertence,” in search and seizure parlance, does not mean an officer

has to trip over the evidence for it to be in plain view. Rather, to qualify as inadvertent,

an officer must “ ‘not know in advance the location of [certain] evidence and intend to

seize it,’ relying on the plain-view doctrine only as a pretext.” Texas v. Brown, 460

U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), quoting Coolidge v. New

Hampshire, 403 U.S. 443, 470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). When the officer

approached Mr. Lane’s vehicle and peered inside with a flashlight, he did not already

know that marijuana was in the vehicle. He may have hoped to discover contraband,

but without any particularized knowledge of the evidence to be seized, that potential

aspiration does not defeat the (former) inadvertence requirement of the plain view

doctrine.

{¶14} While there is good reason to believe that the Ohio search and seizure

requirements differ, at least in some respects, from the federal Fourth Amendment

jurisprudence, see State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d

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OHIO FIRST DISTRICT COURT OF APPEALS

496, ¶ 23 (“Article I, Section 14 of the Ohio Constitution affords greater protection

than the Fourth Amendment against searches and seizures conducted by members of

law enforcement who lack authority to make an arrest.”); State v. Brown, 99 Ohio

St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, ¶ 7 (“We hold that Section 14, Article I of

the Ohio Constitution provides greater protection than the Fourth Amendment to the

United States Constitution against warrantless arrests for minor misdemeanors.”),

even if we could divine an independent basis for an inadvertence requirement under

the state constitution, it would accordingly not aid Mr. Lane on these facts.

{¶15} Therefore, the warrantless search of Mr. Lane’s minivan “satisfies the

plain view exception if: 1) the initial intrusion bringing the officer into a position to

view the object was legitimate, and 2) the incriminating nature of the object was

immediately apparent.” Thompson, 1st Dist. Hamilton No. C-200388, 2021-Ohio-

3184, at ¶ 15. The state maintains that the officer had probable cause to believe the

vehicle contained contraband because, while standing outside the minivan and using

a flashlight, he observed an open backpack with “a large plastic bag containing

marijuana” sitting in the trunk area of the minivan. Mr. Lane does not dispute the

legitimacy of the initial intrusion that brought the officer into a position to view the

backpack. But he posits that the incriminating nature of marijuana was not

immediately apparent.

{¶16} Mr. Lane argues that because marijuana may be possessed for medicinal

use and hemp (which could be mistaken for marijuana) is generally legal, the detection

of marijuana in a vehicle no longer gives rise to probable cause of illegality. The

incriminating nature of an object is immediately apparent when “police have ‘probable

cause to associate [the] object with criminal activity.’ ” City of Cincinnati v. Langan,

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OHIO FIRST DISTRICT COURT OF APPEALS

94 Ohio App.3d 22, 28, 640 N.E.2d 200 (1st Dist.1994), quoting Halczyszak, 25 Ohio

St.3d at 305, 496 N.E.2d 925. Here, the officer testified that he observed “not a ziplock

bag, but a large plastic bag containing marijuana” in Mr. Lane’s minivan.

{¶17} Regardless, defense counsel never raised this issue at trial, which

prevented any factual findings or further exploration of this issue below. Accordingly,

we decline to review this issue raised for the first time on appeal. State v. Flagg, 1st

Dist. Hamilton No. C-170015, 2018-Ohio-1702, ¶ 22 (“A reviewing court may, but is

not required to, consider a constitutional issue raised for the first time on appeal where

the rights and interests involved may warrant it.”).

{¶18} For all of the reasons discussed above, we sustain the state’s assignment

of error.

* * *

{¶19} In light of the foregoing analysis, we sustain the state’s assignment of

error, reverse the judgment of the trial court, and remand this cause for further

proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

ZAYAS, P.J., and KINSLEY, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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