Petition — Bobulski v. Ohio

Supreme Court, U. & %

FILED

JUL 10 1979 |

| MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

No. 79-43

JAMES J. BOBULSKI,

PETITIONER,

VS.

STATE OF OHIO,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

William J. Abraham

24 North High Street

Columbus, Ohio 48215

Counsel for Petitioner

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

SS

ee ee

TABLE OF CONTENTS

Gietieds ts Oninions Below Cd

jurienictiee. SRS Se Cece |

Questions Presented __. Ei nas enue EaEs Ss 1

Constitutional and Statutory

Provisions Involved _. paket 2

Statement of the Case... ele ASS Ee

Reasons for Granting Writ BAS Ek EN RTE

i

WHERE POLICE OFFICERS ENTER THE

ENCLOSED AREA OF AN APARTMENT

COMPLEX FOR THE SOLE PURPOSE OF

PEERING INTO THE WINDOW OF ONE

APARTMENT IN AN EFFORT TO OBTAIN

A GLIMPSE OF CONTRABAND, WHICH

THEY EXPECT TO BE PRESENT,

SUCH POLICE ACTIVITY CONSTITUTES A

SEARCH, IS NOT JUSTIFIED UNDER THE

“PLAIN VIEW” DOCTRINE, AND IS VIO-

LATIVE OF THE FOURTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION. -_....---- 6

WHERE POLICE OFFICERS OBSERVE

WHAT THEY BELIEVE TO BE CONTRA-

BAND WITHIN A CONSTITUTIONALLY

PROTECTED AREA, AND HAVE AN AMPLE

OPPORTUNITY TO SECURE A SEARCH

WARRANT BEFORE SEIZING THE SUS-

PECTED CONTRABAND, ABSENT EXIGENT

CIRCUMSTANCES, THE SEIZURE OF THE

i

SUSPECTED CONTRABAND, WITHOUT A

WARRANT IS UNREASONABLE IN VIOLA-

TION OF THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STATES.

8. WHERE INCRIMINATING STATEMENTS

MADE TO THE POLICE OFFICERS ARE

THE DIRECT FRUITS OF AN ILLEGAL

ARREST, SUCH STATEMENTS ARE OB-

TAINED IN VIOLATION OF THE FIFTH,

SIXTH, AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION _ 13

eee RARE ITM MPL 2 Fe PFS CRS LIOR

TABLE OF AUTHORITIES

Cases:

Coolidge vs. New Hampshire,

(1071) 408 US. 43.._.__.._.__.___7, 8, 10, 11, 12

Fixel vs. Wainwright, -

(1007) Se US. Se ee

Katz vs. United States,

Oe. Oe er eee ee ae ee

Morsman vs. State,

(Fla. App. Ct. 1978) 350

(Sth Cir. 1974) 4028 F.2d 480... 9

Nardone vs. United States

SO er Gn i eA ae ky Bie 14

People vs. Powell,

256 N.W 2d 583, 76 Mich. App. 237 (1977) _... 9

Silverthorne Lumber Company vs. United States,

¢ 3600) $51 US. S05 es Ss

State vs. Albert,

(Fla. App. 1978) 360 S. 2d 137 ee

State vs. Colvin,

(La. S. Ct. 1978) 358 So. 2d 1250 i... &¥2

State vs. O’'Herron,

(1977) 380 A. 2d 768, 153

Ny. Sper, 370 renee w Ray)

State vs. Schur,

(Supreme Court of Kansas 1975)

538 P. 2d 689, 217 Kan, 741 . LEP Led aD ae |

United States vs. Carriger,

(6th Cir. 1976)

United States vs. Davis,

(5th Cir. 1970) 423 F. 2d

974, Cert. Denied (1970) 400 U.S. 886 — 8

United States vs. Hunt,

(5th Cir. 1974) 505 F. 2d

931, Cert. Denied, (1975) 421 U.S. 975 — 9

United States vs. Sanchez,

(6th Cir. 1975) 509

F. 30:606 2 2 Le SER SOLO OMR MICE TS |

iii

Wattenburg vs. United States,

(9th Cir. 1968)

Wong Sun vs. United States,

(1963) 371 U.S. 471 __ sajaspoiuieameatuee ae

Statutes:

