In re O.N. , 2019 Ohio 4159 ( 2019 )

[Cite as In re O.N., 2019-Ohio-4159.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE O.N. :
: No. 107850
A Minor Child :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 10, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-18106753
Appearances:
Susan J. Moran, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Ashley Gilkerson, Assistant Prosecuting
Attorney, for appellee.
PATRICIA ANN BLACKMON, J.:
Appellant O.N. appeals from the order of the Cuyahoga County
Court of Common Pleas, Juvenile Division, adjudicating him delinquent by reason
of improper handling of a firearm in a motor vehicle and carrying a concealed
weapon. He assigns the following error for our review:
[O.N.] was denied effective assistance of counsel in violation of
Amendments VI and XIV [of the] United States Constitution and
Article I, Section 10 [of the] Ohio Constitution for failing to file a motion
to suppress evidence.
Having reviewed the record and the controlling case law, we affirm
the decision of the trial court.
Following a traffic stop on April 8, 2018, O.N. was charged in a two-
count complaint with improper handling of a firearm in a motor vehicle and carrying
a concealed weapon. The case proceeded to trial on June 20, 2018.
Shaker Heights Police Patrolman Chris Spinos (“Officer Spinos”)
testified that he observed a Ford pickup truck make multiple turn signal violations.
After Officer Spinos activated his siren to stop the truck, the passenger looked back
at him and ducked toward the floorboard. While speaking with the driver, Officer
Spinos detected the odor of marijuana coming from inside the vehicle. The officer
asked the driver and passenger O.N. to exit the vehicle.
Shaker Heights Police Patrolman Daniel Saggio (“Officer Saggio”)
searched the driver’s side of the truck interior while Officer Spinos searched the
passenger’s side. Officer Spinos testified that he found a loaded Beretta handgun
directly underneath the passenger seat. According to Officer Spinos, O.N. stated
that he found the weapon on the street and planned to sell it. O.N. also admitted
that he placed the weapon under the passenger seat. The weapon was later
determined to be operable.
Shaker Heights Police Patrolman Alex Oklander (“Officer Oklander”)
testified that he arrived on the scene during the search at the request of Officer
Spinos. After O.N. was arrested, Officer Oklander placed the Beretta handgun in a
property box and transported it to the police station. Officer Oklander testified that
a “drug bag” was also collected at the scene, including 2.99 grams of marijuana and
a scale.
At the conclusion of the trial, the court adjudicated O.N. delinquent
in connection with both charges, and imposed community-control sanctions for
both offenses.
Ineffective Assistance of Counsel Claim
In his sole assigned error, O.N. contends that his trial counsel violated
an essential duty of representation by failing to file a motion to suppress. O.N.
argues that “there was never any evidence * * * that marijuana was ever located in
the vehicle[, so] its smell could not have given rise to probable cause to search the
vehicle.”
A claim of ineffective assistance of trial counsel requires both a
showing that trial counsel’s representation fell below an objective standard of
reasonableness, and that the defendant was prejudiced as a result. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A reviewing
court “must indulge in a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689. The prejudice prong
requires a finding that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different, with
a reasonable probability being “a probability sufficient to undermine confidence in
the outcome.” Id. at 694; see also State v. Bradley, 42 Ohio St. 3d 136, 141-142, 538
N.E.2d 373 (1989). Accord State v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-
Ohio-3186, ¶ 22 (a defendant must “demonstrate that defense counsel’s
performance was seriously flawed and deficient, and that the result of the trial would
have been different had proper representation been afforded.”).
A defense counsel’s failure to file a suppression motion is not per se
ineffective assistance of counsel. State v. Madrigal, 87 Ohio St. 3d 378, 389, 721
N.E.2d 52 (2000). Rather, failure to file a motion to suppress is ineffective
assistance of counsel only if there is a reasonable probability that, had the motion
been filed, it would have been granted. State v. Watts, 8th Dist. Cuyahoga No.
104188, 2016-Ohio-8318, ¶ 17.
