Appellant’s sole use of Room 101 was selling illegal narcotics in Room 101. Accordingly we find that Vervin was the sole occupant of Room 101 and Appellant was not an overnight guestAs a consequence, Appellant had no legitimate expectation of privacy in Room 101 that society is prepared to recognize as reasonable and no standing to challenge the search of the hotel room.

State v. Smith

2021 – Ohio – 3330

Seventh District Appellate Court

Columbiana County, Ohio

September 15, 2021

Brian McLaughlin, the director of the Columbiana County Drug Task Force and a detective with the East Palestine Police Department, provided the only testimony offered at the suppression hearing. Three exhibits were admitted into evidence at the hearing: A registration from the Days Inn, 40952 State Route 154 in Columbiana County, a receipt captioned “folio” from the Days Inn, and a consent to search form. Defense counsel used a police report to cross-examine McLaughlin, but the report was not admitted into evidence.

Days Inn, 40952 State Route 154, Lisbon, Ohio.  Room #101 was a festival of probable cause and the genesis of this appeal.

On Monday January 14, 2019, Det. Brian McLaughlin, Director of the Columbiana County Drug Task Force and a detective with the East Palestine Police Department, was contacted by the Lisbon Police Department at 9:15 a.m. to provide assistance at the Days Inn. Hotel staff reported that “a male subject was high in the parking lot.

Det. McLaughlin was accompanied to the Days Inn by Detective Kody Watkins, Chief Mike Abraham, who was in uniform, and “Lieutenant Daub.” Det. McLaughlin, Det. Watkins, and Lt. Daub were in plain clothes, but their badges, which identified them as law enforcement officers, were clearly visible.

When the four officers arrived at the Days Inn, the male suspect, identified as Mr. Ben Eastman, was seated in the backseat of a Lisbon Police Department patrol car, which was parked in the BP Fuels parking lot, adjacent to the Days Inn. Det. McLaughlin recognized Mr. Eastman from a 2013-2014 narcotics case, where Mr. Eastman was identified as a “runner” for Mr. Kendall Smith Jr., who is the prime suspect and appellant in this case.  Mr. Eastman was a runner for several other drug dealers in Columbiana County as he was well networked better than a robust LinkedIn account. Det. McLaughlin knew Mr. Smith from a prior trafficking case from 2017 or 2018, however, Mr. Smith was not the subject of a present investigation … at this time. A search of Mr. Eastman’s person yielded a hypodermic needle.

When Det. McLaughlin questioned Mr. Eastman, he “indicated that the room that he had been staying in [Days Inn Room 101], he was the only one in the room, and that Mr. Smith left about 1:00 a.m. But there was nobody in the room at this point in time.” Later in his testimony, Det. McLaughlin stated that Mr. Eastman told him that “Kendall [Mr. Smith] had left the room and that there was another girl there earlier too, but she had also left.” As a consequence, Det. McLaughlin presumed that Room 101 was unoccupied.

Days Inn Room 101 was registered to Ms. Kris Vervin. The Days Inn receipt reflects that she rented the hotel room for one night and she was the only guest. She checked in at 2:55 a.m. Staff members at the Days Inn reported a “large amount of traffic in and out of [Room 101] through the night.” Contrary to the information provided by Mr. Eastman, the staff members further reported that there was still someone present in Room 101.

Det. McLaughlin provided the following testimony regarding the events that followed:

The housing [sic] said they could go down – housekeeping said they would go down and knock on the door, but they would like us to go with them. Which we did do.

They knocked on the door. A male said, “Who is it?” They said, “Housekeeping.” Door opened. Immediately you could smell [raw] marijuana coming from the room.”.

Det. McLaughlin testified that the “housekeeping personnel” knocked on the door then “left the immediate area of the door once the door opened.” Det. McLaughlin further testified that Mr. Smith opened the door “at least halfway,” and that Det. McLaughlin was standing to the left of the door, and Det. Watkins and Chief Abraham were standing to the right of the door.

When Mr. Smith saw a uniformed officer, he rudely “tried to slam the door,” and “Chief Abraham stopped the door from hitting him.” Det. McLaughlin testified that Chief Abraham “just put his foot in front of the door to keep it from hitting him – slamming shut.”

According to Det. McLaughlin, he believed that illegal drugs were present and likely to be destroyed by Mr. Smith in the event that the officers did not immediately enter Room 101. On cross-examination, he testified that he entered the room based on the smell of marijuana, the “high individual coming from the room,” and the needle found on Mr. Eastman’s person. Essentially Room 101 was a probable cause festival.

