[W]e conclude that Trooper Knowles lawfully observed the ammunition cartridge and the plain view exception applies.

 

State v. Gibbs

2023 – Ohio – 4223

Ninth District Appellate Court

Summit County, Ohio

November 22, 2023

Speed and Marked Lane Violations

On May 9, 2021, Ohio State Highway Patrol (“OSHP”) Trooper Jason Fowler was parked in the median on I-77 when he observed an F250 pickup truck, later determined to be driven by Mr. Gibbs, traveling 78 mph in a 65-mph zone. Trooper Fowler testified that the truck almost struck another vehicle and that he observed the truck commit two marked lane violations. Trooper Fowler initiated a traffic stop after observing the two marked lane violations. The validity of the traffic stop is not at issue on appeal.

 Miranda Warning Issued

The traffic stop occurred at night on I-77. It was dark and the area was not well lit. For safety reasons, Trooper Fowler patted-down Mr. Gibbs and placed him in the back of the cruiser. Once inside the cruiser, Trooper Fowler immediately read Mr. Gibbs his Miranda rights. Trooper Fowler described Mr. Gibbs’ initial demeanor as “normal.”

 Nine Millimeter Bullet in Plain View

OSHP Trooper Adam Knowles was the secondary officer on the scene as he arrived after Trooper Fowler initiated the traffic stop. Trooper Knowles’ assistance included watching traffic, so he “could call out if we were going [to] get hit or not[,]” and walking around looking inside the truck. When looking inside the truck’s windows with a flashlight, Trooper Knowles “saw a loose nine millimeter cartridge on the floor.” Trooper Knowles testified that the ammunition cartridge was on the passenger’s side floor.

 Mr. Gibbs Claims Looking In an Open Car Window is a Fourth Amendment Violation

It is Mr. Gibbs’ position that his constitutional rights were violated when Trooper Knowles leaned through the truck’s open windows when looking inside. Trooper Knowles testified that he neither entered nor leaned through the truck’s windows when looking inside the vehicle.

 Mr. Gibbs Becomes Nervous

After learning that Trooper Knowles observed a loose ammunition cartridge on the truck’s floor, and after advising Mr. Gibbs of his Miranda rights, Trooper Fowler asked Mr. Gibbs if there was a firearm inside the truck. According to Trooper Fowler, Mr. Gibbs became “more nervous” as he talked about going “into the vehicle to do a protective sweep for the gun.” Trooper Fowler was going to conduct a protective sweep for the officers’ safety as well as the safety of the community. Trooper Fowler also questioned Mr. Gibbs about a digital scale seen inside the truck.

 Gun or No Gun?

Upon further questioning, Mr. Gibbs disclosed to Trooper Fowler that he had an unloaded firearm in the side water-bottle holder of his backpack. The backpack was located on the front passenger seat of the truck. Trooper Fowler testified that he did not believe the firearm was unloaded considering the loose ammunition cartridge found on the floor, Mr. Gibbs’ change in demeanor, and Mr. Gibbs changing his story that “he didn’t have a gun, then he said he did.

 Drugs and a Loaded Firearm

Trooper Fowler located a loaded firearm in the backpack. Drugs were also found in the truck. At the suppression hearing, neither Mr. Gibbs nor the State presented testimony as to the continued search of the truck and the discovery of the drugs.

 Major Drug Offender

Mr. Gibbs was charged with aggravated trafficking in drugs in violation of O.R.C. §2925.03(A)(2)(C)(1)(f), a felony of the first degree with a major drug offender specification; aggravated possession of drugs in violation of O.R.C. § 2925.11(A)(C)(1)(e), a felony of the first degree with a major drug offender specification; trafficking in a fentanyl-related compound in violation of O.R.C. §2925.03(A)(2)(C)(9)(h), a felony of the first degree; possession of a fentanyl- related compound in violation of O.R.C. §2925.11(A)(C)(11)(g), a felony of the first degree; trafficking in cocaine in violation of O.R.C. §2925.03(A)(2)(C)(4)(f), a felony of the first degree, possession of cocaine in violation of O.R.C. §2925.11(A)(C)(4)(e), a felony of the first degree; improperly handling firearms in a motor vehicle in violation of O.R.C. §2923.16(B)(I), a felony of the fourth degree with criminal forfeiture specifications; and receiving stolen property in violation of O.R.C. §2913.51(A)(C), a felony of the fourth degree. The State subsequently dismissed the major drug offender specification.