Ohio Revised Code § 2925.03(A)(6) 00. OS

United States Constitution

Fourth Amendment to the Constitution of the

United States ___ oe See ee

Fifth Amendment to the Constitution of the

ee GE ce eee a

Sixth Amendment to the Constitution of the

RS Se 2 ee a oe ae

Fourteenth Amendment to the Constitution. of the

Ces Diates 2, 6, 7, 10, 11, 18

APPENDIX

Journal Entry of Judgment of Franklin panied

Ohio Court of Appeals = Jeeta

Decision of Franklin County,

Obie Geet of Apewle ne

Order of the Ohio Supreme Court overruling

petitioners Motion for Leave to Appeal 24

iv

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES J. BOBULSKI,

PETITIONER,

VS.

STATE OF OHIO,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

CITATION TO OPINIONS BELOW

The Supreme Court of Ohio did not render a written

opinion.

The opinion of the Franklin County, Ohio Court of

Appeals, Tenth Judicial District, is unreported and is

reprinted in the appendix attached hereto.

JURISDICTION

The order of the Ohio Supreme Court denying leave

to appeal was rendered on April 12, 1979. The jurisdiction

of this Court is invoken under 28 USC 1257(3).

QUESTIONS PRESENTED

I. Isa search justified under the “plain view” doctrine

where police officers without a warrant enter the enclosed

area of an apartment complex for the sole purpose of

2

peering into the window of one apartment in an effort

to obtain a glimpse of contraband, which they expect to

be present.

II. Is the seizure of suspected contraband, without a

warrant, unreasonable in violation of the Fourth and

Fourteenth Amendments to the Constitution of the United

States where police officers observe what they believe

to be contraband within a constitutionally protected area,

they have an ample opportunity. to secure a search war-

rant before seizing the suspected contraband, and no

exigent circumstances exist?

II. Are incriminating statements made to police

officers, which are the direct fruits of an illegal arrest,

obtained in violation of the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the Constitution of the

United States provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons

or things to be seized.”

The Fifth Amendment to the Constitution of the United

States provides:

“No. person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment

3

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be witness against

himself, nor be deprived of life, liberty, or property,

without due process of law: nor shall private prop-

erty be taken for public use, without just compensa-

tion.”

The Sixth Amendment to the Constitution of the United

States provides:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses on his favor,

and to have the assistance of counsel for his defense.”

Section 1 of the Fourteenth Amendment to the Con-

stitution of the United States provides:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

4

STATEMENT OF THE CASE

On the morning of October 26, 1977, Columbus Police

narcotics officers had established surveillance on a resi-

dence apartment building at 28 Sherman Avenue. This

apartment building was in a complex of similar buildings.

The apartment complex is situated approximately forty

(40) yards from the street, and is surrounded by a chain-

link fence and shubbery, which separates the apartment

property from public property. Access to the complex is

maintained by strategicaily located gates. There is a pub-

lic sidewalk which runs parallel to and outside of this

chain-link fence for public use.

Police narcotic officers who had established this sur-

veillance observed petitioner enter the 28 Sherman Avenue

apartment, where he was greeted by Taylor, a co-defend-

ant. Officer Stevens then left his surveillance position on

the public street, entered the fenced area surrounding

the apartment, and walked up an apartment walkway

which was parallel to the apartment for the sole purpose

of peering into the bay window of the apartment. The

officer did peer into the apartment window and observed

the petitioner handling several plastic baggies containing

a brown substance. The officer next knocked on the apart-

ment door, waited, knocked again, heard commotion

inside, peered through the window again, and observed

Taylor moving toward the rear of the apartment. Tavlor

was apprehended in the fenced-in back yard of the apart-

ment. Petitioner Bobulski remained in the apartment and

was arrested therein. The brownish substance and other

suspected controlled substances were seized, and both

petitioner and Taylor were arrested. Petitioner was

charged with one count of possession of marijuana and

two counts of possession of Schedule II drugs.

5

Petitioner timely filed motions to suppress the physical

evidence seized and to suppress statements made follow-

ing his arrest. In said motions petitioner raised the con-

stitutional questions presented herein.

