Patrolman Headley’s detection of the odor of marijuana, alone, is sufficient to establish probable cause, no other evidence is needed to support the search.
State v. Davis
2020 – Ohio – 4821
Seventh District Court of Appeals
Columbiana, County Ohio
September 25, 2020
On Tuesday February 12, 2019, the Columbiana County Drug Task Force, conducted surveillance at a residence at 812 Dresden Avenue, East Liverpool, Ohio. At some point, the targeted subjects left the residence in a black Chevy Impala. The task force members radioed to uniformed law enforcement information about the departure of the targets and described their vehicle as a black Impala with significantly tinted windows.
The Columbiana County Drug Task Force observed a hand to hand transaction outside of 812 Dresden Avenue, East Liverpool, Ohio.
Shortly after the call, East Liverpool Officer John Headley and Officer Christopher Green observed a vehicle matching this description driving south on Dresden Avenue. According to Officer Headley, the window tint was so dark he could not see the driver. The cruiser, which had been driving north on Dresden Avenue, turned around and followed directly behind the Impala. The Impala travelled in the right lane, which is a turning lane, and stopped at a red light. Another vehicle was stopped in the left lane, which continues south on Dresden Avenue. When the traffic light changed to green, the driver of the Impala did not turn right but continued south on Dresden Avenue, cutting off the vehicle in the left lane. The cruiser pulled around the other vehicle, which was now between the Impala and the cruiser, and initiated a traffic stop of the Impala.
Officer Headley and Officer Green approached the vehicle and ordered the passengers to roll down the windows for safety purposes, as the window tint was too dark for the officers to see inside the vehicle. As soon as the windows were rolled down, Officer Headley could detect a strong odor of burnt marijuana. The officers asked the driver, later identified, as Mr. Keylan Davis and his passenger, if there was anything illegal in the vehicle. They responded “No.”. However, they were lying.
The officers informed Mr. Davis that they had pulled him over because the window tint appeared to be above the legal limit. At some point, Officer Green brought his Canine, Nero, out of the car and walked him around the Impala. Officer Green informed Officer Headley that Nero had alerted twice at the vehicle.
Both people were ordered out of the car, just as it began to drizzle. As soon as Mr. Davis exited the car, a plastic bag containing an unknown brown powder was seen emerging above his front right pocket. Officer Headley asked him about the powder substance, and he replied that it was “nothing” [other than a felony] and that the officer could remove it if he desired. Officer Green took the baggie from Mr. Davis pocket. Officer Headley then observed a pair of silver digital scales and “paper folds,” consistent with drug packaging, emerging from the front pocket of Mr. Davis’ hooded sweatshirt. The officers then patted down both Mr. Davis and his passenger.
Captain Patrick Wright arrived at the scene and alerted the officers that Mr. Davis had thrown suspected drugs on the ground. The officers located plastic bags containing an unknown white powder on the ground.
Officer Headley conducted a test of the window tint. His test revealed that the window tint had seventeen percent light transmission, well below the legal limit of fifty percent.
Mr. Davis and his passenger were arrested. Mr. Davis was charged with one count of Possession of Marijuana, a minor misdemeanor in violation of R.C. 2925.11(C)(3), and Possession of Drug Paraphernalia, a misdemeanor of the fourth degree in violation of R.C 2925.14. Mr. Davis was also cited for the window tint violation.
Mr. Davis filed a Motion to Suppress the ‘nothing’ bag and the ‘littered’ bag were felony level narcotics. Those charges would be held in abeyance pending the outcome of this appeal. The state presented the testimony of Officer Headley but did not call Officer Green as a witness. At the conclusion of the hearing, the trial court granted the Motion to Suppress based on the failure of the state to call Officer Green to testify.
The State of Ohio appealed on two grounds:
- Even though Officer Green signed the misdemeanor citation, he did not need to testify in the Motion to Suppress Hearing.
- Officer Green and Officer Headley had probable cause to search the vehicle based on the odor of marijuana.
The Seventh District Appellate Court held (1) “Despite the trial court’s statement that the officer who signs a misdemeanor citation must testify at a motion to suppress hearing, Ohio law contains no such rule.” And (2) “Patrolman Headley’s detection of the odor of marijuana, alone, is sufficient to establish probable cause, no other evidence is needed to support the search.”.
In July 2020 Mr. Davis was shot in the back in Youngstown, Ohio. He was charged with Possession of Cocaine out of that incident.
https://www.wfmj.com/story/38718959/victim-of-youngstown-shooting-arrested-on-drug-charges
Then, less than one month after the Seventh District Appellate Court issued this decision Mr. Davis was shot and killed in Austintown, Ohio.
https://www.vindy.com/news/local-news/2020/10/man-charged-in-austintown-killing/
Information for this article was obtained from State v. Davis, 2020 – Ohio – 4821 and a phone interview with Officer Chris Green on March 11, 2021.
Lessons Learned:
- Officer Green and Officer Headley properly used the traffic code to effectuate a traffic stop that materialized into a felony drug investigation. Law enforcement must always be knowledgeable of the traffic code.
- The case does not state why Officer Green was not called to testify and it clearly would have been better had he testified. However, simply because he signed a citation does not mandate that he testify when another officer had firsthand knowledge of the facts. The trial judge erred by granting the Motion to Suppress on this single legal ground. The error simply delayed Mr. Davis’ conviction.
- Law enforcement can establish probable cause to search the passenger compartment with the smell of marijuana so long as the officer is trained. This was established by the Supreme Court of Ohio in State v. Moore, 90 Ohio St.3d 47 (2000). On March 22, 2020 the State of Ohio legalized hemp in Senate Bill 57 [this should have been Senate Bill 420]. A person can legally ingest hemp in the State of Ohio. Since hemp and marijuana will have a similar smell the officer must establish probable cause to reasonably believe that the smell is burning or raw marijuana and not hemp. This can be done by asking the consumer if he is smoking marijuana. There are other ways to establish probable cause, but the officer must clarify that the person is not ingesting hemp to establish probable cause to trigger a search of the passenger compartment based on Moore.
Does your agency train on Marijuana and Hemp Laws?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!