State v. ButcherState v. Butcher
James Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellant.
John A. Bay, Bay Law Office, Columbus, Ohio, for Appellee, Tyson J. Butchеr.
Kline, J.:
{¶1} The
I.
{¶3} Trooper Smith initiated a traffic stop on the vehicle. For safety reasons, Trooper Smith ordered the driver to proceed to the driveway of а nearby elementary school. Trooper Smith approached the driver‘s side of the vehicle, and Sgt. McDonald approached the passenger‘s side. While standing next to the passenger-side door, Sgt. McDonald shined his flashlight inside the car. Sgt. McDonald testified that he “оbserved what appeared to be marijuana residue on Mr. Butcher‘s shirt.” Suppression Hearing Tr. at 56.
{¶4} Trooper Smith ordered the driver out of the vehicle to conduct a field sobriety test. Sgt. McDonald then ordered Butcher out of the vehicle and patted him down to check for weapons. After determining that Butcher did not have any weapons, Sgt. McDonald shined his flashlight on the alleged marijuana residue on Butcher‘s shirt. Next, Sgt. McDonald ordered Butcher to empty his pockets. The search of Butcher‘s pockets revealed the presencе of crack cocaine. Additionally, a baggie of marijuana fell onto the ground as Butcher was emptying his pockets.
{¶5} A grand jury returned an indictment against Butcher for possession of crack cocaine. Butcher filed a motion to suppress the evidence Sgt. McDonald obtained as a result of the search of Butcher‘s person. The trial court held a hearing on the motion to suppress on May 9, 2011. And on June 16, 2011, the trial court ruled that
{¶6} The state appeals and asserts the following assignments of error: I. “THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE FOUND ON APPELLEE‘S PERSON. THE SEARCH OF APPELLEE WAS BASED ON PROBABLE CAUSE AND WAS AUTHORIZED WITHOUT A WARRANT, BASED ON THE EXIGENT CIRCUMSTANCES EXCEPTION TO THE WARRANT REQUIREMENT AND THE OHIO SUPREME COURT‘S DECISION IN STATE V. MOORE.” II. “THE TRIAL COURT ERRED IN RULING THAT THE OBSERVATION OF MARIJUANA RESIDUE ON THE SHIRT OF A PERSON IS INSUFFICIENT TO CONSTITUTE PROBABLE CAUSE FOR A SEARCH.” And, III. “THE TRIAL COURT‘S RULING THAT THE OFFICER‘S OBSERVATION OF THE MARIJUANA RESIDUE WAS NOT SUFFICIENTLY UNIQUE IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OR CLEARLY ERRONEOUS.”
II.
{¶7} We will analyze the state‘s assignments of error together because the arguments are intertwined. Essentially, the state argues (1) that the alleged marijuana on Butcher‘s shirt was in “plain view” and (2) that exigent circumstances justified the warrantless search of Butcher‘s person.
{¶8} Our “review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is thеrefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850
{¶9} The
{¶10} “For a search or seizure to be reasonable under the
{¶11} Here, there is no dispute that law enforcement рroperly initiated the traffic stop. However, Sgt. McDonald needed probable cause to justify searching Butcher‘s person. Moore at 50. “‘Probable cause’ is defined as a reasonable ground of suspicion that is supported by facts and circumstances, which are sufficiently strоng to warrant a prudent person in believing that an accused person had committed or was committing an offense.” State v. Jones, 4th Dist. No. 03CA61, 2004-Ohio-7280, ¶ 40.
{¶12} The trial court found as follows:
[Sgt.] McDonald approached the passenger side of the car, briefly shining his flashlight into the interior of the car, illuminating both the front and back seat passengers. * * * Shortly after [the driver] was removed from the vehicle, [Sgt.] McDonald, without any further investigation, ordered the front seat passenger, Tyson Butcher, from [the driver‘s] vehicle and patted him down. The stated reason for the pat down was that [Sgt.] McDonald had identified “marijuana residue” оn [Butcher‘s] shirt and pants by flashlight through the window. Ruling on Motion to Suppress at 2-3.
{¶13} We conclude, however, that Sgt. McDonald did not violate Butcher‘s
A. “Plain View” Doctrine
{¶14} The “plain view” doctrine is a judicially recognized exception to the
A warrantless search or seizure by a law enforcement officer of an object in plain view does not violate the
Fourth Amendment if (1) the officer did not violate theFourth Amendment in arriving at the place from which the object could be plainly viewed; (2) the officer has a lawful right of access to the object; and (3) the incriminating naturе of the object is immediately apparent. State v. Hunter, 8th Dist. No. 92032, 2009-Ohio-4194, ¶ 12, citing State v. Steward, 8th Dist. No. 80993, 2003-Ohio-1337; Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Wilmoth, 1 Ohio St.3d 118, 438 N.E.2d 105 (1982); State v. Williams, 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978).
