State v. Smith , 2013 Ohio 114 ( 2013 )

[Cite as State v. Smith, 2013-Ohio-114.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 12CA3308
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
CARLOS M. SMITH, :
: RELEASED 01/11/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Aaron M. McHenry, Chillicothe, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecutor, and Jeffrey C. Marks, Ross County
Assistant Prosecutor, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} After pleading no contest to complicity to possession of cocaine, Carlos
Smith appeals the trial court’s denial of his motion to suppress. During a traffic stop, he
admitted that he and his passenger had been smoking marihuana and gave the trooper
a small baggie of it. Aside from loose marihuana on Smith’s t-shirt and in the vehicle’s
passenger compartment, the trooper found no other contraband on Smith or in the
vehicle. However, during a pat down search the trooper detected a hard object, which
he believed to be crack cocaine, between the passenger’s buttocks. The trooper
transported Smith and the passenger to a patrol post where the trooper searched both
men again. The trooper found no contraband on Smith but seized crack cocaine from
between the passenger’s buttocks. When confronted with the trooper’s discovery,
Smith made incriminating statements.
{¶2} Smith contends that the statements he made after the trooper found the
Ross App. No. 12CA3308 2
crack cocaine should be suppressed because they were elicited during an
unconstitutional detention. We disagree. At the time Smith made the statements, the
trooper had a reasonable articulable suspicion that Smith was complicit in his
passenger’s possession of crack cocaine. Smith admitted that the pair engaged in one
illegal drug activity together (smoking marihuana), and they gave inconsistent stories
about their travels. Smith and the passenger claimed they were together their entire
time in Ohio, so Smith would have witnessed any drug transactions the passenger
conducted in the state. Smith also gave inconsistent stories about his lodging in Ohio
and claimed he came to the state to buy clothes even though none were in the vehicle.
Moreover, the trooper testified that it is common for criminals to give a suspicious officer
a small bag of marihuana, like Smith did, to “appease” the officer, i.e., to mollify his
suspicions and avoid discovery of a larger stash of drugs. Accordingly, we affirm the
trial court’s judgment.
I. Facts
{¶3} The Ross County grand jury indicted Smith on one count of complicity to
possession of cocaine, a first degree felony, in violation of R.C. 2923.03. Smith filed a
motion to suppress, which the trial court denied after a hearing, challenging the validity
of the traffic stop. Smith later filed a second motion to suppress his statements to law
enforcement.
{¶4} At the hearing on the second motion, Trooper Benjamin Seabolt with the
Ohio State Highway Patrol testified that on August 19, 2010, he initiated a traffic stop of
a rental car for a following too close violation. A video recording of the stop showed it
occurred at approximately 6:23 p.m. Smith was the driver and Christopher Carey was
Ross App. No. 12CA3308 3
the front passenger. As Seabolt approached the vehicle, he smelled a “strong odor of
burnt marihuana emitting from the vehicle.” He saw loose marihuana in the vehicle and
on the t-shirts of Smith and Carey. He Mirandized the men and began to question
Smith. Smith said he was coming from Dayton, Ohio and going to Charleston, West
Virginia. He told Seabolt he had been in Ohio for about a week clothes shopping, but
Seabolt observed no clothing in the vehicle. Then Smith told Seabolt he had only been
in Ohio for a couple of days. Initially, Smith said he stayed with friends and family in
Dayton. Later, he claimed he stayed with his girlfriend but did not know her name.
Smith also did not know Carey’s real name – just his nickname. Smith told the trooper
that he and Carey had been together their whole time in Ohio. The rental car
agreement showed the car had been rented the day before; however, Smith’s uncle was
the only authorized driver.
