State v. Bush

[Cite as State v. Bush, 2011-Ohio-5925.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96495
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDRE L. BUSH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543922
BEFORE: Keough, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: November 17, 2011
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Robert Botnick
T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Andre L. Bush (“Bush”), appeals the trial court’s
decision denying his motion to suppress. For the reasons that follow, we affirm.
{¶ 2} In November 2010, Bush was charged with escape in violation of R.C.
2921.34(A)(1). Bush filed a “motion to dismiss,” which the trial court treated as a
motion to suppress based on the arguments raised within the motion. At the suppression
hearing, the following evidence was presented.
{¶ 3} On the evening of November 2, 2010, Cleveland police officers Eric
Newton and Shane Bauhof were riding in a marked zone car on basic patrol. While
patrolling the area of East 103rd Street and Union Avenue, the officers observed a vehicle
traveling northbound and noticed that its rear license plate was not illuminated, which is a
violation of the traffic laws of the city of Cleveland. The officers activated the zone
car’s overhead lights to effectuate a stop of the vehicle. The vehicle immediately pulled
over and the driver turned off the car’s engine. Both officers exited the zone car; Officer
Newton approached the passenger side of the stopped vehicle and Officer Bauhof
approached the driver’s side.
{¶ 4} Officer Newton testified that as he approached, he could see three
individuals inside the vehicle; the back seat passenger, later identified as Bush, was
shifting back and forth in the seat and making a lot of movements with his head. Officer
Newton testified that these movements caused him “great alarm” because, based on his
experience, such movements typically indicate that the person is concealing or retrieving
something. Officer Newton testified that once he reached the passenger side of the
vehicle, he could smell marijuana and he observed marijuana in the back seat with Bush.
According to Officer Newton, Bush admitted they were “just smoking marijuana.” As
he was standing next to the vehicle, Officer Newton noticed that Bush kept moving his
hands down near his lap and waistband; Bush was ordered multiple times to keep his
hands visible to the officers.
{¶ 5} When asked for identification, Bush said that he did not have any. At that
point, Officer Newton instructed Bush to exit the vehicle. Officer Newton testified that
he placed Bush in handcuffs and while patting Bush down for officer safety, he felt what
appeared to be the cylinder of a revolver. Bush then fled on foot; he was ultimately
apprehended and arrested. On cross-examination, Officer Newton admitted that before
Bush fled, it was his intention to arrest Bush for a minor misdemeanor drug abuse offense
because Bush could not produce identification.
{¶ 6} Bush appeals, raising as his sole assignment of error that the trial court
erred in denying his motion to suppress.
{¶ 7} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8.
In deciding a motion to suppress, the trial court assumes the role of trier of fact. Id. A
reviewing court is bound to accept those findings of fact if they are supported by
competent, credible evidence. Id. But with respect to the trial court’s conclusion of
law, we apply a de novo standard of review and decide whether the facts satisfy the
applicable legal standard. Id., citing State v. McNamara (1977), 124 Ohio App.3d 706,
707 N.E.2d 539.
{¶ 8} Bush first contends that the trial court erred in denying his motion to
suppress because the police lacked reasonable suspicion justifying the stop of the vehicle.
Officers Newton and Bauhof testified that they effectuated the traffic stop because the
temporary license tag affixed in the rear license plate area of the vehicle was not
illuminated, which is a violation of the city of Cleveland’s traffic laws.
{¶ 9} The United States Supreme Court has explained that the Fourth Amendment
allows a police officer to stop and detain an individual if the officer possesses a
reasonable suspicion, based upon specific and articulable facts, that criminal activity
“may be afoot.” Terry v. Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889; see,
also, State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. To justify an
investigative stop, the officer must be able to articulate specific facts that would warrant a
reasonably prudent police officer to believe that the person stopped has committed or is
committing a crime. See Terry at 27.
{¶ 10} A traffic offense meets the requirements under Terry, constituting
reasonable grounds for an investigative stop. State v. Davenport, Cuyahoga App. No.
83487, 2004-Ohio-5020, ¶16, citing State v. Carlson (1995), 102 Ohio App.3d 585, 596,
657 N.E.2d 591; see, also, State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶7-8 (an officer may lawfully stop a vehicle if the officer has a reasonable
articulable suspicion that the operator has engaged in criminal activity, including a minor
traffic violation).
