State v. Friedman

SUPREME COURT CASES

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State v. Friedman

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-2989

Case Date: 06/20/2011

Plaintiff: State

Defendant: Friedman

Preview:[Cite as State v. Friedman, 2011-Ohio-2989.]
STATE OF OHIO                                                                                         )                              IN THE COURT OF APPEALS
                                                                                                      )ss:                           NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                                                                                       )
STATE OF OHIO                                                                                                                        C.A. No.                  10CA0025
Appellant
v.                                                                                                    APPEAL FROM JUDGMENT
ENTERED IN THE
RACHEL FRIEDMAN                                                                                       WAYNE COUNTY MUNICIPAL COURT
                                                                                                      COUNTY OF WAYNE, OHIO
Appellee                                                                                              CASE No.    CRB-10-02-00224
                                                                                                      DECISION AND JOURNAL ENTRY
Dated: June 20, 2011
WHITMORE, Judge.
{¶1}   Appellant, the State of Ohio, appeals from the judgment of the Wayne County
Municipal  Court,  granting  Appellee,  Rachel  Friedman’s,  motion  to  suppress.    This  Court
reverses.
I
{¶2}   On October  21,  2009, police officers from Ohio State University, who were
assigned to the school’s satellite campus in Wooster, led one of their canines along Franklin
Court, a residential street on campus.   After the canine alerted on one of the parked vehicles on
Franklin Court, the officers attempted to contact the vehicle’s owner, Friedman.   Specifically,
they went to Friedman’s apartment, called her cell phone, and tried to locate her at the school’s
activity center.   When the officers failed to locate Friedman, they used a lockout device referred
to as a “Big Easy” to open her locked vehicle and removed several items.

2
{¶3}   On February 18, 2010, the State filed a criminal complaint against Friedman for
the possession of marijuana, in violation of R.C.                                                     2925.11(A), and  the possession of drug
paraphernalia, in violation of R.C. 2925.14(C)(1).   On March 24, 2010, Friedman filed a motion
to suppress, challenging the warrantless search of her vehicle.   The trial court held a hearing on
Friedman’s motion on May 4, 2010.   The court granted the motion on May 7, 2010, concluding
that the police lacked any justification to search Friedman’s vehicle in the absence of a warrant.
{¶4}   The State now appeals from the trial court’s judgment and raises one assignment
of error for our review.
II
Assignment of Error
“THE  TRIAL  COURT  ERRED  IN  GRANTING  RACHEL  FRIEDMAN’S
MOTION  TO  SUPPRESS  ON  THE  BASIS  THAT  A  SEARCH  WAS
IMPROPERLY CONDUCTED ON HER VEHICLE.”
{¶5}   In its sole assignment of error, the State argues that the trial court erred by
granting Friedman’s motion to suppress.   Specifically, it argues that the police lawfully searched
Friedman’s vehicle, which was parked in a public area, based on probable cause arising from a
canine sniff.  We agree.
{¶6}   The Ohio Supreme Court has held that:
“Appellate review of a motion to suppress presents a mixed question of law and
fact.   When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses.   State v. Mills (1992), 62 Ohio St.3d 357,
366.   Consequently, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence.   State v. Fanning
(1982), 1 Ohio St.3d 19.   Accepting these facts as true, the appellate court must
then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.   State v. McNamara
(1997), 124 Ohio App.3d 706.”   State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, at ¶8.

