State v. Buckner, 2007 Ohio 4329 (Ohio App. 8/24/2007)
| Decision Date | 24 August 2007 |
| Docket Number | Appellate No. 21892. |
| Citation | 2007 Ohio 4329 |
| Parties | State of Ohio, Plaintiff-Appellee v. Gary V. Buckner, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Mathias H. Heck, Jr., by Carley J. Ingram, Atty. Reg. #0020084, Montgomery County Prosecutor's Office, P.O. Box 972, 301 West Third Street, 5th Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
Christopher B. Epley, Atty. Reg. #0070981, Tolliver & Epley, 131 North Ludlow Street, Suite 1000, Dayton, Ohio 45402, Attorney for Defendant-Appellant.
{¶ 1} Defendant-appellant Gary V. Buckner appeals from his conviction and sentence, following a no-contest plea, on one count of Carrying a Concealed Weapon. Buckner's assigned counsel has filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, concluding that he could find no potential assignments of error having arguable merit. By entry filed herein on May 2, 2007, this court has provided Buckner with the opportunity to file his own, pro se brief, but he has not done so.
{¶ 2} The facts are ably set forth by the trial court in its decision overruling Buckner's motion to suppress:
{¶ 3} " . . . on August 12, 2005, around 7 p.m., K-9 unit Officer Moeggenberg with K-9 Lola [a drug-sniffing dog that Moeggenberg routinely carries with him] conducted a traffic stop on the vehicle driven by the Defendant for no front plate displayed. The Defendant was the sole occupant of the vehicle. Officer Moeggenberg approached on the passenger side of the vehicle. The officer informed the Defendant of the reason for the stop. The Defendant acknowledged that it was his vehicle and he had not put on the new license plate yet. While having this routine discussion, the officer noticed what he immediately recognized to be marijuana on the front passenger seat in plain view. The officer then asked the Defendant to step out of the vehicle, explaining that he saw marijuana on the seat. While walking to the back of his vehicle, the Defendant, on his own initiative, told the officer that he had a marijuana joint in the ashtray.
{¶ 4} "Officer Moeggenberg let his trained narcotics dog out to conduct a free air sniff. The Defense stipulated to the certification of the dog and the handler (Officer Moeggenberg). The narcotics dog then alerted on the exterior rear and passenger side of the vehicle. The dog then alerted on the glove box on the interior of the vehicle.
{¶ 5}
{¶ 6} We have read the transcript of the suppression hearing, at which Officer Moeggenberg was the sole witness, and there is evidence in the record of that hearing to support all of the trial court's findings of fact.
{¶ 7} The trial court then laid out its reasoning for finding the motion to suppress to be without merit:
"THE ACTIONS OF THE POLICE DID NOT VIOLATE THE DEFENDANT'S CONSTITUTIONAL RIGHTS, THEREFORE, EVIDENCE OBTAINED IS ADMISSIBLE
{¶ 8} "A police officer may lawfully stop a vehicle if he has a reasonable articulable suspicion that the motorist has engaged in criminal activity including a minor traffic violation. The stop is constitutionally valid regardless of the officer's underlying motivation. State v. Chapel, (March 8, 2000), Guernsey App. No. 99-CA-18. In this case, the officer testified that he conducted a traffic stop for no front plate and the Defendant was cited for that violation.
{¶ 9} "The time lapse for the traffic stop to the Defendant's arrest was about ten minutes. Officer Moeggenberg observed what he immediately recognized as marijuana in plain view, giving him probable cause to search the entire vehicle. The Plain View Doctrine is a well-established exception to the warrant requirement. Evidence in plain view is subject to seizure when the intrusion affording the plain view is lawful (or the officer is lawfully in place) and the incriminating nature is immediately apparent. Texas v. Brown, (1983), 460 U.S.730, 103 S.Ct. 1535, 75 L.Ed.2d 502; Coolidge v. New Hampshire, (1971), 403 U.S. [443, 91 S.Ct. 2022]. `Immediately apparent' means the police have probable cause to associate an object with criminal activity. An officer may rely on training and experience in recognizing evidence of a crime. State v. Smith, (June 21, 1999), Stark App. No. 1998 CA 00322; State v. Paschal, (August 2, 1996), Montgomery App. No. 15394. The officer testified that he has participated in numerous arrests involving marijuana and he is familiar with the appearance and characteristics of marijuana. Based on the training and experience, it was immediately apparent to the officer that it was marijuana on the front passenger's seat. `Probable Cause' is a flexible, common sense standard, which merely requires that the facts available to the officer would warrant a man of reasonable caution and belief, that certain items may be contraband or stolen property or useful as evidence of a crime. It does not demand any showing that such a belief be correct or more likely true than false. State v. Paschal, supra.
