[Cite as State v. Warner,
2014-Ohio-1874.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2013-P-0056
- vs - :
RAYMOND ALAN WARNER, :
Defendant-Appellee. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR
00246.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich,
Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Dennis Day Lager, Portage County Public Defender, 449 South Meridian Street, Fourth
Floor, Ravenna, OH 44266 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, the state of Ohio, appeals the judgment of the Portage County
Court of Common Pleas granting the motion of appellee, Raymond Warner, to suppress
all evidence discovered during the inventory search of a vehicle he was driving when
stopped by police. At issue is whether appellee had standing to challenge the search.
For the reasons that follow, we reverse and remand.
{¶2} Appellee was indicted in a four-count indictment charging him with illegal
assembly or possession of chemicals for the manufacture of drugs, a felony of the third
degree, in violation of R.C. 2925.041(A)(C); domestic violence, a felony of the fifth
degree, in violation of R.C. 2919.25(A); aggravated possession of methamphetamine, a
Schedule II controlled substance, a felony of the fifth degree, in violation of R.C.
2925.11(A)(C)(1)(a); and driving under suspension, a misdemeanor of the first degree,
in violation R.C. 4510.11(A). After pleading not guilty, appellee filed a motion to
suppress all evidence obtained in a warrantless search of an automobile.
{¶3} Officer Dominic Poe of the city of Kent Police Department testified that on
March 29, 2013, while on duty in uniform and in a marked cruiser, he was parked
across the street from a gas station on South Water Street in Kent. At that time he
noticed a 2002 Mercury exit the gas station parking lot onto Hall Street.
{¶4} The Mercury stopped at a stop sign at the intersection of Hall Street and
Franklin Avenue and then turned onto Franklin Avenue while failing to signal.
{¶5} Officer Poe began following the Mercury on Hall Street and then onto
Franklin Avenue in order to get behind the car. When the Mercury turned onto West
Elm Street, Officer Poe activated his overhead lights and siren in order to make a traffic
stop due to the driver’s turn-signal violation.
{¶6} The Mercury suddenly pulled into a driveway on West Elm Street and
stopped. Officer Poe pulled up behind the Mercury in the driveway with his overhead
lights still activated. The driver of the Mercury, later identified as appellee, exited the
Mercury, turned around, and looked back at Officer Poe. The officer exited his cruiser
and yelled at appellee to stop. However, appellee did not stop and instead took off
running, leaving the Mercury in the driveway.
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{¶7} Officer Poe said there was another male in the front passenger seat of the
Mercury, and, as a result, the officer could not pursue appellee.
{¶8} Officer Poe ran a registration check of the Mercury and found it was
owned by a female, Caitlyn Gray. Officer Poe learned the vehicle’s owner did not live at
the property where appellee had parked the Mercury.
{¶9} Officer Poe called dispatch, providing appellee’s description and asking for
backup. When a second officer arrived, Officer Poe got the passenger out of the
Mercury. The passenger gave his name, but said he did not know the name of the
driver. After being detained for a short time, the passenger was released.
{¶10} Officer Poe said that, because the Mercury was “abandoned,” he called
dispatch for a tow. He said he conducted an inventory search at the scene before the
car was towed. As part of the inventory, the officer found methamphetamine in a
container on the driver’s side of the car. He also found a purse belonging to the owner
of the car, Ms. Gray, in the back seat.
{¶11} Officer Poe then opened the trunk of the Mercury and discovered
contraband inside. First, he found a digital scale with powder residue in the spare tire
area. He also found a luggage bag containing packs of lithium batteries and appellee’s
social security card. Also in the trunk, Officer Poe found a backpack containing
aluminum foil, a pipe cutter, and a Powerade bottle containing suspected muriatic acid.
{¶12} On cross-examination, Officer Poe said he does not know the Kent Police
Department’s inventory policy. He said he could not remember when he read it. He said
that, although he knew the suppression hearing involved the legality of the inventory
search, he did not bring the policy to court with him. Further, he said that, because he
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does not know the department’s inventory policy, he cannot say whether he acted in
conformity with it.
{¶13} Appellee presented no testimony or other evidence in opposition to Officer
Poe’s testimony. The officer’s testimony was thus undisputed.
{¶14} In closing argument, appellee argued Officer Poe’s inventory search of the
Mercury was unconstitutional because the officer could not say what the department’s
policy was or whether he acted in conformity with it. In response, the state argued
Officer Poe’s inventory search was constitutional because, the state contended, the
department has an inventory policy and Officer Poe followed it. In any event, the state
argued that appellee lacked standing to file his motion to suppress for two reasons.
