State v. McMullenState v. McMullen
Robin N. Piper III, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45012-0515, for plaintiff-appellee
Repper, Pagan, Cook, Ltd., John H. Forg, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
YOUNG, P.J.
{¶1} Defendant-appellant, William McMullen, appeals his convictions in the Butler County Court of Common Pleas for single counts of possession of cocaine and possession of marijuana. We affirm the convictions.
{¶2} Officer Scott Johnson of the Trenton Police Department was on patrol
{¶3} Johnson also noticed that a “considerable” amount of smoke was coming from the vehicle and that the passengers continued to make furtive movements. At that point, Johnson exited his cruiser and approached the vehicle. As he walked closer, he saw some of the passengers bend over and put their hands down in the seat, and also noticed that the smoke coming from the vehicle smelled of “raw burnt marijuana.” Johnson saw three people sitting in the back and two in the front of the vehicle, and continued to see smoke coming from the back corner.
{¶4} After Johnson opened the right rear door of the vehicle, he saw a man, later identified as McMullen, “taking still in mid-drag, taking a drag off of a marijuana cigarette * * *.” McMullen tried to hand Johnson the still-lit marijuana cigarette, but dropped it to the ground when Johnson told him to do so. The occupants then admitted to having smoked the marijuana, and Johnson ordered them out of the car. After McMullen exited, Johnson asked him if he had any illegal substances or weapons on his person, and McMullen denied having anything on his person and consented to Johnson performing a pat-down.
{¶5} As a result of the pat-down, Johnson removed a cigarette box from
{¶6} After all of the occupants were secured with the help of police back-up, McMullen searched the vehicle and found a bag that contained a smoking device, a pill bottle, and raw marijuana. Johnson arrested the driver (on an outstanding warrant), as well as McMullen, and then released the other occupants after issuing citations. Johnson read McMullen his rights and had him sign a Miranda card. After signing the card, McMullen admitted that the white powdery substance in the cigarette pack was cocaine, but later declined to answer any other questions.
{¶7} McMullen was indicted on single counts of possession of cocaine and possession of marijuana. McMullen moved to suppress all evidence resulting from Johnson‘s “stop, seizure, detention, and questioning.” After a hearing, the trial court denied McMullen‘s motion, finding that Johnson‘s actions in the parking lot did not constitute a stop or seizure for constitutional purposes. McMullen later pled no contest to the charges, and the trial court sentenced him to three years of community control and $600 in fines. McMullen now appeals the trial court‘s denial of his motion to suppress, raising the following assignment of error.
{¶8} “THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED FROM THE UNCONSTITUTIONAL STOP OF THE VEHICLE IN WHICH MCMULLEN WAS A PASSENGER.”
{¶9} In his assignment of error, McMullen argues that the trial court erred in denying his motion to suppress. This argument lacks merit.
{¶10} Appellate review of a ruling on a motion to suppress presents a mixed
{¶11} Essentially, McMullen argues that the trial court should have granted his motion to suppress because Officer Johnson did not have a reasonable articulable suspicion of criminal activity when he “stopped” him. According to McMullen‘s theory, Johnson initiated the stop at the moment he pulled up to the SUV in his police cruiser and turned his spotlight on the vehicle. However, the trial court found that Johnson shining the spotlight on the SUV did not constitute a stop, and that the events following Johnson‘s initial approach to the vehicle provided the necessary probable cause to arrest McMullen. We agree.
{¶12} The
{¶13} “The inquiry used to determine whether a particular encounter is a seizure is whether, taking into account all of the surrounding circumstances, a reasonable person would feel free to decline the officer‘s request or terminate the encounter.” State v. Lunce (May 21, 2001), Butler App. No. CA2000-10-209, 5. Specific to encounters involving parked vehicles, “an officer‘s approach and questioning of the occupants of a parked vehicle does not constitute a seizure and does not require reasonable, articulable suspicion of criminal activity.” Id.
{¶14} McMullen asserts that although he was in a parked vehicle, he was unable to terminate the encounter once Officer Johnson pulled by the SUV in his police cruiser, shined his spotlight into the vehicle, and approached to ask questions. However, this assertion stands in direct conflict with previous holdings of this and other courts.
