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State of Ohio v. Montie E. Sullivan

September 23, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MONTIE E. SULLIVAN DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County Court of Common Pleas, Case No. 10-CR- 0043

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

JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

OPINION

JUDGMENT: Reversed and Remanded

[Cite as State v. Sullivan, 2011-Ohio-4967.]

{¶1} Appellant Montie E. Sullivan appeals the July 22, 2010 Judgment Entry of the Fairfield County Court of Common Pleas overruling his motion to suppress. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE*fn1

{¶2} In January 2010 law enforcement officers from Franklin County, Ohio were investigating a series of home break-ins in the area. Detectives learned that all of the home invasion robberies had similarities. Each robbery involved firearms and in some firearms had been discharged. Each robbery was a home invasion. Each robbery occurred in a suburban or rural area. The robberies occurred in a relatively short time span. Although the robberies occurred in three counties, the counties are contiguous and the robberies occurred in the same region. Victims and/or witnesses described the persons committing the robberies as two African-American males in a white car.

{¶3} The American Automobile Association (AAA) was called to service a disabled white Honda Civic. AAA furnished the make, model and year of the white vehicle. The tow truck driver believed that he was going to service a white Honda Accord; however, when the tow truck driver arrived he found a stolen green Toyota Camry with the engine running crashed into another vehicle. The AAA tow truck driver alerted law enforcement. Upon investigation it was discovered that the car had been stolen in a home invasion robbery and the AAA card that had been used to make the service call had been stolen in a different home invasion robbery. Law enforcement then used LEADS and motor vehicle registration data to discover that the white Honda Civic was registered to appellant.

{¶4} Corporal Richard Minerd of the Franklin County Sherriff's Department used a data base of "associates" and determined that appellant had used an address, 2399 Hudson Bay Way, Columbus, Franklin County. Corporal Minerd had obtained a cell phone search warrant to track appellant's location.

{¶5} Beginning January 11, 2010, detectives monitored and followed the vehicle when it was driven by appellant and/or co-defendant David White, who is a relative of appellant*fn2 . Monitoring and tracking the vehicle was a difficult task due to the mobility of the vehicle. Detectives monitored the vehicle for three days, and no criminal activity was observed.

{¶6} On January 14, 2010, Corporal Minerd sought the assistance of the Franklin County Sheriff's Department's undercover unit to employ electronics as a surveillance tool. Corporal Minerd and an undercover officer went to an address of an associate of appellant where they observed the white Honda Civic parked in the parking lot of an apartment complex. Corporal Minerd and the undercover officer drove up to the white Honda Civic, and the undercover officer went to the white Honda Civic and placed a GPS unit under a bumper of the white Honda Civic. The GPS unit attached to the white Honda Civic sent information which permitted Corporal Minerd to track the movement of the vehicle. Corporal Minerd was able to use a laptop computer to call up a map of the area where the white Honda civic was located. The computer would indicate the block of any given road or street where the vehicle was located, its speed and direction of travel, and the date and time. Corporal Minerd was able to monitor the white Honda Civic movement in "real time". Corporal Minerd did not seek a search warrant before placement of a GPS tracking unit under the bumper of appellant's white Honda Civic.

{¶7} In the early afternoon of January 23, 2010, Corporal Minerd was at home when he decided to observe the location and movement of the white Honda Civic with the laptop computer. While following these movements, Corporal Minerd consulted with the Fairfield County Sheriff's Department and he learned that a home invasion robbery burglary had been committed on Bickel Church Road which was in the vicinity where the appellant's car had been tracked. Appellant's car was subsequently tracked until it arrived back at his Hudson Bay Way home. When law enforcement arrived, appellant and co-defendant David White ran out the back door. The property taken during the Bickel Church Road home invasion robbery was recovered from the white Honda Civic.

{¶8} Appellant was subsequently arrested and then indicted on charges stemming from the series of home invasion robberies which had occurred during the preceding several weeks. Specifically, appellant was indicted on one count of Improperly Discharging Firearm at or into Habitation, in violation of R.C. 2923.161(A)(1) with two firearm specifications to the count in violation of R.C. 2941.145; one count of Aggravated Burglary, in violation of R.C. 2911.11(A)(2) with two firearm specifications to the count in violation of R.C. 2941.145, one count of Aggravated Robbery, in violation of R.C. 2911.01(A)(1) with two firearm specifications in violation of R.C.2941.145, and one count of Grand Theft, in violation of R.C. 2913.02 with one firearm specification to the count in violation of R.C. 2941.145.

{¶9} Appellant filed a motion to suppress evidence, a supplemental motion to suppress evidence and an additional brief. After conducting an evidentiary hearing on the motion, on July 22, 2010 the trial court issued a written entry overruling appellant's motion.

