State v. Jones

[Cite as State v. Jones, 2013-Ohio-2375.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010270
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRETT JONES COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 12CR084582
DECISION AND JOURNAL ENTRY
Dated: June 10, 2013
WHITMORE, Judge.
{¶1} Appellant, the State of Ohio, appeals from a judgment of the Lorain County Court
of Common Pleas granting Appellee, Brett Jones’, motion to suppress. This Court reverses.
I
{¶2} On a clear February afternoon, Ohio State Highway Patrol Trooper Daniel
Morrison conducted a traffic stop of a Chevy Impala driven by Jones on the Ohio Turnpike.
Trooper Morrison testified that he witnessed Jones travelling 75 m.p.h. in a 70 m.p.h. zone.
Trooper Morrison further testified that he approached the passenger’s side window, which was
already down, and “immediately [] began smelling an odor of raw marijuana coming from the
vehicle.”
{¶3} Trooper Morrison asked Jones to step out of the car so that he could conduct a
search. While conducting a pat down of Jones, Sergeant Laughlin arrived. According to
Trooper Morrison, Sergeant Laughlin, before having any contact with Trooper Morrison,
2
commented that the car smelled of marijuana. Jones was placed in Trooper Morrison’s cruiser,
while the officers searched the passenger compartment. Trooper Morrison testified that they
found marijuana residue (“shake”) on the passenger’s seat and floor. Trooper Morrison then
proceeded to search the trunk of the car. In the trunk, Trooper Morrison found a backpack
containing Jones’ personal items, 106 grams of marijuana, 60 bindles of heroin, and a brown
brick of heroin (506 grams).
{¶4} Jones was indicted on (1) trafficking in violation of R.C. 2925.03(A)(2), a felony
of the first degree; (2) possession in violation of R.C. 2925.11(A), a felony of the first degree; (3)
possession in violation of R.C. 2925.11(A), a misdemeanor of the fourth degree; and (4) drug
paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree.
{¶5} Jones filed a motion to suppress arguing that the officers did not have probable
cause to search the trunk of the car. After a hearing, the court agreed and granted his motion.
The State now appeals and raises one assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ERRED IN GRANTING MR. JONES’ MOTION TO
SUPPRESS AS THE EVIDENCE RECOVERED FROM HIS VEHICLE WAS
OBTAINED THROUGH A LEGAL SEARCH.
{¶6} In its sole assignment of error, the State argues the court erred in granting Jones’
motion to suppress because the officers had probable cause to search the trunk for marijuana.
We agree.
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, 62 Ohio St.3d 357, 366
(1992). Consequently, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Fanning, 1
3
Ohio St.3d 19 (1982). 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, 124
Ohio App.3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. This Court, therefore, will first
review the trial court’s findings of fact to ensure those findings are supported by competent and
credible evidence. This Court will then review the trial court’s legal conclusions de novo.
{¶7} There has been no challenge to the court’s finding that the initial traffic stop was
constitutionally valid. Accordingly, we limit our review to the search conducted by the officers.
{¶8} The Fourth Amendment of the United States Constitution, applied to the states
through the Fourteenth Amendment, protects persons against unreasonable searches and seizures.
“For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon
probable cause and executed pursuant to a warrant.” State v. Moore, 90 Ohio St.3d 47, 49
(2000). Searches conducted without a warrant are presumptively unreasonable, unless an
exception to the warrant requirement applies. See Payton v. New York, 445 U.S. 573, 586
(1980).
