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State v. Nicholson

Court of Appeals of Ohio, Fifth District, Stark

May 15, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DAMARCUS NICHOLSON Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. 2016 CR 01465(A)

          For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY KRISTINE W. BEARD ASSISTANT PROSECUTOR

          For Defendant-Appellant BERNARD L. HUNT

          JUDGES: Hon. Patricia A. Delaney, P. J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

          OPINION

          Wise, J.

         {¶1} 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.

         {¶2} Appellee is the State of Ohio.

         STATEMENT OF THE FACTS

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 11).

         {¶7} 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 warrants.

         {¶8} 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 ...


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