State v. Brown

[Cite as State v. Brown, 2021-Ohio-753.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-20-015
Appellee Trial Court No. 19 CR 838
v.
Adrian Jermaine Brown DECISION AND JUDGMENT
Appellant Decided: March 12, 2021
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
DUHART, J.
{¶ 1} This case is before the court on appeal by appellant, Adrian Brown, from the
March 9, 2020 judgment of the Sandusky County Court of Common Pleas. For the
reasons that follow, we affirm.
{¶ 2} Appellant sets forth one assignment of error:
{¶ 3} The trial court abused its discretion and erred to the prejudice of
Appellant by denying his motion to suppress evidence.
Background
{¶ 4} On September 5, 2018, appellant was driving a semi-tractor trailer truck on
the Ohio Turnpike in Sandusky County, Ohio, when he was stopped for speeding by
Trooper Christopher Beyer of the Ohio State Highway Patrol. In the cab of the truck, the
trooper smelled the raw odor of marijuana and observed a small amount of marijuana.
Appellant got out of the cab of the truck, was handcuffed, Mirandized and placed in the
patrol car. The trooper searched the truck’s cab and found a loaded gun and more
marijuana.
{¶ 5} On September 5, 2019, appellant was indicted for improper handling of
firearms in a motor vehicle in violation of R.C. 2923.16(B), a fourth degree felony.
{¶ 6} On November 15, 2019, appellant was arraigned and entered a plea of not
guilty.
{¶ 7} On January 29, 2020, appellant filed a motion to suppress, claiming there
was no basis for a probable cause search, and any evidence discovered was illegally
seized and should be suppressed. A suppression hearing was held that day, and the trial
court denied the motion.
{¶ 8} On March 9, 2020, appellant entered a plea of no contest to the indicted
charge, was found guilty and was sentenced. Appellant timely appealed arguing the trial
court abused its discretion when it denied his motion to suppress.
2.
Appellant’s Motion to Suppress
{¶ 9} Appellant sought an order from the trial court to suppress the evidence the
state intended to use at trial, as he claimed the evidence was illegally seized or obtained
in violation of his constitutional rights. Appellant referred to the trooper’s report and
investigative notes to describe the events surrounding the traffic stop and search of the
truck. Appellant argued the only basis for the traffic stop was an “alleged 6 miles per
hour on a three lane major highway.” Appellant noted the posted speed limit was 70
m.p.h. and “[t]here were no other observed traffic violations * * * other than the alleged
speed that could have been as low as 76 MPH.”
{¶ 10} In his motion, appellant set forth that after he was stopped, he was asked to
step down from the cab, he was Mirandized, his person was searched and no contraband
was found. Appellant further set forth “[t]he trooper states that he and another trooper
then began a probable cause search.” Appellant asserted “[a]t this point, if not earlier, the
interaction with [appellant] should have ended and [appellant] should have been legally
permitted to go on his way.”
{¶ 11} Appellant submitted:
to qualify as the basis for probable cause, the State will have to
establish that:
1) the office[r] had expertise and proven ability to accurately
identify the smell of, for example, growing marijuana.
2) officer was in a place he had a right to be when he detected this
odor.
3.
3) he identified the odor as that of growing marijuana.
{¶ 12} Appellant maintained “considering the basis of the stopping of the vehicle
and the circumstances that followed thereafter, there was clearly no basis for a probable
cause search. Any evidence discovered therefor must be suppressed.” In support of his
position, appellant cited to State v. Woljevach, 160 Ohio App.3d 757, 2005-Ohio-2085,
828 N.E.2d 1015 (6th Dist.).
{¶ 13} In the Woljevach case, a search warrant was issued after law enforcement
smelled raw marijuana in the barn on Woljevach’s farm. Id. at ¶ 4-5. A search was
conducted pursuant to the warrant, and marijuana plants were found. Id. at ¶ 6. The
plants were seized and Woljevach was arrested and charged with illegal cultivation of
marijuana. Id. at ¶ 7. Woljevach filed a motion to motion to suppress, which the trial
court denied. Id.
