State v. Vega , 2017 Ohio 651 ( 2017 )

[Cite as State v. Vega, 2017-Ohio-651.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104058
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
EDWIN A. VEGA
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-599025-A
BEFORE: Blackmon, J., Kilbane, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: February 23, 2017
-i-
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
Brett Hammond
Daniel T. Van
Eleina Thomas
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
John H. Lawson
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
Brandon J. Henderson
Justin M. Weatherly
Henderson, Mokhtari & Weatherly Co., L.P.A.
3238 Lorain Avenue
Cleveland, OH 44113
PATRICIA ANN BLACKMON, J.:
{¶1} The state of Ohio appeals from the trial court’s granting defendant Edwin
Vega’s (“Vega”) motion to suppress and assigns the following error for our review:
I. The trial court erred when it suppressed the evidence.
{¶2} Having reviewed the record and pertinent law, we affirm. The apposite
facts follow.
{¶3} On March 28, 2015, Cleveland State University Police Officer Jeffrey
Madej initiated a traffic stop at E. 18th Street and Payne Avenue in Cleveland, after
allegedly witnessing Vega turn left at a red light. Officer Madej approached Vega’s car,
smelled a strong odor of raw marijuana coming from the vehicle, and advised Vega that
he was going to search the car. Vega was put in the back of the police car. In the center
console and cup holder area of Vega’s vehicle, Officer Madej found three cell phones,
several “raw buds of marijuana,” a small amount of “shake weed,” and an open pack of
hard candy. Officer Madej also found cases of rolling papers, several aerosol canisters
of an “odor masking agent,” and “a white package box, USPS box, on the back seat.”
This box was partially opened and inside were “two white mail packages,” which were
sealed but unlabeled.
{¶4} Vega told Officer Madej that the envelopes contained stickers and refused
to give consent to open the packages. Officer Madej continued to detain Vega, and
approximately 23 minutes into the traffic stop, conferred with other officers and law
enforcement officials, both on the scene and via phone calls, and tried to locate a
narcotics K9 unit. After 38 additional minutes, the police were unsuccessful in locating
a K9 unit. Approximately 53 minutes into the traffic stop, Officer Madej wrote Vega
tickets for a traffic infringement and misdemeanor possession of marijuana.
{¶5} In the meantime, the police made a “collaborative decision” to open the
packages. This decision was “based * * * on the strong odor of marijuana coming from
the vehicle.” Inside the packages, Officer Madej found “three large Ziplock clear bags
containing a large amount of Sweet Stone Candy.” This is the same brand of candy that
was found in the center console. It was not until the packages were opened that Officer
Madej realized the candy “could contain THC.” One hour and 12 minutes after Officer
Madej stopped Vega’s car, Vega was arrested for drug trafficking.
{¶6} On September 9, 2015, Vega was indicted with five drug-related offenses.
On January 11, the court held a suppression hearing, and on January 25, 2016, the court
granted Vega’s motion to suppress, finding that Vega was unlawfully detained for an
unreasonable amount of time after the initial search of his vehicle revealed a
misdemeanor quantity of marijuana. The court suppressed the “150 individual packages
of the Sweet Stone candy found in the envelopes that were opened during a
constitutionally impermissible detention.”
{¶7} It is from this order that the state of Ohio appeals.
Standard of Review — Motion to Suppress
Appellate review of a motion to suppress presents a mixed question of law
and fact. 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.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8.
Law and Analysis
{¶8} The Fourth Amendment to the United States Constitution provides
protection against warrantless searches and seizures. There are exceptions, however, to
the warrant requirement. See generally State v. Smith, 124 Ohio St.3d 163,
2009-Ohio-6426, 920 N.E.2d 949. “[T]he smell of marijuana, alone, by a person
qualified to recognize the odor, is sufficient to establish probable cause to conduct a
search.” State v. Moore, 90 Ohio St.3d 47, 53, 730 N.E.2d 804 (2000).
