[T]he officers had probable cause to search any part of the vehicle that may logically contain this large amount of marijuana, including the trunk of the vehicle.
State v. Gray
2023 – Ohio – 338
Twelfth District Appellate Court
Warren County, Ohio
February 6, 2023
In the fall of 2020, the Warren County Drug Task Force (“WCDTF”) began reviewing phone calls between an inmate, Joseph Lawter, and his girlfriend, Deeion Sandlin. The two spoke about a drug supplier from California named Burgess Faris. Due to the nature of these phone calls, the WCDTF began surveilling Ms. Sandlin.
On October 23, 2020, the WCDTF observed Ms. Sandlin drive to a storage facility in Beavercreek where she spoke with another individual, later identified to be Mr. Faris. Once Ms. Sandlin and Mr. Faris were in the storage facility, the officers observed Mr. Faris load an object into Ms. Sandlin’s vehicle. Ms. Sandlin and Mr. Faris left the storage facility in separate vehicles and were immediately stopped by the officers. After a canine alerted to drugs in Ms. Sandlin’s vehicle, officers searched her vehicle. Mr. Faris consented to a search of his vehicle.
The search of Ms. Sandlin’s vehicle yielded five pounds of marijuana in vacuum- sealed, one-pound bags, stored in the tire compartment of her trunk, along with a black storage tote with a yellow lid. The search of Mr. Faris’ vehicle yielded roughly $14,700 in cash. Thereafter, Ms. Sandlin consented to a search of her apartment, which contained two more identical black totes with yellow lids. Mr. Faris consented to a search of the Beavercreek storage unit, which contained another black tote with a yellow lid.
During a subsequent interview, Mr. Faris informed the WCDTF that Mr. Larry Gray was involved in this drug-related activity. Mr. Faris told the officers that Mr. Gray had a warehouse in Indiana containing 100 pounds of marijuana. Mr. Faris worked with the WCDTF to set up a controlled buy for the 100 pounds of marijuana to take place the next day in the parking lot of a Hooters restaurant in Mason, Ohio. Mr. Faris gave details to Detective Schweitzer of the WCDTF regarding Mr. Gray’s appearance, as well as the make, model, and license plate number of Mr. Gray’s vehicle. With this information, the WCDTF independently obtained Mr. Gray’s full identity, including his social security number and a photograph.
During the morning of October 24, 2020, prior to the controlled buy, Mr. Faris provided real-time updates to Detective Schweitzer about the transaction, informing him that because Mr. Gray had sold 50 pounds of the marijuana, the controlled buy would only involve the other 50 pounds, and would take place around 1:00 p.m. Around that time, Mr. Gray pulled into the Hooters parking lot driving the anticipated vehicle. The officers were able to positively identify Mr. Gray based on the vehicle description and the photograph. Mr. Gray parked the car, exited the vehicle, and walked around to the back of the car and opened the trunk. The officers immediately converged on Mr. Gray, who was handcuffed and detained in a marked cruiser.
Mr. Gray was arrested at the Hooters Restaurant, 9890 Escort Drive, Mason, Ohio. The restaurant shown here is shut down and boarded up, but on October 23, 2020 the building was a Hooters Restaurant.
Trooper Lee read Mr. Gray his Miranda rights and then had his canine partner,Ronnie, perform a free-air sniff around the exterior of the vehicle. The canine positively alerted to drugs inside the vehicle, which was thereafter searched. The search of Mr. Gray’s vehicle yielded roughly 50 pounds of marijuana and $15,000 in cash. The marijuana was individually packaged in one-pound, vacuum-sealed bags. There were also two black totes with yellow lids found inside the vehicle. The black totes were identical to the ones found in Ms. Sandlin’s vehicle and Mr. Faris’ storage unit. Perhaps Walmart had buy-one and get-one-free special on storage containers?
