State v. Richmond

[Cite as State v. Richmond, 2017-Ohio-2860.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105036
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY J. RICHMOND
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-606862-A
BEFORE: Blackmon, J., McCormack, P.J., and Jones, J.
RELEASED AND JOURNALIZED: May 18, 2017
ATTORNEY FOR APPELLANT
Mary Catherine O’Neill Corrigan
Jordan & Sidoti L.L.P.
50 Public Square, Suite 1900
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brandon A. Piteo
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Anthony Richmond (“Richmond”) appeals from the denial of his
motion to suppress evidence obtained during a search of his vehicle. He assigns the
following error for our review:
The trial court erred by failing to grant [Richmond’s] motion to suppress.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision.
{¶3} On June 16, 2016, Richmond was indicted for one count of having a weapon
while under disability, and one count of carrying a concealed weapon with a furthermore
clause alleging that the weapon was loaded. Both charges also contained forfeiture
specifications. Richmond moved to suppress the evidence against him, arguing that it
was obtained as the result of a pretextual and unlawful stop. In opposition, the state
argues that the officers’ initial approach was a consensual encounter and that after this
encounter, the officers had reasonable suspicion and probable cause to justify the
subsequent search of the car.
{¶4} On August 22, 2016, the trial court held a hearing on the motion to suppress.
The state’s evidence demonstrated that around midnight on June 1, 2016, Cleveland
police officers Stephen McGrath and James McClellan assisted another unit with the
investigation of a domestic violence complaint at East 79th Street near Cedar Avenue.
They began patrolling for the suspect, who reportedly fled on foot. The officers drove
slowly from the location of the domestic violence incident, looking for the perpetrator.
The windows of their cruiser were down. The officers smelled marijuana and observed
two individuals sitting in a parked vehicle on East 78th Street near Cedar Avenue. No
one else was in the area, and the officers determined that the smell of marijuana was
coming from the parked car. The officers parked the zone car and approached the
occupants of the parked car.
{¶5} Officer McGrath asked the occupants if they had marijuana in the car, and
Richmond replied that they had already smoked all of it. The officers observed an open
container of Hennessy liquor on the passenger seat of the car so they had both occupants
exit the car and detained them inside the zone car in order to do an investigatory search of
Richmond’s vehicle. During the investigatory search, the officers found a loaded .38
Ruger handgun under the driver’s seat. The officers additionally discovered a small
bag of marijuana during a pat down of Richmond.
{¶6} The trial court denied the motion to suppress and Richmond pled no contest
to the charges. The trial court subsequently found him guilty of both charges and
sentenced him to a total of 30 months of imprisonment. Richmond now appeals.
{¶7} In his sole assigned error, Richmond argues that the trial court erred in
denying his motion to suppress because the initial stop was unlawful.
{¶8} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
the Ohio Supreme Court set forth the standard of review of a ruling on a motion to
suppress as follows:
Appellate review of a motion to suppress presents a mixed question of law
and fact. 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. Consequently, an appellate court
must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1
OBR 57, 437 N.E.2d 583. Accepting these facts as true, the appellate
court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d
539.
Id. at ¶ 8.
{¶9} The Fourth Amendment to the United States Constitution protects “the right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,” and provides that “no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” Ohio Constitution, Article I,
Section 14, is nearly identical to its federal counterpart. State v. Kinney, 83 Ohio St.3d
85, 87, 698 N.E.2d 49 (1998). The warrant requirement is subject to a few specifically
established and well- delineated exceptions. Katz v. United States, 389 U.S. 347, 357,
88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
1. Initial Encounter
{¶10} An officer may approach an individual in a street or other public place for
the purpose of a consensual encounter. State v. Blevins, 8th Dist. Cuyahoga No. 103200,
2016-Ohio-2937, ¶ 25. “‘A consensual encounter is not a seizure, so no Fourth
Amendment rights are invoked. The individual must be free to terminate the consensual
encounter or decline the officer’s request.’” Id., quoting Florida v. Bostick, 501 U.S.
429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Under this rule, a seizure has not
occurred when an officer approaches a vehicle and questions its occupants. Blevins,
citing State v. Boys, 128 Ohio App.3d 640, 642, 716 N.E.2d 273 (1st Dist.1998), and
State v. Johnston, 85 Ohio App.3d 475, 620 N.E.2d 128 (4th Dist.1993).
{¶11} In Blevins, a Cleveland police officer was patrolling parking lots following
reports of cars being broken into in parking lots in that area. The officer encountered
two males sitting in a car with the engine running. As the officer approached the vehicle
to speak with the occupants, he smelled the odor of marijuana and also observed it in the
front middle console. In affirming the trial court’s denial of Blevins’s motion to
suppress, this court stated:
Officer Sistek testified that he approached the vehicle to engage the
occupants in casual conversation. Officer Sistek walked up to Blevins, who
was the driver of the vehicle, and asked him what he was doing. There is
no dispute that at this point Officer Sistek did not violate Blevins’s Fourth
Amendment rights.
Id. at ¶ 24.
