Although we do not find the search of appellant’s person was justified, we find the inevitable discovery rule to apply. Under the inevitable discovery rule, “illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation.
State v. Noteboom
2020 – Ohio – 1223
Fifth District Appellate Court
Richland County, Ohio
March 23, 2020
In July 2018 Trooper Shane Morrow clocked a motor vehicle driving in excess of the speed limit in Richland, County, Ohio. He stopped the vehicle and completed a passenger-side approach. The vehicle was a small hatchback car, and all he could see was a driver, a front seat passenger, and luggage stacked to the roof. Tpr. Morrow detected the odor of burnt marijuana emitting from the vehicle and while speaking with the driver, noticed the driver’s “speech was slurred and he was possibly impaired.” He had the driver exit the vehicle and conducted a pat-down for weapons. Tpr. Morrow could smell the odor of burnt marijuana on the driver’s person. Eventually the front seat passenger was removed from the vehicle and a pat-down was conducted on that individual as well. About five minutes after Tpr. Morrow stopped the vehicle, another trooper arrived to assist.
Based on the odor of burnt marijuana, Tpr. Morrow conducted a search of the vehicle for any marijuana. Almost immediately he found a plastic bottle containing what he believed to be marijuana, and what he suspected was “an electronic smoking device.” After searching the front of the vehicle for a few minutes, Tpr. Morrow detected a passenger in the rear of the vehicle surrounded by the luggage. The rear passenger was later identified as Mr. Michael Noteboom, appeared to be passed out and sleeping. After waking up, Mr. Noteboom was removed from the vehicle, patted down for weapons, and searched. Tpr. Morrow testified that Mr. Noteboom was searched because of the “odor of burnt marijuana emitting from the passenger compartment” and the “found contraband loose within the vehicle.” The marijuana found in the vehicle was within Mr. Noteboom’s arm reach. Tpr. Morrow testified that exigent circumstances existed to search appellant’s person. Mr. Noteboom “possibly could have contraband on his person that could be destroyed or tampered with, or he could also ingest while we are up searching the vehicle and then harm himself.” Upon searching Mr. Noteboom’s person, Trooper Morrow found a plastic bag in his pants pocket containing smaller bags each holding “a brown powder.” That brown powder would later test positive for heroin. At that point, Mr. Noteboom was placed under arrest and handcuffed. A backpack was found near Mr. Noteboom that contained more heroin, marijuana, cocaine and his California driver’s license. Tpr. Morrow did not detect an odor of marijuana on Mr. Noteboom.
Mr. Noteboom filed a Motion to Suppress the search of his person and backpack which the trial court denied. He plead No Contest, was found guilty and sentenced to eleven years in prison. He appealed the denial of the Motion to Suppress to the Fifth District Appellate Court which held “Although we do not find the search of appellant’s person was justified, we find the inevitable discovery rule to apply. Under the inevitable discovery rule, “illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation.”. Nix v. Williams, 467 U.S. 431 (1984). Consequently, California Mike will be in Ohio for eleven years.
Californian Mike Notebloom’s Ohio Department of Rehabilitation and Corrections page.
Information for this article was obtained from State v. Noteboom, 2020 – Ohio – 1223.
This case was issued by the Fifth District Appellate Court which is binding in the following counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned:
- The court took considerable time to analyze the step-by-step search of Tpr. Morrow. The stop of the vehicle was lawful since the unnamed driver was speeding. On first approach he smelled a strong odor of burnt marijuana and could search the passenger compartment based on State v. Moore, 90 Ohio St.3d 47, 51, (2000). He could remove the driver and front seat passenger based on Pennsylvania v. Mimms 434 U.S. 106 (1977) and Maryland v. Wilson 519 U.S. 408 (1997) For more information on removing vehicle occupants during traffic stops see Don’t Just Sit There!. Thereafter because of the burnt marijuana smell Tpr. Morrow could search the vehicle for more marijuana based on probable cause to include the containers within the vehicle. This authority originated in S. v. Ross, 456 U.S. 798, 799, (1982) and Wyoming v. Houghton, 526 U.S. 295, 302, (1999) for more information on probable cause searches in motor vehicles see What’s in Bandits Paper Bag? and Not My Bag! Defense Fails and Expands the Motor Vehicle Exception.
- Morrow did error when he searched Mr. Noteboom’s person’s following the initial pat down. But in a rare case the Fifth District Appellate Court applied the Inevitable Discovery Doctrine to the search of a person. This doctrine originated in Nix v. Williams, 467 U.S. 431 (1984) but in that case they were looking for the body of a ten year old girl in a field and the prosecution proved that they were looking in adjacent fields and would have ‘inevitably discovered’ the body even without the tainted confession of the suspect. Here, the court determined that the discovery of the heroin in Mr. Noteboom’s pockets was unlawful. However, the heroin would have been inevitably discovered after the search of the narcotics filled backpack with Mr. Noteboom’s California Driver’s License. The Fifth District Appellate Court addressed this issue when it held “Although we do not find the search of appellant’s person was justified, we find the inevitable discovery rule to apply. Under the inevitable discovery rule, “illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation. Nix v. Williams, 467 U.S. 431, (1984) The discovery of the backpack containing drugs and appellant’s identification during the lawful investigation of the vehicle would justify placing appellant under arrest. He would have been searched incident to a lawful arrest, and the contraband in his pocket would have been discovered.”.
- This is a rarity where a court will apply the seldom-used Inevitably Discovery Doctrine for the search of a person. Law enforcement officers should never rely on the Inevitably Discover doctrine during an investigation, as that should be reserved for prosecutors to argue when the primary legal argument fails. In this case Tpr. Morrow had a lot of going on when he stopped this traveling illicit pharmacy for a simple speed violation. This traffic stop is an example of how quickly traffic stops can escalate in crime and legal complexity. Another fine example of why law enforcement is the hardest job in America!
Does your agency train on Vehicle Searches?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!