[B]ased upon all of the evidence presented at trial, a rational trier of fact [judge/jury] could have found that appellant [Mr. Smith] knowingly trafficked in heroin or that he knowingly aided and abetted the principal offender in committing the offense of trafficking in heroin.
State v. Smith
2022 – Ohio – 371
Fourth District Appellate Court
Scioto County, Ohio
February 2, 2022
Ohio State Highway Patrol Trooper Nick Lewis testified that around 11:30 p.m. on Friday August 10, 2018, he noticed a black vehicle “tailgating a lead vehicle.” The case did not identify what road this occurred on but it did occur within Scioto County, Ohio. Tr. Lewis followed the vehicle and noticed a change from the right lane to the left lane and speed at 40 miles per hour in a 55-mile-per-hour zone. At this point, Tr. Lewis stopped the vehicle and asked the driver for identification. Mr. Carvion McKee sat in the driver’s seat, Mr. Henry Smith, who had rented the vehicle, sat in the front passenger seat, and Mr. Ernest Whitehead in the left middle row, directly behind Mr. McKee. Tr. Lewis learned that all three occupants are Michigan residents. Following this incident all three would become ‘temporary’ residents of Ohio for six, two and eight years respectively.
After Tr. Lewis asked Mr. McKee to exit the vehicle, they walked to the cruiser. Tr. Lewis stated that he asked Mr. McKee to exit the vehicle as part of his drug interdiction protocol and to check on the status of his well-being. Tr. Lewis related that, when a vehicle is traveling 40 miles per hour in a 55-mile-per- hour zone, “there’s typically a – a problem.” Tr. Lewis had a gut feeling and his gut feeling was spot-on. Tr. Lewis indicated he thus instructed Mr. McKee to exit the vehicle so Tr. Lewis could “try to figure out what was going on with him.” Tr. Lewis explained he “had planned on placing [McKee] in the back of the cruiser while [he] checked [McKee’s] driver’s license and just talk[ed] to him about why he was driving erratically.” Because the Ohio State Highway Patrol is to conduct pat-down searches of individuals before placing them in cruisers, Tr. Lewis asked Mr. McKee if he could conduct a pat-down search. Tr. Lewis indicated that Mr. McKee agreed to the pat down.
As Tr. Lewis started to conduct the pat-down search, he told Mr. McKee to keep his hands out of his pockets. Mr. McKee, however, disobeyed that instruction and “the first thing [McKee] does is takes his left hand[,] puts it in his pocket and pulls out something in his – his fist.” Tr. Lewis noticed that Mr. McKee’s fist was “balled up.” Tr. Lewis asked Mr. McKee what he had in his hand and, rather than answering, Mr. McKee “shove[d his hand] back down the front of his pants.” Tr. Lewis then “grab[bed]” McKee and “put him against the – the rear of the vehicle.” As Tr. Lewis handcuffed Mr. McKee, he noticed “a plastic baggie fall from his chest to the ground.” The plastic bag contained “a small amount of marijuana residue.” At this point, Tr. Lewis requested backup assistance.
After Ohio State Highway Patrol Trooper Matt Lloyd responded to the call for backup, he removed Mr. Smith, the front-seat passenger, patted him down for weapons, and placed him in the rear of Tr. Lewis’ cruiser with Mr. McKee. Then, the troopers removed Mr. Whitehead, patted him down, and placed him in the rear of Tr. Lloyd’s cruiser. Tr. Lewis explained that the troopers removed the occupants because they knew that they would search the vehicle based upon the discovery of marijuana residue.
As Tr. Lewis began to search the vehicle, he also noticed what appeared to be crack cocaine in the front passenger seat. A field test confirmed that suspicion and indicated the substance to be crack cocaine.
Tr. Lewis also stated that Tr. Lloyd searched the area where Mr. Whitehead had been seated and noticed that a trim piece on the driver’s seat backrest appeared to have “been tampered with.” Tr. Lloyd pulled the trim piece “back a little bit,” and discovered a plastic bag in the back of the driver’s seat that contained 57 grams of heroin worth around $6,000. Tr. Lewis also testified that 57 grams of heroin is not an amount to suggest personal use and, instead, “would be considered a trafficking amount.”.