A traffic stop constitutes a seizure that implicates Fourth Amendment
protections. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660(1979). Turning to the issue of whether there is a reasonable probability that a
motion to suppress would have been granted in this matter, we note that a police
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.
Dayton v. Erickson, 76 Ohio St. 3d 3, 11, 665 N.E.2d 1091 (1996) (probable cause to
stop driver based on the traffic turn signal violation occurring in the officer’s
presence); State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894 N.E.2d
1204, ¶ 7-8 (driving over white edge line). This court has also concluded that failure
to signal a turn may justify a traffic stop. Cleveland v. Maxwell, 8th Dist. Cuyahoga
No. 104964, 2017-Ohio-4442, ¶ 22 (applying R.C. 4511.39); State v. Newsome, 8th
Dist. Cuyahoga No. 93328, 2010-Ohio-2891, ¶ 24; Rocky River v. Burke, 8th Dist.
Cuyahoga No. 78578, 2002-Ohio-1651 (applying R.C. 4511.39).
Additionally, “[f]urtive movements can provide an officer with the
reasonable suspicion required to continue the detention because the potential of
attack portrays possible criminal activity.” State v. Jenkins, 8th Dist. Cuyahoga No.
91100, 2009-Ohio-235, ¶ 10, citing State v. Sears, 2d Dist. Montgomery No. 20849,
2005-Ohio-3880.
Further, “[t]he smell of marijuana, alone, by a person qualified to
recognize the odor, is sufficient to establish probable cause to conduct a search.”
State v. Moore, 90 Ohio St. 3d 47, 50-51, 2000-Ohio-10, 734 N.E.2d 804, syllabus;
State v. Blevins, 2016-Ohio-2937, 65 N.E.3d 146, ¶ 29 (8th Dist.). In Moore, the
police officer stopped the defendant for running a red light. When the defendant
rolled down his window, the officer “detected a strong odor of fresh burnt marijuana
emanating from the vehicle” and also smelled it on defendant’s person when he
stepped out of the car. Id. at 47. The officer searched the defendant’s vehicle and
the defendant’s person and found drug paraphernalia and marijuana. The trial
court suppressed the evidence from both searches, but the appellate court reversed
the suppression of evidence from the vehicle. Id. The Ohio Supreme Court upheld
both searches. Id. at 53. The court held 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.” Id. at 48. The court also concluded that defendant’s person was
properly searched due to exigent circumstances. Id. at 51-52. Accord State v.
Perryman, 8th Dist. Cuyahoga No. 82965, 2004-Ohio-1120, ¶ 26; State v.
Richmond, 8th Dist. Cuyahoga No. 105036, 2017-Ohio-2860, ¶ 20.
Finally, where the search is lawful under Moore, and a loaded firearm
is discovered, there is no basis for suppression of the firearm. Richmond.
Here, O.N. argues that “there was never any evidence * * * that
marijuana was ever located in the vehicle[, so] its smell could not have given rise to
probable cause to search the vehicle.” However, the Moore court explained that
“[t]here need be no tangible evidence to justify a warrantless search of a
vehicle. * * * [T]here need be no additional factors to corroborate the suspicion of
the presence of marijuana.” Moore, 90 Ohio St.3d at 48-50, 2000-Ohio-10, 734
N.E.2d 804. See also State v. Nesbit, 8th Dist. Cuyahoga No. 107278, 2019-Ohio-
1646. In State v. Richmond, 8th Dist. Cuyahoga No. 105036, 2017-Ohio-2860, this
court explained as follows:
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).
Id. at ¶ 18.
In any event, in this matter, Officer Spinos testified that while
speaking with the driver, he smelled marijuana emanating from the truck, and the
driver admitted that he had marijuana. In addition, Officer Oklander testified that
2.99 grams of marijuana and a scale were recovered in this matter, and were
collected in the “drug bag” of the evidence in this case.
In accordance with all of the foregoing, the sole assigned error is
without merit.
Judgment is 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, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____________________________
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR