Can a Pre-Textual Stop be Extended if a Marijuana Card Carrying Vehicle Occupant is Transporting Marijuana in a Tupperware Container?

[He also had methamphetamine in the car in a money bag – was THAT an authorized container?]

Under these circumstances, the trial court did not err in finding no constitutional violation and overruling Mr. Bell’s suppression motion.

State v. Bell

2023 – Ohio – 1588

Second District Appellate Court

Darke County, Ohio

May 12, 2023

On Thursday January 20, 2022, the Mr. Bruce Bell was a passenger in a motor vehicle on West Main Street in Greenville, Darke County, Ohio, near the traffic circle. Being aware from background evidence which was one to two days old that this vehicle might be involved in trafficking methamphetamine, Mr. Bell’s car was observed driving around the traffic circle by Greenville Police Officer Joseph Monnin. While the Mr. Bell’s vehicle was stopped at the intersection of East Main Street and Walnut Street (one block from the circle), and with the cruiser stopped immediately behind the Mr. Bell, Officer Monnin observed that the Mr. Bell’s rear license plate did not include the county identification sticker required by O.R.C. §4503.21. The Mr. Bell was followed about eight blocks where it stopped at the Speedway gas station near Wagner Avenue.

Greenville Police Officer Joseph Monnin conducted a Pre-Textual traffic stop at this Speedway gas station at 201 Wagner Avenue in Greenville, Ohio. He smelled marijuana that was being transported by Medical Marijuana card carrying holder Mr. Bruce Bell; though the marijuana was being transported in a Tupperware container. What occurred next lead to a conviction and an appeal.

Immediately after causing the traffic stop and notifying dispatch, a request was made for a canine unit. Officer Monnin then contacted the vehicle occupants, identified as Meridian Hemmelgarn (driver) and Mr. Bruce Bell (vehicle owner and front seat passenger). When talking about the reason for the traffic stop and while obtaining license and registration information, Officer Monnin smelled what he described as the odor of “raw marijuana.” The Mr. Bell was the front seat passenger who advised he possessed a medical marijuana card. On request from Officer Monnin, the Mr. Bell pulled out a Tupperware container and displayed the marijuana inside it. The Mr. Bell was advised that this packaging was unlawful.

The occupants were then asked if a search of the vehicle would be permitted and the Mr. Bell agreed. With both the driver and the Mr. Bell outside the vehicle, Officer Monnin located the marijuana inside the Tupperware container along with smoking paraphernalia and marijuana wax. These findings were explained to both occupants. The request for the canine unit was cancelled. Both occupants were advised they were not under arrest and Miranda warnings were given. The illegal nature of the marijuana wax and the handling of the marijuana were explained.

The search continued and Officer Monnin eventually located a plastic bag in the center console with approximately $100 in $1.00 bills. Also, under the driver’s seat a bank money bag and a softball sized crystal substance were located. Concluding this substance to be methamphetamine, the Mr. Bell was questioned. He advised the items was not the driver’s property; that this item would test positive for methamphetamine; and that the drug items belonged to him. The Mr. Bell was arrested for Aggravated Possession of Drugs (methamphetamine), contrary to O.R.C. §2925.11(A), (C)(1)(d). Given the weight of the substance, the offense is a felony of the first degree.

The trial court proceeded to find probable cause for a traffic stop based on the lack of a required county identification sticker on Mr. Bell’s license plate. The trial court also found that the odor of raw marijuana reasonably diverted Officer Monnin’s attention from the traffic violation and allowed him to investigate the issue. During that investigation, which the trial court found lasted about two minutes, Officer Monnin discovered another violation of the law: Mr. Bell’s improper transportation of the marijuana in a Tupperware container rather than the original medical-marijuana dispensary packaging. At that point, Officer Monnin sought consent to search the vehicle. The trial court found that Mr. Bell gave his consent approximately three minutes into the stop. The trial court held that Mr. Bell’s consent was valid and that the “traffic stop” itself technically ended when Mr. Bell granted Monnin permission to search the vehicle. The trial court found that the duration of the entire search was seventeen minutes and that Mr. Bell made his incriminating statements two minutes into the search after having been Mirandized. Under these circumstances, the trial court found no constitutional violation with regard to the traffic stop or the search that followed it.

Mr. Bell later entered a no-contest plea to the indicted charge. The trial court accepted the plea, made a finding of guilt, and imposed an indefinite prison term of three to four and one-half years to be followed by two to five years of post-release control.

Appeal

Mr. Bell cites suppression-hearing testimony concerning an informant’s prior tip about his being involved in drug activity as well as Officer Monnin’s own prior surveillance of Mr. Bell. While conceding the lawfulness of the traffic stop based on the absence of a county identification sticker, which was required by O.R.C. §4503.21(A)(1), Mr. Bell argues that Officer Monnin proceeded with an unlawful “fishing expedition” after smelling raw marijuana and despite discovering that Mr. Bell carried a medical-marijuana card. Mr. Bell argues that Officer Monnin should have redirected his attention to Ms. Hemmelgarn, the driver, and proceeded to process the traffic stop upon learning that Bell possessed the card. Bell insists that any articulable suspicion of drug-related criminal activity dissipated after he produced the card. At that point, Bell contends Monnin improperly prolonged the traffic stop by seeking permission to search the car for drugs. While acknowledging that the lack of a county sticker was a valid reason for a traffic stop, Bell also suggests that the sticker violation was a pretext and that Monnin’s true motive was to continue investigating an “unreasonable hunch” about Bell’s transporting drugs.

