State v. Trammer, 2005 Ohio 3852 (OH 7/28/2005)
| Decision Date | 28 July 2005 |
| Docket Number | No. 85456.,85456. |
| Citation | 2005 Ohio 3852 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Donnell Trammer, Defendant-Appellant. |
| Court | Ohio Supreme Court |
William D. Mason, Cuyahoga County Prosecutor, Mary McGrath, Assistant County Prosecutor, 8th Floor Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, for Plaintiff-Appellee.
Kevin M. Cafferkey, Brian Moriarity, 2000 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113, for Defendant-Appellant.
JOURNAL ENTRY and OPINION
{¶ 1} Appellant Donnell Trammer appeals his convictions for possession of drugs and criminal tools. Trammer assigns the following three errors for our review:
{¶ 2} Having reviewed the record and requisite law, we affirm Trammer's convictions. The apposite facts follow.
{¶ 3} The Cuyahoga County Grand Jury indicted Trammer for possession of drugs, drug trafficking, and possession of criminal tools. Thereafter, a jury convicted Trammer on the drug possession and criminal tools counts, but not on the drug trafficking charge.
{¶ 4} While proceeding westbound down Lenacrave Avenue near East 126th Street in Cleveland, officers Michael Shay and his partner, Joseph Sedlac, observed a vehicle stopped in the middle of the street, impeding the flow of traffic. Pedestrians were standing around the vehicle; two vehicles had to drive around the vehicle in order to pass by.
{¶ 5} Officer Shay activated his lights and siren, and Trammer drove his car into a nearby driveway. As the officers approached the car, they immediately noticed a strong odor of marijuana. At that point, Officer Shay ordered Trammer out of the car. Trammer appeared excited and nervous. He told the officer that he did not have any drugs and offered to show the officer his driver's license and insurance card. Officer Shay patted Trammer down for weapons prior to placing him in the back of the patrol car. He then ran a computer check to verify if any outstanding warrants were issued for Trammer or his passenger, Bernard Price. The computer search indicated the vehicle belonged to Trammer and that he had no outstanding warrants.
{¶ 6} While Officer Shay dealt with Trammer, Officer Sedlac ordered Price to place his hands on the dashboard and remain seated. While still seated in the car, Price turned to Officer Shay and told him that he had a bag of "weed," which he retrieved from his pants pocket and gave to the officer. Officer Sedlac ordered Price out of the car. While conducting a pat-down search for weapons, the officer discovered a large bulge in Price's left pants pocket. Price told the officer that he "got him" and that he had another bag of weed. The officer retrieved the second bag and placed Price under arrest. Price was placed in the back of the squad car with Trammer.
{¶ 7} Officer Shay then proceeded to conduct an search of the car. He retrieved three bags of cocaine, which were pushed down between the passenger seat and the center console of the car. The total weight of the cocaine was 7.03 grams and was estimated to have the street value of between $500 and $1,000. $500 was confiscated from Trammer.
{¶ 8} The jury found Trammer not guilty of drug trafficking, but guilty of possession of drugs and criminal tools. The trial court sentenced Trammer to a mandatory term of one year for drug possession and six months for possession of criminal tools to run concurrently. In addition, the trial court imposed a $5,000 mandatory fine.
{¶ 9} Trammer argues in his first assigned error that counsel was ineffective for failing to file a motion to suppress the evidence.
{¶ 10} This court reviews a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington.1 Under Strickland, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance.2 To show prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different.3 Judicial scrutiny of a lawyer's performance must be highly deferential.4
{¶ 11} We disagree with Trammer's contention that his counsel was ineffective for failing to seek to suppress the recovered evidence. We do not find the stop or search in the instant case was illegal.
{¶ 12} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures.5 A traffic stop by a law enforcement officer must comply with the Fourth Amendment's reasonableness requirement.6 A police officer may stop and detain a motorist when he observes a violation of the law, including any traffic offense. No independent reasonable and articulable suspicion of other criminal activity is required under Terry.7
{¶ 13} It is undisputed that Trammer's car was stopped in the middle of the street, impeding traffic. This traffic violation provided probable cause for the officers to stop and detain the vehicle for the purpose of issuing a warning or a citation for that violation.8
{¶ 14} Ordering Trammer out of the vehicle was also lawful. The United States Supreme Court in Pennsylvania v. Mimms9 held that a police officer may order a motorist to get out of a car which has been properly stopped for a traffic violation. The Court held that this was lawful even when there is no suspicion of other criminal activity. "What is now referred to as a `Mimms order' was viewed by the Court as an incremental intrusion into the driver's personal liberty which, when balanced against the officer's interest in protection against unexpected assault by the driver and against accidental injury from passing traffic, is reasonable under the Fourth Amendment."10 In the instant case, not only was Trammer stopped for a traffic violation, but the officer also suspected other criminal activity was taking place because of the smell of marijuana.
{¶ 15} We also conclude the subsequent search of the vehicle was lawful. Upon approaching the vehicle, both officers smelled a strong odor of marijuana. The Ohio Supreme Court has held "the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle, pursuant to the automobile exception to the warrant requirement."11 Thus, the search of the vehicle was permitted.
{¶ 16} Trammer claims he was then illegally placed under arrest and placed in the squad car. Trammer contends the arrest was not supported by probable cause because the cocaine was not yet discovered. However, the evidence at trial does not indicate that Trammer was placed under arrest at this time. Instead, Officer Shay testified Trammer was "secured" in the back of the squad car.12 He then ran a computer check on both men to determine whether they had any outstanding warrants while Officer Sedlac searched the vehicle.
{¶ 17} Officer Sedlac stated that after he discovered the cocaine, the officers' supervisor was called to the scene. After the supervisor reviewed the evidence both men were arrested.13 Therefore, Trammer's arrest was lawful.
{¶ 18} Finally, Officer Shay testified his pat-down search of Trammer prior to placing him in the patrol car did not reveal anything incriminating. Accordingly, Trammer's first assigned error is overruled.
{¶ 19} Trammer argues in this second and third assigned errors that the evidence was insufficient to support his convictions, and that the convictions were against the manifest weight of the evidence. Trammer contends he did not have actual nor constructive possession of the drugs, and that his acquittal of the drug trafficking charge mandates an acquittal of his possession of criminal tools charge.
{¶ 20} The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman:14 "Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt."15
{¶ 21} Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks,16 in which the Ohio Supreme Court held:
{¶ 22} When the argument is made that the conviction is against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence, not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Ohio Supreme Court held, in State v. Thompkins:17
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