Officer Cramer’s use of a flashlight was permissible and did not preclude application of the plain-view doctrine.
State v. Travick
2023 – Ohio – 460
Eighth District Appellate Court
Cuyahoga County, Ohio
February 16, 2023
Mr. Kevin Travick was charged with carrying a concealed weapon, having weapons while under disability, and improperly handling firearms in a motor vehicle. Following his indictment, Mr. Travick filed a motion to suppress evidence of the firearm seized by police during a traffic stop. At a hearing on the motion, Officer Colton Cramer of the Garfield Heights Police Department testified that on September 19, 2021, he was patrolling the area of Turney Town Plaza at approximately 2:39 a.m. when he observed a “white SUV travel at a very high rate of speed out of the parking lot.” He followed the vehicle as it traveled “45 miles per hour” in an area where the speed limit fluctuated between 25 and 35 miles per hour.
Officer Colton Cramer of the Garfield Heights Police Department stopped Mr. Kevin Travick at the Turney Town Plaza 4908 Turney Road Garfield Heights, Ohio. What happened next was his arrest but Officer Cramer’s search was later found to be unreasonable. How would the Eighth District Appellate Court rule on the evidence?
Officer Cramer observed the vehicle make “a very, very wide right turn,” which “crossed over the center lanes.” He also observed that the driver did not activate the turn signal when making the turn. Eventually, the SUV turned into a residential driveway on Russell Avenue, and Officer Cramer activated his lights and siren just before the vehicle turned into the driveway. The driver exited the vehicle, ran to the side door of the house, and attempted to get inside the house, but the door was locked.
Officer Cramer and his partner “grabbed” the driver, who was later identified as Mr. Travick, and escorted him to the patrol car, which was parked in the street. Almost immediately following the stop, a woman exited the house and asked what was going on. Officer Cramer explained “what was going on” and asked the woman to step aside momentarily, but she continually stated that she needed to “grab something from the vehicle.”Officer Cramer repeatedly asked the woman to “just step away” and “wait until [they were] done.”.
According to Officer Cramer, the woman opened the front driver’s side door and tried to enter the vehicle. Officer Cramer approached the car and observed an open bottle of Patrón in the backseat. He explained:
At that point, you know, when I was up there by the vehicle with her, I could see that there was an open bottle of Patrón in the backseat behind the driver’s seat, rear seat. Several flakes of marijuana all over the center console.
At that point, you know, I went and grabbed the Patrón. Made sure there was no other signs of open containers inside the vehicle tucked under the seat within reach. Investigate[d] the flakes of marijuana. And then while I was leaning inside the vehicle, I observed a handle of a handgun between the driver’s seat and the center console.
He did not explain whether he saw the bottle of Patrón through the open door or whether he saw it through the windows, which were dark and tinted. In any case, the body-camera video shows Officer Cramer shining his flashlight into the car.
On direct examination, Officer Cramer further testified:
Q: At what point did you actually see the alcohol in the vehicle?
A: I believe it was when I ─ after talking to the female, when I had her walk back, I asked what was the male’s name. When I was standing there by the window, I was looking inside the vehicle. I could see the open container right there.
On cross-examination, Officer Cramer stated that Mr. Travick was secured in the patrol car before he went back and looked in the white SUV. When asked what he found in the car that was illegal, Officer Cramer replied that he found “flakes of raw marijuana scattered across the center console” and “an open bottle of Patrón.” Officer Cramer explained that he searched the car to determine if the bottle of Patrón contained alcohol. While he was investigating the Patrón, he discovered the handgun between the driver’s seat and the center console.
Based on the evidence presented at the hearing, the trial court granted the motion to suppress. In reaching this decision, the court explained on the record:
Based on the evidence presented and specifically on the body camera, it appeared that Mr. Mr. Travick was detained. I don’t know if he was under arrest at the time, but he clearly wasn’t free to leave the presence of the officers, and certainly was not in grabbing distance of anything in the vehicle. But my issue is with the plain view doctrine. Those windows were so tinted that unless the officer was shining a flashlight through those windows trying to observe anything in the vehicle, nothing in that vehicle in my estimation could be in plain view.