{¶9} However, the Ohio Supreme Court has held that “where police officers
have probable cause to search an entire vehicle, they may conduct a warrantless search of
every part of the vehicle and its contents, including all movable containers and packages,
that may logically conceal the object of the search.” (Emphasis added.) State v. Welch,
18 Ohio St.3d 88, 92, 480 N.E.2d 384 (1985). See also State v. Young, 146 Ohio App.3d
245, 257, 765 N.E.2d 938 (11th Dist.2001) (“[t]he right to be free of unreasonable
searches precludes the issuance of a search warrant for a litany of narcotics based upon
the observation of a misdemeanor amount of marijuana”).
{¶10} In the case at hand, the trial court found that Officer Madej’s search of the
envelopes in Vega’s backseat was unreasonable. This finding is supported by Officer
Madej’s testimony that his probable cause to search was based “on the strong odor of
marijuana coming from the vehicle * * * along with other indicators [such as] the
odor-masking agent * * * [and] a lot of rolling papers.” Officer Madej was looking for
“marijuana in its raw form. Bud marijuana. Something that hasn’t been smoked yet.”
He testified that, because the odor was “billowing out of” Vega’s car, he was looking for
more than the three marijuana buds and “shake weed” that he found in the center console.
{¶11} However, Officer Madej also testified that the envelopes “were not the
source of the odor of marijuana.” Additionally, the officer’s testimony is inconsistent as
to what he thought was in the envelopes. He testified as follows during the suppression
hearing: he thought the envelopes contained “individually packaged drugs”; the
envelopes “felt like it was individual bags and it wasn’t consistent with stickers,” and the
packages showed no signs of containing “illicit materials.”
{¶12} As to the hard candy found in the center console of Vega’s car, Officer
Madej testified he “didn’t pay attention to it” when he first found it, that he didn’t find
anything “illicit” about it, and that it had no odor. Officer Madej did not mention the
candy to any of the other officers he conferred with, nor did he mention the candy in
Vega’s traffic citations. In short, Officer Madej was not searching for candy.
Furthermore, his testimony supports the finding that Officer Madej had no reason to
believe the large amount of raw marijuana he was searching for was contained in the two
envelopes.
{¶13} This case is on point with State v. Gonzales, 6th Dist. Wood No.
WD-07-060, 2009-Ohio-168, ¶ 17, which holds that “compartments and packages within
a vehicle which could contain the illicit object for which the police have probable cause
to believe exist may also be searched.”
{¶14} In the case at hand, the police had probable cause to search Vega’s vehicle
when they found a small amount of loose marijuana and detected a strong odor of raw
marijuana. Officer Madej did, in fact, conduct this search. However, he did not find
any additional marijuana, and he could not get a K9 unit to the scene within a reasonable
amount of time. Vega should have been released after his misdemeanor citations were
issued and the search of the car revealed no further incriminating evidence. If, before
the police completed this search, a K9 unit had alerted that the sealed envelopes may
contain drugs, this may have constituted probable cause to open the envelopes.
Furthermore, if Officer Madej had detected an odor of marijuana coming from the
envelopes or testified that, in his training and experience, raw marijuana was typically
packaged in envelopes of this type, these scenarios may have constituted probable cause
as well.
{¶15} Police may conduct “a canine sniff of the vehicle during a traffic stop, so
long as the duration of the traffic stop is not extended beyond what is reasonably
necessary to resolve the issue that led to the stop and issue a traffic citation.” (Citations
omitted.) State v. Greene, 2d Dist. Montgomery No. 25577, 2013-Ohio-4516, ¶ 22.
Although this case is factually different than Greene in that a misdemeanor amount of
marijuana was found in Vega’s vehicle, the same rationale can be used to determine that
the search of the envelopes violated Vega’s Fourth Amendment rights. In other words,
the police cannot extend the search of a vehicle — after the search revealed no further
contraband — to wait for a K9 unit to arrive and sniff a sealed package.
{¶16} The trial court in the case at hand found that “without more, the smell of
marijuana does not provide probable cause to open every container located during the
search.” Additionally, the court concluded that the “delay while waiting for an answer
via either the ‘sniff’ of trained K-9 officer or legal guidance from superiors exceeded
constitutionally permissible grounds to detain the defendant in this case.” See State v.
Miller, 10th Dist. Franklin Nos. 10AP-1017 and 10AP-1018, 2011-Ohio-3600, ¶ 30 (“a
police officer may stop and detain someone for a minor misdemeanor offense, but the
officer is not allowed to arrest that person and conduct a search incident to that arrest”).
