State v. White , 2013 Ohio 5221 ( 2013 )

[Cite as State v. White, 2013-Ohio-5221.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13-CA-11
DAVID L. WHITE
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 2010-CR-0488
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 22, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GREGG MARX AARON CONRAD
Prosecuting Attorney Conrad Law Office LLC
120 1/2 E. Main Street
By: JOCELYN S. KELLY Lancaster, Ohio 43130
Assistant Prosecuting Attorney
Fairfield County, Ohio
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 13-CA-11 2
Hoffman, P.J.
{¶1} Plaintiff-appellant the State of Ohio appeals the January 28, 2013
Judgment Entry entered by the Fairfield County Court of Common Pleas sustaining a
motion to suppress filed by Defendant-appellee David L. White, and ordering all
evidence obtained by law enforcement as a result of the unlawful search and seizure be
suppressed.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
{¶2} Following a series of home invasions believed to be committed by the
same person or persons, the Franklin County Sheriff's Office identified a white Honda
Civic belonging to Appellee as being an automobile connected to the robberies. The
officers commenced surveillance of the address to which the automobile was registered
and the parking lot of the apartment complex.
{¶3} Detectives continued visual surveillance over a three day time period and
followed the vehicle whenever Appellee or his co-defendant, Montie E. Sullivan, were
driving. Due to a lack of resources, constant surveillance remained difficult.
{¶4} Due to limited resources for the continued visual surveillance, Corporal
Minerd of the Franklin County Sheriff's Office and an undercover officer installed a small
GPS unit under the vehicle's bumper. The device attached to the vehicle by magnets.
{¶5} Corporal Minerd monitored the GPS data showing the movements of the
white Honda Civic approximately three to four times a day for approximately ten minutes
at a time.
{¶6} On January 23, 2010, Minerd noticed the car moving suspiciously in the
3400 block of Bickel Church Road. He observed the vehicle slowed through
Fairfield County, Case No. 13-CA-11 3
neighborhoods and circled an area in Licking County. Corporal Minerd continued to
monitor the GPS device surveillance data until the vehicle returned to the residence.
Two hours later, the vehicle again drove slowly through neighborhoods and circled an
area in Fairfield County. Minerd contacted the Fairfield County dispatcher, identified
himself, and explained the situation. He learned a home invasion had occurred in the
suspect area.
{¶7} A search warrant was issued for Appellee's residence and the vehicle.
Upon execution of the warrant, officers found property from a recent robbery, as well as,
previous robberies.
{¶8} Appellee was indicted on one count of improperly discharging a firearm, at
or into a habitation, with two firearm specifications; one count of aggravated burglary,
with two firearm specifications; and one count of grand theft, with a firearm specification.
{¶9} Appellee filed a motion to suppress the GPS device data and any
evidence derived therefrom. Via Judgment Entry entered July 19, 2010, the trial court
overruled the motion to suppress.
{¶10} On November 12, 2010, Appellee was reindicted by the Fairfield County
Grand Jury for one count of improperly discharging a firearm at or into a habitation, with
two firearm specifications; one count of aggravated burglary, with two firearm
specifications; one count of grand theft, with a firearm specification; and one count of
tampering with evidence.
{¶11} On November 22, 2010, Appellee entered a plea of no contest to
improperly discharging a firearm, with both specifications, to aggravated burglary and
aggravated robbery. The remaining charges and specifications were dismissed.
Fairfield County, Case No. 13-CA-11 4
Appellant was sentenced to serve seven years in prison as to the improperly
discharging a firearm at or into a habitation charge, consecutive to a three year prison
term for the first specification to that count and consecutive to a three year prison term
for the second specification on that count. Appellee was sentenced to a prison term of
six years as to the aggravated burglary charge, and six years as to the aggravated
robbery charge. The trial court ordered the prison terms be served consecutively.
{¶12} On September 1, 2011, this Court reversed the trial court's denial of the
motion to suppress and remanded the case for proceedings in accordance with the
decision. State v. White, Fifth Dist. No. 2010-CA-60, 2011-Ohio-4526. The Ohio
Supreme Court accepted jurisdiction, directed the judgment of this Court be vacated,
and ordered the case be remanded to the trial court to apply United States v. Jones,
556 U.S. __, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012); and State v. White, 132 Ohio
St.3d 67, 2012-Ohio-1983.
{¶13} Via Judgment Entry of January 28, 2013, the trial court sustained
Appellee's motion to suppress. The trial court ordered all evidence obtained by law
enforcement as a result of the unlawful search and seizure be suppressed.
{¶14} The State certified the trial court's ruling rendered its proof of the charges
so weak in its entirety any reasonable possibility of effective prosecution was destroyed,
and timely filed a notice of appeal.
