Once the officers smelled the strong odor of marijuana and discovered the marijuana in the lottery ticket, they had probable cause to believe that the vehicle contained contraband.  Therefore, they were justified in conducting a warrantless search of the vehicle and the containers inside under the automobile exception to the warrant requirement. 

 

State v. Payne

2023 – Ohio – 4198

First District Appellate Court

Hamilton County, Ohio

November 22, 2023

Cincinnati’s Winton Terrace High Crime Area

The record shows that on March 29, 2022, Officers Taylor Howard and Cameron Fehrman of the Cincinnati Police Department were assigned to conduct traffic stops in their marked cruiser.  They were working in Winton Terrace, which is a high-crime area with ongoing complaints of drug use and drug trafficking.

Winton Terrace Public Housing is typical of most Section 8 locations and commonly experience gunshots, drug sales and appellate court decisions.

Fail to Signal and Expired Temporary License Plate

The officers received a request from plain clothes officers to stop a vehicle for making a turn on to Winneste Avenue without using a turn signal.  They followed the vehicle, which was being driven by Mr. Eddie Payne, and discovered that the vehicle’s temporary license plate had expired.

Was there Enough Smell, Shake and Losing Lottery Tickets for Probable Cause?

The officers initiated a traffic stop.  Officer Fehrman approached the driver’s side, explained the reason for the stop, and asked Mr. Payne for his license and proof of insurance.  At the same time, Officer Howard approached the passenger side. Both officers smelled a strong odor of marijuana emanating from the vehicle.  In the ashtray, Officer Howard saw a crumpled-up lottery ticket.  He stated that in his experience, lottery tickets are used to wrap marijuana and other drugs.  He asked Mr. Payne if it contained marijuana.  Mr. Payne handed it to him, and he opened it up and found “shake,” particles of raw marijuana, “just as if a bud was in there at one point.”

Marijuana, Methamphetamine, Firearm and a Boston Breach of Law

Based upon the odor and the “shake,” the officers decided to search the vehicle.  They detained Mr. Payne, handcuffed him, and put him in a police cruiser. During the search, they discovered clear bags of raw marijuana and a small baggie containing pills, later determined to be methamphetamine, in the center console.  They recovered a loaded gun under the driver’s seat.  In a backpack on the back seat, they found paperwork relating to an ongoing criminal case against Mr. Payne in the Boston area.  Subsequently, Mr. Payne was arrested.

Eddie Pled No-Contest and was Convicted

Mr. Payne plead No-Contest and was convicted of Aggravated Trafficking in Drugs under O.R.C. §2925.03(A)(2) and Having Weapons Under a Disability under O.R.C. §2923.13(A)(2).

Mr. Payne Appealed Based on a Terry Violation

In his sole assignment of error, Mr. Payne contends that the trial court erred in denying his motion to suppress evidence obtained from the search of his vehicle. He argues that the search of the vehicle and the seizure of his person were unconstitutional under Terry v. Ohio, 392 U.S. 1, (1968), and that “the intrusion was greater than necessary under the totality of the circumstances.”  This assignment of error is not well taken.

Ulterior Motives of Law Enforcement are Misplaced

Mr. Payne’s reliance on Terry is misplaced.  He concedes that the initial stop of his vehicle was “justified at its inception.”  See Terry at 19-20.  Where an officer has “probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable … even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity.” State v. Mosley, 2021-Ohio-3472.

Were the Trial Court Transcripts Read?

As to the propriety of the search, the trial court did not rely on Terry.  It found that the police officers had probable cause to search Mr. Payne’s vehicle.

Established Case Law to Support the Probable Cause Search

Under the automobile exception to the warrant requirement, police officers may conduct a warrantless search of an entire vehicle if the officers have probable cause to believe that they will discover evidence of a crime.  State v. Moore, 90 Ohio St.3d 47, 51, (2000). Officers who have probable cause to search an automobile may search all packages and containers inside the car if they have probable cause to believe that the package or container contains contraband.  Wyoming v. Houghton, 526 U.S. 295, 302 (1999).

The Legal Standard is Objectively Reasonable

Whether probable cause exists depends on the objective factors articulated by the officer.  If the search is objectively reasonable, the officer’s stated reason for the search is irrelevant.  In re L.S. 2016 – Ohio – 5582.

The Smell of Marijuana IS the Smell of Probable Cause

Mr. Payne argues that the odor of marijuana and the small amount of “shake” in the vehicle did not provide probable cause to search the vehicle.  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.”  State v. Vega, 2018-Ohio-4002.

