State v. OliverState v. Oliver
DECISION
Rendered on May 9, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and Taylor M. Mick, for appellee. Argued: Taylor M. Mick.
On brief: Yeura R. Venters, Public Defender, and Leon J. Sinoff, for appellant. Argued: Leon J. Sinoff.
EDELSTEIN, J.
{1} After a police officer pulled over the vehicle being driven by defendant-appellant, Ja‘Braelin D. Oliver—and in which four other people were riding—he smelled raw marijuana coming from the car. Without making any inquiry into the source of that odor or determining whether it could be attributed to any particular person in the vehicle, the officer removed Mr. Oliver from the car, placed him in handcuffs, and searched his person. The officer found a firearm in the pocket of Mr. Oliver‘s jacket. After the trial court denied Mr. Oliver‘s suppression motion, Mr. Oliver pled no contest to the two fourth-degree felony gun charges in his accompanying felony case.
{2} On appeal, Mr. Oliver maintains the firearm should have been suppressed as evidence because it was the fruit of an unlawful traffic stop and search of his person under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 14 and 16 of the Ohio Constitution. We do not agree the stop was unlawful. We find the warrantless search of his person, however, was. Accordingly, we reverse the Franklin County Court of Common Pleas judgment denying Mr. Oliver‘s suppression motion, vacate Mr. Oliver‘s felony convictions and sentence—which were based solely on the evidence found on his person during the unconstitutional search—and remand this case to the trial court for proceedings consistent with this decision.
I. FACTS AND PROCEDURAL HISTORY
{3} On October 21, 2019, Mr. Oliver was indicted by a Franklin County Grand
{4} Mr. Oliver moved to suppress the firearm, arguing it was obtained in violation of the
{5} In its written response, plaintiff-appellee, the State of Ohio, argued the traffic stop was supported by probable cause and/or reasonable suspicion. (May 25, 2021 Memo. Contra at 2-3.) It premised the lawfulness of Mr. Oliver‘s prolonged detention, the pat-down search of Mr. Oliver‘s person, and the vehicle search on the “plain smell” doctrine. The state argued that because Officer Runyan detected the odor of raw marijuana emanating from the stopped Hyundai being driven by Mr. Oliver, the officer was permitted to prolong the stop and had probable cause to search all five occupants (including Mr. Oliver) and the car. The state did not argue the search of Mr. Oliver‘s person was justified as a protective Terry frisk for weapons. (Compare May 25, 2021 Memo. Contra with May 13, 2021 Mot. at 9-11.)
{6} In his supplemental motion, Mr. Oliver challenged the validity of the state‘s “plain smell” arguments under the facts of this case and recent changes to Ohio law. (See July 2, 2021 Suppl. Mot.) Specifically, Mr. Oliver contended the odor of marijuana alone can no longer be inherent evidence of criminal activity since the Ohio legislature legalized hemp—which also comes from the cannabis plant—a few weeks prior to the stop. This is because, Mr. Oliver argued, the odor of illegal marijuana cannot be distinguished from the odor of legal hemp. He also reiterated the arguments from his first motion that the pat-down search of his person was not justified under Terry because Officer Runyan did not develop any particularized basis to believe Mr. Oliver was armed and presently dangerous before he conducted the warrantless search. The state filed no further written responses.
{7} At the July 8, 2021 suppression hearing, the state presented testimony from Officer Runyan about the traffic stop, prolonged detention, and search of Mr. Oliver‘s person. The prosecutor played a recording from Officer Runyan‘s cruiser camera, which depicted Mr. Oliver‘s driving prior to the traffic stop. (Hearing Ex. B; Hearing Ex. B-1.) He also presented as exhibits a printout of the marked lanes statute,
A. Evidence and Testimony Presented at the Suppression Hearing
{9} At the suppression hearing, Officer Runyan testified that he was driving his cruiser in the inner eastbound lane of East Main Street shortly after midnight on August 18, 2019, when he came upon a blue Hyundai Sonata traveling in the outer (curb) eastbound lane of the road. (Tr. at 15.) There were five people in the Hyundai, including Mr. Oliver, who was driving. (Tr. at 16.) Officer Runyan drove his cruiser parallel to the Hyundai, slowed down, and then pulled behind the Hyundai in the outer eastbound lane. (Tr. at 28-29. See Hearing Ex. B, 1.)
{10} After several seconds, Officer Runyan observed the Hyundai‘s left tires drive on the lane divider (broken white) line for about one second. (Tr. at 15-16, 29, 35.) Instead of conducting a traffic stop of the Hyundai for what he believed was a marked lanes violation, Officer Runyan continued to follow behind the Hyundai. (Tr. at 27-29, 33.) Officer Runyan testified he did this because he thought the driver “may be impaired.” (Tr. at 15, 28-29, 35. See also Hearing Ex. 3 at ¶ 1.) Officer Runyan watched the Hyundai drive within its lane “for a long period of time.” (Tr. at 29.) Then, he saw the Hyundai‘s left turn signal illuminate before the vehicle properly crossed the lane divider line to move into the inner eastbound lane. (Tr. at 30-32.)
{11} The inner eastbound lane of the roadway was, at relevant times, separated from the inner westbound lane of East Main Street by a two-way left-turn center lane. (See generally Hearing Ex. 1.) The edges of a two-way left-turn center lane are delineated by a broken yellow line and a solid yellow line on each side of the lane. See Manual of Uniform Traffic Control Devices2 (“MUTCD“), Section 3B.03 (Jan. 13, 2012). See also MUTCD at Figure 3B-7. These pavement markings convey that the lane “can be used by traffic in either direction as part of a left-turn maneuver.” MUTCD at Section 3B.03.
{12} Not long after the Hyundai properly moved into the inner eastbound lane, Officer Runyan observed the vehicle‘s left tires drive on (or possibly over) the two-way left-turn center line for approximately two seconds. (Tr. at 20, 31. See also Trial Ex. B1.) In his report, Officer Runyan described the Hyundai‘s left tires as driving “on the yellow lane divider line.” (Hearing Ex. 3 at ¶ 1.) In his body camera footage from the stop, Officer Runyan told Mr. Oliver: “The reason I‘m pulling you over is you were riding that center line before making the transition over [to the left turn center lane].” (Hearing Ex. 4 at 1:12.) At the suppression hearing, Officer Runyan initially testified on direct examination that he saw the Hyundai‘s left tires cross the solid yellow outer line and “hit” the broken yellow inner line of the two-way left-turn center lane. (Tr. at 15-16.) After he watched his cruiser camera video and reviewed a screenshot therefrom, Officer Runyan described the Hyundai‘s left
{13} Believing he had just witnessed the Hyundai commit a second marked lanes violation, Officer Runyan initiated a stop of the car. (Tr. at 15-16, 19-21, 31-33. See also Hearing Ex. 3 at ¶ 1.)