{¶ 14} On appeal, Woljevach argued “to find that an officer can smell growing
marijuana overreaches the permissible scope of the plain-smell doctrine” set forth in State
v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000). Id. at ¶ 21. Woljevach asserted
“Moore dealt with burning marijuana, marijuana smoke, or harvested marijuana, not
growing marijuana [and] [a]n extension of Moore to growing marijuana is not
warranted.” Id.
{¶ 15} We noted the probable-cause affidavit contained an averment that a law
enforcement officer could, and previously had, successfully detected the odor of growing
marijuana. Id. at ¶ 23. We further noted that at the hearing on the motion to suppress,
Woljevach presented no evidence to rebut the officer’s expertise at smelling growing
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marijuana. Id. We observed the trial court found the officer’s assertions in the probable-
cause affidavit were credible, and we concluded we would not disturb that finding. Id.
Suppression Hearing
{¶ 16} Trooper Beyer was the only witness called to testify at the hearing on the
motion to suppress; he testified to the following. The trooper described his training and
work as a law enforcement officer for 15 1/2 years, including his specialized training in
the recognition and detection of marijuana. In the academy, he had training on the raw
and burnt odor of marijuana, he was shown those substances, and in his career, he had no
less than 1,000 marijuana-related instances.
{¶ 17} On September 5, 2018, the trooper was in a marked patrol car, in uniform,
on patrol. He was “in the 84 pull-off,” standing next to his patrol car, when he observed
“a semi come over a hill.” The truck was in the center lane with no vehicles in front of it,
and it appeared to be speeding. The trooper activated his laser, tracked the truck, and
received readings of 78, 77 and 76 miles per hour; the posted speed limit was 70 m.p.h.
The trooper described his training on the laser device and detailed the device’s
calibration. The trooper “flagged” the truck to pull over and the truck stopped by the
roadside.
{¶ 18} The trooper approached the truck, asked if he could open the passenger
door, and upon opening the door, smelled an odor of raw marijuana. The trooper advised
the driver, appellant, that he was stopped for speeding, and appellant was asked to
produce his license, registration and insurance. The trooper then noticed a small can on
the right front floor of the truck with “a little small piece of marijuana bud that was
5.
smaller than my * * * pinkie fingernail.” The trooper asked appellant to step out of the
truck. Appellant was only wearing boxer shorts, so he “goes into the back bunk there * *
* ‘cause it was a * * * sleeper cab. * * * It’s got a bunk bed in the back, a single
mattress.” Appellant put on pants and stepped out of the truck.
{¶ 19} Appellant walked to the front of the patrol car, where the trooper
handcuffed him, read him his Miranda rights and placed him in the backseat of the patrol
car. Appellant was “placed in investigative detention” based on the bud of marijuana and
the odor of raw marijuana, and handcuffed for the trooper’s safety because of “the known
nexus between drugs and guns.” At that point, the trooper said he had “probable cause to
search the vehicle because of the odor of raw marijuana and the plain view of the
marijuana residue or the flower - - bud.” The trooper stated he did not ask for appellant’s
permission to search the truck’s cab, as appellant’s permission was not needed.
{¶ 20} Trooper Beyer summoned Trooper Missig, a motor carrier inspector.
Trooper Beyer was also a motor carrier inspector, but the program he used through the
FMCSA, Federal Motor Carrier Safety Administration, was not working. Trooper Beyer
explained “it’s a very serious offense to have any form of drugs that are not physically
prescribed * * * in your cabin, specifically, you can’t have marijuana, and that’s a 24-
hour out of service violation.”
{¶ 21} After Trooper Missig arrived, Trooper Beyer searched the entire cab of the
truck, starting with the front half, then the second half or sleeper area. Trooper Beyer
testified the cab was “all one open area * * * [there was] a little curtain * * * that wasn’t
closed.” Trooper Beyer found and seized another bud of marijuana, a pack of rolling
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papers and a loaded handgun under the pillow in the bunk area. Appellant was placed
under arrest. Trooper Beyer sent the marijuana buds to the state patrol crime lab; no tests
were run on the buds.
