[W]e conclude that the trial court did not err in finding that Hoff’s search of the vehicle was legally permitted.
State v. Bursey
2021 – Ohio – 2857
Second District Appellate Court
Montgomery County, Ohio
August 20, 2021
On Friday September 6, 2019, Trotwood Police Officer Roger Hoff travelled to 4183 Salem Avenue to Sheikhs Bar and Grill to perform a permit check, which he described as a routine check frequently done by the police department to ensure that local bars are in compliance with their permits and to deter illegal activity.
Officer Hoff observed Mr. Bursey sleeping in the parking lot at 4183 Salem Avenue, Trotwood, Ohio at the Sheikhs Bar and Grill. The events that followed led to an arrest, conviction and appeal by Mr. Bursey.
Officer Hoff parked his cruiser in the tavern’s parking lot and walked toward the entrance to the bar. At that time, he noticed a Jeep that was backed into a parking spot but still running. As he passed the front of the Jeep, Officer Hoff observed a man lying back with his head slumped forward and his eyes closed. The man, later identified as Mr. Charles Bursey III, appeared to be asleep or possibly unconscious. What Officer Hoff did not know, in the moment, was that Mr. Bursey recently finished consuming some marijuana and was taking a pre-Sheikhs power nap. Officer Hoff shined his flashlight through the windshield, but Mr. Bursey continued his marijuana inspired rest.
Mr. Hoff then went to the back of the car and called in the license plate number for a vehicle check. He also called for backup. Mr. Hoff then went to the passenger window to determine whether the car was in park and whether Mr. Bursey’s foot was on the brake. As Officer Hoff shined his flashlight through the passenger window, he noted Mr. Bursey still failed to react. Officer Hoff also observed a Glock handgun with an extended magazine in Mr. Bursey’s lap.
Officer Hoff moved toward another vehicle and positioned himself so that he would not be harmed if the Jeep moved, or the gun discharged. As backup officers arrived, Officer Hoff noted Mr. Bursey began to move. Officer Hoff observed Mr. Bursey leaning forward and down as if attempting to conceal something. Mr. Bursey was exiting the car when he noticed Officer Hoff and the other officers, all of whom had their weapons drawn. Mr. Bursey complied with instructions to keep his hands visible. One of the assisting officers placed handcuffs on Mr. Bursey. When Officer Hoff approached the vehicle, he smelled the odor of marijuana emanating from within. No other occupants were in the car.
Mr. Bursey testified at trial. According to Mr. Bursey, he had been in the Jeep with friends during the course of the day prior to going to Sheikhs. Mr. Bursey testified that his girlfriend had been driving. He testified that they parked at the bar and the others went inside. However, Mr. Bursey testified that he was feeling drowsy and decided to remain in the vehicle; he began to get hot so he crawled into the driver’s seat and turned the Jeep on so that the vehicle’s air conditioner could be activated. Mr. Bursey testified that he fell asleep but had awakened and was exiting the Jeep to go into the bar when the police officers confronted him.
Mr. Bursey further testified that the Jeep did not belong to him and he did not have a gun in his lap when he fell asleep in the vehicle. Mr. Bursey testified that he normally keeps his two cellphones in his lap whenever he is sitting in a car, and that Officer Hoff may have seen the phones and thought they were a gun. However, Mr. Bursey admitted that he did not remember whether the phones were actually in his lap at that time.
A search of the Jeep was conducted. The Glock, with an inserted magazine, was located under the driver’s seat. The gun had a bullet loaded in the chamber, and the magazine contained thirty-one rounds of ammunition. The gun was later determined to be fully operable. Clear gel caps, which Officer Hoff suspected contained heroin, were located in the driver’s side door compartment and the glove box. The substance in the capsules was tested by a forensic scientist employed by the Ohio Bureau of Criminal Investigation (BCI). All of the capsules contained heroin and fentanyl. One of the capsules also contained cocaine. Sixteen of the capsules also contained acetyl fentanyl.
On December 3, 2019, Bursey was indicted on one count of having weapons under disability in violation of R.C. 2923.13(A)(3), one count of improper handling of a firearm in a motor vehicle in violation of R.C. 2923.16(B), one count of possession of a fentanyl-related compound in violation of R.C. 2925.11(A), one count of possession of heroin (10-50 unit dose) in violation of R.C. 2925.11(A), and one count of possession of cocaine (less than 5 grams) in violation of R.C. 2925.11(A). Bursey filed a motion to suppress evidence in January 2020. Following a hearing, the trial court denied the motion.
Following the trial, the jury convicted Bursey on all the charges except for the charge of improper handling of a firearm in a motor vehicle. The trial court sentenced
him to an aggregate prison term of twelve months.
Mr. Bursey appealed his conviction based on the search of the Jeep was unlawfully conducted by Officer Hoff. The Second District Appellate Court concluded the search of the Jeep was lawful when Officer Hoff smelled the odor of burnt marijuana. On September 20, 2000 the Supreme Court of Ohio established that the smell of marijuana can establish probable cause in State v. Moore, 90 Ohio St.3d 47, 51 (2000) wherein the court held “The smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.”. Therefore the Second District Appellate Court held in this case, “[W]e conclude that the trial court did not err in finding that Hoff’s search of the vehicle was legally permitted.”.
Information for this article was obtained from State v. Bursey, 2021 – Ohio – 2857. The case was issued by the Second District Appellate Court which is binding in Champaign, Clark, Darke, Greene, Miami and Montgomery Counties.
- Conducting bar checks is often vital to keeping the community safe. Did Officer Hoff prevent indiscriminate violence that evening? Of course, we will never know but what is factual is that Mr. Bursey did not have the opportunity to utilize his Glock with thirty-one rounds while impaired because of Officer Hoff’s excellent law enforcement.
- The court examined the investigative detention, in part, based on the Plain View Doctrine. The Plain View Doctrine has three elements that must be met:
The U.S. Supreme Court established the Plain View Doctrine on Monday June 4, 1990 in Horton v. California, 496 U.S. 128 (1990). There are three elements that must be present for the doctrine to be lawful:
Law enforcement must be legally on the premises from where the observation is made.
Law enforcement must not violate the Fourth Amendment to make the observation.
Incriminating nature of the item must be immediately apparent.
Id at 142.
If one of these elements is not met, then the Plain View Doctrine will be violated and there is a strong chance the evidence will be suppressed.
In this case Officer Hoff was legally on the parking lot of Sheikhs Bar and Grill. He did not violate the Fourth Amendment when he looked inside the Jeep where Mr. Bursey was in his marijuana inspired rest. Finally, the incriminating nature of a Glock handgun with an extended magazine was immediately apparent. Though Mr. Bursey was not convicted of Improper Handling of a Firearm in a Motor Vehicle, having a firearm outside of a liquor establishment, most especially when passed out would lead a reasonable officer to believe that criminal activity was afoot.
For more information on the Plain View Doctrine see Can an Incomplete Search Warrant Create a New Legal Doctrine?.
- Officer Hoff did well to establish Reasonable Suspicion that began as a gut feeling that something was wrong in the Sheikhs parking lot.Most of the time when law enforcement officers have a gut feeling it is correct, but a gut feeling is not enough for legal justification to stop and detain. In this case Officer Hoff properly worked his way through each legal step; gut feeling – Reasonable Suspicion which led to Probable Cause. Well done Officer Hoff! For more information on Officer Hoffs’ gut feeling see; Officer Williams’ Gut Feeling was Scientifically Accurate But Was It Legally Justified?.
Does your agency train on Investigative Detention?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!