1. The Traffic Stop
{14} The Hyundai drove within the inner eastbound lane briefly before illuminating its left-turn signal and moving into the two-way left-turn center lane without issue. (Tr. at 32.) While the Hyundai was in the process of properly turning left into a Walmart parking lot, Officer Runyan activated the overhead lights of his cruiser. (Tr. at 32-33.) The Hyundai promptly pulled over without issue. (Tr. at 19-20, 32-33.)
{15} Other than what he believed were two brief marked lanes violations, Officer Runyan did not observe the Hyundai weaving back and forth within a lane prior to the stop. (Tr. at 29, 31.) Nor did he observe any erratic lane changes or driving. (See Tr. at 29, 32.) Officer Runyan did not see the Hyundai abruptly brake either. (See Tr. at 30, 32.) And while Officer Runyan recalled seeing the Hyundai slow down when he initially encountered the car on the roadway, Officer Runyan agreed motorists often slow down because they do not want to speed in front of the police. (See Tr. at 28-30.)
{16} In his report, Officer Runyan wrote that he “conducted a traffic stop” of the Hyundai “for the weaving violation,” i.e., a marked lanes violation under
{17} It is true Officer Runyan also claimed that, based on the two brief marked lanes violations he believed he had witnessed, Officer Runyan suspected the driver of the Hyundai might be impaired. (Tr. at 15, 28-29, 35-36. See also Hearing Ex. 3.) And, it is true that Officer Runyan asked Mr. Oliver about his alcohol consumption when he first encountered Mr. Oliver in the driver‘s seat of the Hyundai. (See Hearing Ex. 4 at 1:12.) But after Mr. Oliver denied drinking any alcohol that evening (Tr. at 37), Officer Runyan did not ask him any other questions related to impairment. (See generally Hearing Ex. 4.) Nor did he attempt to further investigate impairment during the encounter. (See Tr. at 37-38. See generally Hearing Ex. 4.)
2. The Investigatory Detention
{18} Officer Runyan testified that when he approached the Hyundai, he immediately smelled “an odor of raw marijuana emanating from the open driver‘s window.” (Hearing Ex. 3 at ¶ 2. See also Tr. at 16-17, 38-39.) Officer Runyan also testified that, upon smelling raw marijuana, he “already kn[e]w that [he would be] detaining everyone in that car.” (Tr. at 38-39. See also at 41-43.) In order to detain all five people in the car, he explained, he needed assistance from at least two other officers. (Tr. at 38-39.) So, Officer Runyan radioed for backup. (Tr. at 38-39, 41-42.)
{19} While he waited for additional officers to arrive, Officer Runyan learned Mr. Oliver did not “have an ID on [him]” and did not have a license. (Hearing Ex. 4 at 1:12-1:30. See also Hearing Ex. 3 at ¶ 2.) Officer Runyan also discovered the Hyundai was owned by the female front passenger, who was a licensed driver but was not
{20} Instead, Officer Runyan asked Mr. Oliver—who was tapping through programs on his cell phone—why he was “so nervous.” (Hearing Ex. 4 at 1:58.) After Mr. Oliver denied that he was, Officer Runyan commented: “Your hands are shaking, bro.” (Hearing Ex. 4 at 1:58-2:03.) Mr. Oliver responded by gesturing in disbelief. (See Hearing Ex. 4 at 2:01-2:04.) Officer Runyan‘s body-worn camera is unclear and inconclusive as to whether Mr. Oliver‘s hands were, in fact, shaking at that time. (See Hearing Ex. 4.)
{21} When backup officers arrived, Officer Runyan advised them of a “49 smell.” (Hearing Ex. 4 at 3:26; Tr. at 41-42. See also Hearing Ex. 3 at ¶ 2.) At the hearing, Officer Runyan explained this was his way of conveying to the other officers (without Mr. Oliver and the other passengers knowing) that the officers would be detaining the people in the vehicle to further investigate the raw marijuana odor coming from the Hyundai. (See Tr. at 41-42.) Significantly, Officer Runyan repeatedly described the odor of marijuana coming from the car, but he never described the odor as coming from Mr. Oliver (or any other particular person in the car). (See, e.g., Hearing Ex. 3 at ¶ 2. See also Tr. at 16-17, 38-39.) Officer Runyan testified that he was “looking specifically for marijuana” when he decided to remove Mr. Oliver from the vehicle and search him. (Tr. at 43. See also Tr. at 48.)
{22} Prior to the warrantless search of his person, Mr. Oliver (and the passengers) answered Officer Runyan‘s questions and were compliant with his requests. (See Hearing Ex. 4; Tr. at 37, 40, 49.) No one made any sudden or furtive movements, attempted to flee the scene, or acted in a hostile or threatening manner toward Officer Runyan or any other officers at the scene. (See Hearing Ex. 4; Tr. at 37, 40, 49.) Officer Runyan also did not ask Mr. Oliver (or any of the vehicle‘s occupants) whether they had weapons or drugs in their possession before he ordered Mr. Oliver to exit the vehicle for the pat-down search. (See Tr. at 42-44. See generally Hearing Ex. 4.)
3. The Search of Mr. Oliver‘s Person and Arrest
{23} At Officer Runyan‘s direction, Mr. Oliver exited the Hyundai and turned around. (Hearing Ex. 4 at 3:38.) At this point, two other officers were at the scene. (See Hearing Ex. 3 at ¶ 2.) Officer Runyan immediately handcuffed Mr. Oliver and began a pat-down search of his person. (Hearing Ex. 4 at 3:53; Tr. at 47-49.) At the suppression hearing, Officer Runyan conceded Mr. Oliver was not free to leave after he was handcuffed. (Tr. at 48.)
