STATE OF OHIO v. BRETT JONES
C.A. No. 12CA010270
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF LORAIN
June 10, 2013
2013-Ohio-2375
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 12CR084582
WHITMORE, Judge.
{¶1} Appellant, the State of Ohio, appeals from a judgment of the Lorain County Court of Common Pleas granting Appellee, Brett Jones‘, motion to suppress. This Court reverses.
I
{¶2} On a clear February afternoon, Ohio State Highway Patrol Trooper Daniel Morrison conducted a traffic stop of a Chevy Impala driven by Jones on the Ohio Turnpike. Trooper Morrison testified that he witnessed Jones travelling 75 m.p.h. in a 70 m.p.h. zone. Trooper Morrison further testified that he approached the passenger‘s side window, which was already down, and “immediately [] began smelling an odor of raw marijuana coming from the vehicle.”
{¶3} Trooper Morrison asked Jones to step out of the car so that he could conduct a search. While conducting a pat down of Jones, Sergeant Laughlin arrived. According to Trooper Morrison, Sergeant Laughlin, before having any contact with Trooper Morrison,
{¶4} Jones was indicted on (1) trafficking in violation of
{¶5} Jones filed a motion to suppress arguing that the officers did not have probable cause to search the trunk of the car. After a hearing, the court agreed and granted his motion. The State now appeals and raises one assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ERRED IN GRANTING MR. JONES’ MOTION TO SUPPRESS AS THE EVIDENCE RECOVERED FROM HIS VEHICLE WAS OBTAINED THROUGH A LEGAL SEARCH.
{¶6} In its sole assignment of error, the State argues the court erred in granting Jones’ motion to suppress because the officers had probable cause to search the trunk for marijuana. We agree.
Appellate 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 therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Fanning, 1 Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. This Court, therefore, will first review the trial court‘s findings of fact to ensure those findings are supported by competent and credible evidence. This Court will then review the trial court‘s legal conclusions de novo.
{¶7} There has been no challenge to the court‘s finding that the initial traffic stop was constitutionally valid. Accordingly, we limit our review to the search conducted by the officers.
{¶8} The Fourth Amendment of the United States Constitution, applied to the states through the Fourteenth Amendment, protects persons against unreasonable searches and seizures. “For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant.” State v. Moore, 90 Ohio St.3d 47, 49 (2000). Searches conducted without a warrant are presumptively unreasonable, unless an exception to the warrant requirement applies. See Payton v. New York, 445 U.S. 573, 586 (1980).
{¶9} The automobile exception is one exception to the warrant requirement. United States v. Ross, 456 U.S. 798, 807 (1982). “Although the Fourth Amendment recognizes that individuals have privacy interests in their vehicles, the inherent characteristics of vehicles ‘justif[y] a lesser degree of protection of [the privacy] interests [in them].‘” State v. Friedman, 194 Ohio App.3d 677, 2011-Ohio-2989, ¶ 7 (9th Dist.), quoting California v. Carney, 471 U.S. 386, 390 (1985). Provided there is “probable cause to search an entire vehicle, [officers] may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search.” State v. Welch, 18 Ohio St.3d 88 (1985), syllabus. Probable cause is determined by the totality of the
{¶10} Here, Trooper Morrison testified that he smelled a strong odor of raw marijuana as he first approached the passenger‘s window and that he has been trained to recognize the scent of the drug. A warrantless search of the passenger compartment is permissible if an odor of marijuana is detected by a qualified person. Moore, 90 Ohio St.3d at 50 (“[I]f the smell of marijuana, as detected by a person who is qualified to recognize the odor, is the sole circumstance, this is sufficient to establish probable cause. There need be no additional factors to corroborate the suspicion of the presence of marijuana.“). Jones does not challenge the search of the passenger compartment. Instead, Jones focuses his challenge on the scope of the search conducted. Specifically, Jones argues that the officers exceeded the scope of the probable cause when they searched the trunk of his car.
{¶11} In reaching its factual findings, the trial court stated that it “[r]esolv[ed] the facts adduced at [the suppression] hearing most favorably to the state of Ohio.” However, at a suppression hearing the trial judge is not simply to resolve facts in favor of the State; instead, the judge is to evaluate the evidence and the credibility of the witnesses. See Mills, 62 Ohio St.3d at 366. Nevertheless, we conclude the court‘s findings that “Trooper Morrison detected the odor of raw marihuana emanating from the passenger compartment of [Jones‘] vehicle * * * [and] located raw marihuana scattered on the floor and on the front passenger seat” to be supported by competent, credible evidence.
