State v. Owensby , 2022 Ohio 1702 ( 2022 )

[Cite as State v. Owensby, 2022-Ohio-1702.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellant, : CASE NO. CA2021-08-092
: OPINION
- vs - 5/23/2022
:
CORTEZ OWENSBY, :
Appellee. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2020-08-0998
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellant.
Michele Temmel, for appellee.
PIPER, J.
{¶1} Appellant, the state of Ohio, appeals a decision of the Butler County Court of
Common Pleas granting the motion to suppress of appellee, Cortez Owensby.
I. Facts and Procedural History
{¶2} On July 2, 2020, Detective Mark Hoyle and Detective Marco Caito were on
patrol in an unmarked vehicle at the intersection of Clark Street and Manchester Avenue in
Middletown, Ohio. At some point, Detective Caito received a phone call from a confidential
Butler CA2021-08-092
informant ("CI") who had proven to be highly reliable on prior occasions reporting that
Owensby, a known drug offender, had "a large quantity of drugs" and was leaving the
apartments located at 1505-1507 Manchester Avenue in a white car.
{¶3} Shortly after the CI's call, Detective Hoyle observed Owensby in the front
passenger seat of a white Kia driven by Brandy Carmody. Consistent with the CI report,
the white Kia was seen leaving the Manchester Avenue Apartments. The vehicle then drove
past the detectives on Clark Street. Detective Hoyle began following the vehicle and
reported the license plate information to another nearby unit on patrol, Officer Dennis
Jordan.
{¶4} Officer Jordan ran the plate information and learned that the vehicle was
registered to Carmody. He also learned that she had a suspended driver's license and an
active warrant for her arrest. Within seconds, Officer Jordan observed the white Kia drive
past him.
{¶5} Officer Jordan stopped the white Kia at 4:24 p.m. near Gardner Park.
Carmody was arrested without incident by another officer. Based upon a bulletin he
received earlier in the day, Officer Jordan suspected that Owensby may be in the
possession of a weapon. In that bulletin, the Franklin Police Department reported that
Owensby had recently displayed a gun and threatened Carmody. With that information,
Officer Jordan ordered Owensby out of the car and conducted a weapons pat down. Officer
Jordan felt a large wad of cash in Owensby's pocket but did not remove it at that time.
Owensby admitted he was carrying approximately $2,500 in cash and told Officer Jordan it
was his "stimulus money." Following the weapons pat down, Officer Jordan concluded that
Owensby did not have a weapon and ordered him to sit on a nearby planter.
{¶6} Officer Jordan deployed his canine partner, Koda, and conducted a standard
undirected search of the vehicle. He then commanded Koda to conduct a directed search
-2-
Butler CA2021-08-092
where he pointed to specific areas for Koda to search. Both times, Koda alerted on the
front passenger seat where Owensby had been seated. The canine sniff took
approximately two minutes. At that point, Owensby had been detained approximately 13
minutes. During the canine sniff, Owensby appeared to be "excessively nervous" and was
visibly shaking with his head placed in his hands.
{¶7} Based upon the canine alert, Officer Jordan searched the vehicle for
narcotics. After approximately 13 minutes, Officer Jordan located a drawstring or sling bag
containing approximately 30 grams of marijuana, a minor misdemeanor amount of the
drug.1 Owensby admitted that the marijuana was his. However, Officer Jordan stated that
Owensby remained agitated and extremely nervous.
{¶8} Approximately 27 minutes into the stop, Officer Smith, a former corrections
officer, arrived as backup. Officer Smith was new to the Middletown Police Department and
had only been on the job for a few months. Officer Jordan instructed Officer Smith to do a
"jail type" search on Owensby, meaning that he wanted him thoroughly searched. In the
meantime, Officer Jordan continued searching the passenger compartment for more
contraband.
{¶9} Officer Smith reported back to Officer Jordan that he had searched Owensby
but did not find anything. Owensby was then placed in the back of Officer Smith's cruiser
but was not handcuffed. Officer Jordan then turned off his body microphone so that he
could privately call Detective Hoyle. The two evaluated whether the drugs could still be on
Owensby and discussed what a "large amount" of drugs meant in context of the tip from the
CI. Officer Jordan concluded that the drugs had to be in Owensby's possession and
1. Possession of marijuana in an amount less than 100 grams is a minor misdemeanor. R.C.
2925.11(C)(3)(a)-(b).
