State v. Bennett , 2021 Ohio 937 ( 2021 )

[Cite as State v. Bennett, 2021-Ohio-937.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, : Case No. 20CA4
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
KIONNA M. BENNETT, :
Defendant-Appellant. : RELEASED 03/19/2021
______________________________________________________________________
APPEARANCES:
Angela Miller, Jupiter, Florida, for appellant.
Jayme Hartley Fountain, Pickaway County Assistant Prosecutor, Circleville, Ohio, for
appellee.
______________________________________________________________________
Hess, J.
{¶1} Kionna M. Bennett appeals her conviction, following a no contest plea, for
trafficking in cocaine with a forfeiture specification. The charges stem from a traffic stop
of a vehicle in which Bennett was a passenger. During the stop an Ohio State Highway
Patrol trooper searched the vehicle and discovered approximately 2,000 grams of
cocaine. Bennett contends that the trial court erred when it denied her motion to
suppress because the trooper did not have reasonable suspicion to initiate the traffic
stop and lacked probable cause to search the vehicle. However, the vehicle lacked a
proper license plate, which provided reasonable suspicion for the stop. After the stop,
the trooper detected the odor of marijuana emanating from the vehicle, which provided
probable cause for the search. For these reasons we affirm.
Pickaway App. No. 20CA4 2
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Pickaway County grand jury indicted Bennett on one count each of
trafficking in cocaine and possession of cocaine, both with forfeiture specifications. She
moved to suppress all evidence obtained as a result of the traffic stop and the trial court
conducted a hearing on the motion.
{¶3} Ohio State Highway Patrol Trooper Spencer Large testified that on July
17, 2019, he was on duty in a marked cruiser parked in a crossover observing
southbound traffic traveling on U.S. 23 in Pickaway County, Ohio. A brown Kia Sentra
passed him heading southbound. Trooper Large observed the female driver of the Kia
very close to the steering wheel and the license plate of the vehicle “was different.”
Trooper Large pulled out and followed the vehicle and saw that the rear plate of the
vehicle was a large plastic plate with the words, “Tag Applied For.” The state submitted
into evidence the video recording of the stop and a photograph of the “Tag Applied For”
plate.
{¶4} Trooper Large testified that he initiated the stop based on the faulty
license plate registration violation and because the Kia was travelling too close to the
vehicle in front of it. Trooper Large approached the vehicle and explained the reasons
for the stop. While talking with the driver and Bennett, Trooper Large detected the odor
of marijuana and alcoholic beverages coming from the vehicle and asked the driver and
Bennett whether they had been drinking. After detecting the odor of marijuana, Trooper
Large gave the driver and Bennett Miranda warnings. Trooper Large placed the driver
and Bennett into handcuffs and put them into the back of his patrol car. Bennett
admitted to smoking marijuana all day and all the previous day. Trooper Large searched
Pickaway App. No. 20CA4 3
the vehicle because he had detected the odor of marijuana in the vehicle. He
discovered a small amount of marijuana in the center console of the vehicle and ”two
kilo bricks” of cocaine in a black bag in the back seat of the vehicle. After he concluded
his search, Trooper Large performed a field sobriety test on the driver, who was
arrested for OVI as well.
{¶5} The trial court denied the motion to suppress. It found that Trooper Large
“stopped the vehicle after observing that the license plate displayed on the vehicle
simply read ‘Tag Applied For’ and did not display any other information” and that the
driver “was following another vehicle too closely.” In addition, the court found that after
the stop, Trooper Large “noticed the odor of marijuana and alcohol emanating from the
vehicle.” Trooper Large searched the vehicle and discovered a bag containing “two
bricks of cocaine.”
{¶6} The trial court concluded that Trooper Large had reasonable suspicion to
stop the vehicle because it displayed an improper license tag. The testimony and video
footage of the stop showed that when the lawful traffic stop occurred, Trooper Large
became aware of the odor of marijuana emanating from the vehicle. The court held,
“Case law is clear on this point. The smell of burnt marijuana provides probable cause
justification for a police officer’s warrantless search of a defendant’s person and car for
marijuana.”
