Motor Vehicles On Commercial Properties And Surrounding Curtilage

When it comes to executing warrants, the police don’t mess around.  They want to go through everything and be everywhere to find what they are looking for in a house or building.  And a catch all, if you will, on a warrant is the house or building’s surrounding curtilage.  Basically anything that is surrounding or attached to the house or building.  In State v. Nelms, 2017-Ohio-1446, the Second District Court of Appeals took a look at whether or not a motor vehicle can be curtilage if it is parked at a commercial property.

In Nelms, Dayton Police detectives completed a series of undercover buys at various locations, to include a commercial garage.  Based on their undercover buys, the detectives were able to obtain a search warrant of the commercial garage and the surrounding curtilage.

On the date of the execution of the warrant, Nelms and two other occupants pulled up to the commercial garage and went into the building.  After the Nelms and the other men went into the building, the Dayton Police detectives executed their search warrant.  During the search of the building, one of the detectives ordered the search of Nelms’ vehicle because it was on the property’s surrounding curtilage.

Nelms was arrested and indicted on one count of possession of heroin, one count of possession of cocaine, and one count of possession of marijuana.  Nelms moved to have the evidence found during the search of his vehicle suppressed, arguing that the search was beyond the scope of the warrant.  The trial court overruled Nelms’ motion and Nelms’ appealed.

Curtilage – the area immediately adjacent to a home which an individual reasonably expects is private – is regarded as part of the home itself for Fourth Amendment purposes.  Oliver v. United States, 466 U.S. 170.  The Fourth Amendment applies to commercial premises, and extends to areas that can be equated with the curtilage of a private home.  State v. Trammel, 2d Dist. Montgomery No. 17196, 1999 WL 22884 (Jan. 22, 1999).  This area can include the grounds surrounding the premises, if the premises fit within the traditional Fourth Amendment analysis, i.e., the area is one in which the owner has a reasonable expectation of privacy.  Id.

Surrounding curtilage is used in the warrant simply to describe the area around the building.  Id.  In search warrants, curtilage has been used to designate the area surrounding a commercial property, whether that area be a parking lot or fenced area.  Id.

Although police may be lawfully on the premises with a valid search warrant, the search is limited to those areas which may reasonably contain the items listed in the warrant.  State v. Halczyszak, 25 Ohio St.3d 301.  Any container found on the premises may be searched if it could contain the object of the search.  United States v. Ross, 456 U.S. 798.  Ohio appellate courts have recognized that such a warrant (authorizing the search of curtilage) extends to permit search of motor vehicles located within the curtilage of the premises.  State v. Ballez, 2010-Ohio-4720.  The assumption seems to be that a vehicle should be viewed in the same way as any other personal effects found on the described premises.  Id.

Federal circuit courts have held that a premises search warrant also covers a vehicle that appears to be owned or controlled by the premises owner.  See United States v. Gottschalk, 915 F.2d 1459; United States v. Patterson, 278 F.3d 315.  In cases of warrantless searches on motor vehicles there is no distinction among packages or containers based on ownership.  Wyoming v. Houghton, 526 U.S. 295.  If there is probable cause to search the vehicle, police may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.  Id.

Based on the above, the appellate court found that if there is probable cause to search commercial premises – which is the basis on which a warrant for the premises would issue – a vehicle found on the premises may be searched if police officers have reason to believe that the vehicle is associated with the premises.

With that, the appellate court held that Nelms’ vehicle was covered by the search warrant and upheld the trial court’s ruling.

Tough break for Nelms!  But a very interesting argument to say the least!

How Improper Venue In A Criminal Trial Can Lead To An Acquittal

If you walked up to a first year law student and asked said law student to explain to you venue, you would most likely see fear in law student’s face before he/she took off in the opposite direction.  The concept of venue and jurisdiction is hammered into every first year law student’s through their Civil Procedure class.  Although venue and jurisdiction is usually taught outside of the criminal context, it is as just important for criminal cases.  So important, as we will discuss in State v. Baker, 2013-Ohio-2398, it can led to an acquittal of criminal charges.