{¶9} The automobile exception is one exception to the warrant requirement. United
States v. Ross, 456 U.S. 798, 807 (1982). “Although the Fourth Amendment recognizes that
individuals have privacy interests in their vehicles, the inherent characteristics of vehicles
‘justif[y] a lesser degree of protection of [the privacy] interests [in them].’” State v. Friedman,
194 Ohio App.3d 677, 2011-Ohio-2989, ¶ 7 (9th Dist.), quoting California v. Carney, 471 U.S.
386, 390 (1985). Provided there is “probable cause to search an entire vehicle, [officers] may
conduct a warrantless search of every part of the vehicle and its contents, including all movable
containers and packages, that may logically conceal the object of the search.” State v. Welch, 18
Ohio St.3d 88 (1985), syllabus. Probable cause is determined by the totality of the
4
circumstances. State v. Steen, 9th Dist. No. 21871, 2004-Ohio-2369, ¶ 5, citing Illinois v. Gates,
462 U.S. 213, 238 (1983).
{¶10} Here, Trooper Morrison testified that he smelled a strong odor of raw marijuana
as he first approached the passenger’s window and that he has been trained to recognize the scent
of the drug. A warrantless search of the passenger compartment is permissible if an odor of
marijuana is detected by a qualified person. Moore, 90 Ohio St.3d at 50 (“[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.”). Jones does not challenge the search
of the passenger compartment. Instead, Jones focuses his challenge on the scope of the search
conducted. Specifically, Jones argues that the officers exceeded the scope of the probable cause
when they searched the trunk of his car.
{¶11} In reaching its factual findings, the trial court stated that it “[r]esolv[ed] the facts
adduced at [the suppression] hearing most favorably to the state of Ohio.” However, at a
suppression hearing the trial judge is not simply to resolve facts in favor of the State; instead, the
judge is to evaluate the evidence and the credibility of the witnesses. See Mills, 62 Ohio St.3d at
366. Nevertheless, we conclude the court’s findings that “Trooper Morrison detected the odor of
raw marihuana emanating from the passenger compartment of [Jones’] vehicle * * * [and]
located raw marihuana scattered on the floor and on the front passenger seat” to be supported by
competent, credible evidence.
{¶12} Trooper Morrison found contraband in his search of the passenger compartment.
Specifically, “[t]here was marijuana shake on the passenger’s floorboard and seat.” After
discovering the marijuana shake in the passenger compartment, Trooper Morrison conducted a
5
search of the trunk. In its judgment entry, the trial court correctly acknowledged that, under
these circumstances, a search of the trunk would have been permissible under the Fourth
Amendment, citing United States v. Ross, 456 U.S. 798 (1982). However, the court also held
that the search of the trunk was unlawful under the Ohio Constitution because the state
constitution provides greater protection than that of the Fourth Amendment.
{¶13} The language of Section 14, Article I of the Ohio Constitution is virtually
identical to the Fourth Amendment. “[W]here the provisions are similar and no persuasive
reason for a differing interpretation is presented, [the Supreme Court of Ohio] has determined
that protections afforded by Ohio’s Constitution are coextensive with those provided by the
United States Constitution.” State v. Robinette, 80 Ohio St.3d 234, 238 (1997). In Robinette, the
Court addressed the issue of whether the Ohio Constitution provided an additional requirement
for officers “to inform an individual, stopped for a traffic violation, that he or she is free to go
before the officer may attempt to engage in consensual interrogation.” Id. at 245. The Ohio
Supreme Court found no persuasive reason to read greater protections into Section 14, Article I
of the Ohio Constitution than those that were already provided by the Fourth Amendment. Id. at
245.
{¶14} Subsequent to Robinette, the Ohio Supreme Court has recognized only one area
where the Ohio Constitution provides greater protection than the Fourth Amendment and that
involves warrantless arrests for minor misdemeanors. See State v. Brown, 99 Ohio St.3d 323,
2003-Ohio-3931. In reaching its conclusion, the Brown Court relied on its analysis in State v.
Jones, 88 Ohio St.3d 430 (2000), where it weighed “the degree to which the governmental action
intrudes upon a person’s liberty and privacy [against] * * * the degree to which the intrusion is
necessary for the promotion of legitimate governmental interests.” Jones at 438. Other than this
6
narrow exception, the Ohio Supreme Court has not recognized any other areas in which Section
14, Article I, of the Ohio Constitution provides greater protection than the Fourth Amendment.
