State v. Bell , 2023 Ohio 1588 ( 2023 )

[Cite as State v. Bell, 2023-Ohio-1588.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-11
:
v. : Trial Court Case No. 22-CR-00006
:
BRUCE E. BELL : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on May 12, 2023
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R. KELLY ORMSBY, III and DEBORAH S. QUIGLEY, Attorneys for Appellee
JOE CLOUD, Attorney for Appellant
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TUCKER, J.
{¶ 1} Bruce E. Bell appeals from his conviction following a no-contest plea to one
count of aggravated drug possession, a first-degree felony.
{¶ 2} In two related assignments of error, Bell challenges the trial court’s overruling
of his motion to suppress evidence obtained as result of an allegedly unlawful traffic stop
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and investigative detention. Bell claims a police officer impermissibly exceeded the
original purpose of the stop and unlawfully prolonged the stop prior to obtaining consent
to search the vehicle and discovering drug evidence.
{¶ 3} For the reasons set forth below, we see no error in the trial court’s
suppression ruling. Accordingly, the trial court’s judgment will be affirmed.
I. Background
{¶ 4} In January 2022, a grand jury indicted Bell on one count of aggravated drug
possession involving methamphetamine. The offense was a first-degree felony due to the
quantity involved. The methamphetamine and other contraband had been found in Bell’s
vehicle during a traffic stop.
{¶ 5} In April 2022, Bell moved to suppress all incriminating evidence obtained as
a result of the traffic stop. The matter proceeded to a July 7, 2022 suppression hearing.
The only witness at the hearing was Greenville police officer Joseph Monnin. In its written
suppression decision, the trial court made the following factual findings based on
Monnin’s hearing testimony and a recording of the traffic stop:
On January 20, 2022, the Defendant was operating a motor vehicle
on West Main Street in Greenville, Darke County, Ohio, near the traffic
circle. Being aware from background evidence which was 1-2 days old that
this vehicle might be involved in trafficking methamphetamine, the
Defendant’s car was observed driving around the traffic circle by Officer
Monnin. While the Defendant’s vehicle was stopped at the intersection of
East Main Street and Walnut Street (one block from the circle), and with the
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cruiser stopped immediately behind the Defendant, Officer Monnin
observed that the Defendant’s rear license plate did not include the county
identification sticker required by R.C. 4503.21. The Defendant was followed
about eight blocks where it stopped at the Speedway gas station near
Wagner Avenue.
Immediately after causing the traffic stop and notifying dispatch, a
request was made for a K-9 unit. Officer Monnin then contacted the vehicle
occupants, identified as Meridian Hemmelgarn (driver) and Bruce Bell
(vehicle owner and front seat passenger). When talking about the reason
for the traffic stop and while obtaining license and registration information,
Officer Monnin smelled what he described as the odor of “raw marijuana.”
The Defendant was the front seat passenger who advised he possessed a
medical marijuana card. On request from Officer Monnin, the Defendant
pulled out a Tupperware container and displayed the marijuana inside it.
The Defendant was advised that this packaging was unlawful.
The occupants were then asked if a search of the vehicle would be
permitted and the Defendant agreed. With both the driver and the
Defendant outside the vehicle, Officer Monnin located the marijuana inside
the Tupperware container along with smoking paraphernalia and marijuana
wax. These findings were explained to both occupants. The request for the
K-9 unit was cancelled. Both occupants were advised they were not under
arrest and Miranda warnings were given. The illegal nature of the marijuana
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wax and the handling of the marijuana were explained.
The search continued and Officer Monnin eventually located a plastic
bag in the center console with approximately $100 in $1.00 bills. Also, under
the driver’s seat a bank money bag and a softball sized crystal substance
were located. Concluding this substance to be methamphetamine, the
Defendant was questioned. He advised the items was not the driver’s
property; that this item would test positive for methamphetamine; and that
the drug items belonged to him. The Defendant was arrested for Aggravated
Possession of Drugs (methamphetamine), contrary to R.C. 2925.11(A),
(C)(1)(d). Given the weight of the substance, the offense is a felony of the
first degree.
July 27, 2022 Suppression Decision at 2-3.
{¶ 6} The trial court proceeded to find probable cause for a traffic stop based on
the lack of a required county identification sticker on Bell’s license plate. The trial court
also found that the odor of raw marijuana reasonably diverted Monnin’s attention from the
traffic violation and allowed him to investigate the issue. During that investigation, which
the trial court found lasted about two minutes, Monnin discovered another violation of the
law: Bell’s improper transportation of the marijuana in a Tupperware container rather than
the original medical-marijuana dispensary packaging. At that point, Monnin sought
consent to search the vehicle. The trial court found that Bell gave his consent
approximately three minutes into the stop. The trial court held that Bell’s consent was
valid and that the “traffic stop” itself technically ended when Bell granted Monnin
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permission to search the vehicle. The trial court found that the duration of the entire
search was 17 minutes and that Bell made his incriminating statements two minutes into
the search after having been Mirandized. Under these circumstances, the trial court found
no constitutional violation with regard to the traffic stop or the search that followed it.