-3-
Butler CA2021-08-092
decided to search him personally.
{¶10} Shortly after the "jail type" search, Officer Jordan conducted another search
of Owensby, which he described as a "credit card" search. Officer Jordan explained that
he slid his hands between Owensby's thighs and along his groin. During this process,
Officer Jordan felt a hard, irregular shaped lump with sharp edges concealed in the fly of
Owensby's underwear. Based on his training and experience, Officer Jordan knew that the
fly of men's underwear was a common place to conceal drugs and he immediately
suspected the package contained drugs. Officer Jordan then removed the object and
placed Owensby under arrest. Lab testing confirmed that the package contained
methamphetamine and fentanyl.
{¶11} Owensby was indicted on one count of possession of a fentanyl-related
compound and one count of aggravated possession of drugs.2 Owensby moved to
suppress evidence pursuant to Crim.R. 12(C)(3) and a hearing was held before the court.
At the hearing, Officer Jordan and Detective Hoyle testified. The court admitted Officer
Jordan's cruiser-cam video as an exhibit.
{¶12} Following the hearing, the trial court granted the motion to suppress and
issued a written entry. The state now appeals the trial court's decision, raising one
assignment of error.
II. Appeal
{¶13} THE TRIAL COURT ERRED AS A MATTER OF WELL-ESTABLISHED
FOURTH AMENDMENT LAW WHEN IT GRANTED OWENSBY'S MOTION TO
SUPPRESS THE METHAMPHETAMINE AND FENTANYL POLICE RECOVERED FROM
OWENSBY'S UNDERWEAR.
2. Owensby was also charged with two additional counts in the same indictment for separate conduct that
occurred on July 28, 2020. However, those charges are not applicable to the facts in this appeal.
-4-
Butler CA2021-08-092
{¶14} In its sole assignment of error, the state alleges the trial court erred by
suppressing the methamphetamine and fentanyl recovered from Owensby's underwear.
The constitutionality of the search in this case involves consideration of several different
phases of the entire incident culminating in the final "credit card" search that led to the
discovery of drugs on Owensby's person.
{¶15} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Shaibi, 12th Dist. Warren No. CA2020-07-038, 2021-
Ohio-1352, ¶ 24. The trial court, as the trier of fact, is in the best position to weigh the
evidence to resolve factual questions and evaluate witness credibility. State v. Casey, 12th
Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶ 16. Therefore, when reviewing a trial
court's decision on a motion to suppress, this court is bound to accept the trial court's
findings of fact if they are supported by competent, credible evidence. State v. Lynn, 12th
Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-Ohio-3335, ¶ 15. "An
appellate court, however, independently reviews the trial court's legal conclusions based on
those facts and determines, without deference to the trial court's decision, whether as a
matter of law, the facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist.
Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.
{¶16} The Fourth Amendment to the United States Constitution and Article I, Section
14 of the Ohio Constitution prohibit unreasonable searches and seizures. Bowling Green
v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563 at ¶ 11. The touchstone of the Fourth
Amendment is reasonableness. State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶ 14,
citing Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801 (1991). A passenger in an
automobile involved in a traffic stop is "seized" and may challenge the constitutionality of
the stop. Brendlin v. California, 551 U.S. 249, 251, 127 S.Ct. 2400 (2007). Where a law
enforcement officer has probable cause or an articulable, reasonable suspicion to stop a
-5-
Butler CA2021-08-092
motorist for any criminal violation, including a minor traffic violation, the stop is
constitutionally valid. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996); accord State v.
Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23.
{¶17} The establishment of probable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such activity. State v. Pfeiffer, 12th
Dist. Butler No. CA2003-12-329, 2004-Ohio-4981, ¶ 23. "Probable cause is determined by
examining the historical facts, i.e., the events leading up to a stop or search, 'viewed from
the standpoint of an objectively reasonable police officer.'" Godwin, 2006-Ohio-3563 at ¶
14, quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657 (1996). "[P]robable
cause is a fluid concept—turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully, reduced to a neat set of legal rules." Illinois v.
Gates, 462 U.S. 213, 232, 103 S.Ct. 2317 (1983).
{¶18} The reasonable suspicion standard, on the other hand, is a less demanding
standard than probable cause but still requires more than an officer's undeveloped
suspicion or hunch. State v. Moore, 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-
4908, ¶ 33. Reasonable suspicion is "based on the totality of circumstances 'viewed
through the eyes of the reasonable and prudent police officer on the scene who must react
to events as they unfold.'" State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, ¶ 10,
quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, (1991).
