State v. Thompson

2021-Ohio-3184

STATE OF OHIO Plaintiff-Appellee, v. TYLON THOMPSON, Defendant-Appellant.

No. C-200388

Court of Appeals of Ohio, First District, Hamilton

September 15, 2021

Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1902260

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant Public Defender, for Defendant-Appellant.

OPINION

Bergeron, Presiding Judge.

{¶1} A stop sign violation spiraled into the arrest and conviction of defendant-appellant Tylon Thompson for three counts of drug possession. Now facing a 42 month sentence, Mr. Thompson challenges the denial of his suppression motion, an array of evidentiary determinations, as well as his underlying convictions and sentences. After reviewing the evidence and record, we overrule all four of his assignments of error and affirm the judgment below.

I.

{¶2} This case stems from a College Hill traffic stop in August 2019, when Officer Michael Smith observed a black Hyundai Elantra with heavily tinted windows roll through a stop sign at Elkton Place. Officer Smith pulled the vehicle over and activated his body camera, which captured the entire encounter. Because of the window tint, he approached the car from the passenger side. The passenger-side window was rolled down, with Mr. Thompson seated in the passenger seat and his significant other at the wheel.

{¶3} Officer Smith informed both occupants of the reasons for the stop and asked for identification, which they provided. As Officer Smith walked back to his cruiser to run the couple's names through his computer, he expressed concern to accompanying officers about movements Mr. Thompson made around the center console of the car as he approached. Officer Smith's search of the couple's names revealed that the driver was driving under a suspended license, and Mr. Thompson did not have a license. Officer Smith then summoned the nearest drug dog, expressing his belief that Mr. Thompson was concealing drugs in the center console area.

{¶4} Roughly 17 minutes into the stop, Officer Smith finished writing the citation for the stop sign violation and driving under suspension, delivering it to the driver. He instructed the driver and Mr. Thompson to "sit tight for a couple more minutes." For the next six minutes, Officer Smith chatted with other officers on the scene and with Mr. Thompson. Around 23 minutes into the stop, K-9 handler Officer Michael Bricker arrived on the scene with his dog. Out of Mr. Thompson's earshot, Officer Smith informed Officer Bricker that "he's covering up the whole left side of him and the center console area, so you can't see." He further explained that the couple had just traveled from an area known for drug activity.

{¶5} After conversing with Officer Smith, Officer Bricker explained the drug dog procedure to Mr. Thompson and the driver. Pursuant to a departmental policy dictating that passengers cannot remain in a vehicle during a canine sniff, Officer Bricker opened the car door and ordered the couple out of the vehicle. When Mr. Thompson stood up to exit the car, a plastic baggie containing a white substance became visible in the passenger seat next to the center console. Officers then handcuffed Mr. Thompson, placed him under arrest, and conducted a pat-down and full search of the car. This search revealed $463 of United States currency and raw marijuana wrapped in a dollar bill. At the Hamilton County Justice Center later that day, Mr. Thompson was subjected to a strip search. Police found three small baggies in Mr. Thompson's anal cavity, which ultimately tested positive for a cocaine-methamphetamine compound and fentanyl.

{¶6} The Hamilton County Grand Jury returned a six-count indictment against Mr. Thompson, charging: 1) trafficking in a fentanyl-related compound; 2) possession of a fentanyl-related compound; 3) trafficking in cocaine; 4) possession of cocaine; 5) aggravated trafficking in drugs; and 6) aggravated possession of drugs. Mr. Thompson rejected the state's plea offer and asserted his right to a jury trial.

{¶7} Mr. Thompson moved to suppress the plastic baggie containing a white substance, which the trial court denied. When the case proceeded to trial, the court admitted the raw marijuana seized on the scene over Mr. Thompson's objection (emphasizing the absence of any marijuana-related charges). The trial court also permitted Melissa Sterling, the analyst who tested the substances seized during Mr. Thompson's arrest, to provide expert testimony on her findings. Mr. Thompson again objected, arguing that Ms. Sterling provided an insufficient summary of her expert testimony in contravention of Crim.R. 16(K).