{¶17} In conclusion, the smell of marijuana amounts to probable cause to search a
vehicle. However, this is limited to “every part of the vehicle and its contents that may
conceal the object of the search.” U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982). The trial court in the case at hand, after evaluating the credibility of
Officer Madej’s testimony, concluded that the Officer was searching for raw marijuana
and did not believe the envelopes contained this contraband. This factual conclusion is
supported by the evidence in the record. The court then concluded that an unreasonable
amount of time passed while the police were looking for another basis for probable cause
to open the envelopes. Accordingly, the court did not err in granting Vega’s motion to
suppress, the state of Ohio’s sole assigned error is overruled, and the trial court’s
judgment is affirmed.
{¶18} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS
(SEE ATTACHED DISSENTING OPINION)
MELODY J. STEWART, J., DISSENTING:
{¶19} The majority concludes both that the officer could not open packages that
did not smell like marijuana and that the officer unreasonably detained Vega while
waiting for a drug sniffing dog. Respectfully, these conclusions are legally unsupported.
{¶20} The search in this case was based on more than a mere suspicion of criminal
activity — the trial judge acknowledged that the officer believed that small amount of
marijuana he saw on initial observation was not enough to account for the very strong
odor of marijuana “billowing” from Vega’s vehicle. On that basis, the trial judge found
that the officer was justified in conducting “a more thorough search.” The trial judge did
not characterize his ruling as “probable cause” to search Vega’s vehicle, but that is the
only reasonable conclusion from the court’s findings. The majority concedes that the
arresting officer had probable cause to search Vega’s vehicle. Ante, at ¶ 14.
{¶21} In general, the Fourth Amendment to the United States Constitution does
not require a warrant to search an automobile when the police have probable cause to
believe it contains contraband or evidence of criminal activity. Carroll v. United States,
267 U.S. 132, 160-162, 45 S.Ct. 280, 69 L.Ed. 543 (1927). This exception to the warrant
requirement exists because of the inherent mobility of automobiles and the reduced
expectation of privacy that results from their pervasive regulation. Id. at 153 (explaining
that the ability to move a vehicle quickly “out of the locality or jurisdiction in which the
warrant must be sought” makes it “impracticable to secure a warrant.”); California v.
Carney, 471 U.S. 386, 390-391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (“our later cases
have made clear that ready mobility is not the only basis for the exception * * * [b]esides
the element of mobility, less rigorous warrant requirements govern because the
expectation of privacy with respect to one’s automobile is significantly less than that
relating to one’s home or office.”).
{¶22} “If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the
object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982). See also California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982,
114 L.Ed.2d 619 (1991) (“The police may search an automobile and the containers within
it where they have probable cause to believe contraband or evidence is contained”) and
Ross, supra (“During virtually the entire history of our country — whether contraband
was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile — it
has been assumed that a lawful search of a vehicle would include a search of any
container that might conceal the object of the search.”) (Emphasis added.)
{¶23} Although the majority concludes that the arresting officer had probable
cause to open and search all containers or packages in the vehicle, it finds that probable
cause to open the sealed envelopes ceased because the arresting officer did not smell
marijuana coming from inside the envelopes. It believes that the arresting officer’s
inability to smell marijuana coming from the envelopes means that he could not have
logically believed that the mailing envelopes contained marijuana.
{¶24} This conclusion is contrary to United States Supreme Court precedent that
“[w]hen there is probable cause to search for contraband in a car, it is reasonable for
police officers * * * to examine packages and containers without a showing of
individualized probable cause for each one.” (Emphasis added.) Houghton, 526 U.S. at
302. That the officer may not have detected an odor of marijuana coming from the
envelopes did not vitiate probable cause because the lack of a marijuana odor did not
mean that the envelopes did not contain drug contraband. See, e.g., State v. Dixon, 2d
Dist. Montgomery No. 22147, 2008-Ohio-1978, ¶ 9-11 (immaterial that police officer
could not detect the smell of marijuana coming from a duffle bag in a car because having
smelled marijuana emanating from the interior of the vehicle, “it was reasonable for the
police officer to search the duffle bag sitting on the rear seat in plain view.”).