Analysis

Pre-Textual Traffic Stop

[W]e conclude that the trial court properly overruled Bell’s suppression motion. The trial court’s factual findings were supported by officer Monnin’s hearing testimony, which the trial court was entitled to credit. Although Bell contends Monnin’s true motive for making a traffic stop was to pursue a drug investigation, he concedes that the missing county identification sticker was a legitimate reason for the stop. “A traffic violation gives an officer a reasonable articulable suspicion justifying a traffic stop, notwithstanding that the traffic stop may also have been a pretext to investigate suspected drug activity.” State v. Wilson, 2017-Ohio-9317. Therefore, the traffic stop itself was lawful regardless of what Monnin subjectively hoped to discover.

Smell of Marijuana

Upon approaching the stopped vehicle, Officer Monnin immediately detected the odor of raw marijuana. Under Ohio law, “[T]he 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.”State v. Moore, 90 Ohio St.3d 47, 48, (2000). Although Moore involved burnt marijuana, its rationale has been applied to the odor of raw marijuana as well.

During the suppression hearing, Officer Monnin did not specifically testify about his qualifications to recognize the odor of marijuana. He simply testified that he had detected the smell of raw marijuana coming from inside Mr. Bell’s vehicle. In any event, Mr. Bell did not challenge Officer Monnin’s qualifications below, and he has not raised that issue on appeal. Therefore, we have no occasion to address whether Officer Monnin was qualified to recognize the odor of marijuana.

Should Officer Monnin have Re-Directed his Investigation Upon the Production of a Marijuana Card?

As noted above, Mr. Bell’s argument is that any existing probable cause or even articulable suspicion of a drug offense evaporated when Mr. Bell produced a medical- marijuana card. On this issue, we recognize that O.R.C. Chapter 3796 authorizes registered individuals to possess and use some forms of marijuana for medical purposes. This fact complicates the probable-cause or articulable-suspicion analysis where, as here, a suspect presents an investigating officer with a medical-marijuana card establishing a legal right to use marijuana. Although Mr. Bell’s possession of the card unquestionably was relevant under the totality of the circumstances, we disagree that it compelled Officer Monnin immediately to redirect his attention to Ms. Hemmelgarn.

How Should Medical Marijuana be Transported?

Hint: Not in a Tupperware Container

Possession of a medical-marijuana card does not give a patient an absolute right to use and possess any quantity or form of marijuana in any manner whatsoever. In State v. Caldwell 2021-Ohio-3777, the Twelfth District noted that under Ohio law a registered patient may not possess more than a 90-day supply of marijuana. That being so, the Twelfth District reasoned that a Mr. Bell’s “[P]roduction of his registry identification card does not necessarily defeat an officer’s sufficient reason to believe criminal activity has occurred when considering the totality of the circumstances.”. Similarly, in State v. Burke, 2022-Ohio-2166, we recognized that the Ohio Administrative Code requires medical marijuana to be kept in a secure location. In that case, we reasoned that the presence of marijuana “shake” on a suspect’s clothing supported a reasonable inference that he had been violating the law even if it was medical marijuana. Of particular relevance for present purposes, we note too that Ohio Administrative Code §3796:7-2-05(G) requires patients to keep medical marijuana in “the original dispensing package with an unaltered dispensary label” or in the “container provided by a dispensary.”

In light of the foregoing types of restrictions on the possession of medical marijuana, we do not believe Officer Monnin was required to terminate his interaction with Mr. Bell immediately upon Mr. Bell’s production of a medical-marijuana card. In response to Mr. Bell’s displaying the card, Officer Monnin was entitled to ask a follow-up question, namely where the marijuana was located in the vehicle. This question related to the requirements cited above regarding storing marijuana securely and in the original packaging or container. In order to confirm or dispel the articulable suspicion of criminal activity that arose when Officer Monnin smelled marijuana, it was permissible for him to obtain this information to clarify the circumstances and determine whether a drug offense in fact had been committed. Indeed, the very purpose of an investigative stop under Terry v. Ohio, 392 U.S. 1 (1968), is to enable an officer to engage in limited questioning of an individual who reasonably is suspected of engaging in criminal activity.

Was the Traffic Stop Prolonged?

