State v. Hubbard , 2021 Ohio 1740 ( 2021 )

[Cite as State v. Hubbard, 2021-Ohio-1740.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28941
:
v. : Trial Court Case No. 2020-CR-1246
:
ARENZA DOUGLAS HUBBARD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 21st day of May, 2021.
...........
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road,
Fairborn, Ohio 45324
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Arenza Douglas Hubbard appeals from his convictions
for possession of a fentanyl-related compound, trafficking in fentanyl, trafficking in heroin,
and possession of heroin. Hubbard filed a timely notice of appeal on October 20, 2020.
{¶ 2} The incident which formed the basis of the charges occurred around 11:30
p.m. on April 27, 2020, when Miami Township Police Sergeant Raymond Swallen was
conducting routine road patrol on southbound I-75. Swallen testified that he was driving
a marked police cruiser and was wearing the uniform of the day. Sergeant testified that
he had been in law enforcement for approximately 15 years, and he had special training
and experience with drug investigations. Specifically, Swallen testified that he had been
part of the Miami Valley Bulk Smuggling Task Force for five years, where he solely
performed drug interdictions and drug investigations.
{¶ 3} While watching traffic on southbound I-75, Sergeant Swallen observed a
maroon Chevy Cruze with Michigan plates pass by him. Swallen testified that he
immediately noticed that the front windows of the vehicle were heavily tinted from top to
bottom. Swallen testified that because of the heavy tint, he could not see into the vehicle
with his headlights shining forward. Based upon his observation regarding the heavy
tint, Swallen pulled onto southbound I-75 and began following the vehicle.
{¶ 4} While following the Chevy Cruze, Sergeant Swallen observed that the vehicle
was traveling at a high rate of speed and moving faster than the other vehicles on the
roadway. Swallen testified that he was travelling at approximately 80 miles per hour and
still had some difficultly catching up with the target vehicle. Swallen testified that the
posted speed limit on the section of the interstate that they were traveling was 65 miles
per hour.
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{¶ 5} Sergeant Swallen followed the vehicle for a short period of time in order to
“pace” the vehicle. Swallen defined “pacing” as the process by which he matched the
speed of a subject vehicle with the speed of his cruiser for a certain distance without
closing the gap between the two vehicles. Swallen testified that he had received specific
training in pacing vehicles when he was in the police academy. By pacing the subject
vehicle for a short time, Swallen observed that the Cruze was traveling at a speed of 75
miles per hour for an extended period of time.
{¶ 6} After observing both the window tint violation and the speeding, which were
citable offenses, Sergeant Swallen activated his overhead lights and initiated a traffic stop
of the vehicle. The vehicle stopped on the right shoulder of the interstate, and Swallen
exited his cruiser and approached the vehicle. Swallen testified that he could not discern
how many people were inside the vehicle until he approached the front driver’s side
window, which had been rolled down. Swallen testified that there were three individuals
in the vehicle; Hubbard was later identified as the individual sitting in the rear driver’s-side
seat in the vehicle. Swallen also testified that, upon approaching the open driver’s-side
window, he immediately detected the scent of raw and burnt marijuana. Swallen
observed a green leafy substance on Hubbard’s lap, on the front and back floorboards of
the vehicle, and on the center console. Based upon his experience with drug
interdictions and investigations, Swallen believed that there was additional contraband in
the vehicle.
{¶ 7} After speaking with the driver and getting her information, Sergeant Swallen
returned to his cruiser and requested another unit for assistance, as he was working by
himself. Shortly thereafter, Miami Township Police Officer Cory Caldwell arrived at the
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scene to assist with the traffic stop. After obtaining all of the passengers’ information,
Swallen ran it through the LEADS database in his cruiser’s computer. Swallen testified
that he ran the information through LEADS in both Ohio and Michigan because the
vehicle’s passengers were from Michigan, and sometimes different results could occur.
{¶ 8} Upon running the driver’s information, Sergeant Swallen found that she had
a protection order against her. Swallen then returned to the subject vehicle and asked
the driver to exit the vehicle. The driver complied and informed Swallen that she had a
carrying a concealed weapon (“CCW”) permit and that there was a firearm in the vehicle.
