813 N.E.2d 956
158 Ohio App.3d 21, 813 N.E.2d 956, 2004-Ohio-3364
(Cite as: 158 Ohio App.3d 21, 813 N.E.2d
956)
<C>
Court
of Appeals of Ohio,
Seventh
District, Columbiana County.
The
STATE of Ohio, Appellant,
v.
BROWN,
Appellee.
No.
03 CO 49.
Decided
June 25, 2004.
Background: Defendant was charged in the Court of Common Pleas, Columbiana
County,
No. 03 CR 23, with offense relating to possession of pornographic
material and filed a motion
to suppress, which was granted. State appealed.
Holdings: The Court of Appeals, DeGenaro, J., held that:
(1) record supported finding that although defendant consented to search of
his residence, he did not consent
to seizure of computers in residence;
(2) officers did not possess required probable cause to believe that
computers
in defendant's residence contained child pornography, and thus
computers were not subject
to warrantless seizure under plain view doctrine;
and
(3) exigent circumstances did not justify officers'
warrantless seizure of
computers from defendant's residence.
Affirmed.
**958*24
Robert L. Herron, Columbiana County Prosecuting Attorney, and
Timothy McNicol, Assistant
Prosecuting Attorney, for appellant.
James E. Lanzo, for appellee.
DeGENARO, Judge.
{<paragraph>
1} This timely appeal matter comes for consideration on the
record in the trial, the parties'
briefs, and their oral arguments before this
court. Appellant, state of Ohio, appeals from the judgment of the Columbiana
Court of Common Pleas granting the motion of appellee, George Brown Jr., to
suppress evidence. The
issue we must address is whether the police went
outside the scope of the consent form signed
by Brown when they seized two
computers from his home. We conclude that the police did in fact
go outside
the scope of Brown's consent, since he protested before the police seized the
computers, making it
a warrantless search. Because the warrantless seizure
did not fall into any of the permissible exceptions,
the seizure was
unreasonable and therefore violative of Brown's
Fourth Amendment rights.
Accordingly, the trial court properly granted Brown's motion to
suppress.
*25
Facts and Standard of Review
{<paragraph> 2} Pursuant to the trial court's judgment entry granting Brown's
motion
to suppress, the following are the facts the court relied upon to make
its decision.
{<paragraph> 3} "On
November 12 the detective sergeant interviewed the
defendant at the Chester, West
Virginia police department. At the police
department, the defendant gave the detective five
pictures. The pictures were
obviously printed on a computer printer and according to the detective
depicted
five young females that he believed to be juveniles in various states
of undress or nudity. The detective testified
that before 'we left there [the
police department] we had made arrangements for me to meet Mr. Brown at the
residence
so that I could see where the sleeping arrangements were, and to
look at the computers in the house.'
**959
{<paragraph> 4} " 'I asked him for consent to let me walk in the house
and look around and perhaps look at
the computers. He consented to that
verbally at the police station. I met him
there [at the residence] and before
we--we, meaning myself and Detective Lieutenant Herbert, stepped inside the
door,
and I executed a document, a consent to search form.'
{<paragraph> 5} "The consent to search form was introduced
and was signed by
the defendant. That form indicates that the defendant 'hereby grants my
consent
to Detective Sergeant Allan D. Young as a deputy sheriff of the
Columbiana County
Sheriff's office, to search the following * * * residence
located at 6634 S.R.7 New Waterford, Ohio including
all rooms and buildings *
* *.' Nothing in that search form suggested that any consent was given to
seize
any items from the residence. Prior to asking the defendant to execute
the document Young 'explained that I wanted
to look around the house, and look
at his computers, and if there were any--if there was any evidence there, uh,
I
would like to take it with me for analysis.' Because of the interview and
the pictures Young wanted to make
sure there was no evidence on the machines
in the house.
{<paragraph> 6} "When Young entered the house
he noticed a Compaq computer
that was turned on. He did not search the computer. He was specifically
looking for a Dell computer because of his interview with Brown. Brown at
first
denied that there was a Dell computer but later showed the computer to
Young. It was in a back room of the
house and was not turned on. Young, over
protests from the defendant and his wife, took both computers. At
no time did
Young make any investigation of the computers themselves while on the
premises.
{<paragraph>
7} "This case is a scope of consent to search case. Defendant
does not deny, nor can he, that the [sic] voluntarily
gave consent to enter
his house. What he does contest is the scope of the search and seizure that
ensued.
Nothing in any of the evidence before this court indicates that the
detectives informed the *26 defendant
that they intended to seize the
computers. The scope of the consent
essentially was to look around the house
and look at the computers and look where the sleeping arrangements were. The
detectives were going to seize any evidence and take it for analysis.
