[W]e find the state did not satisfy its burden in the trial court of establishing that one of the well-defined exceptions to the Fourth Amendment’s warrant requirement applied to the warrantless search of Mr. Oliver’s person in this case. Because the firearm was a fruit of that unconstitutional search, it should have been suppressed by the trial court.

 

State v. Oliver

No. 21AP-449

Tenth District Appellate Court

Franklin County, Ohio

May 9, 2023

Officer #1 testified that he was driving his cruiser in the inner eastbound lane of East Main Street shortly after midnight on August 18, 2019, when he came upon a blue Hyundai Sonata traveling in the outer (curb) eastbound lane of the road. There were five people in the Hyundai, including Mr. Ja’Braelin Oliver, who was driving. Officer #1 drove his cruiser parallel to the Hyundai, slowed down, and then pulled behind the Hyundai in the outer eastbound lane.

After several seconds, Officer #1 observed the Hyundai’s left tires drive on the lane divider (broken white) line for about one second. Instead of conducting a traffic stop of the Hyundai for what he believed was a marked lanes violation, Officer #1 continued to follow behind the Hyundai. Officer #1 testified he did this because he thought the driver “may be impaired.” Officer #1 watched the Hyundai drive within its lane “for a long period of time.” Then, he saw the Hyundai’s left turn signal illuminate before the vehicle properly crossed the lane divider line to move into the inner eastbound lane.

The inner eastbound lane of the roadway was, at relevant times, separated from the inner westbound lane of East Main Street by a two-way left-turn center lane. The edges of a two-way left-turn center lane are delineated by a broken yellow line and a solid yellow line on each side of the lane. These pavement markings convey that the lane “can be used by traffic in either direction as part of a left-turn maneuver.”

Not long after the Hyundai properly moved into the inner eastbound lane, Officer #1 observed the vehicle’s left tires drive on (or possibly over) the two-way left-turn center line for approximately two seconds.  In his report, Officer #1 described the Hyundai’s left tires as driving “on the yellow lane divider line.” In his body camera footage from the stop, Officer #1 told Mr. Oliver: “The reason I’m pulling you over is you were riding that center line before making the transition over [to the left turn center lane].”  At the suppression hearing, Officer #1 initially testified on direct examination that he saw the Hyundai’s left tires cross the solid yellow outer line and “hit” the broken yellow inner line of the two-way left-turn center lane.  After he watched his cruiser camera video and reviewed a screenshot therefrom, Officer #1 described the Hyundai’s left tires as crossing the solid yellow line and “probably [driving] partially over the [broken yellow] line” of the two-way left-turn center lane.

Believing he had just witnessed the Hyundai commit a second marked lanes violation, Officer #1 initiated a stop of the car.

The Traffic Stop

The Hyundai drove within the inner eastbound lane briefly before illuminating its left-turn signal and moving into the two-way left-turn center lane without issue. While the Hyundai was in the process of properly turning left into a Walmart parking lot, Officer #1 activated the overhead lights of his cruiser.  The Hyundai promptly pulled over without issue.

Other than what he believed were two brief marked lanes violations, Officer #1 did not observe the Hyundai weaving back and forth within a lane prior to the stop. Nor did he observe any erratic lane changes or driving. Officer #1 did not see the Hyundai abruptly brake either.  And while Officer #1 recalled seeing the Hyundai slow down when he initially encountered the car on the roadway, Officer #1 agreed motorists often slow down because they do not want to speed in front of the police.

In his report, Officer #1 wrote that he “conducted a traffic stop” of the Hyundai “for the weaving violation,” i.e., a marked lanes violation under R.C. 4511.33(A). Officer #1’s hearing testimony reflected the same.  So too, did his body worn camera footage from that night.

