State v. PriceState v. Price
John M. Felter, for appellee.
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HANDWORK, J.
{¶ 1} This case is before the court on appeal from the judgment of the Sandusky County Court of Common Pleas which granted the motion to suppress filed by appellee, Lawrence E. Price, II, on the basis that the warrantless search of the vehicle, in which appellee was riding, did not fall within the search incident to arrest exception or the
{¶ 2} Appellate review of a motion to suppress is set forth in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, wherein the Ohio Supreme Court stated that
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, 582 N.E.2d 972 (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, 437 N.E.2d 583 (1982)]. Accepting these facts as true, the appellate court must then independently determine, without deference to the сonclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara[, 124 Ohio App.3d 706, 707 N.E.2d 539 (1997)].
{¶ 4} After placing Ervin in the patrol vehicle, Sgt. Gerhardt asked Ervin if appellee, the passenger, had permission to drive the vehicle. Ervin agreed that appellee could drive the vehicle home; however, the cаr was not registered to Ervin or appellee. Sgt. Gerhardt got appellee out of the vehicle, told him that he was not under arrest, and stated that he was just making sure that appellee was not under the influence so that he
{¶ 5} Because of the odor of burnt marijuana, the large amount of cash in Ervin’s pocket, and appellee’s statement concerning the piece of cellophane wrapper being from something he “didn’t smoke earlier,” Sgt. Gerhardt believed that another crime was being committed, e.g., that there may be more marijuana in the vehicle. Sgt. Gerhardt then searched the front seat of the vehicle and found a small bag of marijuana between the front console and the passenger seat. He continued with the search of the vehicle and found a black bag in the back seat that smelled of marijuana, but had no seeds or stems in it. He then checked thе trunk, wherein he found “a black plastic bag with digital scales
{¶ 6} After smelling the burnt marijuana and finding a large amount of cash on the driver, a small amount of marijuana in between the console and the passenger seat, and a black bag that smelled of marijuana, Sgt. Gerhardt called for a tow truck to impound the vehicle in a certified police tow lot before searching the trunk. On cross-examination, Sgt. Gerhardt testified that, when a misdemeanor amount of marijuana is found in the vehicle, it is his custom to search the entire vehicle, including the trunk. Sgt. Gerhardt also testified that it was his policy or customary procedure to conduct an inventory search of the vehicle prior to it being towed. On re-direct, Sgt. Gerhardt reiterated that the Woodville Police Department routinely does an inventory search of a vehicle before it is towed from a scene.
{¶ 7} The defense established that, at the time of the search of the vehicle, including the trunk, both Ervin and appellee were in patrol vehicles and had no access to the vehicle Ervin had been driving. Further, because of the odor of burnt marijuana, Sgt. Gerhardt concluded that appellee could be under the influence and, therefore, was not a candidate for driving the vehicle home.
{¶ 8} Upon hearing the testimony and arguments of counsel, the trial court sustained the motion to suppress, stating that it “[s]eems to me that any exigent circumstance evaporated when both defendants were separated and both were in separate
{¶ 9} The
{¶ 10} One such exception to the warrant requirement is the search incident to a lawful arrest as recognized by Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). “The exception derives from interests in officer safety and evidence preservation.” Id. at 338. According to Gant, a search incident to a lawful arrest is permitted “when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehiсle contains evidence of the offense of arrest.” Id. at 346. Reasonableness “is measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). “When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Gant at 351.
{¶ 12} Another exception to the warrant requirement is the automobile exception as set forth in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The exception is one that is found by the United States Supreme Court to be “specifically established and well delineated.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Carroll, the court held that a warrantless search of an automobile stopped by law enforcement officers who had probable cause to believe the vehicle contained contraband was not unreasonable under the
{¶ 13} The reasons for allowing for warrantless searches of vehicles where probable cause exists pursuant to the automobile exception is twofold. “First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.” South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976),
{¶ 14} Previously, only where exigent circumstances were found would “the judgment of the police as to probable cause serve as a sufficient authorization for a search.” Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1975). Nevertheless, the United States Supreme Court held that “unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured,” the vehicle’s mobility is still an exigent issue. Id. at 52. This is true even if no immediate danger is presented that the car would be removed from the jurisdiction, such as, when the vehicle has been moved to the station housе prior to the search being conducted. Id. The court stated in Chambers:
For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
{¶ 15} Despite the apparent requirement that exigent circumstances existed in order for the automobile exception to apply, the United States Supreme Court later clarified that under its “established precedent, the ‘automobile exceptiоn’ has no separate
We made this clear in United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” (Emphasis added.)
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In this case, the Court of Special Appeals found that there was “abundant probable cause” that the car contained contraband. This finding alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement * * *. The holding of the Court of Special Appeals that the “automobile exception” requires a separate finding of exigency in аddition to a finding of probable cause is squarely contrary to our holdings in Ross and Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).