{24} After running his hand over Mr. Oliver‘s left jacket pocket, Officer Runyan testified he “felt the [marijuana] grinder and immediately knew” what it was. (Tr. at 50.) Officer Runyan pulled the grinder out
{25} After the other four passengers were removed from the Hyundai, Officer Runyan searched it for contraband. (Hearing Ex. 3 at ¶ 5.) He only recovered “minute particles of marijuana” from the car. (Hearing Ex. 3 at ¶ 5.) No “collectible amounts” of marijuana were recovered from the grinder found in Mr. Oliver‘s pocket or the Hyundai. (Tr. at 46.) Officer Runyan did not send any of the marijuana particles he recovered in connection with this case to the lab for testing. (Tr. at 46.) And Mr. Oliver was not charged with marijuana possession. (Tr. at 46.)
{26} Officer Runyan identified Mr. Oliver at the scene and took him into custody for felony gun charges. (See Hearing Ex. 3 at ¶ 4, 8, 11, 12. See also Tr. at 21, 51.) Officer Runyan also cited Mr. Oliver for driving without a valid license under
B. The Arguments Below and the Trial Court‘s Decision
{27} Following the presentation of all evidence and testimony at the suppression hearing, Mr. Oliver‘s counsel argued the traffic stop was “improper” because Mr. Oliver did not actually commit a marked lanes violation. (Tr. at 56-58.) In addition to arguing the prolonged detention (Terry stop) was an unreasonable seizure, Mr. Oliver‘s counsel submitted that Officer Runyan‘s pat-down search of Mr. Oliver‘s person was unreasonable in two regards. (See Tr. at 58-62.) First, the odor of raw marijuana coming from a vehicle with five occupants did not give Officer Runyan a reasonable basis to believe Mr. Oliver, himself, possessed illegal drugs. (See Tr. at 58-61.) Second, because Officer Runyan did not (and could not, based on the facts known to him at the time) reasonably believe Mr. Oliver was armed and presently dangerous, the search could not be justified as a protective pat-down for weapons under Terry. (See Tr. at 61-62.)
{28} In response, the state argued Officer Runyan had probable cause to conduct the traffic stop because he witnessed two marked lanes violations. (Tr. at 62-64.) The prosecutor also maintained the raw marijuana odor coming from the car justified the prolonged detention (Terry stop) of all vehicle occupants, the pat-down search of Mr. Oliver‘s person, and the vehicle search. (See Tr. at 64-67.) Contending that Officer Runyan had “reasonable suspicion to search based on the smell of marijuana,” the state argued the suppression motion should be denied. (Tr. at 67.) Of note, the prosecutor never claimed the pat-down search of Mr. Oliver‘s person was conducted due to officer safety concerns or that Officer Runyan reasonably suspected Mr. Oliver was armed and presently dangerous—i.e., justified as a Terry frisk for weapons. (Compare Tr. at 61 with Tr. at 62-67.)
{29} Finding Officer Runyan‘s hearing testimony to be “credible in all aspects,” the trial court made findings of fact in its July 19, 2021 judgment entry denying Mr. Oliver‘s suppression motion. (Decision and
{30} The trial court next credited Officer Runyan‘s testimony that he smelled raw marijuana emanating from the vehicle, which it found gave Officer Runyan a lawful basis to detain and conduct a search of Mr. Oliver‘s person without a warrant. (Decision and Entry at 2-3, 6-9.) Because the state did not premise the lawfulness of the frisk on officer safety concerns or argue the gun would have inevitably been discovered if Officer Runyan arrested Mr. Oliver for misdemeanor traffic offenses in the court below, the trial court made no findings on the applicability of either justification to the warrantless search of Mr. Oliver‘s person in this case.3
{31} After the trial court denied Mr. Oliver‘s suppression motion, Mr. Oliver pled “no contest” to the two fourth-degree felony gun counts as charged in the indictment. (Aug. 10, 2021 Entry of No Contest Plea.) On August 10, 2021, the trial court sentenced Mr. Oliver to a three-year period of community control. (Aug. 11, 2021 Jgmt. Entry.)
{32} Mr. Oliver timely appealed and asserts the following assignment of error for our review:
THE LOWER COURT ERRED WHEN IT DENIED APPELLANT‘S MOTION TO SUPPRESS. ALL EVIDENCE OBTAINED AS A RESULT OF THE UNLAWFUL STOP OF APPELLANT‘S VEHICLE, AND UNLAWFUL SEARCH OF APPELLANT‘S PERSON, VIOLATED THE FOURTH AND FOURTEENTH AMENDMENTS [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 14 AND 16 OF THE OHIO CONSTITUTION.
II. ANALYSIS
{33} In his sole assignment of error, Mr. Oliver challenges the constitutionality of the initial traffic stop and the warrantless search of his person. He argues that because Officer Runyan lacked a valid justification for both, the trial court erred in overruling his motion to suppress the firearm obtained as fruit of the illegal traffic stop and/or pat-down search of his person.
A. Standard of Review
{34} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, ¶ 14, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Thus, an appellate court‘s standard of review of a trial court‘s decision denying a motion to suppress is two-fold. See, e.g., State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 13 (10th Dist.), citing State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, ¶ 5, citing State v. Lloyd, 126 Ohio App.3d 95, 100-01 (7th Dist.1998).
{35} In ruling on a motion to suppress, the trial court first assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. See, e.g., State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶ 12, quoting Burnside at ¶ 8, State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, on appeal, we must “accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Id., quoting Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982).
{36} With respect to the trial court‘s conclusions of law, however, our standard of review is de novo. See, e.g., Banks-Harvey at ¶ 14, citing Burnside at ¶ 8; State v. Turner, 163 Ohio St.3d 421, 2020-Ohio-6773, ¶ 14. See also Pilgrim at ¶ 13. We are tasked with independently determining whether the facts satisfy the applicable legal standard. See id.
{37} Upon a motion to suppress evidence obtained without a warrant, the state carries the burden of showing, by at least a preponderance of the evidence, that the search and/or seizure fits within one of the defined exceptions to the warrant requirement. See, e.g., Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988), citing State v. Kessler, 53 Ohio St.2d 204, 207 (1978); Columbus v. Ellyson, 10th Dist. No. 05AP-573, 2006-Ohio-2075, ¶ 5, citing Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974); State v. Brandenburg, 12th Dist. No. CA2020-09-055, 2021-Ohio-2875, ¶ 13.
B. Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution
{38} The
{39} “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). “A search is unreasonable when police lack a valid warrant and no exception to the warrant requirement applies.” State v. Jackson, ____ Ohio St.3d ____, 2022-Ohio-4365, ¶ 10, citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
{40} To safeguard the rights protected in the
C. The Warrantless Stop
{41} On appeal, Mr. Oliver asserts Officer Runyan lacked probable cause or reasonable suspicion for the initial traffic stop, making the firearm subsequently found during the warrantless search of his person inadmissible as fruit of the poisonous tree. The state argues (as it did below) Officer Runyan had probable cause and reasonable suspicion for the traffic stop because he witnessed Mr. Oliver commit marked lanes violations.
1. Legal Standards
{42} A traffic stop by a law enforcement officer must comply with the
{43} First, a vehicle may be stopped when an officer witnesses a violation of the traffic code and then stops a motorist to issue a citation for the violation. See, e.g., Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996); Chambers at ¶ 23; Ravenna v. Nethken, 11th Dist. No. 2001-P-0040, 2002-Ohio-3129, ¶ 30; Ewing at ¶ 16. This type of non-investigatory traffic stop is justified when it is supported by probable cause. See, e.g., id.; Whren at 810; Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977).
{44} Probable cause is defined in terms of “facts and circumstances ‘sufficient to warrant a prudent man in
{45} Second, a vehicle may be stopped when an officer has reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit a crime (including a traffic violation), and then stops a motorist to confirm or refute (i.e., investigate) this suspicion of criminal activity. See, e.g., Chambers at ¶ 23, citing Terry, 392 U.S. at 21. See also Erickson at 6; State v. Howell, 1st Dist. No. C-170158, 2018-Ohio-591, ¶ 12. “Reasonable suspicion entails some minimal level of objective justification, ‘that is, something more than an inchoate and unparticularized suspicion or “hunch,” but less than the level of suspicion required for probable cause.‘” State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 17 (10th Dist.), quoting State v. Jones, 70 Ohio App.3d 554, 556-57 (2d Dist.1990). “In evaluating reasonable suspicion to support the propriety of a stop, a reviewing court must consider the totality of the circumstances surrounding the stop as ‘viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.‘” State v. McCandlish, 10th Dist. No. 11AP-913, 2012-Ohio-3765, ¶ 7, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). See also Terry at 21-22.
{46} To determine whether a traffic stop was lawful, it is necessary to first examine the impetus behind the stop and then determine whether the stopping officer was required to have probable cause or merely reasonable and articulable suspicion of ongoing criminal activity. We emphasize that probable cause and reasonable and articulable suspicion are distinct legal standards.5 See, e.g., State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23. Probable cause is a stricter standard than reasonable and articulable suspicion, meaning “[t]he former subsumes the latter.” Id., citing State v. Evans, 67 Ohio St.3d 405, 411 (1993).
2. Analysis
{47} On appeal, the state contends that Officer Runyan conducted the traffic stop for both investigatory and non-investigatory reasons. (Appellee‘s Brief at 12-17.)
{48} Investigatory Stop. The state argues the traffic stop was justified as an investigatory Terry stop because Officer Runyan had a reasonable basis to suspect Mr. Oliver was driving while impaired based on the time of night (approximately 12:30 a.m.) and two (possible) minor marked lanes violations. (Appellee‘s Brief at 15-17.) The record below does not, however, support the state‘s contention that Officer Runyan actually stopped Mr. Oliver to investigate what he believed to be an ongoing impaired driving offense.6 Even if it did, the state failed to develop any argument below as to whether an
officer could reasonably believe a driver was impaired under these facts.7 See, e.g., State v. Lisac, 11th Dist. No. 2012-G-3056, 2012-Ohio-5224, ¶ 20 (deputy‘s observation of defendant‘s vehicle touching the center line did not amount to reasonable suspicion to initiate a traffic stop to investigate impairment in the absence of testimony characterizing defendant‘s driving as erratic, substantial weaving,
{49} Non-Investigatory Stop. The state primarily contends that the traffic stop was justified as non-investigatory stop because Officer Runyan actually witnessed (or had a reasonable basis to believe he had witnessed) Mr. Oliver commit a marked lanes infraction, in violation of
{50} On these facts and the record before us, and based on the totality of the circumstances, we find the impetus for the traffic stop in this case was Officer Runyan‘s observations of what he believed were two completed marked lanes violations. And this finding is not generally in dispute. Instead, Mr. Oliver argues the traffic stop was unconstitutional because he did not actually commit a marked lanes violation. This is because, he contends, a vehicle‘s tire must drive completely over (as opposed to merely on) a marked lane line to constitute a marked lanes violation under
{51} We reiterate that reasonable suspicion is not sufficient to justify a non-investigatory traffic stop, because a non-investigatory traffic stop must be supported by probable cause. See, e.g., Chambers, 2020-Ohio-1483 at ¶ 23, citing Whren, 517 U.S. at 810, and Mimms, 434 U.S. at 109. Accordingly, we confine our analysis of the traffic stop in this case to the “typical non[-]investigatory stop that officers perform after witnessing specific traffic violations, premised on probable cause.” State v. Hampton, 1st Dist. No. C-210423, 2022-Ohio-1380, ¶ 8.
a. To violate R.C. 4511.33(A)(1) , a vehicle‘s tires must completely cross a lane divider line
{52}
{53} In State v. Turner, the Supreme Court of Ohio held that “the single solid white longitudinal line on the right-hand edge [of] a roadway—the fog line—marks the edge of the roadway and that such a marking merely ‘discourages or prohibits’ a driver from ‘crossing’ it, not ‘driving on’ or ‘touching it.‘” 2020-Ohio-6773 at ¶ 37, citing MUTCD Section 3A.06(B). In reaching its decision, the court noted that “[t]his interpretation of
{54} The state is correct in noting that Turner was decided after the traffic stop in this case occurred. (See Appellee‘s Brief at 16.) But that fact has little relevance to our analysis here. When Mr. Oliver was stopped on August 18, 2019, all of the district courts of appeals that had thus far addressed this issue—the First, Third, Fifth, Sixth, and Eleventh Districts—had held that touching or driving on the fog line does not constitute a violation of
{55} Mr. Oliver attributes error to the trial court‘s decision not to extend Turner‘s holding to pavement lane lines other than the fog line. (Appellant‘s Brief at 12-16.) We cannot say this was error, however, as the Turner court made clear its holding did not
address other cases involving vehicles driving on or touching any other lane lines. See Turner, 2020-Ohio-6773 at ¶ 12. Of note, those cases not addressed in Turner—which all predated the traffic stop in this case—generally stood for the proposition that
{56} To determine the constitutionality of the traffic stop in this case, however,
b. Officer Runyan had probable cause to conduct a non-investigatory traffic stop
{57} Before addressing the specifics of Mr. Oliver‘s argument that the trial court erred in finding Officer Runyan had probable cause to conduct a traffic stop, we will address the trial court‘s factual findings concerning the constitutionality of the traffic stop.
