State v. Upchurch

[Cite as State v. Upchurch, 2021-Ohio-2143.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1130
Appellee Trial Court No. CR0201902580
v.
Brandon Upchurch DECISION AND JUDGMENT
Appellant Decided: June 25, 2021
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Grant Kozy, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
DUHART, J.
{¶ 1} Appellant, Brandon Upchurch, appeals the judgment entered by the Lucas
County Court of Common Pleas on July 14, 2020, sentencing him to a term of two years
of community control.1 For the reasons that follow, we affirm the judgment of the trial
court.
{¶ 2} Appellant sets forth the following assignment of error:
The Trial Court committed reversible error by denying Appellant’s
Motion to Suppress as there was no reasonable suspicion that Appellant
was engaged in illegal activity that would warrant police interaction and the
search of Appellant’s vehicle was an unconstitutional search and seizure.
Statement of the Case
{¶ 3} On September 9, 2019, appellant was indicted for improperly handling
firearms in a motor vehicle, in violation of R.C. 2923.16(B) and (I), a felony of the fourth
degree.
{¶ 4} On January 21, 2020, appellant filed a motion to suppress, arguing that the
evidence against him was obtained as the result of an illegal search and seizure. On
March 6, the trial court conducted a hearing on the matter. On March 17, 2020, the trial
court denied appellant’s motion to suppress.
{¶ 5} On July 14, 2020, appellant pleaded no contest to the indictment. The trial
court found him guilty. The trial court imposed a sentence of two years of community
control.
1
We note that the state mistakenly asserted in its brief that appellant was sentenced to a
term of 18 months in prison.
2.
Statement of the Facts
{¶ 6} Detective Donovan testified that on May 25, 2019, at around 8:20 p.m., he
was working a “stop program” in the 800 block of Walnut, around the Greenbelt Place
apartment complex. At this time, Donovan was assigned to the gang task force, and was
focusing on areas of Toledo that experienced a high number of violent crimes. Donovan
was specifically tasked with going to the Greenbelt Place housing complex as a result of
shooting incidents in the area and the statistical probability, as calculated by the Toledo
Police Department, that violent crime would be occurring in that location during the time
in question.
{¶ 7} Donovan and his partner, Detective Robert Bascone, were in a “limited
marked police vehicle in full uniform,” when they pulled into the parking lot of the
apartment complex and immediately smelled burnt marijuana coming from the area.
Donovan stated that there were only two cars in the parking lot, one of which was
occupied by appellant and his passenger. Donovan observed that appellant’s vehicle was
backed into a parking spot, with its windows rolled down and with the engine running.
Donovan drove his vehicle around appellant’s vehicle, noticed the smell of burning
marijuana was stronger as they drove around appellant’s vehicle, and then parked near
appellant’s vehicle. Donovan parked his police cruiser and attempted to initiate a casual
encounter to investigate the smell.
3.
{¶ 8} As Donovan and his partner approached appellant’s vehicle, appellant and
his passenger rolled up the windows, “very quickly” exited the vehicle, and then
attempted to walk away. Donovan asked the two to stop, and they immediately
complied, within feet of appellant’s vehicle. Donovan stated that he could see clearly
through the vehicle’s windows and that he noticed an open container of what he believed
to be vodka in the center cup holder area. Appellant complied with Donovan’s request to
provide his information, and Donovan discovered that appellant had a warrant out for his
arrest. Once the warrant was verified, appellant was taken into custody. In addition,
appellant was issued a traffic citation for having an open container of intoxicating liquor
inside a motor vehicle.2
{¶ 9} Donovan testified that appellant’s vehicle was then secured, inventoried, and
towed pursuant to department policy, because it was parked on government property and
because the officers had verified that neither appellant nor his passenger lived at the
apartment complex.3 As part of securing the vehicle and its contents, Donovan gained
entry to the vehicle with a lock-out kit. Donovan opened the door from the driver’s side
and immediately encountered a handgun, with a very large extended magazine on it,
2
Although Donovan testified that he smelled alcohol on appellant’s breath, that appellant
was intoxicated, and that appellant was placed under arrest “after he began screaming and
yelling,” appellant was not subjected to any kind of field sobriety test, nor was he
charged with any OVI or disorderly conduct offense.