{¶15} The Ohio Supreme Court has found that the Ohio Constitution provides greater
protection than the Fifth Amendment. In granting Jones’ motion to suppress, the trial court
relied on State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255. We conclude that the trial court
misread Farris and, moreover, Farris is inapplicable in this case because it applied Section 10,
Article I of the Ohio Constitution and the Fifth Amendment, while this case involves Section 14,
Article I of the Ohio Constitution and the Fourth Amendment. Robinette and Farris applied two
different provisions of the Ohio and United States Constitutions, and application of Farris to this
case is inappropriate.
{¶16} The Court in Farris held that Section 10, Article I of the Ohio Constitution
provides greater protection than the Fifth Amendment to the United States Constitution. Farris
at ¶ 49. The issue in Farris was whether “evidence obtained as the direct result of statements
made in custody without the benefit of a Miranda warning should be excluded.” Id. The Court
recognized that the Fifth Amendment did not require the exclusion of such evidence, but held
that the Ohio Constitution must provide greater protection. Here, neither the Fifth Amendment,
nor Section 10, Article I of the Ohio Constitution is at issue. Jones is not attempting to exclude
evidence based on statements he made.
{¶17} We further note that Farris is factually distinguishable from the case at hand. In
Farris, the Court was faced with the question of whether an officer may search the trunk of a car
without finding any physical contraband in the passenger compartment. Here, it is undisputed
that Trooper Morrison found contraband (i.e., marijuana shake) on the passenger’s seat and floor.
Therefore, we conclude that we do not need to reach the issue of whether the smell of raw
7
marijuana in the passenger compartment of a vehicle, standing alone, is sufficient to establish
probable cause to search the trunk of the vehicle. Trooper Morrison observed more than just the
smell of marijuana.
{¶18} Factually, this case is more analogous State v. Carmichael, 9th Dist. No.
11CA010086, 2012-Ohio-5923. In Carmichael, the Trooper observed “marijuana seeds, buds,
and stems on the lap of the front seat passenger.” Id. at ¶ 2. In addition, the driver turned over
marijuana from the center console on request, and the Trooper discovered marijuana in the back
seat during his search of the passenger compartment. Id. at ¶ 2-3. While we acknowledge the
concern raised by the dissent, we disagree that the amount of contraband found determines
whether there is probable cause to search the remaining portions of the vehicle. The test is
whether in light of the totality of the circumstances, “there is a fair probability that contraband *
* * will be found in the trunk.” (Internal citations, alterations, and quotations omitted.)
Carmichael at ¶ 9.
{¶19} Neither the trial court nor Jones cites any case to support their position that
Section 14, Article I of the Ohio Constitution prohibits a warrantless search of an automobile
trunk once law enforcement finds contraband in the passenger compartment. Nor are we
persuaded to find additional protections in the Ohio Constitution after weighing “the degree to
which the governmental action intrudes upon a person’s liberty and privacy [against] * * * the
degree to which the intrusion is necessary for the promotion of legitimate governmental
interests.” Jones, 88 Ohio St.3d at 438. The protections provided by the Fourth Amendment and
Section 14, Article I of the Ohio Constitution, as they apply in this case, are coextensive.
{¶20} We conclude that the Ohio Constitution, like the United States Constitution, does
not prohibit warrantless searches of an automobile trunk after law enforcement has found
8
contraband in the passenger compartment. The trial court correctly concluded that this search
would be proper under the United States Constitution, but erroneously decided that Farris
required a different result under the Ohio Constitution. The trial court erred by granting Jones’
motion to suppress, and the State’s sole assignment of error is sustained.
III
{¶21} The State’s sole assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed, and this cause is remanded for further proceedings
consistent with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
9
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS.
BELFANCE, P. J.
DISSENTING.
