The objects purportedly seen by Det. Kopchak were not immediately and apparently incriminating.Accordingly, the officers lacked probable cause to search the vehicle.
United States v. Loines
No. 22 – 3073
Sixth Circuit Court of Appeals
January 6, 2023
In 2020, Detective Donald Kopchak of the Cleveland Police Department was aiding in an investigation into potential drug trafficking activities by Mr. Mekhel Rivers, who was subsequently charged as a co-defendant. Police investigators suspected Mr. Rivers of distributing heroin and fentanyl. During the investigation, on April 21, 2020, Det. Kopchak observed Mr. Rivers leaving a house on East 221st Street, in Euclid, Ohio, driving a red Nissan ALTIMA to a meeting place to sell drugs to an informant, and then returning to the same Euclid house. After numerous days of surveillance, investigators determined that Mr. Rivers lived at the East 221st Street house, obtained a search warrant for the house, and executed the warrant on April 30, 2020.
After arriving at the house, while executing the search warrant, Det. Kopchak again observed the red Nissan ALTIMA parked on the street near the residence, bearing the same license plate number he previously observed. Det. Kopchak walked up to the passenger side of the car, cupped a hand to the tinted window, and leaned in to attempt to see into the vehicle. While leaning against the vehicle and looking through the window, Det. Kopchak allegedly observed a Black and Mild cigar wrapper and “a folded piece of paper” in the center console of the car. From this vantage point, Det. Kopchak claims he was also able to view a small plastic bag that he immediately identified as “a bag of dope.” Lieutenant Charles DiPenti approached the car’s passenger side, looked through the window, and verbally indicated that he also saw the “bag of dope.”.
NOTE: These two statements by Det. Kopchak and Lt. DiPenti that were made instantaneous and contemporaneous with the observations would later be disbelieved by the Sixth Circuit Appellate Court.
After Det. Kopchak purpotedly saw the “bag of dope” in the vehicle, he went into the East 221st Street residence. Officers found Mr. Aaron Loines in Mr. Rivers’ residence, along with other individuals implicated in this case. Det. Kopchak read the individuals their Miranda rights and inquired about car keys found in the home. In response, Mr. Loines volunteered that the keys were his. Det. Kopchak then confirmed that the car keys belonged to the Nissan by using the key to sound the car alarm.
The car was then towed for an inventory search. During the inventory search of the inside of the car, the officers took a picture of the car’s center console from the driver’s seat. That picture showed a small plastic bag underneath a cigar wrapper, with a lottery ticket placed beside it. Law enforcement searched the vehicle after it was towed and found a firearm, the bag of suspected narcotics, a larger bag of purported narcotics, a press, and a scale. Police did not obtain a warrant to search the automobile before or during the investigation.
Mr. Loines moved to suppress the evidence seized from his vehicle, and during the motion to suppress hearing, Det. Kopchak sought to justify the warrantless search by averring that he had probable cause to search the vehicle based on the “plain view” of the “bag of dope.” Det. Kopchak was the only witness called to testify at the hearing. To support Det. Kopchak’s testimony that he saw the “bag of dope” in plain view and thus had probable cause to search the vehicle, the government relied upon: (1) videos of Det. Kopchak and other officers walking around and peering into the car; and (2) a photo taken while inside the car from thevantage point of one sitting in the driver’s seat.
Based on Det. Kopchak’s testimony, the videos provided evidence of where the car was in proximity to the East 221st Street residence, Det. Kopchak’s position looking into the passenger side window of the car, and Det. Kopchak’s claim that he saw a “bag of dope.”. The videos also provide Lieutenant DiPenti’sperspective when looking through the passenger side window, without pressing his hands against the window, confirming Det. Kopchak’s observation. The photograph taken from the inside of the vehicle illustrates a lottery ticket, cigar wrapper, and beneath the cigar wrapper, a small plastic bag. At issue, however, is whether Det. Kopchak and DiPenti could actually see the small plastic bag from outside of the car.
The government claims that the officers’ body camera footage and associated screenshots “show that a person standing next to the car could see through the window, even though it was partially tinted.”. Furthermore, the government contends that while no cameras were “positioned at the proper angle to show the suspected drugs,” the videos establish that an officer could see inside the car.
Neither proposition is convincing. The videos themselves do not establish that Det. Kopchak, from his vantage point outside the vehicle, had a sufficiently clear view to identify the presence of drugs inside the car.Instead, the videos show only the position of the officers when peering into the vehicle. In an attempt to provide a better illustration of what was seen from outside the car, screenshots of the video were provided by the government in their appellate briefing; however, those screenshots are dark to the point of being indecipherable. Besides conclusory statements as to what officers saw, the government has furnished no evidence to establish that the photo taken from inside the car was an accurate depiction of what was seen from outside the vehicle.
Motion to Suppress
Mr. Loines filed a motion to suppress, which was denied.
On September 13, 2021, Mr. Loines pleaded guilty to all three counts pursuant to a plea agreement, and reserved the right to appeal the district court’s denial of his motion to suppress. The district court sentenced Mr. Loines to 93 months’ imprisonment, after which Mr. Loines filed this timely appeal.
