Because the deputy violated Miranda in obtaining the initial statements from Mr. Withrow and the deputy relies on these statements for his probable cause, and the search of the satchel was done without a warrant and absent an applicable search warrant exception, all evidence, whether verbal or physical, obtained from the moment Deputy #2 asked his first question is inadmissible in this case.
State v. Withrow
2022 – Ohio – 2850
Seventh District Appellate Court
Carroll County, Ohio
August 8, 2022
Mr. Joseph Withrow’s conviction stems from information the Carroll County Sheriff’s Department learned from a confidential informant. The department had never worked with the informant before, but he told them that he could purchase methamphetamine from a person who lived in Stark County but conducted his transactions in Carroll County. The target of this information was Mr. Withrow. Based on this, the informant called Mr. Withrow and made arrangements to purchase an ounce of methamphetamine.
Mr. Withrow travelled to Carroll County in a blue Chevy Cavalier driven by Mr. Shane Foresha. Deputies knew Mr. Withrow was inside the vehicle when they initiated a traffic stop of the vehicle based on a burnt-out headlight. It appears that Mr. Withrow was on his way to complete the sale of drugs to the informant before deputies initiated the traffic stop. Deputy #1 approached the vehicle and informed Mr. Foresha why he had initiated the traffic stop. Mr. Foresha acknowledged the headlight was out, and explained that he had just been pulled over by another officer for the same reason. During the encounter Deputy #1 informed Mr. Foresha that he smelled marijuana inside the car, and Mr. Foresha admitted that he had a “marijuana bowl.”
Deputy #1 ordered both passengers to put down their phones and place their hands on the dashboard. Deputy #1 can be heard on a body camera video alerting dispatch that the target was sitting in the passenger seat, however it is unclear whether Mr. Withrow could hear this statement from his position. For recording purposes Deputy #1 stated “I’m talking to the passenger [Mr. Withrow]. You do everything that the deputy tells you to do or we’re going to put you on the ground.” Deputy #2 approached the passenger door and removed Mr. Withrow from the car.
Once Mr. Withrow exited the vehicle, Deputy #2 asked him the following questions: “You got nothing in your pockets that I need to know about? Nothing that’s going to stab me, hurt me, poke me? Nothing like that?” Mr. Withrow initially responded “no,” prompting Deputy #2 to repeat “no?” Mr. Withrow then admitted that he had marijuana on his person. Deputy #2 escorted Mr. Withrow to an area behind the vehicle, handcuffed him, and told him that he was not under arrest but was being detained. Deputy #2 testified that, based on Mr. Withrow’s admission, he believed he had probable cause to search his person for contraband. He concluded that prior to Mr. Withrow’s admission, he did not have such probable cause.
Although Deputy #2 did not advise Mr. Withrow of his Miranda rights, he asked him a series of questions before and during the search. First, he asked: “nothing else is on you but the weed?” Deputy #2 told Mr. Withrow that he intended to search every pocket and every crevice of his body, and gave him what he referred to as the chance for “honesty hour,” an opportunity to admit that he possessed any contraband that might be found in a search.
During the search, Deputy #2 first located a glass pipe in what appears to be Mr. Withrow’s pants pocket. The pipe contained residue that was later determined to be methamphetamine. When he removed the pipe from Mr. Withrow’s pocket, the deputy asked Mr. Withrow what it was. Mr. Withrow responded that it was a methamphetamine pipe. The deputy responded by laughing and stating “that ain’t weed.” Deputy #2 specifically asked Mr. Withrow “is there any meth on you?” Mr. Withrow responded in the negative. Deputy #2 continued his search and discovered what appears to be a cloth satchel hanging from Mr. Withrow’s neck and underneath his coat. Deputy #2 did not seek a warrant before opening the bag and searching it. In the satchel, the deputy found several baggies containing a white powdery substance and $287. After stating “well, that’s not weed,” Deputy #2 expressed his frustration with Mr. Withrow for not complying with his earlier request for “honesty hour.” He then asked Mr. Withrow “what else is in the car?” Mr. Withrow responded that there was nothing in the car. Deputy #2 cast doubt on that answer stating that there was “quite a bit here,” and mentioned that there were three baggies in the satchel.