A. Reasonableness of stop and pat down undisputed
{¶19} We begin our analysis by noting that there is no dispute concerning the
reasonableness of the initial stop and the weapons pat down on Owensby. In this case,
Officer Jordan stopped the vehicle because he was aware that Carmody had a warrant for
her arrest and was driving on a suspended license. State v. Watts, 12th Dist. Butler No.
CA2005-08-364, 2007-Ohio-221, ¶ 13 (stop for driving on a suspended license); State v.
-6-
Butler CA2021-08-092
Lung, 12th Dist. Clermont No. CA2018-12-088, 2019-Ohio-2962, ¶ 23 (stop for driving on a
suspended license); State v. Thomas, 6th Dist. Williams No. WM-18-005, 2019-Ohio-2654,
¶ 7 (officer may lawfully stop a vehicle to make an arrest).
{¶20} Furthermore, the weapons pat down of Owensby was permissible for multiple
reasons. First, there is no dispute that Officer Jordan had received a bulletin that Owensby
displayed a gun and threatened Carmody earlier that day. "Once a lawful stop has been
made, the police may conduct a limited protective search for concealed weapons if the
officers reasonably believe that the suspect may be armed or a danger to the officers or to
others." State v. Jimenez, 12th Dist. Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 14.
In this case, Officer Jordan had reasonable suspicion that Owensby was in the possession
of a weapon based upon that bulletin. Furthermore, Officer Jordan was also aware that
Owensby was a known drug offender and that a highly reliable CI had reported that
Owensby had a "large quantity of drugs." As the supreme court has previously held, an
officer's right to conduct a weapons pat down is "virtually automatic when individuals
suspected of committing a crime like drug trafficking, for which they are likely to be armed."
State v. Evans, 67 Ohio St.3d 405, 413 (1993). Accordingly, there was no constitutional
infirmity with the vehicle stop or the weapons pat down of Owensby.
B. Contested aspects of the stop
1. Trial court's decision
{¶21} Consistent with what we listed above, the trial court did not grant the motion
to suppress based upon the stop or the weapons pat down.3 Instead, the trial court focused
its analysis on the "credit card" search leading to the discovery of the drugs. In so doing,
the trial court did not address whether Officer Jordan or Officer Smith had probable cause
3. The trial court did discuss the canine sniff but did not render any conclusions of law.
-7-
Butler CA2021-08-092
to search Owensby. Instead, the trial court's analysis rested almost entirely upon the fact
that Officer Smith failed to locate any drugs on Owensby during the "jail type" search. The
trial court found that since Officer Smith's "jail type" search revealed nothing, that any
"reasonable suspicion" that Owensby was in the possession of drugs had dissipated.4
Therefore, the trial court ruled that Officer Jordan was not permitted to conduct the "credit
card" search and suppressed the evidence from that search. However, in so doing, the trial
court did not explain why the suspicion of criminality dissipated or how the discovery of
marijuana should lead Officer Jordan to abandon his suspicions of criminal activity. The
trial court merely stated:
A review of the totality of the circumstances, especially after
watching the video of the entire stop, does not show, in the
Court's opinion, that Officer Jordan had a reasonable articulable
suspicion that the defendant was engaged in criminal activity.
Even though the CI had provided information in the past that
had led to the arrest and conviction of other individuals, when
numerous searches of the car and the pat-down and
subsequent "jail-search" failed to uncover any other contraband
other than the minor misdemeanor amount of marijuana found
on the initial search of the car, any reasonable and articulable
suspicion was gone. The $2500 in cash found on the defendant
certainly could have been from his stimulus check.
{¶22} The trial court went on to conclude, that "[e]ven if * * * reasonable and
articulable suspicion was still present," only a further brief detention would have been
permissible. The trial court determined that this was not a brief detention and discussed
certain details contained in the cruiser cam video, such as how the officers searched the
vehicle on their "hands and knees."5 With those facts in mind, the trial court found that
4. For reasons unclear, the trial court conducted a Terry analysis rather than a probable cause analysis.
5. The mere duration of a stop, although relevant, is not determinative when an officer is investigating for
reasonable suspicion of criminal activity. "In determining if an officer completed these tasks within a
reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the
circumstances and consider whether the officer diligently conducted the investigation." State v. Grenoble,
12th Dist. Preble No. CA2010-09-011, 2011-Ohio-2343, ¶ 28. E.g., State v. Bolden, 12th Dist. Preble No.