{¶ 7} Bell later entered a no-contest plea to the indicted charge. The trial court
accepted the plea, made a finding of guilt, and imposed an indefinite prison term of three
to four and one-half years to be followed by two to five years of post-release control.
II. Analysis
{¶ 8} Bell’s first assignment of error states: “The trial court erred as a matter of law
when it overruled the Defendant’s Motion to Suppress.” The essence of Bell’s argument
is that Monnin unlawfully expanded and prolonged the traffic stop by turning it into a drug
investigation without supporting reasonable, articulable suspicion.
{¶ 9} Bell cites suppression-hearing testimony concerning an informant’s prior tip
about his being involved in drug activity as well as Monnin’s own prior surveillance of Bell.
While conceding the lawfulness of the traffic stop based on the absence of a county
identification sticker, which was required by R.C. 4503.21(A)(1), Bell argues that Monnin
proceeded with an unlawful “fishing expedition” after smelling raw marijuana and despite
discovering that Bell carried a medical-marijuana card. Bell argues that Monnin should
have redirected his attention to Hemmelgarn, the driver, and proceeded to process the
traffic stop upon learning that Bell possessed the card. Bell insists that any articulable
suspicion of drug-related criminal activity dissipated after he produced the card. At that
point, Bell contends Monnin improperly prolonged the traffic stop by seeking permission
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to search the car for drugs. While acknowledging that the lack of a county sticker was a
valid reason for a traffic stop, Bell also suggests that the sticker violation was a pretext
and that Monnin’s true motive was to continue investigating an “unreasonable hunch”
about Bell’s transporting drugs.
{¶ 10} When ruling on a motion to suppress, a trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d
498 (2d Dist.1994). Thus, when an appellate court reviews a suppression decision, it must
accept the trial court’s findings of fact if they are supported by competent, credible
evidence. Id. “Accepting those facts as true, we must independently determine as a
matter of law, without deference to the trial court's conclusion, whether they meet the
applicable legal standard.” Id.{¶ 11} With the foregoing standards in mind, we conclude that the trial court
properly overruled Bell’s suppression motion. The trial court’s factual findings were
supported by officer Monnin’s hearing testimony, which the trial court was entitled to
credit. Although Bell contends Monnin’s true motive for making a traffic stop was to pursue
a drug investigation, he concedes that the missing county identification sticker was a
legitimate reason for the stop. “A traffic violation gives an officer a reasonable articulable
suspicion justifying a traffic stop, notwithstanding that the traffic stop may also have been
a pretext to investigate suspected drug activity.” State v. Wilson, 2d Dist. Montgomery
No. 27673, 2017-Ohio-9317, ¶ 16. Therefore, the traffic stop itself was lawful regardless
of what Monnin subjectively hoped to discover.
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{¶ 12} Upon approaching the stopped vehicle, Monnin immediately detected the
odor of raw marijuana. Under Ohio law, “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.” State v. Moore,
90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000). Although Moore involved burnt marijuana,
its rationale has been applied to the odor of raw marijuana as well. See, e.g., State v.
Starks, 2d Dist. Montgomery No. 28158, 2019-Ohio-2842, ¶ 10; State v. Chase, 2d Dist.
Montgomery No. 25323, 2013-Ohio-2347, ¶ 23; State v. Jones, 4th Dist. Jackson No.
20CA9, 2022-Ohio-561, ¶ 29; State v. Alvaranga, 3d Dist. Marion No. 9-20-27, 2021-
Ohio-1130, ¶ 20. During the suppression hearing, officer Monnin did not specifically testify
about his qualifications to recognize the odor of marijuana. He simply testified that he had
detected the smell of raw marijuana coming from inside Bell’s vehicle. In any event, Bell
did not challenge Monnin’s qualifications below, and he has not raised that issue on
appeal. Therefore, we have no occasion to address whether Monnin was qualified to
recognize the odor of marijuana.
{¶ 13} As noted above, Bell’s argument is that any existing probable cause or even
articulable suspicion of a drug offense evaporated when Bell produced a medical-
marijuana card. On this issue, we recognize that R.C. Chapter 3796 authorizes registered
individuals to possess and use some forms of marijuana for medical purposes. This fact
complicates the probable-cause or articulable-suspicion analysis where, as here, a
suspect presents an investigating officer with a medical-marijuana card establishing a
legal right to use marijuana. Although Bell’s possession of the card unquestionably was
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relevant under the totality of the circumstances, we disagree that it compelled Monnin
immediately to redirect his attention to Hemmelgarn.
