Mr. Brown believed that because the smell of weed was not that pungent, the trooper could not conduct an in-depth search of the truck cab. A unique legal argument but would the Sixth District Appellate Court smell it the same way?
[W]e find, based on the evidence in the record and the holding in Moore, that Trooper Beyer had probable cause to conduct a warrantless search of the truck’s cab, which search did not violate appellant’s Fourth Amendment rights. Further, pursuant to the holding in Ross, we find Trooper Beyer was justified in searching the entire cab of the truck.
State v. Brown
2021 – Ohio – 753
Sandusky County, Ohio
March 12, 2021
On September 5, 2018, Ohio State Highway Patrol Christopher Beyer was in a marked patrol car, in uniform, on patrol. He was on the Ohio Turnpike in Sandusky, Ohio “in the 84 pull-off,” standing next to his patrol car, when he observed “a semi come over a hill.” The truck was in the center lane with no vehicles in front of it, and it appeared to be speeding. Tr. Beyer activated his laser, tracked the truck, and received readings of 78, 77 and 76 miles per hour; the posted speed limit was 70 m.p.h. Tr. Beyer described his training on the laser device and detailed the device’s calibration. The trooper “flagged” the truck to pull over and the truck stopped by the roadside.
Tr. Beyer approached the truck, asked if he could open the passenger
door, and upon opening the door, smelled an odor of raw marijuana. The trooper advised the driver, later identified as Mr. Adrian Brown, that he was stopped for speeding, and asked him for his license, registration and insurance. Tr. Beyer then noticed a small can on the right front floor of the truck with “a little small piece of marijuana bud that was smaller than my pinkie fingernail.” Mr. Brown would later learn that a small amount of probable cause can go a loooong way.
Tr. Beyer asked Mr. Brown to step out of the truck. Mr. Brown was only wearing boxer shorts, so he “goes into the back bunk there, cause it was a sleeper cab. It’s got a bunk bed in the back, a single mattress.” Mr. Brown put on pants and stepped out of the truck. Mr. Brown walked to the front of the patrol car, where Tr. Beyer handcuffed him, read him his Miranda rights and placed him in the backseat of the patrol car. Mr. Brown was “placed in investigative detention” based on the bud of marijuana, the odor of raw marijuana, and handcuffed for the trooper’s safety because of “the known nexus between drugs and guns.”
At that point, Tr. Beyer said he had “probable cause to search the vehicle because of the odor of raw marijuana and the plain view of the marijuana residue or the flower – – bud.” Essentially the Reasonable Suspicion doctrine blossomed into Probable Cause. Tr. Beyer stated he did not ask for Mr. Brown’s permission to search the truck’s cab, as his permission was not needed. After Trooper Missig arrived, Tr. Beyer searched the entire cab of the truck, starting with the front half, then the second half or sleeper area. Tr. Beyer testified the cab was “all one open area, [there was] a little curtain that wasn’t
closed.”. What was behind curtain #1? A felony of course! Tr. Beyer found and seized another bud of marijuana, a pack of rolling papers and a loaded handgun under the pillow in the bunk area. Mr. Brown was placed under arrest. Tr. Beyer sent the marijuana buds to the state patrol crime lab; no tests were run on the buds.
Mr. Brown notes Tr. Beyer did not testify that, after he smelled raw marijuana and saw a marijuana flower in plain view, he observed any violations of law which would lead him to suspect Mr. Brown was harboring additional contraband in the truck. Nor did Tr. Beyer testify that he detected an overwhelming odor of raw marijuana, which appellant asserts would have justified probable cause to believe a large quantity of marijuana was in the truck’s cab. Since a strong odor of marijuana was not detected and two marijuana flowers were found by the trooper in the truck’s cab, Mr. Brown contends there was no probable cause to search the remainder of the cab for additional contraband. Unfortunately for Mr. Brown he had not reviewed What’s in Bandit’s Paper Bag? before filing for this appeal. If he had, Mr. Brown may have saved the filing fees for the appeal.