{¶15} “The ‘immediately apparent’ requirement of the ‘plain view’ doctrine is satisfied when police have probable cause to associate an object with criminal activity.” State v. Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d 925 (1986), paragraph three of the syllabus. “In ascertaining the required probable cause to satisfy the ‘immediately apparent’ requirement, police officers may rely on their specialized knowledge, training and experience[.]” Id. at paragraph four of the syllabus.
{¶16} Based on the trial court‘s factual findings, we find that the alleged marijuana on Butcher‘s shirt was in “plain view.” Initially, we note that the state has satisfied the first two prongs of the “plain view” test. As stated above, law enforcement properly initiated the traffic stop. Thus, “the officers did not violate the
{¶17} Furthermore, the record demonstrates that the incriminating nature of the substance on Butcher‘s shirt was immediately apparent. Sgt. McDonald testified that he believed he saw marijuana residue on Butcher‘s shirt. Sgt. McDonald also testified regarding his extensive training and experience in identifying marijuana. For example,
{¶18} Arguably, the trial court‘s ruling implies that, given the lighting conditions and Sgt. McDonald‘s vantage point outside the vehicle, the court did not believe it was possible for Sgt. McDonald to see marijuana residue on Butcher‘s shirt. Even assuming that the trial court mеant to imply this, we still conclude that the incriminating nature of the substance on Butcher‘s shirt was immediately apparent. There is no question that Trooper Smith lawfully detained the driver‘s vehicle based on a traffic violation. And “an officer making a traffic stop may order pаssengers to get out of the car pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Moreover, the officer‘s subjective intent in doing so is irrelevant. See Village of Kirtland Hills v. Strogin, 11th Dist. No. 2005-L-073, 2006-Ohio-1450, ¶ 19 (“Officer Parker did not violate appellee‘s
{¶19} Once Butcher was out of the vehicle, the record shows that Sgt. McDonald could clearly see the substance he identified as marijuana residue on Butcher‘s shirt.
{¶20} Consequently, for the reasons stated above, we conclude that alleged marijuana residue on Butcher‘s shirt was in “plain view.”
B. Exigent Circumstances
{¶21} Sgt. McDonald‘s “plаin view” observation of the alleged marijuana substance on Butcher‘s shirt alone does not justify the warrantless search of Butcher‘s person. The state must justify the warrantless search of Butcher‘s person with an exception to the warrant requirement. We conclude that “еxigent circumstances” justified the warrantless search of Butcher‘s person.
{¶22} “[C]ertain situations present exigent circumstances that justify a warrantless search. Generally, there must be ‘compelling reasons’ or ‘exceptional circumstances’ to justify an intrusion without a warrant.” Moore, 90 Ohio St.3d at 52, 734 N.E.2d 804, citing McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948). For example, “[a] warrantless search is * * * justified if there is
{¶23} Here, Sgt. McDonald observed what he believed to be marijuana on Butcher‘s shirt during a traffic stop at approximately 2:45 a.m. This observation created a “reasonable ground of suspicion * * * to warrant a prudent person in believing that [Butcher] had committed or was committing an offense.” Jones, 2004-Ohio-7280, at ¶ 40. That is, Sgt. McDonald had probable cause to believe Butcher had contraband on his person. In order to obtain a warrant to search Butcher‘s person, Sgt. McDonald would have had to either (1) detain Butcher for several hours in the middle of the night until law enforcement could obtain a warrant or (2) release Butcher but risk that Butcher would hide or destroy any contraband he possessed. We find that these options were unreasonable. See Jones at ¶ 42. Consequently, compelling reasons existed for Sgt. McDonald to search Butcher‘s person without first obtaining a warrant. As a result, exigent circumstances justified the warrantless search of Butcher‘s person. See Moore at 52-53; State v. Kelley, 4th Dist. No. 10CA3182, 2011-Ohio-3545, ¶ 30; State v. Fuller, 2d Dist. No. 18994, 2002 WL 857671, *6 (April 26, 2002).
{¶24} In conclusion, Sgt. McDonald observed the alleged marijuana on Butcher‘s shirt consistent with the requirements of the “plain view” doctrine. Moreover, considering the time of the traffic stop and the nature of the suspected contraband, exigent circumstances justified the warrantless search of Butcher‘s person. Consequently, the trial court erred in granting Butcher‘s motion to suppress. As a
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT BE REVERSED and the cause be REMANDED for further proceedings consistent with this opinion. Appellee shall pay the costs herein taxed.
The Court finds there were reasonablе grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, P.J. and Harsha, J.: Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.