The driver also informed Swallen that there was marijuana inside the vehicle that they
brought to Ohio from Michigan. Swallen testified that, under Ohio law, if the driver of a
vehicle has a CCW permit, he or she is required to immediately inform the officer of that
fact and of whether the individual has a firearm.
{¶ 9} Sergeant Swallen testified that he then ordered everyone out of the vehicle
for the following reasons: 1) the driver indicated that there was a firearm in the vehicle but
did not inform the officer where the gun was located; 2) the odor of raw and burnt
marijuana emanating from the vehicle; 3) the observation of marijuana inside the vehicle;
and 4) the driver’s informing Swallen that there was marijuana inside the vehicle that had
been transported from Michigan to Ohio. Swallen testified that he then patted Hubbard
down for safety because he had been informed that there was a firearm in the vehicle,
but he did not know where it was. During the pat down of Hubbard, Swallen located a
pill bottle containing marijuana in his pocket. After searching the vehicle, including the
trunk, the officers located a loaded firearm and illegal contraband. Hubbard was arrested
and taken into custody.
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{¶ 10} On May 7, 2020, Hubbard was indicted for the following offenses: Count I,
possession of a fentanyl-related compound (≥20 grams but < 50 grams); Count II, one
count of trafficking in fentanyl (≥20 grams but < 50 grams); Count III, trafficking in heroin
(≥10 grams but < 50 grams); Count IV, possession of heroin (≥10 grams but < 50 grams);
and Count V, possession of drugs (lorazepam). At his arraignment on May 13, 2020,
Hubbard stood mute, and the trial court entered pleas of not guilty on his behalf.
{¶ 11} On May 27, 2020, Hubbard filed a three-branch motion to suppress: he
argued that the initial stop was illegal, that the officers had no basis upon which to conduct
a warrantless search of the vehicle, and that any statements made by Hubbard to the
officers before he was Mirandized should be suppressed. A hearing was held on the
motion to suppress on July 30, 2020. On September 9, 2020, the trial court overruled
Hubbard’s motion to suppress as it related to the legality of the initial stop and the
warrantless search of the vehicle, but sustained his motion to suppress with respect to
any statements he made to officers prior to being Mirandized.
{¶ 12} On September 9, 2020, Hubbard pled no contest to Counts I through IV in
exchange for dismissal of Count V. At the sentencing hearing on September 23, 2020,
the trial court merged Counts I through IV, and the State elected to proceed to sentencing
on Count I, possession of a fentanyl-related compound, a felony of the first degree. The
trial court found Hubbard guilty and sentenced him to a mandatory minimum term four
years and a maximum term of six years in prison, ordered him to pay court costs, and
waived the mandatory fine.
{¶ 13} It is from this judgment that Hubbard now appeals.
{¶ 14} Hubbard’s first assignment of error is as follows:
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THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO
SUPPRESS.
{¶ 15} Hubbard contends that the trial court erred when it overruled the portions of
his motion to suppress wherein he argued that Sergeant Swallen had not had a
reasonable articulable suspicion to initiate a traffic stop and that the officers had no basis
upon which to conduct a warrantless search of the vehicle.
{¶ 16} In regard to a motion to suppress, “the trial court assumes the role of trier
of fac[t] and is in the best position to resolve questions of fact and evaluate the credibility
of witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E .2d 321 (2d Dist.1996),
quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The
court of appeals must accept the trial court's findings of fact if they are supported by
competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No.
20662, 2005-Ohio-3733, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498(2d Dist.1994). Accepting those facts as true, the appellate court must then determine,
as a matter of law and without deference to the trial court's legal conclusion, whether the
applicable legal standard is satisfied. Id.Initial Traffic Stop
{¶ 17} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution protect individuals from unreasonable searches and
seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop
by a law-enforcement officer must comply with the Fourth Amendment's reasonableness
requirement. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996). Under Terry, police officers may briefly stop and/or temporarily detain individuals
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in order to investigate possible criminal activity if the officers have a reasonable,
articulable suspicion that criminal activity may be afoot, including a minor traffic violation.
State v. Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry; State
v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8. The existence
of reasonable suspicion is determined by evaluating the totality of the circumstances,
considering those circumstances “through the eyes of the reasonable and prudent police
officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist.
Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d
86, 87-88, 565 N.E.2d 1271 (1991).