{¶5} The trooper asked Smith about drugs in the vehicle, and Smith admitted
that he and Carey had been smoking marihuana. After further questioning, Smith
retrieved a baggie that contained approximately 10 grams of marihuana from his crotch
area. Seabolt acknowledged that possession of this amount would only constitute a
minor misdemeanor. He also admitted that the contents of the baggie were probably
never tested, and he only identified it as marihuana based on his training and
experience. Seabolt testified that it is a common technique for people to have drop
baggies, i.e., small baggies, of marihuana to give an officer to “appease the officer so
that they can go on their way.” Seabolt performed a pat down search of Smith, which
revealed no other contraband. However, Seabolt testified that because Smith wore very
tight jean shorts, he could not satisfactorily pat down the area in the back of his shorts.
Ross App. No. 12CA3308 4
Seabolt put Smith in the cruiser. He never gave Smith a citation for the marihuana or
traffic violations. He also never conducted field sobriety tests or determined whether
Smith violated a criminal statute by operating the rental vehicle without authorization.
{¶6} Next, Seabolt questioned Carey, who did not know where the pair was
traveling from. He claimed they just left West Virginia at 11 a.m. that morning and had
only been in Ohio a few hours. Carey also told Seabolt that he and Smith had been
together their whole time in Ohio. Seabolt searched Carey and felt a long, hard object
approximately five or six inches long lodged between Carey’s buttocks. It was a “rock
type hard object and had edges on it.” Seabolt could not positively identify the object at
that time because Carey was being uncooperative. He consistently pulled away from
Seabolt and was “clinching his buttocks.” He kept his feet close together “even after
repeatedly being instructed to not do that and to move his feet apart.” Seabolt testified
that he believed the object was a large quantity of crack cocaine based on his training
and experience. He later testified that he was also concerned the object might be a
weapon. Seabolt handcuffed Carey and secured him in the patrol car while Seabolt and
other troopers searched the vehicle. The troopers found “shake,” i.e. loose marihuana,
spread throughout the passenger compartment of the vehicle. Seabolt had the vehicle
towed because Smith’s uncle, the only authorized driver under the rental agreement,
was not present.
{¶7} Seabolt transported Smith and Carey to a patrol post. They arrived at
approximately 7:45 p.m., roughly one hour and twenty minutes after the initial stop. He
wanted to “afford Mr. Carey the dignity of not having his clothing removed beside * * *
the roadway * * *.” Seabolt brought Smith to the post in part because Seabolt thought
Ross App. No. 12CA3308 5
he would have a complicity charge against Smith for whatever drugs he found on Carey.
Seabolt testified that at the post, Smith was in investigative custody and was not free to
call someone to get him. Less than 10 minutes after their arrival at the post, Seabolt
found approximately 70 grams of crack cocaine in between Carey’s buttocks. Seabolt
searched Smith again, with Smith’s outer shorts removed, and found nothing. Seabolt
testified that he believed this search occurred after the second search of Carey but
before Seabolt questioned Smith again. Seabolt told Smith about the drugs on Carey
and said that Smith was going to be arrested for complicity. Smith told Seabolt that he
could provide the location the drugs came from and made other incriminating
statements. According to Seabolt, Smith made these statements approximately 15
minutes after arriving at the post.
{¶8} The trial court denied the second motion to suppress. Smith pleaded no
contest to the charged offense, and the court found him guilty and sentenced him. This
appeal followed.
II. Assignment of Error
{¶9} Smith assigns one error for our review: “I. THE TRIAL COURT ERRED
WHEN IT DENIED SMITH’S SECOND MOTION TO SUPPRESS.”
III. Motion to Suppress
{¶10} In his sole assignment of error, Smith contends that the trial court erred
when it denied his second motion to suppress. Our review of a trial court’s decision on
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. When considering a motion to
suppress, the trial court acts as the trier of fact and is in the best position to resolve
Ross App. No. 12CA3308 6
factual questions and evaluate witness credibility. Id. Accordingly, we must accept the
trial court’s findings of fact if they are supported by competent, credible evidence. Id.
Accepting those facts as true, we must “independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
Id. at ¶ 8.
{¶11} The Fourth Amendment to the United States Constitution, as applied to
the states through the Fourteenth Amendment, provides: “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and 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.” Section 14, Article I of the Ohio
Constitution also prohibits unreasonable searches and seizures. Because Section 14,
Article I and the Fourth Amendment contain virtually identical language, the Supreme
Court of Ohio has interpreted the two provisions as affording the same protection. State
v. Orr, 91 Ohio St. 3d 389, 391, 745 N.E.2d 1036 (2001).