{¶ 22} At the conclusion of the hearing, the judge ruled “the gun was lawfully
uncovered, and * * * cannot [be] suppress[ed] * * * so * * * [the] motion is denied.”
Standard on Appeal
{¶ 23} Appellate review of a Crim.R. 12(C)(3) 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 the trial court decides a motion to suppress, it assumes the role of
trier of fact and is in the best position to resolve questions of fact and to assess witness
credibility. Id. A reviewing court is bound to accept the trial court’s findings of fact if
they are supported by competent, credible evidence. Id. An appellate court must then
independently decide as a matter of law whether the trial court’s conclusions satisfy the
appropriate legal standard. Id.Assignment of Error
{¶ 24} Appellant argues the trial court abused its discretion when it denied his
motion to suppress evidence. Appellant acknowledges that the smell of marijuana by a
person qualified to recognize the odor is sufficient to establish probable cause to search,
but he contends the trooper’s search of the cab of the truck was beyond the scope of the
offenses of speeding and possession of less than 100 grams of marijuana. Thus, appellant
submits the gun discovered under a pillow in the sleeper portion of the truck’s cab must
be suppressed as a fruit of the poisonous tree.
7.
{¶ 25} Appellant notes the trooper did not testify that, after he smelled raw
marijuana and saw a marijuana flower in plain view, he observed any violations of law
which would lead him to suspect appellant was harboring additional contraband in the
truck. Nor did the trooper testify that he detected an overwhelming odor of raw
marijuana, which appellant asserts would have justified probable cause to believe a large
quantity of marijuana was in the truck’s cab. Since a strong odor of marijuana was not
detected and two marijuana flowers were found by the trooper in the truck’s cab,
appellant contends there was no probable cause to search the remainder of the cab for
additional contraband. In support, appellant cites to State v. Price, 2013-Ohio-130, 986
N.E.2d 553 (6th Dist.).
{¶ 26} The Price case involved the stop of a vehicle for speeding, with Price as the
only passenger in the vehicle. Id. at ¶ 3. The police officer testified he placed the driver
“‘in handcuffs, patted him down, found $1,175 in cash, smelled the odor of burnt
marijuana on [the driver’s] person and inside [of] the vehicle, and detected an odor of an
alcoholic beverage on [the driver’s] person.’” Id. The driver was arrested for OVI. Id.
{¶ 27} The officer asked if Price could drive the vehicle, and in order to ensure
Price was not under the influence, the officer had Price get out of the vehicle. Id. at ¶ 4.
The officer testified he observed Price was “‘very fidgety, very nervous, couldn't stand
still, shuffling his feet, kept moving his hands around.’” Id. Price was asked “‘if he was
sure he didn't have anything on him, [Price] said, well, I’ll empty out my pockets.’” Id.
As Price emptied his pockets, the officer said Price “‘pulled out a piece of cellophane
plastic wrapper and placed it on the trunk of the vehicle.’” Id. Price was asked what it
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was, and he said “‘that’s nothing, that’s a piece that I didn’t smoke earlier.’” Id. Price
was handcuffed and put into a separate patrol vehicle from the driver. Id.
{¶ 28} Based on the foregoing, the officer believed another crime was being
committed: there may be more marijuana in the vehicle. Id. at ¶ 5. The vehicle was
searched, including the trunk, and more marijuana and digital scales were found. Id.
After being charged with a drug crime, Price filed a motion to motion to suppress the
evidence, which the trial court granted. Id. at ¶ 1. The trial court found the warrantless
search of the vehicle did not fall within the search incident to arrest exception or the
automobile exception to the Fourth Amendment’s warrant requirement. Id. The state
appealed. Id.
{¶ 29} We reversed, finding “where an officer detects a strong odor of raw
marijuana, but no large amount is found within the passenger compartment of the vehicle,
the officer has probable cause to search the trunk.” Id. at ¶ 16.
Law
Search and Seizure
{¶ 30} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution, guarantee a person’s right to be free from unreasonable
searches and seizures. State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001).
The temporary detention of a motorist by law enforcement during a traffic stop is a
seizure. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
{¶ 31} When a motorist is lawfully detained for a traffic violation, a police officer
may delay the motorist for a period of time to issue a ticket or a warning. State v.
