State v. Chappell

2020 Ohio 2956

STATE OF OHIO Plaintiff-Appellant v. SEAN CHAPPELL Defendant-Appellee

Appellate Case No. 28598

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

May 15, 2020

Trial Court Case No. 2019-CR-1867

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

CHRISTOPHER W. THOMPSON, Atty. Reg. No. 0055379, Public Defender's Office, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

DONOVAN, J.

{¶ 1} The State of Ohio appeals from the trial court's order granting Sean Chappell's motion to suppress. Chappell had been indicted on one count of improper handling of a firearm in a motor vehicle. The trial court concluded that the State had failed to establish that the firearm found inside Chappell's vehicle was in plain view exception to the search warrant requirement. We affirm the trial court's order.

{¶ 2} On July 16, 2019, Chappell was indicted on one count of improper handling of a firearm in a motor vehicle (loaded, no license), in violation of R.C. 2923.16(B), and the trial court entered a plea of not guilty on his behalf. On August 12, 2019, Chappell filed a motion to suppress, arguing that the police unlawfully detained and searched him and his automobile without reasonable suspicion or probable cause.

{¶ 3} A hearing was held on the motion to suppress on September 30, 2019. The evidence presented at the suppression hearing was as follows.

{¶ 4} Detective Tyler Orndorff of the Dayton Police Department ("DPD"), who was a "drug detective" assigned to the "Narcotics Bureau, Street Crimes, Nights Unit," testified that on the afternoon of June 6, 2019, he and Detective Zach O'Diam were involved in "a crime blitz" targeting violent crime areas. There had been a recent homicide near the DeSoto Bass area, and he and O'Diam were assigned in that area; they were in plain clothes and in an unmarked vehicle. According to Orndorff, their purpose during the crime blitz was to conduct surveillance of individuals they believed might be selling narcotics and/or in possession of firearms, especially in and around the DeSoto Bass area, due to the recent violent crime there.

{¶ 5} Orndorff testified that, on June 6, 2019, he and O'Diam witnessed a blue Chevy Malibu on Clement Avenue that was parked next to a home that appeared to be vacant. This was significant to the officers because, in Orndorff's experience and training, he had witnessed numerous drug activities occur in abandoned homes. Orndorff testified that he concluded that the home where the Malibu was parked was abandoned because the shades were closed and the grass was overgrown.

{¶ 6} Orndorff testified that he and O'Diam were able to observe the features, clothing, and hairstyles of the driver and passenger in the vehicle. The vehicle left the vacant home after they had observed it for about ten minutes, travelling south on Clement and turning east on Weaver Street. Orndorff testified that the vehicle began to "pick up speed" in a residential area and travel in excess of the posted speed of 25 miles per hour. Orndorff testified that the officers were unable to keep up with the vehicle, but they saw it turn south onto Trieschman Avenue; they lost sight of the vehicle for approximately two minutes, and then observed it again on Miami Chapel Road, in front of "shotgun-style apartments." At that time, they continued to conduct surveillance; the vehicle was "parked facing east on the north side of the curb, so it was parked illegally" on Miami Chapel Avenue.

{¶ 7} Orndorff contacted a uniformed crew to make a stop for the parking infraction and the speeding that he and O'Diam had witnessed. He and O'Diam provided the plate number, the make, model, and color of the vehicle, a description of the driver, and the number of persons inside the vehicle. Sgt. Ryan Halburnt subsequently arrived in a marked cruiser and made a traffic stop of the vehicle.

{¶ 8} Orndorff testified that while Halburnt was initiating the traffic stop, Orndorff observed Chappell approaching the vehicle on foot; Orndorff recognized Chappell as the driver of the vehicle. According to Orndorff, in the course of his surveillance of the vehicle, he had seen that the driver had "short, twisty braids, or almost small, short dreads"; Orndorff was "100 percent able to identify [Chappell]" at the traffic stop by "his hair, his size, his height, color of his t-shirt."

{¶ 9} A cruiser camera video from Halburnt's cruiser was played for the court. Orndorff identified Chappell in the video as the person in a white t-shirt approaching the parked Malibu. Halburnt approached Chappell. Orndorff identified himself on the video as the person exiting the passenger side of the unmarked cruiser and crossing in front of Halburnt's cruiser. Orndorff testified as follows about O'Diam's approach of the passenger side of Chappell's vehicle, as depicted in the video:

[PROSECUTOR] Q. And the individual in the black vest, is that * * * Det. O'Diam?