Contrary to Mr. Bell’s argument, Officer Monnin also did not improperly prolong the stop. An officer may extend a traffic stop upon discovering additional facts that create reasonable suspicion of criminal activity beyond the original basis for the stop. Here Officer Monnin’s detection of the odor of marijuana gave him reasonable, articulable suspicion of unlawful drug possession, and the officer briefly prolonged the stop to investigate that issue. The trial court found that Mr. Bell produced a Tupperware container of marijuana about two minutes into the stop and consented to a search of the vehicle about one minute later. Bell does not dispute the timing of these events, and Officer Monnin’s detection of the odor of marijuana justified this brief extension of the stop. Finally, Officer Monnin discovered the methamphetamine and other drug-related evidence while searching the car with Mr. Bell’s consent. Under these circumstances, we agree with the trial court that no constitutional violation occurred. The first assignment of error is overruled.

Mr. Bell’s Challenge to Pre-Textual Traffic Stops

Mr. Bell’s second assignment of error states: “The trial court abused its discretion when it overruled the Mr. Bell’s Motion to Suppress.” Under this assignment of error, Mr. Bell challenges the trial court’s decision to credit Officer Monnin’s testimony and to rely on it when overruling his suppression motion. Mr. Bell contends the trial court failed to weigh Officer Monnin’s testimony about his reasons for the stop and questioning of Mr. Bell against facts suggesting that he really was pursuing a mere hunch or suspicion of drug activity. Mr. Bell contends the trial court erred in applying the facts to the law when it failed to consider the expansion of the stop beyond its original purpose as well as “[T]he resultant time delay, questioning, search and seizure of the Mr. Bell.” According to Mr. Bell, Officer Monnin’s testimony demonstrates that he had “[A]n alternative motive for stopping the vehicle other than for the purpose of issuing citations for failure to display a county identification tag.” Mr. Bell contends the trial court abused its discretion in failing to take this alternative motive into consideration when evaluating Officer Monnin’s testimony.

Upon review, we find Mr. Bell’s argument to be unpersuasive. At its core, the essence of Bell’s argument is that the traffic stop was a pretext to investigate suspected drug activity and that the trial court should have considered this fact. As explained above, however, a “pretextual” traffic stop is not unlawful per se. Provided that an officer observes a traffic violation, the subjective reason for making a stop is immaterial. “The fact that an otherwise lawful stop may have been pretextual in the sense that the officer had some ulterior motive for making the stop, does not render the stop unlawful.” State v. Sproat, 1997 WL 779121 (Dec. 19, 1997), citing Dayton v. Erickson, 76 Ohio St.3d 3, (1996); (recognizing that “a police officer who observes a traffic violation may make a stop based upon the violation, even though the officer’s purpose is to develop evidence of a more serious criminal violation”).

Conclusion and Holding

Here Officer Monnin saw Mr. Bell’s car being operated without a required county identification sticker on the license plate. Regardless of Monnin’s subjective motivation, Mr. Bell does not dispute that the officer was entitled to make a traffic stop based on this violation of the law. After making the stop, Officer Monnin approached Mr. Bell’s car and smelled raw marijuana. This fact entitled the officer to conduct a brief investigation to determine whether a drug offense had been committed. During that investigation, which lasted just minutes, Mr. Bell produced a Tupperware container of marijuana that was being stored in violation of Ohio’s medical-marijuana regulations. Mr. Bell also consented to a full search of his car, which resulted in the discovery of methamphetamine and other contraband. Under these circumstances, the trial court did not err in finding no constitutional violation and overruling Mr. Bell’s suppression motion. The second assignment of error is overruled.

The judgment of the Darke County Common Pleas Court is affirmed.

Information for this article was obtained from State v. Bell, 2023 – Ohio – 1588.

This case was issued by the Second District Appellate Court and is binding in the following Ohio counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.

Lessons Learned:

Did the officer require consent to search the vehicle? In this case the officer smelled marijuana. Bell produced a medical marijuana card and then the Tupperware containing marijuana. At that point the court states “At that point, Officer Monnin sought consent to search the vehicle.”. Once, Mr. Bell demonstrated he was in violation of Ohio Administrative Code §3796:7-2-05(G) [marijuana packaging], then he may have had probable to cause to search the vehicle. Nonetheless the officer took the additional step of requesting consent which was granted.
Pre-Textual Traffic Stop – Pre-textual traffic stops have been completed since shortly after Henry Ford started making cars. Pre-textual traffic stops have been judicially recognized since 1999 when the U.S. Supreme Court held “[T]he District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment.”. Whren v. U.S., 517 U.S. 806, 819 (1996). For more information see Wh(r)en is it lawful to stop a vehicle?. In this case Officer Monnin simply used the information that Mr. Bell was involved in the felony drug trade and used Mr. Bell’s failure to have a county sticker on his license plate as an opportunity to stop his vehicle. Well done Officer Monnin!
Extension of Traffic Stop – Mr. Bell’s legal counsel feebly argued that the officer unreasonably extended the traffic stop after learning of Mr. Bell’s possession of a medical marijuana card. In 1999 the Sixth Circuit Appellate Court held that once reasonable suspicion is established that criminal activity is afoot, unrelated to the original purpose of the traffic stop is established, the stop can be extended – U.S. v. Bell 195 F.3d 258 (6^th Cir. 1999). The Bell case is a canine case that I review in the Canine Legal Update class.