Because no exception to the warrant requirement justified Officer #1’s warrantless search of the backpack, the search violated the Fourth Amendment to the United States Constitution.  Therefore, the evidence discovered during the search of the backpack, including the firearm, should have been suppressed pursuant to the exclusionary rule.

 

This Tenth District case should be appealed by the Franklin County Prosecutor’s Office to the Supreme Court of Ohio.

State v. Camper

No. 21Ap-685

Tenth District Appellate Court

Franklin County, Ohio

December 21, 2023

On August 3, 2021, the trial court held an evidentiary hearing on the motion. Officer #1 was the sole witness to testify at the hearing and provided the following testimony.

Note:  The case identifies the officer by name but herein the officer will only be identified as Officer #1.

Barricade in the Bottoms

In the early morning hours of August 22, 2020, Officer #1 and several other officers were dispatched to 136 Dakota Avenue in the Franklinton neighborhood of Columbus, Ohio. The call involved a report of someone discharging a firearm into a house.  When officers arrived, the suspected shooter barricaded himself inside a house.  Several people had gathered on the street to watch the police activity surrounding the barricade situation.  A grassy boulevard separates the east and west sides of Dakota Avenue.

This incident began with a barricade at 136 Dakota Avenue in the historic Franklinton neighborhood, often called the Bottoms.  The events that followed led to an arrest, conviction and appeal.  Also pictured is the ‘grassy boulevard’ described in the first paragraph.

A Vehicle Accident and a Backpack Exchange

At approximately 2:00 a.m., Officer #1 was sitting in his patrol car on the east side of the street when he heard a “crash on the west side of the street directly across from” him. Officer #1 looked toward the noise and saw a vehicle, being operated by Mr. Camper, “backing up” with the “bumper … hanging off.” Officer #1 determined that Mr. Camper had just hit another parked car.  Officer #1 then observed Mr. Camper hand a “book bag out the window” of the vehicle to an individual subsequently identified as Dusty Owens.  Mr. Owens placed the backpack on his back without opening it.  Officer #1’s body worn camera recorded Officer #1 telling another officer, “[G]et that book bag.  Dude just took that book bag from him.”  Officer #1 drove his patrol car across the street while keeping “constant eye contact on Mr. Mr. Owens.”  Officers present at 136 Dakota Avenue began walking across the street toward the vehicle accident.

Suspect Flees and the Smell of Probable Cause

The approaching officers told Mr. Camper “to stop,” but Mr. Camper exited his vehicle and “fled inside the house” at 133 Dakota Avenue.  Mr. Owens began walking toward the residence next door to the residence Mr. Camper entered.  Officer #1 exited his vehicle and approached Mr. Owens.  “As soon as” Officer #1 walked up to Mr. Owens, he “could smell immediately a strong odor of raw marijuana coming from the book bag that [Mr. Owens] was wearing.” Officer #1 testified that he was trained to recognize the smell of marijuana and that he had made hundreds of drug-related arrests during his ten-year career in law enforcement.

After handing off his felonious backpack to Mr. Owens, Mr. Camper fled inside the left half of this double – 133 Dakota Avenue. He would eventually come back outside and was arrested.

Backpack Holder Fails to Comply

When Officer #1 approached Mr. Owens he told him, “[G]ive me that book bag.”  Mr. Owens responded stating “[W]hat,” and Officer #1 told him, “[T]ake it off now, take it off.  Just take the book bag off.  He just handed it to you.”  When Mr. Owens resisted giving up the backpack, Officer #1 and another officer grabbed Mr. Owens and Mr. Owens fell to the ground.  Officer #1 then took a hold of the backpack and the other officer placed Mr. Owens in handcuffs.

While the backpack remained closed and in Officer #1’s possession, Officer #1 told Mr. Owens he “[could] smell there is weed coming off of this bag.”  The following exchange then occurred between Officer #1 and Mr. Owens:

Excerpt of video was played as follows:

OFFICER #1: Why would you take a bag from somebody you don’t even — do you know that guy?

OWENS: He’s my friend. I didn’t know what — he just asked me to hold the bag. What do you think is in it?

(Unintelligible).

OFFICER #1: You see somebody running from the police, they hand you a bag –

OWENS: I didn’t know he was going to run from you all. You got to understand that.