{¶ 16} Although there is no separate exigency requirement, the scope of a warrantless search of an automobile based upon probable cause may nevertheless be limited. “After an officer has probable cause to believe that a vehicle contains contraband, a permissible search of the vehicle ‘is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’” State v. Gonzales, 6th Dist. No. WD-07-060, 2009-Ohio-168, ¶ 17, citing United States v. Ross,
{¶ 17} In this case, we find that Sgt. Gerhardt’s search of the passenger compartment of the vehicle without a warrant was permissible pursuant to the search incident to a lawful arrest exception to the warrant requirement of the
{¶ 19} Additionally, we find that this case is distinguishable from Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, because the odor of burnt marijuana was not the only factor upon which Sgt. Gerhardt could rely in determining that he had probable cause to search the trunk. Rather, there was the odor of burnt marijuana, a large amount of cash on Ervin, Ervin had no driver’s license on his person, appellee appeared excessively nervous, appellee’s statement about “smoking” something earlier that came out of a cellophane wrapper, actual marijuana found in the passenger compartment of the vehicle, and a bag with the smell of marijuana found in the passenger compartment. As such, we find that this case is similar to cases where other evidence, in addition to the odor of burnt marijuana, established probable cause to allow the officer to search the entire vehicle, including the trunk, pursuant to the automobile exception to the warrant requirement. See, e.g., State v. Greenwood, 2d Dist. No. 19820, 2004-Ohio-2737 (officer
{¶ 20} Upon review of the record and applicable law, we agree with the state that a warrantless search of the vehicle did not violate appellee’s constitutional rights. The state’s sole assignment of error is therefore found well-taken. Accordingly, we find that the trial court erred in concluding that Sgt. Gerhardt lacked probable cause to search the vehicle without a warrant on the basis that no exigent circumstances concerning the vehicle’s mobility existed once Ervin and appellee were placed in the cruisers.
{¶ 21} On consideration whereof, this court finds that the judgment of the Sandusky County Court of Common Pleas, granting appellee’s motion to suppress the evidence, is reversed. This matter is remanded to the trial court for further proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J.
CONCUR. _______________________________
JUDGE
Stephen A. Yarbrough, J. _______________________________
CONCURS AND WRITES JUDGE
SEPARATELY.
YARBROUGH, J.
{¶ 22} I concur in judgment. I write separately to emphasize certain points because this is a closer case than it might appear.
{¶ 23} The record from the suppression hearing indicates that Sgt. Gerhardt lawfully stopped a vehicle containing two individuals for a traffic violation. He found
{¶ 24} Gerhardt then approached Price, still seated in the car, and ordered him out for the purpose of determining his sobriety level and, thus, whether he could lawfully drive. Priсe was fidgety and nervous, apparently making furtive movements in proximity to Gerhardt, so the officer gave Price “a soft pat-down” for weapons. Finding none, he asked Price to do a field sobriety test. As Price still appeared nervous, Gerhardt ask if he had anything else in his pockets. It was at this point that Price removed “a cellophane plastic wrapper” and laid it on the trunk of the car. In Gerhardt’s experience this material was associated with contraband and drug usage, although no marijuana (or other) residue was apparent on its surface. The officer then asked what the wrapper was for, to which Price responded with the incriminating statemеnt, “that’s nothing, that’s a piece that I didn’t smoke earlier.” Price was then arrested, according to Gerhardt, for “suspicion of having some sort of drugs or something with that cellophane.” He handcuffed Price and put him in a second cruiser that had arrived at the scene.
{¶ 26} In appealing the trial court’s order suppressing the contraband Gerhardt found in the vehicle, the state’s assigned error claims the court incorrectly applied the modified search incident to arrest doctrine announced in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Rather, the state argues, the officer’s search of the vehicle was fully permissible under the “automobile exception,” citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In my view, Gant applies, but it needs to be read and applied vеry carefully.
{¶ 27} In Gant, the United States Supreme Court found the officer’s search of the vehicle’s passenger compartment, following the lawful arrest of the driver, to be improper “[b]ecause police could not reasonably have believed either [1] that Gant could have accessed his car at the time of the search or [2] that evidence of the offense for which he was arrested [i.e., driving on a suspended license] might have been found therein[.]” (Emphasis added.) Id. at 344.
{¶ 29} Belton had taken Chimel’s “area within the arrestee’s immediate control” and extended it to the passenger compаrtment of an automobile whose recent occupants had been lawfully arrested. It is imperative, however, to understand why Belton’s holding was modified by Gant. In Belton, a lone officer had arrested Belton and three passengers for a drug offense. They had been ordered out of the car, but having only one set of handcuffs the officer did not restrain them. Instead, he ordered the four men to stand apart from each other, although they remained near the vehicle while he searched the passenger compartment. Belton at 456. On these facts, the Supreme Court upheld the search, reasoning “that articles [and containers] inside the relatively narrow compass of the passenger compаrtment of an automobile are in fact generally, even if not inevitably,
{¶ 30} In Gant, the Supreme Court revisited Belton because lower courts had read it too broadly as authorizing a vehicle search “incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search.” Gant, 556 U.S. at 343. Gant, the driver, was the only occupant of the vehicle. Arrested for driving with a suspended licеnse, he was handcuffed and, like Ervin and Price here, placed in the officer’s vehicle. Belton’s physical-proximity rationale for searching the passenger compartment was factually absent in Gant, just as it is absent in this case. Consequently, Gerhardt’s search of the passenger compartment here, after Ervin and Price were handcuffed and moved into police cruisers, cannot be upheld on that rationale.