A suppression hearing was held in the trial Court, and

all suppression motions were overruled.

Petitioner Bobulski entered a plea of no contest to

trafficking in marijuana in violation of O.R.C. § 2925.03

(A)(6). Petitioner was found guilty and duly sentenced.

Petitioner perfected his appeal to the Franklin County

Court of Appeals, Tenth Judicial District, wherein he

raised assignments of error relating to the search and

seizure of physical evidence and the surpression of

statements.

On December 14, 1978,, the Franklin County Ceurt of

Appeals overruled all assignments of error holding that

Columbus police officers had the right to peer into the

apartment window from the enclosed apartment area,

as there was no reasonable expectation of privacy therein.

( Appendix. ) The Court further held that the inadvertence

requirement of the “plain view” exception to the warrant

requirement was inapplicable in the instant case, since

the observations were made during the investigation of

criminal activity. (Appendix. )

On January 12, 1979 petitioner filed a Notice of Appeal

to the Supreme Court of Ohio and on February 12, 1979

petitioner filed a memorandum in support of jurisdiction

in the Ohio Supreme Court. On April 12, 1979 the Ohio

Supreme Court denied jurisdiction and refused to hear

the case.

6

REASONS FOR GRANTING THE WRIT

1. WHERE POLICE OFFICERS ENTER THE

ENCLOSED AREA OF AN APARTMENT

COMPLEX FOR THE SOLE PURPOSE OF

PEERING INTO THE WINDOW OF ONE

APARTMENT IN AN EFFORT TO OBTAIN

A GLIMPSE OF CONTRABAND, WHICH

THEY EXPECT TO BE PRESENT,

SUCH POLICE ACTIVITY CONSTITUTES

A SEARCH, IS NOT JUSTIFIED UNDER THE

“PLAIN VIEW” DOCTRINE, AND IS VIOLA-

TIVE OF THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

The issue of the extent of privacy and freedom under

the Fourth and Fourteenth Amendments from visual

governmental intrusion which an apartment occupant

may reasonably anticipate is central to the case at bar.

The Supreme Court’s seminal decision dealing with the

scope of the Fourth Amendment protection was Katz vs.

United States, 389 U.S. 343 (1967). In KATZ, the Court

held that the government’s placement of an electronic

listening device onto the exterior of a public phone booth

violated the defendant's Fourth Amendment right to be

free of unreasonable searches and _ seizures. Justice

Stewart, writing for the majority in KATZ, stated that

the Fourth Amendment protects

people and not simply “areas” — against unreasonable

searches and seizures . . . [and] the reach of that

Amendment cannot turn upon the presence or ab-

sence of a physical intrusion into any given enclosure.

KATZ at 353.

7

The Court found that the government's activities in elec-

tronically eavesdropping ‘on and recording the defendant's

telephone conversations without first obtaining a warrant

violated the privacy upon which the defendant justifi-

ably relied. KATZ for the first time specifically set forth

the doctrine that Fourth Amendment protections attach

whenever the government invaded a citizen’s “reasonable

expectation of privacy.”

Petitioner respectfully submits and, if Certiorari is

granted, will argue that an occupant of a private apart-

ment, which is separated from pu'ilic areas by a distance

of some 40 yards, by a chain-link fence, shrubbery and

gates, has the right to reasonably expect that activities

undertaken within the confines of the apartment will not

be surreptiously observed by the intruding eye of govern-

ment officers. Petitioner further submits that the govern-

mental intrusion of the constitutionally protected area in

the instant ~ase runs contrary to the spirit and the letter

of the Fourth and Fourteenth Amendments and of KATZ,

supra.

A second and equally important, issue presented by the

instant case is the application of the “plain view” excep-

tion to the warrant requirement. Coolidge vs. New Hamp-

shire, 403 U.S. 443 (1971).

There was no attempt by the State or by the Courts

below to justify the police search in this case by any

reasons other than the plain view exception to the warrant

requirement.

In Coolidge vs. New Hampshire, 403 U.S. 434 (1971),

the Court set forth the elements which must be proven

in order to justify a warrantless search on the basis of the

plain view exception to the warrant requirement. The

Court held the following must be shown:

8

(1) The initial intrusion which afforded the au-

thorities the plain view was lawful; (2) the discovery

of the evidence was inadvertent; and (3) the in-

criminating nature of the evidence was immediately

apparent.

