[Cite as State v. Travick,
2023-Ohio-460.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111662
v. :
KEVIN B. TRAVICK, JR., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-663446-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Lisa J. Turoso and Anthony T. Miranda,
Assistant Prosecuting Attorneys, for appellant.
James R. Willis, for appellee.
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, state of Ohio (“the state”), appeals an order granting
a motion to suppress filed by defendant-appellee, Kevin Travick, Jr. (“Travick”). The
state claims the following error:
The trial court erred in granting defendant’s motion to suppress.
We reverse the trial court’s judgment and remand the case to the trial
court for further proceedings.
I. Facts and Procedural History
Travick was charged with carrying a concealed weapon, having
weapons while under disability, and improperly handling firearms in a motor
vehicle. Following his indictment, Travick filed a motion to suppress evidence of the
firearm seized by police during a traffic stop. At a hearing on the motion, Officer
Colton Cramer (“Officer Cramer”) of the Garfield Heights Police Department
testified that on September 19, 2021, he was patrolling the area of Turney Town
Plaza at approximately 2:39 a.m. when he observed a “white SUV travel at a very
high rate of speed out of the parking lot.” (Tr. 13-14.) He followed the vehicle as it
traveled “45 miles per hour” in an area where the speed limit fluctuated between 25
and 35 miles per hour. (Tr. 15.)
Officer Cramer observed the vehicle make “a very, very wide right turn,”
which “crossed over the center lanes.” (Tr. 16.) He also observed that the driver did
not activate the turn signal when making the turn. (Tr. 16.) Eventually, the SUV
turned into a residential driveway on Russell Avenue, and Officer Cramer activated
his lights and siren just before the vehicle turned into the driveway. The driver
exited the vehicle, ran to the side door of the house, and attempted to get inside the
house, but the door was locked. (Tr. 17.)
Officer Cramer and his partner “grabbed” the driver, who was later
identified as Travick, and escorted him to the patrol car, which was parked in the
street. (Tr. 18.) Almost immediately following the stop, a woman exited the house
and asked what was going on. (Tr. 18.) Officer Cramer explained “what was going
on” and asked the woman to step aside momentarily, but she continually stated that
she needed to “grab something from the vehicle.” (Tr. 18.) Officer Cramer
repeatedly asked the woman to “just step away” and “wait until [they were] done.”
(Tr. 18.)
According to Officer Cramer, the woman opened the front driver’s side
door and tried to enter the vehicle. (Tr. 19.) Officer Cramer approached the car and
observed an open bottle of Patrón in the backseat. He explained:
At that point, you know, when I was up there by the vehicle with her, I
could see that there was an open bottle of Patrón in the backseat behind
the driver’s seat, rear seat. Several flakes of marijuana all over the
center console.
At that point, you know, I went and grabbed the Patrón. Made sure
there was no other signs of open containers inside the vehicle tucked
under the seat within reach. Investigate[d] the flakes of marijuana.
And then while I was leaning inside the vehicle, I observed a handle of
a handgun between the driver’s seat and the center console.
(Tr. 19.) He did not explain whether he saw the bottle of Patrón through the open
door or whether he saw it through the windows, which were dark and tinted. In any
case, the body-camera video shows Officer Cramer shining his flashlight into the car.
On direct examination, Officer Cramer further testified:
Q: At what point did you actually see the alcohol in the vehicle?
A: I believe it was when I ─ after talking to the female, when I had her
walk back, I asked what was the male’s name. When I was standing
there by the window, I was looking inside the vehicle. I could see the
open container right there.
(Tr. 24.)
On cross-examination, Officer Cramer stated that Travick was secured
in the patrol car before he went back and looked in the white SUV. (Tr. 35.) When
asked what he found in the car that was illegal, Officer Cramer replied that he found
“flakes of raw marijuana scattered across the center console” and “an open bottle of
Patrón.” Officer Cramer explained that he searched the car to determine if the bottle
of Patrón contained alcohol. (Tr. 43.) While he was investigating the Patrón, he
discovered the handgun between the driver’s seat and the center console.
Based on the evidence presented at the hearing, the trial court granted
the motion to suppress. In reaching this decision, the court explained on the record:
Based on the evidence presented and specifically on the body camera,
it appeared that Mr. Travick was detained. I don’t know if he was under
arrest at the time, but he clearly wasn’t free to leave the presence of the
officers, and certainly was not in grabbing distance of anything in the
vehicle.
But my issue is with the plain view doctrine. Those windows were so
tinted that unless the officer was shining a flashlight through those
windows trying to observe anything in the vehicle, nothing in that
vehicle in my estimation could be in plain view.
(Tr. 56.) The state now appeals the trial court’s judgment pursuant to Crim.R. 12(K).
II. Law and Analysis
In the sole assignment of error, the state argues the trial court erred in
granting Travick’s motion to dismiss.
