State v. Smith, 20 CO 0022
| Decision Date | 15 September 2021 |
| Docket Number | 20 CO 0022 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. KENDALL LAMONT SMITH, JR., Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2019 CR 52
Atty Vito Abruzzino, Columbiana County Prosecutor and Atty. Tammie M. Jones, Assistant Prosecuting Attorney for Plaintiff-Appellee
Atty Wesley Johnston, for Defendant-Appellant.
BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
OPINION AND JUDGMENT ENTRY
D'APOLITO, J.
{¶1} Appellant Kendall Lamont Smith Jr. appeals the judgment entry of the Columbiana County Court of Common Pleas overruling his motion to suppress. The trial court concluded that Appellant did not have standing to challenge the search of a hotel room in which he was present, because he was not a registered guest and his sole purpose for being present in the hotel room was commercial, that is, for the sale of illegal narcotics. In the alternative, the trial court opined that the search of a pair of red sweatpants, which contained the illegal narcotics, constituted a search incident to arrest. For the following reasons, the judgment entry of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶2} Brian McLaughlin, the director of the Columbiana County Drug Task Force and a detective with the East Palestine Police Department, provided the only testimony offered at the suppression hearing. Three exhibits were admitted into evidence at the hearing: A registration from the hotel on State Route 154 in Columbiana County, a receipt captioned "folio" from the Days Inn, and a consent to search form. Defense counsel used a police report to cross-examine McLaughlin, but the report was not admitted into evidence.
{¶3} On January 14, 2019, McLaughlin was contacted by the Lisbon Police Department at 9:15 a.m. to provide assistance at the Days Inn. Hotel staff reported that "a male subject was high in the parking lot." (Suppression Hrg., p. 8.)
{¶4} McLaughlin was accompanied to the Days Inn by Detective Kody Watkins, Chief Mike Abraham, who was in uniform, and "Lieutenant Daub." McLaughlin, Watkins, and Daub were in plain clothes, but their badges, which identified them as law enforcement officers, were clearly visible.
{¶5} When the four officers arrived at the Days Inn, the male suspect, identified as Ben Eastman, was seated in the backseat of a Lisbon Police Department patrol car, which was parked in the BP Fuels parking lot, adjacent to the Days Inn. McLaughlin recognized Eastman from a 2013-2014 narcotics case, where Eastman was identified as a "runner" for Appellant as well as several other drug dealers in Columbiana County. McLaughlin knew Appellant from a prior trafficking case from 2017 or 2018, however, Appellant was not the subject of a present investigation. A search of Eastman's person yielded a hypodermic needle.
{¶6} When McLaughlin questioned Eastman, Eastman "indicated that the room that he had been staying in [Days Inn Room 101], he was the only one in the room, and that [Appellant] left about 1:00 a.m. * * * But there was nobody in the room at this point in time." (Id., p. 10.) Later in his testimony, McLaughlin stated that Eastman told him that "[Appellant] had left the room and that there was another girl there earlier too, but she had also left." (Id., p. 12.) As a consequence, McLaughlin presumed that Room 101 was unoccupied.
{¶7} Room 101 was registered to Kris Vervin. The Days Inn receipt reflects that she rented the hotel room for one night and she was the only guest. She checked in at 2:55 a.m.
{¶8} Staff members at the Days Inn reported a "large amount of traffic in and out of [Room 101] through the night." (Id., p. 11.) Contrary to the information provided by Eastman, the staff members further reported that there was still someone present in Room 101.
{¶9} McLaughlin provided the following testimony regarding the events that followed:
{¶10} McLaughlin testified that the "housekeeping personnel" knocked on the door then "left the immediate area of the door once the door opened." (Id., p. 16.) McLaughlin further testified that Appellant opened the door "at least halfway," and that McLaughlin was standing to the left of the door, and Detective Watkins and Chief Abraham were standing to the right of the door. (Id., p. 15, 30.)
{¶11} When Appellant saw a uniformed officer, he "tried to slam the door," and "Chief Abraham stopped the door from hitting him." (Id., p. 14.) McLaughlin testified that Abraham "just put his foot in front of the door to keep it from hitting him - slamming shut." (Id., p. 16.)