 Motion to Suppress is Denied and Plea

Mr. Gibbs filed a motion to suppress all statements and evidence from the May 9, 2021 traffic stop. After an oral hearing was held, the trial court denied Mr. Gibbs’ motion to suppress. Mr. Gibbs then pleaded no contest to the charges.

 Mr. Gibbs appeals …

Mr. Gibbs argues in his first assignment of error that, in denying his motion to suppress, the trial court violated his right to be secure from an unreasonable search and seizure under the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 14 of the Ohio Constitution. We disagree.

 In denying Mr. Gibbs’ motion to suppress, the trial court concluded that Trooper Knowles acted reasonably by walking around the truck and looking inside. The trial court found that the totality of the circumstances did not support a constitutional violation and that Trooper Knowles did not manipulate the window or alter anything in the truck when he looked into the vehicle. The trial court’s decision was based on the troopers’ testimony at the suppression hearing and the dash and cruiser cam videos from Trooper Fowlers’ cruiser, admitted as Exhibit 1 at the suppression hearing. In assessing the credibility of the witnesses, the trial court found that Trooper Knowles’ testimony was credible and it accepted Trooper Knowles’ version of the facts. The trial court was in the best place to evaluate the trooper’s credibility.

 Plain View Exception

One exception to the warrant requirement is the plain view exception. State v. Williams, 55 Ohio St.2d 82, 84 (1978). The plain view exception “is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost.” Illinois v. Andreas, 463 U.S. 765, 771 (1983). Evidence may be seized under the plain view exception if it is shown that the police are lawfully in a position to observe the item firsthand; the police inadvertently discovered the object; and, if it was immediately apparent that the item was incriminating. State v. Halczyszak, 25 Ohio St.3d 301, 303 (1996). 

Crossed the Threshold of a Vehicle Window?

The validity of the traffic stop is not at issue in this appeal. Additionally, no arguments have been raised as to whether the troopers inadvertently discovered the incriminating evidence or whether it was immediately apparent that the item was incriminating. Rather, at issue on appeal is whether Trooper Knowles crossed the threshold of the truck’s open windows when looking inside the vehicle. It is undisputed that, provided Trooper Knowles did not cross the threshold of the truck’s windows, he could lawfully walk around the vehicle and look inside.

Trooper Knowles testified at the suppression hearing that he did not enter or lean into the passenger or driver’s side windows of the truck. Trooper Knowles testified:

A. I did a plain view search of the vehicle.

A. I walked around the vehicle and looked inside the window.

Q. Were you able to see anything?
A. I was.

Q.What did you see?
A. I saw a loose nine-millimeter cartridge on the floor.
Q. Did you enter the vehicle during that search?

A. No.
Q. At any time did you lean through that window of the vehicle?

A. No.
Q. You did not?

A. No.

When asked whether Trooper Knowles broke the barrier and entered the truck’s windows, Trooper Fowler testified “I didn’t see him do that. I did not see that.”

No Evidence Trooper Crossed the Window Threshold

The trial court found that the dash cam video “does not conclusively support either party’s version of the facts.”The court found that it is unclear from the video whether Trooper Knowles exceeds the threshold of the truck’s window or whether Trooper Knowles merely leans over the windshield and looks through the windshield into the vehicle. “Without clear evidence to the contrary,” the trial court found “that Trooper Knowles’ testimony that he did not enter the vehicle during the search was credible and [it accepted] Trooper Knowles’ version of the facts.”  

As previously noted, the plain view exception is one exception to the warrant requirement. Williams, 55 Ohio St.2d at 84. At issue in this appeal is whether Trooper Knowles lawfully observed the ammunition cartridge. If Trooper Knowles was lawfully able to observe the ammunition cartridge firsthand, the plain view exception applies.

Trooper Knowles testified that he did not lean into or enter the truck’s windows when looking inside. Trooper Fowler testified that he did not see Trooper Knowles lean into or enter the truck’s windows when looking in the vehicle. The trial court found the troopers’ testimony credible. The trial court also found, because it is unclear in the video if Trooper Knowles crossed the threshold of the window or whether Trooper Knowles was leaning over the windshield to look through the windshield and into the vehicle, that the dash cam video did not support either party.