{¶10} On October 19, 2010, appellant appeared with counsel and entered no contest pleas to Count One, Improperly Discharging Firearm at or into Habitation, a specification pursuant to R.C. 2941.145 and Count Two, Aggravated Burglary. Facts were read into the record and the trial court found appellant guilty and dismissed the remainder of the Indictment on the State's motion.

{¶11} Appellant was sentenced to seven years in prison on Count One to be served consecutively to a three year term of incarceration for the firearm specification to be served consecutively to a nine year prison sentence as to Count Two.

{¶12} It is from the trial court's July 22, 2010 Judgment Entry overruling his motion to suppress that appellant has timely appealed raising the following two Assignments of Error:

{¶13} "I. THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENDANT'S MOTION TO SUPPRESS ALL EVIDENCE THAT WAS OBTAINED FROM THE UNLAWFUL PLACEMENT OF A GPS TRACKING DEVICE AND THE TRACKING BY A GPS MONITORING DEVICE IN VIOLATION OF THE DEFENDANT'S RIGHTS TO BE FREE FROM AN UNWARRANTED SEARCH UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

Fairfield County, Case No. 2010-CA-52 6

{¶14} "II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED THE APPELLANT TO CONSECUTIVE SENTENCES THAT CLOSELY APPROXIMATED THE MAXIMUM ALLOWABLE SENTENCE FOR EACH OFFENSE."

I.

{¶15} Appellant's First Assignment of Error relates to the propriety of the trial court's overruling of his motion to suppress. Specifically appellant maintains that it was unlawful for law enforcement officers to attach a GPS tracking device to the exterior of his car in the absence of exigent circumstances without first obtaining a warrant. Appellant further contends that subsequent tracking of the GPS device's signal violated his legitimate expectation of privacy.*fn3

A. STANDARD OF REVIEW

{¶16} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 20030- Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111 Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.

B. BACKGROUND

{¶17} We begin our analysis by reviewing the decision which has been accepted for review by the Supreme Court. In of State v. Johnson,190 Ohio App.3d 750, 944 N.E.2d 270, 2010-Ohio-5808, appeal allowed 128 Ohio St.3d 1425, 943 N.E.2d 572, 2011-Ohio-1049 (Table) over a number of months law enforcement had received information Johnson might be involved in the trafficking of cocaine. The person told police he believed Johnson would acquire more cocaine in the future. Without a warrant, Hackney surreptitiously placed a GPS tracking device underneath the van. 190 Ohio App.3d at 753, 944 N.E.2d at 272, 2010-Ohio-5808 at ¶ 2-3.

{¶18} Six days after placing the device on Johnson's van, police discovered from GPS records the van had traveled from Ohio to Illinois. Id. at ¶5. While the van was in Chicago officers conducted visual surveillance in addition to monitoring its location with the tracking device. Id. at ¶ 6-7.

{¶19} The van was followed from a shopping center to a private residence in suburban Chicago. Johnson and another man, Otis Kelly, were observed leaving the private residence in the van and in a car respectively. The agent followed Johnson and Kelly from the private residence in suburban Chicago into Ohio.

{¶20} Police first waited at the state border for the van and car to come into Ohio. However, near Harrison, Indiana the van exited the expressway while the car continued into Ohio where it continued to be followed. Police were able to maintain monitoring of the van through use of the GPS device placed on it even though they had lost visual surveillance. With the assistance of the GPS, Butler County Sheriffs were able to recover visual surveillance as the van reentered the expressway.

{¶21} The investigating officers ordered a patrol car to conduct a "probable cause" stop of the van driven by Johnson. Following the order, a patrol car pulled in behind Johnson and in short time conducted a stop of the van. The basis for the stop was reportedly for an "improper change of course." The van was physically searched. The van was then driven to a second location. Johnson was placed in the back seat of a police car and eventually moved from the "traffic stop" location to a new location for additional investigation. No contraband was ever located in the van.

{¶22} Otis Kelly was driving the car traveling from Illinois to Ohio. He was the subject of a "traffic stop" at another location. Johnson was taken from the place where he "committed the traffic violation" to where Kelly and police were located. It was then police searched Kelly's car and found cocaine hidden in a secret location in Kelly's car.

{¶23} However, during the search, Johnson made incriminating statement to the officers while seated in the back seat of the police car. Id. at ¶13. After being transported to the station and re-Mirandized, Johnson again confessed his involvement in the cocaine trafficking scheme. He was subsequently indicted on single counts of trafficking in cocaine, possession of cocaine, and having weapons while under disability.

{ΒΆ24} Johnson filed a Motion to Suppress the information obtained from the use of the GPS device and any additional information and evidence which was obtained as a result of police action based on information obtained from the GPS tracking device. Following a hearing, ...


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