{¶ 31} Gerhardt’s search, however, is nonetheless constitutionally sustainable because “it [was] reasonable [for him] to believe evidence relevant to the crime of [Price’s] arrest might be found in the vehicle.” Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring ). That alternate justification, adopted in Gant but found inapplicable to Gant’s suspended-license offense, is completely unrelated to a search based on Belton’s “lunge-reach” proximity. Although
{¶ 32} For the second justification, the Supreme Court might have said “probable cause,” an existing standard for warrantless vehicle searches. Instead, “for reasons unique to the vehicle context,” the court chose the “reasonable to believe” language from Justice Scalia’s concurring opinion in Thornton. Gant at 343. That standard appears closer to “reasonable suspicion” than to prоbable cause and, if present at all, it arises directly from the type of crime that prompted the arrest. It is not merely “reason to believe” that contraband or evidence of any crime is in the vehicle, but rather it is specifically linked to “evidence relevant to the crime of arrest.” That specificity appears to exclude evidence of other crimes. Notably, in Thornton, as with Price here, the arrest was for a drug offense. Arrests for completed traffic offenses, as in Gant, would not entail a reasonable belief that additional evidence relevant to that offense would be found in the vehicle. Over time this new standard may prove to be the proverbial “camel’s nose under the tent” in vehicle search cases. See, e.g., Megginson v. United States, 129 S.Ct.
{¶ 33} Interestingly, in adopting Thornton’s justification for this sort of arrest related evidentiary search, Gant took pains to distinguish other vehicle-search doctrines that are justified “under additional circumstances when safety or evidentiary concerns demand.” (Emphasis added.) Gant, 556 U.S. at 346-347. This included, for example, a “frisk” of the passenger compartment for weapons, where reasonable suspicion exists that a recent occupant is “dangerous” and might access the vehicle to “gain immediate control of weapons” (citing Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)), and probable-cause searches under the Ross-Acevedo cases.5 Id. Those
{¶ 34} Consistent with Gant’s “reasonable to believe” justification, the facts here supported Gerhardt’s search of the passenger compartment following Price’s arrest. At least for drug offenses in which the arrestee is a recent occupant of the vehiclе, and on whose person some evidence of drug use or possession is discovered during the stop, it is not unreasonable to believe that more such contraband might be found where he was last seated or in the nooks and crannies nearby—its scope being tied to “evidence relevant to [that] crime.” Gant, 556 U.S. at 343.
{¶ 35} However, Gerhardt’s further search of the trunk must be assessed in light of State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, which preceded Gant.
{¶ 36} In Farris, the Ohio Supreme Court explicitly stated that “Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution” in certain contexts, id. at ¶ 47, citing State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175. Relevant here, that protection relates to the scope of a warrantless vehicle search prompted by the detection of an odor of burnt marijuana, where validity is claimed under either the search incident to arrest exception or the “automobile exception.” Regarding both, the Farris court held:
[T]he [state] argues that, even without Farris’s statements, [the officer] had probable cause to believe that the car contained contraband due
to his detection of the scent of marijuana and that the automobile exception to the warrant requirement permitted him to search the vehicle. * * * However, the items seized are admissible only if [the officer] had the authority to search the trunk of Farris’s vehicle and its contents based upon the scent of mаrijuana. This court did not extend the search of the vehicle to the trunk in State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000), and we decline to do so here.
A trunk and a passenger compartment of an automobile are subject to different standards of probable cause to conduct searches. In State v. Murrell (2002), 94 Ohio St.3d 489, 764 N.E.2d 986, syllabus, this court held that “[w]hen a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Emphasis added.) The court was conspicuous in limiting the search to the passenger compartment.
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. United States v. Nielsen (C.A.10, 1993), 9 F.3d 1487. 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. (Some citations omitted; emphasis sic and added.) Id. at ¶ 50-52.6
{¶ 37} Because the Ohio Supreme Court plainly views thе search of an automobile’s trunk and its passenger compartment under separate standards under
{¶ 38} Under Gant’s first justification (and consistent with Farris), the scope of an “incident to arrest” search would normally extend only to “the passenger compartment of an arrestee’s vehicle and any containers therein,” but not the trunk. Gant, 556 U.S. at 344. Yet, under Gant’s second, reasonable-belief justification, once the officer has undertaken a valid evidentiary search of the passenger compartment relating to the crime of arrest, Farris can be fairly read as acknowledging that “other contraband [found] within the passenger compartment” could provide probable cause to move to the trunk. Id. at ¶ 51.
{¶ 40} Had Gerhardt not discovered those bags, a subsequent warrantless search of the trunk would have been unreasonable under Farris’ stricter standard, unless another exception to the warrant requirement might be shown to apply, such as a valid inventory search following lawful impoundment.
{¶ 41} Accordingly, and for the foregoing reasons, I concur in the judgment reversing the trial court’s order of suppression.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reportеd version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.