{¶15} In State v. Schwab (Jan. 29, 2001), Clermont App. No. CA2000-07-055, we reversed the trial court‘s decision granting Schwab‘s motion to suppress, and found instead that the encounter between the officer and Schwab did not implicate the
{¶16} The Second District Court of Appeals adopted our reasoning in Schwab when it decided State v. Carter, Montgomery App. No. 19833, 2004-Ohio-454. Carter argued on appeal that the trial court erred in denying his motion to suppress where the officer‘s act of shining a spotlight into his parked car constituted a stop under the
{¶17} As in Schwab and Carter, McMullen was an occupant in a parked vehicle, and Officer Johnson did not need an articulable suspicion of criminal activity when he shined his spotlight and approached the SUV. Instead, the occupants were free to leave, and could have terminated the encounter because they were not seized by Johnson at that time. However, once Johnson detected the marijuana odor, saw smoke coming from the vehicle, and saw McMullen smoking the marijuana cigarette he had the necessary suspicion to investigate further.
{¶18} Although McMullen does not contest the probable cause leading to his arrest, he does challenge Johnson‘s seizure of the cigarette pack containing cocaine. Essentially, McMullen argues that Johnson was not permitted to seize the pack of cigarettes because a pat-down search can only be used to protect the officer‘s safety by determining whether the suspect is armed and dangerous.
{¶20} However, we need not reach the merits of McMullen‘s argument because he has waived the issue on appeal. In McMullen‘s motion to suppress, he argued primarily that Johnson‘s “stop” was not based on articulable facts suggestive of criminal activity. McMullen then concluded his motion by arguing that even if the stop was valid, Johnson executed the pat-down in an unconstitutional manner. The motion then briefly summarized the proper scope of Terry stops, and then asserted that Johnson improperly seized the cigarette pack.
{¶21} Although McMullen referenced the pat-down in his motion, at the hearing McMullen only argued issues specific to whether shining the spotlight on the parked SUV constituted a stop. When the trial court specifically asked McMullen‘s counsel to expand on the pat-down issue, counsel replied, “Judge, I think for purposes of what I will be arguing - I‘m not even sure I am contesting anything involving the pat-down search at that point in time. I think the case law is pretty clear that at the point in time he believes there‘s probable cause to search, whether it‘s a pat-down or a search of pocket or even cigarette container. I think he‘s allowed to do that. I don‘t think that is what my contention of the search is.”
{¶22} Before the trial court delivered its opinion, it revisited the pat-down
{¶23} On appeal, and in response to the state‘s waiver argument, McMullen now asserts that his argument in the motion to suppress placed the state on notice that he was challenging the pat-down and seizure. However, we agree with the state that McMullen‘s decision to challenge only the initial “stop” at the hearing constituted a waiver of the additional argument made in his motion to suppress.
{¶24} “The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits. Therefore, the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure. Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal.” Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218. (Internal citations omitted.)
{¶25} Although McMullen referenced the pat-down and seizure issues in his motion, his specific statement disregarding those arguments at the hearing eliminated the state‘s need to address the constitutionality of the pat-down and seizure. McMullen expressly waived the argument by telling the trial court that in his
{¶26} In light of his deliberate statements and acquiescence to the trial court‘s recognition of waiver, McMullen cannot now claim that he did not waive the issues. See, also, State v. Johnson, Montgomery App. No. 23017, 2009-Ohio-6136, at ¶12 (finding waiver where appellant‘s “decision to rely solely on his Miranda argument at the suppression hearing constituted a waiver of the additional arguments made in his motion to suppress * * *“).
{¶27} Notwithstanding the waiver, and even if we were to consider the pat-down and seizure as raised in McMullen‘s motion to suppress, the pat-down and seizure would stand because McMullen consented to the search. It is well established that where consent is freely and voluntarily given, the resulting search is constitutional. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041. “[W]hether consent to search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined by the totality of the circumstances.” Id. at 227.
{¶28} During his testimony, Officer Johnson stated that after McMullen exited the car, he asked him if he “had anything else illegal on him, guns, drugs, knives, bombs, hand grenades, any of that great stuff * * *.” Johnson testified that McMullen answered his question by saying that he did not have anything. Johnson later testified that he asked McMullen for his consent to perform a pat-down, and that
{¶29} Although McMullen specifically understood that Johnson would be looking for weapons, drugs, or anything illegal, McMullen permitted the pat-down. Johnson‘s testimony did not indicate that any of his actions were coercive, and instead established that McMullen and the other occupants had been cooperative throughout the incident of their own accord. Moreover, McMullen did not assert in his motion to suppress that Johnson used any sort of deceptive practices to elicit the consent, or that he felt duress during the exchange leading up to the pat-down. Absent the showing of any indicia of coercion, we cannot say that McMullen‘s consent was invalid or that Johnson‘s pat-down search was impermissible.
{¶30} Having found that the trial court properly overruled McMullen‘s motion to suppress, and that the pat-down and seizure issues were expressly waived at the hearing and were otherwise permissible, McMullen‘s assignment of error is overruled.
{¶31} Judgment affirmed.
POWELL and RINGLAND, JJ., concur.