State v. Curry , 2022 Ohio 627 ( 2022 )

[Cite as State v. Curry, 2022-Ohio-627.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210274
TRIAL NO. B-2005513
Plaintiff-Appellant, :
O P I N I O N.
vs. :
ANDRE CURRY, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 4, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Bryan R. Perkins, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Andre Curry was indicted on one count of having weapons while
under a disability after the police located a firearm in the trunk of his vehicle during
a traffic stop. Curry moved to suppress the firearm obtained during the warrantless
search of the trunk, and the trial court granted that motion after a suppression
hearing. The state of Ohio now appeals, claiming in one assignment of error that the
trial court erred in granting the motion to suppress.
{¶2} The state maintains the search of the trunk was justified under the
automobile exception to the warrant requirement. The investigating officer testified
to several key facts that demonstrate probable cause, including detecting the odor of
raw marijuana emanating from the trunk before the search, and the trial court
expressly found the officer credible. Curry characterizes the credibility finding as
“obscure” and unsupported by the record. We accept the credibility finding by the
trial court and conclude the trial court misapplied the law governing the automobile
exception because the facts demonstrate the officer had probable cause to search the
trunk. Consequently, we reverse.
I. Background Facts and Procedure
{¶3} Curry moved to suppress the firearm on the ground that the search of
his trunk was performed without a warrant. At the suppression hearing, Cincinnati
Police Officer Aubrey Pitts acknowledged the absence of a warrant, but indicated he
believed based on certain facts he observed and his training that the trunk contained
raw marijuana and therefore an immediate search was justified.
{¶4} Officer Pitts testified that he was patrolling the area of Gilbert Avenue
and Beecher Street as a member of the police department’s gun task force in the early
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evening of October 19, 2020. On that date, he had been a police officer for over five
years, patrolling on shifts for most of his tenure. He specified his training from
which he learned to distinguish the odor of burnt marijuana from raw marijuana and
to detect marijuana in vehicles.
{¶5} According to Officer Pitts, he stopped the 2019 Honda Civic driven by
Curry due to illegal “heavy window tint” that prevented him from seeing the
occupants inside the vehicle. Officer Pitts approached the “slow-to-stop” vehicle and
ordered Curry and the occupants out of the vehicle due to furtive movements
observed by another officer at the scene. The occupants were handcuffed and placed
in the back of his cruiser. The officer testified that at the same time he smelled the
odor of raw marijuana emanating from the passenger compartment along with the
scent of burnt marijuana. Additionally, the officer stated he detected the odor of raw
marijuana emanating from the unopened trunk of Curry’s vehicle.
{¶6} Inside the passenger compartment, Officer Pitts found a small
amount of raw marijuana, more on the passenger’s side than on the driver’s side. He
then searched the trunk of the vehicle. There, he found no marijuana, but located
the firearm that led to Curry’s indictment for having weapons while under a
disability.
{¶7} Curry testified at the suppression hearing, and that testimony
provided a perspective that differed from the officer’s perceptions. Curry said he
could not smell any marijuana that day in the passenger compartment or emanating
from the trunk, the quantity of drugs was too insignificant to be detected, based on
his experience with the substance, and no raw marijuana had ever been placed in the
trunk of his vehicle.
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{¶8} During closing arguments at the hearing, defense counsel argued the
exclusionary rule required suppression of the firearm. Characterizing as incredible
the officer’s testimony about smelling marijuana from a closed trunk that contained
no marijuana, defense counsel asserted the state failed to present any credible facts
to justify the warrantless search of the trunk based on the automobile exception.
Although the state relied solely on the automobile exception to justify the warrantless
search, defense counsel refuted the application of the other exceptions to the warrant
requirement, concluding that police could not search the trunk, an area where Curry
could not “reach.”