9.
Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12. This time frame
includes a sufficient period to conduct a computer check on the driver’s license, license
plates and registration. Id. See also Prouse at 659. If a motorist’s detention is continued
beyond the time frame required for the traffic stop, the officer must have additional facts
which give rise to a reasonable, articulable suspicion of criminal activity beyond that
which prompted the initial stop. Batchili at ¶ 15.
{¶ 32} Reasonable, articulable suspicion has been described as “something more
substantial than inarticulate hunches.” Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968). The determination of whether reasonable suspicion exists to
justify a stop is based on the totality of the circumstances. United States v. Cortez, 449
U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
{¶ 33} Further, under the automobile exception to the warrant requirement of the
Fourth Amendment, law enforcement may search a motor vehicle without a warrant if the
officer has probable cause to believe the vehicle contains contraband. United States v.
Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Moreover, “[i]f
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.” Id. at
825.
{¶ 34} Probable cause has been defined as “[a] reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a cautious man in
the belief that the person accused is guilty of the offence with which he is charged.” Ash
v. Marlow, 20 Ohio 119, 1851 WL 16 (1851), paragraph one of the syllabus.
10.
Speeding
{¶ 35} R.C. 4511.21 provides in relevant part:
(B) It is prima-facie lawful, in the absence of a lower limit declared
or established pursuant to this section by the director of transportation or
local authorities, for the operator of a motor vehicle * * * to operate the
same at a speed not exceeding the following:
***
(14) Seventy miles per hour on all rural freeways;
***
(C) [I]t is unlawful for any person to exceed any of the speed
limitations in division (D) of this section. * * *
(D) No person shall operate a motor vehicle * * * upon a street or
highway as follows:
***
(4) At a speed exceeding seventy miles per hour upon a freeway as
provided in division (B)(14) of this section; * * *.
Marijuana
{¶ 36} The Supreme Court of Ohio has determined “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.
There need be no other tangible evidence to justify a warrantless search of a vehicle.”
Moore, 90 Ohio St.3d at 48, 734 N.E.2d 804.
11.
Analysis
{¶ 37} Upon review, appellant did not raise the issue of the legal sufficiency of the
traffic stop in his motion to suppress or his assignment of error. Notwithstanding, we
find the record establishes that appellant was properly stopped after the trooper observed
appellant speeding. Appellant challenges his detention after the stop, the probable cause
search of the truck’s cab and the scope of the search. We will address these issues in
turn.
{¶ 38} The record shows that following the lawful traffic stop, Trooper Beyer
smelled and observed marijuana in the truck’s cab, and detained appellant beyond the
time frame required for the traffic stop. We find the odor and sight of marijuana
provided the trooper with reasonable and articulable suspicion of criminal activity
beyond that which prompted the traffic stop for speeding. Thus, we conclude the drug-
related, criminal activity justified Trooper Beyer’s prolonged detention of appellant, and
did not violate appellant’s Fourth Amendment rights.
{¶ 39} With respect to the warrantless search of the truck, we find probable cause
existed to conduct the search. The record contains competent, credible evidence that
Trooper Beyer was adequately qualified to recognize the smell, as well as the sight, of
marijuana. The trooper testified he had specialized training in the recognition and
detection of marijuana and had over 15 years of experience as a law enforcement officer,
which included no less than 1,000 marijuana-related instances. No evidence was
presented to dispute the trooper’s qualification to recognize marijuana. Hence, we find,
based on the evidence in the record and the holding in Moore, that Trooper Beyer had
12.
probable cause to conduct a warrantless search of the truck’s cab, which search did not
violate appellant’s Fourth Amendment rights. Further, pursuant to the holding in Ross,
we find Trooper Beyer was justified in searching the entire cab of the truck.
{¶ 40} We therefore conclude the trial court did not abuse its discretion when it
denied appellant’s motion to suppress. Accordingly, appellant’s assignment of error is
not well-taken.
{¶ 41} The judgment of the Sandusky County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.
Judgment affirmed.
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
Christine E. Mayle, 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/.
13.