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STATE OF OHIO v. SUDINIA JOHNSON

November 29, 2010

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SUDINIA JOHNSON, DEFENDANT-APPELLANT.



CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2008-11-1919

The opinion of the court was delivered by: Hendrickson, J.

Cite as State v. Johnson,

OPINION

{¶1} Defendant-appellant, Sudinia Johnson, appeals his conviction in the Butler County Court of Common Pleas for one count of trafficking in cocaine and the accompanying specifications and forfeitures. We affirm the decision of the trial court.

{¶2} Detective Mike Hackney, a supervisor in the drug and vice investigations unit for the Butler County Sheriff's Office, received information from three separate confidential informants that Johnson was trafficking in cocaine. Specifically, Hackney was informed that Johnson recently dispersed multiple kilos of cocaine, Johnson was preparing to acquire seven more kilos, and that Johnson moved the cocaine in a van. According to Hackney's testimony at the motion to suppress hearing, he had been familiar with Johnson possessing and driving a white Chevy van at the time the informants gave him the information.

{¶3} Hackney and two other agents performed a trash pull at Johnson's residence, and while there, attached a GPS device to Johnson's van that was parked on the east side of the road opposite the residences. Hackney testified that he attached the GPS device to the metal portion of the undercarriage of the van. Hackney stated that the device was "no bigger than a pager," and was encased in a magnetic case so that the device did not require any hard wiring into the van's electrical systems.

{¶4} Hackney also testified regarding the information the agents received from the trash pull. Within Johnson's trash, the agents found credit card transaction receipts from gas purchased on the same day from stations in Cincinnati and Chicago.

{¶5} After attaching the device, the agents intermittently tracked the GPS through a secured website. The Tuesday after installation, the GPS indicated that the van was located in a shopping center in the area of Cook County, Illinois. Hackney began making arrangements with law enforcement in Chicago to verify the location of Johnson's van. Bob Medellin, a retired Immigration and Customs officer and employee of the Butler County Sherriff's Office, informed Hackney that he was from the Chicago area and was familiar with the shopping center. Medellin then contacted his brother, Rudy Medellin, also a retired Immigration and Customs officer, who agreed to go to the shopping center and verify the location of Johnson's van.

{¶6} Medellin arrived at the Chicago shopping center and confirmed the van's location, and that the van matched the description and license plate number of the van Johnson was known to possess and drive. Hackney and Medellin continued to communicate, and Medellin reported that two men were in the van. Medellin then followed the van from the shopping center to a residence in the Chicago area, where he saw the two men exit the van and enter the residence.

{¶7} Medellin saw one man, later identified as Johnson, exit the residence carrying a package or box, and enter the van. Medellin saw the other man, later identified as Otis Kelly, drive away in a Ford that had Ohio plates. Medellin followed Johnson's van and the Ford until they reached the Butler County area, and communicated with Hackney via cell phone during the surveillance.

{¶8} Hackney continued to contact law enforcement officials throughout Ohio, readying them to assist once Johnson and Kelly entered Ohio from Indiana. Hackney drove toward Cincinnati, and after coming upon Johnson's van, began to follow him. Hackney advised law enforcement officers to stop the van and Ford "if they were able to find probable cause to make a stop." Deputy Daren Rhoads, a canine handler with the Butler County Sheriff's Office, initiated a stop after Johnson made a marked lane violation.

{¶9} According to Rhoads' testimony, he spotted Kelly's Ford and Johnson's van and pulled out behind Johnson after another officer began following Kelly's Ford. Rhoads then observed Johnson's van cross over "the fault line before approaching the traffic light" at an intersection. At that point, Johnson's van was in the lane to travel straight through the intersection when instead of going straight, he made an "abrupt right turn," crossing over two lanes of traffic in the process.

{¶10} By the time Rhoads initiated the traffic stop, other officers were also in the position to offer back-up. Officers directed Johnson to exit his vehicle, and then escorted him onto the sidewalk so that Rhoads could deploy his canine partner. The canine made a passive response on the driver's side door and on the passenger's side sliding door. After the canine walk-around, Johnson gave his consent to have the van searched.