{¶9} To refute defense counsel’s impossibility argument, the assistant
prosecutor directed the trial court to a decision from this court recognizing probable
cause based on police officers’ credible testimony that they perceived the odor of raw
marijuana emanating from a trunk. See State v. Howard, 1st Dist. Hamilton Nos. C-
070174 and C-070175, 2008-Ohio-2706, ¶ 11.
{¶10} After entertaining argument on Curry’s motion, the trial court took the
matter under advisement for a few weeks and then granted the motion to suppress.
In its oral comments explaining the basis of its decision, the court made the
following findings:
The defendant was stopped for tinted windows. After entering the
defendant’s vehicle, the passenger was found to have a nominal
amount of marijuana. The officer testified that his intent was to cite
only the defendant for the tinted windows, a minor misdemeanor, and
give a warning to the passenger. The search of the defendant’s trunk
was then done without consent and extensively due to a small amount
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of marijuana. A firearm was discovered in the trunk. The Court finds
that all of the testimony was credible.
{¶11} The trial court additionally indicated that “the issue is the search of the
trunk and the fact that it was beyond the scope of the stop.” The court referred to
three cases. First, a federal case involving what “scope” means in the context of
consent to search. United States v. Elliott, 107 F.3d 810 (10th Cir.1997). Second, an
Ohio Supreme Court decision holding that the scent of burnt marijuana coming from
the passenger compartment of a defendant’s vehicle did not, standing alone,
establish probable cause for a warrantless search of a trunk. State v. Farris, 109
Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985. Finally, a recent decision from
this court concluding that the scent of burning marijuana, standing alone, did not
support a warrantless search of a trunk. State v. Ulmer, 1st Dist. Hamilton Nos. C-
190304, C-190305 and C-190306, 2020-Ohio-4689.
II. Analysis
A. Decision on Motion to Suppress and Appellate Review
{¶12} An appellate court’s review of 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 assumes
the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” Id. Where a motion to suppress
involves factual issues, the trial court “shall” state its essential findings on the record.
Crim.R. 12(F).
{¶13} We must accept the trial court’s findings of fact if they are supported
by competent and credible evidence. Burnside at ¶ 8. “Accepting these facts as true,
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[we] must then independently determine, without deference to the conclusion of the
trial court, whether the facts satisfy the applicable legal standard.” Id.6
OHIO FIRST DISTRICT COURT OF APPEALS
B. Scope of Motion to Suppress
{¶14} “To suppress evidence obtained pursuant to a warrantless search or
seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the
grounds upon which the validity of the search or seizure is challenged in such a
manner as to give the prosecutor notice of the basis for the challenge.” City of Xenia
v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), paragraph one of the syllabus.
The notice requirement involves “the specific legal and factual grounds upon which
the validity of the search and seizure is challenged.” Id. at 219.
{¶15} Generally, a defendant waives for purposes of appeal grounds for
suppression that are not articulated in the motion to suppress and memorandum of
support, unless they are articulated later without objection by the state and with
permission of the court. See generally id. at 221; State v. Lattimore, 1st Dist.
Hamilton No. C-100675, 2011-Ohio-2863, ¶ 7-9; Moreover, where a defendant
concedes an issue in the lower court, the invited-error doctrine precludes revival of
the abandoned argument on appeal. Ulmer, 1st Dist. Hamilton Nos. C-190304, C-
190305 and C-190306, 2020-Ohio-4689, at ¶ 15.
{¶16} We mention these procedural rules because on appeal Curry presents
legal and factual grounds to support suppression of the firearm, including the
lawfulness of the stop, that he did not present in his written motion or memorandum
in support. In that motion, Curry sought suppression of the evidence seized from his
trunk because the “search of the trunk” was performed under circumstances that did
not fall under any of the recognized exceptions for a “warrantless search”: “[t]here
was no consent given to search the trunk of the vehicle, the contents of the trunk
were not in plain view * * *, there were no exigent circumstances that would allow a
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search for the safety of the officers to extend to a trunk of the vehicle that is not
accessible from inside the vehicle * * * nor was there a crime in progress, that would
justify the warrantless search of the trunk of the vehicle,” “regardless of any
suspicion the officers may have had at the time.”