{¶ 11} Cleveland Codified Ordinances (“C.C.O.”) 435.09, which is identical to
R.C. 4503.21, regulates the proper placement of license plates and temporary placards. It
provides that “[n]o person to whom a temporary license placard or windshield sticker has
been issued for the use of a motor vehicle * * * and no operator of that motor vehicle,
shall fail to display the temporary license placard in plain view from the rear of the
vehicle either in the rear window or on an external rear surface of the motor vehicle * *
*.”
{¶ 12} Furthermore, C.C.O. 437.04, which is identical to R.C. 4513.05, addresses
illumination of the rear license plate and provides that “either a tail light or a separate
light shall be so constructed and placed as to illuminate with a white light the rear
registration place, when such registration plate is required, and render it legible from a
distance of fifty feet to the rear.”
{¶ 13} A violation of either C.C.O. 435.09 or 437.04 (or the respective Ohio
Revised Code counterparts) is a minor misdemeanor traffic offense.
{¶ 14} In Wilmington v. Conner (2001), 144 Ohio App.3d 735, 761 N.E.2d 663,
the Twelfth District determined that R.C. 4503.21 and 4513.05 are to be read in
conjunction with each other. Accordingly, the court held that “these statutes can lead
only to the conclusion that when a temporary tag is placed in the rear license plate space,
illumination of the space is required by law. Any other explanation would be contrary to
logic and common sense. If a license plate on the rear of the vehicle is required to be
illuminated so that law enforcement officials can read the letters and numbers, it would
make little sense to find the illumination requirement inapplicable to temporary tags
placed in the exact same position.” Id. at 739.
{¶ 15} We find Connor well-reasoned. When a temporary tag is affixed in the
license plate area on the rear of a vehicle, there is no distinction between a temporary tag
or license plate; thus the area needs to be illuminated. Accordingly, because the
temporary tag affixed to the vehicle in the license plate area was not properly illuminated,
the officers in this case had reasonable grounds for an investigative stop of the vehicle.
{¶ 16} Bush also contends that the trial court erred in denying his motion to
suppress because the officers lacked the requisite reasonable suspicion or probable cause
to detain and search him when there was no basis for the court to conclude that Officer
Newton was qualified to recognize the odor of marijuana.
{¶ 17} Once a police officer has made a legitimate stop of a vehicle, the driver and
passengers may be detained only for as long as the officer continues to have a reasonable
suspicion that there has been a violation of the law. State v. Myers (1990), 63 Ohio
App.3d 765, 771, 580 N.E.2d 61. However, “[i]f during the scope of the initial stop, an
officer discovers additional specific and articulable facts which give rise to a reasonable
suspicion of criminal activity beyond that which prompted the stop, the officer may detain
the vehicle, driver, and passengers for as long as the new articulable and reasonable
suspicion continues.” State v. Waldroup (1995), 100 Ohio App.3d 508, 513, 654 N.E.2d
390.
{¶ 18} 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. There need be
no other tangible evidence to justify a warrantless search of a vehicle.” State v. Moore,
90 Ohio St.3d 47, 48, 2000-Ohio-10, 734 N.E.2d 804. See, also, State v. Evans,
Cuyahoga App. No. 94984, 2011-Ohio-3046. In State v. Hopper, Cuyahoga App. Nos.
91269 and 91327, 2009-Ohio-2711, this court held that the smell of marijuana gives rise
to a reasonable suspicion that the person stopped is engaged in criminal activity and thus,
the police have the right to detain the car’s occupants and search the car.
{¶ 19} Bush argues that there was no basis on which to conclude that Officer
Newton was qualified to recognize the odor of marijuana. Officer Newton testified that
as he reached the passenger side of the vehicle, he could smell marijuana emanating from
inside. He could also see, in plain view, what he suspected was marijuana in the back
seat with Bush. No additional testimony was elicited or given regarding the officer’s
training or experience in marijuana arrests, identification, or detection.
{¶ 20} Therefore, we agree with Bush that no evidence was adduced to establish
that Officer Newton was qualified to recognize the odor of marijuana. See State v.
McKee, Hancock App. No. 5-03-10, 2003-Ohio-5124, and State v. O’Neal, Hancock App.
No. 5-03-05, 2003-Ohio-5122 (upholding suppression when no evidence was presented
that the police officer was qualified to recognize the odor of marijuana). In cases where
no testimony is adduced regarding a police officer’s training, experience, or qualifications
regarding detection and identification of the odor of marijuana, reviewing courts have
held that suppression is proper when the sole basis for arrest or search is the smell or
presence of marijuana. See State v. Birdsong, Stark App. No. 2008 CA 00221,
2009-Ohio-1859; State v. Bradley, Richland App. No. 2003-CA-0040; 2003-Ohio-5914;
State v. Gaus, Ross App. No. 00CA2546, 2001-Ohio-2418.
