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Date: 08-01-2022
Case Style:
STATE OF OHIO vs. PORTER MITCHELL
Case Number: C-210582
Judge:
Beth A. Myers; Presiding Judge
Robert C. Winkler
Ginger S. Bock
concur
Court:
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
On Appeal From The Hamilton County Court of Common Pleas
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney
Defendant's Attorney:
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Description:
Cincinnati, Ohio - Criminal Defense lawyer represented defendant with carrying a concealed weapon and improper handling of a firearm in a motor vehicle charges.
{¶1} Defendant-appellee Porter Mitchell was arrested and charged with
carrying a concealed weapon and improper handling of a firearm in a motor vehicle
after police conducted a warrantless search of a vehicle during a traffic stop and
recovered a loaded handgun from under the front passenger seat where Mitchell had
been sitting. Mitchell filed a motion to suppress the physical evidence and statements
obtained during the traffic stop, and the trial court granted the motion after a hearing.
The state now appeals.
{¶2} Because the search of the vehicle was justified under the automobile
exception to the warrant requirement, we hold that the trial court erred in granting
the motion to suppress, and we reverse the judgment of the trial court.
The Suppression Hearing
{¶3} At the suppression hearing, Madeira Police Officer Danny Spears
testified that at about 10:30 p.m. on April 2, 2021, he saw a vehicle traveling in the
dark with no headlights or taillights on, so he got behind the vehicle and initiated a
traffic stop. He noticed that as the vehicle was coming to a stop, the front-seat
passenger appeared to be “reaching down towards the floorboard or underneath his
seat where he was at.”
{¶4} Officer Spears walked to the driver’s window and noted a very strong
odor of marijuana coming from inside the vehicle. He asked for identification from
the vehicle’s three occupants. Mitchell was the front-seat passenger.
{¶5} The officer asked the occupants if there was anything illegal in the
vehicle. The back-seat passenger acknowledged that there was marijuana inside the
vehicle, and he handed the officer a “blunt” of marijuana, “[l]ike a marijuana cigar.”
In addition, Mitchell told the officer that he had a bong. The officer asked the
occupants to get out of the vehicle, one at a time, because he was going to search the
vehicle.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶6} The officer patted down each of the vehicle’s three occupants before
placing them in the rear of his police cruiser. No one was handcuffed. The back-seat
passenger told the officer that he had some marijuana in his jacket, which was still in
the stopped vehicle. And Mitchell told the officer that the bong was located on the
floorboard of the vehicle.
{¶7} After the occupants were secured in the rear of the police cruiser, the
officer began to search the stopped vehicle. The officer found a glass bong on the
floorboard in front of the front passenger seat and a loaded handgun under the seat.
{¶8} After the driver and back-seat passenger were removed from the police
cruiser, the officer advised Mitchell of his Miranda rights, and Mitchell admitted that
the handgun and the bong belonged to him. Mitchell said that he intended to smoke
marijuana from the bong. He said that he had recently obtained the handgun because
he had had two other firearms that were stolen from a family member’s house.
Mitchell was arrested and charged with carrying a concealed weapon and with
improper handling of a firearm in a motor vehicle.
{¶9} At the suppression hearing, defense counsel stipulated that the officer’s
stop of the vehicle was proper, but argued that the officer lacked probable cause to
search the vehicle.
The Trial Court’s Decision
{¶10} The trial court took the matter under advisement and then granted the
motion to suppress. In its oral comments explaining its decision, the court
acknowledged that “if a police officer smells marijuana emanating from a car following
a traffic stop, the officer may conduct both a warrantless search of the car and the
occupants.” But the court found that because Mitchell “freely admitted” to the officer
that he had drug paraphernalia, “search for it was unnecessary.” The court said, “At
this point, no further reason existed to search Mr. Mitchell or the vehicle, and the
officer needed probable cause or a reason that a crime was committed or would be
OHIO FIRST DISTRICT COURT OF APPEALS
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committed and that probable cause must be established before the search takes place.”
The court granted Mitchell’s motion to suppress.
The Trial Court Erred by Granting the Motion to Suppress
{¶11} In its sole assignment of error, the state argues that the trial court erred
by granting Mitchell’s motion to suppress evidence obtained during the search of the
vehicle. Appellate review of a motion to suppress evidence 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. We must accept the trial court’s factual findings if they are supported by
competent, credible evidence, but we review de novo the trial court’s application of the
law to those facts. Id.
{¶12} The state argues that the trial court’s determination that the officer
lacked probable cause to search the vehicle was erroneous as a matter of law, given the
court’s findings that the officer smelled marijuana as he approached the vehicle, that
the back-seat passenger handed a marijuana cigar to the officer, and that Mitchell
volunteered that he had drug paraphernalia in the vehicle.
{¶13} The Fourth Amendment to the United States Constitution protects
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures[.]” In general, warrantless searches are
per se unreasonable under the Fourth Amendment, subject to a few well-established
exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). Under the automobile exception to the warrant requirement, police may
conduct a warrantless search of a lawfully stopped vehicle if they have probable cause
to believe that the vehicle contains contraband. United States v. Ross, 456 U.S. 798,
825, 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).
{¶14} The Supreme Court of Ohio has held that the smell of marijuana, alone,
by a person qualified to recognize the odor, is sufficient to establish probable cause to
search a vehicle, pursuant to the automobile exception to the warrant requirement.
