Ohio law does not support such an absurd result.
State v. Mitchell
2022 – Ohio – 2564
First District Appellate Court
Hamilton County, Ohio
July 27, 2022
On Friday April 2, 2021, at 10:30 pm a Madeira Police Officer saw a vehicle traveling in the dark with no headlights or taillights on, so he got behind the vehicle and initiated a traffic stop. He noticed that as the vehicle was coming to a stop, the front-seat passenger appeared to be “reaching down towards the floorboard or underneath his seat where he was at.”.
Maderia, Ohio is located north and east of Cincinnati, Ohio. The events that occurred on Friday April 2, 2021 led to an arrest and an appeal.
The officer walked to the driver’s window and noted a very strong odor of marijuana coming from inside the vehicle. He asked for identification from the vehicle’s three occupants. Mr. Porter Mitchell was the front-seat passenger.
The officer asked the occupants if there was anything illegal in the vehicle. The back-seat passenger acknowledged that there was marijuana inside the vehicle, and he handed the officer a “blunt” of marijuana, “[L]ike a marijuana cigar.” In addition, Mr. Mitchell told the officer that he had a bong. The officer asked the occupants to get out of the vehicle, one at a time, because he was going to search the vehicle. The officer patted down each of the vehicle’s three occupants before placing them in the rear of his police cruiser. No one was handcuffed. The back-seat passenger told the officer that he had some marijuana in his jacket, which was still in the stopped vehicle. And Mr. Mitchell told the officer that the bong was located on the floorboard of the vehicle.
After the occupants were secured in the rear of the police cruiser, the officer began to search the stopped vehicle. He found a glass bong on the floorboard in front of the front passenger seat and a loaded handgun under the seat.
After the driver and back-seat passenger were removed from the police cruiser, the officer advised Mr. Mitchell of his Miranda rights, and Mr. Mitchell admitted that the handgun and the bong belonged to him. Mr. Mitchell said that he intended to smoke marijuana from the bong. He said that he had recently obtained the handgun because he had had two other firearms that were stolen from a family member’s house. Mr. Mitchell was arrested and charged with carrying a concealed weapon and with improper handling of a firearm in a motor vehicle.
Mr. Mitchell filed a Motion to Suppress prior to trial. The focus of the motion was that the officer lacked probable cause to search the vehicle.
Trial Court Excludes the Vehicle Search
In its oral comments explaining its decision, the court acknowledged that “[I]f a police officer smells marijuana emanating from a car following a traffic stop, the officer may conduct both a warrantless search of the car and the occupants.” But the court found that because Mr. Mitchell “freely admitted” to the officer that he had drug paraphernalia, “search for it was unnecessary.” The [trial] court said, “At this point, no further reason existed to search Mr. Mr. Mitchell or the vehicle, and the officer needed probable cause or a reason that a crime was committed or would be committed and that probable cause must be established before the search takes place.” The court granted Mr. Mitchell’s motion to suppress.
Prosecution Appeals to the First District Appellate Court
The Supreme Court of Ohio has held that the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a vehicle, pursuant to the automobile exception to the warrant requirement. State v. Moore, 90 Ohio St.3d 47,48 (2000). “There need be no other tangible evidence to justify a warrantless search of a vehicle.”.
In this case, the smell of marijuana alone was sufficient to establish probable cause to search the vehicle pursuant to the automobile exception to the warrant requirement. Although Mr. Mitchell points to the officer’s testimony that he could not distinguish between the smell of burning marijuana and the smell of raw marijuana, the officer testified that he had been trained in detecting the odor of marijuana, and that he had seen marijuana and knew what it smelled like. In Moore, the Supreme Court of Ohio did not distinguish between unburned marijuana or burning marijuana, in holding only that the smell of marijuana is sufficient to establish probable cause to search. In addition, the officer in this case had more than the smell of marijuana to establish probable cause to justify the search because Mr. Mitchell volunteered that he had a bong and the back-seat passenger handed the officer a marijuana cigar.