Mr. Brown filed a Motion to Suppress the handgun, which was denied by the trial court. He plead no contest and was found guilty. Mr. Brown then filed an appeal to the Sixth District Appellate Court. His primary argument to suppress the firearm centered on the smell of marijuana, though present, was not pungent enough to justify a search beyond the buds. In other words, Mr. Brown wanted a ruling that a faint smell of marijuana would permit a limited search of a vehicle while a pungent smell would permit a more in-depth search. But Yo! … Mr. Adrian Brown did not have a nose for probable cause.
The Sixth District evaluated Mr. Brown’s appeal and held “The Supreme Court of Ohio has determined “[T]he 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. There need be no other tangible evidence to justify a warrantless search of a vehicle.” State v. Moore, 90 Ohio St.3d 47, 48 (2000). The court went on to state “With respect to the warrantless search of the truck, we find probable cause existed to conduct the search. The record contains competent, credible evidence that Trooper Beyer was adequately qualified to recognize the smell, as well as the sight, of marijuana. The trooper testified he had specialized training in the recognition and detection of marijuana and had over 15 years of experience as a law enforcement officer, which included no less than 1,000 marijuana-related instances. No evidence was presented to dispute the trooper’s qualification to recognize marijuana. Hence, we find, based on the evidence in the record and the holding in Moore, that Trooper Beyer had probable cause to conduct a warrantless search of the truck’s cab, which search did not violate appellant’s Fourth Amendment rights. Further, pursuant to the holding in Ross, we find Trooper Beyer was justified in searching the entire cab of the truck.”.
Information for this article was obtained from State v. Brown, 2021 – Ohio – 753. The case was decided on March 12, 2021. This decision is binding on all Sixth District counties: Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood. For the rest of the state this case is considered persuasive. Law enforcement agencies in other counties do not have to follow the decision as it is considered instructive.
- In 2000 the Supreme Court of Ohio issued State v. Moore, 90 Ohio St.3d 47, 48 (2000) that held law enforcement can search a passenger compartment if the officer smells marijuana. The smell could be either burnt or raw marijuana and the search would involve any place the marijuana could reasonably be concealed. Specifically, the court held ““[T]he 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. There need be no other tangible evidence to justify a warrantless search of a vehicle.”.
- With the probable cause established by Tr. Beyer’s smell of marijuana he could search the passenger compartment of the truck cab. That authority was established from a paper bag in Philadelphia, Pennsylvania a few days after Thanksgiving in 1978. In that case a felon with the street name Bandit provided law enforcement the doctrine of searching packages in motor vehicles if the officer established probable cause in United States v. Ross, 456 U.S. 798 (1982). The U.S. Supreme Court held “[I]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id at 825. See also What’s in Bandit’s Paper Bag?.
- Possession of marijuana that is not prescribed for medical usage remains unlawful in Ohio. However in July 2019 Ohio Senate Bill 57 became effective that legalized hemp. The smell of hemp and marijuana are indistinguishable. So, if the same fact pattern occurred with Mr. Brown from September 2018, more information would be required to establish probable cause that there was marijuana in the cab of the truck and not hemp. In this case Tr. Beyer did excellent work to use the probable cause from the smell of marijuana to eventually search for and find the firearm.
- Adrian Brown, or more likely his attorney, created the unique argument that the faint smell of marijuana should have limited the search commensurate with the light aroma. If this argument would have been sanctioned by the court, it would have created a difficult legal test for officers to understand and even more challenging to articulate. Well, uhm … you see … I smelled a medium smell of weed … it was like when … gosh … strong but not ‘that’ strong. So that is why I only searched the center console and not the back-seat area. Under both Ross and Moore, if law enforcement smells marijuana and not hemp, that would establish probable cause to reasonably search the entire passenger compartment of a vehicle.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!