[B]ecause the driver of the vehicle was being lawfully detained, the officer was entitled to ask Appellant [Ms. Hopkins], the passenger, to exit the vehicle. Once Appellant’s car door was opened, the odor of marijuana became readily apparent to the officer. At that juncture, the officer had probable cause to search the vehicle and subsequently arrest Appellant for trafficking in marijuana.
State v. Hopkins
2021 – Ohio – 2662
Fifth District Appellate Court
Fairfield County, Ohio
August 3, 2021
On April 23, 2019, Officer Kevin Shively of the Reynoldsburg Police Department was dispatched to the IHOP restaurant at 2413 Taylor Square Drive, Reynoldsburg, Ohio around midnight. Officer Shively is an eleven-year law enforcement veteran of the Reynoldsburg Police Department and previously served with the U.S. Border Patrol in narcotics investigations. Because this case begins at the IHOP at midnight, his experience in narcotics investigation would be beneficial.
Mr. Richardo Henderson and Ms. Ryeisha Hopkins at a meal at the IHOP restaurant at 2413 Taylor Square Drive, Reynoldsburg, Ohio, then hopped out of the restaurant without paying.
The call for service involved a couple that left without paying the bill for their meal at IHOP, and who were described as leaving in a small black sedan. Officer Shively was very close to the area and stopped the black sedan. The car was registered to Ms. Ryeisha Hopkins, who was seated in the passenger seat. Officer Shively initially approached the passenger side of the vehicle and made contact with Ms. Hopkins, the registered owner. Officer Shively did what many officers should – a passenger side approach on his first approach.
Ms. Hopkins only opened her window approximately six inches and Officer Shively stated that he did not smell the odor of marijuana upon his initial approach. His lack of hippie lettuce aroma at this time would be the focus of litigation. Officer Shively then approached the driver of the vehicle, Mr. Ricardo Henderson, who was removed from the vehicle to speak with Officer Shively. Upon completing a LEADS check, it was discovered that Mr. Henderson was not a valid driver. Of course, the passenger Ms. Hopkins, was a valid driver … who wasn’t driving.
IHOP called to report the dine and dash … but then refuses to press charges …
Officer Shively waited for several minutes with Mr. Henderson and Ms. Hopkins for an IHOP employee to hop to the scene and advise as to whether IHOP wanted to press charges. After the IHOP employee hopped to the scene and declined to press charges, Officer Shively began to address the issue of Henderson’s traffic infraction. Officer Shively ultimately issued a citation to Mr. Henderson for the traffic infraction to Reynoldsburg Mayor’s Court.
Officer Shively recognized the getaway car didn’t have that new car smell …
Knowing that he could not allow Mr. Henderson to hop back into the drivers seat and drive away, Officer Shively re-approached Ms. Hopkins at the passenger side of the vehicle. Officer Shively asked Ms. Hopkins to hop out of the passenger seat and he opened the passenger side door. Ms. Hopkins indicated that she did not want to exit the passenger side, instead suggesting she would “swing myself over.” to the drivers seat. This was premeditated and calculated to obscure a felony level amount of weed inside. Almost contemporaneously with opening the passenger side door, Officer Shively smelled the odor of raw marijuana.
Based on the odor of marijuana, Officer Shively proceeded to conduct a search of the vehicle, discovering a bag of what was believed to be marijuana in the glove compartment of the vehicle, along with cash, and another container behind the passenger seat containing what was believed to be marijuana which was packaged for sale.
At the time Officer Shively re-approached Ms. Hopkins on the passenger side of the vehicle, he had not yet issued Mr. Henderson’s traffic infraction ticket. From the time he stopped the vehicle to the time he opened the passenger side door, approximately eleven minutes had elapsed. Though the Fourth Amendment has no time clock time will always be examined by the court based on the reasonableness standard. Most of the eleven minutes was waiting for the IHOP employee to hop to the traffic stop.