When the officers entered Room 101, Det. McLaughlin twice ordered Mr. Smith to the ground. Mr. Smith did not comply, so Det. McLaughlin took him to the ground. At the time, Mr. Smith was wearing a white t-shirt and undershorts, and he had the pair of red sweatpants in his hand.  Mr. Smith would later appeal this case claiming the red sweatpants were not his own.

The officers placed Mr. Smith in a chair at a table at the end of the bed. Prior to being seated in the chair, Mr. Smith placed the red sweatpants on the bed. Det. McLaughlin asked Mr. Smith if there were any drugs in the room, based on the odor of raw marijuana and the information from the hotel staff that there had been a considerable amount of traffic in and out of the room during the early morning hours. Mr. Smith denied the presence of any illegal drugs, specifically marijuana.  He of course, was lying as there was a moderate amount of fentanyl and cocaine nestled inside the pockets of the red sweatpants that would soon be discovered.

Mr. Smith told Det. McLaughlin that someone had tried to rob him in Salineville, and Mr. Smith obtained a ride “from somebody” to the hotel in order “to hideout from whomever was trying to rob him in Salineville.”  Mr. Smith further explained that Ms. Vervin had left the hotel room to purchase breakfast for him at the Sheetz gas station. According to Det. McLaughlin’s testimony, a fifth member of law enforcement, “Detective Sheets,” arrived at about that time, and upon entering the hotel room inquired, “[w]ow, where’s the marijuana?

Roughly one-half hour after the officers entered Room101, Ms. Vervin returned. Det. McLaughlin interviewed her in the hallway. Ms. Vervin explained that “she will frequently drive people around.” She retrieved Mr. Smith from Salineville the prior evening and brought him to the Days Inn. Det. McLaughlin testified that “[h]e paid her $50.00 to do that. And put the hotel – paid cash for the hotel.”  Ms. Vervin told the officers that she had left Room 101 to transport a third party to a doctor’s appointment, not to purchase breakfast for Mr. Smith. Evidently Ms. Vernin has more passengers than Uber.

Det. McLaughlin obtained consent from Ms. Vervin to search her purse. The search yielded a crack pipe and a push rod. Next, Ms. Vervin signed a written form in which she consented to a search of the hotel room. During the search, Mr. Smith stated that he had “a bag of clothes” in the hotel room. The only bag of clothes found during the search was a plastic shopping bag from Dollar General, which contained some white t-shirts and “maybe” some socks. However, Det. McLaughlin testified that “[t]hat wasn’t the bag [Mr. Smith] was looking for.”

At some point, Det. McLaughlin searched the pockets of the red sweatpants and found fentanyl, cocaine and oxycodone that formed the basis for the indictment against Mr. Smith. Det. McLaughlin did not provide any testimony regarding the exact contents of the pockets of the red sweatpants.  He testified instead that the contraband was “all in the red sweatpants. I believe it was all in the sweatpants.”

At the suppression hearing, McLaughlin was asked, “Were you able to ascertain whether or not those pants belonged to Mr. Smith?” Det.  McLaughlin responded, “He denied that they belonged to him.” However, it is not clear from the hearing testimony whether Det. McLaughlin asked Mr. Smith about his ownership of the red sweatpants before or after the drugs were found.

The red sweatpants were the only pants in the hotel room, and, as a consequence, Mr. Smith donned the red sweatpants when he was taken into custody. The officers determined that the red sweatpants belonged to Mr. Smith the following day when they viewed the hotel surveillance video, which depicted Mr. Smith walking to and from Room 101 in the early morning hours of January 14, 2019 while wearing the red sweatpants.

Det.  McLaughlin conceded that four law enforcement officers were present in Room 101 when they executed the consent search. He further conceded that Mr. Smith would not have had to be left alone in Room 101 in order to obtain a search warrant.

Mr. Smith filed a Motion to Suppress the drugs and the trial court denied the motion.

Thereafter, Mr. Smith pleaded “no contest” to the first three charges in the indictment: One count of possession of Fentanyl-related compound (equal to or exceeding ten grams but less than twenty grams) in violation of R.C. 2925.11(A), a felony of the second degree (count one); one count of possession of cocaine in violation of R.C. 2925.11(A), a felony of the first degree (count two) (equal to or exceeding twenty-seven grams but less than 100 grams); one count of aggravated possession of drugs (oxycodone) (less than the bulk amount) in violation of R.C. 2925.11(A), a felony of the fifth degree (count three); each with an accompanying forfeiture specification for money in a drug case pursuant to R.C. 2941.1417(A).