{¶22} I respectfully dissent. The trooper’s detection of the odor of raw marijuana
coming from the passenger compartment gave him probable cause to search the passenger
compartment of the vehicle. State v. Moore, 90 Ohio St.3d 47, 49-50 (2000); State v. Farris, 109
Ohio St.3d 519, 2006-Ohio-3255, ¶ 50-52. However, once in the car, the trooper discovered
“shake[,]” which the trial court determined was what the officer had smelled. In addition, the
trial court determined that there was no indication the trooper had detected any odor emanating
from the trunk. Notably, the State has not challenged the trial court’s determinations on these
points. Thus, in keeping with Farris, the trial court determined that the trooper had probable
cause to search the passenger compartment of the vehicle but not the trunk. At issue in this case
is whether the trooper’s discovery of a miniscule amount of marijuana on the passenger seat and
floor provided probable cause for him to search a separate and contained part of the vehicle from
which no smell was emanating.
{¶23} The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the
Ohio Constitution both protect individuals from unreasonable searches. With respect to the
Fourth Amendment, the United States Supreme Court has repeatedly stated that “searches
10
conducted outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment-subject only to a few specifically established and
well-delineated exceptions.” (Internal quotations and citations omitted.) (Emphasis omitted.)
California v. Acevedo, 500 U.S. 565, 580 (1991).1 One such exception is the “automobile
exception,” which was first enunciated in Carroll v. United States, 267 U.S. 132 (1925). In that
case, which was decided during the Prohibition era, police engaged in a warrantless seizure and
search of a vehicle that was suspected to contain contraband alcohol. See id. at 160-162. In
upholding the warrantless search, the United States Supreme Court repeatedly emphasized that
the Fourth Amendment protects citizens from unreasonable searches. Id. at 147. However, it
determined that the seizure and search of the vehicle was reasonable given that “the vehicle can
be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id. at
153. Essentially, the Court held that the vehicle’s mobility creates an exigent circumstance
excepting it from the warrant requirement.
{¶24} However, it is important to place Carroll in its time. While courts have
consistently followed Carroll without giving its rationale much thought, Carroll was decided
prior to any police department in the country putting radios in police cars. Lewis Coe, Wireless
Radio: A Brief History, 128 (1996) (Police cars were not regularly equipped with radio receivers
until the late 1920s, and two-way radios did not become common until the mid-1930s.). In a
time before police cars were even equipped with radios, it would have been impracticable, if not
impossible, for officers to obtain a warrant or even speak with a judge or magistrate before a
vehicle eluded them. Even if there were two police cars, meaning one could follow the
1
However, as Justice Scalia noted in his concurring opinion, the United State Supreme Court has
continually expanded its list of exceptions, meaning “the ‘warrant requirement’ had become so
riddled with exceptions that it was basically unrecognizable.” Acevedo at 582 (Scalia, J.,
concurring in the judgment); see also id. (listing 13 exceptions to the warrant requirement).
11
suspected vehicle while the officers in the other car went to secure a warrant, there would have
been no way for the police to find the suspected vehicle again given that they could not
communicate with the car that remained behind to follow the suspects. Essentially, to obtain a
warrant, the officers would have had to give up following the vehicle and hope to find it again
later.
{¶25} Whether an exigency exists that justifies acting without a warrant depends on the
totality of the circumstances. Missouri v. McNeely, — U.S. —, 133 S.Ct. 1552, 1559 (2013).
Because of the technological limitations listed above, it is easy to see why the Carroll Court
would treat an automobile as essentially being a per se exigent circumstance. However,
“technological developments that enable police officers to secure warrants more quickly, and do
so without undermining the neutral magistrate judge’s essential role as a check on police
discretion, are relevant to an assessment of exigency[,]” and there have been many technological
developments in the 88 years since Carroll was decided. McNeely at 1562-1563. Radios are
now an integral part of every police car as well as the advent of other forms of communication,
meaning the concerns existing at the time Carroll was decided have been dramatically reduced if
not eliminated entirely. In fact, we are fast approaching a time where officers could use a
technology similar to Facetime or Skype to swear out an affidavit remotely before a magistrate
while the magistrate signs a warrant and electronically returns it to the officer. Unfortunately,
the existing jurisprudence fails to account for these dramatic changes in technology, which call
into question the reasonableness of the exigency rationale in the context of a warrantless search
of an automobile.2
2
However, some state courts have held that their state constitutions require a showing of
exigency beyond the mobility of the vehicle to justify a warrantless search. See, e.g.,
Pennsylvania v. Perry, 568 Pa. 499, 504 (2002) (“[U]nder Pennsylvania law, for a warrantless
12
{¶26} In addition, when Carroll was decided, there was no basis upon which to stop or
detain a person absent probable cause, a fact that formed the basis of the Court’s reasoning in
that case. See Carroll, 267 U.S. at 155-157. However, subsequent to the landmark decision of
Terry v. Ohio, 392 U.S. 1 (1968), officers are now able to stop and detain citizens without
probable cause but rather upon reasonable, articulable suspicion of criminal activity. Id. at 21.