3
Accordingly,  this  Court  reviews  the  trial  court’s  factual  findings  for  competent,  credible
evidence and considers the court’s legal conclusions de novo.   State v. Conley, 9th Dist. No.
08CA009454, 2009-Ohio-910, at ¶6, citing Burnside at ¶8.
{¶7}   The Fourth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, prohibits unreasonable searches and seizures.   Section 14,
Article I of the Ohio Constitution contains language nearly identical to that of the Fourth
Amendment, and similarly prohibits unreasonable searches and seizures.   Although the Fourth
Amendment recognizes that individuals have privacy interests in their vehicles, the inherent
characteristics of vehicles “justif[y] a lesser degree of protection of [the privacy] interests [in
them].”   California v. Carney (1985), 471 U.S. 386, 390.   See, also, Chambers v. Maroney
(1970), 399 U.S. 42, 48; Carroll v. United States (1925), 267 U.S. 132, 153.                            “Once a law
enforcement officer has probable cause to believe that a vehicle contains contraband, he or she
may  search  a  validly  stopped  motor  vehicle  based  upon  the  well-established  automobile
exception to the warrant requirement.”   State v. Moore (2000), 90 Ohio St.3d 47, 51, citing
Maryland v. Dyson  (1999),  527 U.S.  465,  466.                                                        “[T]he concept of exigency underlies the
automobile exception to the warrant requirement.”   Moore, 90 Ohio St.3d at 52.   Yet, “the
‘automobile exception’ has no separate exigency requirement.”  Dyson, 527 U.S. at 466.   Accord
U.S. v. Ross (1982), 456 U.S. 798, 809 (“In this class of cases, a search is not unreasonable if
based on facts that would justify the issuance of a warrant, even though a warrant has not
actually been obtained.”).                                                                              “All that is required to support a warrantless intrusion is probable
cause to believe that a particular vehicle is carrying evidence of a crime.”   State v. Lang (1996),
117 Ohio App.3d 29, 36.   Accord State v. Underwood, 12th Dist. No. CA2003-03-057, 2004-
Ohio-504, at ¶14-19; State v. Moore, 9th Dist. Nos. 22146 & 22216, 2005-Ohio-3304, at ¶24.

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{¶8}   The  facts  that  emerged  at  the  suppression  hearing  are  not  in  dispute.    At
approximately  8:30  p.m.  on  October  21,  2009,  a  canine  working  with  police  officers  on
assignment from Ohio State University alerted on a parked, locked car on a residential street on
campus.     The police identified Friedman as the owner of the vehicle and attempted to contact
her over the course of the next twenty to thirty minutes.   Specifically, the police identified
Friedman’s apartment residence, spoke with her roommate, called her cell phone, and went to the
school’s activity center after her roommate suggested that she might be exercising there.   When
the police were unable to contact Friedman, they used a lockout tool to gain access to her
vehicle.   The police did not secure a warrant before entering Friedman’s vehicle.   According to
the officers who testified, they accessed the vehicle at that time because they did not have
enough officers on duty to stay with the vehicle in the event Friedman returned.
{¶9}   The sole issue at the suppression hearing was whether the police, having probable
cause to believe that Friedman’s vehicle contained contraband, needed to procure a warrant
before searching it.   Friedman conceded that probable cause arose as a result of the canine sniff
that occurred.   She also did not challenge the method the police employed to obtain probable
cause; namely, selecting a residential street on campus and subjecting all the cars on that street to
a canine sniff.   Her sole argument was that, once they had probable cause that her vehicle
contained contraband, the police needed either her consent or an exception to the warrant
requirement before conducting their search.   Because they had neither, Friedman argued, their
search was unlawful.
{¶10}  The trial court granted Friedman’s motion, concluding that no justification for the
warrantless search existed.   The trial court distinguished this case from cases where a vehicle
search ensues as a result of a valid traffic stop and canine sniff on the basis that Friedman was