Deputy #2 told Mr. Withrow that he was taking Mr. Withrow to his cruiser but wanted to conduct another thorough search, first. This time, Deputy #2 located another baggie containing a white powdery substance. At this point, after the final search was conducted, Deputy #2 for the first time advised Mr. Withrow of his Mirandarights. Following this advisement, Deputy #2 asked Mr. Withrow what was inside the baggies and Mr. Withrow conceded that it was methamphetamine but stated that he was not sure if all baggies contained the same substance.
During a subsequent search of the vehicle, the deputies located two marijuana “bowls” mentioned by the driver, a bag of marijuana, and hypodermic needles. It is unclear whether any of these items were attributed to Mr. Withrow.
On February 3, 2021, Mr. Withrow was indicted on one count of aggravated possession of methamphetamine, a felony of the second degree in violation of O.R.C. §2925.11(A); one count of possessing drug abuse instruments, a misdemeanor of the second degree in violation of O.R.C. §2925.12(A); and one count of drug paraphernalia offenses, a misdemeanor of the fourth degree in violation of O.R.C. §2925.14(C)(1). The record does not indicate whether Mr. Foresha was charged with any crimes related to the marijuana and other contraband in the vehicle.
On March 10, 2021, Mr. Withrow filed a motion to suppress the evidence seized from his person. While the motion was pending, Mr. Withrow was arrested for a violation of his bond after he failed a random drug test. On June 8, 2021, the trial court denied the motion to suppress following a full evidentiary hearing.
On July 1, 2021, Mr. Withrow pleaded no contest to the charge of aggravated possession of methamphetamine. The remaining charges were dismissed. On July 6, 2021, the trial court sentenced Mr. Withrow to an indefinite term of imprisonment with a minimum of three years and a maximum term of four and a half years. It is from this entry that Mr. Withrow timely appeals.
Appeal
Mr. Withrow presents three arguments challenging the trial court’s decision to deny his motion to suppress. First, he argues that Deputy #1 did not establish that he is qualified to detect the odor of marijuana. Even so, Mr. Withrow argues that the legalization of hemp places questionable value on the applicable law, as both marijuana and hemp are from the same plant, yet only one is illegal. Second, Mr. Withrow argues that the odor of marijuana had been attributed only to Mr. Foresha. Third, Mr. Withrow argues that his admission to possession of marijuana when he exited the vehicle was the product of coercion and distress as a result of being ordered to exit the vehicle.
In response, the state argues that the deputies properly initiated a traffic stop of the vehicle after observing a burnt-out headlight regardless of their subjective intent. The deputies also had reasonable suspicion to believe that Mr. Withrow was involved in drug activity based on information obtained by the confidential informant. The state argues that the search of Mr. Withrow’s person was authorized as a search incident to a lawful arrest after he admitted to possessing a bag of marijuana.
Mr. Withrow Disputes Law Enforcement Could Order Him out of the Vehicle
Mr. Withrow argues that that there was no reason to order him out of the vehicle. While Mr. Withrow claims that there was no reason to order him out of the vehicle, it is undisputed that the vehicle had a burnt-out headlight which gave the deputies cause to initiate the traffic stop. Likewise, the driver’s admission to possession of drug paraphernalia gave the deputies cause to order both persons out of the vehicle. The U.S. Supreme Court long ago held this was lawful in Maryland v. Wilson, 519 U.S. 408 (1997).
Mr. Withrow questions whether Deputy #1 established that he is qualified to detect the odor of marijuana.
The Ohio Supreme Court 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 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.” State v. Moore, 90 Ohio St.3d 47, 48 (2000)
At the suppression hearing, Deputy #1 testified that he has experience detecting the odor of marijuana and has “been to drug confiscations where they have um…burned marijuana.” He also explained that he has been exposed to the odor throughout his eight-year career. Because Deputy #1 testified that he had experience detecting the smell of marijuana, the standard in Moore has been satisfied. The fact that illegal marijuana and legal forms of hemp have the same odor is irrelevant so long as some forms of marijuana remain illegal. Thus, Moore remains good law and any detection of the odor would give probable cause to search.
Was there a Miranda Violation?
Analysis based on the Public Safety Exception
The discovery of the evidence in this matter is problematic not because of typical search and seizure violations. Instead, the problem in this case is that the evidence was obtained as a result of the deputy questioning his suspect, Mr. Withrow, prior to advising him of his Miranda rights. The first instance occurred when Deputy #2 asked what on its face may appear to be an innocent question: “[Y]ou got nothing in your pockets that I need to know about? Nothing that’s going to stab me, hurt me, poke me? Nothing like that?” At the time these questions were asked, the deputy had removed the passenger from a vehicle, and so was permitted to perform a “patdown” for officer safety, but at this stage, he was permitted only a patdown.