{¶ 18} “ ‘Reasonable, articulable suspicion’ is a ‘less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence.’ ” State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, ¶ 5, citing
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v.
Scott, 2d Dist. Clark No. 2013-CA-104, 2014-Ohio-4963, ¶ 12. Finally, any violation of
traffic law provides the reasonable suspicion required to make an investigatory stop. See
Whren; State v. Wilhelm, 81 Ohio St.3d 444, 692 N.E.2d 181 (1998); Dayton v. Erickson,
76 Ohio St.3d 3, 665 N.E.2d 1091 (1996) (holding that when a law enforcement officer
has an articulable and reasonable suspicion or probable cause to stop a driver for any
criminal violation, including a minor traffic violation, the stop is constitutionally valid
regardless of the officers' subjective motivation for stopping the driver).
Window Tint Violation
{¶ 19} Here, Hubbard argues that the trial court erred when it found that the traffic
stop was proper because Sergeant Swallen observed a window tint violation.
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Specifically, Hubbard claims that Swallen could not have seen the window tint because
the subject vehicle was traveling at a high rate of speed past the officer. Hubbard also
argues that there was insufficient evidence to find a reasonable articulable suspicion of a
window tint violation, because there was no testimony that the window tint was tested by
anyone in order to establish that the tint was in violation of Michigan and/or Ohio law.
{¶ 20} As previously stated, Sergeant Swallen testified that when he first observed
the subject vehicle as it passed his position on southbound I-75, he had a reasonable
suspicion that, based upon his 15 years of law enforcement experience, the vehicle’s
darkly tinted windows violated legal window tint limits.
{¶ 21} We have repeatedly held that a traffic stop for a suspected window-tint
violation is lawful. See, e.g., State v. Cole, 2d Dist. Montgomery No. 26576, 2015-Ohio-
5295, ¶ 16; State v. Carson, 2d Dist. Montgomery No. 26505, 2015-Ohio-4110, ¶ 26;
State v. Dudley, 2d Dist. Montgomery No. 24904, 2012-Ohio-960, ¶ 8, citing State v.
Taylor, 114 Ohio App.3d 416, 683 N.E.2d 367 (2d Dist.1996). The Ohio Supreme Court
has also held that, whether pretextual or not, a traffic violation, including a tint violation,
gives an officer a reasonable, articulable suspicion justifying a traffic stop. See Mays at
¶ 20. Ohio law requires that, where windows are tinted, 70% of light pass through a
windshield and 50% of light pass through the front side windows. Ohio Adm. Code 4501-
41-03(A)(2)-(A)(3); State v. Davenport, 2017-Ohio-688, 85 N.E.3d 443, ¶ 18 (2d Dist.).
{¶ 22} As previously stated, Sergeant Swallen testified that, upon initially
observing the subject vehicle, he immediately noticed that the front windows of the vehicle
were heavily tinted from top to bottom. Swallen testified that, because of the heavy tint,
he could not see into the vehicle with his headlights shining forward; he could not discern
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how many people were in the vehicle. In Taylor, we concluded that an officer's testimony
that window tinting appeared “exceptionally dark” such that he could not see into the
vehicle even with the police cruiser’s headlights shining directly on the vehicle provided
reasonable articulable suspicion to conduct a traffic stop. “We agree that this could have
reasonably caused [the officer] to suspect that [the defendant]'s vehicle was unsafe and
in violation of R.C. 4513.02. This supports the trial court's conclusion that the vehicle
was lawfully stopped. Therefore, we find that the initial stop of [the defendant]'s car was
reasonable, and did not violate his Fourth Amendment rights.” Id. at 421.
{¶ 23} In light of the foregoing, we find that the trial court did not err when it
concluded that Sergeant Swallen had had a reasonable articulable suspicion to stop the
subject vehicle based upon his belief that he observed a window tint violation.
Speeding Violation
{¶ 24} Hubbard also argues that Sergeant Swallen had no basis for stopping the
vehicle for a speeding violation because the officer’s training in “pacing” a vehicle
occurred approximately 15 years earlier, when Swallen was in the police academy. In
support of his argument, Hubbard cites State v. Woods, 8th Dist. Cuyahoga No. 98054,
2012-Ohio-5509, ¶ 21. Additionally, Hubbard argues that Swallen was not aware of any
calibrations done to his cruiser’s speedometer or calibrations to his onboard GPS system.