However,
Young himself wanted to make sure that there wasn't any evidence on
the machines in the house. His intent
in entering the house was to seize the
machines or at least look at them. But there is no evidence he so informed
the defendant. In his testimony he does not define what he meant by 'look at
them' but the Court
assumes it meant more than just seeing where they were and
what they looked like. It appears that his intention was
to sit down at the
computers and search the computers for pornography."
{<paragraph> 8} After hearing
this evidence, the trial court concluded that
since the computers were unlawfully seized, any evidence derived from
their
seizure should be suppressed.
[1][2] {<paragraph> 9} In considering a motion to suppress,
the trial court
assumes the role of the trier of fact and is therefore in the best position to
resolve factual
questions and evaluate the credibility of the witnesses. State
v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
"Accordingly, in our
review, we are bound to accept the trial court's findings of fact if they are
supported by competent,
credible evidence." State v. Guysinger (1993), 86
Ohio App.3d 592, 594, 621 N.E.2d 726. However,
we must determine
independently whether the trial
court's conclusions of law, based on those
findings of fact, are **960 correct. State v. Klein
(1991), 73 Ohio App.3d
486, 488, 597 N.E.2d 1141.
Scope
of Consent Search
{<paragraph> 10} As its sole assignment of error, the state argues:
[3] {<paragraph>
11} "The trial court erred in granting the Defendant's
motion to suppress and finding that
the seizure of computers from the
Defendant's home violated the Fourth
Amendment of the United States
Constitution and the Bill of
Rights of the Ohio Constitution."
{<paragraph> 12} It is undisputed that Brown voluntarily signed a form that
granted his consent to the police to search his home. What is contested,
however,
was whether Brown gave consent to the police to seize his computers.
[4][5][6] {<paragraph> 13} "The scope of
a consent search is limited by the
bounds, and determined by the breadth, of the actual consent itself. The
requirement of a warrant is waived only to the extent granted by the defendant
in his consent.
United States v. Dichiarinte ( [C.A.7,] 1971), 445 F.2d 126.
A suspect may delimit as he chooses the scope of the
search to which he
consents. Florida v. Jimeno (1991), 500 U.S. 248, at 252,
111 S.Ct. 1801, 114
L.Ed.2d 297." State v. Casey (May 26, 2000), 2d Dist. No. 99-CA-43, 2000 WL
679013,
at * 3. Significantly, *27 the subject of a search may limit the
scope of consent and may
withdraw or limit the scope of consent after a search
has begun. State v. Rojas (1993), 92 Ohio App.3d 336, 339,
635 N.E.2d 66;
see, also, State v. Iacona (Mar. 15, 2000), 9th Dist. No. CA 2891- M, 2000 WL
277911.
{<paragraph>
14} Here, it is clear from the record that the police were
permitted to view the computers,
since Brown showed each of them to the
police. Pursuant to the trial court's
interpretation of the facts, however,
Brown was never informed that the police intended to seize the computers.
Therefore, he could not have granted consent for them to be seized. More
important,
the trial court found that the police, "over protests from the
defendant and his wife, took both
computers." It was at this point that Brown
clearly defined the scope of his consent. Pursuant to the trial
court's
findings of fact, it is clear that Brown did not consent to the seizure of the
computers.
Accordingly, the seizure of the computers was made without consent
and without a warrant.
[7][8] {<paragraph>
15} It is well settled that "warrantless searches are
'per se unreasonable under the Fourth Amendment--subject
only to a few
specifically established and well-delineated exceptions.' " State
v. Kessler
(1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 373 N.E.2d 1252. In State v.
Akron Airport
Post No. 8975 (1985), 19 Ohio St.3d 49, 51, 19 OBR 42, 482
N.E.2d 606, the Ohio Supreme
Court identified those exceptions: (1) search
incident to arrest; (2) consent; (3) stop-and-frisk;
(4) hot pursuit; (5)
probable cause coupled with exigent circumstances; and (6) plain view. To
survive a motion to suppress, the state bears the burden of proving that one
of these exceptions
applies to evidence derived from a warrantless search or
seizure. Id.; State v. Smith (1991), 73 Ohio App.3d
471, 597 N.E.2d 1132.
The two exceptions that apply in this case are plain view and exigent
circumstances.
Plain
View
[9][10][11] {<paragraph> 16} In certain circumstances, police may seize
evidence
found in plain view despite the failure to obtain a warrant for that
seizure. Coolidge v. New Hampshire (1971),
403 U.S. 443, 465-466, 91 S.Ct.
2022, 29 L.Ed.2d 564. For the seizure to be valid, however, the initial
intrusion which permitted police to come into a **961 position to view the
object
in question must be justified by a warrant or recognized exception.