{58} The trial court found Officer Runyan “observed two marked lanes violations.” (Emphasis added.) (Decision and Entry at 1.) Although we disagree (at least in part) with that finding, we again reiterate that, when a defendant challenges the validity of a non-investigatory stop, “the focus is not on whether [the defendant] could have been stopped because a traffic violation had in fact occurred, but on whether the officer had
probable cause to believe an offense had occurred.” See, e.g., Gullick, 2008-Ohio-3168 at ¶ 12.
{59} With regard to the first alleged violation, Officer Runyan testified he observed the Hyundai‘s tires briefly drive on—but not cross—the lane divider (broken white) line. His cruiser video supported that testimony, and his report indicated that, at the time of the stop, he perceived the vehicle‘s tires as driving on—but not over—the lane divider line. Since
{60} Our analysis of the second alleged marked lanes violation is not as simple. The state alleges Mr. Oliver violated the statute by briefly driving the Hyundai‘s tires on or over the center left-turn lane lines. Center left-turn lanes are designated by double yellow lane lines—the outer line is solid and the inner line is broken.
{61} In his written report, Officer Runyan described the Hyundai‘s left tires as driving “on the yellow lane divider line.” (Hearing Ex. 3 at ¶ 1.) As depicted in his body camera footage, Officer Runyan told Mr. Oliver: “The reason I‘m pulling you over is you were riding that center line
{62} At the suppression hearing, however, Officer Runyan initially testified on direct examination that he saw the Hyundai‘s left tires cross the solid yellow outer line and “hit“—i.e., drive on—the broken yellow inner line of the two-way left-turn center lane. (Tr. at 15-16.) After he watched his cruiser camera video and reviewed a screenshot therefrom, Officer Runyan described the Hyundai‘s left tires as crossing the solid yellow line and “probably [driving] partially over the [broken yellow] line” of the two-way left-turn center lane. (Tr. at 19-21, discussing Hearing Ex. B, Hearing Ex. B-1. See also Tr. at 35.)
{63} In its decision, the trial court found the “vehicle drifted to the left and the driver‘s side tire drove over the solid yellow lane divider.” (Decision and Entry at 1.) It did not make any findings concerning the broken yellow inner lane line. In other words, the trial court did not find the tires crossed both the solid yellow outer lane line and the dashed yellow inner lane line, which, together, designated the center left-turn lane.
{64} Based on our independent review of the cruiser camera video, and in light of Officer Runyan‘s testimony (found by the trial court to be credible “in all aspects“), we find that competent, credible evidence supports the finding that the Hyundai‘s tires completely crossed the solid yellow outer lane line, but only touched the broken yellow inner lane line.
{65} We have recognized that, “[g]enerally, crossing the double-yellow lines is a violation of
{66} Ohio case law is not clear on whether an officer has a lawful basis to stop a vehicle for violating
defendant for marked lanes violation when the officer testified he saw vehicle‘s tires drive on but not completely cross both of the double yellow lines); State v. Thayer, 9th Dist. No. 11CA0045-M, 2012-Ohio-3301, ¶ 16-22 (finding
{67} We have not previously had the occasion to explicitly address this issue. Nor has the Supreme Court of Ohio. And, the parties in this case do not present arguments or authority regarding this precise issue.10 Because it is not the duty of this court to develop an argument not raised in support of an assignment of error—even if one might exist—we decline to render any opinion on whether a vehicle‘s tire must cross both double lane lines to violate
{68} Based on the foregoing—and in the absence of binding precedent, or even persuasive authority, clearly stating otherwise—we find that under the facts of this particular case, Officer Runyan had probable cause to believe Mr. Oliver committed a marked lanes violation when he observed the Hyundai‘s tires cross the solid yellow line and touch the dashed line. Given Officer Runyan‘s testimony and the cruiser video, and irrespective of whether Mr. Oliver actually violated
{69} This finding remains true even though there was no testimony elicited from Officer Runyan at the suppression hearing about the circumstances surrounding Mr. Oliver‘s failure to maintain his lane of travel—i.e., traffic, weather or road conditions, where the rumble strips were located in relation to the marked lane, or anything else to indicate why it was not practicable for Mr. Oliver to remain within the lane as contemplated by
{70} Accordingly, Mr. Oliver‘s arguments relating to the traffic stop are not well-taken. For the forgoing reasons, we do not find error in the trial court‘s conclusion that Officer Runyan had probable cause to conduct a traffic stop of the vehicle.
D. The Warrantless Search of Mr. Oliver‘s Person
{71} As part of his sole assignment of error, Mr. Oliver also contends that, even if Officer Runyan had a valid basis for the traffic stop, the officer did not have a lawful basis to search his person. He argues the firearm was inadmissible as fruit of the illegal pat-down search, and the trial court erred in failing to suppress it.
{72} “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.” (Footnote omitted.) Katz v. United States, 389 U.S. 347, 357 (1967). When a defendant moves to suppress evidence recovered during a warrantless search, the state has the burden of showing that the search fits within one of the defined exceptions to the Fourth Amendment‘s warrant requirement. Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974).
{73} In the trial court, the state argued the search of Mr. Oliver‘s person was justified because Officer Runyan detected the odor of raw marijuana coming from the vehicle. (See Tr. at 62-67; May 25, 2021 Memo. Contra.) The trial court agreed, finding that “Officer Runyan could have objectively reasonably [sic] relied upon the plain smell standard set forth in Moore in detaining11 and searching [Mr. Oliver].” (Decision and Entry at 9.)