{¶12} Searches and seizures conducted without a prior finding of probable
cause by a judge or magistrate are per se unreasonable under the Fourth Amendment,
subject to only 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). Once the
defendant demonstrates that he was subjected to a warrantless search or seizure, the
burden shifts to the state to establish that the warrantless search or seizure was
constitutionally permissible. See Maumee v. Weisner, 87 Ohio St. 3d 295, 297, 720
N.E.2d 507 (1999). In this case, law enforcement did not obtain a warrant for any
Ross App. No. 12CA3308 7
purpose.
{¶13} “An officer’s temporary detention of an individual during a traffic stop
constitutes a seizure of a person within the meaning of the Fourth Amendment * * *.”
State v. Lewis, 4th Dist. No. 08CA3226, 2008-Ohio-6691, ¶ 14. A stop is
constitutionally valid if the officer’s decision to stop the motorist for a “ ‘criminal violation,
including a traffic violation, is prompted by a reasonable and articulable suspicion
considering all the circumstances * * *.’ ” State v. Kilbarger, 4th Dist. No. 11CA23,
2012-Ohio-1521, ¶ 15, quoting State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539,
894 N.E.2d 1204, ¶ 8. However, “the officer must ‘carefully tailor’ the scope of the stop
‘to its underlying justification,’ and the stop must ‘last no longer than is necessary to
effectuate the purpose of the stop.’ ” State v. Marcinko, 4th Dist. No. 06CA51, 2007-
Ohio-1166, ¶ 26, quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75
L. Ed. 2d 229 (1983).
{¶14} “ ‘An officer may lawfully expand the scope of the stop and may lawfully
continue to detain the individual if the officer discovers further facts which give rise to a
reasonable suspicion that additional criminal activity is afoot.’ ” Kilbarger at ¶ 16,
quoting Marcinko at ¶ 26. “[T]he officer may detain the driver for as long as that new
reasonable articulable suspicion continues.” State v. Goggins, 6th Dist. No. L-99-1218,
2000 WL 331434, *1 (Mar. 31, 2000). “In deciding whether a reasonable suspicion
exists, courts must examine the ‘ “totality of the circumstances” of each case to
determine whether the detaining officer has a “particularized and objective basis” for
suspecting legal wrongdoing.’ ” State v. Spindler, 4th Dist. No. 01CA2624, 2002 WL
727839, *3 (Apr. 23, 2002), quoting United States v. Arvizu, 534 U.S. 266, 266, 122
Ross App. No. 12CA3308 8
S. Ct. 744, 151 L. Ed. 2d 740 (2002).
{¶15} Smith does not challenge the constitutionality of the initial traffic stop.
However, he contends that at the time the trooper questioned him about the crack
cocaine found on Carey, his detention had become illegal. Smith suggests that after the
trooper conducted two fruitless searches of him and found no contraband in the vehicle
(aside from the “shake” in the passenger compartment), he should have been free to
leave or call someone to pick him up. He argues that when the trooper questioned him
about the crack cocaine, the trooper had no reasonable, articulable suspicion of any
other criminal activity, i.e., Smith’s complicity in Carey’s possession of crack cocaine.
And Smith claims that because he made statements about the crack cocaine during an
unconstitutional seizure, those statements must be suppressed under the exclusionary
rule.
{¶16} “The exclusionary rule operates to exclude evidence obtained by the
government in violation of the United States Constitution.” State v. Helton, 160 Ohio
App.3d 291, 2005-Ohio-1789, 826 N.E.2d 925, ¶ 14 (11th Dist.). “The purpose of this
rule is to deter police misconduct.” Id. “The exclusionary rule reaches not only primary
evidence obtained as a direct result of an illegal search or seizure, but also evidence
that is subsequently discovered and derivative of that prior illegality.” State v.
