The description limits officers’ discretion to vehicles on the property and allows for the possibility described by the tipster that different vehicles will be at the residence related to drug trafficking.

State v. Cottrell

2023 – Ohio – 2240

Fifth District Appellate Court

Licking County, Ohio

June 29, 2023

On June 15, 2020, the Pataskala Police Department executed a search warrant at 210 Cedar Street, Lot 31, after information was received and a preliminary investigation showed that drug trafficking was occurring at the address, a house trailer. Upon entering the trailer during execution of the warrant, officers contacted co-defendant Timothy Noble, Mr. John Cottrell, another male, a female, and an infant.

Mr. Cottrell was visiting Lot #10 in this trailer park in Pataskala, Ohio with a hundred pounds of marijuana. Law enforcement detained and searched his Honda Ridgeline discovering his one hundred pounds of marijuana.  Did law enforcement detain and search Mr. Cottrell vehicle lawfully?

The House Trailer and Plain View

Officers found multiple weapons and marijuana in plain view throughout the home. In conducting the search, officers also found multiple bags of varying size of marijuana, large amounts of loose currency, a money counting machine, additional firearms, items used to manufacture “dabs” (THC wax), and paraphernalia.

Search Warrant Authorized a Search of All Vehicles ‘At’ the Residence

In addition to the house, the search warrant also authorized a search of all vehicles at the residence. Officers located three vehicles, including a white Honda Ridgeline registered to Mr. Cottrell. After being Mirandized and interviewed, Mr. Cottrell admitted driving the Honda Ridgeline to the residence. Before the vehicles were searched, a canine performed a free-air search of all three vehicles, and alerted on all three vehicles.

The Ridgeline Contained Six Boxes of Marijuana

Upon searching the Ridgeline, officers found six boxes containing pre- packaged bags of marijuana. The boxes and bags were submitted to BCI for analysis and found to contain 43,804.5 grams [one hundred pounds!] of marijuana, a Schedule I controlled substance which contained THC in an amount greater than three-tenths of a percent of dry weight.

Mr. Cottrell’s Cell Phone Contained Evidence of Drug Trafficking

A cell phone was collected from Mr. Cottrell’s person and subsequently searched pursuant to a search warrant. The contents of the phone showed evidence of drug trafficking. Officers also collected $25 from Mr. Cottrell, purportedly proceeds of drug trafficking.

Indicted

Mr. Cottrell was charged by indictment with one count of aggravated trafficking in marijuana pursuant to O.R.C. §2925.03(A)(2)(C)(3)(g), a felony of the first degree [Count I], and one count of aggravated possession of marijuana pursuant to O.R.C. 2925.11(A)(C)(3)(g), a felony of the second degree [Count II]. The indictment also contained forfeiture specifications pursuant to O.R.C. §2981.02(A)(1)(a) and (b), and O.R.C. §2941.1417(A), for the 2006 white Honda Ridgeline and $25.00 in currency.

Mr. Cottrell entered pleas of not guilty.

Motion to Suppress

On September 25, 2021, Mr. Cottrell filed a motion to suppress arguing he was unlawfully detained during execution of the search warrant; the search warrant for his cell phone was not supported by probable cause; the dog sniff of his vehicle was unreliable; the search of the Ridgeline was unlawful; and his statements were obtained unlawfully. Mr. Cottrell responded with a memorandum in opposition.

Two Judges and Two Separate Motion to Suppress Hearings

Mr. Cottrell’s motion to suppress challenged, in part, a search warrant signed by the judge presiding on the case [Branstool]. Therefore, that portion of the suppression  motion was referred and assigned to a different judge [Marcelain]. Each judge presided over a separate suppression hearing.

Motion to Suppress

Detective Woodyard testified he maintained surveillance on the perimeter of the residence as an entry team went in and secured the occupants. Customarily, anyone found in the home is identified and detained until execution of the search warrant is complete. Woodyard said an individual might be released before the conclusion of the warrant only if they were determined to have no role in the underlying investigation.