Horton v. California (1990), 496
U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d
112. The court went on to state that there were two additional
conditions
that must also be satisfied to justify the warrantless seizure: (1) "not only
must
the item be in plain view, its incriminating character must also be
'immediately apparent'
"; and (2) "not only must the officer be lawfully
located in a place from which the object
can be plainly seen, but he or she
must also have a lawful right of access to the object itself." *28Id.
at 136-
137, 110 S.Ct. 2301, 110 L.Ed.2d 112. Notably, the police officer need not
know that the
items in plain view are contraband or evidence of a crime. It is
sufficient that probable cause exists to associate the
property with criminal
activity before evidence may be seized under the plain-view doctrine. Arizona
v. Hicks
(1987), 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347.
{<paragraph> 17} The Ohio Supreme Court has similarly
adopted the plain-view
doctrine as an exception to the warrant requirement, stating, "Under [the
plain-view]
doctrine, an officer may seize an item without a warrant if the
initial intrusion leading to the item's discovery
was lawful and it was
'immediately apparent' that the item was incriminating." State
v. Waddy
(1992), 63 Ohio St.3d 424, 442, 588 N.E.2d 819; see, also, State v. Kinley
(1995), 72 Ohio St.3d 491, 651 N.E.2d 419.
{<paragraph> 18} Here, there is no question that the
police were lawfully in
Brown's home when they observed the two computers in plain view. The question
remains
whether it was immediately apparent that the two computers were
incriminating. Other
courts have dealt with similar situations where it was
not obvious that an item was evidence of a crime or could
lead to evidence of
a crime.
{<paragraph> 19} In State v. Mitchell (Nov. 9, 1988), 4th Dist. No. 1467,
1988
WL 125034, during the execution of a search warrant for "controlled
substances and illegally
possessed dangerous ordnances, and any other items
criminally possessed," the police discovered unlabeled
videotapes that they
later inventoried and viewed. As a result, pandering charges were brought
against
the defendant. However, the defendant moved to suppress them because
it was not immediately apparent that the unmarked
videotapes were associated
with criminal activity. The trial court granted the motion, and the Fourth
District
upheld its decision, noting that "[i]n order to determine the
incriminating
nature of those tapes, the officers had to seize and then view
them." Id. at * 2.
{<paragraph>
20} Likewise, in State v. Reeves (May 12, 2000), 6th Dist. Nos.
WD-99- 047 and WD-99-048, 2000 WL 569562, the Sixth District
upheld the
exclusion of obscene videotapes, since their criminal nature was not
immediately
apparent to the arresting officers. In Reeves, an officer
overheard the
defendants discussing the sale of videotapes "for an unusually
low price" over a CB radio. After stopping
the truck, one of the officers
approached the passenger side and saw a videocassette in the cab with
the
title "Lethal Weapon 4" handwritten on an adhesive label. Notably, the
officer
did not observe any obscene videotapes with sexually explicit covers
and titles until after the warrantless search
was underway.
{<paragraph> 21} The Sixth District noted that while the police had reason to
suspect initially
that the defendants may have been involved in the sale of
unlicensed videos, they did not possess sufficient
information to lead a
cautious person to conclude that a crime was being committed at that
moment.
The court explained *29 that the officers would have been justified in
approaching
the defendants' truck once it was **962 pulled over and
questioning
the occupants briefly. Accordingly, the court concluded that
because the obscene nature
of the videotapes in the defendants' truck was not
immediately apparent to the arresting officers, the ensuing warrantless
search
and seizure did not fall under the plain-view exception to the warrant
requirement.
{<paragraph>
22} In the present case, although it could be argued that the
officers could have reasonably suspected that
the computers in Brown's home
could have contained child pornography, there was not enough evidence to
support
a finding of probable cause. More specifically, the only evidence the
police had that would lead them to believe
that those computers contained
pornographic material was the fact that the pictures appeared to
be printed
with a computer printer. There was no evidence that the pictures were printed
off the two computers
in Brown's home. Nor were any pornographic images seen
on the screens during the search. The trial court was
correct in its
determination that no probable cause existed to seize the
computers, since the
criminal nature of the computers and their contents was not immediately
apparent
to the officers. The plain-view exception does not validate the
instant warrantless seizure.
The state's assignment of error is meritless on
this basis.
Exigent
Circumstances
[12] {<paragraph> 23} The second exception to the warrantless-search
exclusion
rule that applies to the instant case is that the seizure was proper
due to exigent circumstances. The United States
Supreme Court has stated that
the proper legal standard for determining whether there are exigent
circumstances
contemplates whether there is "hot pursuit of a fleeing felon,
imminent destruction of evidence, Welsh [v. Wisconsin],
466 U.S. 740 (1984), [
104 S.Ct. 2091, 80 L.Ed.2d 732], the need to prevent a suspect's escape or the
risk of danger
to the police or to other persons inside or outside the
dwelling." (Citations
omitted.) Minnesota v. Olson (1990), 495 U.S. 91, 100,
110 S.Ct. 1684, 109 L.Ed.2d 85. The only exigent circumstance
that could
possibly apply to this case is the imminent destruction of evidence.
