State v. Gay
| Decision Date | 13 September 2021 |
| Docket Number | 20 MA 0085 |
| Parties | STATE OF OHIO, Plaintiff-Appellant, v. JOHNSON GAY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
OPINION AND JUDGMENT ENTRY
{¶1} Appellant, State of Ohio, appeals a July 22, 2020 decision of the Mahoning County Court of Common Pleas granting Appellee Johnson Gay's motion to suppress evidence obtained during a traffic stop without holding a hearing. The state argues that officers were justified in conducting a pat down of Appellee's person because an officer detected the odor of marijuana and observed loose marijuana inside the vehicle. For the reasons provided, the judgment of the trial court is reversed and this cause is remanded for the trial court to conduct a hearing on the motion to suppress.
{¶2} On October 25, 2019, Officers C. Stanley and J. Hughes observed a vehicle turn without using a turn signal. Subsequently, the officers initiated a traffic stop of the vehicle. Shane Overton was driving this vehicle. Passenger Jabari Allen was seated in the front and Appellee was seated in the back. During the stop, Officer Stanley detected an odor of marijuana emitting from the vehicle and observed loose marijuana inside. (10/28/19 Complaint, Exh. 1.) The officers ordered all passengers out of the vehicle.
{¶3} Both Overton and Allen consented to a search of their person, which revealed no contraband. The officers then asked Appellee if he had drugs or weapons on his person. Appellee immediately placed his hands inside the back of his pants. The officers instructed him to remove his hands and Officer Stanley immediately patted down the area where Appellee had reached. When Officer Stanley informed Appellee that he felt a large bulge, Appellee reached into the seat of his pants and retrieved a large baggie containing a white powder consistent with fentanyl. Appellee handed the baggie to the officers and was subsequently arrested. The officers then searched the vehicle and seized the loose marijuana. They also seized two marijuana cigars found in the backseat. Overton was arrested on a capias. Officers did not charge Allen and released him, along with the vehicle.
{¶4} Appellee was indicted on one count of possession of a fentanyl-related compound, a felony of the second degree in violation of R.C. 2925.11 (A), (C)(11)(d). He was not charged with any crime related to the marijuana.
{¶5} On March 11, 2020, Appellee filed a motion to suppress the fentanyl found on his person. On July 22, 2020, the trial court sustained the motion. This timely state's appeal followed.
COMPETENT AND CREDIBLE EVIDENCE DID NOT SUPPORT THE TRIAL COURTS DECISION TO GRANT DEFENDANTS MOTION TO SUPPRESS.
{¶6} The state argues that law enforcement is permitted to initiate a traffic stop of a vehicle if the driver turns without first signaling, pursuant to R.C. 4511.39(A). During a valid traffic stop, the state explains that law enforcement is permitted to order all passengers out of the vehicle. When an officer who is trained to detect the odor of marijuana recognizes such odor, the state contends that officers are then permitted to search the vehicle.
{¶7} In addition, the state argues that officers are permitted to search any persons detained during the stop if it appears the situation presents an exception to the warrant requirement. In this case, officers detected an odor of marijuana coming from the vehicle. In order for officers to obtain a warrant to search Appellee, the state contends that the officers would have been required to allow him to leave, risking the consumption or destruction of any evidence. Thus, the state contends that the search was permissible based on the exigency exception to the warrant requirement pursuant to State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000). At oral argument, the state additionally argued that the patdown of Appellee was authorized due to concerns regarding the officers' safety.
{¶8} In response, Appellee urges that a heightened analysis is required where the search of a person occurs. Appellee appears to argue that the mere presence of drugs in a vehicle does not, alone, permit the search of a passenger. Appellee does not respond to the state's exigency argument.
{¶9} The trial court did not conduct a hearing on this matter. The court's judgment entry is sparse, but it appears that the court based its decision on the "lack of probable cause and standing to search" Appellee. (7/22/20 J.E.) It is unclear what the trial court meant by the officer's "standing" to conduct a search. The court agreed with Appellee, without including specific findings of fact or any type of analysis, that Appellee was the backseat passenger in a vehicle stopped for a minor traffic infraction and was not observed committing a crime. Id.