{¶7} The state moved to amend the indictment to dismiss the count for
possession of cocaine, which the court granted, and Bennett pleaded no contest to the
remaining count of trafficking in cocaine. The trial court found her guilty of that offense
Pickaway App. No. 20CA4 4
and imposed a minimum of three years in prison, up to a maximum of four and one-half
years.
II. ASSIGNMENT OF ERROR
{¶8} Bennett presents the following assignment of error:
The trial court erred in denying Appellant Bennett’s Motion to Suppress
as the traffic stop was unlawful and the search of the vehicle where
she was a passenger was unlawful. Any evidence obtained from the
warrantless search should have been suppressed. U.S. Const.
Amends. IV and XIV, Ohio Const., Art. I., § 14.
III. STANDARD OF REVIEW
{¶9} In general “appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10
N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained:
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. Consequently, an appellate
court must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. Accepting these facts as true, the appellate
court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard.
(Citations omitted.) Burnside at ¶ 8.
IV. LAW AND ANALYSIS
{¶10} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State
v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. The Supreme
Court of Ohio has held that these provisions provide the same protection in felony
Pickaway App. No. 20CA4 5
cases. State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 18.
“This constitutional guarantee is protected by the exclusionary rule, which mandates the
exclusion at trial of evidence obtained from an unreasonable search and seizure.” State
v. Petty, 4th Dist. Washington Nos. 18CA26 & 18CA27, 2019-Ohio-4241, ¶ 11.
{¶11} “ ‘[S]earches [and seizures] 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.’ ” (Footnotes omitted and alterations sic.) State v. Conley, 4th Dist. Adams
No. 19CA1091, 2019-Ohio-4172, ¶ 17, quoting Katz v. United States, 389 U.S. 347,
357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Once a defendant demonstrates that he or
she was subjected to a warrantless search or seizure, the burden shifts to the state to
establish that the warrantless search or seizure was constitutionally permissible.” State
v. Dorsey, 4th Dist. Scioto No. 19CA3874, 2019-Ohio-3478, ¶ 13. In this case, the state
concedes that Trooper Large acted without a warrant.
A. The Traffic Stop
{¶12} Bennett contends that the trial court erred when it denied her motion to
suppress because Trooper Large lacked reasonable suspicion to initiate the traffic stop.
She argues that the initial behavior that caught Trooper Large’s eye was the driver
sitting too close to the steering wheel, which he acknowledged was not a violation of
any traffic law.
{¶13} This case involved an investigatory stop, which “must be supported by a
reasonable, articulable suspicion that the driver has, is, or is about to commit a crime,
Pickaway App. No. 20CA4 6
including a minor traffic violation.” Petty, 4th Dist. Washington Nos. 18CA26 & 18CA27,
2019-Ohio-4241, at ¶ 12. In Petty, we recently explained:
“To justify a traffic stop based upon reasonable suspicion, the officer must
be able to articulate specific facts that would warrant a person of
reasonable caution to believe that the driver has committed, or is
committing, a crime, including a minor traffic violation.” State v. Taylor,
2016-Ohio-1231, 62 N.E.3d 591, ¶ 18 (4th Dist.). The existence of
reasonable suspicion depends on whether an objectively reasonable
police officer would believe that the driver’s conduct constituted a traffic
violation based on the totality of the circumstances known to the officer at
the time of the stop.
Moreover, a police officer may stop the driver of a vehicle after
observing even a de minimis violation of traffic laws. “[A] traffic stop with
the proper standard of evidence is valid regardless of the officer’s
underlying ulterior motives as the test is merely whether the officer ‘could’
have performed the act complained of; pretext is irrelevant if the action
complained of was permissible.” See State v. Koczwara, 7th Dist.
Mahoning No. 13MA149, 2014-Ohio-1946, ¶ 22 * * *.
(Citations omitted. Alteration sic.) Id. at ¶ 12-13.