Both Marijuana and a Firearm Discovered Inside the Backpack

Officer #1 then stepped away from Mr. Owens and unzipped the backpack. Officer #1 discovered two baggies containing marijuana and a loaded pistol inside. Officer #1 did not ask Mr. Owens or Mr. Camper for consent to search the backpack and Officer #1 did not have a warrant authorizing him to search the backpack.

Mr. Unhappy Camper

During Officer #1’s interaction with Mr. Owens, other officers were at 133 Dakota Avenue “yelling for [Mr. Camper] to come out.”  Mr. Camper exited the house and was taken into custody.  Mr. Camper asked Officer #1 why he was being arrested, and Officer #1 replied, “[B]ecause you got in an accident and then you handed the bag to this guy and I saw you do it.”

Mr. Camper Denies His Actions

Officers then transported Mr. Camper to the police station, where CPD Detective Christopher Journey interrogated him.  Detective Journey informed Mr. Camper he would be charged with a felony resulting from the firearm discovered in the backpack.  In response, Mr. Camper told Detective Journey that he “didn’t have those,” he “didn’t give nobody no book bag,” “there wasn’t no book bag,” and that the officers “should have seen that [Mr. Camper] handed a bottle of liquor” to Mr. Owens.

Motion to Suppress is Lost

The trial court denied Mr. Camper’s motion to suppress on the record at the conclusion of the suppression hearing.  The court determined that Mr. Camper lacked standing to challenge the search because he “abandoned possession of the backpack.”  Following Mr. Camper’s request for findings of fact and conclusions of law, the court issued an entry denying the motion to suppress on November 16, 2021. In the entry, the court expressly found Officer #1’s testimony credible and concluded that Mr. Camper abandoned the backpack when he “gave it to Mr. Mr. Owens, fled the scene of the vehicle accident, … entered 133 Dakota Ave,” and “denied ever having the black backpack later during a custodial interview.”  The court further determined that Officer #1 had probable cause to search the backpack once he “positively smelled the odor of raw marijuana emanating from the bag.” The court also concluded that, even if Officer #1’s warrantless search violated the Fourth Amendment to the United States Constitution, the evidence discovered during the search should not be suppressed.

Plea Bargain and Two Years of Community Control

On November 18, 2021, Mr. Camper pled no contest to the charges in the indictment.  The court accepted Mr. Camper’s no contest plea and proceeded immediately to sentencing.  The court sentenced Mr. Camper to a two-year term of community control.  On November 23, 2021, the trial court issued a judgment entry finding Mr. Camper guilty of the charges and memorializing Mr. Camper’s convictions and sentence.

Mr. Camper Appeals

Mr. Camper appeals, assigning the following two assignments of error for our review:

Because the warrantless search of Mr. Camper’s backpack violated his right of privacy the lower court should have granted his motion to suppress.  All evidence obtained as a result should have been excluded pursuant to the Fourth and Fourteenth Amendments of the United States Constitution, Article I, Section 14 of the Ohio Constitution, R.C. 2933.21, R.C. 2933.22, Crim. R. 41, and Franklin County Loc. R. 4.12.

Doctrine of Abandonment

“The question of abandonment is a mixed question of law and fact.”  United States v. Dillard, 78 Fed.Appx. 505, 509 (6th Cir.2003), citing United States v. Oswald, 783 F.2d 663, 666 (6th Cir.1986).  To demonstrate abandonment “the government must establish by a preponderance of the evidence that the defendant’s voluntary words or conduct would lead a reasonable person in the searching officer’s position to believe that the defendant relinquished his property interests in the item searched or seized.”  United States v. Basinski,226 F.3d 829, 836 (7th Cir.2000).

Did Mr. Camper Abandon a Backpack He Claimed He Never Had?

The state contends that Mr. Camper failed to establish a legitimate expectation of privacy in the backpack because he did not demonstrate that he owned the backpack.  However, abandonment for Fourth Amendment purposes differs from abandonment in terms of property law.

Numerous abandonment cases concern the situation where a defendant discards an object by leaving it unattended in a public place.  See Dubose at ¶ 42 (noting the long line of cases “establishing the principle that police may freely seize and search abandoned items, such as items thrown from vehicles during a police chase, items placed in trash containers, or items dropped by a pedestrian while fleeing from the police”).

The trial court determined that Mr. Camper voluntarily abandoned the backpack when he handed it to Mr. Owens.