{¶8} The jury found Mr. Thompson not guilty of the three trafficking counts, but guilty of the three possession counts. After reviewing Mr. Thompson's pre-sentence investigation, the trial court imposed maximum, consecutive sentences for an aggregate term of 42 months' incarceration.

II.

{¶9} Mr. Thompson now appeals from his convictions, asserting four assignments of error. He challenges 1) the denial of his motion to suppress, 2) the admission of the raw marijuana and Ms. Sterling's expert testimony, 3) the convictions as against the manifest weight of the evidence, and 4) the imposition of maximum, consecutive sentences.

A.

{¶10} Mr. Thompson's first assignment of error challenges the denial of his motion to suppress the plastic baggie containing a white substance that became visible as he exited the vehicle. Our review of a motion to suppress "presents a mixed question of law and fact. We must accept the trial court's findings of fact as true if competent, credible evidence supports them. But we must independently determine whether the facts satisfy the applicable legal standard." State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066, 882 N.E.2d 945, ¶ 11 (1st Dist.). However, we consider "whether the facts satisfy the applicable legal standard" de novo. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶11} In general, "warrantless searches are per se unreasonable." State v. Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist). See State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶ 13 (1st Dist.). But myriad exceptions to the warrant requirement have evolved over the years, and in this case the parties debate whether the plain view exception justified the warrantless search and seizure of the plastic baggie.

1.

{¶12} When the United States Supreme Court first articulated the plain view exception in Coolidge v. New Hampshire, it prescribed "a three-part analysis. First, the initial intrusion that brought the police into a position to view the object must have been legitimate. Second, the police must have inadvertently discovered the object. Third, the incriminating nature of the object must have been immediately apparent." State v. Halczyszak, 25 Ohio St.3d 301, 303, 496 N.E.2d 925 (1986), citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Ohio adopted this three-part analysis in State v. Williams, 55 Ohio St.2d 82, 84, 377 N.E.2d 1013 (1978).

{¶13} By 1990, however, the United States Supreme Court refined the Coolidge test-specifically regarding the inadvertence requirement. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Emphasizing that the Coolidge inadvertence requirement commanded only a plurality of the justices, Horton held that "even though inadvertence is a characteristic of most legitimate 'plain-view' seizures, it is not a necessary condition." Id. at 130, 136.

{¶14} Although one does not have to look too far to find Ohio cases continuing to cite Coolidge, we clarify that, pursuant to Horton, the Fourth Amendment does not impose an inadvertence requirement in the plain view analysis under the United States Constitution.^[1] We therefore reject Mr. Thompson's argument that, in this case, the plain view exception under the United States Constitution is not met because the discovery of the contraband was not inadvertent.

{¶15} Given that federal law does not require inadvertence and that Mr. Thompson did not timely raise arguments under the Ohio Constitution, we are left with a two-prong plain view analysis here under Horton. The warrantless search of Mr. Thompson satisfies the plain view exception if: 1) the initial intrusion bringing the officer into a position to view the object was legitimate, and 2) the incriminating nature of the object was immediately apparent. Mr. Thompson does not contest the immediately incriminating nature of the plastic baggie containing a white substance, which confines our review to the legitimacy of the initial intrusion bringing the officer into a position to view the object. For the intrusion to be legitimate in this case, the police must have 1) lawfully extended the initial traffic stop, and 2) lawfully ordered Mr. Thompson out of his vehicle.

2.

{¶16} The parties agree that Officer Smith's initial traffic stop of Mr. Thompson's vehicle was justified, and that Officer Smith could permissibly retain him and the driver for as long as necessary to prepare the citation. But Mr Thompson protests that Officer Smith unlawfully extended the traffic stop beyond that limited time window. See Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842. ("A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission."). In other words, an officer cannot orchestrate a four-corners...