{74} However, on appeal, the state advances new justifications for the search. It argues the pat-down search of Mr. Oliver‘s person was justified as a protective Terry frisk for weapons. (Appellee‘s Brief at 21-33.) The state also contends the inevitable discovery doctrine applies because Officer Runyan had probable cause to arrest Mr. Oliver for either driving without a valid license or a minor misdemeanor marked lanes violation at the time of the frisk. (Appellee‘s Brief at 33-38.) Neither argument was made in the trial court. (See, e.g., Tr. at 62-67; May 25, 2021 Memo. Contra.) As a result, the trial court did not make any findings on the lawfulness of the
{75} Mr. Oliver argues the trial court erred in finding the odor of raw marijuana coming from a car with five occupants justified Officer Runyan‘s warrantless pat-down search of Mr. Oliver‘s person. In its decision, the trial court referenced the “plain smell” doctrine but conflated legal standards that are not relevant here. (See Decision and Entry at 6-9). And, although the state conceded at oral argument it was not advancing some of the legal theories in the trial court‘s decision, we nonetheless will address both the trial court‘s analysis and the state‘s new contentions on appeal relating to the warrantless search of Mr. Oliver‘s person.
1. Mr. Oliver did not challenge the search of the vehicle and Officer Runyan never claimed he detected the odor of marijuana emanating from Mr. Oliver‘s person
{76} In the trial court, the state maintained that the search of Mr. Oliver‘s person was “based on the smell of marijuana.” (See Tr. at 64-67; May 25, 2021 Memo. Contra at 2.) At the conclusion of the suppression hearing, the prosecutor explicitly stated that the odor of marijuana “was the reason for the searching [of] the people.” (Compare Tr. at 61; Appellee‘s Brief at 40, with Tr. at 64-67.)
{77} In ruling upon the validity of Officer Runyan‘s warrantless search of Mr. Oliver‘s person, the trial court misapplied the holding of State v. Moore, 90 Ohio St.3d 47 (2000). (See Decision and Entry at 7-9.) Relying on Moore, the trial court found the warrantless search of Mr. Oliver‘s person was lawful because Officer Runyan smelled raw marijuana in the car. (Decision and Entry at 7-9.) But Moore does not support such application.
{78} In Moore, the Supreme Court of Ohio certified the following issue for review: “[i]s the odor of burnt marijuana, alone, sufficient to provide probable cause to search a defendant‘s motor vehicle.” (Emphasis added. Id. at 48. The Moore court broadly held that “the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle, pursuant to the automobile exception to the warrant requirement.” Id. By affirming the trial court‘s decision to deny the motion to suppress, the Moore court also held that “exigent circumstances existed to justify the warrantless search of defendant‘s person once [law enforcement] had probable cause based upon the odor of marijuana detected on the defendant,” who was the sole occupant of the vehicle. (Emphasis added.) Id.
{79} When Moore was decided in 2000, marijuana (cannabis) could not be legally possessed or used in any form in Ohio. But, at the time of the traffic stop in this case, it could be legally possessed and used in certain circumstances. This is because the Ohio General Assembly legalized medical marijuana12 and hemp13 prior to August 18, 2019. Mr. Oliver thus contends that Officer Runyan could not—based solely
{80} An officer‘s detection of the odor of marijuana in a car does not, alone, establish probable cause sufficient to search an occupant of that car without a warrant. It is well-established that probable cause for a search of a person must be “particularized with respect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Compare Moore at 48 (strong odor of burnt marijuana also detected on defendant‘s clothing) and State v. Maddox, 10th Dist. No. 19AP-72, 2021-Ohio-586, ¶ 21 (defendant was the sole occupant of the vehicle and voluntarily surrendered marijuana), with State v. Johnson, 10th Dist. No. 08AP-990, 2009-Ohio-3436, ¶ 20 (no evidence that marijuana odor was detected on defendant‘s person and other occupant of vehicle admitted the marijuana blunt in plain view belonged to him) and State v. Taylor, 8th Dist. No. 94853, 2011-Ohio-1554, ¶ 24-25 (no evidence of marijuana in the car or that defendant herself smelled of marijuana). “This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search * * * the [place] where the person may happen to be.” Ybarra at 91. See also Johnson at ¶ 14 (“Probable cause to search one location (the car) does not automatically result in probable cause to search another location ([defendant‘s] pockets.“). “As the Moore court noted, even in cases where probable cause for a vehicle search exists, law enforcement must independently justify a [warrantless] search of the vehicle operator or other occupants.” Maddox at ¶ 21, citing Moore at 52 (citing examples of exigent circumstances).
{81} Based on the odor of raw marijuana coming from the car, Officer Runyan suspected narcotics might be present in it. Unlike in Moore, however, Officer Runyan
{82} Since Officer Runyan did not testify he could reasonably attribute the odor of raw marijuana to any one of the five people in the car before he searched Mr. Oliver, it is apparent that his suspicion was not particularized to Mr. Oliver. Rather, it encompassed all occupants based on their mere presence in the vehicle. But Mr. Oliver‘s mere presence in the car did not, under the particular facts and circumstances presented in this case, provide Officer Runyan with probable cause to believe Mr. Oliver possessed marijuana at the time he was searched. Accordingly, we find that Officer Runyan did not have probable cause to search Mr. Oliver‘s person based solely on the odor of raw marijuana emanating from the car. Based on this determination, we need not make any proclamations regarding the present-day value of Moore‘s core inference.15
2. The state did not argue in the trial court that the pat-down search of Mr. Oliver‘s person was justified as a protective frisk for weapons, thus waiving this issue for the purposes of appeal
{83} On appeal, the state‘s main contention is that Officer Runyan‘s pat-down search of Mr. Oliver‘s person was justified as a protective frisk for weapons under Terry v. Ohio. (Appellee‘s Brief at 21-33.)
{84} An officer may perform a pat-down of a suspect‘s outer clothing to protect the safety of himself and others. Terry, 392 U.S. at 30. The purpose of such a Terry frisk is “not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Adams v. Williams, 407 U.S. 143, 146 (1972). A frisk is lawful if the investigative stop itself is lawful, and if the officer harbors an objectively reasonable belief that a particular individual is “armed and presently dangerous.” Terry at 24. See also State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, ¶ 9; Arizona v. Johnson, 555 U.S. 323, 327 (2009); Michigan v. Long, 463 U.S. 1032, 1047-48 (1983) (“[P]olice may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous.“).