{¶17} Further, at the suppression hearing, the assistant prosecutor objected
to defense counsel’s attempt to extend the specified legal and factual grounds
asserted in Curry’s written motion. The trial court sustained the objection. Finally,
Curry effectively conceded the lawfulness of the stop, telling the court at the
conclusion of the hearing that “since the [window tinting] law has been changed * * *
it’s basically [the officer’s] opinion whether they can see into the vehicle or not.” On
this record, we conclude Curry waived these new arguments, including the
lawfulness of the stop, for purposes of appeal.
{¶18} Accordingly, we limit our discussion to the legal and factual grounds
presented in the motion to suppress—whether the search of Curry’s vehicle during a
lawful detention fit into a recognized exception to the warrant requirement and was
thus reasonable under the Fourth Amendment to the United States Constitution and
Article 1, Section 14, of the Ohio Constitution.
C. Automobile Exception
{¶19} Warrantless searches are per se unreasonable without prior approval
of a judge or magistrate, subject to a few well-established exceptions. See Katz v.
United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Ulmer, 1st
Dist. Hamilton Nos. C-190304, C-190305 and C-190306, 2020-Ohio-4689, at ¶ 13.
The state maintains the search was constitutionally reasonable based on the
“automobile exception” to the warrant requirement. See United States v. Ross, 456
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U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Moore, 90 Ohio St.3d
47, 51, 734 N.E.2d 804 (2000).
{¶20} The “automobile exception” applies to searches of “validly stopped
motor vehicles” that are supported by an officer’s “probable cause to believe that
[the] vehicle contains contraband.” Moore at 51. Probable cause must be based
upon objective facts that would justify the issuance of a warrant by a magistrate.
Ross at 809; Moore at 49. “[T]he scope of the search is limited by the object of the
search and the places that may conceal the contraband.” Ulmer, 1st Dist. Hamilton
Nos. C-190304, C-190305 and C-190306, at ¶ 13, citing Howard, 1st Dist. Hamilton
Nos. C-070174 and C-070175, 2008-Ohio-2706, ¶ 11.
{¶21} Probable cause to search a vehicle may be based on odors. See Moore
at syllabus (“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.”), quoted in State v. Vega, 154
Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262, ¶ 15. The scope of the search
based on that odor is circumscribed, as “[a] trunk and a passenger compartment of
an automobile are subject to different standards of probable cause to conduct
searches.” Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, at ¶ 51. To
search a trunk, an officer must observe more than just an odor of burnt marijuana in
the passenger compartment. See Farris at ¶ 52, cited in Ulmer at ¶ 17.
{¶22} Curry agrees that under the case law governing the search of trunks
based on the scent of raw marijuana, the objective facts presented through Officer
Pitts’s testimony, if believed, are sufficient to support a finding that raw marijuana
would be found in the trunk. See State v. Gartrell, 3d Dist. Marion No. 9-14-02,
2014-Ohio-5203, ¶ 58; Howard, 1st Dist. Hamilton Nos. C-070174 and C-070175,
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2008-Ohio-2706, at ¶ 11. Officer Pitts detected the odor of raw marijuana emanating
specifically from the trunk, he smelled marijuana in the passenger compartment but
recovered just a small quantity of marijuana, and he had training and experience in
identifying the scent of raw marijuana.
{¶23} The parties disagree as to whether the trial court accepted the
officer’s testimony. The state takes the position that the trial court expressly found
the officer credible, but committed error when the court failed to properly
distinguish the facts of this case from Farris and Ulmer. Curry argues the state’s
argument is based on a faulty premise that trial court accepted Officer Pitts’s
testimony about detecting the scent of raw marijuana emanating from trunk.