{¶25} As this case shows, marijuana can be found in more than just its plant form,
and those alternative forms may be less odoriferous. In addition, drug traffickers go the
great lengths to abate the odor of marijuana, whether by packaging, State v. Mowler, 8th
Dist. Cuyahoga No. 100019, 2014-Ohio-831, ¶ 31 (vacuum sealing), or using odors as a
masking agent. State v. McGee, 2013-Ohio-4165, 996 N.E.2d 1048, ¶ 25 (7th Dist.)
(cologne often used to mask the smell of marijuana); State v. Fogel, 5th Dist. Licking No.
11-CA-97, 2012-Ohio-1960, ¶ 23 (fabric softener used to mask the smell of large
amounts of marijuana).
{¶26} Smell is not the sine qua non of a drug search supported by probable cause.
For this reason, a drug detecting dog’s failure to alert to the presence of drugs does not
negate probable cause to search a vehicle. See, e.g., United States v. Williams, 124
Fed.Appx. 885, 2005 U.S. App. LEXIS 4493, *5 (5th Cir.2005) (holding that, “under the
* * * circumstances, the failure of the drug dog to alert did not deprive the officers of
probable cause to search the vehicle”); United States v. Ramirez, 342 F.3d 1210, 1213
(10th Cir.2003) (“We will not require investigators to cease an otherwise reasonable
investigation solely because a dog fails to alert, particularly when we have refused to
require that a dog sniff test be conducted at all.”); United States v. Gill, 280 F.3d 923, 926
and fn. 3 (9th Cir.2002) (denying defendant’s suppression motion although a drug “dog
did not alert”).
{¶27} Dogs are far better at detecting odors than humans. If a trained drug
sniffing dog’s failure to alert to the presence of drugs does not destroy probable cause, a
police officer’s similar failure to alert to the same drugs cannot be the basis for finding
that probable cause has been destroyed. This is especially so when drug traffickers
actively try to mask the odor of marijuana. In other words, it would be perfectly logical
that a package might not smell. This is not a case where the police were searching for a
tuba by opening a sealed envelope.
{¶28} The second basis for the court’s decision was that the 38-minute delay
occasioned both by the officer’s consultation on the scope of the vehicle search and
obtaining the services of a drug sniffing dog was so unreasonable as to void the search.
{¶29} Because traffic stops are “especially fraught with danger to police officers,”
Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), “an
officer may need to take certain negligibly burdensome precautions in order to complete
his mission safely.” Rodriguez v. United States, 575 U.S. 1, 135 S.Ct. 1609, 191 L.Ed.2d
492 (2015). An officer may take a reasonable amount of time between the initial traffic
stop and deciding whether there is probable cause to search the stopped vehicle for
contraband, provided that the delay is no longer than that “reasonably required to
complete” the issuance of a traffic citation. Illinois v. Caballes, 543 U.S. 405, 407, 125
S.Ct. 834, 160 L.Ed.2d 842 (2005).
{¶30} When a police officer timely determines that there is probable cause to
search a vehicle for contraband, “[t]here is no requirement that the warrantless search of a
vehicle occur contemporaneously with its lawful seizure.” United States v. Johns, 469
U.S. 478, 484,105 S.Ct. 881, 83 L.Ed.2d 890 (1985). While the police “may not
indefinitely retain possession of a vehicle and its contents before they complete a vehicle
search,” requiring the police to conduct an immediate search of containers and packages
discovered during a warrantless vehicle search
would be of little benefit to the person whose property is searched, and
where police officers are entitled to seize the container and continue to have
probable cause to believe that it contains contraband, we do not think that
delay in the execution of the warrantless search is necessarily unreasonable.
Id. at 487.
{¶31} In this case, the court focused on the length of time that elapsed while the
police tried to obtain the services of a drug sniffing dog, but that fact was irrelevant. The
officer had probable cause to search the vehicle, as the trial court found, after the traffic
stop based on the strong odor of marijuana emanating from the car. And because there
was probable cause to search, this finding permitted the officer to open the envelopes —
containers that could reasonably contain the contraband — regardless of whether the
services of a drug-sniffing dog could be obtained. The delay in obtaining the services of
a drug-sniffing dog was immaterial and should not have been a factor in deciding the
motion to suppress. I therefore dissent.