{¶ 21} However, in this case, even though no testimony was elicited regarding
Officer Newton’s qualifications regarding marijuana identification and detection, the
limited testimony given by Officer Newton regarding the suspected smell and presence of
marijuana, coupled with Bush’s admission to smoking marijuana, created reasonable
articulable suspicion and probable cause justifying further detention of the vehicle and its
occupants, including Bush. Hopper, supra.
{¶ 22} Bush’s final challenge to the trial court’s decision denying his motion to
suppress is that his detention and subsequent search were premised on an arrest for a
minor misdemeanor, which is impermissible pursuant to R.C. 2935.26.
{¶ 23} Absent an exception specified in R.C. 2935.26, a person may not be
arrested for a minor misdemeanor offense. R.C. 2935.26; State v. Jones, 88 Ohio St.3d
430, 2000-Ohio-374, 727 N.E.2d 886; State v. Brown, 99 Ohio St.3d 323,
2003-Ohio-3931, 792 N.E.2d 175. One exception, which applies in this case, is when
the defendant cannot or will not produce sufficient identification. R.C. 2935.26(A)(2).
{¶ 24} In this case, when asked for identification, Bush indicated that he did not
have any. Accordingly, because an exception under R.C. 2935.26 existed, Officer
Newton was permitted to arrest Bush.
{¶ 25} Notwithstanding his inability to present any identification, Bush asks this
court to consider cases where reviewing courts determined suppression was proper when
the police did not attempt to obtain or verify a defendant’s identity when the defendant
could not produce proper identification. See State v. Satterwhite (1997), 123 Ohio
App.3d 322, 704 N.E.2d 259, and State v. Ellison, 148 Ohio App.3d 270,
2002-Ohio-2919, 772 N.E.2d 1222. We find these cases unpersuasive based on the facts
in this case.
{¶ 26} Once Bush was unable to provide identification, Officer Newton instructed
him to exit the vehicle. Officer Newton testified that he placed Bush in handcuffs and
patted him down for officer safety, which was reasonable given Officer Newton’s
testimony that the movements of the back seat passenger caused him “great alarm” and
that he repeatedly had to tell Bush to keep his hands visible to the officers.
{¶ 27} When questioned why he placed Bush in handcuffs, Officer Newton said:
{¶ 28} “We didn’t even know who he even was at that point. We had a male that
was not cooperating with commands to show his hands, was observed shifting his weight
back and forth inside the car at our stop.
{¶ 29} “And when we did approach, again, he was told several times to keep his
hands where they could be seen, and he was not complying. There was a lot of concern
that there may be something there that could harm us.”
{¶ 30} An officer, regardless of whether he has probable cause to arrest, may pat
down a person for weapons when he has reason to believe that he is dealing with an
armed and dangerous individual. Terry at 27. The purpose of this limited search is to
allow an officer to pursue his or her investigation without fear of violence; it is not
intended to provide the officer with an opportunity to ascertain evidence of a crime.
State v. Evans (1993), 67 Ohio St.3d 405, 408, 618 N.E.2d 162.
{¶ 31} In this case, the use of handcuffs and the subsequent search were warranted
based on the totality of the circumstances. Given Officer Newton’s observations prior to
and during the encounter with Bush, Officer Newton’s concerns for his and his partner’s
safety were reasonable and justified the protective detention and search. Although
Officer Newton was going to arrest Bush because he could not produce identification, the
use of handcuffs and the pat-down search were reasonable based on Bush’s prior furtive
movements and refusal to comply with the officer’s directives to keep his hands visible.
See State v. Hubbard, Cuyahoga App. No. 83385, 2004-Ohio-4498. Cf. State v. Huey,
Cuyahoga App. No. 96168, 2011-Ohio-5496 (detention and pat-down search was not
conducted for officer safety, but merely to arrest an individual for a minor misdemeanor;
thus suppression upheld).
{¶ 32} Further, although probable cause existed to arrest Bush for lack of
identification, once he fled during the protective pat-down search, Bush created an
additional basis for his arrest.
{¶ 33} Accordingly, we find that the trial court did not err in denying the motion to
suppress. Bush’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, J., CONCUR