It is true Officer #1 also claimed that, based on the two brief marked lanes violations he believed he had witnessed, Officer #1 suspected the driver of the Hyundai might be impaired.  And, it is true that Officer #1 asked Mr. Oliver about his alcohol consumption when he first encountered Mr. Oliver in the driver’s seat of the Hyundai.  But after Mr. Oliver denied drinking any alcohol that evening, officer #1 did not ask him any other questions related to impairment.  Nor did he attempt to further investigate impairment during the encounter.

The Investigatory Detention

Officer #1 testified that when he approached the Hyundai, he immediately smelled “an odor of raw marijuana emanating from the open driver’s window.” Officer #1 also testified that, upon smelling raw marijuana, he “already kn[e]w that [he would be] detaining everyone in that car.” In order to detain all five people in the car, he explained, he needed assistance from at least two other officers.  So, Officer #1 radioed for backup.

While he waited for additional officers to arrive, Officer #1 learned Mr. Oliver did not “have an ID on [him]” and did not have a license.  Officer #1 also discovered the Hyundai was owned by the female front passenger, who was a licensed driver but was not driving that night because she was tired. Officer #1 asked whether “anybody ha[d] IDs,” and multiple passengers answered in the affirmative.  Officer #1 stated he did not need the front female passenger’s license because he could obtain her information “from the thing,” likely referring to the Hyundai’s license plate number.  He did not ask anyone to produce their IDs or identifying information at this time. Nor did he make any further inquiry into the status of Mr. Oliver’s license—for instance, whether it was valid but not on Mr. Oliver’s person at the time of the stop, it had expired, it had been suspended or revoked, or Mr. Oliver never had a valid driver’s license.

Instead, Officer #1 asked Mr. Oliver—who was tapping through programs on his cell phone—why he was “so nervous.  After Mr. Oliver denied that he was, Officer #1 commented: “Your hands are shaking, bro.” Mr. Oliver responded by gesturing in disbelief. Officer #1’s body-worn camera is unclear and inconclusive as to whether Mr. Oliver’s hands were, in fact, shaking at that time.

When backup officers arrived, Officer #1 advised them of a “49 smell.”  This is a ten code for drugs.  At the hearing, Officer #1 explained this was his way of conveying to the other officers (without Mr. Oliver and the other passengers knowing) that the officers would be detaining the people in the vehicle to further investigate the raw marijuana odor coming from the Hyundai.  Significantly, Officer #1 repeatedly described the odor of marijuana coming from the car, but he never described the odor as coming from Mr. Oliver (or any other particular person in the car).  Officer #1 testified that he was “looking specifically for marijuana” when he decided to remove Mr. Oliver from the vehicle and search him.

Prior to the warrantless search of his person, Mr. Oliver (and the passengers) answered Officer #1’s questions and were compliant with his requests.  No one made any sudden or furtive movements, attempted to flee the scene, or acted in a hostile or threatening manner toward Officer #1 or any other officers at the scene.  Officer #1 also did not ask Mr. Oliver (or any of the vehicle’s occupants) whether they had weapons or drugs in their possession before he ordered Mr. Oliver to exit the vehicle for the pat-down search.

The Search of Mr. Oliver’s Person and Arrest

At Officer #1’s direction, Mr. Oliver exited the Hyundai and turned around.  At this point, two other officers were at the scene.  Officer #1 immediately handcuffed Mr. Oliver and began a pat-down search of his person.  At the suppression hearing, Officer #1 conceded Mr. Oliver was not free to leave after he was handcuffed.

After running his hand over Mr. Oliver’s left jacket pocket, Officer #1 testified he “felt the [marijuana] grinder and immediately knew” what it was.  Officer #1 pulled the grinder out of Mr. Oliver’s pocket and told him: “That’s what I can smell.” He asked Mr. Oliver if there was any additional marijuana or other illegal drugs in the vehicle, and Mr. Oliver stated there was not. Officer #1 placed the unopened grinder on the trunk of the vehicle and continued searching Mr. Oliver’s person.  A gun containing five rounds of ammunition in the magazine was recovered from the right pocket of Mr. Oliver’s jacket, and Mr. Oliver was placed in Officer #1’s cruiser.