Plain View Doctrine
The state argues the trial court erred in concluding that the plain-view exception to the warrant requirement was inapplicable because Officer Cramer used a flashlight to see inside the vehicle. The state contends the use of flashlights to see inside a dark car is legal and does not preclude application of the plain-view doctrine.
The plain-view doctrine holds that “[O]bjects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236,
(1968). Under the plain-view doctrine, “an officer may seize an object in plain view without a warrant if:
(1) The police are not violating the Fourth Amendment in arriving in the place where the evidence was found;
(2) The incriminating character of the evidence is immediately apparent; and
(3) The police have a lawful right to access the object itself.” Horton v. California, 496 U.S. 128, 136-137, (1990).
The United States Supreme Court and this court have held that an officer’s use of a flashlight to see contraband does not preclude application of the plain-view doctrine. United States v. Dunn, 480 U.S. 294, (1987); State v. Thurman, 2001 Ohio App. LEXIS 4767 (Oct. 25, 2001).
In Thurman, a police officer approached an occupied vehicle and suspected the occupants were illegally drinking alcohol. The officer “shined a flashlight into the interior” of the car where he observed the butt of a firearm protruding between the driver’s leg and the center console. The officer and his partner placed the occupants under arrest. During an inventory search of the vehicle, the officers found crack cocaine in the glove compartment.
Mr. Thurman filed a motion to suppress, challenging the propriety of the police search that led to his arrest. The motion was denied. On appeal, this court held that the search was valid because the officer observed the gun in plain view. Moreover, we held that “[T]he use of a flashlight during the evening hours does not change our analysis of whether the firearm was in plain view.” Id., citing State v. Lang, 117 Ohio App.3d 29, (1st Dist.1996). See also Cleveland v. Ogletree, 1977 Ohio App. LEXIS 7557 (Apr. 28, 1977) (police seizure of gun in plain view was valid because “the police officer had the right to flash his light into the defendant’s car”).
Therefore, Officer Cramer’s use of a flashlight was permissible and did not preclude application of the plain-view doctrine. The evidence showed that Officer Cramer could see the open bottle of Patrón from outside the vehicle, albeit with the help of the flashlight. And since the car was legally stopped for a traffic violation, Officer Cramer did not violate the Fourth Amendment in arriving at the place where the evidence was found. The trial court’s decision on the plain-view doctrine is, therefore, contrary to law.
Note: Mr. Travick also argued that Officer Cramer violated his Fourth Amendment right of unreasonable search as the officer violated the Automobile Exception to the warrant requirement. The Eighth District Appellate Court held that Officer Cramer was lawful in his search. This article does not analyze Mr. Travick’s Automobile Exception argument.
Information for this article was obtained from State v. Travick, 2023 – Ohio – 460.
This case was issued by the Eighth District Appellate Court and is only binding in Cuyahoga County, Ohio.
Lessons Learned:
- The trial court judge determined that Officer Cramer violated the Plain View doctrine that was established by Horton v. California, 496 U.S. 128, 136-137, (1990). Specifically, the court found that shining a flashlight into a car was unreasonable based on Horton’s first prong: “The police are not violating the Fourth Amendment in arriving in the place where the evidence was found.”. However, shining a flashlight into a car does not violate the Fourth Amendment as held in 1977 Cleveland v. Ogletree, 1977 Ohio App. LEXIS 7557 (Apr. 28, 1977).
- In this case Officer Cramer did well to control the scene that could have gotten out of control when Mr. Travick arrived at the residence and the woman started to reach inside the car. Unbeknownst to Officer Cramer there was a loaded firearm secreted in the car when the woman started to reach into the car. This is a common scenario where drivers, passengers and pedestrians reach back into a car during a stop. Law enforcement must be quick to control the actions and provide clear, lawful orders to desist people reaching into the vehicle. Well done Officer Cramer!
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