5
not detained along with her vehicle.   Because the vehicle was parked and locked in Friedman’s
absence, the court reasoned, there was no danger of her immediately driving out of the area.
Moreover, the court emphasized the fact that Friedman’s vehicle was parked at her place of
residence, thereby reasoning that the vehicle’s physical location further distinguished it from a
vehicle stopped on a roadway in the course of a traffic stop.
{¶11}  The fact that Friedman’s vehicle was parked on a residential street did not entitle
her to any greater privacy interest than a driver whose vehicle is detained on a roadway pursuant
to a valid traffic stop.   See, e.g., Underwood at ¶14-20 (upholding search of parked vehicle and
concluding that “[t]he immobilization of the vehicle or a low probability of its being moved or
evidence being destroyed does not remove the officers’ justification to conduct a search pursuant
to the automobile exception”); Lang, 117 Ohio App.3d at 34, quoting State v. Claytor (1983), 85
Ohio App.3d 623, 633 (Harsha, P.J., concurring) (“While the accused may have a subjective
expectation of privacy in his car while parked in a business lot [or a public street], it is not one
*** society is prepared to recognize as reasonable.”).    Under either scenario, officers are
performing their duties in a place where they are legally entitled to be.    See, generally, State v.
Halczyszak                                                                                              (1986),                                                                           25  Ohio  St.3d  301,   305-06.    The  question  is  whether  the  search  of
Friedman’s vehicle, which was locked and parked in a public area, is deserving of more scrutiny
than a vehicle search conducted in the course of a valid traffic stop.   This Court must conclude
that no meaningful distinction exists between the two searches so as to warrant different results.
{¶12}                                                                                                   “[O]nce a trained drug dog alerts to the odor of drugs from a lawfully detained
vehicle, an officer has probable cause to search the vehicle for contraband.”   State v. Carlson
(1995), 102 Ohio App.3d 585, 601.  Accord State v. White, 9th Dist. No. 23522, 2008-Ohio-657,
at ¶15-16; Moore at ¶24; State v. Shook (June 15, 1994), 9th Dist. No. 93CA005716, at *5.   In

6
upholding the search of vehicle parked outside a defendant’s apartment, this Court noted that
“[t]he search was lawful on the basis of the response of the drug-sniffing dog alone; the officers
were not required to take the extra step of obtaining a search warrant.”  Moore at ¶24.  We see no
reason to depart from that conclusion in the instant case.   While canine sniffs that give rise to
vehicle searches often occur as the result of a traffic stop, we are not convinced that a traffic stop
is a condition precedent to such a search, such that the absence of a stop invalidates the search.
{¶13}  The canine sniff in this instance gave rise to probable cause that Friedman’s
vehicle contained contraband, and the officers searched the vehicle pursuant to that conclusion.
Id.   See, also, Lang, 117 Ohio App.3d at 36 (“All that is required to support a warrantless
intrusion is probable cause to believe that a particular vehicle is carrying evidence of a crime.”).
Although Friedman’s vehicle was parked and locked at the time of the search, there was no way
for the officers at the scene to anticipate when Friedman would return.   See Pennsylvania v.
Labron (1996), 518 U.S. 938, 940 (“If a car is readily mobile and probable cause exists to
believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle
without more.”).   Her whereabouts were unknown, despite the officers attempting to contact her
at her residence, on her cell phone, and at the school’s activity center.   Further, there was
testimony that there were not enough officers on duty to post an officer with the vehicle.   The
fact that Friedman was not present when the officers developed probable cause does not detract
from the inherent mobility of her vehicle or render inapposite the application of the automobile
exception to the warrant requirement.   See Carney, 471 U.S. at 390; Chambers, 399 U.S. at 48;
Carroll, 267 U.S. at 153.   Probable cause that Friedman’s vehicle contained contraband arose as
a result of the canine sniff that was performed.   Carlson, 102 Ohio App.3d at 601.   The officers
in question did not violate Friedman’s Fourth Amendment rights as a result of the search they

7
performed.   Consequently, the trial court erred by granting her motion to suppress.   The State’s
sole assignment of error is sustained.
III
{¶14}  The State’s sole assignment of error is sustained.   The judgment of the Wayne
County  Municipal  Court  is  reversed,  and  the  cause  is  remanded  for  further  proceedings
consistent with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution.   A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run.   App.R. 22(E).   The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT

8
DICKINSON, J.
CONCURS
CARR, P. J.
DISSENTS, SAYING:
{¶15}  I respectfully dissent because I cannot agree that the State met its burden at the
suppression hearing.    In fact, the evidence presented by the State was so deficient that it failed to
reveal what areas of Friedman’s vehicle were searched, what incriminating evidence was found,
or where the officers found it.   I do not believe that this Court can or should address the isolated
issue of whether a search warrant was required to enter the vehicle, as we are presented with too
limited a record and the necessity of a warrant does not resolve the ultimate question at the
suppression  hearing:  whether  the  subsequent  search  of  Friedman’s  vehicle  and  seizure  of
evidence from it were constitutional.
{¶16}  Searches conducted outside the judicial process, without a warrant, are per se
unreasonable, subject to a few specifically established exceptions.   Athens v. Wolf (1974), 38
Ohio St.2d 237, 239.   The State had the burden of showing, by at least a preponderance of the
evidence, that the search of Freidman’s vehicle, and ultimate seizure of evidence, fell within a
recognized exception to the Fourth Amendment’s requirement of a warrant. Id. at 241, citing
Chimel v. California (1969), 395 U.S. 752, 761 and Lego v. Twomey (1972), 404 U.S. 477, 488.
{¶17}  The State’s burden to demonstrate the propriety of its warrantless search and
seizure was not limited to the officers’ initial decision to open the vehicle and commence its
search without a warrant.                                                                                 “The question remains whether, apart from the lack of a warrant, this
search was reasonable.”   California v. Carney (1985), 471 U.S. 386, 394.   The “‘touchstone of
the Fourth Amendment is reasonableness,’” which is “measured in objective terms by examining
the totality of the circumstances.”   Ohio v. Robinette (1996), 519 U.S. 33, 39, quoting Florida v.

9
Jimeno (1991), 500 U.S. 248, 250, 114 L.Ed.2d 297.   Given the limited record before us, we
cannot begin to examine the totality of the circumstances.
{¶18}  Friedman was charged with possession of marijuana and possession of drug
paraphernalia, described as a glass smoking pipe.   Aside from the charges against her, which
suggest that the State discovered marijuana and a glass smoking pipe in her possession, there is
nothing in the record to indicate what evidence was apparently seized from her vehicle.   She
filed a broad motion to suppress, asserting that evidence had been seized from her vehicle in
violation of her Fourth Amendment rights.   Prior to the commencement of the suppression
hearing, the parties met with the trial judge and agreed to narrow the legal issues.   Freidman did
not dispute that a drug dog had alerted to the exterior of her vehicle, which was parked and
locked on public property, and that she was not present at the scene.   The hearing was explicitly
limited  to  the  subsequent  warrantless  search  and  seizure.    Ultimately,  however,  the  State
confined its evidence almost exclusively to facts that preceded the officers’ decision to enter
Friedman’s vehicle without obtaining a warrant.   Evidence of what happened after the officers
opened the car door is noticeably lacking from the record.
{¶19}  Most of the evidence at the hearing focused on the officer’s unsuccessful attempts
to locate Friedman.   A warrantless search of her vehicle then ensued, but we are left to speculate
about what happened after the police officers opened the car door.  The only testimony about the
search was that the drug dog went into the vehicle “and hit on a couple areas” and then the two
officers “basically divided the vehicle in half,” with one officer searching the driver’s side and
the other searching the passenger side.   The State presented no evidence about how the officers
conducted the search, what specific areas of the vehicle or items within it were searched, or
where and what items of contraband were found.   I cannot agree to reverse the trial court’s