CA2003-03-007, 2004-Ohio-184 (canine sniff 23 minutes after traffic stop was not unconstitutional); State v.
-8-
Butler CA2021-08-092
Owensby's continued detention and the search that led to the discovery of the drugs were
impermissible under the Fourth Amendment and granted the motion to suppress.
2. Owensby's arguments on appeal.
{¶23} Unsurprisingly, Owensby agrees with the trial court's decision granting his
motion to suppress. Although he agrees that the initial stop and weapons pat down were
permissible, he argues that his "continued detention and warrantless searches [were]
blatantly unconstitutional."
{¶24} Owensby further argues that the court was "spot on when it stated that after
the finding of marijuana and $2,500.00 in stimulus money, any reasonable suspicion that
Mr. Owensby was engaged in criminal activity was extinguished."6 Thereafter, Owensby
claims that Officer Jordan "mistakenly" instructed Officer Smith to conduct the "jail type"
search. Owensby claims that Officer Jordan lacked probable cause to secure a warrant for
the search and argues there were no exigent circumstances to justify the warrantless search
of his person. He further maintains that the "jail search" revealed "absolutely nothing" and
alleges he was illegally detained and searched when Officer Jordan conducted the "credit
card" search that led to the discovery of the drugs.
3. The state's argument on appeal
{¶25} The state disagrees with nearly every aspect of the trial court's decision, citing
Beltran, 12th Dist. Preble No. CA2004-11-015, 2005-Ohio-4194 (canine sniff 42 minutes after traffic stop was
not unconstitutional); State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353 (canine sniff
28 minutes after traffic stop was not unconstitutional). Furthermore, once Officer Jordan had probable cause,
he could detain Owensby "as long as reasonably necessary to complete the search of the vehicle." State v.
Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, ¶ 20. Officer Jordan had probable cause to search the vehicle
when the dog alerted, which then later extended to probable cause to search Owensby's person as facts were
developed and reviewed during the investigation, i.e., the discovery of marijuana yet no "large amount" of
drugs found in the vehicle consistent with the otherwise verified information from the CI.
6. Owensby does not adequately explain why "reasonable suspicion" should have ended at this point. After
all, the search of the vehicle did reveal the presence of marijuana. Furthermore, the record reflects that Koda
was trained to detect not just marijuana, but also crack, cocaine, methamphetamine, and heroin.
-9-
Butler CA2021-08-092
both flaws in the court's legal analysis and its factual determinations.7 The state maintains
that the stop and initial pat down were valid. Following chronologically, the state details
each aspect of the stop leading to the eventual conclusion that Officer Jordan possessed
probable cause to search Owensby for drugs and that a warrantless search was necessary
based upon exigent circumstances.
C. Analysis
{¶26} Based upon a thorough review of the record, we find the trial court erred by
granting Owensby's motion to suppress. Because the continuing chain of events leading
up to the warrantless searches and discovery of the drugs are relevant to the issue of
probable cause, we will review each aspect of the stop in succession. In general, courts
should be mindful that, as investigations unfold, the facts and circumstances may change,
and the duration of engagement reasonably expanded.
1. Canine sniff
{¶27} After Carmody was arrested, Officer Jordan reported Owensby's information
to dispatch and was waiting to learn if Owensby had any warrants for his arrest or if he had
the ability to drive the vehicle away from the scene. Therefore, Officer Jordan asked
Owensby to sit on a nearby planter next to the park. Officer Jordan then deployed Koda to
conduct a canine sniff of the white Kia because he had a reasonable and articulable
suspicion that Owensby was involved in criminal activity based upon the tip from the CI.
State v. Bunn, 12th Dist. Preble No. CA2011-08-009, 2012-Ohio-2151, ¶ 22 (informant's tip
provided reasonable suspicion to investigate criminal activity). Moreover, a lawfully
detained vehicle may be subjected to a canine sniff of the vehicle's exterior even without
7. For example, the state criticizes the trial court's focus on the length of the cruiser cam video. Although the
trial court stated that the search lasted 50 minutes, the state maintains that Owensby was detained for only
35 minutes until establishing probable cause. The state maintains that the 50-minute cruiser cam video
contains events occurring after the arrest, such as the time for towing Carmody's vehicle from the scene.
