But would the Delay to Await for a Canine Sniff Violate the Fourth Amendment?

[W]e find that the officers did not prolong the initial traffic stop, and further that the officers would have been justified in extending the duration of the initial stop if a reasonable amount of time was required to investigate the odor of marijuana detected.

State v. Caldwell

2021 – Ohio – 3777

Twelfth District Appellate Court

Butler County, Ohio

October 25, 2021

In late September and early October 2019, Detective Jason Flick, of the West Chester, Ohio Police Department, was conducting an investigation regarding drug trafficking inthe West Chester area. Through observation and a reliable confidential informant, Detective Flick identified Mr. Robert Caldwell’s vehicle as one that frequented known drug houses. As part of his investigation, Detective Flick became familiar with Mr. Caldwell’s criminal record and surveilled his movements.

On Friday October 4, 2019, Detective Flick received a tip from his informant thatMr. Caldwell was in possession of narcotics. After observing Mr. Caldwell drive away from a drug house in West Chester, Detective Flick contacted West Chester Police Officer Guy Veeneman on his cell phone and requested a stop Mr. Caldwell’s vehicle. Detective Flick told Officer Veeneman about his drug trafficking investigation, noted that he had received a tip that Mr. Caldwell was carrying narcotics, gave background information on Mr. Caldwell’s criminal record, and advised that Mr. Caldwell’s vehicle had windows that were illegally tinted.

At the time of this incident, Officer Veeneman was travelling with Officer Bradley Popplewell. Officer Veeneman was an eighteen-year veteran of the West Chester Police Department and was serving that day as Officer Popplewell’s Field Training Officer. Officer Popplewell had been employed as a West Chester police officer for a little more than three months. He had, however, been trained to recognize the odor of marijuana and had been involved in four marijuana-related incidents in the field. The importance of high quality field training cannot be overstated.  Here Officer Veeneman should be commended on his guidance of the rookie officer.

Officers Popplewell and Veeneman located Mr. Caldwell’s vehicle, noted the illegal window tint, and conducted a traffic stop approximately five minutes after Mr. Caldwell left the drug house. The traffic stop occurred at S.R. 747 and Hamilton Mason Road in West Chester, Ohio.

Mr. Caldwell was stopped at S.R. 747 and Hamilton Mason Road in West Chester, Ohio.  The events that happened in the next minutes would establish double probable cause.  But would the delay be violative of the Fourth Amendment?

Officer Popplewell approached the driver’s side door of Mr. Caldwell’s vehicle, while Officer Veeneman approached the passenger’s side door. Officer Popplewell told Mr. Caldwell he had been pulled over for a window tint violation. Mr. Caldwell gave Officer Popplewell his insurance card and driver’s license. Mr. Caldwell told him that he had received a previous warning for a window tint violation and that he was in the process of getting it corrected. Officer Popplewell said, “that’s fine, I’ll just get you another warning.” He returned Mr. Caldwell’s insurance paperwork but kept the driver’s license.

As Officer Popplewell and Officer Veeneman returned to their cruiser, Officer Popplewell asked Officer Veeneman, “Call for a canine?” Officer Popplewell relayed that he had smelled the odor of marijuana. Officer Veeneman called for the canine, while Officer Popplewell put Mr. Caldwell’s information in his computer system. Officer Veeneman contacted the canine unit about its estimated time of arrival. Officers Popplewell and Veeneman later testified that they intended to search the vehicle regardless of whether the canine unit arrived in time because Officer Popplewell had smelled marijuana.

A little over twelve minutes after taking Mr. Caldwell’s license, the officers returned to the vehicle and asked Mr. Caldwell to step out. Officer Veeneman told Mr. Caldwell they were going to have a canine sniff the vehicle and Mr. Caldwell asked why the officers were calling a canine if he was stopped for a window tint violation. Officer Veeneman informed Mr. Caldwell that they had recognized the “odor of marijuana coming from the vehicle.” Mr. Caldwell responded that he had a Medical Marijuana Card. He showed it to the officers and told them he had marijuana in the glove box. Officer Popplewell’s testimony revealed that he smelled both burnt and raw marijuana coming from the vehicle. The canine and its handler promptly arrived and were directed to Mr. Caldwell’s vehicle.

Since Mr. Caldwell had a Medical Marijuana Card why did the officers still have probable cause to search his car?

Ohio Revised Code §3796.06(B) With respect to the methods of using medical marijuana, all of the following apply: (1) The smoking or combustion of medical marijuana is prohibited.

The officers stood talking to Mr. Caldwell for approximately three minutes while the canine sniffed the vehicle. Upon the canine alerting to the presence of narcotics, Officer Veeneman began to perform a search of Mr. Caldwell. He discovered a small bag in Mr. Caldwell’s front right pocket, and untied it to find a clear plastic baggie filled with narcotics. Officer Veeneman then handcuffed Mr. Caldwell and continued searching him before placing him in the back of the squad car under arrest. The baggie was later found to contain 5.5 grams of methamphetamine. Officers subsequently conducted a roadside search of the vehicle and found more drugs. After officers later obtained a search warrant, a second, more thorough search of the vehicle was conducted, and cocaine was found.  It was at this point the officers could have a shorter list of drugs not found in the tinted windowed vehicle.