10
suppression  order  without  any  evidence  to  demonstrate  that  the  search  and  seizure  were
reasonable.
{¶20}  The officers’ entry into Friedman’s vehicle without a warrant was merely the
beginning of the alleged invasion of her Fourth Amendment rights.     It was the warrantless
search and seizure of evidence that was challenged by Friedman, not simply the warrantless
entry into her vehicle.   It was far more significant that, after entering her vehicle, the officers
proceeded to search it and ultimately found and seized incriminating evidence.   Had the officers
entered  her  vehicle  and  found  nothing,  Freidman  would  not  have  been  charged  and  this
suppression issue would not be before us.
{¶21}  Moreover, even if I could agree with the majority that this Court should address
the reasonableness of this warrantless search and seizure on the merits, I cannot agree to reverse
the trial court’s suppression order.   While I recognize that Carney, supra, Illinois v. Caballes
(2005), 543 U.S. 405, and other controlling case law in this area could be extended to authorize
the warrantless search in this case, I cannot agree that it should be extended to the facts of this
case.
{¶22}  Although Justice Ginsberg warned her colleagues in Caballes, 543 U.S. at 422
(Ginsberg, J., dissenting), that “[t]oday’s decision *** clears the way for suspicionless, dog-
accompanied drug sweeps of parked cars along sidewalks and in parking lots[,]”   it is clear that
Caballes did not authorize the random and wide scale use of drug dogs as a means to create
probable cause to search vehicles parked on public streets.   Caballes involved an occupied
vehicle that was subjected to a lawful traffic stop.    In  a separate opinion, Justice Souter
emphasized that he did not agree with the decision of the majority due to the fallibility of drug
dogs  and  further  stated  that,  although  he  shared  Justice  Ginsberg’s  concerns  about  the

11
implications of the majority’s holding, he did not believe that the decision had authorized the
wide scale use of drug dogs to justify searching parked vehicles.    Id. at  417  (Souter, J.,
dissenting).   In fact, the language of the majority opinion is explicitly limited to dog sniffs by
trained narcotics dogs during lawful traffic stops that reveal no information other than the
location of an illegal substance.  Id. at 409.
{¶23}  The facts of Caballes and most of the case law in this area have involved a search
following  a dog  alert  during  a lawful  traffic  stop and the  Fourth  Amendment reasonably
supported the end result: the use of a drug dog to sniff a lawfully stopped vehicle has been
effective in detecting a drug trafficker who was in the process of using a vehicle to transport
drugs on one of our nation’s highways.   The minimal intrusion of the drug dog, and resulting
search after it alerted, was justified because it enabled the police to protect the public from a drug
trafficker and a sizable quantity of drugs that could be lost if the police were required to wait for
a warrant.
{¶24}  There is no similar rationale for extending that body of case law to the facts of
this case, which are in sharp contrast to any of the cases cited by the majority.   Unlike the
settings of any prior precedent on this issue, the police officers in this case had not lawfully
stopped Friedman’s vehicle, nor had they encountered her vehicle at the scene of a criminal
investigation.  Consequently, there was no need for them to act quickly in the heat of an ongoing
investigation to protect the safety of themselves or others or to prevent the destruction of
evidence or flight of a suspect.   Without any suspicion that any vehicle parked on the street was
involved in criminal activity, even a traffic or parking violation, police officers paraded a drug

12
dog up and down the street,1 attempting to create probable cause to search some of them.   They
deliberately targeted parked vehicles because an assistant prosecutor had advised them that, if the
trained drug dog alerted after sniffing the exterior of a vehicle, they had probable cause to enter
and search without a warrant.   The warrantless search in this case appears to have been done
simply for the convenience of law enforcement.
{¶25}  I fear that these circumstances may be perceived as a matter of the ends justifying
the means.    Subjecting parked, locked, and unoccupied vehicles to suspicionless drug dog
sweeps, in an effort to create probable cause to search them, does not better serve the public, but
instead threatens the privacy of anyone who parks a vehicle on public property, if the drug dog
falsely alerts.   The fact that, in this case, a minor misdemeanant was apprehended does not
justify the intrusion.   In some situations, the dog will falsely alert, and an innocent vehicle owner
will have the entire contents of her vehicle rifled through by the police, outside her presence.
Moreover, she will not likely have any recourse for the unnecessary invasion into her privacy,
for no criminal case against her will result.   I would overrule the State’s assignment of error and
affirm the trial court’s decision granting Friedman’s motion to suppress.
APPEARANCES:
DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellant.
WILLIAM A. LEFAIVER, Attorney at Law, for Appellee.
1 It is unclear from the record whether Friedman’s vehicle was parked on Ohio State University
property or on a public street in the city of Wooster.

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