State v. Garrett

123 N.E.3d 327

2018 Ohio 4530

STATE of Ohio, Plaintiff-Appellee

v.Thomas E. GARRETT, Defendant-Appellant

No. 27630

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on November 9, 2018

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio 45402, Attorney for Defendant-Appellant

OPINION

WELBAUM, P.J.

{¶ 1} Defendant-appellant, Thomas E. Garrett, appeals from his conviction in the Montgomery County Court of Common Pleas after he pled no contest to possession of cocaine. In support of his appeal, Garrett contends the trial court erred in overruling his motion to suppress the drug evidence, because the investigating officers discovered the drug evidence as a result of an illegal search and seizure. For the reasons outlined below, the judgment of the trial court will be affirmed in part, reversed in part, and remanded for further proceedings.

Facts and Course of Proceedings

{¶ 2} On December 28, 2016, the Montgomery County Grand Jury returned a two-count indictment charging Garrett with possession of cocaine in an amount less than five grams and trafficking cocaine in an amount less than five grams, both felonies of the fifth degree. The charges arose after police officers recovered crack cocaine from an apartment occupied by Garrett and from Garrett's person.

{¶ 3} Garrett initially pled not guilty to the charges and filed a motion to suppress. In the motion to suppress, Garrett argued that the officers discovered the drug evidence at issue by illegally searching the apartment he was occupying and his person.

On February 10, 2017, the trial court held a hearing on the motion to suppress.

{¶ 4} At the suppression hearing, the State presented testimony from Officer Jonathan Miniard of the Dayton Police Department. Miniard testified that he was part of the Greater Dayton Premier Task Force, which assists with drug complaints throughout Dayton. According to Miniard, the task force primarily responds to complaints involving Greater Dayton Premier Properties, a subsidized housing provider. Miniard testified that the head of security at Greater Dayton Premier Management, Jim Goodwill, notified him of drug complaints at the Hilltop Apartment Complex, which is part of Greater Dayton Premier Properties. The complaints were that two males, one of whom had the last name of Shaw, were selling drugs out of an apartment located at 607 Groveland Avenue.

{¶ 5} After receiving the complaints, Miniard testified that he investigated the matter by looking at Hilltop's resident list, which listed an individual by the name of Jenkins as the resident of 607 Groveland Avenue. Miniard also used an online system to research the name Shaw. In doing so, Miniard pulled a photograph of an individual named Rodney Shaw, who had an outstanding warrant for his arrest and was rumored to be located in the area in question.

{¶ 6} Following this research, Miniard testified that on November 23, 2016, he and Officer Halloway were driving by 607 Groveland Avenue when they noticed that the front door to the apartment was open. Miniard testified that he had gone to the apartment earlier in the week to speak with the resident regarding the drug complaints, but no one was home. Since he saw the front door was open, Miniard testified that he and Halloway decided to stop and see if they could make contact with the resident.

{¶ 7} Before making contact, Miniard testified that he called Officer Rose to assist at the scene. After Rose arrived, Miniard and Rose approached the front of the residence while Halloway went to the back. Miniard testified that the main door to the apartment was half-way open and that the screen door was closed. Miniard claimed that Rose knocked on the screen door, which prompted an occupant inside the residence, later identified as Garrett, to approach the doorway and fully open the main door to the apartment. During this time, another occupant stood up in the living room to see what was going on. Miniard testified that Rose then opened the screen door to communicate with Garrett. Miniard testified that when Rose opened the screen door he did not step into the apartment, but stayed at the threshold.

{¶ 8} Continuing, Miniard testified that when he and Rose made contact with Garrett, Garrett advised that the resident, Jenkins, was not at home. Garrett also told the officers that he lived at the apartment, which Miniard testified was a violation of Greater Dayton Premier Properties' rules since Jenkins was the only resident named on the lease. Miniard also testified that he immediately noticed a strong odor of marijuana emanating from inside the residence, which was also a violation of property rules. According to Miniard, both of these violations were grounds for being trespassed and evicted from the property.

{¶ 9} While communicating with Garrett outside the threshold of the apartment, Officer Rose asked Garrett to step aside and for the other occupant to come forward. When the other occupant came forward, Miniard testified that he realized the occupant was Shaw, the individual with the outstanding warrant for his arrest. When Garrett stepped aside, Miniard also testified that he saw a scale and a plastic baggie containing a white, rock-like substance sitting atop some junk mail on a large, plastic storage bin that was located in the living room of the apartment. Miniard testified that the plastic storage bin was only five feet from the front door. Miniard further testified that the white, rock-like substance appeared to be crack cocaine. Thereafter, the officers entered the residence to effectuate the arrest of Shaw and to collect the drug evidence observed in plain view in the living room.

{¶ 10} Before placing Shaw under arrest, Miniard testified that he conducted a pat-down search on Shaw, which yielded marijuana. Meanwhile, Rose conducted a pat-down search on Garrett, which also yielded marijuana. Rose then handed Garrett off to Officer Halloway, who conducted his own pat-down search on Garrett, which yielded crack cocaine. Following both pat-down searches, Halloway placed Garrett under arrest and escorted him to a police cruiser.

{¶ 11} Once Garrett and Shaw were arrested, Miniard testified that Halloway collected the drugs and drug paraphernalia that were observed in the apartment. At this time, Jenkins, the resident of the apartment, arrived at the scene and advised the officers that he had given Garrett permission to reside there.

{¶ 12} Following Miniard's testimony, the trial court took the matter under advisement and issued a decision overruling Garrett's motion to suppress. Based on the aforementioned facts, the trial court found that the search and entry into the apartment were lawful under the plain view exception to the warrant requirement and that the officers were justified in conducting both pat-down searches on Garrett.

{¶ 13} In light of the trial court's decision overruling his motion to suppress, Garrett entered a plea agreement with the State whereby he agreed to plead no contest to possession of cocaine in exchange for the dismissal of the trafficking cocaine charge. The trial court accepted Garrett's no contest plea and found him guilty of possessing cocaine. The trial court then sentenced Garrett to a period of community control sanctions not to exceed five years.

{¶ 14} Garrett now appeals from his conviction, raising a single assignment of error for review.

Assignment of Error

{¶ 15} Garrett's sole assignment of error is as follows:

THE TRIAL COURT ERRED IN DENYING MR. GARRETT'S MOTION TO SUPPRESS.

{¶ 16} Under his sole assignment of error, Garrett contends the trial court should have granted his motion to suppress because Officers Rose and Miniard violated his Fourth Amendment rights when they opened the screen door to the apartment in question and entered the apartment without a search warrant. Garrett also contends his Fourth Amendment rights were violated when the officers patted him down multiple times without a reasonable, individualized suspicion that he was armed and dangerous.

Standard of Review

{¶ 17} "In ruling on a motion to suppress, the trial court ‘assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.’ " State v. Knisley , 2d Dist. Montgomery No. 22897, 2010-Ohio-116, 2010 WL 169438, ¶ 30, quoting State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). "Accordingly, when we review suppression decisions, we must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. " ‘Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.’ " Id. , quoting Retherford at 592, 639 N.E.2d 498.

Opening the Screen Door and Entering the Apartment

{¶ 18} As previously noted, Garrett contends his Fourth Amendment rights were violated when the officers opened the screen door to the apartment in question and entered the apartment without a search warrant. The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York , 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), quoting Coolidge v. New Hampshire , 403 U.S. 443, 476, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). " ‘[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it...