Mr. Cottrell was in the Wrong Place at the Wrong Time

In the instant case, four adults and one infant were inside the Cedar Street residence. Two adult males, one of whom is Mr. Cottrell, were the focus of the investigation, although Mr. Cottrell was not the target of the search warrant. Mr. Cottrell walked out of the residence and Det. Woodyard asked to interview him. Mr. Cottrell was already cuffed and not free to leave. Mr. Cottrell told Det. Woodyard he drove to the residence in the white pickup truck parked directly in front of the residence. Later a large amount of marijuana was found inside the white pickup truck.

Investigators were interested in the white pickup truck because the investigation suggested a white pickup truck was involved in drug trafficking at the Cedar Street trailer. Det. Woodyard acknowledged there was nothing in the search warrant specifically about a white pickup truck, but the search warrant was the culmination of a lengthy investigation of tips, surveillance, and watching for a white truck.

What Constitutes ‘At’ the Trailer Without a Distinct Driveway?

The residence is a house trailer with no distinct driveway, although Det. Woodyard testified that between the trailer and the asphalt of the street, there was a “pull- off area” where people would park to enter the residence. The passenger-side tires of Mr. Cottrell’s truck were parked on the property.

Miranda and a Call to Counsel

Mr. Cottrell Exhibit D, a recording of Det. Woodyard’s interview with Mr. Cottrell, was introduced. Mr. Cottrell acknowledged he was inside the residence and Det. Woodyard immediately Mirandized him. Det. Woodyard asked for permission to search Mr. Cottrell’s truck and Mr. Cottrell said he wanted to speak to an attorney. Det. Woodyard asked if he had a phone and Mr. Cottrell indicated his back pocket; because he was cuffed, Det. Woodyard took the phone out of Mr. Cottrell’s pocket and assisted him in making two phone calls in Det. Woodyard’s presence.

Det. Woodyard then seized Mr. Cottrell’s cell phone as evidence and turned the phone over to the lead detective.

Det. Woodyard testified that the house trailer was small and didn’t take long to search; he noted it took longer to search Mr. Cottrell’s truck.

Supervisor Thomas Authors Search Warrant and Examines Cell Phone

Alan Thomas is a retired supervisor of the CODE Task Force who was involved in the investigation on June 15, 2020. Sup. Thomas testified the Pataskala Police Department reached out to CODE for assistance with a narcotics-trafficking investigation. In this case, Thomas authored the search warrant which was signed by Judge Marcelain of the Licking County Court of Common Pleas. The search warrant, which Thomas described as “cookie-cutter,” authorized police to search the property at the Cedar Street address including the trailer, vehicles, detached buildings, and garbage cans. The subjects of the search warrant were Timothy Noble and Sara Doty.

Trailer Park Curtilage

Sup. Thomas testified it is typical for such a warrant to include the curtilage of the residence including outbuildings, detached garages, and vehicles. Typically occupants are detained during execution of the warrant so they may be identified, patted down, and interviewed. There is no time limit on the execution of a search warrant, but execution of this search warrant took about two hours from start to finish.

Sup. Thomas also testified the white pickup truck was parked directly in front of the residence, within the trailer’s lot. Sup. Thomas walked through the residence but did not interview Mr. Cottrell.

Cell Phone Contains Inculpatory Evidence

Sup. Thomas was involved in the search of Mr. Cottrell’s cell phone. Det. Woodyard had a search warrant for all cell phones seized. Sup. Thomas took possession of Mr. Cottrell’s phone and performed a forensic download of its contents. The download was transferred to a thumb drive and given to a different investigator to review the contents.

Pataskala police are tipped off to white truck and drug trafficking at trailer

Anonymous Tips are Corroborated

James Wiles is a detective with the Pataskala Police Department. He testified that in late May 2020, investigators received anonymous tips regarding potential drug activity at the address on Cedar Street and a specific lot number. Police started surveillance of the residence and gathered information for a search warrant. Det. Wiles was present when the warrant was executed and found Mr. Cottrell in the kitchen of the trailer.

Det. Wiles testified a large amount of marijuana was found in the white pickup truck registered to Mr. Cottrell, parked on the street in front of the residence. The tips stated a white truck would arrive at the trailer; boxes would be taken out of the truck into the trailer; then individuals would come out wearing backpacks.