{¶ 10} "Once a police officer has probable cause to believe a vehicle contains contraband, the officer may search a validly stopped motor vehicle. State v. Madden, (February 20, 2001) Union App. No. 14-2000-32. The well-established automobile exception to the warrant requirement permits police to conduct a warrantless search of a vehicle. State v. Madden, supra. The mobility of automobiles often creates exigent circumstances and concern that evidence will be lost or destroyed. See State v. Madden, supra. See also, State v. Mills, (1992), 62 Ohio St. 3d 357, 367, 582 N. E.2d 972, citing California v. Carney, (1985), 471 U.S. 386, 85 L. Ed. 2d 406, 105 S. Ct. 2066. The driver of a vehicle on a public street has a diminished expectation of privacy in the vehicle that he or she is driving. State v. Madden, supra; State v. Ballard (February 16, 1994) Auglaize App. No. 2-93-12, unreported. See also California v. Carney, supra.
{¶ 11} "Marijuana in plain view gives officers probable cause to search the entire vehicle. State v. Pryor, (May 27, 2005), Mont. App. No. 20800. See also State v. Taylor, (June 22, 1993), Franklin App. No. 93AP-161. In the case at bar, the officer sees marijuana and a narcotics dog smells additional marijuana. Just as in Taylor, because police had probable cause to conduct a warrantless search of Defendant's vehicle for marijuana, their search of the vehicle (including the glove box) and discovery of the hidden weapon did not violate Defendant's Fourth Amendment rights. The search of Defendant's vehicle, including the glove box, nevertheless did not violate Defendant's Fourth Amendment rights because, as previously noted, police already had probable cause to conduct a warrantless search of that vehicle for marijuana as a result of having seen it and a narcotics dog having alerted on it. See State v. Moore, 90 Ohio St.3d 47, 2000 Ohio 10, 734 N.E.2d 804 and State v. Paschal, supra.
{¶ 12} "In State v. Greenwood, (May 28, 2004), Montgomery App. No. 19820, the issue was whether an officer's observation of a small quantity of marijuana in a car provides reasonable suspicion to believe that the vehicle contains drugs. The Court stated, `This question answers itself and requires no elaboration on our part.' The Court rejected Greenwood's argument that the officer unlawfully searched the suitcase in the vehicle's trunk. The search was held permissible for two reasons. First, the Ohio Supreme Court has recognized that `once a law enforcement officer has probable cause to believe that a vehicle contains contraband, he or she may search a validly stopped motor vehicle based upon the well-established automobile exception to the warrant requirement.' State v. Greenwood, supra citing State v. Moore, supra (). Second, the drug dog's alert on the vehicle gave the officers probable cause to search it.
{¶ 13} "In Greenwood, the Court held that the officer's observation of marijuana on the passenger seat and floorboard gave him probable cause to believe that the vehicle contained contraband. Therefore, he was entitled to search the entire vehicle, including the trunk and its contents. State v. Greenwood, supra and citing United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157.
{¶ 14} "In State v. Earley, (August 9, 2002) Montgomery App. No. 19161, officers conducted a traffic stop on Defendant's vehicle. The officers could smell marijuana, so they had Defendant step from the vehicle. A handgun was found under the seat. The officers then searched the locked glove box and found ammunition and crack cocaine. (The key to the glove box was in the console). The Court upheld the warrantless search and seizure of the drugs, gun and ammunition based on probable cause from the odor of marijuana. The Court s...
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