After the other four passengers were removed from the Hyundai, Officer #1 searched it for contraband. He only recovered “minute particles of marijuana” from the car.  No “collectible amounts” of marijuana were recovered from the grinder found in Mr. Oliver’s pocket or the Hyundai. Officer #1 did not send any of the marijuana particles he recovered in connection with this case to the lab for testing.  (And Mr. Oliver was not charged with marijuana possession.

Officer #1 identified Mr. Oliver at the scene and took him into custody for felony gun charges.  Officer #1 also cited Mr. Oliver for driving without a valid license under R.C. 4510.12(A)(1) and a marked lanes violation under R.C. 4511.33(A).

The Arguments Below and the Trial Court’s Decision

Following the presentation of all evidence and testimony at the suppression hearing, Mr. Oliver’s counsel argued the traffic stop was “improper” because Mr. Oliver did not actually commit a marked lanes violation.  In addition to arguing the prolonged detention (Terry stop) was an unreasonable seizure, Mr. Oliver’s counsel submitted that Officer #1’s pat-down search of Mr. Oliver’s person was unreasonable in two regards.  First, the odor of raw marijuana coming from a vehicle with five occupants did not give Officer #1 a reasonable basis to believe Mr. Oliver, himself, possessed illegal drugs.  Second, because Officer #1 did not (and could not, based on the facts known to him at the time) reasonably believe Mr. Oliver was armed and presently dangerous, the search could not be justified as a protective pat-down for weapons under Terry.  In response, the state argued Officer #1 had probable cause to conduct the traffic stop because he witnessed two marked lanes violations. The prosecutor also maintained the raw marijuana odor coming from the car justified the prolonged detention (Terry stop) of all vehicle occupants, the pat-down search of Mr. Oliver’s person, and the vehicle search.  Contending that Officer #1 had “reasonable suspicion to search based on the smell of marijuana,” the state argued the suppression motion should be denied.  Of note, the prosecutor never claimed the pat-down search of Mr. Oliver’s person was conducted due to officer safety concerns or that Officer #1 reasonably suspected Mr. Oliver was armed and presently dangerous—i.e., justified as a Terry frisk for weapons.

Finding Officer #1’s hearing testimony to be “credible in all aspects,” the trial court made findings of fact in its July 19, 2021 judgment entry denying Mr. Oliver’s suppression motion.  It credited Officer #1’s testimony that he observed the Hyundai commit what he believed were two marked lanes violations (id. at 1), which the trial court concluded gave the officer reasonable and articulable suspicion to initiate the traffic stop.

The trial court next credited Officer #1’s testimony that he smelled raw marijuana emanating from the vehicle, which it found gave Officer #1 a lawful basis to detain and conduct a search of Mr. Oliver’s person without a warrant.  Because the state did not premise the lawfulness of the frisk on officer safety concerns or argue the gun would have inevitably been discovered if Officer #1 arrested Mr. Oliver for misdemeanor traffic offenses in the court below, the trial court made no findings on the applicability of either justification to the warrantless search of Mr. Oliver’s person in this case.

After the trial court denied Mr. Oliver’s suppression motion, Mr. Oliver pled “no contest” to the two fourth-degree felony gun counts as charged in the indictment.

On August 10, 2021, the trial court sentenced Mr. Oliver to a three-year period of community control.

Mr. Oliver timely appealed and asserts the following assignment of error for our review:

The Warrantless Stop

On appeal, Mr. Oliver asserts Officer #1 lacked probable cause or reasonable suspicion for the initial traffic stop, making the firearm subsequently found during the warrantless search of his person inadmissible as fruit of the poisonous tree.  The state argues (as it did below) Officer #1 had probable cause and reasonable suspicion for the traffic stop because he witnessed Mr. Oliver commit marked lanes violations.