See also State v. Widner, 69 Ohio St.2d 267, 269 (1982) (applying Terry to a vehicle stop). See
also State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7, citing Delaware v. Prouse, 440
U.S. 648, 663 (1979) (“[A] traffic stop is constitutionally valid if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to commit a
crime.”). Thus, officers now have the ability, unavailable when Carroll was decided, to seize
citizens for less than probable cause.3 While an officer who stops an individual upon reasonable,
articulable suspicion must allow the individual to proceed about his or business once the officer’s
suspicion has been satisfied, the officer may also continue the detention should new facts be
discovered which may ultimately rise to the level of probable cause to continue the seizure as
search of a motor vehicle to be valid, there must be a showing of both probable cause and
exigent circumstances.”) (Emphasis omitted.); Nevada v. Harnisch, 114 Nev. 225, 228-229
(1998) (“[T]he Nevada Constitution requires both probable cause and exigent circumstances in
order to justify a warrantless search of a parked, immobile, unoccupied vehicle.”); New Mexico
v. Gomez, 122 N.M. 777, 788 (1997).
3
It is important to note that not every automobile stop will entail a search but every stop does
entail a seizure. Although it is apparent that these are not equally invasive, the United States
Supreme Court continued to treat seizures and searches as equally invasive despite probable
cause generally being required to conduct a search while seizures may be effected on reasonable,
articulable suspicion in the wake of Terry. See Chambers v. Maroney, 399 U.S. 42, 52 (1970)
(“For constitutional purposes, we see no difference between on the one hand seizing and holding
a car before presenting the probable cause issue to a magistrate and on the other hand carrying
out an immediate search without a warrant.”). While a seizure is invasive, searches are
necessarily more invasive given that a search involves delving into one’s personal and private
belongings. See Chambers at 63 (Harland, J., concurring in part and dissenting in part) (“[I]n the
circumstances in which this problem [(a seizure or a search)] is likely to occur, the lesser
intrusion will almost always be the simple seizure of the car for the period-perhaps a day-
necessary to enable the officers to obtain a search warrant.”).
13
well as to conduct a search. Berkemer v. McCarty, 468 U.S. 420, 439-440 (1984) (“[T]he stop
and inquiry must be reasonably related in scope to the justification for their initiation. Typically,
this means that the officer may ask the detainee a moderate number of questions to determine his
identity and to try to obtain information confirming or dispelling the officer’s suspicions. But
the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer
with probable cause to arrest him, he must then be released.”) (Internal quotations and citations
omitted.). In addition, Carroll was decided at a time when the United States Supreme Court had
not yet determined that a sniff around a vehicle is not a search within the meaning of the Fourth
Amendment. Illinois v. Caballes, 543 U.S. 405, 408-410 (2005). Thus, in a case of a traffic stop
where an officer suspects that the car contains illegal narcotics, the stop may be instantly
coordinated with a drug dog that can immediately sniff the vehicle. Moreover, if there is
reasonable articulable suspicion, the initial stop may be extended to allow for the arrival of a
drug-sniffing dog. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 15. Thus, the
advent of technology, drug-sniffing dogs, and the ability to detain a vehicle on less than probable
cause render the exigency rationale expressed in Carroll less compelling than it was in 1925.4
{¶27} Following Carroll, the United States Supreme Court developed a second
justification for the automobile exception: the reduced expectation of privacy rationale. See, e.g.,
Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (“One has a lesser expectation of privacy in a motor
4
The touchstone of the Fourth Amendment is reasonableness measured in objective terms by an
examination of the totality of the circumstances. In the context of evaluating a warrantless
search of an individual stopped in his vehicle, the McNeely court emphasized the application of a
“finely tuned” totality of the circumstances approach when evaluating the reasonableness of a
warrantless search based upon alleged exigent circumstances. (Internal quotations and citation
omitted.) McNeely, 133 S.Ct. at 1559. The Court found that the fact-specific nature of the
reasonableness inquiry demands that courts evaluate each case of alleged exigency on its facts.