McLemore, 197 Ohio App. 3d 726, 2012-Ohio-521, 968 N.E.2d 612, ¶ 20 (2d Dist.).
{¶17} It is clear that during the initial detention, the trooper developed a
reasonable, articulable suspicion that Smith was involved in criminal activity – personal
possession of contraband. The trooper smelled burnt marihuana when he approached
the vehicle and saw loose marihuana in the vehicle and on Smith’s person. Then Smith
Ross App. No. 12CA3308 9
gave inconsistent stories about his travels and lodging. Smith admitted to smoking
marihuana and gave the trooper a baggie of it, prompting the trooper to conduct two
searches of his person and a search of the vehicle. But aside from some “shake” in the
vehicle, the trooper found nothing during these searches.
{¶18} At the latest, after the second search of Smith the trooper’s reasonable
and articulable suspicion that Smith personally possessed contraband dissipated. The
trooper chose not to cite Smith for the traffic violation or minor misdemeanor marihuana
possession, so Smith’s continued detention was not justified by the trooper’s need to
write citations. Thus, Smith’s continued detention and questioning about the crack
cocaine was illegal unless the trooper had a reasonable articulable suspicion of Smith’s
involvement in other criminal activity, i.e., his complicity in Carey’s possession of crack
cocaine.
{¶19} The parties do not dispute the facts.1 Instead, they dispute the import of
those facts, i.e., whether they satisfy the applicable legal standard.
{¶20} Smith argues that it is not reasonable to assume a driver of a vehicle
knows his passenger has contraband hidden beneath his pants and between his
buttocks absent other evidence. The State focuses its argument on the constitutionality
of the trooper’s decision to transport Smith to the patrol post – not Smith’s detention at
the time of his statements about the crack cocaine. Thus some of the facts the State
highlights relate to Smith’s personal possession of marihuana, not complicity in Carey’s
possession of crack cocaine: 1.) the odor of marihuana in the vehicle, 2.) the
1
Smith contends that his detention lasted over four hours. While the traffic stop and continued detention
at the patrol post lasted approximately four hours, based on the recordings of the stop and Seabolt’s
testimony, Smith made the incriminating statements he seeks to suppress approximately 95 minutes after
the stop.
Ross App. No. 12CA3308 10
marihuana flakes on Smith and in the vehicle, 3.) Smith’s admission to smoking
marihuana, 4.) the baggie of marihuana Smith gave the trooper, and 5.) the fact that
Smith’s tight shorts hindered the trooper’s initial pat down search.
{¶21} However, additional evidence suggests Smith was complicit in Carey’s
possession of crack cocaine. Smith and Carey were obviously willing to engage in
illegal drug activity together as evidenced by Smith’s admission that the pair had been
smoking marihuana. The pair gave inconsistent stories about the length of their travels.
However, Smith and Carey agreed that they were together their entire time in Ohio, so
Smith would have been with Carey during any drug transactions Carey conducted in the
state. In addition, Smith acted suspicious by operating a rental vehicle without
authorization, giving inconsistent stories about his lodging, and saying he was clothes
shopping in Ohio when there was no clothing in the vehicle.
{¶22} Moreover, Seabolt testified that it is a “common technique, a common
trend for people to have drop Baggies of marihuana, meaning small Baggies of
marihuana, that they’ll give an officer trying to appease the officer so that they can go
on their way.” In other words, it is common for criminals to give a suspicious officer a
token amount of marihuana in the hope that it will quell the officer’s suspicions so he will
not investigate further and find their larger stash of drugs. Thus, the fact that Smith
gave Seabolt a small baggie of marihuana could have been a ploy to detract attention
from the crack cocaine between Carey’s buttocks.
{¶23} We find this to be sufficient evidence to support a conclusion that under
the totality of the circumstances, the trooper had a particularized and objective basis to
suspect Smith was complicit in Carey’s possession of crack cocaine. Accordingly, we
Ross App. No. 12CA3308 11
overrule the sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Ross App. No. 12CA3308 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and the Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
Abele, J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.