Mr. Cottrell’s Sticker Helps Law Enforcement Investigate

A separate search warrant was obtained for Mr. Cottrell’s cell phone, authorizing extraction of data. Mr. Cottrell’s phone had a unique MEID identification number. Police did not have to open the phone to find the MEID because it was on a sticker on the back of the phone.

Canine Sniff Leads to One Hundred Pounds of Marijuana

Sgt. Detective Gary Smith of the Pataskala Police Department was also present for execution of the warrant. He observed a canine sniff of the exterior of Mr. Cottrell’s white pickup truck and assisted in the search of the vehicle, which yielded one hundred pounds of marijuana. Smith tried to talk to Mr. Cottrell at one point but Mr. Cottrell requested a lawyer and conversation ceased.

Motion to Suppress

On April 4, 2022, the parties appeared very briefly before Judge Marcelain for a motion to suppress arising from the search warrant for Mr. Cottrell’s cell phone. Judge Marcelain indicated he would review the four corners of the warrant and issue a written judgment entry.

Motions to suppress overruled and pleas of no contest

On April 13, 2022, the trial court [Judge Marcelain] filed a Judgment Entry overruling Mr. Cottrell’s motion to suppress the search of the cell phones.

On June 9, 2022, the trial court [Judge Branstool] filed a decision and order overruling the remaining arguments in Mr. Cottrell’s motion to suppress.

On June 28, 2022, Mr. Cottrell appeared before the trial court and changed his previously-entered pleas of not guilty to ones of no contest to Counts I and II and the forfeiture specifications. The trial court found the counts merged for purposes of sentencing and appellee elected to sentence upon Count I. The trial court thereupon imposed an indefinite prison term of four to six years.

Mr. Cottrell now appeals from the trial court’s June 28, 2022 Judgment of Conviction and Sentence.

Mr. Cottrell raises three assignments of error:

Was the Search of the Honda Ridgeline Reasonable?

In his first assignment of error, Mr. Cottrell argues the search warrant for the Cedar Street address did not provide probable cause to search his white pickup truck because it was parked on the public road, there was no nexus between the residence and the truck, the warrant was overbroad, the truck was not “at the above-listed address for the property specified,” and officers did not execute the search in a reasonable manner.

The Search Warrant Did Not Include the Word Curtilage … But Did that Invalidate Curtilage?

Mr. Cottrell argues the search warrant did not extend to his truck because it did not include the curtilage of the residence. The premises search warrant here authorizes a search for illegal drugs and other items in the residence located at 210 Cedar Street lot 31, Pataskala, Oh, and any “detached structures, vehicles, or garbage cans located at the above-listed address for the property specified.” (Emphasis added). Therefore, rather than include vehicles in the catchall term “curtilage,” this search warrant specifies vehicles at the residence are authorized to be searched. Mr. Cottrell’s premise that the absence of the term “curtilage” invalidates the search is not well-taken.

Mr. Cottrell Argues the Meaning of the Word ‘At’

Mr. Cottrell argues his pickup truck was not “at” the residence for purposes of the warrant because it was parked in the public roadway, a claim that is not supported by the record. Several officers testified that the vehicle was parked along the driveway to the trailer park and that it was obvious that the white pickup truck was associated with the residence located at 210 Cedar Street, Lot 31. The tires of the truck were partially on the lot. The trial court found, and we agree, that investigators could reasonably connect Mr. Cottrell, his truck, and their purpose in searching the residence. A white pickup truck was part of the investigation; Mr. Cottrell was found inside the residence and admitted he drove the white pickup truck there.

The Fifth District Appellate Court has a Different Interpretation of the Word ‘At’ Then Mr. Cottrell

We find the search of the truck was authorized by the search warrant. Given where the vehicle was found, we agree that it was on the property to be searched, and law enforcement’s intelligence regarding activity at the residence gave them reason to believe that Mr. Cottrell’s vehicle was associated with not only the premises but also with the targets of the search.