Id. at 1563. Applying this approach in keeping with the technological advances outlined above
calls into question whether the continued application of the automobile exception’s per se
exigency rule without consideration of the facts of the case is reasonable.
14
vehicle because its function is transportation and it seldom serves as one’s residence or as the
repository of personal effects. A car has little capacity for escaping public scrutiny. It travels
public thoroughfares where its occupants and its contents are in plain view.”). However, how
items visible in a car are different from those visible in a home through its windows has never
been explained, let alone those items which are concealed from view by being fully underneath a
seat or stored in a trunk. Moreover, unlike the days of the Model T, today American citizens do
actually live in their cars. Many spend countless hours in bottleneck traffic where they eat,
drink, work, watch television and movies, and socialize whether in person or via mobile phones
or iPads. It is not uncommon for a vehicle to be equipped with plugs for computers, compact fax
machines and refrigerators. Nor can it be said that citizens do not store their personal belongings
and effects in areas of their automobiles that are not open to public view. See Katz v. United
States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection. But what he seeks to
preserve as private, even in an area accessible to the public, may be constitutionally protected.”)
(Internal citations omitted.). Although the United States Supreme Court viewed the automobile
as an external location subject to lesser protection, that premise is questionable given the very
different role of the automobile in today’s society. Moreover, although it may be that a citizen
can be said to have a diminished expectation of privacy in an automobile, there is nonetheless an
expectation of privacy. See id.{¶28} Turning to Farris, an officer smelled an odor of burnt marijuana during a traffic
stop and searched the entire vehicle. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at ¶ 1, 5.
The Ohio Supreme Court found that the search of the passenger compartment was permissible
but not the trunk, holding that “[a] trunk and a passenger compartment of an automobile are
15
subject to different standards of probable cause to conduct searches.” Id. at ¶ 51. Although, the
Ohio Supreme Court did not provide further analysis as to why the passenger compartment and
trunk are subject to different standards of probable cause, it is possible that the court was
alluding to the privacy rationale underpinning the “automobile exception” to the warrant
requirement when evaluating the reasonableness of the search, and in doing so, recognized the
distinction between a citizen’s expectations of privacy in the passenger compartment versus the
trunk.5 In other words, while an open and visible passenger compartment may be reasonably
subject to a reduced expectation of privacy, the same is not true of a closed trunk which is
private and not visible for all to see. This is only logical since people use their cars to transport
and store items of value of personal importance and, oftentimes, will keep those items in the
trunk for greater safety (e.g. to hide them from potential thieves walking past parked cars and
looking for valuables lying on the seat). However, the “automobile exception” jurisprudence of
the United States Supreme Court makes no distinction between a passenger compartment and a
trunk. See generally United States v. Ross, 456 U.S. 798, 825 (1982). Thus, to the extent the
Ohio Supreme Court intended in Farris to recognize a citizen’s expectation of privacy in the
trunk of a vehicle for purposes of evaluating probable cause to conduct a warrantless search, it
intended to do so under Article I, Section 14 of the Ohio Constitution.
{¶29} While the Ohio Supreme Court has generally interpreted Article I, Section 14 of
the Ohio Constitution to be coextensive with the Fourth Amendment, it has acknowledged that
deviation may be appropriate in certain cases. See State v. Brown, 99 Ohio St.3d 323, 2003-
Ohio-3931, ¶ 22, quoting State v. Robinette, 80 Ohio St.3d 234, 239 (1997) (“‘[W]e should
5
In alluding to different standards of probable cause, it would appear that the Farris Court was
recognizing the relationship of the privacy interest at stake inherent to the evaluation of the
overall reasonableness of a warrantless search, to the quantum of evidence reasonably necessary
to establish probable cause.
16
harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth
Amendment, unless there are persuasive reasons to find otherwise.’”).6 The automobile
exception may be such an instance. Notably, other states have similarly deviated from the
federal automobile exception cases based on their state constitutions. See, e.g., Oregon v.
Kurokawa-Lasciak, 351 Or. 179, 190 (2011) (“[A]ny search of an automobile that was parked,
immobile and unoccupied at the time the police first encountered it in connection with the
investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively,
the prosecution must demonstrate that exigent circumstances other than the potential mobility of
the automobile exist.”) (Internal quotations and citation omitted.) (Emphasis omitted.); Perry,
568 Pa. at 504; Harnisch, 114 Nev. at 228-229; Gomez, 122 N.M. at 788; Connecticut v. Miller,
227 Conn. 363, 384-385 (1993) (holding that once a vehicle has been impounded, a warrantless
search is no longer permitted under the automobile exception). See also Vermont v. Savva, 159
Vt. 75, 88 (1991) (concluding that mobility did not constitute a per se exigency and that it would
diverge from the federal automobile exception and would “recognize a separate and higher
expectation of privacy for containers used to transport personal possessions than for objects
exposed to plain view within an automobile’s interior”).
{¶30} The majority suggests that Farris is a case solely concerned with the Self-
Incrimination Clause of Article I, Section 10 of the Ohio Constitution. See Farris, 109 Ohio
St.3d 519, 2006-Ohio-3255, at ¶ 9. However, this is simply not the case. See id. (listing five
issues before the Supreme Court for review including “whether the [other four] issues are
irrelevant in this matter because an officer has probable cause to search an entire vehicle,
6
Notably, in Farris, the Court already had deviated from the general rule that essentially
identical provisions of the Ohio and United States Constitutions should be harmonized when it
concluded that Article I, Section 10 provided greater protection than the Fifth Amendment. See
Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at ¶ 45-50.
17
including its trunk, when he smells the odor of burnt marijuana coming from the vehicle”).
Whether an officer has probable cause to search is obviously outside the scope of Article I,
Section 10 of the Ohio Constitution, and, instead, falls firmly within the confines of Article I,
Section 14. While the Supreme Court did analyze whether the defendant’s statements were
inadmissible under Article I, Section 10 of the Ohio Constitution, see id. at ¶ 45-49 (concluding
that Article I, Section 10 of the Ohio Constitution provides greater protection than the Fifth
Amendment), it then went on to determine whether the officer “had probable cause to believe
that the car contained contraband due to his detection of the scent of marijuana and that the
automobile exception to the warrant requirement permitted him to search the vehicle.” Id. at ¶
50. See also id. at ¶ 9.
{¶31} With this in mind, it is necessary to discuss this Court’s representation of Farris’s
holding in State v. Carmichael, 9th Dist. No. 11CA010086, 2012-Ohio-5923. While Carmichael
quotes the statement in Farris that “[t]he automobile exception does not apply in this case[,]” it
plucks that statement from its context and attempts to paint Farris as a search incident to arrest
case. See Carmichael at ¶ 12, quoting Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at ¶ 52.
However, what the Farris majority actually said was as follows:
The odor of burnt marijuana in the passenger compartment of a vehicle does not,
standing alone, establish probable cause for a warrantless search of the trunk of
the vehicle. No other factors justifying a search beyond the passenger
compartment were present in this case. The officer detected only a light odor of
marijuana, and the troopers found no other contraband within the passenger
compartment. The troopers thus lacked probable cause to search the trunk of
Farris’s vehicle. Therefore, the automobile exception does not apply in this case.
(Internal citation omitted.) Farris at ¶ 52. In other words, the evidence discovered as a result of
the officer’s warrantless search was not admissible under the automobile exception because the
officer had lacked probable cause. In fact, at no time was it suggested that the evidence was
18
discovered as a result of a search incident to arrest; rather, the question was always whether the
evidence was admissible under the automobile exception. 7 See Farris at ¶ 6-7. See also State v.
