State v. Perdue

[Cite as State v. Perdue, 2017-Ohio-8762.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27499
:
v. : Trial Court Case No. 2016-CR-1206
:
IVAN L. PERDUE, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 1st day of December, 2017.
...........
MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DAVID J. FIERST, Atty. Reg. No. 0043954, 2533 Far Hills Avenue, Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
WELBAUM, J.
-2-
{¶ 1} Defendant-appellant, Ivan L. Perdue, Jr., appeals from his conviction in the
Montgomery County Court of Common Pleas following a no contest plea to having
weapons under disability, improperly handling a firearm in a motor vehicle, and
possession of heroin. In support of his appeal, Perdue challenges the trial court’s
decision overruling his motion to suppress evidence that was discovered inside his
vehicle while police officers were assisting him with an alleged medical emergency on the
roadway. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On May 11, 2016, the Montgomery County Grand Jury returned an
indictment charging Perdue with one count of having weapons under disability in violation
of R.C. 2923.13(A)(3) and one count of improperly handling a firearm in a motor vehicle
in violation of R.C. 2923.16(B). Thereafter, on May 31, 2016, a second indictment was
returned charging Perdue with one count of possessing cocaine in an amount equal to or
greater than 5 grams, but less than 10 grams, in violation of R.C. 2925.11(A), one count
of possessing heroin in an amount equal to or greater than 5 grams, but less than 10
grams, in violation of R.C. 2925.11(A), and one count of possessing drug paraphernalia
in violation of R.C. 2925.14(C)(1). The charges arose after police officers discovered the
aforementioned drugs and a loaded pistol inside Perdue’s vehicle while the officers were
assisting Perdue with an alleged medical emergency on the roadway in Moraine, Ohio.
{¶ 3} Following the indictments, on June 14, 2016, Perdue filed a motion to
suppress the evidence discovered inside his vehicle. A hearing on the motion was held
-3-
on August 19, 2016, during which the State presented testimony from the following
Moraine police officers who assisted Perdue at the scene: Officer Matthew Barrie, Officer
Justin Eller, and Officer Molly Hayden. Perdue also testified in his defense at the
hearing.
{¶ 4} Officer Barrie testified that on the evening of April 17, 2016, a concerned
citizen approached him and advised that there was a driver at the intersection of Main
Street and Venetian Way who might be intoxicated. The citizen advised Barrie that the
driver was sitting in his vehicle at the traffic light, but was not moving when the signal
turned green. The citizen further advised that it appeared as if the driver was having
“some kind of issue.” Hearing Trans. (Aug. 19, 2016), p. 10.
{¶ 5} Following this report, Barrie went to the scene and observed the driver, later
identified as Perdue, sitting in his vehicle by himself at the intersection in question.
Barrie testified that he approached Perdue’s vehicle at the driver’s side window, which
was rolled down. Upon his approach, Barrie observed that the vehicle was not running
and that Perdue appeared lethargic. Specifically, Perdue was fumbling around with his
keys and moving very slowly. Barrie testified that when he made contact with Perdue
and asked if he was okay, Perdue could not provide a coherent response and that all of
Perdue’s actions seemed to require a lot of thought. Barrie indicated that Perdue’s
condition was consistent with some kind of medical issue or a heroin overdose.
{¶ 6} Shortly after Barrie made contact with Perdue, Officer Eller arrived at the
scene and approached Perdue’s vehicle. Eller testified that upon approaching, he
observed Barrie speaking with Perdue at the driver’s side window and noticed that Perdue
appeared lethargic and was having difficulty communicating. Eller claimed that Barrie
-4-
advised him that there appeared to be some kind of drug or alcohol abuse issue.
{¶ 7} Officer Hayden, the last officer to arrive at the scene, testified that she initially
observed Barrie and Eller making contact with Perdue at his driver’s side window. As
she approached the vehicle, Hayden observed Barrie and Eller begin to physically assist
Perdue out of his vehicle. Hayden testified that Perdue could not stand and “was
completely out of it.” Hearing Trans. (Aug. 19, 2016), p. 39. Hayden also testified that
it appeared as if Perdue had overdosed on drugs.
{¶ 8} Officer Barrie testified that he did not smell any alcoholic beverage on
Perdue’s person after he assisted Perdue out of his vehicle. Officer Eller, however,
testified that upon assisting Perdue out of his vehicle, he smelled the odor of burnt
marijuana emanating from the vehicle and from Perdue’s person. Officer Hayden also
testified that she smelled the odor of marijuana coming from Perdue’s vehicle while Barrie
and Eller were assisting Perdue.
{¶ 9} Officer Eller, who identified himself as the officer in charge of the scene,
testified that Perdue’s vehicle was searched due to the vehicle smelling of marijuana and
for purposes of inventorying the contents of the vehicle. Eller testified that an inventory
search was necessary because Perdue was in no condition to drive and his vehicle was
blocking traffic and needed to be towed from the roadway.
{¶ 10} Barrie and Hayden also testified that Perdue appeared to be in no condition
to drive. Hayden further testified that it is the Moraine Police Department’s policy to
inventory items in a vehicle before the vehicle is towed. Hayden also identified a copy
of the police department’s tow policy.
{¶ 11} As for the search of Perdue’s vehicle, Hayden testified that she conducted
-5-
the search while Barrie and Eller tended to Perdue and called for medical assistance.
Hayden testified that she began the search by looking inside the vehicle as she walked
around to the passenger side. When she reached the passenger side, Hayden searched
the vehicle’s glove compartment and found a loaded pistol. Barrie and Eller testified that
Perdue was handcuffed and placed in custody once the pistol was discovered. Eller
testified that Perdue was detained for safety purposes until the officers could investigate
the matter further.
{¶ 12} After the pistol was discovered, the search continued and various drugs
were discovered inside Perdue’s vehicle. Although no marijuana was discovered in the
vehicle, Eller discovered a broken marijuana cigarette in Perdue’s pants pocket after
completing a pat down search.
{¶ 13} There is no dispute that Perdue was taken to the hospital once the medics
arrived at the scene. Although the officers believed that Perdue might have been on
drugs, Perdue testified that he was suffering from a diabetic episode due to low blood
sugar. Purdue claimed that he stopped his vehicle at the traffic light in question and
waited to recover from his diabetic episode because he could not continue driving.
Perdue testified that he had eaten some candy a few minutes earlier and was waiting for
the candy to “kick in.” Hearing Trans. (Aug. 19, 2016), p. 48.
{¶ 14} Continuing, Perdue testified that he was incoherent and unable to talk with
the officers when they approached him. While Perdue admitted that he was unable to
communicate, he nevertheless claimed that he understood everything that was
happening during the encounter. Perdue testified that the officers assisted him out of his
vehicle and that he was able to stand on his own by leaning up against his vehicle.
-6-
Perdue also claimed that after he was out of his vehicle, the officers asked if he was
having a medical episode, and that he responded affirmatively by shaking his head “yes.”
Id. at 52.
{¶ 15} Perdue further testified that the officers asked for his license and insurance
information, which he claimed he provided by handing over his entire wallet from his back
pocket. Perdue then recalled being handcuffed a few minutes later, which he noted was
around the same time Officer Hayden was searching his vehicle. Perdue also admitted
to marijuana being found in his pants pocket.
{¶ 16} After considering the testimony and evidence submitted by the parties at
the suppression hearing, the trial court overruled Perdue’s motion to suppress. In
overruling the motion, the trial court explained that it had found the officers’ testimony
credible, and that because the officers detected the odor of marijuana coming from
Perdue’s vehicle, the officers had probable cause to search every compartment and
container inside the vehicle. The trial court also concluded that the inventory search was
subsidiary to the probable cause search since the search of the vehicle was permissible
regardless of whether the inventory search was authorized.