As to the first requirement set forth in the COOLIDGE,

case, SUPRA, Petitioner respectfully submits and, if cer-

tiorari is granted, will argue that the officers had no right

to be in the enclosed apartment complex area for the sole

purpose of peering in petitioner's apartment window. In

United States vs. Davis, 423 F.2d 974 (5th Circuit 1970),

cert. denied 400 U.S. 836 (1970), law enforcement officers

returned to the defendant's premises at about 10:30 p.m.

to search for a gun that had been discarded by the de-

fendant in a melee that had occurred on the premises

earlier that afternoon. The government claimed that a

search warrant was not required because the gun was

in plain view. The Court noted that the plain view rule

only applied when the officer had a right to be in the

position to have that view. Because the officer had to

trespass into a constitutionally protected area in order to

secure that view, the Court quickly dismissed the govern-

ment’s argument.

The Court did not consider KATZ in determining the

scope of Fourth Amendment protection. It stated:

The high degree of judicial sanctity which the Courts

have accorded to dwellings is based upon the concept

of privacy and the right to be left alone. The security

of homes should not be left to the sole discretion of

police officers.

DAVIS at 977.

Implicit in the Court’s rationale is the belief that the

9

Fourth Amendment protects both the security of the home

and the individual’s right to privacy.

Other Courts have reached a similar view. See United

States vs. Carriger, 541 F.2d 545 (6th Cir. 1976); United

States vs. Hunt, 505 F.2d 931 (5th Cir. 1974), cert. denied

421 U.S. 975 (1975); State vs. Colvin, 358 So. 2d 1250 (La

S. Ct. 1978); Morsman vs. State, 350 So. 2d 137 (Fla. App.

Ct. 1978); People vs. Powell, 256 N.W. 2d 583; 76 Mich.

App. 237 (1977).

In United States vs. Carriger, supra, the Sixth Circuit

Court of Appeals citing Katz vs. United States, Supra,

concluded that trespassing is one form of intrusion by

the government that may violate a person’s reasonable

expectation of privacy. The Court quoted extensively

from the Fifth Circuit decision, Fixel vs. Wainwright,

492 F.2d 480 (5th Circuit 1974), wherein the Court ex-

plained that property concepts were helpful to an investi-

gation of one’s reasonable expectation of privacy because

they assisted in establishing the perameters of Fourth

Amendment protection as they concern the home. The

Court stated that a tenant expects other tenants and in-

vited guests to enter into the common areas of the build-

ing but does not expect trespassers to do the same. The

trespass of the officer violated the defendant's subjective

expectation of privacy and the Court found that expecta-

tion reasonable. Specifically, the Court stated:

The area immediately surrounding and closely re-

lated to the dwelling is also entitled to the Fourth

Amendment's protection. In defining the surrounding

area entitled to such protection, the Courts historic-

ally have found helpful the common law concept of

curtilage, meaning “yard, courtyard, or other piece of

10

ground included within the fence surrounding a

dwelling house.

[Citation omitted.]

When officers have physically invaded this protected

area, either to seize evidence or to obtain a view of

illegal activities, we have readily condemned such

an invasion as violative of the Fourth Amendment.

Fixel vs. Wainwright at 483. (emphasis added.)

The same result, using the dual criteria of “privacy”

and “trespass,” has been reached in other circuits. See

Wattenburg vs. United States, 388 F.2d 853 (9th Cir.

1968).

In the instant case, the police invaded common areas

surrounding the apartment which were included within

the fenced apartment area. It is submitted that this in-

vasion to obtain a view of suspected illegal activities con-

stituted a violation of the Fourth and Fourteenth Amend-

ments and a violation of the first criterion of Coolidge,

supra, for a plain view search.

