Appeal from the Court of Common Pleas, Case No. 2016 CR
Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY
KRISTINE W. BEARD ASSISTANT PROSECUTOR
Defendant-Appellant BERNARD L. HUNT
JUDGES: Hon. Patricia A. Delaney, P. J. Hon. William B.
Hoffman, J. Hon. John W. Wise, J.
Appellant Damarcus Nicholson appeals his conviction on one
count of trafficking in heroin, one count of aggravated
trafficking in drugs, one count of possession of heroin and
one count of aggravated possession of drugs following a jury
trial in the Stark County Common Pleas Court.
Appellee is the State of Ohio.
OF THE FACTS
Appellant Damarcus Nicholson was indicted by the Stark County
Grand Jury on one count of trafficking in heroin; one count
of aggravated trafficking in drugs, one count of possession
of heroin, and one count of aggravated possession of drugs.
On August 22, 2016, Appellant filed a motion to suppress the
drugs that had been seized from the rental vehicle, arguing
that the seizure was in violation of the Fourth Amendment.
Specifically, Appellant argued that he was stopped and cited
for driving under a child support suspension, and that the
pertinent charging statute did not authorize a search of his
vehicle. The state responded that Appellant lacked standing
to suppress the drugs because at the time of the seizure he
was an unauthorized user of the rental vehicle, citing
State v. Burton, 5th Dist. Licking No.
00CA0013 in support.
On September 6, 2016, a hearing was held on Appellant's
motion to suppress. At the suppression hearing, the state
presented the testimony of Officer Joseph Bays and admitted
three exhibits, the LEADs printout of Appellant's driving
status, the LEADs printout for the Jeep Appellant was
driving, and the Rental Agreement for the Jeep.
Officer Bays is a Canton Police officer working with the
special investigation unit. (Supp. T. at 6). Officer Bays
testified that the unit had received a tip that Appellant and
Kristen Butcher were selling heroin. Based upon this
information an investigation was initiated. (Supp. T. at 6).
In the beginning of the investigation, Officer Bays learned
that Butcher had an active arrest warrant and Appellant's
driving privileges were under multiple FRA suspensions.
(Supp. T. at 9-10). Officer Bays testified that Appellant has
actually never had a valid driver's license. (Supp. T. at
Officer Bays testified that he and other officers set up a
surveillance of an orange Jeep Renegade they had been advised
was being driven by Appellant. (Supp. T. at 8-9). The
officers observed Appellant driving the Jeep and ran the
license plate number. The plate established that the owner of
the vehicle was EAN Holding LLC, a rental car company. (Supp.
T. at 12). Officer Bays then pulled Appellant over for
driving under an FRA suspension. Officers immediately
arrested the passenger, Kristen Butcher, on the outstanding
At the scene, Officer Bays determined that neither Appellant
nor Butcher could drive the vehicle away from the place where
the vehicle had been stopped. In addition, Officer Bays
testified that the vehicle was parked in a rough neighborhood
and that under the circumstances, the Canton City Police
Department policy ...