Is the Word ‘Vehicle’ Overbroad When Interpreting a Search Warrant?

Mr. Cottrell next summarily argues the search warrant is overbroad in its reference to “vehicles.” The Fourth Amendment requires a search warrant to particularly describe “ ‘the place to be searched’ and ‘the persons or things to be seized.’ ” United States v. Grubbs, 547 U.S. 90, 97, (2006). The purpose of requiring search warrants to “particularly describe the place to be searched and the persons or things to be seized” is to prevent wide-ranging exploratory searches.” Maryland v. Garrison, 480 U.S. 79, 84, (1987). Courts have identified two primary considerations when evaluating whether a search warrant particularly describes the place to be searched and the person or items to be seized. “The first issue is whether the warrant provides sufficient information to ‘guide and control’ the judgment of the executing officer in what to seize.” State v. Castagnola, 2015-Ohio-1565, quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999). The second issue is whether the category as specified is too broad in that it includes items that should not be seized.” Id. at ¶ 79, citing United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995).

Court Determines that the ‘Vehicles at the property” Actually Meant the Vehicles ‘At’ the Property

A search warrant that includes broad categories of items to be seized may nevertheless be valid when the description is “as specific as the circumstances and the nature of the activity under investigation permit.” Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001), quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988), quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir. 1985). In the instant case, we find the description of vehicles … at … the property specified” is as specific as the nature of the alleged drug trafficking allows. The description limits officers’ discretion to vehicles on the property and allows for the possibility described by the tipster that different vehicles will be at the residence related to drug trafficking.

Does the Fourth Amendment Have a Time Clock?

Finally, Mr. Cottrell argues law enforcement did not execute the warrant in a reasonable manner. In making this determination, a reviewing court must consider whether the police confined the scope of their search to the command contained in the valid warrant. Mr. Cottrell points to no evidence police exceeded the scope of the warrant. Having already found the truck was “at” the property and was reasonably included in the scope of the search warrant, we find law enforcement did not exceed the scope of the search warrant’s command. Mr. Cottrell’s first assignment of error is overruled.

Did the Search Warrant Affidavit Language that Included ‘All Subjects Located at the Above Stated Premises’ Actually Include All Subjects Located at the Above Stated Premises?

In his second assignment of error, Mr. Cottrell argues the seizure and resulting search of his cell phone are unlawful because his detainment as an occupant of the premises was unlawful. The search warrant contains the following relevant description of property and persons to be searched and seized: “cell phones, and the records contained therein or generated thereby, indicating trafficking in or possession of drugs … ; and this warrant shall include the search of all subjects located at the above stated premises at the beginning and during the execution of the warrant.”

Mr. Cottrell was immediately found in the kitchen at the beginning of the execution of the warrant. He argues, though, that he was not an “occupant” of the premises such that he could be detained while the warrant was executed.

Established Case Law that Supports the Detainment and Search of Mr. Cottrell

In Michigan v. Summers, 452 U.S. 692, 705, (1981), the United States Supreme Court authorized law enforcement to detain occupants of a premise subject to a valid search warrant while the search was underway. Detaining such individuals serves three important objectives: (1) prevents flight, (2) minimizes the risk of harm to officers and others, and (3) facilitates the orderly completion of the search. Id. at 702–03. Summers detention does not require a finding of probable cause so long as police have an articulable basis for suspecting criminal activity. Id. at 698–99. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” Id. at 703–04. In Bailey v. United States, 568 U.S. 186, 1 (2013), the Supreme Court narrowed the scope of Summers to “the immediate vicinity of the premises to be searched.” Id. at 1042. In the instant case, Mr. Cottrell was found in the kitchen and based upon the investigation, law enforcement could reasonably connect him to the purpose of the search warrant, especially when he admitted ownership of the white pickup truck.

We find no constitutional violation with respect to Mr. Cottrell’s detention pursuant to Summers or Bailey, supra. Where a search warrant lists the address of the premises in question and includes the right to search all subjects (persons) located at the stated premises at the beginning and during the execution of the warrant, [C]learly Mr. Cottrell was within the purview of the language of the search warrant.” The resulting seizure and search of Mr. Cottrell’s cell phone was lawful.