Accepting the trial court’s findings as true, and applying the law to the facts, we conclude that Trooper Knowles lawfully observed the ammunition cartridge and the plain view exception applies.

Concern for the Safety of the Officers or Others Exception

Mr. Gibbs further argues in his first assignment of error that, once the ammunition cartridge was found, his constitutional rights were violated when he was asked whether a firearm was inside the vehicle and the troopers conducted a search for the firearm. We disagree.

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible

Another exception to the warrant requirement is when an officer has a concern for the safety of the officer or others. In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held that a police officer may conduct a brief, warrantless search of an individual’s person for weapons if the officer has a reasonable and articulable suspicion that the “individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.” Id. at 24. The court extended its precedent in Terry to protective searches of automobiles in Michigan v. Long, 463 U.S. 1032 (1983), holding that; the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of the weapons. Id. at 1049, citing Terry at 21. The Long court further stated that “protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may raise from the possible presence of weapons in the area surrounding the suspect.” Id. at 1049.

Objective Standard

In determining whether a protective search is justified, courts apply an objective standard to determine if the “facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.’” State v. Bobo, 37 Ohio St.3d 177, 178-179 (1988), quoting Terry at 21-22. Applying this objective standard, courts review the totality of the circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991), citing United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976).

Who Wouldn’t be Nervous with Hidden F1 Fentanyl as a Major Drug Offender

Trooper Fowler testified that Mr. Gibbs became “extremely nervous” when Trooper Knowles was looking in the truck windows. According to Trooper Fowler, Mr. Gibbs “wasn’t like that when I first talked to him and I had him out of the car. Once he seen Trooper Knowles, he did become nervous.” Mr. Gibbs previously told Trooper Fowler that he did not have a CCW. In light of Mr. Gibbs’ change in demeanor and the discovery of the ammunition cartridge, Trooper Fowler became concerned that there was a firearm in the truck. Trooper Fowler “wasn’t confident that [Mr. Gibbs] didn’t have a gun in the vehicle, so [he] wanted to make sure before [he] let him go.” Trooper Fowler testified that “[I]f they’re not supposed to be carrying a gun and he goes down the road and shoots somebody, then it comes back to me.” Trooper Fowler further testified that he was concerned for officer safety and the concern that “[I]f they have a gun and pull it out on us and shoot us.”  

[W]e conclude that the trooper had a valid safety concern

Once the ammunition cartridge was found in plain view, and based on his experience and interaction with Mr. Gibbs, Trooper Fowler testified that he had safety concerns. In light of Trooper Fowlers’ safety concerns, he questioned Mr. Gibbs about whether a firearm was inside the truck. The record establishes that Trooper Fowler advised Mr. Gibbs of his Miranda rights as soon as Mr. Gibbs was placed in the back of the police cruiser. Mr. Gibbs subsequently told Trooper Fowler, after being advised of his Miranda rights, that there was a firearm in the side water bottle holder of his backpack. Based on the totality of the circumstances, “through the eyes of the reasonable and prudent police officer”, we conclude that the trooper had a valid safety concern. Andrewsat 87-88. In light of the trooper’s safety concern, there was no violation of Mr. Gibbs’ constitutional rights when he was asked whether a firearm was inside the truck and the trooper conducted a search for the firearm.

Overruled

Based on our review of the record, the trial court properly denied Mr. Gibbs’ motion to suppress. Mr. Gibbs’ first assignment of error is overruled.

Mr. Gibbs argues in his second assignment of error that, in denying his motion to suppress, the trial court violated his rights against self-incrimination under the United States and Ohio Constitutions. We disagree.

Was Mr. Gibbs’ Fifth Amendment Right Violated?

Mr. Gibbs does not dispute that he was advised of his Miranda rights after being placed in the backseat of Trooper Fowlers’ cruiser. It is Mr. Gibbs’ position that his statements given, both before and after he was Mirandized, were involuntary and were a result of coercion. 