A. Standard of Review
This court reviews a decision on a suppression motion under a mixed
standard of review. “In a motion to suppress, the trial court assumes the role of trier
of fact and is in the best position to resolve questions of fact and evaluate witness
credibility.” State v. Curry, 95 Ohio App.3d 93, 96,
641 N.E.2d 1172 (8th Dist.1994).
Therefore, a reviewing court must accept the trial court’s findings of fact in ruling
on a motion to suppress if the findings are supported by competent, credible
evidence. State v. Burnside,
100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71,
¶ 8. Accepting the facts as true, the reviewing court must independently determine,
without deference to the trial court, whether the trial court properly applied the
substantive law to the facts of the case.
Id. An appellate court reviews the trial
court’s application of the law to its factual findings under a de novo standard. State
v. Belton,
149 Ohio St.3d 165,
2016-Ohio-1581,
74 N.E.3d 319, ¶ 100.
B. The Search
The Fourth Amendment of the U.S. Constitution, which is enforceable
against the states through the Due Process Clause of the Fourteenth Amendment,
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.” Mapp v. Ohio, 367 U.S. 643, 655,
81 S.Ct. 1684,
6 L.Ed.2d 1081 (1961). Article I, Section 14 of the Ohio Constitution
has language almost identical to the Fourth Amendment and affords the same
protections against unreasonable searches and seizures. State v. Robinette,
80 Ohio
St.3d 234, 245,
685 N.E.2d 762 (1997).
There are, however, exceptions to the Fourth Amendment’s warrant
requirement. Although stopping an automobile and detaining its occupants
constitutes a “seizure” under the Fourth Amendment, “a traffic stop is
constitutionally valid if an officer has a reasonable and articulable suspicion that a
motorist has committed, is committing, or is about to commit a crime.” State v.
Mays, 119 Ohio St.3d 406,
2008-Ohio-4539,
894 N.E.2d 1204, ¶ 7, citing Delaware
v. Prouse,
440 U.S. 648, 663,
99 S.Ct. 1391,
59 L.Ed.2d 660 (1979). See also Dayton
v. Erickson,
76 Ohio St.3d 3, 11,
665 N.E.2d 1091 (1996) (“Where an officer has an
articulable reasonable suspicion or probable cause to stop a motorist for any
criminal violation, including a minor traffic violation, the stop is constitutionally
valid ….”).
It is undisputed that the Garfield Heights police had probable cause to
initiate a traffic stop. Officer Cramer testified that Travick’s vehicle was speeding,
crossed the center lane, and failed to use a turn signal. (Tr. 13-16.) Each traffic
infraction justified the stop. Therefore, the traffic stop was legal, and the sole issue
here is whether the search was constitutional.
1. Plain View
The state argues the trial court erred in concluding that the plain-view
exception to the warrant requirement was inapplicable because Officer Cramer used
a flashlight to see inside the vehicle. The state contends the use of flashlights to see
inside a dark car is legal and does not preclude application of the plain-view doctrine.
The plain-view doctrine holds that “objects falling in the plain view of
an officer who has a right to be in the position to have that view are subject to seizure
and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236,
88
S.Ct. 992,
19 L.Ed.2d 1067 (1968). Under the plain-view doctrine, “an officer may
seize an object in plain view without a warrant if (1) the police are not violating the
Fourth Amendment in arriving in the place where the evidence was found; (2) the
incriminating character of the evidence is immediately apparent; and (3) the police
have a lawful right to access the object itself.” State v. Halczyszak,
25 Ohio St.3d
301, 303,
496 N.E.2d 925 (1986); Horton v. California,
496 U.S. 128, 136-137,
110
S.Ct. 2301,
110 L.Ed.2d 112 (1990).
The United States Supreme Court and this court have held that an
officer’s use of a flashlight to see contraband does not preclude application of the
plain-view doctrine. United States v. Dunn, 480 U.S. 294,
107 S.Ct. 1134,
94 L.Ed.2d
326 (1987); State v. Thurman, 8th Dist. Cuyahoga No. 78230,
2001 Ohio App.
LEXIS 4767 (Oct. 25, 2001).
In Thurman, a police officer approached an occupied vehicle and
suspected the occupants were illegally drinking alcohol. The officer “shined a
flashlight into the interior” of the car where he observed the butt of a firearm
protruding between the driver’s leg and the center console. Id. at 2. The officer and
his partner placed the occupants under arrest. During an inventory search of the
vehicle, the officers found crack cocaine in the glove compartment.
