FEB 2 5?Q14 CLERK OF COURT. REMEcQURTOE C. STATE OF OHIO Case No Appellee PETER E. THOMPSON, JR. Appellate MEMORANDUM IN RESPONSE

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO Case No Appellee PETER E. THOMPSON, JR. Appellate On Appeal from the Montgomery County Court of Appeals, Second Appellate District Court of Appeals Case No, CA MEMORANDUM IN RESPONSE MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By APRIL F. CAMPBELL Reg. No Assistant Prosecuting Attorney Montgomery County Prosecutor's Office Appellate Division Montgomery County Courts Building P.O. Box West Third Street Dayton, Ohio (937) JAY A. ADAMS Reg. No `'orth Detroit St., Ste 102 Xenia, Ohio ATTORNEY FOR PETER E. THOMPSON, JR. DEFENDANT-APPELLANT ATTORNEY FOR THE STATE OF OHIO PLAINTIFF-APPELLEE FEB 2 5?Q14 CLERK OF COURT REMEcQURTOE C j c^..`i^isyf'^..9f,.. *:f:f:. ^.,,,, f,.^, ^,,+_,%^,; ;-- ' :-tf:g._5..^

2 i WHY LEAVE TO APPEAL SHOULD NOT BE GRANTED This Court should decline jurisdiction on Thompson's appeal. A decision holding that an officer can perform a warrantless search of a car's passenger compartment, after he sees a marijuana cigarette lying in the cup-holder through the car window, raises no substantial constitlitional question. Instead, that holding results from duly applying two well-settled princi:ples-plai.n-view and the automobile exception-to the unique facts of Thompson's case. And, in reasoning that it need not decide whether Thompson's arrest for driving under a suspended temporary permit was lawful, no matter of public or great general interest arose, Using yet another settled principle-the independent source doctrine, the Second District Court of Appeals correctly concluded that the officer's decision to look in the car was independent of his decision to arrest. Thus, it properly determined that the exclusionary rule applies only where the evidence seized is the product of the alleged illegality, which here, it wa_s not. STATEMENT OF THE CASE AND FACTS Peter Thompson challenges the Second District Court of Appeals decision holding that the trial court erred by using the exclusionary rule to suppress the heroin and cocaine fottnd in Thompson's car. The Second District reasoned that the arrest the trial court used to taint the car search was a moot issue: The officer's plain view observation of the marijuana cigarette in the car cup-holder was unrelated to

3 2 Thompson's arrest, and provided probable cause to search the car. Thus, the exclusionary rule could not be used to suppress the heroin and cocaine found in it. That decision was based on these facts: Dayton Police Sergeant John Riegal was on duty in May 2012 when he saw Peter Thompson driving a Pontiac Bonneville, speeding down a local street in the city of Dayton. The sergeant pursued, but only after he also saw Thompson turn without a signal. The sergeant drove through a cloud of kicked-up dust and gravel that the Bon.neville's rate of speed produced. He finally caught up with Thompson, who by this time had already parked his car. Thompson parked behind an apartment building that ' the sergeant was familiar with; as a forrner narcotics officer, the sergeant knew this apartment complex for its association with drug activity. Rather than sit tight, Thompson exited his car. He moved rapidly towards the front of the apartment building, at a pace faster than a walk, but less than a dead sprint. Now away from his vehicle, the sergeant caught up with Thompson. He asked Thompson if he had a driver's license. Thompson said that he had only a temporary permit. The sergeant asked if there was anyone else in the car, but Thompson said no, there was not. Thompson also told the sergeant that he did not live at this apartment building. Since the sergeant did not see anyone else in tl-te car, he decided to take Thompson back to his cruiser, to give him a temporary permit violation citation. It was d.ur.ing this interaction that Thompson began to shake violently. The

