State v. Ulmer , 2020 Ohio 4689 ( 2020 )

[Cite as State v. Ulmer, 2020-Ohio-4689.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-190304
C-190305
Plaintiff-Appellee, : C-190306
TRIAL NOS. 18-CRB32202A
vs. : 18-CRB32202B
18-CRB32202C
CORIE ULMER, :
Defendant-Appellant. : O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Appellant Discharged in C-190304;
Affirmed in C-190305 and C-190306
Date of Judgment Entry on Appeal: September 30, 2020
Paula Boggs Muething, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Meagan D. Woodall, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Corie Ulmer appeals from the trial court’s judgment overruling his
motion to suppress. For the following reasons, we conclude that the trial court erred
in determining that the officer had probable cause to search the trunk of Ulmer’s car.
Accordingly, we sustain the assignment of error, reverse the trial court’s judgment,
and vacate the conviction for improperly handling firearms in a motor vehicle. We
affirm the judgment of the trial court in all other respects.
The Motion to Suppress
{¶2} Corie Ulmer was charged with improperly handling firearms in a
motor vehicle, criminal trespass, and possession of marijuana. Ulmer filed a motion
to suppress all of the evidence asserting that the police officers did not have
reasonable suspicion to conduct a Terry stop, the officers exceeded the permissible
scope of a patdown, and the officers had no probable cause to search his car or the
trunk of his car. The city did not file a memorandum in response to the motion to
suppress.
{¶3} At the suppression hearing, Officer Jeff Ruberg, a Cincinnati police
officer, testified that he was working for Downtown Property Management on
December 13, 2018, patrolling their properties with his partner Specialist McGraw.
The officers patrol numerous properties due to problems such as trespassing,
loitering, drinking, and drugs. Ruberg had been working this detail for 17 years.
{¶4} As the officers pulled into the parking lot, Ruberg saw Ulmer sitting in
his car in the parking lot. Ulmer got out of the car and walked toward the building.
The officers parked and approached him before he reached the steps leading to the
entrance of the building. Ruberg suspected that Ulmer was trespassing, and he
requested Ulmer’s driver’s license which he promptly provided. Ulmer made no
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OHIO FIRST DISTRICT COURT OF APPEALS
sudden movements and was cooperative.
{¶5} Ruberg further testified that he could smell a very strong odor of
marijuana coming from Ulmer, the immediate area, and Ulmer’s car. Ruberg asked
Ulmer if he had been smoking marijuana, and Ulmer admitted that he had smoked
marijuana in his car and threw the butt of a joint out of his car window before the
officers had arrived. He also told Ruberg that he had marijuana in his pocket. At
that point, Ulmer was handcuffed and searched. Ruberg testified that the sole reason
for the patdown was to retrieve the marijuana. After Ruberg recovered a minute
amount of marijuana from Ulmer’s pocket, he placed Ulmer in the back of the police
cruiser.
{¶6} Ruberg testified that he took Ulmer’s car keys and searched his vehicle
because Ulmer, the car, and the whole area smelled like marijuana. He found the
butt of a joint in the passenger’s side door compartment. When he searched the
trunk, he found a loaded Glock 9 mm firearm. Ruberg charged Ulmer with criminal
trespassing, having a firearm in a motor vehicle, and a minor misdemeanor for
possessing marijuana.
{¶7} The video from Ruberg’s body camera was played and submitted into
evidence. The video confirmed that Ruberg and his partner stopped Ulmer as he was
approaching the entrance of the apartment. Ruberg asked him whether he lived in
the building. When Ulmer told them he was visiting his cousin, whom he was
currently calling, Ruberg requested his identification. Ruberg informed Ulmer that
he was trespassing on private property because visitors must park on the street and
must be escorted onto the property by a tenant.
{¶8} Ruberg asked Ulmer if he had just been “hitting a joint cause I can still
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OHIO FIRST DISTRICT COURT OF APPEALS
smell it.” When Ulmer confirmed that he had been smoking marijuana in his car and
had thrown it out of the car when he pulled up, Ruberg responded, “Well, it’s still
burning wherever you threw it because I can smell it.” Ruberg and his partner both
used their flashlights to search the ground by the apartment entrance for the burning
marijuana.