However, assuming, for the purpose of argument, that

the first criterion of Coolidge, supra, was met by the police,

the search was still invalid under the plain view doctrine

for the reason that the second criterion, that of inadvert-

ence, was not met. The police had the apartment under

surveillance. The police went to apartment 28 for the

sole purpose and with the single intent of looking in the

window to discover evidence of a crime. The facts clearly

demonstrate that this was not a situation where a police

officer inadvertently stumbled upon evidence of a crime,

but a case where the police, with prior calculation, sur-

reptitiously peered into a private dwelling with the intent

11

and anticipation of discovering evidence of a crime. Con-

sequently, Petitioner respectfully submits that the search

cannot withstand scrutiny under the plain view standards

established by Coolidge vs. New Hampshire, supra. See

also United States vs. Sanchez 509 F.2d 886 (6th Cir.

1975).

It is therefore, respectfully submitted that the case at

bar presents issues of substantial constitutional import and

of great public importance in the determination of the

application of the “plain view” doctrine and in the deline-

ation of privacy rights of apartment occupants under the

Fourth and Fourteenth Amendments to the United States

Constitution.

2. WHERE POLICE OFFICERS OBSERVE

WHAT THEY BELIEVE TO BE CONTRA-

BAND WITHIN A CONSTITUTIONALLY

PROTECTED AREA, AND HAVE AN AMPLE

OPPORTUNITY TO SECURE A SEARCH

WARRANT BEFORE SEIZING THE SUS-

PECTED CONTRABAND, ABSENT EXIGENT

CIRCUMSTANCES, THE SEIZURE OF THE

SUSPECTED CONTRABAND, WITHOUT A

WARRANT IS UNIKEASONABLE IN VIOLA-

TION OF THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE CONSTITUTION

OF THE UNITED STA7#S. Coolidge vs. New

Hampshire, 403 U.S. 443 (1s71).

It is axiomatic that the Fourth Amendment to the Con-

stitution of the United States as applied to the states

through the Fourteenth Amendment to the Constitution

prohibits unreasonable seizures of property as well as

unreasonable searches.

12

Numerous federal and state courts have consistantly

held that “plain view alone is never enough to justify the

warrantless seizure of evidence.” Coolidge vs. New Hamp-

shire, supra; Fixel vs. Wainwright, 492 F.2d 480 (5th Cir.

1974); State vs. Albert, 360 S. 2d 137 (Fla. App. 1978);

State vs. O’'Herron, 380 A. 2d 768,.153 N.J. Super. 570

(1977); State vs. Colvin, 358 So. 2d 1250 (La. S. Ct. 1978).

In State vs. Schur, 538 P. 2d 689, 217 Kan. 741 (Su-

preme Court Kansas 1975), the Court, relying on Coolidge

vs. New Hampshire, supra, stated that:

The correct procedure, in the absence of exigent cir-

cumstances when an officer comes upon evidence in

plain view would be. . . (to) obtain(ed) a valid

search warrant.

538 P. 2d at 694.

In that case, an officer had observed a rolled yellow

cigarette through a patio door and smelled the odor of

burning marijuana. The Court suppressed the warrantless

seizure of the marijuana.

The case at bar closely parallels the above-cited cases.

In the instant case there were no extigent circumstances;

and, in fact, as far as the officers knew, the Petitioner was

unaware of their presence until he was alerted by the

police officers’ knocking on the door. Petitioner submits

and, if certiorari is accepted, will argue that the police

cannot create an exigency and then rely upon it to justify

a warrantless seizure of evidence. The proper procedure

would have been for the officers to secure a search warrant

for the premises, so that the constitutional mandates of a

determination of probable cause by a neutral magistrate

could have been met.

It is respectfully submitted that the issue presented

herein represents a substantial constitutional question and

13

a matter of great public importance. This issue presents

an opportunity for the Court to speak to the subject of

warrantless seizures of evidence and to clarify the cir-

cumstances under which evidence may be seized absent

a search or arrest warrant under the Fourth and Four-

teenth Amendments to the Constitution of The United

States.

3. WHERE INCRIMINATING STATEMENTS

MADE TO POLICE OFFICERS ARE THE DI-

RECT FRUITS OF AN ILLEGAL ARREST,

SUCH STATEMENTS ARE OBTAINED IN

VIOLATION OF THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

Prior to trial, Petitioner duly filed a motion to suppress

any and all statements made by him following his arrest.

The trial Court overruled said motions on the grounds

that the original arrest and search and seizure were law-

ful; therefore, any statements made subsequent to the

arrests were admissible. The Court of Appeals affirmed

that decision.

