The patrolman’s testimony that Appellant parked his car blocking traffic is sufficient to justify the initial stop of Appellant.
State v. Brunk
2021 – Ohio – 4270
Fifth District Appellate Court
Richland County, Ohio
On Monday October 12, 2020 Mansfield Police Officer Travis Stantz had 251 Sycamore Street under surveillance. In the past, Officer Stantz had made multiple drug arrests originating from the address. At 12:30 a.m. Officer Stantz observed a male, later identified as Mr. Joseph Brunk, exit the residence, get in a vehicle and drive away. Mr. Brunk who routinely violated felony statutes was about to violate a minor traffic violation that would be at the center of his fentanyl possession conviction.
Officer Travis Stantz had made several narcotics arrests originating out of 251 Sycamore Street. The officer made another arrest on October 12, 2020. Soon the suspect … now defendant … would challenge the legality of the encounter. Was the law gray IN court ON Gray Court?
Mr. Brunk turned onto Gray Court and immediately stopped the car on the street, blocking any traffic looking to use Gray Court, a narrow street. Officer Stantz approached the vehicle and made contact with Mr. Brunk. Officer Stantz smelled the odor of raw marijuana. Officer Stantz asked Mr. Brunk to exit the vehicle and observed a small baggie of suspected heroin on the floor. The baggie would later test positive for fentanyl.
Mr. Brunk violated Mansfield Traffic Code §351.11 on Gray Court. Would this traffic violation be enough to overcome Mr. Brunk’s Motion to Suppress?
Mr. Brunk filed a Motion to Suppress, claiming that the officer did not have probable cause to stop him based on blocking Gray Court. The trial court denied the Motion to Suppress. Mr. Brunk plead No Contest and was found guilty. He appealed his conviction to the Fifth District Appellate Court.
The Fifth District Court reviewed the Mansfield Traffic Code §351.11
- No person shall stop, stand or park any vehicle upon a street, other than an alley, in such manner or under such conditions as to leave available less than ten feet of width of the roadway for the free movement of vehicular traffic, except that a driver may stop temporarily during the actual loading or unloading of passengers or when necessary in obedience to traffic regulations or office traffic control devices or signals of a police officer.
- No person shall park a vehicle within an alley in such a manner or under such conditions as to leave available less than ten feet of
the width of the roadway for free movement of vehicular traffic.
Was the law gray IN court ON Gray Court?
The Fifth District Appellate Court upheld the conviction as it held “The patrolman’s testimony that Appellant parked his car blocking traffic is sufficient to justify the initial stop of Appellant the patrolman testified that as he made contact with Appellant, he smelled the odor of raw marijuana. He then asked Appellant out of the vehicle. As Appellant was exiting the vehicle, Patrolman Stantz saw a small bag of what he believed to be heroin. The substance was later identified as containing fentanyl. Therefore, the patrolman’s smell of raw marijuana prior to the search of Appellant’s vehicle is sufficient to establish probable cause to conduct a search.”.
Information for this article was obtained from State v. Brunk, 2021 – Ohio – 4270.
This case was issued by the Fifth District Appellate Court which is binding in the following Ohio counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
- This case demonstrates the importance of knowing and understanding the traffic code. Here, Officer Stantz should be highly commended (!) for recognizing that Mr. Brunk violated a minor traffic violation. Because Officer Stantz was the consummate professional, he knew the Mansfield traffic code and both the trial court and appellate court agreed. Consequently, there was no gray area on the law ON Gray Court. Known as a Pre-Textual Stop, Officer Stantz was textbook in his application of the legal doctrine. For more information on the Pre-Textual Stop see Wh(r)en is it lawful to stop a vehicle?.
- Both the trial court and Fifth District Appellate Court made a brief analysis of the establishment of probable cause to search the vehicle based on gthe smell of raw marijuana. However, On September 8, 2016, Ohio House Bill 523 [not 420] became effective. That bill provided for medical marijuana. Motorists and passengers who are authorized medical marijuana consumers, can lawfully possess raw marijuana. Then on July 30, 2019, Ohio legalized hemp. Hemp and marijuana do smell the same; both raw and burnt. If there is a smell of burnt “marijuana”, officers must assure that the vehicle occupant distinguishes the smell as marijuana and not hemp. Irrespective of both new laws, drivers cannot operate impaired, whether the cannabis is consumed as a medical marijuana or recreationally.
- Officers should be very careful when handling narcotics. In this case the baggie appeared to be heroin, but it contained fentanyl. The danger of ingesting heroin or fentanyl through the skin is serious and can have serious consequences. I encourage officers to glove up, have a partner at scene, have Narcan ready-at-hand and maintain safety procedures when handling narcotics. This is one more critical example as to why law enforcement is THE hardest job in America.
Does your agency train on Probable. Cause?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!