Mr. Gray was transported a short distance to the Deerfield Township post of the Warren County Sheriff’s office where he was interviewed by Detective Schweitzer. Prior to conducting the interview, Detective Schweitzer asked Mr. Gray if he wanted to be informed of his Miranda rights again. Mr. Gray declined and indicated that he understood his rights by saying, “Yeah, I know my rights.” Mr. Gray did not ask for a lawyer and did not exercise his right to remain silent. During this interview, Mr. Gray told the Detective that Mr. Faris was a drug dealer with a large marijuana farm in California. Mr. Gray stated that he first became involved with Mr. Faris by purchasing small amounts of marijuana, but then began assisting Mr. Faris with transporting larger amounts.
Mr. Gray was charged with trafficking in marijuana, a first-degree felony (Count I); possession of marijuana, a second-degree felony (Count II); possession of criminal tools, a fifth-degree felony (Count III); and engaging in a pattern of corrupt activity, a first-degree felony (Count IV). Mr. Gray was found guilty on all but Count III.
The trial court merged Counts I and II, and sentenced Mr. Gray as follows. On Count I, the court imposed an indefinite sentence of five years minimum to seven and a half years maximum. On Count IV, the court imposed an indefinite sentence of three years minimum to four and one half years maximum to run consecutively to Count I, resulting in a total minimum sentence of eight years to nine and a half years maximum.
Mr. Gray filed a timely appeal and challenged that law enforcement unlawfully searched his car.
The Automobile Exception
Mr. Gray asserts that while Ohio recognizes the automobile exception, the exception is limited in certain situations to the search of only the passenger compartment and not the trunk of the vehicle.
One of the well-established exceptions to the search warrant requirement is the automobile exception, which allows the warrantless search of an automobile by police officers who have probable cause to believe that the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 158-159, (1925); State v. Vega, 154 Ohio St.3d 569, 572 (2018). For more on Vega see: The Officer Not Only ‘Pushed the Envelope’ He Opened Two and Found Gummy Bears, Two Appeals and a Supreme Court Ruling.
The United States Supreme Court, as well as Ohio courts, have determined that “the exterior ‘sniff’ by a trained narcotics dog to detect the odor of drugs is not a search within the meaning of the Fourth Amendment to the United States Constitution.” State v. Rusnak, 120 Ohio App. 3d 24, 28 (6th Dist. 1997); see also United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637 (1983). Therefore, the police need not have even a reasonable suspicion of drug-related activity prior to subjecting the exterior of an otherwise lawfully stopped vehicle to a canine sniff. State v. Cochran, 12th Dist. Preble No. CA2006- 10-023, 2007-Ohio-3353, ¶ 25. However, if a trained narcotics dog alerts to the odor of drugs from that lawfully stopped vehicle, “an officer has probable cause to search the vehicle for contraband.” Id. Thus, a vehicle lawfully stopped may be subjected to a canine sniff even without the presence of a reasonable suspicion of drug-related activity; if the dog positively alerts, then the officers have probable cause to search the vehicle. Id.; State v. Morales, 5th Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶ 68.
In terms of the permissible scope of a search pursuant to the automobile exception, the Ohio Supreme Court has held that “[W]here police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search.” (State v. Welch, 18 Ohio St.3d 88, 92 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157 (1982), paragraph (c) of the syllabus. The Ohio Supreme Court, however, has limited the scope of a search when the officer’s probable cause is based solely on the odor of burnt marijuana, holding that “[A] trunk and a passenger compartment of an automobile are subject to different standards of probable cause to conduct searches.” State v. Farris,109 Ohio St.3d 519, 529 (2006); State v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018- Ohio-3335, ¶ 18 (“This proposition is established by the common sense observation that an odor of burning marijuana would not create an inference that burning marijuana was located in a trunk”); State v. Curry, 1st Dist. Hamilton No. C-210274, 2022-Ohio-627, ¶ 21 (“To search a trunk, an officer must observe more than just an odor of burnt marijuana in the passenger compartment”).