As Petitioner has shown in the preceding portions of

this brief, the search and seizure giving rise to the arrest

of Petitioner were unconstitutional and, therefore, unlaw-

ful. Prior to the unlawful search, the police has no prob-

able cause to enter the private dwelling or to arrest Peti-

tioner. Consequently, the arrest was unlawful.

Petitioner respectfully submits that any statements

made by him were a direct result of his unlawful arrest.

Therefore, these fruits of the illegal arrest should have

been suppressed under the doctrine established by the

United States Supreme Court in the cases of Wong Sun vs.

United States, 371 U.S. 471 (1963): Silverthorne Lumber

14

Company vs. United States, 251 U.S. 385 (1920); and

Nardone vs. United States, 308 U.S. 338 (1939).

CONCLUSION

For the foregoing reasons, this petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

jp tlan fo Ab bow

ABRAHAM, PURKEY & LEVY

WILLIAM J. ABRAHAM

24 North High Street

Columbus, Ohio 43215

Telephone: (614) 221-5474

Counsel for Petitioner

CERTIFICATE OF SERVICE

Petitioner, James Bubolski’s undersigned counsel here-

by certifies that he served a copy of the foregoing Petition

for Writ of Certiorari to the Ohio Supreme Court on

George C. Smith, Franklin County Prosecuting Attorney,

Hall of Justice, 369 South High Street, EE ag Ohio

43215, by regular mail, postage prepaid on July <—, 1979.

ABRAHAM, PURKEY & LEVY

WILLIAM J. ABRAHAM

24 North High Street

Columbus, Ohio 43215

Telephone: (614) 221-5474

Counsel for Petitioner

15

APPENDIX

IN THE COURT OF APPEALS

OF FRANKLIN COUNTY, OHIO

State of Ohio,

Plaintiff-Appellee,

vs. No. 78AP-397

Stephen F. Taylor,

Defendant-Appellant.

State of Ohio,

Plaintiff-Appellee,

VS. : No. 78AP-505

James J. Bobulski,

Defendant-Appellant.

JOURNAL ENTRY OF JUDGMENT

For the reasons stated in the decision of this court

rendered herein on December 14, 1978, the assignments

of error are overruled, and it is the judgment and order

of this court that the judgments of the Franklin County

Court of Common Pleas are affirmed.

WHITESIDE, REILLY and McCORMAC, JJ.

By Judge John M. McCormac

ce: William A. Reddington

R. William Meeks

Barry D. Levy

16

IN THE COURT OF APPEALS

OF FRANKLIN COUNTY, OHIO

State of Ohio,

Plaintiff-Appellee,

VS. : No. 78AP-397

Stephen F. Taylor,

Defendant-Appellant.

State of Ohio,

Plaintiff-Appellee,

VS. No. 78AP-505

James J. Bobulski,

Defendant-Appellant.

DECISION

Rendered on December 14, 1978

MR. GEORGE C. SMITH, Prosecuting Attorney,

MR. WILLIAM A. REDDINGTON, Assistant,

Franklin County Hall of Justice,

369 South High Street,

Columbus, Ohio

For Plaintiff-Appellee.

17

CASSIDY, NIEHOFF & MEEKS,

MR. PAUL CASSIDY and

MR. R. WILLIAM MEEKS,

24 North High Street,

Columbus, Ohio

For Defendant-Appellant

Stephen F. Taylor.

ABRAHAM, PURKEY & LEVY,

MR. BARRY D. LEVY,

24 North High Street,

Columbus, Ohio,

For Defendant-Appellant

James J. Bobulski.

McCORMAG, J.

These cases have been consolidated for appeal as the

same legal issues are applicable to both. Defendant

Taylor was charged with one count of possession of mari-

juana, and defendant Bobulski was charged with one

count of possession of marijuana and two counts of pos-

session of Schedule II drugs. Both defendants filed timely

motions to suppress physical evidence seized and state-

ments made, all of which were overruled. Thereafter,

Taylor entered a plea of no contest to attempted traffick-

ing in marijuana, and Bobulski entered a plea of no con-

test to trafficking in marijuana. Both defendants were

found guilty and sentenced accordingly.