Appeal
Plain View Doctrine
The government argues that the bag with the narcotics was in plain view. This claim has not been substantiated.
NOTE: The claim was not substantiated unless of course the detective’s observation and immediate statement that he observed the bag of dope was actually a substantiation.
Under the plain view doctrine, four factors must be satisfied:
(1) The item seized must be in plain view.
(2) The item’s incriminating character must be immediately apparent.
(3) The officer must lawfully be in the place from where the item can be plainly seen, and;
(4) The officer must have a lawful right of access to the item.
United States v. Mathis, 738 F.3d 719 at 732 (6th Cir. 2013), citing Horton v. California, 496 U.S. 128, 136–37 (1990)
Mr. Loines argues that the first three elements of the standard are not met; because the Court finds that the plain view doctrine does not apply in this case, it does not need to reach a determination as to the fourth factor, which is not argued by either party.
Plain View
Det. Kopchak testified that he looked through the red Nissan’s passenger side window and saw a “bag of dope” in plain view in the car’s center console. To support Det. Kopchak’s testimony, the government points to the photograph taken from inside the vehicle, body camera footage, and screenshots taken from the body camera footage. However, Det. Kopchak provides no testimony or evidence as to what was seen of the small, partially obstructed bag from outside the vehicle. Instead, he simply asserts that he saw a “bag of dope.”.
For the object to be in plain view, Det. Kopchak’s view of the bag must have been from his vantage point outside the passenger side window. Moreover, he “must discover incriminating evidence ‘inadvertently’. . . hemay not ‘know in advance the location of [certain] evidence and intend to seize it,’ relying on the plain viewdoctrine only as a pretext.” Texas v. Brown, 460 U.S. 730, 737 (1983) (quoting Coolidge v. New Hampshire,403 U.S. 443, 470 (1971).
The government’s evidence purported to establish that the plastic bag was plainly visible from outside the vehicle is deficient, and instead, leads to the opposite conclusion. First, a photograph taken inside the vehicle from the vantage point of the driver, is insufficient to demonstrate the bag was visible from outside the car. The only objective evidence provided by the government illustrating the view from outside the vehicle are three videos from body camera footage, and two screenshots from those videos. The body camera videos simply provide the position of the car and each officer, but do not provide the Court with what Det. Kopchak saw when observing the inside of the vehicle. The screenshots of the footage are dark, thecenter console is barely visible, and there is no clear view into the interior of car through the passenger side window. The screenshots display no small plastic bag, no lottery ticket, and no cigar wrapper.
Det. Kopchak’s testimony provides support for the Court’s observation: he states that the twisted plastic was not apparent in the “still frame . . . but there’s another picture that was taken of the center console with the bag of dope . . . packaged . . . in those small plastic bags with the tie off.” This other picture referenced in Det. Kopchak’s testimony is the photograph taken during the inventory search from inside the car. Det. Kopchak did not provide testimony as to what he saw from outside the vehicle, except for the simple statement that he saw a “bag of dope.”.
Accordingly, the only evidence supporting the government’s position is Det. Kopchak’s own unsupported testimony that he saw a bag of narcotics. Simple statements from the officers contending that they saw “a bag of narcotics” in the car are not enough to establish that an object was in plain view when the screenshots that the government presented contradict the officers’ statements.
We find that the district court’s account of the evidence is not plausible in light of the record viewed in its entirety. Accordingly, the Court reverses the district court’s holding as to the denial of Defendant’s motion to suppress.
Incriminating Nature is Immediately Apparent
The government argues that “the way that the powder was packaged and its proximity to a folded lottery ticket—commonly used to deliver drugs—made the powder’s incriminating character obvious.” We disagree.
To determine whether an object’s incriminating nature is “immediately apparent,” the Court looks to four instructive factors:
(1) A nexus between the seized object and the items particularized in the search warrant.
(2) Whether the ‘intrinsic nature’ or appearance of the seized object gives probable cause to believe that it is associated with criminal activity.
(3) Whether the executing officers can at the time of discovery of the object on the facts then availableto them determine probable cause of the object’s incriminating nature, and;
(4) Whether the officer can] recognize the incriminating nature of an object as a result of his immediate or instantaneous sensory perception.
United States v. Garcia, 496 F.3d 495, 510–11 (6th Cir. 2007)
Applying the first factor articulated in Garcia, neither Mr. Loines nor the vehicle were subject to the searchwarrant in this case. See Garcia, 496 F.3d at 510 (“Requiring particular descriptions in search warrants prevents police officers from engaging in general exploratory searches[.]” (citing Coolidge, 403 U.S. at 465)). Therefore, there is no nexus between Mr. Loines’ vehicle, parked away from the house, and the items particularized in the search warrant. Even though the intention of the warrant was to locate controlled substances, the warrant did not permit law enforcement to search beyond the geographical location described within. This is especially true considering the officers had ample opportunity to obtain a valid warrant for the vehicle.
