State v. Whitfield , 2020 Ohio 2929 ( 2020 )

[Cite as State v. Whitfield, 2020-Ohio-2929.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190591
TRIAL NO. B-1901131
Plaintiff-Appellant, :
O P I N I O N.
vs. :
LAWAYNE WHITFIELD, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 13, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellant,
Timothy J. McKenna, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellee LaWayne Whitfield was the passenger in a car
stopped by Cincinnati Police Officers Oscar Cuiranek and Thomas Wells for a traffic
violation. The officers called for a K9 team to conduct a “sniff” around the car, and
asked the driver and Whitfield to step out of the car. When Whitfield stepped out of
the car, he was frisked and then searched, whereupon officers discovered ten grams
of cocaine in his possession. Whitfield filed a motion to suppress the cocaine, which,
after a hearing, was granted by the trial court.
{¶2} The state has appealed, arguing in one assignment of error that the
trial court erred in granting Whitfield’s motion to suppress. For the reasons
discussed below, we overrule the state’s assignment of error, and affirm the
judgment of the trial court.
Factual Background
{¶3} The trial court held a hearing on the motion to suppress, where it
considered the testimony of officers Cuiranek, Wells, and Jason Hesselbrock, as well
as footage of the encounter from their body cameras, which was admitted as exhibits.
{¶4} Officer Cuiranek testified that he and Wells were part of a P.I.V.O.T.1
squad assigned to patrol “hot spot,” high-violence areas in the city of Cincinnati.
Cuiranek testified that they were looking to initiate a traffic stop that could lead to
the investigation of more serious crimes. In this case, they initiated a traffic stop on
the vehicle due to excessive window tinting. Cuiranek approached the driver’s side,
and Wells approached the passenger’s side. Whitfield was in the passenger seat.
1 Placed Based Investigations of Violent Offender Territories (“P.I.V.O.T.”) uses crime data
analysis to identify and police small areas where violence has been chronic and sustained.
https://www.cincinnati-oh.gov/police/community-involvement/pivot/ (accessed May 6, 2020).
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OHIO FIRST DISTRICT COURT OF APPEALS
Cuiranek asked the driver and Whitfield for their driver’s licenses, and then, after a
brief conversation with the driver, Cuiranek asked if they had been smoking
marijuana. Whitfield responded that he had smoked marijuana earlier in the day,
but not in the car. As Cuiranek walked back to his patrol car, he called for a drug
sniffing K9 team. Cuiranek testified that he had smelled a weird scent coming from
the car, but he was not 100 percent sure if it was marijuana, so he called a K9 team to
the scene to confirm the presence of marijuana in the car.
{¶5} While waiting for the K9 team to arrive, Wells stood by the passenger
side of the stopped vehicle, occasionally speaking with Whitfield and the driver.
Wells testified that he smelled marijuana coming from the car. Officer Hesselbrock
and his K9 arrived approximately 15 minutes after the encounter began. Wells told
both the driver and Whitfield to step out of the car. Hesselbrock testified that this
was standard procedure before police conducted a sniff using a K9 for the safety of
the officers and the occupants. Hesselbrock approached the driver’s side and
escorted the driver to the sidewalk without frisking her. He testified that he did not
smell any marijuana.
{¶6} Wells testified that when officers order the occupants out of a car
during a traffic stop, they frisk the occupants to make sure they don’t possess any
weapons. After Whitfield stepped out of the car, Wells frisked him. During the frisk,
Wells told Whitfield that he smelled “a little something” and asked Whitfield if he
had marijuana on him. As he frisked Whitfield’s leg, Wells said “there’s weed right
there.” Wells testified that he had felt a “hard lump on the right side, inside of
[Whitfield’s] leg,” which felt like a hard ball of marijuana. Wells alerted Cuiranek,
who put Whitfield in handcuffs and then reached into Whitfield’s pockets and
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OHIO FIRST DISTRICT COURT OF APPEALS
retrieved a baggy of ten grams of cocaine and a scale. After officers found the cocaine
and scale, Whitfield told the officers that there was a bag of marijuana under the
passenger’s seat. Officer Hesselbrock retrieved the marijuana, which was hidden
under the passenger seat.
{¶7} Whitfield filed a motion to suppress the evidence seized as a result of
the search of his person. The trial court granted Whitfield’s motion to suppress,
stating in its decision that “there was no indication that Whitfield was engaged in any
illegal, much less threatening behavior prior to the search of, and discovery of drugs
on his person.” The court held that “there was no identifiable odor of marijuana, no
suspicious behavior, or illegal activity being conducted by Whitfield that gave the
Officer’s [sic] probable cause to search his person.”
Sole Assignment of Error
{¶8} An appellate court reviews a motion to suppress as a mixed question of
law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552, 2020-Ohio-650, ¶ 9.