The state relies on Nowak, 825 F.3d at 946 to support its contention that Mr. Camper abandoned the backpack when he handed it to Mr. Owens.  In Nowak, the defendant was a passenger in a friend’s car when police initiated a traffic stop of the vehicle.  During the traffic stop, the defendant suddenly exited the vehicle and ran, leaving his backpack in the friend’s car.  Id. at 947.  The reviewing court concluded that the defendant abandoned the backpack because he did not ask the driver “to store or safeguard the backpack for him. Indeed, he said nothing at all to [the driver] when he ran from the car, leaving the backpack behind and leaving [the driver] ‘amazed’ at [the defendant’s] flight.”  Id. at 949.  The court determined that, by saying nothing, the defendant failed to ensure the driver would “take care or possession of the backpack in his absence such that his personal belongings would remain private.”

Mr. Camper Now Admits he did Handoff the Backpack as that is in his Best Fourth Amendment Interest

Mr. Camper contends that he did not forfeit his reasonable expectation of privacy in the backpack simply because he handed the backpack to his friend, Mr. Owens. Before Officer #1 searched the backpack, he asked Mr. Owens whether he knew Mr. Camper.  Mr. Owens responded stating “[h]e’s my friend … he just asked me to hold the bag.”  Officer #1’s body worn camera recorded Mr. Owens’ statement and the state played the footage during the suppression hearing.  Officer #1 also affirmed on cross-examination that Mr. Owens told him he was friends with Mr. Camper.

Our review of the case demonstrates that the facts regarding the relationship and understanding between Mr. Camper and Mr. Owens at the time the backpack transferred possession were necessary to the abandonment analysis.  Mr. Camper did not leave the backpack on the sidewalk or in some other public place where any member of the public would have been free to rummage through its contents.  Mr. Camper also did not hand the bag to a stranger or leave the backpack with Mr. Owens without his permission.

Tenth District Determines that the Backpack was Not Abandoned

Accordingly, we must reverse the trial court’s suppression ruling.  We note, however, that the state did not present any evidence to contradict Mr. Owens’ statements to Officer #1.

Note:  There was a substantive review if Mr. Camper had Fourth Amendment Standing to challenge the admissibility of the backpack.  The court determined that he did have standing but that analysis has been redacted in this article.

Was the Warrantless Search of the Backpack Reasonable?

Although the trial court concluded that Mr. Camper lacked Fourth Amendment standing, the court also held that Officer #1 lawfully conducted a “probable cause search of the backpack.”  Mr. Camper notes that, even assuming Officer #1 had a reasonable, articulable suspicion sufficient to detain Mr. Owens and seize the backpack, “that did not supply [officers with] authority to search the backpack without a warrant.” See Terry v. Ohio, 392 U.S. 1, 21 (1968)

Established Case Law Supporting the Actions of Officer #1

Police may lawfully seize an item of personal property “[W]hen there is probable cause to believe that the closed container holds evidence of criminal activity.” State v. Burroughs, 2022-Ohio-2146.

Tenth District Interprets a Supreme Court of Ohio Holding Differently

The trial court concluded that Officer #1 had probable cause to search the backpack once he smelled the odor of raw marijuana emanating from the backpack.  In State v. Moore, 90 Ohio St.3d 47 (2000), the Supreme Court of Ohio held that the “[S]mell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.”  Id. (known as the plain smell doctrine).  However, Moore did not hold that the odor of marijuana, on its own, constituted an exception to the warrant requirement.

Because the Tenth District Determines that the Plain Smell Doctrine Does Not Apply to the Plain Smell of Marijuana … the Evidence is Suppressed

The trial court did not address whether any exceptions to the warrant requirement justified Officer #1’s warrantless search.  Instead, the court determined the search was justified based on probable cause alone.  Officer #1’s warrantless search was constitutionally unreasonable absent an applicable exception to the warrant requirement.

Tenth District Adds Exigent Circumstances to the Plain Smell Doctrine

Exigent circumstances exist when an officer believes a person is “ ‘in need of immediate aid to prevent a threat to life or limb,’ ” or where the officer believes “ ‘the imminent loss, removal, or destruction of evidence or contraband’ ” is about to occur.  State v. Enyart, 2010-Ohio-5623.  Officer #1 testified that he was “standing by waiting to see if detectives were going to respond” to the barricade situation when the incident with Mr. Camper occurred, and that the incident involving Mr. Camper was “completely unrelated” to the barricade/shooting situation.  Officer #1 also admitted that, once he had possession of the backpack, there was no risk that he would “lose the backpack in the time that it would have taken [him] to obtain a search warrant.”  Accordingly, there is no indication that the unrelated barricade situation created an exigent circumstance in the present case, or that any exigency related to the loss or destruction of evidence existed after Officer #1 seized the backpack.