On April 23, 2019, Ms. Hopkins was charged with trafficking in marijuana, in violation of R.C. §2925.03(A)(2), to which she entered a plea of not guilty. Ms. Hopkins filed a Motion to Suppress stating that Officer Shively did not have probable cause to search her marijuana-filled car. The trial court denied her motion. She pled No Contest and was found guilty of Trafficking in Marijuana. Ms. Hopkins appealed to the Fifth District Appellate Court which held “[B]ecause the driver of the vehicle was being lawfully detained, the officer was entitled to ask Appellant [Ms. Hopkins], the passenger, to exit the vehicle. Once Appellant’s car door was opened, the odor of marijuana became readily apparent to the officer. At that juncture, the officer had probable cause to search the vehicle and subsequently arrest Appellant for trafficking in marijuana.”.
Information for this article was obtained from State v. Hopkins, 2021 – Ohio – 2662. This case was issued by the Fifth District Appellate which is binding in Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas Counties.
- Ms. Hopkins made several feeble arguments to overturn her conviction. One of the arguments she did not make is that Officer Shively did not have reasonable suspicion to stop her car. Based upon Terry v. Ohio, 392 U.S. 1 (1968), Officer Shively had reasonable suspicion that the black sedan leaving the IHOP had committed a theft offense, often called a dine-and-dash or as the U.S. Supreme Court coined the phrase criminal activity afoot. Therefore, the officer had reasonable suspicion to detain the occupants of the vehicle because it matched the description of the thieves and was contemporaneous to the receipt of the phone call. The investigative detention was not challenged by Ms. Hopkins or her legal team.
- Ms. Hopkins did argue, in part, that Officer Shively was not reasonable to order her out of the car since she was a passenger. The Fifth District Appellate Court held “These rules … apply to passengers. Maryland v. Wilson, 519 U.S. 408, 413–415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (even though reasonable suspicion for the traffic stop itself is only attributable to the driver, passengers can be ordered out for no reason).”.
- Ms. Hopkins other feeble argument focused on Officer Shively did not tell her that she was free to go, therefore the traffic stop was complete, and any further detainment was unlawful. Officer Shively had opened her passenger door to direct her to exit so she could get in the driver’s seat and leave. It was at this moment that Officer Shively smelled the marijuana which led to the probable cause search, arrest and ultimately her conviction. On this argument two judges found in favor of Officer Shively, but Judge William B. Hoffman found in favor of Ms. Hopkins. Judge Hoffman in his dissenting opinion stated “I find the opening of Appellant’s passenger door an impermissible search as no probable cause existed to search the car. It matters not whether the officer did so merely as a courtesy. The smell of marijuana was evident only after the door was opened by the officer. Had he not done so, he would not have been in the position to have smelled the marijuana. Apparently, Appellant intended to exit another door or perhaps planned on moving over to the driver’s seat after she had been told she was free to leave. Regardless of her intention or plan, the officer’s action in opening the door resulted in a search without the existence of probable cause and occurred after Appellant was no longer being lawfully detained.”. This type of legal conclusion omits a common-sense practical conclusion of a traffic stop. Of course, the officer should closely monitor the passenger’s exit of the car to reposition to the driver’s seat. Officers have been seriously hurt and killed by not paying attention to vehicle occupants exiting because the occupant has been armed. On February 4, 2021 New Mexico Officer Darrian Jarrot was shot and killed as a suspect exited his pick up. See here: https://kfoxtv.com/news/local/video-shows-moment-new-mexico-officer-killed-during-traffic-stop-when-asked-for-rifle. I am not sure what Judge Hoffman would have wanted Officer Shively to do once the officer made the conclusion to permit Ms. Hopkins to hop from the vehicle. However, Judge Hoffman went to great lengths to recount the direct and cross examination of Officer Shively in the Motion to Suppress and determined – because Officer Shively told Ms. Hopkins that she was free to go before she exited the passenger seat, any further observation of criminal activity must be suppressed. I commend both Judge Craig Baldwin and Judge John Wise who both held the search of the vehicle was reasonable.
- 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.” In July 2019 Ohio Senate Bill 57 became effective that legalized hemp. The smell of hemp and marijuana are indistinguishable. So, if this same fact pattern occurred today, more information would be required to establish probable cause that there was marijuana in the vehicle and not hemp. However, in April 2019 just weeks before Ohio Senate Bill 57 became effective Officer Shively stopped the vehicle with Mr. Henderson and Ms. Hopkins, therefore the ‘new’ marijuana law had not yet been effective and there was no questioning the lawfulness of the smell of marijuana and subsequent search by Officer Shively.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!