“We must accept the trial court’s findings of fact if they are supported by competent
and credible evidence, but we review de novo the application of the relevant law to
those facts.” Id.{¶9} Whitfield concedes that the traffic stop and detention for purposes of
bringing in the K9 unit were both lawful. He takes issue with being ordered out of
the car, frisked, and then searched. Because we find that the frisk was unlawful, we
do not reach the merits of his other arguments.
{¶10} The Fourth Amendment to the United States Constitution, and Article
I, Section 14 of the Ohio Constitution, prohibit “unreasonable searches and seizures.”
“Unless an exception applies, warrantless searches are per se unreasonable.” State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.).
“Evidence is inadmissible if it stems from an unconstitutional search or seizure.”
Showes at ¶ 11, quoting Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct.
407, 9 L.Ed.2d 441 (1963). The burden of persuasion is on the state to show the
validity of a warrantless search. State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶
13 (1st Dist.).
{¶11} The state first argues that the trial court’s determination that there was
no identifiable odor of marijuana is not supported by the record because two officers
testified that they smelled what they believed was marijuana. The state contends
that due to the smell of marijuana, the search of Whitfield’s person was justified
under State v. Moore, 90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000) (holding that
“exigent circumstances existed to justify the warrantless search of defendant’s person
once [the officer] had probable cause based upon the odor of marijuana detected on
the defendant”).
{¶12} “When considering a motion to suppress, the trial court assumes the
role of the trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “A reviewing court should not
reverse a decision simply because it holds a different opinion concerning the
credibility of the witnesses and the evidence submitted before the trial court.”
Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).
“Reviewing courts should accord deference to the trial court’s decision because the
trial court has had the opportunity to observe the witness’ demeanor, gestures, and
voice inflections that cannot be conveyed to us through the written record.” State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Woods, 2018-Ohio-3379, 117 N.E.3d 1017, ¶ 19 (5th Dist.), citing Miller v. Miller, 37
Ohio St.3d 71, 523 N.E.2d 846 (1988).
{¶13} Here the record contains competent, credible evidence that supports
the trial court’s conclusion that there was “no identifiable odor of marijuana.” One
officer testified that he “smelled a weird smell coming out of the car, but [he] wasn’t
a hundred percent sure if it was a marijuana smell.” A second officer testified that he
smelled marijuana. A third officer testified that he did not smell marijuana. The trial
court considered the surrounding circumstances of the stop and all of the testimony,
viewed the body camera footage of all three officers, and made a determination that
there was “no identifiable odor of marijuana.” After a thorough review of the record,
we cannot say that there was no competent, credible evidence to support the trial
court’s conclusion.
{¶14} Accepting the trial court’s factual finding as true, we turn to the state’s
argument that the frisk of Whitfield was legal under Terry v. Ohio, 392 U.S. 1, 24, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer is permitted to
conduct a limited frisk of a person if the officer reasonably believes that “the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or others.” State v. Evans, 67 Ohio St.3d 405,
408, 618 N.E.2d 162 (1993), quoting Terry at 24. An officer must have a reasonable,
objective basis to conduct the frisk. Showes, 1st Dist. Hamilton No. C-180552, 2020-
Ohio-650, at ¶ 12. The officer “must articulate specific facts which would lead a
reasonable person to conclude that the person being investigated is armed and
dangerous.” Id.6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} In its brief, the state contends that Whitfield waived the right to
challenge the frisk on appeal by not challenging it in his motion to suppress or
during the suppression hearing. We disagree. Although perhaps not the main thrust
of his argument before the trial court, Whitfield sufficiently challenged the frisk for
purposes of preserving his right to raise the issue on appeal.
{¶16} Cuiranek and Wells initiated a traffic stop for excessive window
tinting. Wells testified that it is standard procedure for officers to remove occupants
from a vehicle before a K9 team conducts an “open air sniff” around the vehicle.
Wells testified that for the safety of the officers involved, once an individual is
removed from a vehicle during a traffic stop, it is “typical” for officers to frisk the
individual to ensure that the individual does not possess any weapons. However, to
satisfy the Terry exception to the warrant requirement, an officer must be able to
articulate specific facts that would lead a reasonable person to conclude that the
individual under investigation is armed and dangerous. Showes at ¶ 12.
{¶17} The traffic stop was for excessive window tinting. None of the officers
testified to any furtive movements or suspicious behavior by Whitfield or the driver.
In fact, Wells’s body camera footage showed the driver and Whitfield calmly waiting
in the car while police waited for a K9 team to arrive. The state has failed to show
that the warrantless search was legally justified. Its sole assignment of error is
overruled.
Conclusion
{¶18} The state’s assignment of error is overruled and the judgment of the
trial court is affirmed.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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