{¶24} In support of his position, Curry notes the lower court found “all the
testimony was credible” and two witnesses presented conflicting perspectives. Curry
further points out the trial court ultimately ruled that suppression was appropriate
after weighing the evidence. Curry contends the trial court simply disbelieved the
officer and concluded the officer lacked a lawful basis to extend the scope of the stop
without the detection of the scent of marijuana from the trunk.
{¶25} We are not persuaded by Curry’s position. The state sought to justify
the warrantless search based on the exception for probable-cause-based searches of
automobiles. The state relied on objective facts presented through Officer Pitts’s
testimony, including the key fact concerning the odor of marijuana emanating from
the trunk. As previously mentioned, Crim.R. 12(F) requires the court when
adjudicating a motion to suppress to “state its essential findings on the record.”
Here, the trial court granted the motion to suppress but never stated it found the
officer’s testimony incredible, an “essential finding” for suppression based on the
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governing law and facts at issue in this case. Instead, the trial court made an express
finding of credibility.
{¶26} Relatedly, we are unable say the finding of credibility is not supported
by competent and credible evidence. A trained officer’s testimony concerning the
detection of the odor of marijuana from a closed trunk is not inherently incredible.
See, e.g., Howard, 1st Dist. Hamilton Nos. C-070174 and C-070175, 2008-Ohio-
2706.
{¶27} We are troubled by the absence of marijuana in the trunk, but realize
there could have been a lingering scent of marijuana. The trial court was in the best
position to judge the officer’s credibility. Thus, we defer to the trial court’s
acceptance of Officer Pitts’s testimony, which adequately conveyed his experience
and training with the substance.
{¶28} Finally, we conclude Curry’s concerns about the conflicting
testimony—his versus the officer’s—are unwarranted. In our view, the trial court
directed the credibility comment to the officer’s testimony, but then misapplied the
law concerning the automobile exception to the warrant requirement. That
exception allows a probable-caused based search of a trunk during the lawful
detention of a motorist, even when that probable cause is based primarily on the
odor of raw marijuana emanating from the trunk and is unrelated to the basis for the
traffic stop.
{¶29} Given the circumstances of this case, we hold the trial court erred by
suppressing the firearm recovered from the trunk of Curry’s vehicle. Accordingly, we
sustain the state’s single assignment of error.
III. Conclusion
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{¶30} The judgment of the trial court is reversed, and this cause is remanded
for further proceedings consistent with this decision and the law.
Judgment reversed and cause remanded.
MYERS, P.J., concurs.
BERGERON, J., dissents.
BERGERON, J., dissenting.
{¶31} I agree with the majority that, if the officer actually smelled raw
marijuana wafting from the trunk, that would provide probable cause to search
pursuant to the automobile exception. Our disagreement stems from how we read
the trial court’s decision. The majority indicates that “the trial court expressly found
the officer credible,” which provides its rationale for concluding that the trial court
committed legal error. Majority opinion at ¶ 2. That, however, is not the case. The
trial court, summarizing the testimony, noted only: “The Court finds that all of the
testimony was credible.” It is significant that the officer and Mr. Curry both testified
(painting diametrically opposed pictures of what happened), so the trial judge could
not believe both sets of testimony. A more complete examination of what unfolded
below convinces me that the trial court did not find the officer’s testimony credible,
and therefore I respectfully dissent.