{¶12} According to McLaughlin, he believed that illegal drugs were present and likely to be destroyed by Appellant in the event that the officers did not immediately enter Room 101. On cross-examination, he testified that he entered the room based on the smell of marijuana, the "high individual coming from the room," and the needle found on Eastman's person. (Id., p. 30.)
{¶13} When the officers entered Room 101, McLaughlin twice ordered Appellant to the ground. Appellant did not comply, so McLaughlin took him to the ground. At the time, Appellant was wearing a white t-shirt and undershorts, and he had the pair of red sweatpants at issue in this appeal in his hand.
{¶14} The officers placed Appellant in a chair at a table at the end of the bed. Prior to being seated in the chair, Appellant placed the red sweatpants on the bed. (Id., p. 42.)
{¶15} McLaughlin asked Appellant if there were any drugs in the room, based on the odor of raw marijuana and the information from the hotel staff that there had been a considerable amount of traffic in and out of the room during the early morning hours. Appellant denied the presence of any illegal drugs, specifically marijuana.
{¶16} Appellant told McLaughlin that someone had tried to rob him in Salineville, and Appellant obtained a ride "from somebody" to the hotel in order "to hideout from whomever was trying to rob him in Salineville." (Id.) Appellant further explained that Vervin had left the hotel room to purchase breakfast for him at Sheetz. According to McLaughlin's testimony, a fifth member of law enforcement, "Detective Sheets," arrived at about that time, and upon entering the hotel room inquired, "[w]ow, where's the marijuana?" (Id., p. 19.)
{¶17} Roughly one-half hour after the officers entered Room 101, Vervin returned. McLaughlin interviewed her in the hallway. Vervin explained that "she will frequently drive people around." (Id., p. 21.) She retrieved Appellant from Salineville the prior evening and brought him to the Days Inn. McLaughlin testified that (Id., p. 22.) Vervin told the officers that she had left Room 101 to transport a third party to a doctor's appointment, not to purchase breakfast for Appellant.
{¶18} McLaughlin obtained consent from Vervin to search her purse. The search yielded a crack pipe and a push rod. Next, Vervin executed a written form in which she consented to a search of the hotel room. Vervin was not arrested, however, McLaughlin denied that any agreement was made that Vervin would not be arrested in exchange for her consent to search Room 101. (Id., p. 37-38.)
{¶19} During the search, Appellant stated that he had "a bag of clothes" in the hotel room. The only bag of clothes found during the search was a plastic shopping bag from Dollar General, which contained some white t-shirts and "maybe" some socks. (Id. at 22.) However, McLaughlin testified that "[t]hat wasn't the bag [Appellant] was looking for." (Id.)
{¶20} At some point, McLaughlin searched the pockets of the red sweatpants and found the illegal narcotics that formed the basis for the indictment against Appellant. (Id., p. 23, 39.) McLaughlin did not provide any testimony regarding the exact contents of the pockets of the red sweatpants, he testified instead that the contraband was (Id., p. 23.)
{¶21} The only drug to which McLaughlin provided any specific testimony was marijuana. McLaughlin testified that the officers found "a small amount of marijuana" when they searched the hotel room. (Id., p. 30-31.) He agreed with defense counsel's characterization of the amount of marijuana as "a minor misdemeanor, a bag of it." McLaughlin conceded that no mention of the marijuana was made in the police report and that Appellant was not charged for marijuana possession.
{¶22} At the suppression hearing, McLaughlin was asked, "Were you able to ascertain whether or not those pants belonged to [Appellant]?" (Id., p. 22-23.) McLaughlin responded, "He denied that they belonged to him." However, it is not clear from the hearing testimony whether McLaughlin asked Appellant about his ownership of the red sweatpants before or after the drugs were found.
{¶23} The red sweatpants were the only pants in the hotel room, and, as a consequence, Appellant donned the red sweatpants when he was taken into custody. The officers determined that the red sweatpants belonged to Appellant the following day when they viewed the hotel surveillance video, which depicted Appellant walking to and from Room 101 in the early morning hours of January 14, 2019 while wearing the red sweatpants.
{¶24} McLaughlin conceded that four law...
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