In Baker, Baker was indicted on three counts of trafficking in marijuana, two counts of possession of marijuana, two counts of cultivation of marijuana, two counts of possession of criminal tools, and one count of engaging in a pattern of corrupt pattern, after an undercover narcotics investigation took place.  Said investigation was throughout Hamilton County, Butler County, and Warren County.

This marijuana bust all started with a juvenile named Pagenstecher.  The Warren County Drug Task Force began to investigate Pagenstecher on suspicion of drug trafficking.  During their investigation, the police determined that Pagenstecher’s marijuana supplier was Lopez, who in turn purchased his marijuana from a wonderful couple known as the Lampes.  The Lampes grew their own marijuana for distribution and also purchased marijuana grown by Baker.  Bake had two grow houses with about 350 marijuana plants.

Wanting to get to Baker, the Drug Task Force managed to get Pagenstecher to rat out Lopez, who ratted out the Lampes, who ratted out Baker.  Eventually the Drug Task Force made it to Baker’s warehouse located in Butler County.  It was from there that Baker was arrested.

After a bench trial, Baker appealed his conviction to the appellate court arguing that the trial court erred by convicting him in an improper venue.  Let’s see how Baker made out.

The Ohio Constitution establishes a defendant’s right to a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.  The Ohio State Supreme Court has stated that “the Ohio Constitution fixes venue, or the proper place to try a criminal matter.”  State v. Hampton, 2012-Ohio-5688.  Establishing the correct venue is imperative in order to give the defendant the right to be tried in the vicinity of his alleged criminal activity; the need to have venue is to limit the state from indiscriminately seeking a favorable location for trial or selecting a site that might be an inconvenience or disadvantage for the defendant.  State v. Meridy, 2005-Ohio-241.

The standard to establish venue is whether appellant has a significant nexus with the county where the trial was held, as determined by whether one or more of the elements of an offense occurred in the county in which the charge is brought.  State v. Stone, 2008-Ohio-5671.  Due to this, and pursuant to R.C. 2901.12, the trial of a criminal case in Ohio shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.

Although venue is not a material element of any offense charged, the state must nonetheless prove beyond reasonable doubt that the crime charged was committed in the county where the indictment was returned and the trial held, unless the issue of venue is waived by the defendant.  Meridy.  A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.  Hampton.

The venue statute provides that when an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof.  R.C. 2901.12.

The state, in Baker’s case, alleged that Warren County was the proper venue because Baker engaged in a pattern of corrupt activity within Warren County.  This was based on R.C. 2923.32 which states, “no person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.”

Through the indictment, the state was alleging that Baker directly or indirectly conducted or participated in corrupt activity with a group of persons associated-in-fact to traffic marijuana in Warren County.

To support its claim, the state produced evidence that Baker sold marijuana to the Lampes, that the Lampes sold marijuana to Lopez, that Lopez sold marijuana to Pagenstecher, and that Pagenstecher sold marijuana in Warren County.  Thus, an element of engaging in a pattern of corrupt activity occurred when Pagenstecher sold marijuana in Warren County thereby providing venue in Warren County.

The appellate court, however, was quick to point out that the state failed to prove beyond a reasonable doubt that Baker was direct or indirect participant in the corrupt activity of a group of persons associated-in-fact conducting the affairs of an enterprise in Warren County.  To further its point, the appellate court pointed out that the state did not prove that the marijuana that Baker sold to the Lampes was the same marijuana that was eventually sold in Warren County by Pagenstecher.

After finding that the state failed to prove venue beyond reasonable doubt, the appellate court went on to state that a judgment of acquittal is to be entered when the state fails to prove venue, and that such acquittal was a final verdict as that term is used in R.C. 2945.67. State v. Hampton, 2012-Ohio-5688.  Thus, double jeopardy is attached and bars the State of Ohio from prosecuting Baker on the alleged charges.

