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Portage County court erroneously suppressed evidence in theft case

TRACEY BLAIR
Legal News Reporter

Published: December 11, 2018

A Portage County trial court erred by suppressing evidence that was legally seized under the plain view exception to the Fourth Amendment during a search in a theft case.

That is according to the 11th District Court of Appeals, which recently reversed and remanded the case against appellee Brett M. McClafferty in favor of the state.

The appellee was investigated for three separated incidents. In this case, he was indicted on one count of grand theft and two counts of identity fraud.

According to appellate records, one identity fraud count alleged he recklessly obtained and used her identity to open a bank account. The other two counts accused McClafferty of stealing about $7,500 from Goodfellas Roofing by fraudulently transferring money from the company’s account to the account he opened under the name of “Erin McClafferty,” his sister.

While those charges were pending, McClafferty was investigated on an unrelated matter by Streetsboro police stemming from a complaint from another woman accusing him of fraud in a bitcoin purchase. A warrant was issued to search the appellee’s parent’s home where he lived.

The Ohio Bureau of Criminal Investigation’s warrant covered a laptop computer and property including confiscated information about bitcoin activity and account/client information.

McClafferty’s mother escorted an agent to the basement where he seized her son’s laptop. BCI Special Agent Arvin Clar then searched the appellee’s bedroom and noticed a piece of paper sticking out of a book. The book contained a copy of his sister’s social security card and a copy of one of her banking statements, and the agent seized those items.

McClafferty’s trial counsel learned that the state planned to introduce copies of the social security card and banking statement at trial in the unrelated grand theft case, and argued that the search warrant does not cover items belonging to Erin McClafferty.

Clar, the sole witness at the suppression hearing, testified he seized those items because of a second unrelated incident involving the appellee’s sister’s alleged unauthorized use of a credit card.

The trial court determined neither of the items seized were covered under the search warrant or in plain view.

On appeal, the state alleged the trial court’s decision to suppress the challenged evidence destroyed any reasonable possibility of effective prosecution.

The appellate panel agreed, noting the U.S. Supreme Court in United States v. Ross (456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed2d 572) has stated that a “lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers and containers in which the weapon might be found.”

Eleventh District Judge Thomas R. Wright noted that the appellee did not challenge the validity of the search warrant.

“That warrant authorizes a search for account information in relation to Lisa Belcastro regarding the bitcoin investigation,” Judge Wright said in the majority opinion. “Given that account information may be found on a single piece of paper located within the pages of a book, Agent Clair was authorized to open the book and look at the papers.

“When an officer finds an object during a valid search not referenced in the warrant, the plain view doctrine applies to whether seizure violates the Fourth Amendment.”

Judge Wright added that since Clar was executing a warrant that allowed him to search for documents regarding bitcoin activity, he was lawfully present in the appellee’s bedroom and had the right to access the papers in the book.

Under the plain view exception to the search warrant requirement, police may seize evidence in plain view during a lawful search if 1) the seizing officer is lawfully present at the place from which the evidence can be plainly viewed; 2) the seizing officer has a right of access to the object itself and 3. The object’s incriminating character is immediately apparent (Horton v. California, 496 U.S. 128, 136-137).

“The outcome turns upon whether the incriminating nature of the social security card and the banking statement is immediately apparent,” Judge Wright wrote.

The panel found that since all three plain view doctrine requirements were satisfied in the case, the state’s argument that the seizure was permissible had merit.

The case, State v. McClafferty, 2018-Ohio-4659, was reversed and remanded.

Appellate judges Cynthia Westcott Rice and Timothy P. Cannon concurred.


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