{¶10} A motion to suppress presents mixed issues of law and fact. State v. Lake, 151 Ohio App.3d 378, 2003-Ohio-332 784 N.E.2d 162, ¶ 12 (7th Dist.), citing State v. Jedd, 146 Ohio App.3d 167, 171, 765 N.E.2d 880 (4th Dist. 2001.) If a trial court's findings of fact are supported by competent, credible evidence, an appellate court must accept them. Id. The court must then determine whether the trial court's decision met the applicable legal standard. Id.
{¶11} There are two types of valid traffic stops: (1) where police have probable cause to believe that a traffic violation has occurred or is occurring and (2) where police have reasonable articulable suspicion that criminal activity has occurred. State v. Ward, 7th Dist. Columbiana No. 10 CO 28, 2011-Ohio-3183, ¶ 35, citing Dayton v. Erickson, 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
{¶12} Here, the officers initiated a traffic stop after observing the vehicle turn without first activating a turn signal. "An officer's observation that a vehicle failed to properly use a turn signal constitutes both reasonable suspicion and probable cause to justify a traffic stop." Ward, supra, at ¶ 37, citing State v. McComb, 2d Dist. Montgomery No. 21963, 2008-Ohio-425; State v. Steen, 9th Dist. Summit No. 21871, 2004-Ohio-2369. As such, the traffic stop was valid.
{¶13} Law enforcement's ability to order passengers out of a vehicle during a traffic stop was addressed in State v. Davis, 2020-Ohio-4821, 159 N.E.3d 1208 (7th Dist.). Pursuant to Davis, "during a valid traffic stop, officers may order the occupants of a vehicle out of the vehicle pending completion of the stop without violating the Fourth Amendment." Id., at ¶ 17, citing State v. Chapman, 2019-Ohio-3339, 131 N.E.3d 1036, ¶ 37 (7th Dist.); Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Importantly, we have previously acknowledged the application of this rule to passengers of a vehicle even if the reason for the traffic stop is attributable only to the driver. State v. Koczwara, 7th Dist. Mahoning No. 13 MA 149, 2014-Ohio-1946, ¶ 19, citing Wilson, 519 U.S. at 413-415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).
{¶14} As such, law enforcement properly ordered Appellee out of the vehicle during the encounter. Hence, the trial court's decision to suppress the evidence apparently based on the stated rationale that Appellee was a mere passenger in a vehicle stopped for a minor traffic infraction and was not observed committing a crime is clearly erroneous. This does not end our analysis, however.
{¶15} The issue remains whether the officers properly conducted a patdown search of Appellee. We note that officers did not physically remove the contraband from Appellee's pants. One of the officers informed Appellee that he discovered a large "bulge" during the patdown. Immediately thereafter, Appellee voluntarily removed the contraband and handed it to the officers.
{¶16} In order to be valid, a search must be supported by a warrant or be based on a recognized exception to the warrant requirement. State v. Ambrosini, 7th Dist. Mahoning Nos. 14 MA 155, 14 MA 156, 2015-Ohio-4150, ¶ 8, citing Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Ohio, there are seven recognized exceptions to the warrant requirement: (1) a search incident to a lawful arrest; (2) consent; (3) the stop-and-frisk doctrine; (4) hot pursuit; (5) probable cause plus the presence of exigent circumstances; (6) the plain view doctrine; and (7) administrative searches. State v. McGee, 7th Dist. Mahoning, 2013-Ohio-4165, 996 N.E.2d 1048, ¶ 17, citing State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985).
{¶17} Here, the trial court decided the merits of the motion based solely on the parties' sparse "briefs" and a one-page investigative report in lieu of holding a hearing. It is unclear why the trial court chose to forgo holding an actual hearing. The parties suggest that a hearing on the matter may have been cancelled by the court, however, the record does not provide much guidance, as it appears that certain events may have been left off the docket. On July 17, 2020, just after the parties filed their briefs on the motion to suppress, the trial court held an unscheduled pretrial conference.
{¶18} It appears that this conference may have been held to address the motion, but in what manner is unclear from the limited record. The court's corresponding judgment entry does not...
To continue reading
Request your trial