Nevertheless, Ohio courts have drawn a distinction between an officer smelling burnt marijuana and a trained narcotics dog alerting to the presence of narcotics. In the latter scenario, a positive alert by a trained drug sniffing dog is sufficient to establish probable cause to search the trunk. State v. Ross, 9th Dist. Medina No. 15CA0021-M, 2016-Ohio-7082, ¶ 15-16 (noting that the Ohio Supreme Court, in reaching its ultimate decision in Farris, relied on the Tenth Circuit’s decision in United States v. Nielsen, 9 F.3d 1487, 1491 [10th Cir. 1993], where the Tenth Circuit stated that “[I]f this were a case of an alert by a trained drug sniffing dog with a good record, we would not require corroboration to establish probable cause” [to search the trunk]); see also State v. Waldroup, 100 Ohio App. 3d 508, 514 (12th Dist. 1995) (“When the dog indicated that drugs were present in the trunk of appellant’s vehicle, the troopers had probable cause to search the trunk and the container they found in the trunk“).
Trooper Brett Lee of the WCDTF testified that after Mr. Gray had been detained, he and his canine partner, Ronnie, approached Mr. Gray’s vehicle to perform a free-air sniff of the outside of the vehicle. Prior to performing the free-air sniff, the car doors and trunk were closed. Canine Ronnie alerted to the driver’s side of the vehicle by “bracketing, deep breathing and he indicated near the driver’s side rear well and the rear driver’s side door seam, by sitting down and staring into the vehicle.” Trooper Lee stated that Ronnie’s behavior gave a “positive indication on a narcotic inside the vehicle.” This positive alert from Ronnie gave the officers probable cause to search Mr. Gray’s vehicle.
This is not a case where an officer smelled burnt marijuana and then searched the entirety of the vehicle. Rather, the canine, and not the officer, detected the scent of illegal narcotics. As explained above, if a trained narcotics dog “alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband.” State v. Wilson, 12th Dist. Butler No. CA2019-08-141, 2020-Ohio-3227, ¶ 19. In this case, the contraband was 50 pounds of marijuana. Thus, the officers had probable cause to search any part of the vehicle that may logically contain this large amount of marijuana, including the trunk of the vehicle. As such, we find no error in the trial court’s denial of Mr. Gray’s motion to suppress based on the scope of the search.
Information for this article was obtained from State v. Gray, 2023 – Ohio – 338.
This case was issued by the Twelfth District Appellate Court and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
Lessons Learned:
- Gray’s legal team makes a toothless argument that the canine alert and subsequent search was unreasonable based because the troopers searched the trunk. Mr. Gray’s position was myopically focused on the Supreme Court of Ohio’s decision in 2006 when it held “The Ohio Supreme Court, however, has limited the scope of a search when the officer’s probable cause is based solely on the odor of burnt marijuana, holding that “[A] trunk and a passenger compartment of an automobile are subject to different standards of probable cause to conduct searches.” State v. Farris,109 Ohio St.3d 519, 529 (2006). In this case the odor was NOT ‘burnt’ marijuana made by a human but rather an alert by Canine Ronnie.
- In 2008 the Sixth Circuit Appellate Court explicitly held that a canine alert on a vehicle establishes probable cause to search the vehicle for contraband; “Because Emir is reliable and actively alerted to the van (i.e. he scratched at the location where the cocaine was subsequently found), the government established probable cause to search the van.”. S. v. Torres-Ramos, 536 F.3d 542 (6th Cir. 2008)
- Once a canine provides a positive alert on a vehicle, the search may extend to packages contained within the vehicle. In 1982 the U.S. Supreme Court held that law enforcement may search anywhere in a vehicle once probable cause is established that contraband may be in the vehicle; “[W]here police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search.” United States v. Ross, 456 U.S. 798 (1982). For more on the Ross decision see: What is in Bandit’s Paper Bag?
- The Warren County Drug Task Force and Canine Ronnie should all be highly commended for working in concert to investigate, charge and convict Mr. Larry Gray! Well done!
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