Hubbard also argues that Swallen was unaware of how often his cruiser’s speedometer
was calibrated and did not take into account the curvature of the interstate in determining
speed.
{¶ 25} This court has upheld the use of pacing as a method of determining speed.
See, e.g., State v. Starks, 2d Dist. Montgomery No. 26932, 2016-Ohio-5872, ¶ 19; State
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v. Collins, 2d Dist. Clark No. 2002-CA-51, 2002-Ohio-6858, ¶ 14. Other appellate
districts have also upheld this method. See, e.g., City of Cleveland v. Bates, 8th Dist.
Cuyahoga No. 90212, 2008-Ohio-3679; State v. Horn, 7th Dist. Belmont No. 04 BE 31,
2005-Ohio-2930.
{¶ 26} In Woods, there was no evidence that the pacing officer was trained in
visually estimating speed. Id. at ¶ 21. Thus, the appellate court affirmed the trial court's
finding that there was no basis for admitting a visual estimation of the defendant's speed.
Id. The appellate court further noted that it would not substitute its judgment for that of
the trial court, which found that the officer had not traveled far enough to pace the vehicle.
Id. In Woods, the trial court found that the officer had used neither sufficient time nor
distance to establish the speed of the defendant's vehicle by pacing, and the appellate
court agreed.
{¶ 27} Unlike the officer in Woods, however, Sergeant Swallen testified that he had
received training in pacing when he was at the police academy, and the trial court found
his testimony to be credible regarding his training and experience in that regard.
Specifically, Swallen observed that the subject vehicle was traveling at a high rate of
speed and moving faster than the other vehicles on the roadway. Swallen testified that
he was travelling at approximately 80 miles per hour and still had some difficultly catching
up with the subject vehicle, in an area where the posted speed limit was 65 miles per
hour. Thereafter, Swallen followed the vehicle in order to pace it, and he observed that
the vehicle was traveling at a speed of 75 miles per hour for an extended period of time
in a 65 mile-per-hour zone.
{¶ 28} In order to determine the speed he was traveling and to pace the subject
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vehicle, Sergeant Swallen observed the speed on his speedometer, which was a certified
speedometer for a police interceptor cruiser. Swallen testified that his cruiser’s
speedometer was calibrated. Furthermore, Swallen testified that he was experienced in
the use of the GPS system on his cruiser camera system, which also calculated the
cruiser’s speed and displayed it on the cruiser video. Swallen testified that the GPS
system monitored the speed of the cruiser and calculated how fast the cruiser was moving
based upon the time it took to travel a particular distance. Although Swallen testified that
he did not personally calibrate the cruiser’s in-camera GPS speedometer, he did observe
the GPS’s recorded speeds on a daily basis and stated that they were consistent with his
cruiser’s speedometer. Swallen testified that on the date that he initiated a stop of the
subject vehicle, the GPS speedometer was consistent with his cruiser’s speedometer.
Furthermore, Swallen testified that, while he was pacing the subject vehicle, they were
traveling on a straight section of the interstate and not on a curve.
{¶ 29} Additionally, we find that no expert testimony was necessary to establish
that Sergeant Swallen’s cruiser’s speedometer and the GPS speedometer were properly
calibrated and providing accurate readings. See City of East Cleveland v. Ferrell, 168
Ohio St. 298, 303, 154 N.E.2d 630 (1958). It is well established that “readings of a radar
speed meter may be accepted in evidence, just as we accept photographs, X rays,
electroencephalographs, speedometer readings, and the like, without the necessity of
offering expert testimony as to the scientific principles underlying them.” (Emphasis
added.) Id.{¶ 30} As previously stated, Sergeant Swallen was trained in pacing vehicles while
he was in the police academy, and he had also received LIDAR training only a year prior
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to this top, wherein he was trained to match speeds with the radar and the speedometers
of the vehicles. Swallen testified that, since his original training in pacing, he had
personally conducted “hundreds” of investigations and traffic stops involving pacing a
subject vehicle in order to determine its speed. Therefore, we find that the trial court did
not err when it concluded that Swallen had a reasonable articulable suspicion to stop the
subject vehicle based upon his belief that he observed it speeding.