The government argues that Det. Kopchak was able to identify the “bag of dope” immediately as the twisted end of the bag resembled items from earlier in the investigation, and the lottery ticket’s presence corroborated his belief that the plastic he could see was a bag of narcotics. Further, the government asserts that given Det. Kopchak’s extensive experience in the field, and that Det. Kopchak had participated in acontrolled buy on April 21, 2020, during which time Mr. Rivers used the vehicle to sell drugs to an informantin a package almost identical to the one seen in this search, the incriminating nature of the plastic bag was readily apparent.
However, as discussed above, from the vantage point of the street, or through the Nissan’s tinted windows, the purported bag of narcotics is not visible. What Det. Kopchak saw of the plastic bag from outside the vehicle, besides a simple statement that he saw a “bag of dope,” has not been established on the record.However, assuming Det. Kopchak could see inside the car, he testifies that he could see a Black and Mild cigar wrapper and a lottery ticket from outside the vehicle. Neither are “intrinsically incriminating.” Innocuous items that could be used for criminal activity are not enough to establish probable cause.
Det. Kopchak does not claim to have seen narcotics or any residue on the lottery ticket, makes no claim that the cigar wrappers could be contraband, and provides no description of the plastic bag from outside the vehicle. It was not until the officers entered the vehicle and closely inspected the center console, that the “bag of dope” was observed to be apparently incriminating. This close inspection of the inside of the carconstituted a further search unsupported by probable cause.
The objects purportedly seen by Det. Kopchak were not immediately and apparently incriminating.Accordingly, the officers lacked probable cause to search the vehicle.
Legally Present
Mr. Loines argues that Det. Kopchak committed trespass when he cupped his hand or hands against the Nissan’s tinted windows to see inside Mr. Loines’ vehicle, and therefore, Det. Kopchak’s touching of the car is per se unreasonable under the Fourth Amendment. Because we find that the objects claimed to be seen by Det. Kopchak were not in plain view, the Court need not determine whether he was legally permitted to place his hand on the car window to facilitate or enhance his view of the inside of the car.
Holding
For the reasons set forth above, this Court reverses the district court’s denial of Defendant’s motion tosuppress, vacates his conviction, and remands the case for further proceedings consistent with this decision.
Information for this article was obtained from United States v. Loines, No. 22 – 3073.
This case was issued by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Ohio and Tennessee.
Lessons Learned:
- The Sixth Circuit Appellate Court determined that a baggie of dope nestled in the center console was not admissible because the detective’s actions did not comport with the Plain View Doctrine.Specifically, the bag of dope visible through the exterior window was not recognizable as a bag of dope and therefore the bag was not ‘Immediately Apparent’ that it was contraband. The court went on to call the bag of dope an ‘innocuous item’ as it opined “Innocuous items that could be used for criminal activity are not enough to establish probable cause.”. This analysis and conclusion should have been refuted by the body camera video that showed the detective mention to the on-scene lieutenant contemporaneous with the observation “From this vantage point, Det. Kopchak claims he was also able to view a small plastic bag that he immediately identified as “a bag of dope.” Lieutenant Charles DiPenti approached the car’s passenger side, looked through the window, and verbally indicated that he also saw the “bag of dope.”. Despite these incriminating factors the Sixth Circuit determined the Plain View Doctrine’s prong of ‘Immediately Apparent” was not met.
- In 1981 the U.S. Supreme Court issued S. v. Cortez, 449 U.S. 411 (1981) and provided the following excerpt that would have been instructive to the Sixth Circuit Appellate Court if it had applied this on-point language “[T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” U.S. v. Cortez, 449 U.S. 411, 418 (1981). I provide this contrast because the court looked at the body camera and determined that the bag of dope was simply a Ziplock baggie and concluded it was an “innocuous item”. However, to trained narcotic investigators such as Detective Donald Kopchak and Lieutenant Charles DiPenti, the bag was much more than discarded Ziplock baggie that recently contained Cheez-Its, rather it contained felony-level narcotics. Keep in mind that law enforcement does not have to be right … only reasonable as the U.S. Supreme Court held in 1990 “[P]olice officers conducting a search or seizure under one of the exceptions to the warrant requirement – is not that they always be correct but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). Here, Det. Kopchak and Lt. DiPenti were both right AND reasonable!
- The question that remains that the Sixth Circuit inexplicably side-stepped, was whether the detective violated the Plain View Doctrine when he placed his hand against the tinted window and peered inside.The third prong of the Plain View Doctrine holds “(3) The officer must lawfully be in the place from where the item can be plainly seen.”. If an officer places his face against at tinted window and cup his hand against the glass to reduce the glare of the sun …. does that violate whether he was lawfully in the spot for observation? The Sixth Circuit purposely did not answer when it held “Because we find that the objects claimed to be seen by Det. Kopchak were not in plain view, the Court need not determine whether he was legally permitted to place his hand on the car window to facilitate or enhance his view of the inside of the car.”. This question remains unanswered.
- This is now valid case law that every officer in Kentucky, Michigan, Ohio and Tennessee must follow. Perhaps the U.S. Supreme Court should modify the Plain View Doctrine and include that the incriminating nature of the object must be ‘immediately apparent’ to the on-scene officers and ‘sluggishly apparent’ to the judge’s review of body camera footage from his office.
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