First, the Mercury was not owned by appellee; he was merely driving it. Second,
appellee fled from the Mercury and thus abandoned it. In rebuttal, appellee argued that
because he was “in lawful possession” of the Mercury, he was, in effect, the owner of
the vehicle and thus had standing.
{¶15} Following the hearing, the trial court entered judgment granting appellee’s
motion to suppress. In support of its conclusion, the court noted that Officer Poe was
unable to articulate the specifics of the Kent Police Department’s inventory policy or
whether he conformed to that policy in conducting his inventory search. The court did
not rule on or even address the state’s objection regarding standing.
{¶16} The state appeals, asserting two assignments of error. They allege:
{¶17} “[1.] In error, the trial court found an inventory search of a vehicle
unreasonable based on the court’s findings of fact that were against the manifest weight
of the evidence.
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{¶18} “[2.] The trial court erred to the prejudice of the state in suppressing
evidence seized from a vehicle Warner had driven, pursuant to an inventory search,
when Warner failed to establish standing to challenge the search.”
{¶19} Because our ruling on the state’s second assignment of error is dispositive
of this appeal, we address the assignments of error out of order and first address the
second assigned error.
{¶20} Appellate review of a trial court's ruling on a motion to suppress evidence
presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, ¶8. An appellate court reviewing a motion to suppress is bound to accept
the trial court’s findings of fact where they are supported by competent, credible
evidence. State v. Guysinger,
86 Ohio App.3d 592, 594 (4th Dist.1993). Accepting
these facts as true, the appellate court independently determines as a matter of law,
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard. State v. Williams,
86 Ohio App.3d 37, 41 (4th Dist.1993); State v. Djisheff,
11th Dist. Trumbull No. 2005-T-0001,
2006-Ohio-6201, ¶19.
{¶21} Further, Fourth Amendment rights are “personal rights which … may not
be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133 (1978).
{¶22} “[T]he issue of standing is a threshold determination in analyzing whether
a defendant’s constitutional rights were violated.” State v. Mock, 11th Dist. Lake No.
2012-L-066, 2013-Ohio-874, ¶11. “It is rudimentary that one does not have standing to
object to a search and seizure of property that he has voluntarily abandoned.” State v.
Freeman,
64 Ohio St.2d 291, 296-297 (1980). “The government bears the burden of
establishing, by a preponderance of the evidence, that the defendant abandoned the
property at issue.” State v. Dennis,
182 Ohio App.3d 674,
2009-Ohio-2173, ¶41 (2d
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Dist.). In support of its holding, the Supreme Court in Freeman, cited several cases
showing that abandonment can occur in a wide variety of contexts. Specifically, with
respect to automobile searches, the Court in Freeman cited United States v. Edwards,
441 F.2d 749 (5th Cir.1971), in which the Fifth Circuit held that the search of a car trunk
was lawful when the defendant abandoned the vehicle and fled on foot after a high
speed chase with police. As additional support for its holding in Freeman, the Supreme
Court cited United States v. Moore,
459 F.2d 1360 (D.C. Cir.1972), in which the Circuit
Court for the District of Columbia held that the warrantless search of a vehicle was
lawful when the automobile involved in a robbery was abandoned after the vehicle went
out of control.
{¶23} Moreover, the Supreme Court in Freeman, supra, provided guidance
concerning the determination of whether a defendant’s conduct constitutes
abandonment, as follows:
{¶24} “Abandonment is primarily a question of intent, and intent may be
inferred from words spoken, acts done, and other objective facts. *
… All relevant circumstances existing at the time of the alleged
abandonment should be considered. … Police pursuit or the
existence of a police investigation does not of itself render
abandonment involuntary. … The issue is not abandonment in the
strict property-right sense, but whether the person prejudiced by the
search had voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question so that he could
no longer retain a reasonable expectation of privacy with regard to
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it at the time of the search.” (Emphasis added.) Id., quoting United
States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973).
{¶25} In Freeman, the defendant tried to deceive the arresting officer into
believing that he would cooperate, following which he suddenly dropped his luggage in
a public bus station and fled on foot from the scene of the arrest. The Supreme Court in
Freeman held that “[a]s far as appellant was concerned the luggage was bona vacantia
[i.e., unclaimed goods], and, therefore, its search was proper. Id. at 298.
{¶26} We note that Freeman has been repeatedly followed by Ohio courts. E.g.
State v. Gould, 131 Ohio St.3d 179,
2012-Ohio-71, ¶30.
{¶27} The Second District applied Freeman in State v. Mathews, 2d Dist.