Legal Standards

Analysis 

On appeal, the state contends that Officer #1 conducted the traffic stop for both investigatory and non-investigatory reasons.

Investigatory Stop. The state argues the traffic stop was justified as an investigatory Terry stop because Officer #1 had a reasonable basis to suspect Mr. Oliver was driving while impaired based on the time of night (approximately 12:30 a.m.) and two (possible) minor marked lanes violations.  The record below does not, however, support the state’s contention that Officer #1 actually stopped Mr. Oliver to investigate what he believed to be an ongoing impaired driving offense.  Even if it did, the state failed to develop any argument below as to whether an officer could reasonably believe a driver was impaired under these facts.

Non-Investigatory Stop

The state primarily contends that the traffic stop was justified as non-investigatory stop because Officer #1 actually witnessed (or had a reasonable basis to believe he had witnessed) Mr. Oliver commit a marked lanes infraction, in violation of R.C. 4511.33(A)(1).  At the suppression hearing and in his written report, Officer #1 indicated he stopped the vehicle Mr. Oliver was driving for “weaving,” i.e., committing at least one marked lanes violation.  We note the traffic stop occurred after the alleged marked lanes violations were completed.

On these facts and the record before us, and based on the totality of the circumstances, we find the impetus for the traffic stop in this case was Officer #1’s observations of what he believed were two completed marked lanes violations. And this finding is not generally in dispute. Instead, Mr. Oliver argues the traffic stop was unconstitutional because he did not actually commit a marked lanes violation. This is because, he contends, a vehicle’s tire must drive completely over (as opposed to merely on) a marked lane line to constitute a marked lanes violation under R.C. 4511.33(A)(1). In support, he cites to State v. Turner, 2020-Ohio-6773 and other cases from Ohio appellate courts generally holding that a marked lanes violation occurs only when a vehicle’s tire completely crosses a marked lane line.  Mr. Oliver thus argues the trial court erred in both its application of Ohio’s marked lanes law and in finding that Officer #1’s traffic stop was justified.

We reiterate that reasonable suspicion is not sufficient to justify a non-investigatory traffic stop, because a non-investigatory traffic stop must be supported by probable cause.

To violate R.C. 4511.33(A)(1), a vehicle’s tires must completely cross a lane divider line. O.R.C. 4511.33(A)(1) requires drivers traveling on roads with two or more lanes to drive as nearly as is practicable, entirely within a single lane or line of traffic and prohibits drivers from “mov[ing] from such lane or line until the driver has first ascertained that such movement can be made with safety.” “[W]hen an officer could reasonably conclude from a person’s driving outside the marked lanes that the person is violating a traffic law, the officer is justified in stopping the vehicle.” i, 2008-Ohio-4539.

In State v. Turner, the Supreme Court of Ohio held that “the single solid white longitudinal line on the right-hand edge [of] a roadway—the fog line—marks the edge of the roadway and that such a marking merely ‘discourages or prohibits’ a driver from ‘crossing’ it, not ‘driving on’ or ‘touching it.’ ” 2020-Ohio-6773

Officer #1 had probable cause to conduct a non-investigatory traffic stop

Before addressing the specifics of Mr. Oliver’s argument that the trial court erred in finding Officer #1 had probable cause to conduct a traffic stop, we will address the trial court’s factual findings concerning the constitutionality of the traffic stop.

The trial court found Officer #1 “observed two marked lanes violations.”  Although we disagree (at least in part) with that finding, we again reiterate that, when a defendant challenges the validity of a non-investigatory stop, “the focus is not on whether [the defendant] could have been stopped because a traffic violation had in fact occurred, but on whether the officer had probable cause to believe an offense had occurred.”  State v. Gullick, 2008-Ohio-3168

