State v. Johnson
| Decision Date | 11 August 2022 |
| Docket Number | 111040 |
| Citation | 2022 Ohio 2773 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. DARVON JOHNSON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
2022-Ohio-2773
STATE OF OHIO, Plaintiff-Appellee,
v.
DARVON JOHNSON, Defendant-Appellant.
No. 111040
Court of Appeals of Ohio, Eighth District, Cuyahoga
August 11, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-656902-B
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Jamielle Lamson-Buscho and Gregory Ochocki, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Jonathan Sidney, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
MARY J. BOYLE, J.
{¶ 1} In this companion appeal, defendant-appellant, Darvon Johnson ("Johnson"), appeals the trial court's denial of his motion to suppress after pleading no contest to trafficking and two counts of drug possession.[1]
I. Facts and Procedural History
{¶ 2} In April 2021, Johnson was charged with codefendant, Markwan Hall ("Hall"), in a three-count indictment. Count 1 charged each of them with trafficking and Counts 2 and 3 charged each of them with drug possession of marijuana and THC. The charges stem from marijuana and tetrahydrocannabinol ("THC") seized during a traffic stop by Ohio State Highway Patrol Trooper Dowler ("Trooper Dowler").
{¶ 3} Trooper Dowler completed a report as a result of the traffic stop. In his September 26, 2020 report, Trooper Dowler stated:
On May 14, 2020 I was contacted by a confidential source about possible criminal activity. On May 14, 2020 at approximately 20:23 hours, I was contacted over the radio by plain clothes officers advising me there was a black Jeep Compass northbound on IR 71 around mile post 240 in the city of Cleveland driving at a high rate of speed. The plain clothes officers followed the Jeep in their unmarked vehicles. The Jeep was paced at 90 MPH in a 60 MPH zone. I responded to the area and observed the vehicle exit off onto W 150TH Street. After the vehicle exited, it made a right turn onto W 150TH. I activated my overhead pursuit lights and initiated a traffic stop. The driver of the vehicle pulled into the Speedway gas station parking lot and came to a stop After the vehicle stopped, I approached the vehicle from the drivers side where I came in contact with the driver
When I made contact with the driver, I immediately smelled a strong odor of raw marijuana coming from inside the vehicle. I also noticed the driver who was later identified as Markwan Hall was overly nervous. His hands were shaking uncontrollably, and he was breathing heavy. I also noticed the front seat passenger who was later identified as Darvon Johnson, was also overly nervous. His hands were shaking and he was breathing heavy.
* * *
Tpr Kelley and Tpr Hershman arrived on the scene for assistance. After Johnson exited the vehicle, Tpr Hershman patted him down for weapons and secured him in the right rear seat of his patrol car. After everybody was secured, we conducted a probable cause search of the vehicle. [D]uring the search we located a suitcase on the back seat that had Johnsons name on it. When we opened up the suitcase we found four vacuumed sealed bags containing what was believed to be marijuana. Along with the marijuana was vape cartridges, and marijuana edibles.
As we moved to the trunk we found another suitcase that [had] Halls name on it. When we opened up the suit case we found four vacuumed sealed bags of what we believed to be from our training and experiences marijuana. Along with the marijuana were vape cartridges, and marijuana edibles. After finishing the search I secured all the evidence and went back to my patrol car. I advised Hall of his rights. I asked him if he understood his rights, and he said yes. I asked him if the marijuana found in the suitcase belonged to him, and he said yes. I asked him if the marijuana, vape cartridges, and edibles in the other suitcase belonged to him and he said no. Tpr Hershman advised Johnson of his rights, he asked him if the marijuana belonged to him, and he said no. During conversation with Johnson he admitted to Tpr Hershman that all the contraband found cost around $15,000[.]
(Defendants' Joint Motion to Reveal Information Relayed to Officers from Confidential Informant, Sept. 8, 2021.)
{¶ 4} Johnson and Hall filed a joint motion to reveal the information relayed to Trooper Dowler from the confidential informant. The codefendants argued that the identity of the confidential informant in Trooper Dowler's report
must be revealed to establish whether this information formed the basis for the traffic stop and detention of Johnson and Hall.
{¶ 5} On September 20, 2021, the trial court held a hearing on the joint motion. Ohio State Highway Patrol Detective Dave Norman ("Detective Norman") testified that on May 14, 2020, he was working undercover and driving an unmarked vehicle in the area of Interstate 71 and Snow Road when he observed a black Jeep driving on the highway that passed him at a speed of somewhere "in the area of 70, 75 miles per hour." (Sept. 20, 2020, tr. 5-6.) Detective Norman testified that the speed limit in this area was 60 miles per hour. (Sept. 20, 2020, tr. 6.) He further testified that the Jeep cut across two of the highway lanes and exited at 150th Street. (Sept. 20, 2020, tr. 6.) Detective Norman followed the Jeep off the exit but did not take any action to engage a traffic stop because he was undercover. (Sept. 20, 2020, tr. 8.)