{¶12} Similarly, in State v. Franklin, 8th Dist. Cuyahoga No. 99806,
2014-Ohio-1422, the police officers approached a vehicle, and as the passenger opened
his door, the officers immediately smelled the “very, very overwhelming” smell of burnt
marijuana. This court held that the officer’s initial interaction with appellant was a
consensual encounter that did not implicate the Fourth Amendment.
{¶13} In this instance, when the police initially observed Richmond’s parked
vehicle, they immediately detected the odor of burning marijuana coming from that
vehicle. The officers asked Richmond, who was seated in the driver’s seat, if he had
any more marijuana in the vehicle. Richmond reportedly told them that he and his
passenger had already smoked all the marijuana that they had. At this point, no Fourth
Amendment violation occurred. Blevins, 2016-Ohio-2937 at ¶ 24-25.
2. Officers Smell Marijuana
{¶14} In State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000), the Ohio
Supreme Court held:
[T]he 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.
Id. at 48.
{¶15} In Moore, a highway patrol officer stopped a car for running a red light, then
“conducted a search both of the defendant’s person and his vehicle based solely upon the
strong odor of burnt marijuana in the vehicle and on the defendant’s clothing.” Id. In
concluding that there was sufficient probable cause to conduct a search, the court stated:
According to defendant, there must be other tangible evidence of drug use
in order to justify a search. We disagree. * * * [I]f the smell of
marijuana, as detected by a person who is qualified to recognize the odor, is
the sole circumstance, this is sufficient to establish probable cause. There
need be no additional factors to corroborate the suspicion of the presence of
marijuana.
* * * Once a law enforcement officer has probable cause to believe that a
vehicle contains contraband, he or she may search a validly stopped motor
vehicle based upon the well-established automobile exception to the
warrant requirement.
Id. at 51.
{¶16} Similarly, in Blevins, 2016-Ohio-2937, this court stated as follows:
Officer Sistek did not violate Blevins’s Fourth Amendment rights when he
asked Blevins to step out of the vehicle because Officer Sistek had more
than a reasonable suspicion that Blevins was engaged in criminal activity —
he had probable cause of criminal activity once he smelled the marijuana
and saw it in plain view.
Id. at ¶ 27.
{¶17} Similarly, in State v. Perryman, 8th Dist. Cuyahoga No. 82965,
2004-Ohio-1120, this court held that the defendant had not been subjected to an unlawful
search and seizure where a police officer pulled into a parking lot and observed two men
reclining in the front seat of a vehicle. The officers approached the vehicle and knocked
on the window. When the driver rolled the window down, the officer immediately
smelled the “odor of burnt marijuana coming from the car.” Id. at ¶ 3. This court held
that once the officers smelled burnt marijuana emanating from the vehicle, the smell
established “both a reasonable articulable suspicion and probable cause that marijuana
was being used or had just been used by the vehicle’s occupants.” Id. at ¶ 18.
{¶18} Accord State v. Burke, 188 Ohio App.3d 777, 2010-Ohio-3597, 936 N.E.2d
1019 (8th Dist.), en banc (when an officer has probable cause to believe a person has
been smoking marijuana from the smell of marijuana emanating from the vehicle, a
warrantless search is permissible under the automobile exception to the warrant
requirement, but search of the vehicle incident to arrest was impermissible under Arizona
v. Gant, 556 U.S. 129, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)); Franklin,
2014-Ohio-1422 (consensual encounter quickly escalated into reasonable suspicion for an
investigative detention and probable cause for the search of appellant’s vehicle pursuant
to the “automobile exception” once officer detected the odor of burnt marijuana as he
approached car).
{¶19} Richmond complains that the smell of marijuana was simply a pretext for an
unlawful search because no marijuana residue or smoking devices were found during the
search. We note, however, that the Moore court stated, “[t]here need be no additional
factors to corroborate the suspicion of the presence of marijuana.” 90 Ohio St.3d at 50.
Accord State v. Arnold, 2d Dist. Clark No. 2001 CA 55, 2002-Ohio-1779 (although
officer searched based upon smell of marijuana, and no burnt marijuana was found,
credibility determinations were for the trial court); State v. Garcia, 32 Ohio App.3d 38,
39, 513 N.E.2d 1350 (9th Dist.1986) (denial of motion to suppress search based upon
odor of marijuana even though marijuana was not found during the subsequent search).
{¶20} In this matter, the evidence demonstrated that the officers were experienced
in detecting the smell of marijuana and were able to detect that odor as they drove past
Richmond’s parked car, the only car in the immediate area. The officers quickly
determined that the smell emanated from Richmond’s car. They spoke with Richmond
and during this encounter, they continued to smell marijuana from directly within the
vehicle. Once the officers smelled burnt marijuana emanating from the vehicle, the
smell established “both a reasonable articulable suspicion and probable cause that
marijuana was being used or had just been used by the vehicle’s occupants.” During this
lawful search of the vehicle, the loaded firearm was discovered. During a subsequent
pat down of Richmond, a small bag of marijuana was recovered. In accordance with the
foregoing, we concur with the trial court’s determination that Richmond was not subject
to an unlawful search and seizure in this instance.
{¶21} The sole assigned error is without merit.
{¶22} Judgment affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
TIM McCORMACK, P.J., and
LARRY A. JONES, SR., J., CONCUR