But this type of subjective scrutiny into the officer’s state of mind is exactly what the Supreme Court dispensed with in Horton.

State v. Lane

2023 – Ohio – 4044

First District Appellate Court

Hamilton County, Ohio

November 8, 2023

 

Mr. Lane is Arrested on Drug Trafficking Warrants

In January 2022, a Cincinnati police officer assigned to track down a few people with open warrants zeroed in on Mr. Victor Lane, with two open drug-trafficking warrants. From police surveillance, the officer spotted the minivan Mr. Lane was known to drive in the parking lot of an apartment complex and observed him exit from an apartment and enter the minivan. As he pulled out of the complex’s parking lot, the officer intercepted him by stopping his vehicle. The officer ordered him to exit from the minivan, handcuffed him, and placed him in custody.

Marijuana was In Plain View and the Minivan was Chock Full of Contraband

After securing Mr. Lane (and being joined by backup), the officer, using a flashlight, looked into the minivan and observed an open backpack with a large plastic bag containing what he believed to be marijuana in plain view. The officers then opened the door, secured the evidence, and searched the minivan. In the same backpack, officers found cocaine, a loaded semiautomatic handgun, and a digital scale. Elsewhere in the minivan, officers found another bag containing marijuana and cash. The Hamilton County grand jury returned a seven-count indictment against Mr. Lane, charging various weapons-related offenses, drug trafficking, and drug possession.

Motion to Suppress is Granted

Mr. Lane requested that the trial court suppress the evidence discovered, maintaining officers had no right to search the minivan because he could not access the vehicle at the time of the search, and the officers had no reason to believe that any contraband existed in the minivan. After a hearing, the trial court granted the motion to suppress, indicating that the “plain view” exception did not apply because the officer’s conduct was deliberate, rather than inadvertent. The state now appeals.

Appeal

In its sole assignment of error, the state challenges the trial court’s plain view ruling, seeking to justify the search under the automobile exception to the warrant requirement because the discovery of marijuana in plain view provided the officers with probable cause to search the minivan.

Established Case Law

A warrantless search of a lawfully stopped automobile does not violate the Fourth Amendment if the officer has “ ‘probable cause to believe the vehicle contains contraband.’ ” State v. O’Neal, 2023-Ohio- 3268.  Generally, the observation of contraband in plain view “[P]rovide[s] probable cause for the officers to believe the vehicle contain[s] contraband and to conduct a warrantless search under the automobile exception to the warrant requirement.State v. Wilson, 2018-Ohio-2377.

When the United States Supreme Court first articulated the plain view exception, “[I]t prescribed a ‘three-part analysis. First, the initial intrusion that brought the police into a position to view the object must have been legitimate. Second, the police must have inadvertently discovered the object. Third, the incriminating nature of the object must have been immediately apparent.’State v. Thompson, 2021-Ohio-3184. However, the Court later clarified that the Fourth Amendment does not impose an inadvertence requirement in the plain view analysis, reasoning that applying a standard dependent “[U]pon the subjective state of mind of the officer” causes significant difficulty in attaining “evenhanded law enforcement.” Horton v. California, 496 U.S. 128, 138 (1990). As a result, the inquiry largely collapses into a consideration of whether the officers legitimately had a right to be where they witnessed the incriminating evidence, and the incriminating nature of the evidence must be readily apparent.

Trial Court Engages in Legal Necrophilia – Resurrecting Dead Case Law

The trial court, however, seemed to resurrect the inadvertence requirement, emphasizing: “The question is why. Why did the officer go around and look in the car, his purpose is done … I don’t know why he went around the vehicle and was looking inside.” But this type of subjective scrutiny into the officer’s state of mind is exactly what the Supreme Court dispensed with in Horton. 

Inadvertence is Not an Element of the Plain View Doctrine

On appeal, Mr. Lane acknowledges that inadvertence is no longer required for a plain view search under the Fourth Amendment, but he seeks to salvage the suppression ruling by pointing to Article 1, Section 14 of the Ohio Constitution, insisting that the state charter supplies an inadvertence requirement not found in its federal counterpart. However, even if the Ohio Constitution required inadvertence—and Mr. Lane fails to point to any Ohio authority substantiating the point—the search at issue would remain constitutional.