A. Yes, it is.

Q. And when he opens the door and pulls that passenger out, does he relay information to you?

A. Yeah, he - - at some point, he relays information that there is a firearm inside the vehicle. I believe that he see [sic] it - - he seen it before he - -

[DEFENSE COUNSEL]: Objection to - -

A. - - opened the door.

[DEFENSE COUNSEL]: - - everything that O'Diam told him.

THE COURT: I believe in a motion to suppress, there's some - - is it special? Hearsay is generally admissible, right, on the motion to suppress? * * *

[PROSECUTOR]: Yes, Your Honor. * * *

THE COURT: Plus, this is kind of - it's just, I, police - -

[DEFENSE COUNSEL]: * * * I believe it's up to the discretion of the Court, but if he's just setting the scene up, that is something that is acceptable. But for the purpose of setting the scene, not for the truth of whether or not O'Diam saw anything.

THE COURT: Overruled, with that understanding.

BY [PROSECUTOR]:

Q. So he related information to you about a location of a gun; did you later see that gun that he was talking about?

A. I did.

Q. And can you describe where you saw it?

A. * * * It was in the driver's side door, in the compartment of the driver door.

Q. And from the vantage point of where O'Diam is, would that have been visible to him - -

A. Yes, it would be.

Q. - - based off of what - - where you saw the gun?

A. That is correct.

{¶ 10} On cross-examination, Orndorff testified that the officers did not observe anyone approach the vehicle while it was parked near the abandoned home during their prior surveillance of the Malibu.

{¶ 11} The cruiser camera video was played again for the court, and Orndorff identified Halburnt's voice in the video. When asked to describe his own actions in the video, Orndorff responded that due to Chappell's actions, which included "beginning to pull away" and not allowing Halburnt to conduct a pat-down, he (Orndorff) went to assist Halburnt with the traffic stop. Orndorff testified that he was not familiar with Chappell and did not have any information that Chappell was armed and dangerous.

{¶ 12} Orndorff identified O'Diam in the video, the following exchange occurred:

[PROSECUTOR] Q. * * * Now * * * so this is a traffic complaint. Do you know why [O'Diam] walks to the automobile to extract the passenger?

A. Well, if you're referring to why he removed the passenger, the passenger was removed because of the gun that was inside the vehicle - -

Q. Okay.

A. - - that was in plain view.

Q. At what point was the gun seen?

A. I can't speak to when Det. O'Diam saw it, but I'd assume that he saw it as soon as he walked up to the vehicle because from my vantage point, when I looked inside the vehicle, it was readily available and at hand in the driver compartment - -

Q. Okay.

A. - - side door there.

Q. Now - - when you looked in the vehicle, correct?

A. Yes, when I looked.

Q. But we have no idea, at this point - - okay. First of all, we agree he is not in the uniform of the day. He is not in a typical police uniform, correct?

A. Correct.

Q. So is he assisting in a traffic stop right now?

A. Yes, he would be.

Q. * * * Is that ordinary, for undercover to assist?

A. It does happen quite frequently, yes.

* * *

Q. - - it happens because you call ahead because you are suspicious of an individual, correct?

A. Sure, yeah. I believe that.

Q. * * * You have a hunch. There's a hunch something's going on, right?

A. Yeah. Yeah.

Q. And then what you do is you tell a uniform crew to do a traffic stop, and then you explore that hunch a bit more, correct?

A. I believe that's fair.

Orndorff also testified that Halburnt was wearing a microphone in the course of the traffic stop, that he (Orndorff) was not, and that his and O'Diam's vehicle did not have a camera.

{¶ 13} On redirect examination, Orndorff testified that Chappell was cited for the parking violation; Chappell was detained for the "traffic stop, both the speeding and the parking infraction," and not based upon the officers' observation of him by the abandoned home. No contraband was found on Chappell's person. Orndorff testified that O'Diam's vest at the scene identified him as a member of law enforcement and that O'Diam was no longer employed with the DPD, but was employed as a DEA agent.

{¶ 14} Sergeant Ryan Halburnt of the DPD testified that he had more than 21 years of law enforcement experience and that, in the course of his work, he encountered narcotics daily. On June 6, 2019, Halburnt initiated a traffic stop on Chappell's vehicle, based on information from Orndorff and O'Diam that they had observed the vehicle parked for an extended period of time at a vacant house, started to follow the vehicle but lost sight of it, then found it a short time later, parked illegally. Halburnt testified as follows:

[PROSECUTOR]

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