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State v. Allen

Court of Appeals of Ohio, Eighth District

September 26, 2013

STATE OF OHIO PLAINTIFF-APPELLANT
v.
BRIAN ALLEN DEFENDANT-APPELLEE

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-542893 and CR-544296

ATTORNEYS FOR APPELLANT Timothy J. McGinty Cuyahoga County Prosecutor, By: Katherine E. Mullin Joseph J. Ricotta Assistant County Prosecutors

ATTORNEYS FOR APPELLEE Thomas A. Rein, Thomas E. Shaughnessy

BEFORE: Blackmon, J., Boyle, P.J., and Keough, J.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, JUDGE

(¶1} In this consolidated appeal, appellant, state of Ohio ("the State"), appeals the trial court's decision granting appellee, Brian Allen's ("Allen"), motion to suppress and assigns the following error for our review:

I. The trial court erred by granting appellee's motion to suppress evidence where officers acted in good faith. The exclusionary rule is a measure of last resort and evidence should not be suppressed unless the possible benefit of suppression outweighs the substantial social costs.

(¶2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

(¶3} During the months of July through October of 2010, a string of burglaries occurred in the cities of Lyndhurst, Shaker Heights, Maple Heights, South Euclid, and Highland Heights, Ohio. Many of the burglaries had a distinct pattern and shared similar characteristics. Specifically, the burglaries took place in residential areas on weekdays when the houses were vacant because the residents were at work. As a result of the similarities, the police departments of the various municipalities shared information regarding the crimes.

(¶4} On September 30, 2010, two such burglaries took place in the city of Lyndhurst. During their subsequent investigation, officers with the Lyndhurst police department learned from a local resident that an unfamiliar male had been walking through the yard of one of the burglarized homes. The local resident indicated that the unfamiliar male walked around the exterior of the home before backing his car into the driveway. In addition, the resident indicated that the individual was a thin, black male, approximately 6' 2" tall, and was driving an SUV with an Ohio license plate number, DZU 1675.

(¶5} As a result of this information, the Lyndhurst police determined that the vehicle was registered in the name of the suspect's wife and that the two resided in an apartment complex in Willoughby, Ohio. Lyndhurst police officers went to the complex, conducted surveillance, and confirmed that the vehicle was in the parking lot.

(¶6} On October 4, 2010, Detective James Fiore attached a magnetic global positioning system ("GPS") to the undercarriage of the vehicle. The GPS device allowed the officers to track the vehicle's movement without the need for visual surveillance. Utilizing the GPS device, the officers could precisely determine the exact driveway in which the vehicle was located on a given street and how long it remained in a given driveway.

(¶7} The Lyndhurst police used the GPS device to track the movements of the vehicle for two days. Based on the specific coordinates of the vehicle at a given time, the Lyndhurst police would contact the respective local police department and request assistance in maintaining visual surveillance of the vehicle.

(¶8} On October 6, 2010, while the vehicle was being tracked, the police officers followed the suspect to the area of 5744 East 141st Street in the city of Maple Heights. After a temporary loss of visual surveillance, the police officers observed the vehicle was headed back to the apartment complex in Willoughby, Ohio. The Lyndhurst police officers checked and received confirmation from the Maple Heights police departments that two homes appeared to have been burglarized within the time frame that the vehicle was present within its jurisdiction.

(¶9} Armed with this information, police officers stopped the vehicle as it entered the parking lot of the apartment complex. After observing numerous electronic devices in plain view, the officer arrested the suspect, and towed the vehicle to the Willoughby Hills police department's evidence garage. Later, the officers obtained search warrants for the suspect's home and vehicle. During execution of the warrants, they discovered electronic equipment believed to have been stolen. Some of the serial numbers matched items that had been reported stolen.

(¶10} Around March 2011, the Cuyahoga County Grand Jury returned a multi-count indictment against Allen, that included charges of burglary and grand theft with notice of prior conviction and repeat violent offender specifications. The grand jury indictment also included charges of vandalism and having weapons under disability.

(ΒΆ11} On October 15, 2012, Allen filed a motion to suppress the evidence seized on the grounds that the GPS tracking device was placed on his vehicle without a search warrant. On December 11, ...


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