A patdown for weapons “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.” Terry v. Ohio, 392 U.S. 1, 26, 88 (1968).
Deputy #2’s questions here clearly indicated that he intended a full search of Mr. Withrow, including his pockets, as part of the “patdown.” This is clear from his questions regarding objects inside Mr. Withrow’s pockets. The law authorized the deputy to run his hands over Mr. Withrow’s clothing to search for weapons. Thus, the deputie questions that clearly indicated he intended to place his hands inside Mr. Withrow’s pockets transforms the “patdown” to provide safety from a possibly armed person into the functional equivalent to a full-blown search.
At the time the questions had been asked, the parties agree that Mr. Withrow had not been advised of his Miranda rights. Deputy #2’s compound question can only be lawful it if falls under the public safety exception, which allows law enforcement to ask questions without providing Miranda warnings where there is a threat to officer safety or public safety.
After Mr. Withrow exited the vehicle, Deputy #2 immediately asked “[Y]ou got nothing in your pockets that I need to know about? Nothing that’s going to stab me, hurt me, poke me? Nothing like that?” Mr. Withrow initially responded “no,” prompting the deputy to repeat “no?” Mr. Withrow then stated that he had a bag of marijuana on his person. The threshold question is whether the deputy’s questioning amounts to a violation of Miranda or whether it falls within the public safety exception.
In United States v. Kellogg, 306 Fed.Appx. 916 (6th Cir. 2009) the court held that in order to find an officer had a reasonable belief that he was in danger: “he must have reason to believe:
(1) That the defendant might have (or recently have had) a weapon, and
(2) That someone other than police might gain access to that weapon and inflict harm with it.”
This test “takes into consideration a number of factors, which may include the known history and characteristics of the suspect, the known facts and circumstances of the alleged crime, and the facts and circumstances confronted by the officer when he undertakes the arrest.” Id.
As to the first prong, the court determined that there was no testimony or other evidence to suggest that the Mr. Withrow was armed. On the second prong, there was likewise no evidence that someone other than law enforcement could gain access to a weapon. Id at 46.
Based on the totality of these circumstances, it is readily apparent that Mr. Withrow, in fact, was in custody at the time the deputy asked his questions. Despite this, Mr. Withrow was not advised of his Miranda rights until after all of the contraband had been found and at the point where he had already made several incriminating responses to questions asked by Deputy #2.
Was the Contraband discovered based upon the Search Incident to Arrest Doctrine?
The state relies on the search incident to a lawful arrest exception to the warrant requirement to justify the discovery of the contraband on Mr. Withrow’s person. In Ohio, there are seven recognized exceptions to the warrant requirement:
(1) A search incident to a lawful arrest.
(2) Consent.
(3) The stop-and-frisk doctrine.
(4) Hot pursuit.
(5) Probable cause plus the presence of exigent circumstances.
(6) The plain view doctrine, and
(7) Administrative searches
A search conducted incident to a lawful arrest “has two rationales: officer safety and ‘safeguarding evidence that the arrestee might conceal or destroy’.
While the state also argues that the search was valid because Mr. Withrow’s admission gave them probable cause to search his person, we have determined that admission was the product of a Miranda violation. Even if it were not, the record is questionable regarding the actual point at which Mr. Withrow was arrested.
The critical factor is not whether an arrest has been effectuated, but whether probable cause existed to support an arrest prior to the search and whether the arrest followed the search without delay.
What Legal Doctrine did the Deputy Place Mr. Withrow?
After Mr. Withrow made his initial admission about marijuana possession, Deputy #2 escorted him to an area behind the vehicle, handcuffed him and stated: “I’m just going to go ahead and cuff you for right now, okay? You are not under arrest, you’re being detained.” The arguments based on the deputies’ actions at this point are somewhat confusing. First, as he handcuffed Mr. Withrow, Deputy #2 advised him that he was not under arrest but was being detained. This is at odds with the state’s argument that the search that immediately followed was incident to a lawful arrest. If the deputy did, indeed, have probable cause at this juncture, he should have clearly arrested Mr. Withrow or sought a search warrant at this point. By his own words, he did not. This was not a case where the deputy simply failed to advise Mr. Withrow that he was under arrest. This deputy specifically told Mr. Withrow that he was not under arrest and was being temporarily handcuffed and detained before proceeding to search his person.