{¶12} Trooper Morrison found contraband in his search of the passenger compartment. Specifically, “[t]here was marijuana shake on the passenger‘s floorboard and seat.” After discovering the marijuana shake in the passenger compartment, Trooper Morrison conducted a
{¶13} The language of
{¶14} Subsequent to Robinette, the Ohio Supreme Court has recognized only one area where the Ohio Constitution provides greater protection than the Fourth Amendment and that involves warrantless arrests for minor misdemeanors. See State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931. In reaching its conclusion, the Brown Court relied on its analysis in State v. Jones, 88 Ohio St.3d 430 (2000), where it weighed “the degree to which the governmental action intrudes upon a person‘s liberty and privacy [against] * * * the degree to which the intrusion is necessary for the promotion of legitimate governmental interests.” Jones at 438. Other than this
{¶15} The Ohio Supreme Court has found that the Ohio Constitution provides greater protection than the Fifth Amendment. In granting Jones’ motion to suppress, the trial court relied on State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255. We conclude that the trial court misread Farris and, moreover, Farris is inapplicable in this case because it applied
{¶16} The Court in Farris held that
{¶17} We further note that Farris is factually distinguishable from the case at hand. In Farris, the Court was faced with the question of whether an officer may search the trunk of a car without finding any physical contraband in the passenger compartment. Here, it is undisputed that Trooper Morrison found contraband (i.e., marijuana shake) on the passenger‘s seat and floor. Therefore, we conclude that we do not need to reach the issue of whether the smell of raw
{¶18} Factually, this case is more analogous State v. Carmichael, 9th Dist. No. 11CA010086, 2012-Ohio-5923. In Carmichael, the Trooper observed “marijuana seeds, buds, and stems on the lap of the front seat passenger.” Id. at ¶ 2. In addition, the driver turned over marijuana from the center console on request, and the Trooper discovered marijuana in the back seat during his search of the passenger compartment. Id. at ¶ 2-3. While we acknowledge the concern raised by the dissent, we disagree that the amount of contraband found determines whether there is probable cause to search the remaining portions of the vehicle. The test is whether in light of the totality of the circumstances, “there is a fair probability that contraband * * * will be found in the trunk.” (Internal citations, alterations, and quotations omitted.) Carmichael at ¶ 9.
{¶19} Neither the trial court nor Jones cites any case to support their position that
{¶20} We conclude that the Ohio Constitution, like the United States Constitution, does not prohibit warrantless searches of an automobile trunk after law enforcement has found
III
{¶21} The State‘s sole assignment of error is sustained. The judgment of the Lorain County Court of Common Pleas is reversed, and this cause is remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
BETH WHITMORE
FOR THE COURT
CARR, J. CONCURS.
BELFANCE, P. J. DISSENTING.
{¶22} I respectfully dissent. The trooper‘s detection of the odor of raw marijuana coming from the passenger compartment gave him probable cause to search the passenger compartment of the vehicle. State v. Moore, 90 Ohio St.3d 47, 49-50 (2000); State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 50-52. However, once in the car, the trooper discovered “shake[,]” which the trial court determined was what the officer had smelled. In addition, the trial court determined that there was no indication the trooper had detected any odor emanating from the trunk. Notably, the State has not challenged the trial court‘s determinations on these points. Thus, in keeping with Farris, the trial court determined that the trooper had probable cause to search the passenger compartment of the vehicle but not the trunk. At issue in this case is whether the trooper‘s discovery of a miniscule amount of marijuana on the passenger seat and floor provided probable cause for him to search a separate and contained part of the vehicle from which no smell was emanating.
{¶23} The Fourth Amendment to the U.S. Constitution and
{¶24} However, it is important to place Carroll in its time. While courts have consistently followed Carroll without giving its rationale much thought, Carroll was decided prior to any police department in the country putting radios in police cars. Lewis Coe, Wireless Radio: A Brief History, 128 (1996) (Police cars were not regularly equipped with radio receivers until the late 1920s, and two-way radios did not become common until the mid-1930s.). In a time before police cars were even equipped with radios, it would have been impracticable, if not impossible, for officers to obtain a warrant or even speak with a judge or magistrate before a vehicle eluded them. Even if there were two police cars, meaning one could follow the
{¶25} Whether an exigency exists that justifies acting without a warrant depends on the totality of the circumstances. Missouri v. McNeely, — U.S. —, 133 S.Ct. 1552, 1559 (2013). Because of the technological limitations listed above, it is easy to see why the Carroll Court would treat an automobile as essentially being a per se exigent circumstance. However, “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge‘s essential role as a check on police discretion, are relevant to an assessment of exigency[,]” and there have been many technological developments in the 88 years since Carroll was decided. McNeely at 1562-1563. Radios are now an integral part of every police car as well as the advent of other forms of communication, meaning the concerns existing at the time Carroll was decided have been dramatically reduced if not eliminated entirely. In fact, we are fast approaching a time where officers could use a technology similar to Facetime or Skype to swear out an affidavit remotely before a magistrate while the magistrate signs a warrant and electronically returns it to the officer. Unfortunately, the existing jurisprudence fails to account for these dramatic changes in technology, which call into question the reasonableness of the exigency rationale in the context of a warrantless search of an automobile.2