With regard to the first alleged violation, Officer #1 testified he observed the Hyundai’s tires briefly drive on—but not cross—the lane divider (broken white) line. His cruiser video supported that testimony, and his report indicated that, at the time of the stop, he perceived the vehicle’s tires as driving on—but not over—the lane divider line. Since R.C. 4511.33(A)(1) is not violated when a vehicle’s tire drives on—but not over—a lane divider line, competent, credible evidence does not support the trial court’s finding that Officer #1 witnessed an actual marked lanes violation when he saw the vehicle’s tires drive on the lane divider line. Based on the facts and circumstances known to Officer #1 at the time of the traffic stop (the vehicle’s tires drove on the line for approximately one second), we find a prudent person would not be warranted in believing a marked lanes violation involving the lane divider line had occurred.  State v. Gullick, 2008-Ohio-3168

Our analysis of the second alleged marked lanes violation is not as simple. The state alleges Mr. Oliver violated the statute by briefly driving the Hyundai’s tires on or over the center left-turn lane lines.  Center left-turn lanes are designated by double yellow lane lines—the outer line is solid and the inner line is broken.

In his written report, Officer #1 described the Hyundai’s left tires as driving “on the yellow lane divider line.”  As depicted in his body camera footage, Officer #1 told Mr. Oliver: “The reason I’m pulling you over is you were riding that center line before making the transition over [to the left turn center lane].”  Neither suggest Officer #1 believed, at the time of the stop, he witnessed the Hyundai’s tires completely cross either line.

At the suppression hearing, however, Officer #1 initially testified on direct examination that he saw the Hyundai’s left tires cross the solid yellow outer line and “hit”—i.e., drive on—the broken yellow inner line of the two-way left-turn center lane.  After he watched his cruiser camera video and reviewed a screenshot therefrom, Officer #1 described the Hyundai’s left tires as crossing the solid yellow line and “probably [driving] partially over the [broken yellow] line” of the two-way left-turn center lane.

In its decision, the trial court found the “vehicle drifted to the left and the driver’s side tire drove over the solid yellow lane divider.”  It did not make any findings concerning the broken yellow inner lane line.  In other words, the trial court did not find the tires crossed both the solid yellow outer lane line and the dashed yellow inner lane line, which, together, designated the center left-turn lane.

Based on our independent review of the cruiser camera video, and in light of Officer #1’s testimony (found by the trial court to be credible “in all aspects”), we find that competent, credible evidence supports the finding that the Hyundai’s tires completely crossed the solid yellow outer lane line, but only touched the broken yellow inner lane line.

Based on the foregoing—and in the absence of binding precedent, or even persuasive authority, clearly stating otherwise—we find that under the facts of this particular case, Officer #1 had probable cause to believe Mr. Oliver committed a marked lanes violation when he observed the Hyundai’s tires cross the solid yellow line and touch the dashed line. Given Officer #1’s testimony and the cruiser video, and irrespective of whether Mr. Oliver actually violated R.C. 4511.33(A)(1), the facts and circumstances in this case—in the absence of arguments contending otherwise—were “ ‘sufficient to warrant a prudent man in believing that [Mr. Oliver] had committed or was committing [a marked lanes] offense,’ ” thus justifying the stop.

This finding remains true even though there was no testimony elicited from Officer #1 at the suppression hearing about the circumstances surrounding Mr. Oliver’s failure to maintain his lane of travel—i.e., traffic, weather or road conditions, where the rumble strips were located in relation to the marked lane, or anything else to indicate why it was not practicable for Mr. Oliver to remain within the lane as contemplated by O.R.C. §4511.33(A)(1).

Officer #1’s cruiser camera video recording, which was introduced into evidence at the suppression hearing, depicted the entire approach of the Hyundai; the weather, traffic, and road conditions; and the circumstances giving rise to the stop.  The video recording constitutes “ ‘evidence in the record from which [a] legitimate inference can be drawn’ that there was no apparent reason why it was impracticable for [Mr. Oliver] to remain [in] his lane.’ ”  State v. Yost, 2018-Ohio-2873

Accordingly, Mr. Oliver’s arguments relating to the traffic stop are not well-taken. For the forgoing reasons, we do not find error in the trial court’s conclusion that Officer #1 had probable cause to conduct a traffic stop of the vehicle.