Tenth District Adds ‘Arrestable Offense’ to the Plain Smell Doctrine

Because Mr. Owens had possession of the backpack and had separated from Mr. Camper, officers could not have searched the backpack incident to an arrest of Mr. Camper. Although the state contends generally that Mr. Owens could have been arrested for illegal drug activity, the record demonstrates only that Officer #1 smelled the odor of raw marijuana emanating from the backpack.  Currently, possession of less than 100 grams of marijuana is a minor misdemeanor offense.  O.R.C. §2925.11(C)(3).  O.R.C. §2935.26(A) prohibits an officer from arresting someone who has committed a minor misdemeanor offense, unless one of the exceptions listed in the statute applies.  The state fails to demonstrate that officers could have searched the backpack incident to the arrest of Mr. Owens.

Because the Tenth District Added both the Exigent Circumstance Doctrine and an Arrestable Offense Element to the Plain Smell Doctrine Mr. Camper is Happy

Because no exception to the warrant requirement justified Officer #1’s warrantless search of the backpack, the search violated the Fourth Amendment to the United States Constitution.  Therefore, the evidence discovered during the search of the backpack, including the firearm, should have been suppressed pursuant to the exclusionary rule.

Officer #1 did not rely on a mistake made by some third person to justify his search of the backpack.  Rather, Officer #1 testified that he searched the backpack because the odor of marijuana provided him with “the [probable cause] for the search.”  Officer #1’s belief that he could search the backpack based solely on probable cause, without a warrant or applicable exception to the warrant requirement, was objectively unreasonable.  See United States v. Leon, 468 U.S. 897, 922 (1984).  As such, the good-faith exception to the exclusionary rule does not apply to the facts of the present case.

Based on the foregoing, we sustain Mr. Camper’s first assignment of error.

Having sustained Mr. Camper’s first assignment of error, thereby rendering Mr. Camper’s second assignment of error moot, we reverse the judgment of the Franklin County Court of Common Pleas and remand the case to that court for proceedings consistent with law and this decision.

Information for this article was obtained from State v. Camper, No. 21Ap-685.

State v. Camper, No. 21Ap-685 was issued on December 21, 2023 by the Tenth District Appellate Court and is binding in Franklin County, Ohio.

Lessons Learned:

  1. Was the backpack abandoned? For someone to abandon property for Fourth Amendment analysis, the person must have discarded the property in accordance the tenets of Basinski “[R]elinquished his property interests in the item searched or seized.”  United States v. Basinski, 226 F.3d 829, 836 (7th Cir.2000). Here, Mr. Camper handed his felonious filled backpack to the recalcitrant Mr. Owens, so Mr. Camper did not indicate he was relinquishing his property interest.
  2. Plain Smell Doctrine – The reason why I believe the Tenth District Appellate Court made the wrong decision on this case is that Officer #1 searched the backpack because he smelled marijuana emanating from the backpack. In 2000 the Supreme Court of Ohio held the “[S]mell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.” State v. Moore, 90 Ohio St.3d 47 (2000). This excerpt is the holding in the case and required no further legal elements.  However, the Tenth District Appellate Court added two additional elements that the Supreme Court of Ohio did not predicate in Moore; an arrestable offense and an exigent circumstance.
  3. Arrestable Offense – The Tenth District Appellate Court held “The state fails to demonstrate that officers could have searched the backpack incident to the arrest of Mr. Owens.”. The Plain Smell Doctrine in Ohio does not mandate that this doctrine begin with an arrest.
  4. Exigent Circumstance – The Tenth District Appellate Court held “Officer #1 testified that he searched the backpack because the odor of marijuana provided him with “the [probable cause] for the search.” Officer #1’s belief that he could search the backpack based solely on probable cause, without a warrant or applicable exception to the warrant requirement, was objectively unreasonable.”. The Plain Smell Doctrine in Ohio IS an exception to the warrant requirement!  Again, the Supreme Court of Ohio held the “[S]mell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search.” State v. Moore, 90 Ohio St.3d 47 (2000).
  5. Franklin County Prosecutor’s Office Opportunity – Officer #1 did what he should have done prior to this avant garde holding in Camper. Now the Franklin County Prosecutor’s Office responsibility is to appeal this objectively unreasonable holding to the Supreme Court of Ohio to right this wrong.

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