2021 Ohio 1740
Ohio Ct. App.2021Background
- Around 11:30 p.m. on April 27, 2020, Sgt. Raymond Swallen (uniformed, marked cruiser) observed a maroon Chevy Cruze with heavily tinted front windows and following it later paced the vehicle at 75 mph in a 65 mph zone. Swallen initiated a traffic stop for the tint and speeding.
- Upon approach Swallen smelled raw and burnt marijuana, saw green leafy marijuana in the vehicle (including on Hubbard’s lap), and identified three occupants; Hubbard sat in the rear driver-side seat.
- The driver later disclosed a CCW permit and that a firearm and marijuana had been transported from Michigan; officers found a loaded firearm, large amounts of cash on other occupants, a pill bottle of marijuana on Hubbard, and, after searching the trunk, Hubbard’s backpack containing fentanyl/heroin quantities.
- Hubbard was indicted on multiple drug counts (possession and trafficking of fentanyl-related compound and heroin). He moved to suppress the stop, the warrantless vehicle search, and pre-Miranda statements; the court denied suppression of the stop and search but suppressed pre-Miranda statements.
- Hubbard pleaded no contest to Counts I–IV; counts merged and he was sentenced to a mandatory minimum four years (first-degree felony). He appealed arguing (1) the stop and warrantless search were unlawful and (2) trial counsel was ineffective for not challenging the trunk search in a post-hearing memorandum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of stop for window tint | Swallen observed heavily tinted front windows he could not see into, giving reasonable suspicion to stop | Hubbard: at highway speed officer could not reliably observe tint; no tint testing was performed | Stop for tint was lawful; officer’s observation and credibility supported reasonable, articulable suspicion |
| Legality of stop for speeding (pacing) | Swallen, trained in pacing and using calibrated cruiser/GPS, paced vehicle at 75 mph in 65 zone giving reasonable suspicion | Hubbard: pacing training was remote; no proof of recent calibration; curvature of road not considered | Pacing was adequate here (training, GPS corroboration, straight roadway); stop for speeding lawful |
| Warrantless search of trunk (automobile exception) | Plain view of marijuana, strong marijuana odor, driver’s delayed firearm disclosure, large cash on occupants, and visible marijuana created probable cause to search vehicle and trunk | Hubbard relied on Farris: odor alone doesn’t justify trunk search; argued search exceeded scope without probable cause | Search upheld: combined factors (not odor alone) established probable cause to search vehicle and backpack in trunk under automobile exception |
| Ineffective assistance of counsel for not separately challenging trunk search post-hearing | State: counsel’s choice was tactical and did not prejudice outcome | Hubbard: counsel should have filed a post-hearing memorandum specifically challenging trunk search | No ineffective assistance: decision characterized as tactical; no prejudice shown |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (establishes reasonable-suspicion stop rule)
- Whren v. United States, 517 U.S. 806 (traffic violation justifies stop regardless of officer motive)
- Pennsylvania v. Labron, 518 U.S. 938 (automobile exception when car is readily mobile and probable cause exists)
- California v. Acevedo, 500 U.S. 565 (police may search containers in vehicle if probable cause exists)
- United States v. Ross, 456 U.S. 798 (search scope extends to places where contraband may be hidden)
- California v. Carney, 471 U.S. 386 (vehicle mobility supports warrantless search exception)
- State v. Farris, 109 Ohio St.3d 519 (odor of marijuana alone does not justify trunk search)
- State v. Murrell, 94 Ohio St.3d 489 (custodial arrest permits search of passenger compartment as contemporaneous incident)
- State v. Mills, 62 Ohio St.3d 357 (discusses automobile exception and exigency of mobility)