This fact is even more significant when looking at the actions of the deputy when he discovered Mr. Withrow’s satchel. Again, the satchel was located during the search and before the deputy advised Mr. Withrow of his Miranda rights. The cloth-like satchel was hanging from around Mr. Withrow’s neck and underneath his coat. The satchel was closed, zipped and fastened shut with Velcro. The deputy did not obtain Mr. Withrow’s consent to open the satchel and did not attempt to seek a warrant. Again, Mr. Withrow was handcuffed at this point. Instead, he opened the satchel while it was still around Mr. Withrow’s neck and used his flashlight to look inside. On finding what appears to be contraband he removed the satchel from Mr. Withrow’s neck.
This satchel is akin to a purse. Under these circumstances, the police would have required a warrant to search. [See Lessons Learned #2 for a more detailed explanation.]
Because the deputy violated Miranda in obtaining the initial statements from Mr. Withrow and the deputy relied on these statements for his probable cause, and the search of the satchel was done without a warrant and absent an applicable search warrant exception, all evidence, whether verbal or physical, obtained from the moment Deputy #2 asked his first question is inadmissible in this case. As such, Mr. Withrow’s first assignment of error has merit and is sustained.
Conclusion and Holding
Mr. Withrow challenges the circumstances surrounding the traffic stop of the vehicle in which he was a passenger and the subsequent detention and search of his person. Mr. Withrow also challenges his sentence, arguing that the Reagan Tokes Act is unconstitutional. For the reasons provided, it appears that Mr. Withrow’s arguments concerning his conviction have merit, rendering his sentencing arguments moot. As such, the judgment of the trial court is reversed, Mr. Withrow’s conviction and sentence are vacated, and the matter is remanded to allow the state the opportunity to proceed without any of the statements made by Mr. Withrow pre – Miranda or any of the evidence obtained from the search of Mr. Withrow’s person after his admission to possession of marijuana.
Information for this article was obtained from State v. Withrow, 2022 – Ohio – 2850.
This 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:
- The deputies had obtained information from an unreliable confidential informant. Upon stopping the vehicle the Deputy #1 smelled marijuana inside the vehicle. AT THIS MOMENT the deputies established probable cause to search the car WITHOUT consent and WITHOUT further questioning of the suspects. The probable cause was established based on the deputy smelling the marijuana. For more establishing probable cause with a smell of marijuana see Yo Adrian! How Much Probable Cause do YOU Smell? . Because the deputies muddied the legal waters by questioning the suspects the case became problematic. Under the Carroll Doctrine – Motor Vehicle Exception, Carroll v. United States, 267 U.S. 132 (1925) and United States v. Ross, 456 U.S. 798 (1982), once probable cause is established, law enforcement can search the vehicle for the object of the search that probable cause was established. For more on vehicle probable cause vehicle searches see What is in Bandit’s Paper Bag? and Can an Officer’s Smell of Packaged Marijuana in the Trunk – Justify a Valid Search based on the Automobile Exception … Even if the Officer was Wrong and there was no Marijuana in the Trunk?.
- If the deputies searched the vehicle and found some of the methamphetamine, marijuana and marijuana bowls THEN Mr. Withrow and his co-conspirator could have been arrested. Thereafter the satchel hanging from his neck would have been searched incident to arrest and that methamphetamine would most likely have been admissible. The container/satchel hanging from his neck could not be searched because he maintained possession of it prior to his arrest. See “Not my Bag” Defense Fails and Expands the Motor Vehicle Exception.
- The entire Miranda application and analysis would have been avoided if the deputies would have utilized the probable cause doctrine to search the vehicle prior to any questioning. I agree with the court that once the deputy placed handcuffs on Mr. Withrow and told him he was being detained, he was in ‘Miranda Custody’ and any subsequent investigative questioning would be subject to his Miranda For a substantive analysis of roadside application of the Miranda doctrine see Were Gary’s Self-Incriminating Statements Roadside during a Traffic Stop require the Miranda Warning?.
- The deputies in this case had more than a gut feeling that Mr. Withrow was a drug dealer. I commend the deputies for their tenacity to remove this lethal methamphetamine from the street. With some focused effort on modifying a few legal tactics the outcome will be different on the next similar investigation.
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