{85} Even when an investigatory stop and detention are justified under Terry, it does not necessarily follow that a frisk for weapons is also warranted.
{86} With these legal standards in mind, a review of the record in this case reveals the state never claimed the search of Mr. Oliver‘s person was a lawful protective search for weapons under Terry in the court below. Because it did not make this argument in the trial court, we find the state has waived that argument for the purposes of this appeal.
{87} It is well-established that a party cannot raise new issues or legal theories for the first time on appeal. See, e.g., State v. Atchley, 10th Dist. No. 07AP-412, 2007-Ohio-7009, ¶ 8, citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43 (1975). See, e.g., State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993), citing State ex rel. Gibson v. Indus. Comm., 39 Ohio St.3d 319, 320 (1988) (“A party who fails to raise an argument in the court below waives his or her right to raise it here.“). This means that a litigant‘s failure to raise an issue before the trial court generally waives the litigant‘s right to raise that issue on appeal. See, e.g., State v. Dunlap, 10th Dist. No. 05AP-260, 2005-Ohio-6754, ¶ 7; Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 30 (“an appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts“); State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 21 (defendant forfeited constitutional challenge by failing to raise it during trial court proceedings); Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 204 (2000) (party waived arguments for purposes of appeal when party failed to raise those arguments during trial court proceedings).
{88} When a defendant moves to suppress evidence obtained through a warrantless search, the state bears the ultimate burden of establishing that the search falls into one of the exceptions to the warrant requirement. State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, ¶ 18, citing State v. Kessler, 53 Ohio St.2d 204, 207 (1978), quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). The Supreme Court of Ohio has held that before the state is put to this burden, however, the defendant must assert the grounds upon which he intends to challenge the validity of the search. Id., citing Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988); State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, ¶ 10. See also Atchley at ¶ 8; State v. Turner, 12th Dist. No. CA2018-11-082, 2021-Ohio-541, ¶ 12-14 (state not
{89} Here, Mr. Oliver argued in his first suppression motion that the warrantless search was not a lawful frisk for weapons under Terry “because the officers lacked an objectively reasonable belief that Mr. Oliver was armed and dangerous.” (May 13, 2021 Mot. at 9.) Further, a review of the hearing transcript likewise demonstrates that Mr. Oliver‘s counsel presented arguments as to why the trial court should find the pat-down search was not justified as a Terry frisk. (See Tr. at 59-62.) The state filed no written argument below claiming the pat-down search was justified under Terry. (See May 25, 2021 Memo. Contra.) And, the trial prosecutor never argued at the suppression hearing that Officer Runyan searched Mr. Oliver‘s person out of officer safety concerns or because he believed Mr. Oliver was armed and presently dangerous. (Tr. at 62-67.) More precisely, the state never contended below that the trial court should find the pat-down search was permitted by Terry.
{90} At the hearing, Officer Runyan did not testify that he believed Mr. Oliver to be armed and dangerous prior to the pat-down search. Nor did Officer Runyan testify that he searched Mr. Oliver due to “officer safety” concerns. To the contrary, Officer Runyan repeatedly stated that he searched Mr. Oliver‘s person because he was looking for marijuana, not firearms. (See, e.g., Tr. at 43, 48-49. See also Hearing Ex. 3 at ¶ 2.) This testimony thus belies the state‘s contention on appeal that Mr. Oliver was frisked “for protective purposes” in preparation for Officer Runyan searching the vehicle. (See Appellee‘s Brief at 40.) And, his body camera footage likewise does not support the state‘s claim on appeal that Officer Runyan searched Mr. Oliver‘s person for officer safety. (See generally Hearing Ex. 4.) Both his testimony and body camera indicate Officer Runyan frisked Mr. Oliver for drugs.
{91} In his report, though, Officer Runyan stated: “In my experience, when illegal drugs are present, there is a high probability that weapons are also present. For this reason, I secured the driver in handcuffs, and conducted a search of his person for illegal contraband.” (Hearing Ex. 3 at ¶ 2.) At the hearing, Officer Runyan testified that he was “looking specifically for marijuana” when he decided to pull Mr. Oliver (and the other passengers) out of the vehicle to search them. (Tr. at 43.) Officer Runyan clarified that he included the “high probability of weapons” language in his report “because I‘m putting somebody in handcuffs because I‘m concerned that they might have an illegal drug, so I‘m more justifying the handcuffing of the suspects as opposed to saying what I‘m searching for.” (Emphasis added.) (Tr. at 43. See also Tr. at 48-49.)
{92} Since the state did not argue the search was a lawful Terry frisk below, the requisite factual inquiry for proper analysis of that issue was not done by the trial court. The state did not offer the necessary evidence at the hearing—testimony from Officer Runyan that the pat-down search was done for officer safety—that would trigger the need for the trial court to evaluate whether, under the totality of the circumstances, Officer Runyan had an objective, reasonable, and particularized
{93} The prosecutor instead maintained at the hearing that Officer Runyan searched Mr. Oliver‘s person because he smelled raw marijuana emanating from the vehicle. Officer Runyan‘s testimony was consistent with that claim. (Tr. at 62-67.) “‘An officer cannot conduct a protective search as a pretext for a search for contraband, a search for convenience, or as part of his or her normal routine or practice.‘” State v. Morris, 10th Dist. No. 09AP-751, 2010-Ohio-1383, ¶ 15, quoting State v. Stamper, 7th Dist. No. 03-MA-144, 2004-Ohio-5366, ¶ 12. “The sole justification of the search * * * is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry, 392 U.S. at 29.
{94} It would be inappropriate for us to speculate that Officer Runyan frisked Mr. Oliver due to “officer safety concerns” or for “protective purposes”17 in the absence of any testimony from Officer Runyan explicitly stating this and given the prosecutor‘s failure to argue this legal justification at any time in the court below. “To address this argument for the first time at this stage of the proceedings would be for this court to act as the trial court rather than as an appellate court.” Atchley, 2007-Ohio-7009 at ¶ 9. See also O‘Brien v. Ohio State Univ., 10th Dist. No. 06AP-946, 2007-Ohio-4833, ¶ 10, citing Hardy v. Fell, 8th Dist. No. 88063, 2007-Ohio-1287, ¶ 29 (“This court * * * is not a trial court, and we cannot be the de novo trier of fact.“). “‘A party may not * * * present new arguments for the first time on appeal.‘” Heimberger v. Zeal Hotel Group Ltd., 10th Dist. No. 15AP-99, 2015-Ohio-3845, ¶ 24, quoting Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 13.