{¶15} The State now assigns as error:
{¶16} “I. THE TRIAL COURT IMPROPERLY APPLIED THE EXCLUSIONARY
RULE WHEN EXCLUDING ALL EVIDENCE WOULD ONLY DETER CONSCIENTIOUS
POLICE WORK AND WOULD IMPOSE A COSTLY TOLL BECAUSE IT WOULD
Fairfield County, Case No. 13-CA-11 5
PREVENT THE PROSECUTION OF A FELONY OFFENSE AND REQUIRE THE
COURT TO IGNORE RELIABLE, TRUSTWORTHY EVIDENCE.
{¶17} “II. THE TRIAL COURT IMPROPERLY SUPPRESSED EVIDENCE FROM
THE INSTALLATION AND TRACKING OF A GPS DEVICE. THE USE OF THAT
DEVICE WAS A REASONABLE SEARCH AND WAS PERMISSIBLE UNDER THE
FOURTH AMENDMENT.”
I. and II.
{¶18} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶19} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress.
{¶20} First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App. 3d 486, 597 N.E.2d 1141
(4th Dist.1991); State v. Guysinger, 86 Ohio App. 3d 592, 621 N.E.2d 726 (4th
Dist.1993). Second, an appellant may argue the trial court failed to apply the
appropriate test or correct law to the findings of fact. In that case, an appellate court can
reverse the trial court for committing an error of law. State v. Williams, 86 Ohio App. 3d
37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact
are not against the manifest weight of the evidence and it has properly identified the law
to be applied, an appellant may argue the trial court has incorrectly decided the ultimate
or final issue raised in the motion to suppress. When reviewing this type of claim, an
Fairfield County, Case No. 13-CA-11 6
appellate court must independently determine, without deference to the trial court's
conclusion, whether the facts meet the appropriate legal standard in any given case.
State v. Curry, 95 Ohio App. 3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85
Ohio App. 3d 623, 620 N.E.2d 906 (4th Dist.1993); Guysinger. As the United States
Supreme Court held in Ornelas v. U.S., 517 U.S. 690, 116 S. Ct. 1657, 1663, 134
L. Ed. 2d 911 (1996), “... as a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.”
{¶21} The Fourth Amendment protects people, not places. Katz v. United States
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1976). In Jones, 556 U.S. ___, 132 S. Ct.
945, 181 L.Ed2d 911 (2012), the United States Supreme Court held,
{¶22} "The Fourth Amendment provides in relevant part that ‘[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.’ It is beyond dispute that a vehicle is an
‘effect’ as that term is used in the Amendment. United States v. Chadwick, 433 U.S. 1,
12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). We hold that the Government's installation of
a GPS device on a target's vehicle, [Footnote omitted] and its use of that device to
monitor the vehicle's movements, constitutes a ‘search.’”
{¶23} The Supreme Court declined to address the issue of whether the
warrantless search was reasonable and lawful under the Fourth Amendment because
the government did not raise the argument until the case was before the Supreme
Court.
{¶24} In the case sub judice, the State maintains even if a violation of the Fourth
Amendment occurred the trial court must engage in a separate analysis to determine
Fairfield County, Case No. 13-CA-11 7
whether the remedy afforded by the exclusionary rule is appropriate. Illinois v. Gates,
462 U.S. 213 (1983). The purpose of the exclusionary rule is to deter future Fourth
Amendment violations. Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419 (2011).
Exclusion is the appropriate remedy when the deterrence benefits of suppression
outweigh the costs imposed. Herring v. United States 555 U.S. 135, 129 S. Ct. 695.
{¶25} The State asserts the officers herein acted in good faith and without
knowledge installing the device was improper under United States v. Jones, 556 U.S.
___, 132 S. Ct. 945, 181 L.Ed2d 911 (2012). The officers objectively relied upon the
search warrant as valid. Further, the State asserts there is no deterrent value in
suppressing the evidence in this case, and exclusion would only deter conscientious
police work.
{¶26} The United States Court of Appeals for the District of Columbia Circuit
held in United States v. Maynard, 615 F.3d 544 (CADC, 2010), the predecessor to
Jones, supra,
{¶27} "It does not apodictically follow that, because the aggregation of Jones's
movements over the course of a month was not exposed to the public, his expectation
of privacy in those movements was reasonable; 'legitimation of expectations of privacy
must have a source outside the Fourth Amendment,’ such as ‘understandings that are
recognized or permitted by society,' United States v. Jacobsen, 466 U.S. 109, 123 n. 22,
104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (quoting Rakas, 439 U.S. at 143 n. 12, 99 S. Ct.
421). So it is that, because the 'Congress has decided ... to treat the interest in
‘privately’ possessing cocaine as illegitimate,' 'governmental conduct that can reveal
Fairfield County, Case No. 13-CA-11 8
whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no
legitimate privacy interest.' Id. at 123, 99 S. Ct. 421.