Warrantless Search of the Vehicle
{¶ 31} Under the automobile exception, police may conduct a warrantless search
of a vehicle if there is probable cause to believe that the vehicle contains contraband and
exigent circumstances necessitate a search or seizure. State v. Mills, 62 Ohio St.3d 357,
367, 582 N.E.2d 972 (1992); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26
L.Ed.2d 419 (1970). A vehicle's mobility is the traditional exigency for this exception to
the warrant requirement, and no other exigency is required. Mills at 367; Maryland v.
Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); California v. Carney,
471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). “If a car is readily mobile
and probable cause exists to believe it contains contraband, the Fourth Amendment * * *
permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938,
940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). Probable cause exists when a
reasonably prudent person would believe that a place to be searched contains evidence
of a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). We have
held that probable cause is “not whether it is reasonable to believe items to be seized
might be found in the place to be searched,” but instead whether the evidence provides
reasonable cause to believe the items would likely be found in the place to be searched.
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State v. Cole, 2d Dist. Montgomery No. 23058, 2009-Ohio-6131, ¶ 23.
{¶ 32} Once an officer sees contraband in plain view inside a vehicle, he or she
then has probable cause to believe the vehicle contains other items of contraband and
may conduct a warrantless search of the vehicle pursuant to the automobile exception to
the search warrant requirement. State v. Thompson, 2d Dist. Montgomery No. 25658,
2013-Ohio-4825, ¶ 13, citing State v. Pounds, 2d Dist. Montgomery No. 21257, 2006-
Ohio-3040, ¶ 21. “Under the automobile exception, police may warrantlessly search a
vehicle that they have probable cause to believe contains contraband.” Id., citing State v.
Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000). “The scope of the search extends
to anywhere in the vehicle that contraband might be hidden.” Id., citing United States v.
Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
{¶ 33} Hubbard relies upon State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255,
849 N.E.2d 955, to argue that the search of his trunk was unlawful; in that case, the Ohio
Supreme Court wrote that the trunk and the passenger compartment of an automobile
were subject to different standards of probable cause to conduct searches. Hubbard's
reliance upon Farris is misplaced because that case is factually distinguishable.
{¶ 34} In Farris, following a traffic stop, an officer detected a “light odor” of burnt
marijuana coming from the vehicle's passenger compartment. The officer subsequently
searched the vehicle's trunk, where drugs were discovered and seized. The Ohio
Supreme Court held as follows:
A trunk and a passenger compartment of an automobile are subject
to different standards of probable cause to conduct searches. In State v.
Murrell, 94 Ohio St.3d 489, 764 N.E.2d 986 (2002), syllabus, this court held
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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, 9 F.3d 1487(C.A.10, 1993). 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.
Id. at ¶ 51-52.
{¶ 35} The Fourth Amendment limits searches to places where evidence of
criminal activity is likely to be found. State v. Griffith, 2d Dist. Montgomery No. 24275,
2011-Ohio-4476, ¶ 21. Farris stands for the proposition that the odor of burnt marijuana
in a vehicle's passenger compartment, standing alone, does not present a likelihood that
the vehicle's trunk contains marijuana. In the instant case, Sergeant Swallen testified
that, upon approaching the open driver’s side window, he immediately detected the scent
of raw and burnt marijuana. Swallen observed a green leafy substance on Hubbard’s
lap, on the front and back floorboards of the vehicle, and on the center console. Based
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upon his experience with drug interdictions and investigations, Swallen believed that there
was additional contraband in the vehicle.
{¶ 36} Additionally, the driver of the vehicle failed to immediately inform Sergeant
Swallen that she possessed a CCW permit and that there was a loaded firearm in the
subject vehicle. Only after Sergeant Swallen input her information into the LEADS
system and returned to the vehicle did she inform him that she had a CCW permit and
that there was a firearm in the vehicle. The loaded firearm was later found during a
search of the vehicle on the floorboard of the front passenger seat.
{¶ 37} R.C. 2923.126(A) states in pertinent part:
* * * If a licensee is the driver or an occupant of a motor vehicle that is
stopped as the result of a traffic stop or a stop for another law enforcement
purpose and if the licensee is transporting or has a loaded handgun in the
motor vehicle at that time, the licensee shall promptly inform any law
enforcement officer who approaches the vehicle while stopped that the
licensee has been issued a concealed handgun license and that the
licensee currently possesses or has a loaded handgun * * *.