{¶9} After handcuffing Ulmer and putting him into the police cruiser,
Ruberg searched the car and found a small butt of a burnt marijuana joint in the
passenger’s-side door compartment and proceeded to thoroughly search the car.
Finding nothing more, Ruberg used his flashlight to conduct a cursory search around
the vehicle for the burning marijuana. When he again found nothing, Ruberg
searched the trunk of Ulmer’s car. After finding the firearm, he arrested Ulmer and
charged him. The state admitted the video as an exhibit, and both parties rested.
{¶10} During closing arguments, Ulmer did not challenge his initial stop and
detention. Instead, he only argued that the officers did not have probable cause to
search the car and asked the trial court to suppress the gun. The court made the
following factual findings:
the officers [were] serving an investigation regarding a trespass on
private property and observe[d] the Defendant smelling of marijuana
– may or may not, because I did not mark it down – he admitted he
just smoked it, and threw it down, recovering additional marijuana on
his person with an admission that he was smoking marijuana in the
car as he pulled up to go visit his cousin.
{¶11} The court concluded that the officer had probable cause for everything
he did, with the exception of the search of the trunk. The trial court continued the
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OHIO FIRST DISTRICT COURT OF APPEALS
hearing to conduct additional research regarding the search of the trunk. To aid the
court, Ulmer submitted a supplemental brief on that issue and conceded that the
initial encounter with the officer was constitutional. Ultimately, the trial court
determined that Ruberg had probable cause to search the trunk due to the odor of
marijuana and Ulmer’s admission that he had thrown marijuana on the ground.
Ulmer has appealed, and in one assignment of error, he argues that the trial court
erred in overruling the motion to suppress because Ruberg did not have reasonable
suspicion to justify a Terry stop, and the warrantless search of Ulmer’s car was
unconstitutional.
Standard of Review
{¶12} Appellate review of a decision on a motion to suppress presents 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.
{¶13} Under the Fourth Amendment to the United States Constitution and
Article I, Section 14, of the Ohio Constitution, warrantless searches are per se
unreasonable without prior approval of a judge or magistrate, subject to a few well-
established exceptions. See State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶ 13 (1st
Dist.); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
Under the automobile exception, an officer may conduct a warrantless search of an
automobile if there is probable cause to believe the vehicle contains contraband.
State v. Moore, 90 Ohio St. 3d 47, 51, 734 N.E.2d 804 (2000). “Probable cause is ‘a
belief reasonably arising out of circumstances known to the seizing officer, that an
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OHIO FIRST DISTRICT COURT OF APPEALS
automobile or other vehicle contains that which by law is subject to seizure and
destruction.’ ” State v. Durham, 2013-Ohio-4764, 999 N.E.2d 1233, ¶ 32 (12th
Dist.), quoting State v. Kessler, 53 Ohio St. 2d 204, 208, 373 N.E.2d 1252 (1978).
However, the scope of the search is limited by the object of the search and the places
that may conceal the contraband. State v. Howard, 1st Dist. Hamilton Nos. C-
070174 and C-070175, 2008-Ohio-2706, ¶ 11.
The Officer did not have Probable Cause to Search the Trunk
{¶14} Ulmer first contends that the officer did not have reasonable suspicion
to detain him. In response, the city argues that Ulmer waived the right to challenge
the initial stop by conceding in his supplemental brief that the initial stop was
constitutional.
{¶15} Although Ulmer challenged the stop in his motion to suppress, he did
not argue that the initial stop was unconstitutional at the suppression hearing, and
he conceded in his supplemental brief that the initial encounter was constitutional.