- 10 -
Butler CA2021-08-092
the presence of a reasonable suspicion of drug-related activity. State v. Cochran, 12th Dist.
Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 25. This is because an "exterior sniff by a
trained narcotics dog to detect the odor of drugs is not a search within the meaning of the
Fourth Amendment to the Constitution." Id.{¶28} As noted above, the trial court did not issue any conclusions of law concerning
this aspect of the stop. However, because Owensby claims his continued detention was
"blatantly unconstitutional," we find it necessary to address further. That is, despite his
assertions otherwise, there is no merit to Owensby's claim that the continued stop and
investigation violated his constitutional rights.
{¶29} At the point of the canine sniff, Owensby was legally detained, and Officer
Jordan had reasonable suspicion that Owensby was engaged in criminal activity,
specifically drug-related activity. There is no evidence that the stop was unconstitutionally
prolonged or otherwise impermissible. Koda, Officer Jordan's canine partner, was on patrol
with Officer Jordan and was deployed in less than 10 minutes after the stop. Furthermore,
Owensby was a known drug offender and Officer Jordan had knowledge of the report from
the CI. As a result, not only was the canine sniff "not a search," but Officer Jordan also
possessed reasonable suspicion of drug-related activity and was permitted to dispatch his
canine unit.
2. Warrantless search of the vehicle (automobile exception)
{¶30} Once deployed, Koda quickly alerted Officer Jordan to the presence of
narcotics. There is ample case law that when a trained narcotics dog alerts to the presence
of drugs from a lawfully detained vehicle, an officer has probable cause to search the entire
vehicle for contraband. State v. Maffey, 12th Dist. Clermont No. CA2020-08-045, 2021-
Ohio-2460, ¶ 31; State v. Cruz, 12th Dist. Butler No. CA2013-10-008, 2014-Ohio-4280, ¶
- 11 -
Butler CA2021-08-092
15; State v. Dominguez, 12th Dist. Preble No. CA2011-09-010, 2012-Ohio-4542, ¶ 22.8
Accordingly, once Koda alerted to the presence of narcotics, Officer Jordan was permitted
to search the vehicle without a search warrant.
{¶31} During this search, Officer Jordan searched the main cabin of the car, the
trunk, and other items found in the car, such as a purse. Officer Jordan was later joined by
two additional officers who assisted in the search of the vehicle. Officer Jordan noted that
Owensby appeared excessively nervous during the search. Eventually, Officer Jordan
located a drawstring or sling bag containing marijuana on the passenger side of the vehicle
where Owensby had been seated. Owensby admitted the marijuana was his but remained
agitated and excessively nervous.
3. Searches of Owensby
{¶32} After the discovery of the marijuana, and with all the information he had
available to him at the time, Officer Jordan asked Officer Smith, a less experienced officer,
to conduct a "jail type" search of Owensby's person.
{¶33} The decision to conduct a search under these circumstances is reasonable
under the Fourth Amendment if: (1) probable cause exists to conduct the search, and (2)
an exception to the warrant requirement applies. State v. Young, 12th Dist. Warren No.
CA2011-06-066, 2012-Ohio-3131, ¶ 17. "If the state fails to satisfy either step, the evidence
seized in the unreasonable search must be suppressed." Id.{¶34} As noted above, probable cause does not require the same type of specific
evidence of each element of the offense as would be needed to support a conviction. State
v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179 ¶ 73. Instead, probable cause is a fluid
concept assessing probabilities. Gates, 462 U.S. at 231. In determining whether a law
8. This is known as the "automobile exception" and is a well-established exception to the need for a warrant.
Maffey at ¶ 21.
- 12 -
Butler CA2021-08-092
enforcement officer possessed probable cause to conduct a search, a court must review
the totality of the circumstances known to the officer at the time of the search. State v.