4 manner in which Thompson shook made the sergeant concerned for his safety; this behavior was not average for a police stop, and in the sergeant's ten years of experience, he rarely encountered the behavior now displayed by Thompson. The sergeant became concerned that `Thompson might have a weapon on him, and patted him down. The sergeant did not find anything during the pat down, but decided to place him in handcuffs due to the shaking; he thought Thompson could potentially assault him. Thompson was placed in the cruiser. Sergeant Riegal went back to Thompson's car to look into it, wanting to make sure no one else was in it. It was there that the sergeant saw what he immediately recognized as a marijuana cigarette lying in a cup-holder of Thompson's car. The sergeant returned to the cruiser and asked Thompson if there was a marijuana cigarette in the car, and if it was his. Thompson confirmed that it was. The sergeant ran Thompson's record, finding that Thompson s temporary permit was under suspension. After running Thompson's record, the sergeant decided he was going to write a citation for the nlariju.ana cigarette, and would arrest Thompson for not having a driver's license. Sergeant Riegal then searched the car. Looking inside the center console of the passenger compartment, the sergeant found two bags of capsulized narcotics, which were later confirmed to be heroin and cocaine. Tucked between these two bags was a wallet, containing Thompson's suspended temporary driving permit.

5 4 ARGUMENT 1. This Court should decline jurisdiction because the Second District Court of Appeals decision correctly applies settled law to conclude that the exclusionary rule did not apply to the car search, which was lawful under the automobile exception. Thompson's proposition of law: The Plain View Doctrine and Automobile exception to the warrant requirement do not render seizures lawful when predicated on an unlawful arrest. Thompson asks this Court to accept jurisdiction with a proposition of law that assumes an unlawful arrest occurred. Not only was an arrest lawful, but the Second District Court of Appeals correctly reasoned that the subsequent car search was not the product of any arrest. Thus, the exclusionary rule did not apply to this car search, which was lawful under the automobile exception. A. Thompson's proposition of law incorrectly assumes he was unlawfully arrested. Thompson argues here, just as the trial court held below, that when the sergeant expressed a decision to arrest Thompson for not having a driver's license, that decision constituted an arrest for an expired temporary permit offense in violation of Ohio's prohibition against minor misdemeanor arrests. But an arrest here was lawful; a point important only because his proposition of law incorrectly assumes it was not. Driving with an expired temporary permit is an offense different from driving under a suspended one. The legislatu-re differentiates between the two, not only by definition, but by degree of offense. By definition, a temporaly permit is expired at the

6 5 end of one year, whereas a permit is suspended when, during the time the driver is validly holding the permit, either the bureau of motor vehicles or a court places a suspension on it. R.C (C) and (H). By degree of offense, an expired permit violation is a minor misdemeanor offense absent additional evidence of prior violations of the same nature. R.C (C)(2). Since the Ohio Constitution prohibits arrests for this type of offense, a driver cannot be arrested for it unless a statutory exception applies. R.C ; State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 170'. But an officer can arrest when there is probable cause for driving under suspension. This is because the prohibition against minor misdemeanor arrests, which are defined as offenses carrying a maximum penalty of 100 dollars in fine, does not apply to suspension offenses, which carry greater penalties. R.C and 4510,16; Crim. R. 4.1(B). lmportantly, probable cause is not dependerit on whether a driver also committed a minor misdemearior offense, or on what an officer subjectively means to charge. Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004); Gessner v. Schroeder, 2d Dist. No , 2007-Ohio-570, I 37("the probable cause inquiry does not focus on offenses that officers subjectively contemplate at the time of arrest, nor is the inquiry limited to offenses with which a criminal defendant is actually charged"). Rather, the probable cause analysis is objective: Courts examine whether the

7 6 known facts at the time of the offense establish probable cause for the officer's actions as to any criminal offense. Id. Here, Thompson was driving under a suspended temporary perznit, not an expired one. Notably, the trial court found as fact that Thompson's permit was suspended, not expired, a fact that the sergeant's testimony confirms. Viewed objectively, probable cause for driving under suspension was established once Sergeant Riegal saw Thompson driving, and verified that his temporary permit was suspended. E.g., State v. Johnsoyi, 2d Dist. No CA 55, 2001 WL (Dec. 7, 2001), *2 (verifying a suspension gives probable cause to arrest for driving under suspension); E.g., State v. Woodfork, 4th Dist. No. 04CA2798, 2005-Ohio-2469, (receiving information that a person's license is suspe-nded provides probable cause, even if it turns out that there was no suspension). Because Thompson was driving under suspension, rather than under an expired permit, an arrest based on that offense was cons-titutionally valid. But the fact that an arrest was constitutionally valid is important here in only one way: it removes an assumption on. which Thompso.n's proposition of law relies. B. The Second District Court of Appeals correctly applied well-established principles to conclude that the exclusionary rule did not apply to this car search, but the plain view and automobile exception did. Thompson argues that he was unlawfully arrested, which tainted the car search. But the Linited States Supreme Court has set forth principles for when the