While reading the facts of the case, I found the whole “he sold weed to this guy, and that guy sold weed to this guy, and that guy sold weed to this guy” to be very weak.  That is up there with Adam Sandler’s singing in his hit song Mel Gibson, “I know a guy, who knows a guy, who knows Mel Gibson!”

Waiting On A Judge’s Decision And Speedy Trial Rights

If there is one thing for sure in the legal world, the wheels of justice turn at a very slow rate!  Waiting for a decision six months after the initial hearing date is not uncommon.  After all, most courts carry a heavy caseload with a copious amount of defendants filing pre-trial motions.

However, even with a heavy caseload, a court is still required to issue decisions in a reasonable amount of time.  How long does a court have to issue a decision was at issue in State v. Reppucci, 2017-Ohio-1313.

In Reppucci, Reppucci filed a motion to suppress relating from an OVI stop.  The prosecutor requested a pretrial prior to the hearing on the motion to suppress.  The trial court denied the prosecutor’s request by stating “the motion to suppress only raised two issues, reasonable suspicion for the initial detention and probable cause for the OVI arrest.  The court does not need to conduct a pretrial for a motion containing such limited issues.”

On June 27, 2014, the trial court held a hearing on the motion to suppress.  On December 14, 2015, the court issued its decision denying the motion to suppress.  Soon after, Reppucci moved to dismiss the case based on a violation his speedy trial rights.  Specifically, Reppucci argued that the motion to suppress remained pending for 535 days after the hearing on the motion.

The trial court denied the motion to dismiss finding the delay was “not unreasonable under all the circumstances considering the nature of the issues raised in the motion and the voluminous caseload handled in this single-judge municipal court.”

Reppucci appealed after his jury trial.

Ohio Revised Code 2945.71 to 2945.73 imposes a mandatory duty on the prosecution and the trial court to bring a defendant to trial in a timely fashion.  State v. Martin, 56 Ohio St.2d 289.  R.C. 2945.71 requires that a defendant shall be brought to trial within 90 days of the person’s arrest or the service of summons for a first degree misdemeanor.  R.C. 2945.72 allows this time period to be extended by any period of delay necessitated by a defendant’s motion.  R.C. 2945.73 states, “Upon a motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.”

A defense motion tolls speedy-trial time for a reasonable period to allow the State to respond and the court to rule on the motion.  State v. Sanchez, 2006-Ohio-4478.  This does not imply that a trial court has unbridled discretion in taking time to rule on a defense motion.  Id.  Rather, a trial judge is required to rule on motions “in as expeditious a manner as possible.”  Id.

The appellate court found, by the trial court’s own assessment, Reppucci’s motion was not complex either factually or legally.  Prior to the hearing, the trial court noted that it was faced with only two limited issues.

The entry denying the motion to dismiss refers vaguely to “the nature of the issues raised in the motion to suppress,” but it does not specifically discuss those issues.  Rather the focus of the denial was the size of the trial court’s docket.  The appellate court noted that it was not unsympathetic to the time demands on trial court judges, but that alone cannot justify a delay of over 17 months in ruling on a simple suppression motion.

Based on the above, the appellate court reversed the trial court’s decision denying Reppucci’s motion to dismiss and ordered the trial court to discharge Reppucci.

High-Crime Areas And The Fourth Amendment

I think The Kinks said it best through their song Slum Kids when it came to growing up in a tough part of town.

We’re just slum kids, and we know it,

And we never stood a chance.

We were dragged up from the gutter,

From the wrong side of the tracks.

However, living in a tough part of town does not strip you of your 4th Amendment rights, as the 8th District Court of Appeals pointed out in State v. Jackson, 2017-Ohio-1369.

In Jackson, Jackson was stopped by the Narcotic Gang Unit of the Cleveland Police Department.  At the time of the stop, Jackson and two other occupants were in his car that was parked along the side of the road.  Jackson’s vehicle, however, was parked in a high crime area.  Upon approaching Jackson’s vehicle, the detectives observed an open liquor bottle in the vehicle.