{¶ 38} We also note that once all of the passengers were removed from the vehicle
and patted down, the driver was found to have $1,000 in cash on her person, the front
seat passenger was found to have $1,000 cash on his person, and Hubbard was found
to have marijuana in a pill bottle in his pocket. Based upon all of this information and
evidence, Sergeant Swallen searched the trunk of the vehicle, where he found Hubbard’s
backpack containing additional contraband. “The police may search an automobile and
the containers within it [without a warrant] where they have probable cause to believe
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contraband or evidence is contained.” California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct.
1982, 114 L.Ed.2d 619, 634 (1991).
{¶ 39} Unlike in Farris, Sergeant Swallen did not rely on the odor of bunt marijuana
emanating from the vehicle's passenger compartment, standing alone, to justify the
search of the vehicle's trunk. Rather, Swallen relied upon the following factors in addition
to the smell of marijuana coming from the vehicle in order to justify his search of the trunk:
1) the presence of raw marijuana in Hubbard’s lap, 2) the driver’s failure to immediately
inform him that she had a CCW permit and a loaded firearm in the vehicle, 3) the
discovery of large amounts of money in the possession of the driver and front seat
passenger; and 4) the driver informed Swallen that there was marijuana inside the vehicle
that they had transported from Michigan to Ohio. See, e.g., State v. Greenwood, 2d Dist.
Montgomery No. 19820, 2004-Ohio-2737, ¶ 11 (holding that an officer's observation of
marijuana on a vehicle's passenger seat and floorboard provided probable cause to
search the entire vehicle, including the trunk and its contents); State v. Price, 2013-Ohio-
130, 986 N.E.2d 553, ¶ 19 (6th Dist.) (finding that 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). The trial court reasonably concluded that Swallen had
probable cause to open the backpack found in the trunk of the vehicle as an officer
conducting a warrantless search with probable cause may “search every part of the
vehicle and its contents, including all movable containers and packages, that may
logically conceal the object of the search.” State v. Welch, 18 Ohio St.3d 88, 480 N.E.2d
384 (1995), syllabus.
{¶ 40} Hubbard’s first assignment of error is overruled.
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{¶ 41} Hubbard’s second assignment of error is as follows:
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL.
{¶ 42} In his second assignment, Hubbard argues that he received ineffective
assistance of counsel when his trial attorney failed to specifically challenge the
warrantless search of the trunk of the vehicle in a memorandum filed after the suppression
hearing.
We review the alleged instances of ineffective assistance of trial
counsel under the two prong analysis set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the
Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373. Pursuant to those cases, trial counsel is entitled to a strong
presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on
ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of reasonableness and
that his errors were serious enough to create a reasonable probability that,
but for the errors, the result of the trial would have been different. Id.Hindsight is not permitted to distort the assessment of what was reasonable
in light of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel. State v. Cook, 65 Ohio St.3d 516, 605 N.E.2d 70(1992).
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State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 43} A defendant is not deprived of effective assistance of counsel when counsel
chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown,
38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. State v. Conley, 2015-Ohio-
2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing Strickland. A reviewing court may not
second-guess decisions of counsel which can be considered matters of trial strategy.
State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic and
tactical decisions may not form the basis of a claim of ineffective assistance of counsel,
even if, in hindsight, it looks as if a better strategy had been available. State v. Cook, 65
Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 44} Here, Hubbard argues that his counsel was ineffective for failing to
specifically challenge the warrantless search of the trunk of the subject vehicle in a
memorandum filed after the motion to suppress hearing. Given our analysis with respect
to Hubbard’s first assignment regarding the propriety of Sergeant Swallen’s warrantless
search of the trunk of the subject vehicle, the decision of defense counsel not to challenge
the search in a post-hearing memorandum may be viewed as a tactical decision which
did not impact the outcome. No prejudice is established. Accordingly, we conclude that
defense counsel’s decision not to pursue this argument any further did not constitute
ineffective assistance of counsel.
{¶ 45} Hubbard’s second assignment of error is overruled.
{¶ 46} Both of Hubbard’s assignments of error having been overruled, the
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judgment of the trial court is affirmed.
.............
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
David R. Miles
Hon. Dennis J. Adkins