The Warrantless Search of Mr. Oliver’s Person

As part of his sole assignment of error, Mr. Oliver also contends that, even if Officer #1 had a valid basis for the traffic stop, the officer did not have a lawful basis to search his person.  He argues the firearm was inadmissible as fruit of the illegal pat-down search, and the trial court erred in failing to suppress it.

In the trial court, the state argued the search of Mr. Oliver’s person was justified because Officer #1 detected the odor of raw marijuana coming from the vehicle.  The trial court agreed, finding that “Officer #1 could have objectively reasonably [sic] relied upon the plain smell standard set forth in Moore in detaining and searching [Mr. Oliver].” 

However, on appeal, the state advances new justifications for the search.  It argues the pat-down search of Mr. Oliver’s person was justified as a protective Terry frisk for weapons.  The state also contends the inevitable discovery doctrine applies because Officer #1 had probable cause to arrest Mr. Oliver for either driving without a valid license or a minor misdemeanor marked lanes violation at the time of the frisk.  Neither argument was made in the trial court.  As a result, the trial court did not make any findings on the lawfulness of the search as a Terry frisk or whether Officer #1 had probable cause to arrest Mr. Oliver prior to the pat-down.

Mr. Oliver argues the trial court erred in finding the odor of raw marijuana coming from a car with five occupants justified Officer #1’s warrantless pat-down search of Mr. Oliver’s person.  In its decision, the trial court referenced the “plain smell” doctrine but conflated legal standards that are not relevant here.  And, although the state conceded at oral argument it was not advancing some of the legal theories in the trial court’s decision, we nonetheless will address both the trial court’s analysis and the state’s new contentions on appeal relating to the warrantless search of Mr. Oliver’s person.

Mr. Oliver did not challenge the search of the vehicle and Officer #1 never claimed he detected the odor of marijuana emanating from Mr. Oliver’s person.

In the trial court, the state maintained that the search of Mr. Oliver’s person was “based on the smell of marijuana.”  At the conclusion of the suppression hearing, the prosecutor explicitly stated that the odor of marijuana “was the reason for the searching [of] the people.” 

In ruling upon the validity of Officer #1’s warrantless search of Mr. Oliver’s person, the trial court misapplied the holding of State v. Moore, 90 Ohio St.3d 47 (2000). Relying on Moore, the trial court found the warrantless search of Mr. Oliver’s person was lawful because Officer #1 smelled raw marijuana in the car.  But Moore does not support such application.

In Moore, the Supreme Court of Ohio certified the following issue for review: “[i]s the odor of burnt marijuana, alone, sufficient to provide probable cause to search a defendant’s motor vehicle.”.  The Moore court broadly 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.”  By affirming the trial court’s decision to deny the motion to suppress, the Moore court also held that “exigent circumstances existed to justify the warrantless search of defendant’s person once [law enforcement] had probable cause based upon the odor of marijuana detected on the defendant,” who was the sole occupant of the vehicle.

When Moore was decided in 2000, marijuana (cannabis) could not be legally possessed or used in any form in Ohio. But, at the time of the traffic stop in this case, it could be legally possessed and used in certain circumstances. This is because the Ohio General Assembly legalized medical marijuana and hemp prior to August 18, 2019.  Mr. Oliver thus contends that Officer #1 could not—based solely on the odor of raw marijuana coming from the car—ascertain the legality of the odor’s source. Mr. Oliver postures on appeal that Moore’s core inference—the mere odor of cannabis provides inherent evidence of criminal activity—is no longer viable under the current legislative framework.  (We do not need to reconcile Moore’s core inference with these legislative enactments, however, to resolve this case.