Aslinger, 12th Dist. Preble No. CA2011-11-014, 2012-Ohio-5436, ¶ 13.
a. The two probable cause searches of Owensby were permissible
{¶35} The trial court did not go into specific detail concerning the "jail type" search
of Owensby that was conducted by Officer Smith. The trial court noted that the "jail type"
search was more intrusive than the prior weapons pat down but did not address whether
the search was supported by probable cause. In any event, since Officer Smith was unable
to locate any contraband on Owensby, the trial court concluded that all "reasonable
articulable suspicion" that Owensby was engaged in criminal activity had dissipated and
suppressed the evidence discovered during the subsequent "credit card" search.9
i. "Jail type" search
{¶36} Although Officer Jordan had probable cause to search the entire vehicle under
the automobile exception, the canine hit alone was not enough to establish probable cause
to search Owensby's person. State v. Chapman, 7th Dist. Belmont No. 18 BE 0004, 2019-
Ohio-3339, ¶ 51-53 (no appellate court in Ohio has held that a canine hit, alone, provides
sufficient probable cause to search the occupants of a vehicle), citing State v. Young, 12th
Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶ 22-23 (canine hit on a vehicle is one
factor in the totality of the circumstances test applied to determine the existence of probable
cause). However, this changed, at the very latest when Officer Jordan located the
marijuana. When Officer Jordan found the marijuana, he had probable cause to search
Owensby's person. State v. Moore, 90 Ohio St.3d 47, 50-51 (2000); State v. Blevins, 8th
9. The trial court also determined that there were no exigent circumstances to justify the search because the
stop was a very short drive from the Middletown Police Department and Municipal Court where a judge might
have been presented with an affidavit in support of a search warrant.
- 13 -
Butler CA2021-08-092
Dist. Cuyahoga No. 103200, 2016-Ohio-2937, ¶ 27.
{¶37} In Moore, a police officer stopped a defendant for a traffic violation. Moore at
49. When the defendant rolled down his window, the officer detected the strong odor of
fresh burnt marijuana coming from the vehicle. Id. at 47. When the defendant stepped out
of the vehicle, the officer also detected the odor on the defendant. Id. at 51. The officer
then searched the defendant and the defendant's person, finding drug paraphernalia and
marijuana. Id. at 53.
{¶38} The supreme court accepted review and considered the question of whether
"the odor of burnt marijuana, alone, [was] sufficient to provide probable cause to search a
defendant's motor vehicle" and a defendant's person. Id. at 48. The supreme court
answered affirmatively and upheld both searches because it found that the smell of
marijuana alone by an officer experienced in smelling it was sufficient probable cause to
search the defendant's vehicle and person. Id. at ¶ 50.
{¶39} The facts in this case are not the same as the facts in Moore because there
is no indication that Owensby smelled of marijuana. However, there is a more analogous
case from our sister district that discusses Moore when marijuana is actually observed by
law enforcement. In Blevins, the Eighth District found an officer had probable cause to
search a defendant after smelling marijuana and then observing the drug in plain view. 10
Blevins, 2016-Ohio-2937 at ¶ 35. Similar to this case, the officer in Blevins did not state
that he smelled marijuana on the defendant's person, rather the court determined the officer
had probable cause to search the defendant's person because he had actually seen the
marijuana in the car. Id. In other words, the court found that the facts were "even stronger
than they were in Moore" because the officer did not just smell marijuana, he saw it in plain
10. It is no consequence that possession of marijuana under 100 grams is a minor misdemeanor. State v.
Perryman, 8th Dist. Cuyahoga No. 82965, 2004-Ohio-1120, ¶ 19.
- 14 -
Butler CA2021-08-092
view. Id.{¶40} In this case, Officer Jordan found Owensby's marijuana during the valid
search of the vehicle and Owensby admitted the drugs were his. As in Blevins, this is
enough to constitute probable cause to search Owensby's person. Furthermore, the
discovery of marijuana was not the only fact that supported probable cause. By the time
Officer Jordan asked Officer Smith to conduct the "jail type" search on Owensby, Officer
Jordan had learned of a number of facts to support a finding of probable cause. Here,
Owensby was a known drug offender and Officer Jordan was investigating a tip from a
highly reliable CI that Owensby was leaving the Manchester Avenue Apartments with a
"large quantity of drugs" in a white car. Officer Jordan was made aware of the tip by
Detective Hoyle. State v. Kelley, 4th Dist. Ross No. 10CA3182, 2011-Ohio-3545, ¶ 25 (an
officer may derive knowledge from an informant's tip). Immediately after the CI tip,
Detective Hoyle was able to corroborate certain elements of the tip, for example, that
Owensby was leaving the Manchester Avenue Apartments in a white Kia.