Mr. Cottrell’s second assignment of error is overruled.

Does the Fourth Amendment have a Time Clock?

In his third assignment of error, Mr. Cottrell argues his detention during execution of the search warrant was unreasonably prolonged.

In the instant case, Mr. Cottrell was found inside the residence upon entry of law enforcement; was briefly Mirandized and questioned; admitted ownership of the white pickup truck; and made two phone calls before his cell phone was seized. It is not evident from the record whether Mr. Cottrell remained on the scene while his truck was searched and 100 pounds of marijuana discovered. Det. Woodyard testified the recovery and seizure of the marijuana took longer than execution of the search warrant. Sup. Thomas testified the whole process took two hours from the start of the execution of the search warrant until everyone was cleared from the scene. We do not discern, and Mr. Cottrell does not reveal, exactly how long he was detained, or in what way his detainment was unnecessarily prolonged.

Mr. Cottrell’s third assignment of error is overruled.

The trial court’s findings of fact are supported by competent, credible evidence and the trial court did not err in overruling Mr. Cottrell’s motion to suppress.

Information for this article was obtained from State v. Cottrell, 2023 – Ohio – 2240.

The Fifth District Appellate Court issued State v. Cottrell, 2023 – Ohio – 2240 on June 29, 2023 and it is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Curtilage Explained and Applied. The critical factor here is whether Mr. Cottrell’s Honda Ridgeline was within the curtilage of the trailer subject to the search warrant.  If the vehicle was within the curtilage then it would be subject to the search warrant as it would be ‘at’ the trailer.  In this case the Fifth District Appellate Court determined the vehicle was within the curtilage as it held “Several officers testified that the vehicle was parked along the driveway to the trailer park and that it was obvious that the white pickup truck was associated with the residence located at 210 Cedar Street, Lot 31. The tires of the truck were partially on the lot … We find the search of the truck was authorized by the search warrant. Given where the vehicle was found, we agree that it was on the property to be searched, and law enforcement’s intelligence regarding activity at the residence gave them reason to believe that Mr. Cottrell’s vehicle was associated with not only the premises but also with the targets of the search.”. The fact that the detective used the phrase ““detached structures, vehicles, or garbage cans located at the above-listed address for the property specified.”, rather than the word curtilage, is not legally fatal. For more on the Curtilage Doctrine see: https://www.objectivelyreasonable.com/category/curtilage/
  2. Can Everyone Inside a Residence Subject to a Search Warrant be Detained? All persons whom are within a residence subject to a search warrant may be detained in accordance with Michigan v. Summers, 452 U.S. 692  (1981). In that case the United States Supreme Court authorized law enforcement to detain occupants of a premise subject to a valid search warrant while the search was underway. Detaining such individuals serves three important objectives: (1) prevents flight, (2) minimizes the risk of harm to officers and others, and (3) facilitates the orderly completion of the search. Id. at 702–03.  Here Mr. Cottrell was at a trailer subject to a narcotics search warrant with one hundred pounds of marijuana.
  3. Does the Fourth Amendment have a Time Clock? Cottrell appealed his conviction, based in part on the length of the time it took law enforcement to execute the search warrant. Supervisor Alan Thomas testified that it took the officers two hours to complete the search warrant.  Depending on the complexity of the area to be searched, the amount of evidence collected, environmental factors such as weather, terrain, bystanders and many others, it may take a long time to complete a search warrant.  Law enforcement should always be diligent from the time the search begins until it concludes, but the Fourth Amendment has no time clock and here the court determined that the amount of time the officers took to complete this search was reasonable.  Here the court held “Sup. Thomas testified the whole process took two hours from the start of the execution of the search warrant until everyone was cleared from the scene. We do not discern, and Mr. Cottrell does not reveal, exactly how long he was detained, or in what way his detainment was unnecessarily prolonged.”.
  4. Pre-Sent Arms! Detective Woodyard, Supervisor Alan Thomas and the unnamed Pataskala officers involved in this investigation should be highly commended. Well done!

 

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