State v. Younts ( 1993 )

The trial court was justified in finding that Officer Willard had probable cause to search Younts' automobile; therefore, I respectfully dissent.

Initially, I cannot agree with the majority's proposition that only those facts within the officer's knowledge when he first subjectively concluded that he had probable cause to search appellant's vehicle can be considered in determining whether the officer actually had probable cause. The United States Supreme Court has clearly and consistently stated that in making an assessment of probable cause, it is imperative that the facts be judged objectively so that "the facts available to the officer at the moment of the seizure or the search, warrant a man of reasonable caution in the belief, that the action taken was appropriate * * *." Terry v. Ohio (1968), 392 U.S. 1, 21-22,88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 905-906; see, also,Criss v. Kent (C.A.6, 1988), 867 F.2d 259 (if circumstances viewed objectively, support finding of probable cause, officers' actual motives are irrelevant).

Since Trooper Willard's early subjective belief that he had probable cause to search appellant's vehicle does not preclude this court from objectively reviewing all the facts leading up to the actual search, I take this opportunity to restate the operative facts in this case. After appellant was properly stopped for speeding, he could not produce a driver's license. As Trooper Willard addressed appellant, he immediately detected a strong perfume-like odor; shortly thereafter, the trooper detected the aroma of marijuana in the car. At one point, appellant made a furtive gesture by placing his hand underneath a sweater covering objects on the right front seat. Willard moved the sweater and saw two jugs containing a clear liquid and an aerosol container. Upon these facts, Willard justifiably ordered appellant out of the car to accompany him to his cruiser while he checked on appellant's driver's license and vehicle registration.

As appellant exited the vehicle, Officer Willard again noted the aroma of marijuana. Appellant walked fast and ahead of Willard toward the police cruiser, creating a distance between himself and the officer. Willard then stopped appellant to pat him down. Pursuant to this protective search, Willard felt a bulge at appellant's ankle, and asked appellant what it was. Appellant volunteered that it might be marijuana. Willard found that it was indeed marijuana and effectively arrested appellant by handcuffing him and placing him in the cruiser.

After arresting appellant, Willard returned to appellant's automobile and again detected a strong odor of raw marijuana. He believed that the odor eminated from a duffel bag on the back passenger seat of the car. Inside the bag, Willard found marijuana flakes and residue. The trooper then opened the back hatch of the automobile and received a "blast" of raw marijuana odor. Willard pulled back a tarp and discovered boxes and containers. Inside one of these containers, Willard found six bags containing a large amount of marijuana.

The United States Supreme Court has long recognized that odors may be evidence "sufficient to constitute probable grounds for any search" and, in fact, may be "evidence of most persuasive character." Johnson v. United States (1948),333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440. The smell of marijuana in its raw form or when burned is quite distinctive. Therefore, the odor of marijuana, standing alone, may provide probable cause for a warrantless search, particularly when it is detected by an experienced police officer. State v. Garcia (1986), 32 Ohio App.3d 38, 513 N.E.2d 1350. The majority of jurisdictions that have addressed this issue have accepted this view. Annotation, Narcotics as Providing Cause for Warrantless Search (1981 and Supp. 1993), 5 A.L.R. 4th 681, 687.

In Garcia, detectives entered a restroom in a bar and smelled marijuana. They also saw the defendant in that case make a furtive gesture as they entered. The defendant was arrested after a warrantless search of his person uncovered cocaine. The court held that the odor of marijuana was sufficient to establish probable cause for the warrantless search of the defendant. In State v. Bird (Dec. 31, 1992), Washington App. No. 92CA2, unreported, 1992 WL 396844, the Ohio Fourth District Court of Appeals found that an officer's detection of the odor of marijuana upon approaching a car provided the requisite probable cause for both the search of the occupants of that car, as well as the car itself.

In many cases, the sense of smell can make more certain a finding of probable cause than the sense of sight because some odors are truly distinctive, while many objects commonly associated with the possession and use of illegal substances may in fact be innocent. 2 Lafave, Search and Seizure (1987) 39, Section 3.6(b). Further, the odor of unburned marijuana usually indicates the actual presence of marijuana.

The experience and expertise of an officer involved in an investigation and arrest may also be considered in determining probable cause. See United States v. Hayos (C.A.9, 1989),892 F.2d 1387. Trooper Willard is experienced in drug interdiction and knowledgeable about the odor of both raw and burning marijuana. Willard has attended or directed a number of drug interdiction programs during this nine years as a law enforcement officer. He attended his first drug interdiction program at the Highway Patrol Academy in 1987. In 1989, Willard became assistant course director for that program. That same year he attended a seminar on drug interdiction in Ann Arbor, Michigan. Willard has attended several week-long schools in advanced drug interdiction. One such program was sponsored by the Illinois State Police, another by the United States Department of Transportation, and a third by the Texas Department of Public Safety. In the course of his instruction, Willard had the opportunity to identify the odor of both raw and burned marijuana. Willard has made between one hundred and one hundred fifty drug-related arrests during his nine years as a law enforcement officer.

This was not simply a search incident to the driver's arrest for a traffic violation. See State v. Brown (1992), 63 Ohio St.3d 349, 588 N.E.2d 113. Nor was the search premised solely on the odor of raw marijuana, although this in itself was sufficient to establish probable cause in light of Trooper Willard's experience. Willard only searched the vehicle after he had detected the odor of raw marijuana several times, had witnessed appellant make a furtive movement while in the car, and had validly arrested appellant for possession. I would also note that if Willard had not searched appellant's vehicle after arresting him, the marijuana would have inevitably been discovered after the car had been impounded and inventoried pursuant to appellant's arrest.

Probable cause to search a vehicle is established if under the "totality of the circumstances" there is a "fair probability" that the car contains contraband or evidence.Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317,2332, 76 L.Ed.2d 527, 548. There was competent, credible evidence to support the trial court's determination that Trooper Willard had probable cause to search appellant's vehicle. Therefore, the trial court's decision not to suppress the marijuana found in appellant's car should be affirmed.