Mr. Gibbs is a Liar

After Mr. Gibbs was Mirandized, Trooper Fowler asked him if he had a firearm. Mr. Gibbs said that he did not have a firearm. Trooper Fowler again inquired as to whether there was a firearm in the truck, and Mr. Gibbs said that he was not sure but there might be one. When Trooper Fowler said that he was going to look in the truck for a firearm, Mr. Gibbs again said that there was no firearm in the vehicle. Mr. Gibbs subsequently admitted that there was a firearm in the side water bottle holder of his backpack.

Demeanor Change

Trooper Fowler testified why he questioned Mr. Gibbs about the firearm. Mr. Gibbs previously told Trooper Fowler that he did not have a CCW. An ammunition cartridge was seen on the floor of the truck and Mr. Gibbs’ demeanor had changed. Trooper Fowler testified that he had a concern for the safety of others as well as the officers. Trooper Fowler testified that he wanted to verify that Mr. Gibbs did not have a firearm before he let him go.

No Miranda or other Constitutional Violations

There is no evidence of coercive police conduct, nor is there any evidence that Mr. Gibbs’ will was overborne and his capacity for self-determination impaired due to coercive police conduct. Mr. Gibbs was pulled over for a traffic violation. The stop occurred along I-77 and it was dark outside. For safety reasons, Trooper Fowler had Mr. Gibbs come to the back of the cruiser to run his information and issue a citation. Once inside the cruiser, Trooper Fowler advised Mr. Gibbs of his Miranda rights. Mr. Gibbs was advised of his Miranda rights before he was questioned about whether a firearm was inside the truck. Appellant offers no evidence that there was any physical or psychological coercion or other police misconduct that so overbore his will to establish his statements were not voluntary. As we previously concluded, Trooper Knowles lawfully saw the ammunition cartridge in plain view when looking into Mr. Gibbs’ truck and, in light of his concern for officer safety and the safety of others, Trooper Knowles lawfully inquired about whether a firearm was in the vehicle.

Conclusion

Accordingly, for the reasons set forth above, the trial court did not err in denying Mr. Gibbs’ motion to suppress. Mr. Gibbs’ second assignment of error is overruled.

Mr. Gibbs was sentenced to eleven to sixteen and a half years.

Information for this article was obtained from State v. Gibbs 2023 – Ohio – 4223.

State v. Gibbs 2023 – Ohio – 4223 was issued by the Ninth District Appellate Court on November 22, 2023 and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.

Lessons Learned:

  1. Plain View Doctrine – The Plain View Doctrine established in Horton v. California, 496 U.S. 128 (1990) as it is a three-part test: (1) Officers must be legally on the premises from where the observation is made; (2) Officer must not violate the Fourth Amendment to make the observation and (3) The incriminating nature of the item must be immediately apparent. Here Mr. Gibbs claimed that Tr. Knowles violated the Fourth Amendment by crossing the threshold of the open window and thereby violating the second prong of the Plain View Doctrine – violating the Fourth Amendment to make the observation. Here the court opined “[B]ecause it is unclear in the video if Trooper Knowles crossed the threshold of the window or whether Trooper Knowles was leaning over the windshield to look through the windshield and into the vehicle, that the dash cam video did not support either party.”.
  2. Is Leaning Through an Open a Window of a Vehicle a Fourth Amendment Violation? On December 8, 2022 the Supreme Court of Ohio issued State v. Jackson, 2022 – Ohio – 4365.  The court evaluated whether opening a car door can be a search.  The court held in pertinent part; “None of this is to say that an officer’s opening of a car door can never constitute a search. If an officer opened a car door without the owner’s permission for the purpose of ascertaining what was inside the car, such conduct might well constitute a search—it would be a physical trespass “conjoined with … an attempt to find something or to obtain information.” See United States v. Jones, 565 U.S. 400, 407, fn. 5 (2012)Applying this analysis to an open window is congruent.  Law enforcement may not cross the threshold of a vehicle door or window without at least Reasonable Suspicion and potentially Probable Cause. Though a vehicle has a lower expectation of privacy than a home, there remains some level of privacy that citizens enjoy. For more on State v. Jackson, 2022 – Ohio – 4365 see Is Opening a Car Door on a Lawfully Stopped Car a ‘Search’?
  3. Pre-Sent Arms! Both Ohio State Highway Patrol Trooper Jason Fowler and Trooper Adam Knowles should be highly commended for getting this major drug trafficker off the street.  Well done!

Does your agency train on Vehicle Searches?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.