Inadvertence,” in search and seizure parlance, does not mean an officer has to trip over the evidence for it to be in plain view. Rather, to qualify as inadvertent, an officer must “‘[N]ot know in advance the location of [certain] evidence and intend to seize it,’ relying on the plain-view doctrine only as a pretext.” Texas v. Brown, 460 U.S. 730, 737, (1983), quoting Coolidge v. New Hampshire, 403 U.S. 443, 470, (1971). When the officer approached Mr. Lane’s vehicle and peered inside with a flashlight, he did not already know that marijuana was in the vehicle. He may have hoped to discover contraband, but without any particularized knowledge of the evidence to be seized, that potential aspiration does not defeat the (former) inadvertence requirement of the plain view doctrine.

Inadvertence Would Not Aid Mr. Lane

While there is good reason to believe that the Ohio search and seizure requirements differ, at least in some respects, from the federal Fourth Amendment jurisprudence, see State v. Brown, 2015-Ohio-2438, even if we could divine an independent basis for an inadvertence requirement under the state constitution, it would accordingly not aid Mr. Lane on these facts.

Therefore, the warrantless search of Mr. Lane’s minivan “[S]atisfies the plain view exception if: 1) The initial intrusion bringing the officer into a position to view the object was legitimate, and 2) The incriminating nature of the object was immediately apparent.” State v. Thompson, 2021-Ohio- 3184 at ¶ 15.

Is Marijuana ‘Immediately Apparent’ if it could be Medical Marijuana or Hemp?

The state maintains that the officer had probable cause to believe the vehicle contained contraband because, while standing outside the minivan and using a flashlight, he observed an open backpack with “[A] large plastic bag containing marijuana” sitting in the trunk area of the minivan. Mr. Lane does not dispute the legitimacy of the initial intrusion that brought the officer into a position to view the backpack. But he posits that the incriminating nature of marijuana was not immediately apparent. Mr. Lane argues that because marijuana may be possessed for medicinal use and hemp (which could be mistaken for marijuana) is generally legal, the detection of marijuana in a vehicle no longer gives rise to probable cause of illegality. The incriminating nature of an object is immediately apparent when “police have ‘probable cause to associate [the] object with criminal activity.’ ” City of Cincinnati v. Langan, 94 Ohio App.3d 22, 28, (1st Dist.1994). Here, the officer testified that he observed “[N]ot a ziplock bag, but a large plastic bag containing marijuana” in Mr. Lane’s minivan.

Defense Counsel Fail to Raise the ‘Immediately Apparent’ Argument

Regardless, defense counsel never raised this issue at trial, which prevented any factual findings or further exploration of this issue below. Accordingly, we decline to review this issue raised for the first time on appeal the rights and interests involved may warrant it.

Holding

For all of the reasons discussed above, we sustain the state’s assignment of error.

Information for this article was obtained from State v. Lane, 2023 – Ohio – 4044.

State v. Lane, 2023 – Ohio – 4044 was issued by the First District Appellate Court on November 8, 2024 and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Plain View Doctrine Then and Now – In 1971 the U.S. Supreme Court held “Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.” Coolidge v. New Hampshire, 403 U.S. 443 (1971) However, this ‘inadvertent’ requirement established by Coolidgewas eliminated when the U.S. Supreme Court established the three-part Plain View test on June 4, 1990, 1) Officer must be legally on the premises from where the observation is made. 2) Officer must not violate the Fourth Amendment to make the observation. 3) Incriminating nature of the item must be immediately apparent. Horton v. California, 469 U.S. 128 (1990)
  2. Legal Necrophilia – When the Cincinnati Police Officer walked up on the passenger side of Mr. Lane’s minivan, he observed the baggie of marijuana. This observation comported with the three-part HortonPlain View test. For an inexplicable reason the Hamilton County trial court judge resurrected the Coolidge dead case law ‘inadvertent’ element that has been deceased since June 4, 1990, when Horton v. California, 496 U.S. 128 (1990) was issued. This type of legal necrophilia – messing around with dead case law, is harmful to the community and law enforcement.
  3. Inevitable Discovery Doctrine – Another opportunity for the marijuana, cocaine, a handgun and a digital scale to have been discovered was through the Inevitable Discovery Doctrine through the Cincinnati Police inventory policy. Nor the prosecutors in their appeal or First District Appellate Court addressed this legal avenue. However, this may have been another opportunity for the evidence to be admissible.
  4. Pre-Sent Arms! – The unnamed Cincinnati Police Officers involved in this case should be commended for their tenacity to arrest a drug trafficker and their legal acumen of knowing of a ‘new’ legal case issued on June 4, 1990. Well done!

Does your agency train on the Plain View Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.