{¶11} Rhoads and other officers performed a preliminary sweep of Johnson's van for narcotics, but did not find any drugs or related paraphernalia in the vehicle. During this time, police vehicles and Johnson's van were situated on the road. After the initial search, officers moved Johnson's van approximately one-tenth of a mile to the location where police had pulled over the Ford driven by Otis Kelly. Officers there had also deployed two canine units around Kelly's Ford, and the canines detected the presence of narcotics. The officers ultimately located seven kilos of cocaine within a hidden compartment in the Ford's trunk, and arrested Kelly for possession of cocaine.*fn1

{¶12} Once the van was situated at the second location, Rhoads continued his search with the help of an interdiction officer for the Ohio State Highway Patrol. The two concentrated on the undercarriage of the van, and looked for any hidden compartments that Rhoads may have missed during his preliminary search. No drugs were recovered from the van.

{¶13} During the search, Johnson was placed in the back of a police cruiser, and Agent Gregory Barber spoke to Johnson after he received his Miranda warning. According to Barber's testimony at the motion to suppress hearing, Johnson told Barber, "you guys got me." Officers later seized Johnson's keys and discovered that one of the keys on Johnson's key ring opened the hidden compartment in the Ford that contained the seven kilos of cocaine seized from Kelly's vehicle.

{¶14} Johnson was later transported to jail where he was Mirandized a second time before he continued his conversation with Barber. Johnson told Barber that he picked up the cocaine in Chicago and was going to sell it in Middletown in order to pay back money he owed the original sellers in Chicago. Johnson also told Barber that he spent the rest of the money on televisions, shoes, clothing, and "a lot of shopping," and that all of the merchandise was located at his home. Barber applied for and was granted warrants to search Johnson's home and a storage unit. Officers executed the warrants and seized over 50 pairs of Nike Air Jordan shoes, all-terrain vehicles, four flat-screen televisions, clothing, a gun, and multiple vehicles.

{¶15} Johnson was indicted on single counts of trafficking in cocaine, possession of cocaine, and having weapons while under disability. Johnson filed multiple motions to suppress, arguing that law enforcement was required to seek a warrant before attaching the GPS device to his van, that the traffic stop was unlawfully initiated, that Johnson was detained beyond the time frame necessary to issue a ticket or warning, that the search warrants were not supported by probable cause, and that Johnson was denied his right against self-incrimination. After a hearing on the motions, the trial court denied each in turn.

{¶16} Johnson pled not guilty to the having weapons while under disability charge and was acquitted by the trial court. Johnson pled no contest to the remaining charges and specifications, and was found guilty by the trial court. After the counts were merged for sentencing, the trial court sentenced Johnson to a 15-year prison term and also found that the seized vehicles, televisions, shoes, clothing, and firearm were subject to forfeiture. Johnson now appeals the decision of the trial court, raising the following assignments of error.

{¶17} Assignment of Error No. 1:

{¶18} "THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRES [SIC] WHEN IT RULED POLICE DID NOT NEED A SEARCH WARRANT TO PLACE A GPS TRACKING DEVICE ON MR. JOHNSON'S CAR."

{¶19} In Johnson's first assignment of error, he asserts that the trial court erred by not granting his motion to suppress regarding the placement of the GPS device without first obtaining a warrant. This argument lacks merit.

{¶20} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, Preble App. No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis, Butler App. No. CA2005-03-074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶12.

{¶21} The Fourth Amendment to the United States Constitution guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ***." In order to employ the Fourth Amendment protections, a defendant must have a "constitutionally protected reasonable expectation of privacy." Katz v. United States (1967), 389 U.S. 347, 360, 88 S.Ct. 507. The Supreme Court directs reviewing courts to consider a two-part test in order to determine whether the Fourth Amendment is implicated. "First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo (1986), 476 U.S. 207, 211, 106 S.Ct. 1809, citing Katz at 360.

{¶22} Johnson asserts that he had a reasonable expectation of privacy in his van so that law enforcement should have obtained a search warrant before placing the GPS device on the undercarriage of his van. However, we find that placing the GPS on the van and monitoring its movement did not constitute a search or seizure under either the Federal or Ohio Constitution.

{¶23} The Supreme Court has long held that there is no reasonable expectation of privacy in the exterior of a car because "the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a 'search.'" New York v. Class (1986), 475 U.S. 106, 114, 106 S.Ct. 960. See, also, United States v. Rascon-Ortiz (C.A.10, 1993), 994 F.2d 749, 754 (holding that "the undercarriage is part of the car's exterior, and as such, is not afforded a reasonable expectation of privacy").

{ΒΆ24} Rather than merely looking under Johnson's undercarriage, Detective Hackney placed a magnetized GPS device on the van. Therefore, in order to determine whether Hackney placing the device constituted a search or seizure, we must first consider whether Johnson has ...


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