Here, the trial court concluded that probable cause to search the vehicle based upon the odor of marijuana ceased to exist after Mr. Mitchell “freely admitted … that he had drug paraphernalia.” On the contrary, however, Ohio courts have held that when a vehicle’s occupant hands over drugs or contraband to a police officer during a traffic stop, the occupant also hands the officer probable cause to believe that the vehicle contains contraband.
Under the rule of law advocated by Mr. Mitchell, a vehicle operator [or occupant] might avoid a search of the vehicle for illegal drugs during a lawful traffic stop by voluntarily surrendering a small amount of an illegal substance to law enforcement. Ohio law does not support such an absurd result.
In this case, neither Mr. Mitchell’s informing the officer that he had a bong nor the back-seat occupant’s voluntary production of a marijuana cigar preempted the officer from conducting a warrantless search of the vehicle pursuant to the automobile exception to the warrant requirement based upon the officer’s detection of the smell of marijuana. On the contrary, the smell of marijuana, Mr. Mitchell’s admission of the possession of drug paraphernalia, and the other occupant’s production of a small amount of marijuana provided probable cause to believe that the vehicle contained further contraband. Contrary to the trial court’s determination, probable cause to search the vehicle based upon the smell of marijuana did not dissipate upon Mr. Mitchell’s admission that he had a bong. Therefore, we hold that the trial court erred by granting Mr. Mitchell’s motion to suppress.
The smell of marijuana emanating from the stopped vehicle, Mr. Mitchell’s admission that he possessed drug paraphernalia, and the back-seat passenger’s voluntary production of a small amount of marijuana provided the police with probable cause to search the vehicle under the automobile exception to the warrant requirement. Therefore, the trial court erred by granting Mr. Mitchell’s motion to suppress. We sustain the state’s assignment of error, reverse the judgment of the trial court, and remand this case for further proceedings.
Information for this case was obtained from State v. Mitchell, 2022 – Ohio – 2564.
This case was issued by the Twelfth District Appellate Court and is only binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
- Upon stopping the vehicle without any headlights or taillights at 10:30 pm the Maderia Police Officer observed the front seat passenger, later identified as Mr. Porter Mitchell and now known as appellant, reach down towards the floorboard. Law enforcement must always be cognizant that when a vehicle occupant reaches down, he may be retrieving a weapon or secondarily, secreting a weapon. Officers should always be cautious when approaching a vehicle where the occupants are moving around.
- Once the officer smelled marijuana emanating from the car then he established probable cause to search the interior of the passenger compartment. Mitchell’s defense counsel made a unique argument that was surprisingly supported by the trial court judge. Mr. Mitchell’s position is that once he handed over the blunt he also ended any probable cause to search the vehicle. Although the trial court judge believed this to be a solid legal position, irrespective that a firearm was later discovered in the search, the appellate court called this legal position ‘absurd’. I would strongly agree that this is an absurd legal position, most especially because in 2000 the Supreme Court of Ohio established “[W]e hold that the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.”. State v. Moore, 90 Ohio St.3d 47,53 (2000).
- In July 2019 Ohio legalized hemp, which has the same odor as marijuana. Does an officer have to establish that the odor is marijuana rather than hemp? I suggest that the officer ask the suspect if the substance is marijuana. However, on July 7, 2022 the Sixth Circuit Appellate Court addressed this very issue and determined that the officer would NOT have to distinguish the smell as marijuana over hemp to conduct a probable cause search. That court opined “Nor is it compelling that the marijuana odor could have been a legal substance, like hemp, instead of illegal marijuana. Reasonable suspicion, remember, does not require proof that the suspect committed a crime. Embody v. Ward, 695 F.3d 577, 581 (6th Cir. 2012). And as Mr. McCallister concedes the odors of hemp (legal) and marijuana (illegal) are indistinguishable, the odor suggested at least a moderate chance that Mr. McCallister smoked marijuana.” United States v. McCallister, No. 21 – 4011 (6th 2022).
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