8 7 exclusionary rule applies. For the exclusionary rule to apply, evidence must be gained by exploiting 'Thompsori s alleged unlawful arrest. Wung Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984); State v. Freencan, 2d Dist. No , 2002-Ohio-918. When there is an. independent source for the evidence concerned, the search is not tainted. State v. Thompson, 2d Dist. No , 2013-Ohio-4825, Even if temporally close, if the subsequent search is conceptually unrelated to an unlawful arrest, then it is independent of it, and the exclusionary rule cannot be used to suppress the evidence seized. United States v. Forbes, 528 F.3d 1273, 1280 (10th Cir. 2008). Likewise, the United States Supreme Court has explained that the plain view doctrine permits an officer to search a vehicle under the automobile exception to the Fourth Amendment's warrant requirement. Texas v. Brozvn, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). It allows an officer to seize evidence found in plain view when the officer views it from a lawful vantage point, and the incriminating nature of the contraband is immediately apparent..id.; State v. f3cickney, 2d Dist. No , 2007-Ohio-4329, Iff 9. Thus, a marijuana cigarette observed in plain view from a lawful vantage point creates the requisite probable cause to search a car under the automobile exception. Buckner at yi 11; E.g., State v. Fadenhotz, 8th Dist. No , 1991 WL , (June 13, 1991)(holding that an officer lawf.lrlly positioned where he observed a marijuana

9 8 cigarette gave the officer the probable cause to search the vehicle under the automobile exception). Here, the Second District Court of Appeals applied these principles to conclude that Thompson's car search was not the product of exploiting an arrest. Rather, the evidence seized from the car search had an independent source. Several facts demonstrate why: As the Second District Court of Appeals pointed out, this search was not supported only by a desire to inventory the contents of his vehicle because the Sergeant decided to arrest Th.ompson. Another source provided the means to search it: The sergeant went back to look in. Thompson's car to see if anyone was in it, and when he did, he discovered illegal contraband in plain view. Even if temporally close, the decision to do that was conceptually distinct from any decision to arrest. Forbes, supra. Moreover, but for one fact, there would be no discussion of an alleged illegality tainting this car search. The sergeant would have observed the marijuana upon approaching Thompson's vehicle for two traffic violations, but for this fact: Thompson fled his vehicle. Had Thompson stayed put in his car-instead of fleeing out of it, which forced the sergeant to approach away from the car, that plain view observation would have occurred upon approach. State v. Vanscoder, 92 Ohio App.3d 853, 637 N.E.2d 374, 376 (9th Dist. 1994) (once a car is validly stopped, an officer is free to observe whatever is in plain view). That single fact demonstrates that the sergeant's plain view observation was not the product of any arrest.

10 9 Thus untainted, the officer's plain view observation of illegal contra:band, observed from outside of Thompson's vehicle, gave him probable cause to search it without a warrant. Contributing to the sergeant's probable cause are these facts: Thompson stopped at an apartment complex associated with drug activity, a complex he did not reside in; Thompson took flight from his car after Sergeant Riegal pulled up behind him for committing two traffic violations, and Thompson's unusual behavior of violently shaking in his interaction with Sergeant Riegal. Such factors are sufficient to establish probable cause to search a car without a warrant, under the well-settled principles the Second District Court of Appeals used to so find. CONCLUSION appeal. The State respectfully requests that this Court deny jurisdiction on Thompson's Respectfully slibmitted, MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By h_:sf APRIL Y. CAMPBELL Reg. No Assistant Prosecuting Attorney Montgomery County Prosecutor's Office P.O. Box West Third Street Dayton, Ohio (937)

11 10 Attomey For The State Of Ohio Plaintiff-Appellee CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum In Response was sent by first class on this 21=t day of February, 2014, to Opposing Counsel, Jay A. Adams, 36 North Detroit St., Ste 102, Xenia, Ohio MATHIAS H. I-IECK, JR. PROSECUTING ATTORNEY By ^1 ^` APRIL F. CAMPBELL Reg. No Assistant Prosecuting Attorney APPELLATE DIVISION