{¶ 14} Possession of a medical-marijuana card does not give a patient an absolute
right to use and possess any quantity or form of marijuana in any manner whatsoever. In
State v. Caldwell, 12th Dist. Butler No. 2021-02-017, 2021-Ohio-3777, the Twelfth District
noted that under Ohio law a registered patient may not possess more than a 90-day
supply of marijuana. That being so, the Twelfth District reasoned that a defendant’s
“production of his registry identification card does not necessarily defeat an officer’s
sufficient reason to believe criminal activity has occurred when considering the totality of
the circumstances.” Id. at ¶ 22, fn. 5. Similarly, in State v. Burke, 2d Dist. Montgomery
No. 29256, 2022-Ohio-2166, we recognized that the Ohio Administrative Code requires
medical marijuana to be kept in a secure location. In that case, we reasoned that the
presence of marijuana “shake” on a suspect’s clothing supported a reasonable inference
that he had been violating the law even if it was medical marijuana. Of particular relevance
for present purposes, we note too that Ohio Adm.Code 3796:7-2-05(G) requires patients
to keep medical marijuana in “the original dispensing package with an unaltered
dispensary label” or in the “container provided by a dispensary.”
{¶ 15} In light of the foregoing types of restrictions on the possession of medical
marijuana, we do not believe officer Monnin was required to terminate his interaction with
Bell immediately upon Bell’s production of a medical-marijuana card. In response to Bell’s
displaying the card, Monnin was entitled to ask a follow-up question, namely where the
marijuana was located in the vehicle. This question related to the requirements cited
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above regarding storing marijuana securely and in the original packaging or container. In
order to confirm or dispel the articulable suspicion of criminal activity that arose when
Monnin smelled marijuana, it was permissible for him to obtain this information to clarify
the circumstances and determine whether a drug offense in fact had been committed.
Indeed, the very purpose of an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), is to enable an officer to engage in limited questioning of
an individual who reasonably is suspected of engaging in criminal activity.
{¶ 16} Contrary to Bell’s argument, Monnin also did not improperly prolong the
stop. An officer may extend a traffic stop upon discovering additional facts that create
reasonable suspicion of criminal activity beyond the original basis for the stop. Burke at
¶ 30. Here Monnin’s detection of the odor of marijuana gave him reasonable, articulable
suspicion of unlawful drug possession, and the officer briefly prolonged the stop to
investigate that issue. The trial court found that Bell produced a Tupperware container of
marijuana about two minutes into the stop and consented to a search of the vehicle about
one minute later. Bell does not dispute the timing of these events, and Monnin’s detection
of the odor of marijuana justified this brief extension of the stop. Finally, Monnin
discovered the methamphetamine and other drug-related evidence while searching the
car with Bell’s consent. Under these circumstances, we agree with the trial court that no
constitutional violation occurred. The first assignment of error is overruled.
{¶ 17} Bell’s second assignment of error states: “The trial court abused its
discretion when it overruled the Defendant’s Motion to Suppress.” Under this assignment
of error, Bell challenges the trial court’s decision to credit officer Monnin’s testimony and
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to rely on it when overruling his suppression motion. Bell contends the trial court failed to
weigh Monnin’s testimony about his reasons for the stop and questioning of Bell against
facts suggesting that he really was pursuing a mere hunch or suspicion of drug activity.
Bell contends the trial court erred in applying the facts to the law when it failed to consider
the expansion of the stop beyond its original purpose as well as “[t]he resultant time delay,
questioning, search and seizure of the Defendant.” According to Bell, Monnin’s testimony
demonstrates that he had “an alternative motive for stopping the vehicle other than for
the purpose of issuing citations for failure to display a county identification tag.” Bell
contends the trial court abused its discretion in failing to take this alternative motive into
consideration when evaluating Monnin’s testimony.
{¶ 18} Upon review, we find Bell’s argument to be unpersuasive. At its core, the
essence of Bell’s argument is that the traffic stop was a pretext to investigate suspected
drug activity and that the trial court should have considered this fact. As explained above,
however, a “pretextual” traffic stop is not unlawful per se. Provided that an officer observes
a traffic violation, the subjective reason for making a stop is immaterial. “The fact that an
otherwise lawful stop may have been pretextual in the sense that the officer had some
ulterior motive for making the stop, does not render the stop unlawful.” State v. Sproat,
2d Dist. Montgomery No. 16466, 1997 WL 779121, *2 (Dec. 19, 1997), citing Dayton v.
Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996); State v. Lenoir, 2d Dist. Montgomery
No. 16246, 1997 WL 309370, *2 (June 6, 1997) (recognizing that “a police officer who
observes a traffic violation may make a stop based upon the violation, even though the
officer’s purpose is to develop evidence of a more serious criminal violation”).
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{¶ 19} Here Monnin saw Bell’s car being operated without a required county
identification sticker on the license plate. Regardless of Monnin’s subjective motivation,
Bell does not dispute that the officer was entitled to make a traffic stop based on this
violation of the law. After making the stop, Monnin approached Bell’s car and smelled raw
marijuana. This fact entitled the officer to conduct a brief investigation to determine
whether a drug offense had been committed. During that investigation, which lasted just
minutes, Bell produced a Tupperware container of marijuana that was being stored in
violation of Ohio’s medical-marijuana regulations. Bell also consented to a full search of
his car, which resulted in the discovery of methamphetamine and other contraband.
Under these circumstances, the trial court did not err in finding no constitutional violation
and overruling Bell’s suppression motion. The second assignment of error is overruled.
III. Conclusion
{¶ 20} The judgment of the Darke County Common Pleas Court is affirmed.
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LEWIS, J. and HUFFMAN, J., concur.