Farris, 9th Dist. No. 03CA0022, 2004-Ohio-826, ¶ 17-19 (upholding the search solely under the
automobile exception). Thus, to the extent that Carmichael treats Farris as a search incident to
arrest, I believe that it is incorrect.
{¶32} In applying Farris to this case, and in keeping with the findings of the trial court,
the question arises as to whether the trooper had probable cause to conduct a warrantless search
of Mr. Jones’ trunk when there was no evidence the trooper detected any smell emanating from
the trunk and trace amounts of marijuana were found on the floor and passenger seat, which the
trial court decided was the object of the smell. Under the circumstances of this case and
recognizing the distinction between the probable cause to search a trunk versus the search of the
passenger compartment pursuant to Farris, I would conclude that probable cause did not exist to
search the trunk. Rather, I would conclude that the trooper had reasonable articulable suspicion
to engage in further inquiry. Probable cause means “more than bare suspicion: [it] exists where
‘the facts and circumstances within their (the officers’) knowledge and of which they had
reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable
caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States,
338 U.S. 160, 175-176 (1949), quoting Carroll, 267 U.S. at 162. Once probable cause exists, an
officer essentially has the ability to dismantle the vehicle, looking in the upholstery, in the doors,
7
Admittedly, the Farris Court’s citation to State v. Murrell, 94 Ohio St.3d 489 (2002), is
confusing since Murrell was a search incident to arrest case. See Farris at ¶ 51. However,
searches incident to arrest do not involve probable cause, meaning that the Farris Court could
not have been analyzing the search as a search incident to arrest given its discussion of probable
cause. See Murrell at 493 (“[T]he United States Supreme Court in Belton deliberately chose not
to analyze the situation before it under the automobile exception to the warrant requirement,
which is based on probable cause.”) (Emphasis omitted.). See generally New York v. Belton, 453
U.S. 454 (1981); Chimel v. California, 395 U.S. 752 (1969).
19
and in the engines. See, e.g., Carroll, 267 U.S. at 132, 162 (concluding that officers had
probable cause to tear upholstery to locate hidden liquor). See also Ross, 456 U.S. at 821(“When a legitimate search is under way, and when its purpose and its limits have been precisely
defined, nice distinctions between closets, drawers, and containers, in the case of a home, or
between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a
vehicle, must give way to the interest in the prompt and efficient completion of the task at
hand.”). The Fourth Amendment is supposed to protect citizens from unreasonable searches and
seizures, and I cannot believe that an expansive search of a trunk based on a minute amount of
marijuana found in the passenger compartment could be considered reasonable or supported by
probable cause. See Acevedo, 500 U.S. at 569.
{¶33} The majority relies on Carmichael in concluding that it is. However, Carmichael
involved significantly different facts, not least of which were that the front-seat passenger had
“marijuana seeds, buds, and stems” on his lap. Carmichael, 2012-Ohio-5923, at ¶ 2. Moreover,
when asked whether there was contraband in the vehicle, the driver handed the officer “a piece
of folded cardboard containing marijuana from the center console.” See id. at ¶ 10. The officer
in Carmichael also testified that he found some marijuana where the defendant was sitting. Id.
The officer in Carmichael had the driver produce contraband, saw contraband on a passenger,
and found additional contraband where the third passenger was sitting. Id. This is significantly
more evidence of criminal activity by the car’s occupants than the “shake” on the passenger seat
and floor.
{¶34} While I believe that the “shake” provided the trooper with reasonable, articulable
suspicion, to further detain and question Mr. Jones, and perhaps bring a K-9 unit to the scene, in
keeping with Farris, I do not believe that the miniscule traces of marijuana found on the
20
passenger seat and floor provided probable cause to conduct a warrantless search beyond the
passenger compartment of the vehicle. Accordingly, I dissent.
APPEARANCES:
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.
SAMIR HADEED, Attorney at Law, for Appellee.