Thurman filed a motion to suppress, challenging the propriety of the
police search that led to his arrest. The motion was denied. On appeal, this court
held that the search was valid because the officer observed the gun in plain view. Id.
at 7. Moreover, we held that “[t]he use of a flashlight during the evening hours does
not change our analysis of whether the firearm was in plain view.” Id., citing State
v. Lang, 117 Ohio App.3d 29,
689 N.E.2d 994 (1st Dist.1996). See also Cleveland v.
Ogletree, 8th Dist. Cuyahoga No. 36045,
1977 Ohio App. LEXIS 7557 (Apr. 28, 1977)
(police seizure of gun in plain view was valid because “the police officer had the right
to flash his light into the defendant’s car”).
Therefore, Officer Cramer’s use of a flashlight was permissible and did
not preclude application of the plain-view doctrine. The evidence showed that
Officer Cramer could see the open bottle of Patrón from outside the vehicle, albeit
with the help of the flashlight. And since the car was legally stopped for a traffic
violation, Officer Cramer did not violate the Fourth Amendment in arriving at the
place where the evidence was found. The trial court’s decision on the plain-view
doctrine is, therefore, contrary to law.
2. Automobile Exception
Although the trial court granted the motion to suppress based on an
erroneous application of the plain-view doctrine, Travick argued in the trial court
that the search of his car was illegal pursuant to Arizona v. Gant, 556 U.S. 332,
129
S.Ct. 1710,
173 L.Ed.2d 485 (2009), and State v. Clay, 8th Dist. Cuyahoga No. 91942,
2009-Ohio-2725. The state, on the other hand, argued that the search was legal
pursuant to the automobile exception to the warrant requirement.
In Arizona v. Gant, the United States Supreme Court held that
“[p]olice may search a vehicle incident to a recent occupant’s arrest only if the
arrestee is within reaching distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains evidence of the offense of
arrest.” Id. at 351. Here, it is undisputed that the first rationale in Gant is not met
because Travick was secured in the police vehicle at the time of the search. And
because Travick was not under arrest prior to the search, the second rationale in
Gant is also inapplicable.
In State v. Clay, 8th Dist. Cuyahoga No. 91942, 2009-Ohio-2725, this
court held that “‘police may not seize a defendant’s car and conduct an inventory
search following a defendant’s arrest where it was legally parked and no public
concern existed which required the removal of the car from its legally parked place.’”
Id., quoting State v. Ross, 8th Dist. Cuyahoga No. 62215,
1993 Ohio App. LEXIS
2622 (May 20, 1993), citing State v. Collura,
72 Ohio App.3d 364,
594 N.E.2d 975
(8th Dist.1991). We find Clay equally inapplicable because Travick was not under
arrest at the time of the search. The state did not search Travick’s car incident to
arrest. Therefore, neither Gant nor Clay are applicable here.
Moreover, the state argued that Officer Cramer conducted the search
pursuant to the automobile exception to the warrant requirement. The automobile
exception to the warrant requirement allows an officer to search a vehicle when
there is probable cause to believe it contains contraband. State v. Young, 8th Dist.
Cuyahoga No. 106211, 2018-Ohio-3047, ¶ 13, citing State v. Moore,
90 Ohio St.3d
47, 52,
734 N.E.2d 804 (2000). The rationale behind the automobile exception is
two-fold (1) vehicles are mobile, and (2) there exists a lesser expectation of privacy
in a vehicle. California v. Carney,
471 U.S. 386, 391,
105 S.Ct. 2066,
85 L.Ed.2d 406
(1985).
In State v. Mason-Gaul, 11th Dist. Ashtabula No. 2003-A-0109, 2005-
Ohio-1561, two police officers approached a woman sitting in a parked car and
noticed an open can of beer on the floor of the car, in violation of R.C. 4301.62(B)(4).
Upon removing the beer can from the car, one of the officers noticed loose marijuana
on the floor of the car. The officer then searched the vehicle and defendant’s purse,
where he found partially smoked marijuana cigarettes, baggies of marijuana, and a
glass pipe. The appellate court held that the discovery and removal of the beer can
was reasonable under the “plain-view” doctrine to the Fourth Amendment. The
court further held that, under the automobile exception to the warrant requirement,
the discovery of marijuana constituted probable cause to search the remainder of
the vehicle, including the defendant’s purse, where additional marijuana could be
concealed. The appellate court, therefore, affirmed the denial of the defendant’s
motion to suppress.
As in Mason-Gaul, Officer Cramer observed an open bottle of Patrón
and loose marijuana in the car Travick was driving, in violation of R.C.
4301.62(B)(4) and 2925.11, which prohibits the possession of marijuana. Thus,
Officer Cramer’s observation of these prohibited items gave rise to probable cause
to search the vehicle under the automobile exception. During the search, Officer
Cramer discovered a handgun. Pursuant to the automobile exception, the discovery
of the handgun was lawful. Therefore, the trial court erred in granting Travick’s
motion to suppress.
The sole assignment of error is sustained.
Judgment is reversed and case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and
SEAN C. GALLAGHER, J., CONCUR