{¶ 17} Following the trial court’s decision overruling the motion to suppress, on
February 3, 2017, Perdue pled no contest to having weapons under disability, improperly
handling a firearm in a motor vehicle, and possession of heroin. In exchange for his no
contest plea, the State agreed to dismiss the remaining charges for possessing cocaine
and drug paraphernalia. Thereafter, the trial court found Perdue guilty of the charges for
which he pled no contest and sentenced him to 18 months in prison on each count. The
trial court ordered the prison terms to be served concurrently for an aggregate prison
-7-
sentence of 18 months.
{¶ 18} Perdue now appeals from his conviction, raising a single assignment of
error for review.
Assignment of Error
{¶ 19} Perdue’s sole assignment of error is as follows:
THE EVIDENCE USED TO CONVICT APPELLANT WAS OBTAINED AS
OF AN ILLEGAL SEARCH AND SEIZURE AND SHOULD HAVE BEEN
SUPPRESSED.
{¶ 20} Under his single assignment of error, Perdue challenges the trial court’s
decision overruling his motion to suppress the evidence discovered in his vehicle.
Perdue contends that the evidence should have been suppressed because it was
discovered as the result of an illegal, warrantless search that violated his Fourth
Amendment rights. Perdue does not challenge the officers’ initial approach and the
investigation as to why he was parked at the traffic light, but only the subsequent search
of his vehicle.
{¶ 21} “In ruling on a motion to suppress, the 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. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7
(2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d
Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept
the trial court’s findings of fact if they are supported by competent, credible evidence.
Accepting those facts as true, we must independently determine as a matter of law,
-8-
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard.’ ” Id., quoting Retherford.
{¶ 22} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures, and a trial court is required to
suppress evidence obtained during an unconstitutional search and seizure. State v.
Davenport, 2017-Ohio-688, 85 N.E.3d 443, ¶ 16 (2d Dist.), citing Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Wong Sun v. United States, 371 U.S. 471, 484-
85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Warrantless searches and seizures are per se
unreasonable under the Fourth Amendment, subject to only a few well recognized
exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576(1967).
{¶ 23} One of the exceptions to the warrant requirement is the automobile
exception, which “allows police to conduct a warrantless search of a vehicle if there is
probable cause to believe that the vehicle contains contraband and exigent
circumstances necessitate a search or seizure.” State v. Mills, 62 Ohio St.3d 357, 367,
582 N.E.2d 972 (1992), citing Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26
L.Ed.2d 419 (1970). (Other citation omitted.) A vehicle’s mobility is the traditional
exigency for the automobile exception to the warrant requirement. Id., citing California
v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Therefore, “[i]f a
car is readily mobile and probable cause exists to believe it contains contraband, the
Fourth Amendment * * * permits police to search the vehicle without more.”
Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996),
citing Carney at 393.
-9-
{¶ 24} “When probable cause is found to exist under the facts and circumstances
of a given case, law enforcement officers have the necessary constitutional justification
to explore any areas in the vehicle, including all movable containers and packages that
may reasonably contain the object of their search.” Davenport at ¶ 23, citing State v.
Shipp, 2d Dist. Montgomery No. 24933, 2012-Ohio-6189, ¶ 33 and State v. Welch, 18
Ohio St.3d 88, 92, 480 N.E.2d 384 (1985).
{¶ 25} “ ‘The smell of marijuana, alone, by a person qualified to recognize the odor,
is sufficient to establish probable cause to conduct a search.’ ” State v. Chase, 2d Dist.