During Tr. Lewis’ testimony, the state played a video of the traffic stop that included the vehicle search and the conversation between Mr. McKee and appellant while seated in the cruiser. Mr. McKee, who was extremely talkative, complained that the handcuffs hurt his wrists and, as Tr. Lloyd started to search the area where he found the heroin, Mr. McKee began to yell for the trooper. After the troopers discovered the heroin,
Mr. Lewis read Mr. Smith and Mr. McKee the Miranda warnings. Mr. Smith asked why they were being arrested and Tr. Lewis informed Mr. Smith and Mr. McKee that they had discovered heroin in the vehicle. Mr. Smith and McKee both responded with disbelief. Oh sure they knew about the marijuana and the crack cocaine … but the heroin? A total shocker!
Mr. Smith claimed he did not know anything about the heroin, that the vehicle is a rental car, that he is a truck driver, and that the three occupants intended to visit “some females” in Kentucky. Tr. Lewis agreed with Mr. Smith that the vehicle is a rental car, but pointed out to Mr. McKee and Mr. Smith that Mr. Smith had rented the vehicle approximately one week earlier. Mr. McKee likewise denied any knowledge about the heroin and expressed surprise about its discovery in the car. This truly must have been like Christmas morning at roadside on that Friday evening. Mr. McKee also repeated Mr. Smith’s statements that they intended to visit “some females” and that Mr. Smith is a truck driver. The drug smugglers feigned surprise over the peek-a-boo heroin and stressed that Mr. Smith is a truck driver as he would not be able to consume illicit narcotics due to random drug testing. During trial it would be discovered that Mr. Smith was unemployed.
The troopers then removed Mr. Smith from the back of Trooper Lewis’ cruiser and placed Mr. Whitehead in the back seat with Mr. McKee. Placing two suspects inside of a cruiser may be a good investigative technique if there is an in-cruiser camera. There is no expectation of privacy in a cruiser. Mr. McKee continued to express surprise to Mr. Whitehead that the troopers discovered heroin and he stated he did not know how heroin ended up in the vehicle. Evidently there was no surprise as to the location of crack cocaine … but the heroin? A total shocker. Mr. McKee told Mr. Whitehead that they were merely traveling to Kentucky to visit “some females” and did not understand how they ended up in this predicament.
When the troopers spoke with Mr. Whitehead, he also claimed that he knew nothing about the heroin in the back of the driver’s seat, even though the heroin had been stuffed inside the seat-back directly in front of him. Mr. Whitehead must have focused his thoughts on the upcoming social visit.
During Mr. Smith’s attorney cross-examination of Tr. Lewis, he asked whether Tr. Lewis had performed a “drug test” to see if Mr. Smith had “been using any cocaine.” Tr. Lewis stated that he did not as if roadside urine tests are completed by law enforcement. Counsel also asked Tr. Lewis about Mr. McKee’s and Mr. Smith’s conduct while seated in the back of the cruiser and whether Mr. McKee was the individual who was “fidgeting, jumping around, [and] yelling.” Tr. Lewis responded affirmatively. Counsel then questioned whether Mr. Smith was “sitting there quiet,” and Tr. Lewis stated: “I wouldn’t necessarily say quiet. Every time he spoke he covered his mouth or whispered.” The trooper continued: “[E]very time he speaks he takes his shirt and covers up his mouth or would whisper.”
Counsel next asked Tr. Lewis about Mr. Smith’s response after he learned they found heroin in the vehicle and whether Mr. Smith told Tr. Lewis that Mr. Smith is a truck driver. Tr. Lewis stated that Mr. Smith mentioned earlier that he is a truck driver and that “[p]retty much throughout the whole stop someone had mentioned that he was a truck driver.”
On redirect, the prosecutor asked Tr. Lewis whether Mr. Smith “offer[ed] to take a drug test for you,” and Tr. Lewis responded that Mr. Smith did not. Mr. Smith’s counsel then objected and the trial court overruled the objection. The prosecutor followed up on Mr. Smith’s counsel’s questions regarding his statement that he is a truck driver and, after the prosecutor asked Tr. Lewis whether appellant provided any information about his employer, appellant’s counsel again objected. The court overruled the objection and explained, “[y]ou asked the question on cross. I’m going to let [the prosecutor] follow up with it.”. In legalese this is called “opening the door”.
Next, Tr. Lloyd testified that he observed a gap in the back of the driver’s seat that “easily pull[ed] back,” and inside he discovered a plastic bag that contained heroin.
Mr. Smith was charged with:
- Trafficking in heroin in violation of R.C. 2925.03(A)(2).