Mr. Smith was sentenced to four years on counts one and two, respectively, and ten months on count three, to be served concurrently. Mandatory fines in the aggregate amount of $17,500.00 were imposed. The sentencing entry indicated that a forfeiture order would be issued in the amount of $1,401.00.

Mr. Smith filed an appeal to the Seventh District Appellate Court based on the officer’s entry into Room 101 of the Days Inn and the search of the red sweatpants that Mr. Smith claimed were not his own, even though he was wearing them the day before and holding them at the moment of his seizure.  The Eleventh District Appellate Court held “(1) The housekeeping ruse was permissible.

(2) The officers relied on the odor of marijuana in order to enter the hotel room.

(3) Appellant [Mr. Smith] was aware of their presence and would likely destroy any contraband had the officers failed to immediately enter and secure the contents of Room 101 … [W]e find that the search of the red sweatpants was part of a search incident to arrest.”.

Information for this article was obtained from State v. Smith, 2021 – Ohio – 3330.

The case was issued by the Seventh District Appellate Court and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.

Lessons Learned:

This case is unique because of several factors that were in law enforcement favor.  I believe this was a close call that went in favor of law enforcement as entering the hotel room could have been ruled against law enforcement.

  1. In order for a defendant to challenge a court holding the defendant must have legal Standing. “Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.”.  Black’s Law Dictionary, 1405 (6th 1990).  Here, the Seventh District Court determined that Mr. Smith did not have standing to appeal the entry of the hotel room as a residence because he was not a co-occupant of Room 101 or an overnight guest of Ms. Vervin.  Rather, Mr. Smith was there only to conduct a business transaction.  Had Mr. Smith been a co-occupant of the room with Ms. Vervin or an overnight guest he would have had legal Standing to appeal the entry to the room as a residence.  Here the Seventh District Appellate Court specifically held “[T]he search of Appellant’s pants yielded fentanyl, cocaine and oxycodone, and $1,401.00 in cash.  We find that the assortment of drugs and the substantial amount of money, for which no explanation was provided at the hearing, was competent, credible evidence supporting the trial court’s factual conclusion that Appellant’s sole use of Room 101 was selling illegal narcotics in Room 101. Accordingly we find that Vervin was the sole occupant of Room 101 and Appellant was not an overnight guestAs a consequence, Appellant had no legitimate expectation of privacy in Room 101 that society is prepared to recognize as reasonable and no standing to challenge the search of the hotel room.”.
  2. The court determined that law enforcement was permitted to enter the hotel room under the Exigent Circumstance – Destruction of Evidence Doctrine. The Seventh District Court held “We find that the officers’ entry into Room 101 was justified insofar as Appellant [Mr. Smith] was aware of their presence and would likely destroy any contraband if they did not enter and secure the room.”.  This holding must be contrasted against State v. Jenkins, 104 Ohio App.3d 265 (1995) which held “A warrantless entry of a home by law enforcement authorities even based upon probable cause, cannot be justified by exigent circumstances of their own making.”.  In this case the officers did create their own exigent circumstance by knocking on the door and then smelling the raw marijuana.  This is, in part, why this was a close case that went in favor of law enforcement.  The Jenkins case had similar facts where a detective knocked on the door of an apartment and when Mr. Jenkins ran within the apartment the detective assumed he was going to flush the marijuana, so the detective kicked in the door to find Mr. Jenkins flushing the marijuana.  The First District Appellate Court determined the detective’s entry was unlawful because he created the exigency by knocking on the apartment door.
  3. Smith and his legal team made issue that the fentanyl and cocaine found in the red sweatpants should have been suppressed because the pants were searched some thirty minutes into the investigation. The Seventh District Appellate Court held “[T]he law in Ohio had been long “the right to search incident to arrest exits even if the item is no longer accessible to the arrestee at the time of the search” … As long as the arrestee has the item within his immediate control near the time of arrest, the item can be searched … Therefore, we find that the search of the red sweatpants was valid insofar as the red sweatpants were within Appellant’s immediate control at the time of arrest.”

Does your agency train on Crossing the Threshold and Search Incident to Arrest?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.