{¶32} It is well-established that appellate courts must accept the factual
findings of a trial court in evaluating a suppression motion when they are supported
by competent, credible evidence. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-
Ohio-201, 96 N.E.3d 262, ¶ 14 (“Appellate review of a ruling on a motion to suppress
presents a mixed question of law and fact * * * [a]n appellate court must accept the
trial court’s findings of fact if they are supported by competent, credible evidence.”);
see State ex rel. Portage Lakes Edn. Assn. v. State Emp. Relations Bd., 95 Ohio St.3d
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533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 39 (“The issue of probable cause in
criminal proceedings is essentially one of fact.”). And if we harbor doubt as to how to
understand the trial court’s conclusion, we must interpret it in a manner consistent
with the judgment. See State v. Bennett, 1st Dist. Hamilton No. C-190181, 2020-
Ohio-652, ¶ 12 (“[W]hen evidence is susceptible to more than one construction, a
reviewing court must give it the interpretation that is consistent with the
judgment.”); Karches v. City of Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350(1988) (“[I]f the evidence is susceptible of more than one construction, we must give
it that interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the trial court’s verdict and judgment.”).
{¶33} With the benefit of that perspective, I see several reasons why the trial
court might not have found the officer’s testimony about a smell of raw marijuana in
the empty trunk plausible. The officer testified that he smelled raw marijuana
emanating from the cab and the trunk of the car before observing anything. He then
saw raw marijuana “shakes” on the passenger side, but in such a trivial amount that
it could not legally provide a basis for arrest. At some point, the officer claims to
have seen marijuana shakes on Mr. Curry’s side of the car as well, though again, in
such a meager amount that it could not be collected as evidence. On redirect, the
officer testified that he also smelled burnt marijuana (albeit not “burning
marijuana”). The nasal detection of raw marijuana allegedly sealed in the trunk
seems to be a pretty remarkable observation since no marijuana (raw, burnt, or
otherwise) turned up. The majority appropriately admits some concern about the
smell of nonexistent raw marijuana, but posits that “there could have been a
lingering scent of marijuana” in the trunk. Majority opinion at ¶ 27. Of course, the
officer never testified to that, and I don’t think we should be bolstering testimony on
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appeal—particularly going out of our way like this to reject the trial court’s
conclusions.
{¶34} Second, the officer insinuated that Mr. Curry attempted to flee by
testifying that another unit “deployed Stop Sticks to stop the car because it continued
to roll * * * [i]f any vehicle attempts to flee us, Stop Sticks are deployed so we don’t
have a high-speed pursuit.” When pressed by defense counsel (and reminded that
body-camera video captured the incident), the officer acknowledged that stop sticks
were not placed directly in front of the car until after the vehicle had stopped and Mr.
Curry was handcuffed. The testimony about the stop sticks is punctuated by
inconsistencies, yet the officer relied on Mr. Curry’s alleged “slow[ness] to stop” as
the originating reason to suspect the vehicle contained contraband. Although the
officer witnessed no furtive movements from any of the occupants of the vehicle, he
claimed that another officer on scene did. Conveniently, that officer did not testify at
the hearing and the testifying officer provided no details on the nature of this
“movement” that apparently justified removing the occupants from the vehicle and
handcuffing them.
{¶35} Third, the officer insisted that no legal standard governed window-tint
violations, which stands at odds with existing law. R.C. 4513.241(A) provides that
the director of public safety “shall adopt rules governing the use of tinted glass * * *
that prevent a person of normal vision looking into the motor vehicle from seeing or
identifying persons or objects inside the motor vehicle.” And we find those
governing rules in the Ohio Administrative Code. Ohio Adm.Code 4501-41-03(A)(2)
(tinting on windshield must have a “light transmittance of not less than seventy per
cent plus or minus three per cent”); Ohio Adm.Code 4501-41-03(A)(3) (tinting on
side windows must have a “light transmittance of not less than fifty per cent plus or
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minus three per cent”). In fact, if no standard existed, it would allow any officer to
pull over any car based on window tint, thus throwing open a wide door to pretextual
stops.
{¶36} The trial court thus confronted (a) smells of burnt and raw marijuana
without any physical evidence of such; (b) a potential exaggeration about the car
seeking to flee (or at least inconsistencies on that score); (c) vagueness on the nature
of any movement in the vehicle, and no first-hand account of it; and (d) a stop for a
window-tint violation when the officer never actually substantiated the grounds for
the stop because he did not believe any legal standard applied. In light of that, it’s
not difficult to see why the smell testimony might raise concerns. Regardless, our job
is to “neither weigh the evidence nor judge the credibility of witnesses.” State v.