During the investigation, the detectives found a loaded handgun in Jackson’s jacket.  Jackson was arrested and charged with carrying a concealed weapon, improperly handling a firearm in a motor vehicle, and having weapons while under disability.

Jackson moved to have the evidence from the stop suppressed.  After hearing all testimony, the trial court overruled Jackson’s motion to suppress.  Jackson filed a timely appeal.

After reviewing the testimony from the motion to suppress hearing, the appellate court found that the state’s case “rests solely on the character of the area.”  State v. Pettegrew, 2009-Ohio-4981.

Specifically, a person parked in a high-crime area does not diminish the requirements of the Fourth Amendment.  State v. Locklear, 2008-Ohio-4247. Acts that are not specifically criminal in character do not become criminal because they are inapposite to their setting and therefore suspicious.  Id.  The setting can inform the officer’s judgment, but it does not make the act criminal.  Id.

The appellate court found that the detective did not articulate a sufficient basis for his reasonable suspicion that a crime was afoot at the time he initiated the investigatory stop.  Rather, the appellate court determined, the detectives initiated the traffic stop based on a mere hunch and their belief that Jackson’s parked vehicle was suspicious based on the character of the area.

Based on that, the appellate court reversed the trial court’s original decision.

Driving Too Slow And Reasonable Suspicion For An OVI Stop

Many, many, many moons ago, the hotel chain Fairfield Inn came up with a pretty funny commercial.  In the commercial, an executive was running late to a meeting and was traveling on a two lane highway.  Driving at a fast speed, the executive entered a No Passing Zone on the highway.  Unfortunately for the executive, there was an old couple driving there Cadillac going about 2 mph.  The commercial pans to the old man who began yelling at his wife, “SLOW DOWN you are going to get us killed!”  That was followed up with “You are driving like a bat out of Hades!”  To this day, I still get a laugh out of that commercial.

That little tidbit takes us to State v. Bacher, 2007-Ohio-727.

In Bacher, Bacher was traveling down the road when he was clocked by Officer Norton.  However, instead of finding a speeding infraction on the radar gun, Officer Norton found that Bacher was going at a very slow rate of speed.  In fact, Bacher was traveling about 23 mph under the posted speed limit in a 65 mph zone.  The appellate court noted Bacher’s speed as, “at a snail’s pace.”

Based on the slow speed, Officer Norton initiated a traffic stop.  During the traffic stop, Officer Norton noticed a strong order of alcohol on Bacher.  Bacher agreed to take the field sobriety tests and failed all three tests.  Bacher was then arrested for OVI.

Bacher moved to have the stop suppressed at the trial court level.  The trial court agreed with Bacher and suppressed the traffic stop.  The state appealed.

The appellate court opened up with, which I think is hilarious; “the Fourth Amendment applies even to fools.”  As you can tell, the appellate court really liked Bacher!  With that, let’s dive into some case law!

A reasonable suspicion represents something less than probable cause, but more than inchoate and unparticularized suspicion or hunch.  State v. Ramey, 129 Ohio App.3d 409.  When assessing whether reasonable suspicion existed, a reviewing court must consider the totality of the circumstances to determine whether the officer had a particularized and objective basis for suspecting wrongdoing.  U.S. v. Cortez, 449 U.S. 411.

Even legal conduct, under some circumstances, may justify a reasonable suspicion that criminal activity is afoot.  U.S. v. Sokolow, 490 U.S. 1.  But reasonable suspicion generally requires that there be a series of innocent acts that when viewed together, give an officer justification for further investigation.  Id.

The appellate court found that driving 42 and 43 mph in a 65 mph zone is not illegal or improper unless there is a posted minimum speed limit.  Ohio’s slow-speed statute requires that the slow-moving vehicle “impede or block the normal and reasonable movement of traffic.”

Based on the above, the appellate court found that slow driving alone does not create a reasonable suspicion of OVI, and upheld the trial court’s original decision.

If you ever get a chance to read the original opinion in Bacher, I highly recommend it.  Judge Painter does an excellent job of being very blunt and at the same time being very true to the law.