An officer’s detection of the odor of marijuana in a car does not, alone, establish probable cause sufficient to search an occupant of that car without a warrant. It is well-established that probable cause for a search of a person must be “particularized with respect to that person.”  Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

Based on the odor of raw marijuana coming from the car, Officer #1 suspected narcotics might be present in it.  Unlike in Moore, however, Officer #1 never claimed he detected the odor of raw marijuana emanating from Mr. Oliver’s clothing or person prior to searching Mr. Oliver.

Since Officer #1 did not testify he could reasonably attribute the odor of raw marijuana to any one of the five people in the car before he searched Mr. Oliver, it is apparent that his suspicion was not particularized to Mr. Oliver. Rather, it encompassed all occupants based on their mere presence in the vehicle.  But Mr. Oliver’s mere presence in the car did not, under the particular facts and circumstances presented in this case, provide Officer #1 with probable cause to believe Mr. Oliver possessed marijuana at the time he was searched. Accordingly, we find that Officer #1 did not have probable cause to search Mr. Oliver’s person based solely on the odor of raw marijuana emanating from the car. Based on this determination, we need not make any proclamations regarding the present-day value of Moore’s core inference.

The state did not argue in the trial court that the pat-down search of Mr. Oliver’s person was justified as a protective frisk for weapons, thus waiving this issue for the purposes of appeal.

On appeal, the state’s main contention is that Officer #1’s pat-down search of Mr. Oliver’s person was justified as a protective frisk for weapons under Terry v. Ohio.

An officer may perform a pat-down of a suspect’s outer clothing to protect the safety of himself and others.  Terry, 392 U.S. at 30. The purpose of such a Terry frisk is “not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.”  Adams v. Williams, 407 U.S. 143, 146 (1972).  A frisk is lawful if the investigative stop itself is lawful, and if the officer harbors an objectively reasonable belief that a particular individual is “armed and presently dangerous.”  Terry at 24.

Here, Mr. Oliver argued in his first suppression motion that the warrantless search was not a lawful frisk for weapons under Terrybecause the officers lacked an objectively reasonable belief that Mr. Oliver was armed and dangerous.”

At the hearing, Officer #1 did not testify that he believed Mr. Oliver to be armed and dangerous prior to the pat-down search. Nor did Officer #1 testify that he searched Mr. Oliver due to “officer safety” concerns. To the contrary, Officer #1 repeatedly stated that he searched Mr. Oliver’s person because he was looking for marijuana, not firearms.  This testimony thus belies the state’s contention on appeal that Mr. Oliver was frisked “for protective purposes” in preparation for Officer #1 searching the vehicle. And, his body camera footage likewise does not support the state’s claim on appeal that Officer #1 searched Mr. Oliver’s person for officer safety.  Both his testimony and body camera indicate Officer #1 frisked Mr. Oliver for drugs.

In his report, though, Officer #1 stated: “In my experience, when illegal drugs are present, there is a high probability that weapons are also present.  For this reason, I secured the driver in handcuffs, and conducted a search of his person for illegal contraband.”  At the hearing, Officer #1 testified that he was “looking specifically for marijuana” when he decided to pull Mr. Oliver (and the other passengers) out of the vehicle to search them.  Officer #1 clarified that he included the “high probability of weapons” language in his report “because I’m putting somebody in handcuffs because I’m concerned that they might have an illegal drug, so I’m more justifying the handcuffing of the suspects as opposed to saying what I’m searching for.”

Since the state did not argue the search was a lawful Terry frisk below, the requisite factual inquiry for proper analysis of that issue was not done by the trial court. The state did not offer the necessary evidence at the hearing—testimony from Officer #1 that the pat-down search was done for officer safety—that would trigger the need for the trial court to evaluate whether, under the totality of the circumstances, Officer #1 had an objective, reasonable, and particularized basis to suspect Mr. Oliver was armed and presently dangerous.

The prosecutor instead maintained at the hearing that Officer #1 searched Mr. Oliver’s person because he smelled raw marijuana emanating from the vehicle. Officer #1’s testimony was consistent with that claim.