[13][14][15]
{<paragraph> 24} When police officers seek to rely on the
destruction-of-evidence
exception in justifying a warrantless entry, they must
show an objectively reasonable basis for concluding that the loss
or
destruction of evidence is imminent. State v. Baker (Apr.
25, 1991), 8th
Dist.App. Nos. 60352 and 60353, 1991 WL 64312, citing United States v.
Sangineto-Miranda
(C.A.6, 1988), 859 F.2d 1501, 1512. "The mere possibility
or suspicion that a party is likely to dispose of
evidence when faced with the
execution of a search warrant is not sufficient to create an exigency. * * *
Nor
is the generalized and often *30 recognized fear that destruction of
evidence is an inherent
possibility during the execution of a warrant adequate
grounds to find exigent circumstances * * *." State v. Russell
(June 30,
1998), 4th Dist. No. 97 CA 37, 1998 WL 357546, at * 18, citing United States
v.
Bates (C.A.6, 1996), 84 F.3d 790, 796.
[16] {<paragraph> 25} Other districts have required that there be some
factual basis established on the record that evidence would be destroyed in
that
particular case if the officer's entry or search was delayed. In other
words, articulable facts must be introduced
that prove that in the particular
case there is a strong probability that evidence will be destroyed based upon
factors
uniquely present under those circumstances. State v. Dixon, 141 Ohio
App.3d 654, 661, 752 N.E.2d 1005.
**963
{<paragraph> 26} In Segura v. United States (1984), 468 U.S. 796, 104
S.Ct. 3380, 82 L.Ed.2d 599, the United
States Supreme Court addressed whether
the temporary securing of a dwelling to prevent removal or destruction of
evidence
violates the Fourth Amendment. The court noted that the securing of
premises to preserve the status quo while a
search warrant is being sought is
not violative of the Fourth Amendment when officers have probable cause to
believe
that evidence of criminal activity is present within the premises. Id
at 809-810, 104 S.Ct. 3380, 82 L.Ed.2d 599.
Accordingly, the Supreme Court
suggested that, while entry into a dwelling on less than exigent circumstances
and
a concurrent search therein violates a Fourth Amendment right, the less
intrusive nature of a seizure associated
with securing the premises until a
search warrant arrives is constitutionally permissible. Id.
{<paragraph>
27} In State v. Wangul (Feb. 14, 2002), 8th Dist. No. 79393,
2002 WL 228844, a neighbor called the police
regarding the defendant's
cultivation of marijuana plants in his backyard. That
same neighbor allowed
the police to use his backyard to observe the defendant watering the marijuana
plants.
After the defendant was observed briefly, an officer jumped the fence
into the defendant's yard to further question
him. He also asked the
defendant to assist him in tearing out the
marijuana plants while the other
officers pulled their car around and entered the defendant's yard through
the
backyard gate.
{<paragraph> 28} In light of these facts, the Eighth District concluded that
there
were no exigent circumstances. The court explained that there was no
evidence presented that the officers
were afraid that the defendant was going
to start destroying the marijuana plants. To the contrary, the court
concluded
that the evidence presented did show that there were enough officers
present to secure the backyard until a search warrant
could have been properly
obtained, and that the marijuana seized from the defendant's backyard should
have been
suppressed by the trial court.
*31 {<paragraph> 29} In the present case, there was no testimony from the
officers
regarding any fear that evidence would be destroyed if they left to
get a warrant to seize the computers. Second,
there was no reason why the
officers could not have secured the premises and obtained a search warrant
to
seize the computers. Finally, there was no probable cause to seize the
computers
under the plain-view doctrine, since their criminal nature was not
immediately apparent. The exigent-circumstances
exception does not validate
the instant warrantless search and seizure. The state's assignment of error
is
meritless on this basis as well.
{<paragraph> 30} In conclusion, the police entered Brown's home with only
consent
to search. The consent form did not permit the police to seize
anything. Moreover,
Brown verbally told the police not to take the computers.
Thus, the police did not have consent to seize the computers.
Because this
warrantless seizure fell outside all of the other recognized exceptions, this
search
was violative of Brown's Fourth Amendment rights, and the trial court
properly granted Brown's motion to suppress.
{<paragraph>
31} Accordingly, appellant's sole assignment of error is
meritless, and the
judgment of the trial court is affirmed.
Judgment affirmed.
WAITE, P.J., and GENE DONOFRIO, J., concur.
158
Ohio App.3d 21, 813 N.E.2d 956, 2004-Ohio-3364
END OF DOCUMENT