- Possession of heroin in violation of R.C. 2925.11(A); and
- Possession of criminal tools in violation of R.C. 2923.24(A)
Mr. Smith was charged and convicted of Possession of Criminal Tools because the vehicle he was in used to secrete the heroin in a hidden compartment.
Mr. Smith initially filed a Motion to Suppress but withdrew the motion when he wanted to accept a plea bargain. Mr. Smith withdrew his consent to a plea bargain but did not refile the Motion to Suppress. Mr. Smith was tried and convicted by a jury. He appealed his conviction, in part, that he did not possess the heroin in the back seat. The Fourth District Appellate Court overruled his appeal as it held “[B]ased upon all of the evidence presented at trial, a rational trier of fact [judge/jury] could have found that appellant [Mr. Smith] knowingly trafficked in heroin or that he knowingly aided and abetted the principal offender in committing the offense of trafficking in heroin.”.
Mr. Smith was sentenced to eight years in prison and that sentenced was also upheld. In 1939 there was a political comedic movie titled Mr. Smith Goes to Washington. In this case, this Mr. Smith went to St. Clairsville, as he is serving his sentence at the Belmont Correction Facility.
Information for this article was obtained from State v. Smith, 2022 – Ohio – 371.
This case was decided by the Fourth District Appellate Court and is binding in the following Ohio Counties: Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington.
- The Fourth District Appellate Court determined that Mr. Smith constructively possessed the heroin in the backseat hidden compartment. To determine if a suspect constructively possesses contraband the prosecution must show that the defendant had dominion and control of the contraband and was conscious of the object’s presence. See State v. Hankerson, 70 Ohio St.2d 87 (1982). Also the prosecution does NOT need to show that Mr. Smith had “exclusive control” over the contraband. See State v. Tyler, 2013 – Ohio – 5242. The court determined that there was constructive possession based on the following analysis “[T]he evidence adduced at trial supports the conclusion that appellant knowingly transported heroin, or that he assisted, facilitated, or supported the principal offender to transport the heroin. Here, appellant was not simply an innocent bystander who, by mere happenstance, found himself at a crime scene, but with no connection to the crime other than being present. Rather, the evidence stablished that appellant and his companions traveled from Michigan in appellant’s rented vehicle that contained a large amount of heroin concealed in the back of the driver’s seat. Appellant’s actions, statements and conduct prior, during and subsequent to the traffic stop established his involvement and culpability in this criminal enterprise.”. For more on the Constructive Possession Doctrine see: Why was Mickey’s Mouse Felonious?, Why was Ms. Batdorf’s Batman Bag Felonious?, Can a Firearm Left in a Laundry Basket Nestled Under Dirty Clothes by a Teenager be Constructively Possessed by the Dad?, Did Josh Constructively Possess the Bag of Meth Under his Buttocks? and Did Torrence Constructively Possess the Forty-Six Grams of Heroin Nestled Atop Unflushed Fecal Matter?.
- In the case Tr. Lewis removed Mr. McKee, the driver, from the vehicle Lewis indicated he thus instructed Mr. McKee to exit the vehicle so “Tr. Lewis could “try to figure out what was going on with him.” Tr. Lewis explained he “had planned on placing [McKee] in the back of the cruiser while [he] checked [McKee’s] driver’s license and just talk[ed] to him about why he was driving erratically.” Because the Ohio State Highway Patrol is to conduct pat-down searches of individuals before placing them in cruisers, Tr. Lewis asked Mr. McKee if he could conduct a pat-down search. Tr. Lewis indicated that Mr. McKee agreed to the pat down.”. A few VERY important takeaways here. Law enforcement can remove a driver or passenger from a vehicle during a lawful traffic stop. However, this does not permit law enforcement to subsequently place the driver or passenger in a cruiser. I have titled this the Lozada limitation and is based on a Supreme Court of Ohio case; State v. Lozada, 92 Ohio St.3d 74 (2001). In that case the court held “[W]e hold that during a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.”. This too was an Ohio State Highway Patrol involved case. For more information on this case and the Lozada limitation see Don’t Just Sit There! – specifically Lessons Learned #4.
- I further stress once again that law enforcement should NEVER request consent for a pat down. If you would like to know why, contact me and I will send you a paper I crafted titled; Why Law Enforcement Should Never Ask for Consent to Pat Down. This is both a legal and tactical error and this practice should end.
Does your agency train on Vehicle Searches and Constructive Possession?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!