It would be inappropriate for us to speculate that Officer #1 frisked Mr. Oliver due to “officer safety concerns” or for “protective purposes” in the absence of any testimony from Officer #1 explicitly stating this and given the prosecutor’s failure to argue this legal justification at any time in the court below.

Further, since Officer #1 did not even claim he believed Mr. Oliver was armed and presently dangerous prior to the frisk, it would also be inappropriate for us to evaluate whether a belief the officer did not testify he had was reasonable under the totality of the circumstances.  See, e.g., Ybarra, 444 U.S. at 93 (finding an absence of reasonable suspicion where “the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.”).

Therefore, for these reasons, we find the state waived the issue for purposes of appeal.

The state did not argue inevitable discovery below, thus waiving this issue for purposes of appeal The state also argues that even if the search did not satisfy the standard articulated in Terry, the inevitable discovery rule supports the evidence’s admissibility.

Mr. Oliver clearly challenged the warrantless search of his person in the trial court, but the state did not argue inevitable discovery below.  As a result, the trial court did not make findings on that issue. As a result, we find the state waived the issue for purposes of appeal.

Based on the foregoing, we find the state did not satisfy its burden in the trial court of establishing that one of the well-defined exceptions to the Fourth Amendment’s warrant requirement applied to the warrantless search of Mr. Oliver’s person in this case.

Because the firearm was a fruit of that unconstitutional search, it should have been suppressed by the trial court.  The trial court erred in failing to do so.  We therefore sustain Mr. Oliver’s sole assignment of error.

Information for this article was obtained from State v. Oliver, No. 21AP-449.

This case was issued by the Tenth District Appellate Court and is binding in Franklin County, Ohio.

Lessons Learned:

  1. This case should have led to a conviction for Mr. Oliver, however, there were some areas where both the officer and prosecution could have made better decisions. Upon realization that the driver, Mr. Oliver, did not possess a valid license Officer #1 should have arrested him. Thereafter a search-incident-to-arrest would have led to the lawfully discovery of the firearm. The prosecutor may have recognized this different legal analysis and prepared an argument to support the search incident-to-arrest if possible.
  2. One area that officers can be challenged in practical application and in the courtroom is the pat down. There is not pat down for officer safety.  For more information on this specific topic see Is there a Pat Down for Officer Safety?.  In this case, once Officer #1 smelled the marijuana on Mr. Oliver’s person he could have searched him under the probable cause doctrine.  If an officer develops probable cause to search, the officer can search any location the contraband could be reasonably found.  I do caution that this statement is limited by O.R.C. §2933.32 – the Strip Search statute.  The court did state that Officer #1 did not state that he smelled marijuana on or about the person of Mr. Oliver, only that the smell emanated from the passenger compartment.  In this case Officer #1 tried to apply the frisk doctrine established in State v. Evans, 67 Ohio St.3d 405 (1993). In the Evans case, the Supreme Court of Ohio held “The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.”. Id at 413.  However, Mr. Oliver was notsuspected of being a drug dealer … a crime in which he would be likely to be armed, but rather a drug consumer.  The court spent a LOT of ink winding through a substantive amount of case law to conclude that Officer #1 did not conduct a lawful pat down of Mr. Oliver.
  3. The Tenth District Appellate court is dismissive of the smell of marijuana establishing probable cause to search in light of the State of Ohio Legislature legalizing medical marijuana and hemp prior to the stop of Mr. Oliver. However, the Sixth Circuit Appellate Court issued U.S. v. McCallister, No. 21 – 4011 (6thCir. 2022) on July 7, 2022.  The court held in that case “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.  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.”. An officer does not have to be right, he only has to be reasonable.  For more information on the McCallister case and investigative detention on the smell of marijuana see; Can the Odor of Marijuana Still be Used to Detain a Suspect? and Does the Smell of Marijuana Still Establish Probable Cause or Does Legalized Hemp Change the Legal Landscape?.

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Robert H. Meader Esq.