{¶14} Trooper Large testified that it was both the driver’s position in the vehicle
and the suspicious plate that initially caught his attention. He initiated the traffic stop
when, upon closer inspection, he saw that the plastic plate read “Tag Applied For.” This
constituted a violation of R.C. 4503.21(A), “No person who is the owner or operator of a
motor vehicle shall fail to display in plain view on the rear of the motor vehicle a license
plate that displays the distinctive number and registration mark assigned to the motor
vehicle * * * including any county identification sticker and any validation sticker * * * .” A
violation of this provision is a minor misdemeanor. See R.C. 4503.21(B). In addition, the
state placed into evidence a photograph of the plastic “Tag Applied For” plate. The trial
court’s finding that Trooper Large observed a traffic violation is supported by competent,
Pickaway App. No. 20CA4 7
credible evidence. As a result, Trooper Large had reasonable suspicion to initiate the
traffic stop.
B. The Search of the Vehicle
{¶15} Bennett contends that the trial court erred when it denied her motion to
suppress because the search of the vehicle was unlawful. She argues that the trial court
improperly relied upon the “probable cause to search” exception for the warrantless
search. Bennett argues that the mere fact that the driver was arrested for an OVI is not
a sufficient justification to search the vehicle for evidence of the OVI. And, the fact that
Bennett admitted to smoking marijuana all day for the previous two days was not
sufficient justification for Trooper Large to search the vehicle for marijuana. See State v.
Eversole, 3d Dist. Van Wert No. 15-17-03, 2017-Ohio-8436.
{¶16} In Eversole, a police officer stopped and arrested Eversole for OVI. After
handcuffing her and detaining her in the rear seat of the patrol car, the officer searched
Eversole’s car for evidence of the elements of OVI, specifically the use of narcotics. The
officer believed Eversole “was under the influence of drugs or narcotics, so I was going
to look for evidence of narcotic use.” Id. at ¶ 31. However, there was no evidence of
contraband in plain view, nor was there any odor of alcohol, marijuana or other illegal
substance emanating from the vehicle.
Officer Wehage provided two reasons why he searched Eversole's
vehicle: (1) it is the police department's “standard policy” to search an
operator's vehicle incident to his or her arrest for OVI and (2) he believed
that the vehicle contained evidence relevant to the OVI offense based on
his experience with OVI offenses involving narcotics use. Neither of these
reasons is particularized to Eversole or the circumstances of this case.
Id. at ¶ 37. The appellate court rejected these justifications as not particularized. It
found that the state had to show that the officer “had reason to believe, based on
Pickaway App. No. 20CA4 8
common-sense factors and the totality of the circumstances, that evidence of Eversole's
OVI arrest was inside her vehicle.” Id. at ¶ 36. However, the officer failed to “articulate
any particularized reason why he believed that Eversole's vehicle contained evidence of
OVI.” Id.
{¶17} Here Trooper Large did not base his search of the vehicle on his arrest of
the driver for OVI or on Bennett’s statement that she had been smoking marijuana for
the previous two days. To the contrary, his search of the vehicle occurred before he
administered a field sobriety test on the driver and arrested her for OVI. Instead,
Trooper Large testified that he searched the interior of the vehicle because he detected
the odor of marijuana coming from inside the vehicle upon his initial approach to the
vehicle. The trial court found that Trooper Large had probable cause to search the
passenger compartment of the vehicle because he detected the odor of marijuana in the
vehicle. See State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262(2018) (“ ‘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’ ” quoting Moore, infra); State v.
Moore, 90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804 (2000) (“we hold that the smell
of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish
probable cause to conduct a search”); State v. Maughmer, 4th Dist. Ross No.
09CA3127, 2010-Ohio-4425, ¶ 13 (“The smell of marijuana in itself gave Officer
Campbell probable cause to search the vehicle for additional controlled substances”);
see also State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 52
(2006) (odor of marijuana established probable cause to search passenger
Pickaway App. No. 20CA4 9
compartment of vehicle but, standing alone, did not establish probable cause for
warrantless search of trunk of vehicle). Trooper Large had probable cause to search the
passenger compartment of the vehicle because he detected the odor of marijuana
emanating from the vehicle.
{¶18} The trial court did not err in denying Bennett’s motion to suppress. Trooper
Large had reasonable suspicion to initiate the traffic stop because of the license plate
violation and probable cause to search the passenger compartment of the vehicle due
to the odor of marijuana. We overrule Bennett’s sole assignment of error.
V. CONCLUSION
{¶19} Having overruled the assignment of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Pickaway App. No. 20CA4 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty-day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.