{¶ 6} In response observing the speeding Jeep, Detective Norman contacted Trooper Dowler. He advised Trooper Dowler that dark Jeep had passed him and cut off a lane of traffic. (Sept. 20, 2020, tr. 10.) Detective Norman testified that "it almost appeared they were running from the police." (Sept. 20, 2020, tr. 10.) With regard to the identity of the confidential informant that was involved in this case, Detective Norman testified that he was the confidential informant. (Sept. 20, 2020, tr. 10.)
{¶ 7} Trooper Dowler also testified at the hearing. He testified that he did not observe the Jeep speeding. (Sept. 20, 2020, tr. 23.) Rather, Detective Norman
informed him that the Jeep had been speeding. (Sept. 20, 2020, tr. 23.) Detective Norman also relayed that the codefendant exited at West 150th Street. (Sept. 20, 2020, tr. 24.) Trooper Dowler was stationary near the West 150th Street exit when he received Detective Norman's report of the speeding vehicle. (Sept. 20, 2020, tr. 40.) Trooper Dowler further testified that Detective Norman was the "plain clothes officer" and "confidential source" referred to in his report. (Sept. 20, 2020, tr. 31.) At the conclusion of the hearing, plaintiff-appellee, the state of Ohio, stipulated that Detective Norman was the "confidential source" referred to in Trooper Dowler's report.
{¶ 8} The next day, Johnson and Hall filed a joint motion to suppress the evidence seized from this traffic stop.[2] The codefendants argued that Trooper Dowler lacked reasonable, articulable suspicion to justify the initial stop and their detention. As a result, they argued that any evidence obtained during the search should be suppressed under the exclusionary rule. The state opposed the motion, and the trial court held a hearing on the matter on September 27, 2021. The following evidence was adduced at the hearing.
{¶ 9} On May 14, 2020, Johnson and Hall arrived at Cleveland Hopkins International Airport after traveling from California to Cleveland through Chicago. (Sept. 27, 2021, tr. 68.) The two men retrieved their luggage from baggage claim, got into their vehicle, and headed home to Pennsylvania. Trooper Dowler testified
that on that day, Detective Norman contacted him, describing a black Jeep driving at a high rate of speed of 90 miles per hour on Interstate 71. (Sept. 27, 2021, tr. 49-50, 52, 59.) The speed limit in that area is 60 miles per hour. (Sept. 27, 2021, tr. 49-50.) Trooper Dowler could not recall if he was stationary at the time he received the report from Detective Norman. (Sept. 27, 2021, tr. 72.) He further testified that he did not personally observe any traffic infractions by the black Jeep. (Sept. 27, 2021, tr. 70-71.)
{¶ 10} Trooper Dowler caught up to the vehicle and initiated a traffic stop of the vehicle at a gas station off the West 150th Street exit of Interstate 71. (Sept. 27, 2021, tr. 50-51.) The gas station was "approximately a mile and a half to two miles" from the location where Detective Norman indicated he observed the speeding vehicle. (Sept. 27, 2021, tr. 52.) When he pulled over the vehicle, he observed Hall as the driver of a black Jeep Compass and Johnson in the passenger seat. (Sept. 27, 2021, tr. 51, 55.) When asked by Trooper Dowler how fast they were going, Hall replied, "around 70." (Sept. 27, 2021, tr. 51.)
{¶ 11} Trooper Dowler further testified that when he pulled over the vehicle, he "smelled a strong odor of raw marijuana coming from inside the vehicle along with [Hall and Johnson] being overly nervous." (Sept. 27, 2021, tr. 52.) Trooper Dowler then ordered Hall out of the vehicle because of what he believed to be the smell of raw marijuana and searched the vehicle on that basis. (Sept. 27, 2021, tr. 66.) With regard to his training to detect marijuana, Trooper Dowler testified that he has been a K-9 handler for six years and carries marijuana with him every day.
(Sept. 27, 2021, tr. 53, 77.) Trooper Dowler's bodycam video was played at the hearing. In the video, Hall admits to travelling at a speed of 70 miles per hour and tells Trooper Dowler that he believes he has three pounds of marijuana in the vehicle.
{¶ 12} Detective Norman also testified at the suppression hearing. He testified that he did not remember if the Jeep was going 70 or 75 miles per hour. (Sept. 27, 2021, tr. 86.) Relying on a May 13, 2021 statement he emailed to the state regarding his observations on that day, Detective Norman...
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