Montgomery No. 19120, 2002-Ohio-4970, a case quite similar to the one before us. In
Matthews, the officer pulled the defendant over for a marked-lanes violation. Before
stopping the defendant, the officer learned that the vehicle he was driving was
registered to a female. When the officer approached the car, the defendant fled. The
officer opened the door and saw two containers of liquid in the vehicle, which the officer
suspected was methamphetamine. The Second District held that the defendant lacked
standing because he voluntarily abandoned the vehicle. Id. at ¶18. The court held that
the defendant’s abandonment was voluntary because it was the product of his own
decision to run off and leave the car. Id. at ¶19. The court held that the defendant’s act
of running away from the car “was a total and unequivocal abandonment of any
reasonable expectation of privacy the law might afford him in the vehicle and its
contents.” (Emphasis added.) Id.
{¶28} Here, the undisputed testimony is that after Officer Poe activated his
overhead lights and siren, appellee pulled the Mercury into a random driveway and
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stopped the car. Officer Poe immediately pulled into the driveway behind him. As
appellee left the Mercury and looked back at Officer Poe, the officer left his cruiser and
yelled, “stop.” Appellee then fled on foot. In doing so, appellee abandoned the vehicle
and its contents. “The legal effect of the abandonment … [was] to deprive [appellee]
of standing to challenge the subsequent search.” Freeman, supra.
{¶29} Significantly, appellee does not dispute that he voluntarily abandoned the
Mercury or its contents. Nor does he discuss the effect of his abandonment on his
standing to challenge the search. Moreover, he does not cite or even attempt to
distinguish Freeman, supra.
{¶30} Further, we note that appellee does not challenge the legality of the initial
stop. Thus, he does not argue an illegal stop rendered his abandonment of the vehicle
involuntary. “‘When a person disposes of or abandons property in response to illegal
police conduct, such as an illegal seizure or search, that person is not precluded from
challenging the admissibility of the evidence because his act of abandonment is not
voluntary[; it] is a product or fruit of that illegal police conduct.’” (Emphasis added.)
State v. Taylor, 8th Dist. Cuyahoga No. 94853, 2011-Ohio-1554, ¶30, quoting State v.
Cosby,
177 Ohio App.3d 670,
2008-Ohio-3862, ¶32 (2d Dist.).
{¶31} It is undisputed that Officer Poe stopped appellee as a result of his failure
to make a turn signal. This court has held that an officer’s observation of any traffic law
violation constitutes sufficient grounds to stop the vehicle observed violating the law.
State v. Howard, 11th Dist. Lake No. 2009-L-158, 2010-Ohio-2817, ¶17, citing Dayton v.
Erickson,
76 Ohio St.3d 3, 11-12 (1996). Since appellee’s abandonment of the car was
not the product of an illegal stop, his abandonment was voluntary. Taylor, supra.
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{¶32} We further note the trial court made no findings regarding abandonment.
In such circumstances, we would generally remand to the trial court to make findings.
However, the evidence on this issue was undisputed. Also, the court found Officer Poe
to be credible because, based on his testimony, the court found that appellee ran away
from the car and that appellee did not own it. The officer’s unrebutted testimony
supports a finding that appellee voluntarily abandoned the car.
{¶33} We find the following commentary by the Second District in State v. Bruce,
2d Dist. Montgomery No. 14589, 1995 Ohio App. LEXIS 1690 (Apr. 28, 1995), which
addressed similar circumstances, to be pertinent and sound:
{¶34} [I]n this case, the trial court made no finding as to whether Bruce
“abandoned” the crumpled-up, brown paper bag for purposes of the
Fourth Amendment. Ordinarily, we would remand this case to allow
the trial court to make that determination. However, we believe that
remanding this matter to allow the trial court to determine if Bruce
voluntarily abandoned the bag would constitute a gratuitous
expenditure of judicial resources. In this case, the evidence
showing a voluntary abandonment is both overwhelming and
uncontradicted. Furthermore, it is clear from its decision and entry
that the trial court found the officers’ testimony, including their
account of how Bruce threw the bag down, to be credible. The
officers’ description of how Bruce discarded the bag, which was
unrebutted, fully supports a finding that Bruce abandoned the bag
voluntarily, and any finding to the contrary, on this record, would
have constituted error. Id. at *7-*8.
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{¶35} For the reasons articulated by the Second District in Bruce, a remand for
the court to rule on the issue of abandonment in these circumstances would result in a
needless waste of judicial resources and would be a vain act because the undisputed
evidence could only result in a finding that appellee lacked standing and voluntarily
abandoned the vehicle.
{¶36} We therefore hold that, because appellee lacked standing, the trial court
erred in addressing the merits of his motion to suppress.
{¶37} The state’s second assignment of error is sustained.
{¶38} In light of this court’s disposition of the state’s second assigned error, its
first assignment of error is moot.
{¶39} For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Portage County Court of Common Pleas is
reversed, and this matter is remanded to the trial court for further proceedings
consistent with the opinion.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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