{¶28} "The Government suggests Jones's expectation of privacy in his
movements was unreasonable because those movements took place in his vehicle, on
a public way, rather than inside his home. That the police tracked Jones's movements in
his Jeep rather than in his home is certainly relevant to the reasonableness of his
expectation of privacy; 'in the sanctity of the home,' the Court has observed, ' all details
are intimate details' Kyllo, 533 U.S. at 37, 121 S. Ct. 2038. A person does not leave his
privacy behind when he walks out his front door, however. On the contrary, in Katz the
Court clearly stated ‘what [one] seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.' 389 U.S. at 351, 88 S. Ct. 507. Or, as
this court has said, outside the home, the 'Fourth Amendment ... secur[es] for each
individual a private enclave, a ‘zone’ bounded by the individual's own reasonable
expectations of privacy.' Reporters Comm. for Freedom of Press v. AT & T, 593 F.2d
1030, 1042–43 (1978).
{¶29} "Application of the test in Katz and its sequellae to the facts of this case
can lead to only one conclusion: Society recognizes Jones's expectation of privacy in
his movements over the course of a month as reasonable, and the use of the GPS
device to monitor those movements defeated that reasonable expectation. As we have
discussed, prolonged GPS monitoring reveals an intimate picture of the subject's life
that he expects no one to have—short perhaps of his spouse. The intrusion such
monitoring makes into the subject's private affairs stands in stark contrast to the
relatively brief intrusion at issue in Knotts; indeed it exceeds the intrusions occasioned
Fairfield County, Case No. 13-CA-11 9
by every police practice the Supreme Court has deemed a search under Katz, such as
a urine test, see Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 109 S. Ct. 1402,
103 L. Ed. 2d 639 (1989) (urine test could 'reveal a host of private medical facts about an
employee, including whether he or she is epileptic, pregnant, or diabetic'); use of an
electronic listening device to tap a payphone, Katz, 389 U.S. at 352, 88 S. Ct. 507 (user
of telephone booth 'entitled to assume that the words he utters into the mouthpiece will
not be broadcast to the world'); inspection of a traveler's luggage, Bond, 529 U.S. at
338, 120 S. Ct. 1462 ('travelers are particularly concerned about their carry-on luggage');
or use of a thermal imaging device to discover the temperature inside a home, Kyllo,
533 U.S. at 37, 121 S. Ct. 2038 ('In the home, all details are intimate details').
{¶30} "We note without surprise, therefore, that the Legislature of California, in
making it unlawful for anyone but a law enforcement agency to 'use an electronic
tracking device to determine the location or movement of a person,' specifically declared
'electronic tracking of a person's location without that person's knowledge violates that
person's reasonable expectation of privacy,' and implicitly but necessarily thereby
required a warrant for police use of a GPS, California Penal Code section 637.7,
Stats.1998 c. 449 (S.B.1667) § 2. Several other states have enacted legislation
imposing civil and criminal penalties for the use of electronic tracking devices and
expressly requiring exclusion of evidence produced by such a device unless obtained
by the police acting pursuant to a warrant. See, e.g., Utah Code Ann. §§ 77–23a–4, 77–
23a–7, 77–23a–15.5; Minn. Stat. §§ 626A.37, 626A.35; Fla. Stat. §§ 934.06, 934.42;
S.C.Code Ann. § 17–30–140; Okla. Stat., tit. 13, §§ 176.6, 177.6; Haw. Rev. Stat. §§
803–42, 803–44.7; 18 Pa. Cons.Stat. § 5761.
Fairfield County, Case No. 13-CA-11 10
{¶31} "Although perhaps not conclusive evidence of nationwide ‘societal
understandings,’ Jacobsen, 466 U.S. at 123 n. 22, 104 S. Ct. 1652, these state laws are
indicative that prolonged GPS monitoring defeats an expectation of privacy that our
society recognizes as reasonable. So, too, are the considered judgments of every court
to which the issue has been squarely presented. See Weaver, 12 N.Y.3d at 447, 882
N.Y.S.2d 357, 909 N.E.2d 1195 ('the installation and use of a GPS device to monitor an
individual's whereabouts requires a warrant supported by probable cause'); Jackson, 76
P.3d at 223–24 (under art. I, § 7 of Washington State Constitution, which 'focuses on
those privacy interests which citizens of this state have held, and should be entitled to
hold, safe from governmental trespass,' 'use of a GPS device on a private vehicle
involves a search and seizure'); cf. Commonwealth v. Connolly, 454 Mass. 808, 913
N.E.2d 356, 369–70 (Ma.2009) (installation held a seizure).***"
{¶32} We are persuaded by the holding in Jones, supra, and the rationale set
forth by the Circuit Court of Appeals in Maynard, supra. We find the installation of the
GPS tracking device by law enforcement in this case without a warrant, for an extended
period, is a violation of the vehicle owner/operator's reasonable expectation of privacy
and amounts to an unlawful search. We find the trial court correctly ruled the GPS
evidence should be suppressed.
{¶33} The first and second assignments of error are overruled.
Fairfield County, Case No. 13-CA-11 11
{¶34} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY
Fairfield County, Case No. 13-CA-11 12
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
DAVID L. WHITE :
:
Defendant-Appellee : Case No. 13-CA-11
For the reasons stated in our accompanying Opinion, The judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs to Appellant the State of
Ohio.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY