[W]e conclude that, when Mr. Braun voluntarily and without prompting by either officer handed a jar of marijuana from his overalls to Officer #2 (when no pat down or search had yet taken place), Officer #2 at that time had probable cause to search Mr. Braun’s person whether or not he had reasonable grounds to believe that Mr. Braun was armed or dangerous.
State v. Braun
2023 – Ohio – 1683
Second District Appellate Court
Darke County, Ohio
May 19, 2023
Field Training Car Conducts Traffic Stop
*The case identifies the officers by name; for purposes of this article, I will refer to each as Officer #1 [FTO] and Officer #2 [Officer-in-Training].
On Sunday February 27, 2022, at around 10:00 p.m., Second District Officer #1 and Officer #2, whom Officer #1 was training, stop stopped Mr. Michael Braun in a 2002 Trailblazer for fictitious plates at the intersection of East Main and Ash Streets in Greenville. Prior to the stop, the officers had learned through the Law Enforcement Automated Data System that the vehicle’s license plates belonged to a 2011 Dodge station wagon. Mr. Braun, the sole occupant, stopped his vehicle on a residential street off East Main Street.
Officer #1 and Officer #2 a stopped 2002 Trailblazer for fictitious plates at the intersection of East Main and Ash Streets in Greenville, Ohio. What happened next led to an arrest, conviction and appeal.
Probable Cause is Established
Officer #2 approached the driver’s side of the vehicle, and Officer #1 approached the passenger’s side. Without being asked, Mr. Braun advised Officer #2 that he did not have a valid driver’s license. In response to a question by Officer #2, Mr. Braun stated that his license had been suspended. While Officer #2 spoke to Mr. Braun, Officer #1, with the use of his flashlight, observed a pipe with burnt residue on the front passenger seat. While Officer #2 ran the vehicle’s VIN number, Officer #1 opened the passenger door, shined his flashlight on the pipe, and asked Mr. Braun if it was a marijuana pipe. Mr. Braun responded affirmatively. Officer #1 asked Mr. Braun if he had a medical marijuana card [good question!], and Mr. Braun said no. Officer #1 then asked Mr. Braun if there were any drugs in the vehicle, and Mr. Braun responded that there was marijuana in the backseat.
East Main and Ash Streets in Greenville, Ohio.
Officer #2 Informs Mr. Braun he Will Conduct a Pat Down and Jar of Marijuana is Produced
Officer #1 instructed Officer #2 to have Mr. Braun step out of the vehicle for officer safety because he intended to search the car. Officer #2 asked Mr. Braun to stand in front of the officers’ cruiser during the vehicle search, and a video from the cruiser camera was admitted into evidence. Officer #2 asked Mr. Braun if he had any weapons on his person and advised him that he intended to pat him down to check for weapons. Before Officer #2 commenced the pat down, Mr. Braun voluntarily and without any prompting by the officers reached into his overalls and handed Officer #2 a four-to-six-inch jar containing a green leafy substance that he had removed from his clothing. Mr. Braun told Officer #2 the substance was marijuana, and Officer #2 set the jar on the hood of the cruiser.
Pat Down and then a Search
Officer #2 then patted Mr. Braun down, finding no weapons; he subsequently searched Mr. Braun’s person based on the probable cause resulting from Mr. Braun’s voluntary production of the jar of marijuana. On Mr. Braun’s person, Officer #2 located an eyeglasses case that contained a pipe with burnt residue that Officer #2 believed to be methamphetamine, a zippered wallet, and two smaller jars that Mr. Braun indicated contained methamphetamine. Officer #2 testified that Mr. Braun had spontaneously advised him that he had methamphetamine on his person before it was located. Officer #1 then advised Mr. Braun of his Miranda rights. After returning to Mr. Braun’s vehicle and completing the search, Officer #1 located additional glass pipes and suspected marijuana in various glass jars and a small portable scale. Mr. Braun was released from the scene.
Mr. Braun was Charged and Filed a Motion to Suppress
In ruling on the motion to suppress, the trial court found that reasonable articulable facts had supported the traffic stop due to the fictitious plates and that Mr. Braun’s removal from the vehicle had been justified due to the absence of a validly-licensed vehicle and unlicensed driver, an arrestable offense. The court noted that a marijuana pipe had been in plain view on the passenger’s seat, further justifying the search of the vehicle.
Trial Court Denied the Motion to Suppress and Upheld the Pat Down though the Analysis was Incorrect
Regarding the reasonableness of the pat down, the [trial] court determined:
At the moment when the Defendant was taken to the front of the cruiser, Officer #2 began the process of patting down the Defendant – for the apparent purpose of officer safety. However, he did not articulate to the Court circumstances affecting officer safety, such as the surroundings, time of day, lighting, presence of other public safety officers, presence of other individuals, the demeanor, behavior, and cognitive responsiveness of the suspect, and other articulated facts and circumstances. Indeed, the Defendant’s cooperative and congenial demeanor mitigate against such concerns. * * * Nonetheless, from the evidence presented, the Court finds the bulky clothing of the Defendant under dim lighting to be circumstances which justify a pat down for officer safety purposes to detect items that could be used as a weapon. Therefore, the court finds justification for the pat down.
The Terry pat down does not allow an officer to reach or look into a pocket or the interior of most clothing. Similarly, the limitation prevents searching inside the Defendant’s wallet and glasses case. Once removed from the Defendant, there was no officer safety reason to inspect the contents of the wallet or glasses case.
The court further found that Mr. Braun’s handing Officer #2 the jar of marijuana prior to the pat down and Mr. Braun’s statement regarding drugs on his person justified “the ending of the Terry pat down and the commencement of a more intrusive search of his clothing for the presence of illegal drugs.” The court found that the marijuana and methamphetamine were admissible. However, the court found (in a footnote) that any evidence taken from the glasses case and wallet was inadmissible.
Was there a Roadside Miranda Violation?
Regarding the admissibility of Mr. Braun’s statements, the court found that questions “related to officer safety (for example, the presence of guns and knives) are appropriate.” It determined that once Mr. Braun admitted to the presence of drugs on his person, “questions regarding the location of the drugs within his clothes are admissible.” The court noted that Officer #1 provided Miranda warnings to Mr. Braun at 10:09:04 p.m. and that “questions and answers by the Defendant after 10:09:04 p.m. are not in violation of the privilege against self-incrimination.”
Mr. Braun was Correct to Argue that the Pat Down Exceeded the Scope of Terry
Mr. Braun argues on appeal that there was “a complete absence of testimony regarding a ‘reasonable and articulable suspicion’ from the officers conducting the search” of Mr. Braun’s person that he was “ ‘armed and dangerous.’ ” Mr. Braun asserts that the video of his detention reflects that Officer #2 removed an item from Mr. Braun’s pocket before Mr. Braun had advised Officer #2 that he had methamphetamine on his person. The State responds that the trial court did not err when it found that the Terry search and subsequent probable cause search of Mr. Braun were lawful.
Traffic Stop was Lawful
The parties do not dispute that Offs. Officer #2 and Officer #1 lawfully stopped Mr. Braun’s vehicle for fictitious plates and lawfully proceeded to search it after Officer #1 viewed the marijuana pipe on the front passenger seat.
Removal of Mr. Braun was Lawful
To accomplish the search of the vehicle, Officer #1 instructed Officer #2 to remove Mr. Braun from the vehicle, because “officers may require that the occupants of a motor vehicle exit the vehicle pursuant to a traffic violation because of the legitimate safety concerns of both the officer and the occupants.” State v. Brock, 2010 – Ohio – 5885, quoting Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977).
No Testimony that Mr. Braun was Armed and Dangerous
We have viewed the video of the traffic stop and the subsequent search of Mr. Braun. As this Court has noted, “ ‘[D]uring the course of an investigatory stop and detention, law enforcement officers may conduct a pat down search for weapons if the officer have reasonable grounds to believe that the suspect is dangerous.’ ” State v. Warnick, 2020-Ohio-4240 quoting State v. Keggan, 2006-Ohio-6663. While the testimony before the trial court lacked any discussion related to reasonable grounds for the officers initially to believe that Mr. Braun was armed or dangerous, no pat down of Mr. Braun initially took place.
The Pat Down was not Lawful but the Search was Lawful
However, we conclude that, when Mr. Braun voluntarily and without prompting by either officer handed a jar of marijuana from his overalls to Officer #2 (when no pat down or search had yet taken place), Officer #2 at that time had probable cause to search Mr. Braun’s person whether or not he had reasonable grounds to believe that Mr. Braun was armed or dangerous. In Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804, during a valid traffic stop, law enforcement officers detected the strong odor of marijuana emanating from Moore’s vehicle and person. After concluding that the officers could search Moore’s vehicle pursuant to the “well-established automobile exception to the warrant requirement,” the court addressed the search of Moore’s person. The investigating officer admitted at the suppression hearing that he had not feared for his safety, that the search of Moore had not been a pat down for weapons, and also that search had not been justified as being incidental to arrest. Moore held that, in certain situations, exigent circumstances justify a warrantless search. There must be “compelling reasons” or “exceptional circumstances” to justify a warrantless intrusion, such as in the automobile exception to the warrant requirement due to a vehicle’s “inherent mobility.” “A warrantless search is also justified if there is imminent danger that evidence will be lost or destroyed if a search is not immediately conducted.” Id., citing Cupp v. Murphy, 412 U.S. 291, 294-296, (1973).
Mr. Braun Established Probable Cause by Himself
Here, we conclude that compelling reasons and exceptional circumstances justified Officer #2’s search of Mr. Braun’s person after Mr. Braun voluntarily, and without instruction from either officer, handed Officer #2 the jar of marijuana. Officer #2 had probable cause that criminal activity was afoot, and it is well-settled that “marijuana and other narcotics are easily and quickly hidden or destroyed.” Id. Under the totality of the circumstances, namely the marijuana pipe on the passenger seat of Mr. Braun’s vehicle, Mr. Braun’s advising Officer #1 that there was marijuana in the backseat of the vehicle, and Mr. Braun’s voluntarily producing a jar containing marijuana from his clothing, Officer #2 had probable cause to search Mr. Braun’s person for evidence of criminal activity that, in the absence of the search, Mr. Braun could have removed from the scene upon his release.
Holding
Mr. Braun’s sole assignment of error is overruled.
The judgment of the trial court is affirmed.
Information for this article was obtained from State v. Braun, 2023 – Ohio – 1683.
State v. Braun, 2023 – Ohio – 1683 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:
- Vehicle Search – At the moment Officer #1 observed the marijuana pipe on the passenger seat and asked if Mr. Braun had a medical marijuana card to which Mr. Braun said no, probable cause to search the passenger compartment of the vehicle was established.
- Pat Down – For law enforcement to conduct a lawful pat down, the officer must reasonably suspect: 1) Criminal activity is afoot and 2) The suspect is presently armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968). In this case the detention of Mr. Braun was reasonable because he had fictitious tags on his vehicle. But the officers did not articulate that they reasonably suspected that Mr. Braun was presently armed and dangerous. The entire justification of the pat down was unnecessary since probable cause to believe he had more unlawful drugs on his person had been established by the marijuana pipe on the passenger seat AND the production of the jar of marijuana on Mr. Braun’s person. Ultimately the Second District Appellate Court held that the meth discovered in the eye glass case was admissible “[W]e conclude that, when Mr. Braun voluntarily and without prompting by either officer handed a jar of marijuana from his overalls to Officer #2 (when no pat down or search had yet taken place), Officer #2 at that time had probable cause to search Mr. Braun’s person whether or not he had reasonable grounds to believe that Mr. Braun was armed or dangerous.”.
- Miranda – The court made a brief analysis on the roadside questioning. When law enforcement conducts investigatory stops; either traffic or pedestrian, there is some amount of time where the suspect is not free to go yet is not in ‘Miranda Custody’. In this case Officer #1 did provide the Mirandawarning to Mr. Braun and upon a waiver, his statements were admissible. Officer #1 should be commended for recognizing a more in-depth investigation and questioning may be violative of the Fifth Amendment Self Incrimination Doctrine. However, the U.S. Supreme Court determined that even though a suspect is detained and questioned, he is not in ‘Miranda Custody’ as in 1984 the court held “[A person who is] temporarily detained as part of a routine traffic or investigatory stop not generally deemed ‘in custody’, and hence, is not entitled to Miranda warnings.” Berkermer v. McCarty, 468 U.S. 420, 436 (1984)
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