{95} Further, since Officer Runyan did not even claim he believed Mr. Oliver
{96} Therefore, for these reasons, we find the state waived the issue for purposes of appeal. See, e.g., Atchley, 2007-Ohio-7009 at ¶ 8-9 (finding that defendant‘s failure to adequately raise the basis of his challenge to a warrantless search constitutes a waiver of that issue on appeal); Wintermeyer, 2019-Ohio-5156 at ¶ 25 (holding that “when the state does not assert in the trial court that a defendant lacks Fourth Amendment standing to challenge a contested search or seizure, the state may not assert that argument in its own appeal from a judgment granting a motion to suppress.“).
3. The state did not argue inevitable discovery below, thus waiving this issue for purposes of appeal
{97} The state also argues that even if the search did not satisfy the standard articulated in Terry, the inevitable discovery rule supports the evidence‘s admissibility.
{98} Mr. Oliver clearly challenged the warrantless search of his person in the trial court, but the state did not argue inevitable discovery below. As a result, the trial court did not make findings on that issue. As a result, we find the state waived the issue for purposes of appeal. See, e.g., Atchley at ¶ 8-9; Wintermeyer at ¶ 25.
4. The good faith exception to the exclusionary rule does not apply
{99} Based on the foregoing, we find the state failed to establish the warrantless search of Mr. Oliver‘s person was constitutionally reasonable. Therefore, we must determine whether the evidence obtained during the unconstitutional search should have been suppressed.
{100} “The exclusionary rule bars the use of evidence secured by an unconstitutional search and seizure.” State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶ 34, citing State v. Johnson, 141 Ohio St.3d 136, 2014-Ohio-5021, ¶ 40, citing Weeks v. United States, 232 U.S. 383, 394 (1914) (announcing the exclusionary rule), and Mapp v. Ohio, 367 U.S. 643, 655, (1961) (extending the exclusionary rule to the states).
{101} The exclusionary rule is applied to evidence found as a result of an unconstitutional search or seizure when its application will result in appreciable deterrence of Fourth Amendment violations. See, e.g., Leak at ¶ 34; State v. Schubert, ___ Ohio St.3d ___, 2022-Ohio-4604, ¶ 8. Under this doctrine, despite the unlawful seizure of evidence, when “an officer acts with an objectively reasonable, good-faith belief that his or her conduct is lawful, the deterrence rationale for the exclusionary rule loses force,” and thus does not support the
{102} The good-faith exception may apply when an officer conducts an unlawful search or seizure laboring under a mistake of law. See, e.g., State v. Stadelmann, 1st Dist. No. C-130138, 2013-Ohio-5035, ¶ 10 (holding that because the officer had a good faith belief that the defendant‘s turn violated the relevant traffic law, the court properly denied his motion to suppress despite the officer‘s mistake of law); State v. Gunzenhauser, 5th Dist. No. 09-CA-21, 2010-Ohio-761, ¶ 16 (“Under limited circumstances, courts have held that the exclusionary rule may be avoided with respect to evidence obtained in a stop based on conduct that a police officer reasonably, but mistakenly, believes is a violation of the law.“); Heien v. North Carolina, 574 U.S. 54, 67-68 (2014) (denial of defendant‘s motion to suppress was proper because officer‘s mistaken belief that the law required two operating headlights, instead of one, was objectively reasonable based on the circumstances).
{103} However, the good-faith exception is limited. “‘Because courts must be cautious in overlooking a police officer‘s mistakes of law, the mistake must be objectively reasonable.‘” State v. Reedy, 5th Dist. No. 12-CA-1, 2012-Ohio-4899, ¶ 18, quoting Gunzenhauser at ¶ 16. See also Heien at 61, quoting Brinegar v. United States, 338 U.S. 160, 176 (1949).
{104} Officer Runyan testified he believed he could search Mr. Oliver‘s person for drugs based solely on the fact that he smelled what he believed to be the odor of raw marijuana coming from a vehicle with four other occupants. (See Tr. at 43-45, 52-53.) Setting aside recent legislative actions legalizing cannabis in limited situations, Ohio law has never permitted a warrantless search of a person under the circumstances presented in this case: the odor of raw marijuana emanating from a vehicle occupied by five people, without any evidence connecting the particular person searched to the source of that odor. We thus find Officer Runyan‘s belief that he was authorized to search Mr. Oliver‘s person merely because he detected the odor of raw marijuana coming from a car with four other occupants was not sufficiently reasonable to trigger the protection of the good-faith exception.
{105} As a result, the evidence obtained from the warrantless pat-down search should have been suppressed. See Xenia, 37 Ohio St.3d at 219; Wong Sun, 371 U.S. at 487-88. Accordingly, we find the trial court erred by overruling Mr. Oliver‘s suppression motion and failing to suppress evidence obtained through the pat-down search of his person, as well as any evidence and statements gathered subsequent to the search as derivative “fruits” thereof.
{106} Based on the foregoing, we find the state did not satisfy its burden in the trial court of establishing that one of the well-defined exceptions to the Fourth Amendment‘s warrant requirement applied to the warrantless search of Mr. Oliver‘s person in this case. See Banks-Harvey, 2018-Ohio-201 at ¶ 39, citing State v. Kessler, 53 Ohio St.2d 204, 207 (1978). As a result, the warrantless search of his person was unreasonable and, thus, violated the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution. See id. Because the firearm was a fruit of that unconstitutional search,
III. CONCLUSION
{107} Having sustained Mr. Oliver‘s sole assignment of error, we reverse the Franklin County Court of Common Pleas judgment denying Mr. Oliver‘s suppression motion, vacate Mr. Oliver‘s felony convictions and sentence—which were based solely on the evidence found on his person during the unconstitutional search—and remand this case to the trial court for proceedings consistent with this decision.
Judgment reversed; convictions and sentence vacated; cause remanded.
LUPER SCHUSTER and MENTEL, JJ., concur.