Montgomery No. 25323, 2013-Ohio-2347, ¶ 23, quoting State v. Moore, 90 Ohio St.3d
47, 53, 734 N.E.2d 804 (2000). “There need be no additional factors to corroborate the
suspicion of the presence of marijuana.” Moore at 50. “ ‘[A] law enforcement officer,
who is trained and experienced in the detection of marijuana, should not be prohibited
from relying on his or her sense of smell to justify probable cause to conduct a search for
marijuana.’ ” State v. Thompson, 2d Dist. Montgomery No. 26130, 2014-Ohio-4244,
¶ 40, quoting Moore at 51.
{¶ 26} In this case, Officer Eller and Officer Hayden testified that they smelled the
odor of marijuana emanating from Perdue’s vehicle as Perdue was being assisted out of
his vehicle. Despite Eller and Hayden’s testimony, Perdue argues that the State failed
to establish that the officers had probable cause to search his vehicle. Specifically,
Perdue claims that the officers’ testimony failed to establish that they were sufficiently
qualified to recognize the odor of marijuana.
{¶ 27} Perdue’s argument has no merit because Officer Eller testified that he was
familiar with the odor of burnt marijuana through police academy and FTO training. Eller
-10-
further claimed that during his training, he found multiple bags of raw marijuana, grow
operations, pipes with burnt marijuana, and marijuana cigarettes. As a result, Eller
testified that based on his experience finding these items and based on all his other
training, he is able to tell the difference between raw and burnt marijuana odors.
{¶ 28} Officer Hayden, on the other hand, generally testified that she encounters
drugs two to three times per week in the course of her police duties and that she has been
a police officer for just under two years. Although Officer Hayden’s testimony regarding
her qualifications is sparse and does not specifically address her training and experience
with recognizing the odor of marijuana, Officer Eller’s testimony clearly indicates that he
has been trained and has had experience in detecting the odor of marijuana.
{¶ 29} As a further matter, Perdue never argued in his motion to suppress or at the
suppression hearing that the officers were not qualified to recognize the odor of
marijuana. The defendant in State v. Cunningham, 2d Dist. Montgomery No. 20059,
2004-Ohio-3088 failed to raise the same argument before the trial court and we held that:
“Legal issues which are not raised in the trial court may not generally be raised for the
first time in the appellate court. 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. at ¶ 26, citing State v. Childs, 14
Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. (Other citation
omitted.)
{¶ 30} Even if Perdue had raised the issue of the officers’ qualifications to
recognize the odor of marijuana at the trial level, under the circumstances of this case,
-11-
the trial court did not err in failing to suppress the evidence discovered in Perdue’s vehicle.
Since the trial court found the officers’ testimony credible, there is competent, credible
evidence in the record supporting the trial court’s finding that the officers based their
warrantless search of Perdue’s vehicle on the smell of marijuana emanating from the
vehicle. As previously discussed, the smell of marijuana is, by itself, sufficient to
establish probable cause to conduct a warrantless search when it is detected by a person
qualified to recognize the odor. Moore, 90 Ohio St.3d at 53, 734 N.E.2d 804. Here,
Officer Eller testified that he smelled the odor of marijuana coming from Perdue’s vehicle,
and also testified regarding his training and experience with recognizing the odor of
marijuana. As a result, probable cause existed for the warrantless search of Perdue’s
vehicle. Because there was probable cause to search Perdue’s vehicle, the search falls
under the automobile exception to the warrant requirement, thus making the evidence
obtained during the search admissible.
{¶ 31} In light of the foregoing holding, we need not address the inventory of
Perdue’s vehicle as an alternative justification for the warrantless search. As noted by
the trial court, the inventory search was subsidiary to the probable cause search because
regardless of whether the officers had authority to conduct an inventory search, the
search was lawful based on Officer Eller detecting the odor of marijuana coming from the
vehicle.
{¶ 32} For the foregoing reasons, Perdue’s sole assignment of error is overruled.
Conclusion
{¶ 33} Having overruled Perdue’s sole assignment of error, the judgment of the
-12-
trial court is affirmed.
.............
DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Alice B. Peters
David J. Fierst
Hon. Mary Lynn Wiseman