OH8: Plain view of hit and run vehicle in driveway justified officers’ entry onto curtilage

Defendant raises his search claim via an ineffective assistance of counsel claim: defense counsel should have suppressed the plain view of his vehicle in his driveway partly covered by a blanket. Officers responded to an anonymous tip that defendant’s SUV was involved in a hit and run that killed two pedestrians in Cleveland. There was video from a bus that caught the hit and run. Defendant’s vehicle matched the vehicle described by witnesses and in the video. The officers’ entry on to his curtilage was reasonable. While the front of the vehicle was partially covered by a blanket, the broken windshield was in plain view in the driveway and from the street. Collins v. Virginia is distinguishable. State v. Kinney, 2019-Ohio-629, 2019 Ohio App. LEXIS 665 (8th Dist. Feb. 22, 2019):

[*P20] We find that under the plain view exception to the warrant requirement, the warrantless search of appellant’s SUV was not in violation of the Fourth Amendment. Appellant’s vehicle was observed from the street by investigating officers. Investigating officers did not have to shield their eyes as they observed the SUV’s damaged windshield. Id. The SUV was partially in the garage with the front end partially out in to the driveway. The officers were lawfully present at appellant’s house to follow up on an anonymous tip. Because these officers had a lawful right to be at appellant’s residence based on this tip, the officers had a lawful right of access to the evidence. See State v. Young, 2015-Ohio-1347, 31 N.E.3d 178 (12th Dist.) (plain view exception applied because evidence was viewed outside on the defendant’s patio where the officer had a right to be because officers had received an alert that defendant’s girlfriend was attempting to purchase pseudoephedrine for the manufacture of methamphetamine). Lastly, it was immediately apparent that the property seized was incriminating on its face, i.e., appellant’s SUV matched the SUV in the RTA bus video and the damage to the windshield was consistent with the damage as observed in the video.

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