Mr. Payne Argues that Officer Howard and Officer Fehrman’s Olfactory Sensitivity were Too Weak to Smell Two Large Baggies of Marijuana

Mr. Payne further argues that there was so little marijuana in the lottery ticket “that the officers could not have smelled it to any degree rising to probable cause.”  The trial court found the officers’ testimony that they smelled a strong odor of marijuana to be credible and supported by the fact that the officers discovered “at least two clear bags of raw marijuana approximately the size of a human hand in close proximity to where the officers indicated that they smelled marijuana.”  

Conclusion and Holding

Once the officers smelled the strong odor of marijuana and discovered the marijuana in the lottery ticket, they had probable cause to believe that the vehicle contained contraband.  Therefore, they were justified in conducting a warrantless search of the vehicle and the containers inside under the automobile exception to the warrant requirement.  Consequently, we overrule Mr. Payne’s assignment of error and affirm the trial court’s judgment.

Information for this article was obtained from State v. Payne, 2023 – Ohio – 4198.

State v. Payne, 2023 – Ohio – 4198 was issued on November 22, 2023 by the First District Appellate Court and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Pre-Textual Traffic Stops – The traffic stop in this case began as what is commonly called a Pre-Textual Traffic Stop, where an officer has an ulterior motive for stopping a vehicle or pedestrian. In this case the Cincinnati Police Officers had a gut feeling that Mr. Payne was involved in the drug trade.  Upon stopping the vehicle for a Fail to Signal and Expired Tag violations, their gut feeling was confirmed by the smell of marijuana inside the vehicle.  Though, the primary case on Pre-Textual Stops was not mentioned in this holding, the U.S. Supreme established the lawfulness of Pre-Textual stops in Whren v. United States, 517 U.S. 806 (1996) when it 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.”.  For more information on this case, to include photos from the scene see Wh(r)en is it lawful to stop a vehicle?.
  2. Established Case Law – The First District Appellate Court did include a case that provided the lawfulness to search the vehicle in Wyoming v. Houghton, 526 U.S. 295 (1999). That court held “[P]olice officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.”.  For more on Houghton see A Liar, Truthteller and Methamphetamine.
  3. Impact of Recreational Marijuana – Now that recreational marijuana is lawful in Ohio what would have changed in this case if it occurred now? R.C. §3780 became effective on December 7, 2023 that decriminalizes the possession of cannabis within certain limits.  As the law stands now, with changes likely coming from the Ohio Legislature, possession of raw marijuana up to 2.5 ounces in a vehicle is lawful see O.R.C. §3780.36.  However the possession of 2.5 ounces in a vehicle conflicts with O.R.C. §3780.29 (A)(3) that states in pertinent part “[T]he following acts by and adult use consumer are lawful: Transferring up to six cannabis plants to an adult use consumer as long as the transfer is without remuneration and not advertised or promoted to the public.”.  So how can a person transfer up to six plants to another but be limited to 2.5 ounces in a vehicle?  Keep in mind that one plant exceeds 2.5 ounces.  Perhaps cannabis consuming crafters of this language only anticipated that the transfer of marijuana plants can only be transported by pedestrians?  Nonetheless, if law enforcement smells freshly burnt marijuana in a vehicle that may still establish probable cause under O.R.C. 3780.36 (D)(2) “An individual is prohibited from smoking, vaporizing, or using any other combustible adult use cannabis product while in a vehicle, motor vehicle … or bike.”.  Based on two cases by the Supreme Court of Ohio, law enforcement would still be able to search the car based on the smell of freshly burnt marijuana State v. Moore, 90 Ohio St.3d 47 (2000) and State v. Vega, 2018 – Ohio – 4002.  [Note: This article was posted on Friday December 22, 2023.  Any subsequent changes by the Ohio Legislature on O.R.C. §3780 may modify the information in Lessons Learned #3 herein.]
  4. Pre-Sent Arms!  The unnamed plain clothes officer, Officers Taylor Howard and Cameron Fehrman of the Cincinnati Police Department should all be highly commended in working together to investigate, charge and convict Mr. Payne.  The targeted enforcement efforts in Winton Terrace on March 29, 2022 worked.  Tamping down criminal activity in Section 8 Housing is very challenging work and these officers did outstanding work to keep the area safe.  Well done!

Does your agency train on the Pre-Textual Traffic Stops?

Contact me at https://www.objectivelyreasonable.com/contact/

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.