Thus, Ulmer abandoned this argument and invited any error by the trial court in not
addressing whether the initial stop was supported by reasonable suspicion, and he is
precluded from raising the issue now, even under a plain-error analysis. See State ex
rel. Kline v. Carroll, 96 Ohio St. 3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27; State
v. Robinson, 4th Dist. Washington No. 16CA22, 2017-Ohio-8273, ¶ 32 (a defendant
who abandons a claim raised in his motion to suppress waives even plain error on
appeal).
{¶16} Next, Ulmer asserts that the officer did not have probable cause to
search the passenger compartment or the trunk of his vehicle because the odor of
burning marijuana was outside of the vehicle. Ulmer is mistaken because Ruberg
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that the odor of marijuana was coming from the car. It is well established
that “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.” Moore, 90 Ohio St. 3d at 48, 734
N.E.2d 804. Therefore, the search of the passenger compartment was justified.
{¶17} However, “[a] trunk and a passenger compartment of an automobile
are subject to different standards of probable cause to conduct searches.” State v.
Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 51. 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 a vehicle.” Id. at ¶
52. “This proposition is established by the common sense observation that an odor
of burning marijuana would not create an inference that burning marijuana was
located in a trunk.” State v. Gonzales, 6th Dist. Wood No. WD-07-060, 2009-Ohio-
168, ¶ 21.
{¶18} Ulmer argues that the smell of burning marijuana was insufficient to
provide probable cause to search the trunk. The city contends that the search of the
trunk was supported by the “raw marijuana joint” found in the passenger
compartment, Ulmer’s admissions and possession of a small amount of marijuana,
and the strong odor of marijuana.
{¶19} After a thorough review of the record, we conclude that Ruberg relied
solely on the odor of burning marijuana, standing alone, to justify the search of the
trunk. A review of the video confirms that Ruberg smelled burning marijuana and
scanned the immediate area around the car and searched the inside of the car for the
source of the odor. Ruberg believed that the marijuana was still burning based upon
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OHIO FIRST DISTRICT COURT OF APPEALS
the strong odor in the general area. Ruberg did not find raw marijuana in the car; he
found the burnt end of a marijuana joint. Moreover, Ruberg did not testify that he
smelled raw marijuana or that he was trained to detect the odor of raw marijuana.1
The sole focus of Ruberg’s search was the source of the odor of burning marijuana.
Thus, the odor of burning marijuana did not support a search of the trunk. See id.;
Farris at ¶ 52.
{¶20} Contrary to the city’s argument, this is not a case where additional
factors indicating drug activity were present to justify the search of the trunk. For
example, Ruberg did not find drug paraphernalia, scales, or a large quantity of cash.
See, e.g., State v. Braxton, 12th Dist. Warren No. CA2019-03-019, 2020-Ohio-424, ¶
18 (finding that the discovery a prescription pill bottle and a cellophane wrapped
oxycodone pill in the center console, in addition to the odor of burnt marijuana,
provided probable cause to expand the search to the trunk); State v. Quaker, 3d Dist.
Allen No. 1-19-33, 2020-Ohio-2887, ¶ 26-28 (probable cause was established when
the trooper saw raw marijuana shake in the car and felt large quantities of cash in
defendant’s pockets, defendant provided an expired rental agreement, defendant was
not the person named in the agreement, and no additional drivers were authorized to
drive the car); State v. Whatley, 5th Dist. Licking No. 10-CA-93, 2011-Ohio-2297, ¶
30 (officer found marijuana in the passenger compartment of the car in plain view,
was given a false name by defendant, and the driver made an attempt to get into the
trunk as she was walking toward the officer’s cruiser).
{¶21} Accordingly, we sustain the assignment of error because the officer did
not have probable cause to search the trunk.
1 Presumably, the city would have elicited testimony regarding Ruberg’s training to detect the
odor of raw marijuana had the officer testified that he smelled raw marijuana.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶22} We sustain the assignment of error, reverse the trial court’s judgment
in the case numbered C-190304, reverse the conviction for improperly handling
firearms in a motor vehicle, and Ulmer is discharged on that count. We affirm the
judgments of the trial court in the cases numbered C-190305 and C-190306.
Judgment accordingly.
MYERS and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
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