3
Although Donovan testified that the police report stated that the vehicle was searched
“incident to arrest,” and that the search took placed while appellant was in handcuffs and
in the backseat of Donovan’s squad car, Donovan further testified that the vehicle was
searched “[a]lso as part of an inventory.”
4.
sticking out of the pocket of the driver’s side door. Further inventory of the vehicle
revealed a second loaded handgun, tucked between the driver’s seat and the center
console, a third loaded handgun, located under the passenger’s seat, a container of
alcohol, and a small amount of marijuana.
Analysis
{¶ 10} In his assignment of error, appellant essentially claims that the trial court
erred when it denied his motion to suppress, because the evidence was obtained during an
illegal search of his vehicle. This court, in State v. Ruffer, 6th Dist. Fulton No. F-11-007,
2012-Ohio-4491, articulated the applicable standard of review for a trial court’s denial of
a motion to suppress, as follows:
Review of a trial court's denial of a motion to suppress presents
mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003–Ohio–5372, 797 N.E.2d 71, ¶ 8. “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. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d
972.” Id. An appellate court defers to a trial court's factual findings made
with respect to its ruling on a motion to suppress where the findings are
supported by competent, credible evidence. Id.; State v. Brooks, 75 Ohio
St.3d 148, 154, 661 N.E.2d 1030 (1996). “[T]he appellate court must then
independently determine, without deference to the conclusion of the trial
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court, whether the facts satisfy the applicable legal standard. State v.
McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539.” State v.
Burnside at ¶ 8.
Id. at ¶ 5.
{¶ 11} Appellant initially argues that officers lacked the requisite specific
and articulable facts to conclude that appellant was engaged in criminal activity.
Specifically, appellant challenges the state’s claim that Donovan was justified in
stopping appellant as part of an investigation arising out of Donovan’s smelling
burnt marijuana, because the state failed to prove that Donovan was qualified to
detect and distinguish the smell of burnt marijuana.
{¶ 12} The state initially argues that because appellant’s trial counsel failed to
raise the qualification issue, appellant has waived the issue and may not raise it for the
first time on appeal. “Legal issues which are not raised in the trial court may not
generally be raised for the first time in the appellate court.” State v. Cunningham, 2d Dist.
Montgomery No. 20059, 2004-Ohio-3088, ¶ 26. “The general rule is that an appellate
court will not consider any error which counsel for a party complaining of the trial
court’s judgment could have called but did not call to the trial court’s attention at a time
when such error could have been avoided or corrected by the trial court.” Id. This rule
applies to arguments that are not asserted either in a written motion to suppress or at the
suppression hearing. State v. Allen, 6th Dist. Wood No. WD-16-058, 2018-Ohio-887, ¶
25. In cases such as the one at hand, Ohio courts have deemed the issue of an officer’s
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qualifications to detect the odor of marijuana to be waived where it was not timely raised
by appellant. See, e.g., State v. Walker, 2012-Ohio-3303, 974 N.E.2d 1213, ¶ 32 (11th
Dist.) (because there was no timely objection, any error resulting from officer’s testimony
regarding the odor of marijuana coming from inside a vehicle was deemed waived);
Cunningham at ¶ 25-26 (challenge to officer’s qualifications to detect odor of marijuana
was waived where it was not timely raised). Because appellant in the instant case failed
to challenge Donovan’s qualifications in the trial court, we find that any error resulting
from Donovan’s testimony was, in fact, waived.
{¶ 13} Even, assuming arguendo, that appellant’s objections had been timely
made, we would nevertheless uphold the legality of the initial intrusion in this case.
While Ohio law clearly provides that “the odor of marijuana establishes probable cause to
search a vehicle only when the odor is detected by a person qualified to recognize it,”
State v. Thames, 2d Dist. Montgomery No. 26052, 2015-Ohio-626, ¶ 8, at this point in
the analysis we are only considering the legality of the initial intrusion, and not the
legality of the subsequent search.
{¶ 14} Focusing on the initial intrusion, we are mindful that “during a consensual
encounter, the officer and citizen can engage in conversation, and a person’s voluntary
statements may be used against him or her, as long as the person knows that he or she is
free to walk away and the police have not conveyed a message that compliance with their
requests is required.” State v. Millerton, 2d Dist. No. 26209, 2015-Ohio-34, 26 N.E.3d
317, ¶ 21. An “investigatory detention,” also known as a Terry stop, “allows an officer to
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briefly stop and temporarily detain individuals in order to investigate possible criminal
activity.” Id. at ¶ 22. During a brief investigatory stop, “an officer is entitled to ask
questions to confirm his suspicions that criminal activity occurred,” and, further, “an
officer can ask for identification or sufficient information to write a citation or to run a
background check for outstanding warrants.” Id. at ¶ 23.