{¶41} After stopping the vehicle, Officer Jordan conducted a brief weapons pat down
on Owensby. Although he did not find a weapon, he noticed that Owensby was in
possession of a large amount of cash. Upon questioning, Owensby admitted that he was
in possession of a large amount of money, approximately $2,500, which he claimed was
his "stimulus money." When Officer Jordan deployed his canine unit, Koda, the unit alerted
to the presence of narcotics on the side of the vehicle where Owensby had been sitting.
With probable cause to search the vehicle, Officer Jordan found marijuana, which Owensby
admitted was his. Despite already finding drugs in the vehicle, Officer Jordan noticed that
Owensby remained excessively agitated and excessively nervous under the circumstances.
State v. Raphael, 12th Dist. Warren Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-
3179, ¶ 24 (nervousness one consideration in probable cause determination). Upon
- 15 -
Butler CA2021-08-092
continued discussion with Detective Hoyle, Officer Jordan concluded that the 30 grams of
marijuana was inconsistent with the CI tip that Owensby was in possession of "a large
quantity of drugs" and therefore determined that the drugs referenced by the CI were likely
on Owensby's person. Considering the facts in their totality, we find that Officer Jordan had
probable cause to search Owensby for drugs. Consequently, a warrantless search of
Owensby was permissible if an exception to the warrant requirement applies. Young, 2012-
Ohio-3131 at ¶ 17.
{¶42} As to that point, the supreme court has recognized that a warrantless search
is justified if there is "imminent danger that evidence will be lost or destroyed if a search is
not immediately conducted." Moore, 90 Ohio St.3d at 52. Because "narcotics are easily
and quickly hidden or destroyed, a warrantless search may be justified to preserve
evidence." Id. Here, because Officer Jordan had probable cause to believe that Owensby
was in the possession of drugs, a warrantless search was justified to remove them because
Owensby could have quickly hidden or destroyed them. State v. Arrasmith, 12th Dist.
Madison No. CA2013-09-031, 2014-Ohio-4173, ¶ 20; State v. Rodriguez, 12th Dist. Butler
No. CA2014-03-073, 2015-Ohio-571, ¶ 20. Accordingly, the "jail type" search conducted
by Officer Smith was reasonable under the Fourth Amendment.
ii. "Credit card" search
{¶43} While the "jail type" search did not lead to the discovery of other contraband,
Officer Jordan questioned the adequacy of the search by Officer Smith, who was much less
experienced and new to the department. This court has previously held that multiple
searches can be justified if the second officer did not observe the original or was concerned
about the adequacy of the search. State v. Wyatt, 12th Dist. Warren No. CA2020-11-076,
2021-Ohio-3146, ¶ 27; State v. Bean, 12th Dist. Butler No. CA2015-07-136, 2016-Ohio-
876, ¶ 17. Here, the record reflects that Officer Jordan did not observe the "jail type" search.
- 16 -
Butler CA2021-08-092
After Officer Smith failed to locate any drugs on Owensby, Officer Jordan called Detective
Hoyle to discuss whether the marijuana was consistent with the CI tip. Concluding that the
drugs had to be on Owensby, Officer Jordan conducted the "credit card" search shortly after
the "jail type" search and stated that he did so because he was concerned about the
adequacy of Officer Smith's search. Upon searching Owensby, Officer Jordan felt a hard,
irregular shaped lump concealed in the fly of Owensby's underwear that turned out to be
methamphetamine and fentanyl. Contrary to the trial court's finding below, we do not find
that Officer Smith's failure to locate any drugs during the "jail type" search dissipated any
concerns of criminal activity. By the time, Officer Jordan conducted the "credit card" search
on Owensby, he had obtained ample evidence justifying a probable cause search of
Owensby's person. When Officer Smith, the less experienced officer, failed to discover
drugs after patting down Owensby, we do not find it unreasonable for Officer Jordan to
question the thoroughness of the search, especially in light of the evidence justifying a
probable cause search. Considering all of the facts and circumstances, we find the "credit
card" search was reasonable, supported by probable cause, and justified based upon
exigent circumstances.
D. Conclusion
{¶44} After reviewing the record, we find the trial court erred by granting Owensby's
motion to suppress. In this case, Officer Jordan had probable cause to search Owensby
for drugs based upon the totality of the circumstances and the warrantless search was
further justified by the existence of exigent circumstances. Accordingly, the state's sole
assignment of error is sustained.
{¶45} Judgment reversed and remanded.
M. POWELL, P.J., and HENDRICKSON, J., concur.
- 17 -