A Butler County Grand Jury indicted Mr. Caldwell for nine counts of drug-relatedoffenses. Mr. Caldwell filed a Motion to Suppress evidence.  At the hearing, Officer Popplewell, Officer Veeneman, and Detective Flick testified. The court admitted both Mr. Caldwell’s Medical Marijuana registry identification card and Officer Popplewell’s body camera footage as exhibits. Mr. Caldwell was not able to produce a Medical Methamphetamine or Medical Cocaine card, so the officers continued to pursue drug possession charges.

At the hearing, the court made an oral decision denying the motion to suppress evidence and issued a written decision one week later. The court found that officers had a reasonable, articulable suspicion to stop Mr. Caldwell’s vehicle. The court also found that probable cause existed to search both Mr. Caldwell’s vehicle and his person pursuant to the automobile exception and exigent circumstances, respectively. Additionally, the court determined that even if such exceptions were not applicable, the discovery of the items on Mr. Caldwell’s person was inevitable and therefore would be admissible pursuant to the inevitable discovery doctrine.

Mr.  Caldwell eventually entered pleas of no contest to all counts in the indictment. At sentencing, the court merged allied offenses and adjudicated Caldwell guilty of three offenses: aggravated possession of drugs in violation of R.C. 2925.11(A), trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(1), and trafficking in cocaine in violation of R.C. 2925.03(A)(1). Caldwell was sentenced to 30 months, 17 months, and 11 months in prison on each count respectively, to run concurrently.

Mr. Caldwell appealed his conviction to the Twelfth District Appellate Court claiming that his Fourth Amendment Rights were violated by extending the traffic stop and searching the vehicle.

Specific to extending the traffic stop the Twelfth District Appellate Court held “[W]e find that the officers did not prolong the initial traffic stop, and further that the officers would have been justified in extending the duration of the initial stop if a reasonable amount of time was required to investigate the odor of marijuana detected.”.

In reference to the search of the vehicle the court held “Both the canine’s alert on the vehicle and Officer Popplewell’s smell of burnt marijuana provided the officers with probable cause to believe the vehicle contained contraband. Consequently, the officers were permitted to search the vehicle on the roadside.”.

Mr. Caldwell’s convictions were upheld to include his sentencing.

Information for this article was obtained from State v. Caldwell, 2021 – Ohio – 3777 and Mr. Caldwell’s pro se appeal.

This case was issued by the Twelfth District Appellate Court which is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.

Lessons Learned:

  1. Once Det. Flick obtained information from the confidential reliable informant that Mr. Caldwell possessed narcotics and was in a vehicle that the detective was familiar there was likely enough probable cause to stop the car without the equipment violation of tinted windows. With probable cause an officer may search anywhere in the vehicle that the contraband could be concealed. In this case the officer concluded that he would use the tinted windows as a foundation to stop the car.  This is known as a pre-textual stop.  For more information on the pre-textual stop see Wh(r)en is it lawful to stop a vehicle?
  2. Once the vehicle was stopped and rookie Officer Brad Popplewell smelled both raw and burnt marijuana there was enough probable cause to search the vehicle. The smell of marijuana does provide probable cause to search vehicles, but this must be tempered with Ohio Senate Bill 57 which became effective July 30, 2019 which legalized hemp in Ohio.  The smell of raw or burnt hemp is the same as marijuana but not illegal to possess or ingest.  Upon smelling either raw or burnt ‘marijuana’ the officer must establish that it is marijuana and not hemp otherwise the probable cause to search will be challenged.  Once the smell of marijuana is established the search of a vehicle is lawful.  This is based on the Supreme Court of Ohio’s decision in State v. Moore, 90 Ohio St.3d 47, which held in pertinent part “[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.”.  Id at 48.  The smell of marijuana provides the justification to search a vehicle but not a home.  For more on the smell of marijuana and probable cause see Yo Adrian! How Much Probable Cause Do YOU Smell?.
  3. After Officer Popplewell smelled the marijuana, he inquired with his FTO if a canine should be called and the decision was to hold off on the search and obtain a canine smell. Once the canine alerted this provided the officers with double-probable cause.  Though thorough was unnecessary.  Caldwell argued that narcotics should have been suppressed because the traffic stop was extended to obtain the canine sniff.  The Twelfth District Appellate Court refuted this argument “The prolonged detention of a stopped motorist merely requires a reasonable, articulable suspicion that criminal activity has occurred … The odor of marijuana created reasonable, articulable suspicion for officers to investigate further. See Moore at paragraph one of the syllabus. Consequently, we find that the officers did not prolong the initial traffic stop, and further that the officers would have been justified in extending the duration of the initial stop if a reasonable amount of time was required to investigate the odor of marijuana detected.”.
  4. House Bill 523 became effective September 8, 2016, that legalized medical marijuana. Because Mr. Caldwell was a Medical Marijuana Card holder, he was authorized to possess marijuana in compliance with the medical marijuana laws.  However, there are no medical methamphetamine or medical cocaine cards.  Consequently, possession of those narcotics were felonies.

Mr. Caldwell appealed his case pro se.  Pro se means that he filed on his own behalf and did not retain a lawyer.  This is the narrative portion of his pro se filing.

Does your agency train on the the smell of probable cause?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.