From the judgment of the trial court, defendants have

appealed, setting forth the following assignments of error:

1. “The trial court erred in overruling appellants’

18

motion to suppress physical evidence obtained

through a warrantless search of appellants’ apart-

ment in violation of the Fourth and Fourteenth

Amendments to the Constitution of the United States

and Section 14 Article I of the Ohio Constitution.”

2. “The trial court erred in overruling appellants’

motion to suppress physical evidence obtained

through a warrantless seizure of evidence in violation

of the Fourth and Fourteenth Amendments to the

Constitution of the United States and Section 14

Article I of the Ohio Constitution.”

3. “The trial court erred in overruling appellants’

motions to suppress statements made to authorities

after their arrest in violation of the Fifth, Sixth and

Fourteenth Amendments to the Constitution of the

United States and Article I Section 10 of the Ohio

Constitution.”

Two Columbus police officers assigned to the narcotics

bureau had an apartment located at 28 East Sherman

Avenue, Columbus, Ohio, on surveillance on October 26,

1977. At about 9:00 a.m., defendant Bobulski entered the

apartment carrying a gym bag and a guitar case. The

apartment building is located about 40 yards from the

street and is surrounded by a chain-link fence with a

gate. There is a walkway entrance which runs along the

apartment from the street sidewalk, which is used for

entry to the various apartments located therein. At the

time Bobulski was seen, the police officers were observing

the apartment from the alley. After being informed by

another surveillance crew that Bobulski had entered the

apartment, a police officer walked along the sidewalk

within the gate used for traffic to the various apartments,

and from the apartment sidewalk looked into the apart-

19

ment which had a large bay. window in front of it with no

curtains or other obstructions, other than a hanging plant

which came down about a quarter of the way in the

window. At that time, Officer Stevens observed Bobulski

and the other defendant Taylor inspecting plastic baggies

containing a brownish substance. From Officer Stevens’

experience, the substance and the type of packaging was

of the manner usually associated with packing of mari-

juana for sale. According to Officer Stevens, from what

he observed through the wiridow, he “suspected the

brownish substance was marijuana.” Stevens then went

to the door, knocked and got no response. He knocked

again and still receiving no response, heard some noises

inside the apartment, so he jumped back off the porch

onto the apartment walkway, looked into the bay window

and saw that “Mr. Taylor had gathered up the marijuana

into his arms in the bag and was making it towards the

dining room or rear portion of the apartment and was

looking back towards the front. I don’t know if he actu-

ally saw me ° ° °.” Another detective ran to the back

and apprehended Taylor as he was coming out the back-

door of the residence.

The officers searched the back of the apartment for

discarded marijuana and did not find any, and then saw

the substance lying on the floor in the kitchen, whereupon

they entered the kitchen to seize the marijuana and to

arrest Bobulski, Taylor already having been arrested.

After entering the apartment, they saw in the open guitar

case plainly visible bottles containing several thousand

Schedule II drugs and a plastic bag which contained

pharmaceuticals. Admittedly, Officer Stevens’ initial pur-

pose in entering the apartment area from the street on

the walkway was to visually investigate what could be

seen inside the apartment, without, as testified by Officer

20

Stevens, “committing trespass.” There were no “No Tres-

pass” signs at the sidewalk and the apartment sidewalk

was freely accessible to those persons choosing to use it.

After defendants were arrested, they were taken to

Columbus Police Headquarters where, after being advised

of their Miranda rights, and signing Miranda waivers, they

made incriminating statements concerning their posses-

sion of the illegal narcotics.

The trial court overruled all of the motions to suppress,

ruling that the police officer who made his observations

from the walkway within the apartment complex was not

a trespasser and was rightfully at that position for observ-

ing what he was able to observe. The trial court found

that what the officer observed gave him probable cause

to make the arrests and to seize the contraband in plain

view, and that since the search and seizure was legal,

there being no other basis for suppressing the statements,

the statements were also admissible.

The first two assignments of error are combined for

discussion as they are interrelated.

The first issue is whether Officer Stevens violated de-

fendants’ Fourth Amendment right against. unreasonable

searches and seizures by entering onto the apartment

complex walkway to observe defendants’ actions through

the window of their apartment.