Woods, 2018-Ohio-3379, 117 N.E.3d 1017, ¶ 19 (5th Dist.). We defer to the trial court
because “the trial court has had the opportunity to observe the witness’ demeanor,
gestures, and voice inflections that cannot be conveyed to us through the written
record.” State v. Whitfield, 1st Dist. Hamilton No. C-190591, 2020-Ohio-2929, ¶ 12.
Inferences to be drawn from the evidence present factual questions within the
province of the trial court, and “[a] reviewing court can not usurp the function of the
triers of fact by substituting its judgment for theirs.” Simon v. Lake Geauga Printing
Co., 69 Ohio St.2d 41, 45, 430 N.E.2d 468 (1982); Seasons Coal Co. v. City of
Cleveland, 10 Ohio St.3d 77, 81, 461 N.E. 2d 1273 (1984) (“A reviewing court should
not reverse a decision simply because it holds a different opinion concerning the
credibility of the witnesses and evidence submitted before the trial court.”).
{¶37} To support its opinion, the majority determines that the trial court
really meant to find the officer’s testimony fully credible. I’m afraid I just can’t
divine that from the transcript. After all, the trial court explained that the search
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resulted “extensively due to a small amount of marijuana”—not from the smell of raw
marijuana in the trunk. Given the state’s focus on the smell throughout the hearing,
that comment alone suggests the trial court, with the benefit of observing the
testimony described above, discounted the smell of raw marijuana in the trunk as the
basis for probable cause. From that springboard, the trial court proceeded to cite
three cases supporting its decision to suppress the evidence. United States v. Elliot,
107 F.3d 810 (10th Cir.1997) (granting motion to suppress where officer exceeded
scope of consent); State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d
985 (holding that light odor of burnt marijuana does not establish probable cause for
warrantless search of the trunk); State v. Ulmer, 1st Dist. Hamilton Nos. C-190304,
C-190305 and C-190306, 2020-Ohio-4689 (reversing conviction where the officer
did not have probable cause to search the trunk). The citation of these cases further
supports the trial court’s rejection of the state’s theory for probable cause.
{¶38} In Ulmer, for instance, officers stopped the defendant in a parking lot
on suspicion of trespassing. At the hearing on the motion to suppress, one officer
testified that he searched the trunk because he could smell a very strong odor of
marijuana coming from Mr. Ulmer, the immediate vicinity, and the vehicle. We
disagreed with the state’s theory of probable cause, explaining that the odor of
burning marijuana could not support the search of the vehicle’s trunk (because
burning marijuana would be unlikely to be found in the trunk). We specifically
contrasted that situation with a scenario in which an officer testified “that he smelled
raw marijuana or that he was trained to detect the odor of raw marijuana.” Ulmer at
¶ 19. This case provides the exact scenario contemplated by Ulmer, so if the trial
court believed the officer’s testimony about the smell of raw marijuana (as the
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majority concludes), the court would have used that as a fairly obvious reason to
distinguish Ulmer. But that’s not what the trial court did.
{¶39} Similarly, in Farris, the smell of burning marijuana could not be
wielded to justify a search of the trunk. “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.” Farris at ¶ 52. Again, if the trial court reached
the conclusion that the majority envisions, it would have readily distinguished this
result rather than follow it.
{¶40} Admittedly, the trial court could have been clearer in setting forth its
credibility findings. But the majority’s conclusions simply can’t be squared with my
reading of the trial court’s decision. And the record amply supports trial court’s
decision to disbelieve the testimony about the odor of raw marijuana in the trunk. I
accordingly respectfully dissent and would affirm the trial court’s judgment.
Please note:
The court has recorded its own entry this date.
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