OHIO FIRST DISTRICT COURT OF APPEALS
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Moore at 48. “There need be no other tangible evidence to justify a warrantless search
of a vehicle.” Id.
{¶15} In this case, the smell of marijuana alone was sufficient to establish
probable cause to search the vehicle pursuant to the automobile exception to the
warrant requirement. See id. Although Mitchell points to the officer’s testimony that
he could not distinguish between the smell of burning marijuana and the smell of raw
marijuana, the officer testified that he had been trained in detecting the odor of
marijuana, and that he had seen marijuana and knew what it smelled like. In Moore,
the Supreme Court of Ohio did not distinguish between unburned marijuana or
burning marijuana, in holding only that the smell of marijuana is sufficient to establish
probable cause to search. Id. In addition, the officer in this case had more than the
smell of marijuana to establish probable cause to justify the search because Mitchell
volunteered that he had a bong and the back-seat passenger handed the officer a
marijuana cigar.
{¶16} Here, the trial court concluded that probable cause to search the vehicle
based upon the odor of marijuana ceased to exist after Mitchell “freely admitted * * *
that he had drug paraphernalia.” On the contrary, however, Ohio courts have held
that when a vehicle’s occupant hands over drugs or contraband to a police officer
during a traffic stop, the occupant also hands the officer probable cause to believe that
the vehicle contains contraband. State v. Donaldson, 6th Dist. Wood No. WD-18-034,
2019-Ohio-232, ¶ 29 (rejecting appellant’s argument that officers lose probable cause
to search a vehicle from which an odor of marijuana is emanating upon an occupant’s
production of a small amount of marijuana); State v. Malone, 4th Dist. Lawrence No.
21CA9, 2022-Ohio-1409, ¶ 32 (officer’s discovery of methamphetamine in defendant’s
wallet and defendant’s admission of drug possession during a traffic stop provided
probable cause to believe that the vehicle contained drug-related evidence); State v.
Conley, 4th Dist. Adams No. 19CA1091, 2019-Ohio-4172, ¶ 22 (when the driver
volunteered that he possessed methamphetamine, police had probable cause to search
OHIO FIRST DISTRICT COURT OF APPEALS
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the vehicle); State v. Gartrell, 2014-Ohio-5203, 24 N.E.3d 680, ¶ 72 (3d Dist.) (vehicle
occupant’s voluntary production of the marijuana on his person did not remove the
probable cause to search the vehicle based upon the odor of raw marijuana, his
production of marijuana, his possession of more than $1,700, and his apparent
untruthfulness); State v. Young, 12th Dist. Warren No. CA2011-06-066, 2012-Ohio3131, ¶ 32-33 (occupant’s admission that he had marijuana in a jacket in the back seat
gave officers probable cause to believe that the vehicle contained contraband).
{¶17} In State v. Maddox, 2021-Ohio-586, 168 N.E.3d 613, ¶ 22 (10th Dist.),
when police officers inquired about marijuana after detecting the odor of marijuana
coming from a vehicle during a traffic stop, the appellant voluntarily surrendered a
small amount of marijuana to the officers as he exited from the vehicle. A search of
the vehicle revealed a firearm, heroin, and cocaine. Maddox at ¶ 6.
{¶18} The Tenth District held that the odor of marijuana and the appellant’s
surrender of marijuana provided probable cause to search the vehicle. Id. at ¶ 22. The
court rejected appellant’s argument that police were required to stop their
investigation and simply charge him with misdemeanor drug possession once he
voluntarily surrendered his marijuana. Id. at ¶ 23. The court said, “To the contrary,
when appellant voluntarily surrendered the marijuana, officers had probable cause to
believe appellant’s vehicle contained other evidence of a crime.” Id. The court
explained:
Under the rule of law advocated by appellant, a vehicle operator might
avoid a search of the vehicle for illegal drugs during a lawful traffic stop
by voluntarily surrendering a small amount of an illegal substance to
law enforcement. Ohio law does not support such an absurd result.
Id.
{¶19} In this case, neither Mitchell’s informing the officer that he had a bong
nor the back-seat occupant’s voluntary production of a marijuana cigar preempted the
officer from conducting a warrantless search of the vehicle pursuant to the automobile
OHIO FIRST DISTRICT COURT OF APPEALS
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exception to the warrant requirement based upon the officer’s detection of the smell
of marijuana. On the contrary, the smell of marijuana, Mitchell’s admission of the
possession of drug paraphernalia, and the other occupant’s production of a small
amount of marijuana provided probable cause to believe that the vehicle contained
further contraband. Contrary to the trial court’s determination, probable cause to
search the vehicle based upon the smell of marijuana did not dissipate upon Mitchell’s
admission that he had a bong. Therefore, we hold that the trial court erred by granting
Mitchell’s motion to suppress.1
Outcome: The smell of marijuana emanating from the stopped vehicle, Mitchell’s
admission that he possessed drug paraphernalia, and the back-seat passenger’s
voluntary production of a small amount of marijuana provided the police with
probable cause to search the vehicle under the automobile exception to the warrant
requirement. Therefore, the trial court erred by granting Mitchell’s motion to
suppress. We sustain the state’s assignment of error, reverse the judgment of the trial court, and remand this case for further proceedings.
Judgment reversed and cause remanded
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