Appellants rely primarily upon the case of Katz vs.

United States (1967), 389 U.S. 347, where it was held

that there was a violation of petitioner's Fourth Amend-

ment rights by monitoring his calls from a telephone booth

through an electronic device. However, in Katz, the

United States Supreme Court made the following com-

ment pertinent to this case:

“® ° * the Fourth Amendment protects people, nct

21

places. What a person knowingly exposes to the pub-

lic, even in his own home or office, is not a subject

of Fourth Amendment protection. ° ° ° But what

he seeks to preserve as private, even in an area ac-

cessible to the public, may be constitutionally pro-

tected.”

The defendants herein made no particular effort to

preserve as private what Officer Stevens saw when they

opened the guitar case and exposed the marijuana in

plastic bags to view in front of a window not protected

by drapes or other obstructions. However, appellants

seek a declaration that the observation of that activity by

Officer Stevens constituted an illegal search by asking us

to draw the narrow guideline that, even though there

was not an expectation of privacy from other occupants

of the apartment complex or their invitees, there was such

as related to a suspicious police officer who enters onto

the sidewalk without invitation or other business in the

apartments. We do not believe that that narrow distinc-

tion should be made. Officer Stevens had a right to use

the semi-public walkway for purposes of observing

illegal activity taking place within plain view of that

walkway. There was no trespass that took place; thus,

distinguishing this case from that of United States vs.

Carriger (Sixth Cir., 1976), 541 F. 2d 545, where nar-

cotic officers entere dan apartment house which could

only be opened by a key or by someone inside activating

a buzzer system by surreptitiously slipping into the build-

ing, thus gaining a vantage point from which to observe

illegal activity. In this case, there was no physical invasion

of a protected area so that whatever was observed by

the officer was usable in determining probable cause for

arrest. Officer Stevens was not a trespasser but a licensee

92 a

who had a right to be on the sidewalk within the premises,

even though the purpose was to observe potentially illegal

activity.

This case is clearly distinguishable from that of State vs.

DeShong, unreported Franklin County Common Pleas

Court case No. 43347, decided October 21, 1966, where

the arresting officers left the sidewalk and came up to

the front porch of the house pushing aside shrubbery in

front of a bedroom window and then peering through a

small gap under the venetian blind to observe illegal

activity. In this case, there was no invasion of the cur-

tilage as in DeShong, nor did the defendants herein

attempt to conceal their activities from other members

of the public.

What is seen while legally investigating a crime is not

subject to the “plain view” doctrine requirement that the

sighting of the contraband must be inadvertent. The trial

court properly found probable cause for an arrest for a

narcotics violation based upon Officer Stevens’ testimony

of his observations. A reasonable person was entitled to

believe that the defendants were trafficking in marijuana

based on what was observed by Officer Stevens from the

walkway even without the ambiguous action of Taylor

in hastily leaving the apartment through the rear door.

The arresting officers were justified in entering the

house to arrest Bobulski and to seize the contraband

which was in plain view of the officers. Seizue of the

evidence was proper incident to the lawful arrests.

Assignments of error numbers one and two are over-

ruled.

The third assignment of error is overruled on the basis

that no grounds were advocated for suppression of the

23

incriminating statements other than the fact that they

were fruits of illegal arrest and search. Since the arrests

and search were not illegal, neither was the obtaining of

the statements.

Appellants’ assignment of error number three is over-

ruled.

Appellants’ assignments of error are overruled, and the

judgment of the trial court is affirmed.

WHITESIDE and REILLY, JJ., concur.

24

THE SUPREME COURT OF THE

STATE OF OHIO

No. 79-189

1979 TERM

To wit: April 12, 1979

THE STATE OF OHIO,

City of Columbus.

State of Ohio,

Appellee,

vs.

Stephen F. Taylor and James J. Bobulski,

Appellants.

MOTION FOR LEAVE TO APPEAL

FROM THE COURT OF APPEALS

for Franklin County

It is ordered by the Court that this motion is overruled.

COSTS:

Motion Fee, $20.00, paid by Barry D. Levy...

I, Thomas L. Startzman, Clerk of the Supreme Court

of Ohio, certify that the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal of the Court

thie .__ ge @f.... a