{¶26} In addition, when Carroll was decided, there was no basis upon which to stop or detain a person absent probable cause, a fact that formed the basis of the Court‘s reasoning in that case. See Carroll, 267 U.S. at 155-157. However, subsequent to the landmark decision of Terry v. Ohio, 392 U.S. 1 (1968), officers are now able to stop and detain citizens without probable cause but rather upon reasonable, articulable suspicion of criminal activity. Id. at 21. See also State v. Widner, 69 Ohio St.2d 267, 269 (1982) (applying Terry to a vehicle stop). See also State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7, citing Delaware v. Prouse, 440 U.S. 648, 663 (1979) (“[A] traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit a crime.“). Thus, officers now have the ability, unavailable when Carroll was decided, to seize citizens for less than probable cause.3 While an officer who stops an individual upon reasonable, articulable suspicion must allow the individual to proceed about his or business once the officer‘s suspicion has been satisfied, the officer may also continue the detention should new facts be discovered which may ultimately rise to the level of probable cause to continue the seizure as
{¶27} Following Carroll, the United States Supreme Court developed a second justification for the automobile exception: the reduced expectation of privacy rationale. See, e.g., Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (“One has a lesser expectation of privacy in a motor
{¶28} Turning to Farris, an officer smelled an odor of burnt marijuana during a traffic stop and searched the entire vehicle. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at ¶ 1, 5. The Ohio Supreme Court found that the search of the passenger compartment was permissible but not the trunk, holding that “[a] trunk and a passenger compartment of an automobile are
{¶29} While the Ohio Supreme Court has generally interpreted
{¶30} The majority suggests that Farris is a case solely concerned with the Self-Incrimination Clause of
{¶31} With this in mind, it is necessary to discuss this Court‘s representation of Farris‘s holding in State v. Carmichael, 9th Dist. No. 11CA010086, 2012-Ohio-5923. While Carmichael quotes the statement in Farris that “[t]he automobile exception does not apply in this case[,]” it plucks that statement from its context and attempts to paint Farris as a search incident to arrest case. See Carmichael at ¶ 12, quoting Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at ¶ 52. However, what the Farris majority actually said was as follows:
The odor of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle. No other factors justifying a search beyond the passenger compartment were present in this case. The officer detected only a light odor of marijuana, and the troopers found no other contraband within the passenger compartment. The troopers thus lacked probable cause to search the trunk of Farris‘s vehicle. Therefore, the automobile exception does not apply in this case.
(Internal citation omitted.) Farris at ¶ 52. In other words, the evidence discovered as a result of the officer‘s warrantless search was not admissible under the automobile exception because the officer had lacked probable cause. In fact, at no time was it suggested that the evidence was
{¶32} In applying Farris to this case, and in keeping with the findings of the trial court, the question arises as to whether the trooper had probable cause to conduct a warrantless search of Mr. Jones’ trunk when there was no evidence the trooper detected any smell emanating from the trunk and trace amounts of marijuana were found on the floor and passenger seat, which the trial court decided was the object of the smell. Under the circumstances of this case and recognizing the distinction between the probable cause to search a trunk versus the search of the passenger compartment pursuant to Farris, I would conclude that probable cause did not exist to search the trunk. Rather, I would conclude that the trooper had reasonable articulable suspicion to engage in further inquiry. Probable cause means “more than bare suspicion: [it] exists where ‘the facts and circumstances within their (the officers‘) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-176 (1949), quoting Carroll, 267 U.S. at 162. Once probable cause exists, an officer essentially has the ability to dismantle the vehicle, looking in the upholstery, in the doors,
{¶33} The majority relies on Carmichael in concluding that it is. However, Carmichael involved significantly different facts, not least of which were that the front-seat passenger had “marijuana seeds, buds, and stems” on his lap. Carmichael, 2012-Ohio-5923, at ¶ 2. Moreover, when asked whether there was contraband in the vehicle, the driver handed the officer “a piece of folded cardboard containing marijuana from the center console.” See id. at ¶ 10. The officer in Carmichael also testified that he found some marijuana where the defendant was sitting. Id. The officer in Carmichael had the driver produce contraband, saw contraband on a passenger, and found additional contraband where the third passenger was sitting. Id. This is significantly more evidence of criminal activity by the car‘s occupants than the “shake” on the passenger seat and floor.
{¶34} While I believe that the “shake” provided the trooper with reasonable, articulable suspicion, to further detain and question Mr. Jones, and perhaps bring a K-9 unit to the scene, in keeping with Farris, I do not believe that the miniscule traces of marijuana found on the
APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant.
SAMIR HADEED, Attorney at Law, for Appellee.