{¶ 15} In Thames, where the defendant seemed “exceptionally nervous,” and the
officer “smelled an overwhelming odor of air freshener and a faint odor of marijuana,”
such evidence, “at a minimum, met the reasonable, articulable suspicion [of criminal
activity] standard,” which justified extending a traffic stop for a drug sniff, even though
the officer’s qualifications to detect the smell of marijuana were never specifically
addressed during the suppression hearing. Thames at ¶ 8, 11.
{¶ 16} Here, where the officers smelled an overwhelming smell of marijuana,
apparently coming from appellant’s vehicle, in an otherwise sparsely populated area, and
where appellant quickly locked and exited the vehicle upon the officers’ arrival, we find
that the initial approach -- perhaps best described as a “casual encounter” that quickly
evolved into a Terry investigative stop -- was lawful under the circumstances, permitting
the officers to conduct a routine background check for outstanding warrants.
{¶ 17} We additionally note that, in addition to the odor of marijuana, which gave
rise to the officers’ initial approach and temporary detention of appellant, the officers,
upon reaching the vicinity of appellant’s car, noticed an open container in the car. In this
case, discovery of the open container provided a second, independent basis for a
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detention with a background/identification check. See, State v. Brown, 2d Dist.
Montgomery No. 20336, 2004-Ohio-4058, ¶ 18 (open beer container located in car
provided officer with reasonable, articulable suspicion that appellant had engaged in an
open container violation, thereby providing an independent basis to request appellant’s
identification); State v. Carlisle, 4th Dist. Lawrence No. 07CA16, 2008-Ohio-744, ¶ 13
(investigative stop justified where appellant was carrying an open container of alcohol).
{¶ 18} Once the background check was conducted, revealing that there were
outstanding warrants for both appellant and his passenger, the two men were lawfully
arrested and taken into custody, and an inventory search of appellant’s vehicle was
performed. Addressing the concept of inventory searches, the Supreme Court of Ohio, in
State v. Mesa, 87 Ohio St.3d 105, 717 N.E.2d 329 (1999), relevantly stated the following:
Inventory searches are a ‘well-defined exception to the warrant
requirement of the Fourth Amendment.’ Colorado v. Bertine (1987), 479
U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739, 745. See, also, South
Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d
1000. Inventory searches involve administrative procedures conducted by
law enforcement officials and are intended to (1) protect an individual's
property while it is in police custody, (2) protect police against claims of
lost, stolen or vandalized property, and (3) protect police from dangerous
instrumentalities. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d
at 1005. Because inventory searches are administrative caretaking
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functions unrelated to criminal investigations, the policies underlying the
Fourth Amendment warrant requirement, including the standard of
probable cause, are not implicated. Id. at 370, 96 S.Ct. at 3097, 49 L.Ed.2d
at 1006, fn. 5. See, also, Bertine, 479 U.S. at 371, 107 S.Ct. at 741, 93
L.Ed.2d at 745. Rather, the validity of an inventory search of a lawfully
impounded vehicle is judged by the Fourth Amendment's standard of
reasonableness. See Opperman and Bertine, supra.
Id. at 108–09. An inventory search is lawful where there is evidence to show that the
decision to conduct an inventory search of a vehicle was made in good faith, and in
accordance with established police inventory procedure. See, e.g., State v. Easton, 2016-
Ohio-5516, 69 N.E.3d 1202 (8th Dist.)
{¶ 19} In reviewing the record, we find that the evidence in this case is sufficient
to show that the officers’ decision to conduct the inventory search of appellant’s vehicle
was made in good faith, following the lawful arrest of appellant and his passenger, and
was in accordance with police department policy. Accordingly, we find that the officers’
inventory search was lawful.
{¶ 20} For all of the foregoing reasons, we find appellant’s assignment of error not
well-taken. We affirm the judgment of the Lucas County Court of Common Pleas.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
10.
L-20-1130
State v. Upchurch
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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