Based on the foregoing, probable cause existed to search the backpack, and the search was not improper. The trial court therefore erred in granting Mr. Kumuhone’s motion to suppress evidence.

 

State v. Kumuhone

2023 – Ohio – 2586

Eighth District Appellate Court

Cuyahoga County, Ohio

July 27, 2023

 

Officer had a Gut Feeling

On May 15, 2022, Middleburg Heights Police Officer Joshua Porter was working in his capacity as a patrol officer along with Canine Zeke. Officer Porter conducted a traffic stop on Pearl Road in Middleburg Heights. The traffic stop occurred near Mr. Christopher’s Kumuhone’s residence, which was known to Officer Porter for drug activity. He believed that the vehicle was returning to this residence.

Driver was Driver License-less

The vehicle was driven by Michael Meyers and Mr. Kumuhone was a passenger. Officer Porter stopped the vehicle because he was aware from prior interactions that Meyers had a suspended driver’s license. Prior to effectuating the stop, Officer Porter confirmed through LEADS that Meyers’s license was, in fact, still suspended.

Traffic Stop Leads to Nervousness

Officer Holderbaum also arrived on scene. Officer Porter approached the vehicle on the passenger side. He advised Mr. Meyers that he had stopped him for driving with a suspended license. Mr. Meyers appeared nervous; while Officer Porter spoke to him, Mr. Meyers’s hands were shaking and he was sweating.

Unlicensed Driver has an Active Warrant

Based upon prior incidents and the drug history at the residence, Officer Porter advised Mr. Meyers and Mr. Kumuhone that he was going to have Canine Zeke perform an exterior vehicle sniff, smelling for the odor of narcotics. Mr. Meyers and Mr. Kumuhone were advised to step out of the vehicle and were patted down. Mr. Meyers had an outstanding traffic warrant, so he was placed in Officer Holderbaum’s patrol vehicle.

Zeke had a Scent Cone

Officer Porter had Zeke start on the driver’s side of the vehicle. When Zeke got to the driver’s door, which was open, he jumped on the door in the seat area and started sniffing. From the change in Zeke’s breathing pattern, Officer Porter knew that Zeke was in a “scent cone” of narcotics and was trying to pinpoint exactly where the items were.

Backpack has Interior Compartments that are Locked

Canine Zeke sniffed further along the rear door, then returned to the driver’s door. Canine Zeke smelled the driver’s seat area and sat down, which is his final indication of the odor of narcotics. Officer Porter then began a probable cause search of the vehicle. In the backseat on the floor behind the driver’s seat, he located a backpack that had a combination lock connecting two of the zippers. Officer Porter opened the compartments of the backpack that he was able to before realizing that the two smaller ones would not open because of the lock on the zippers.

Canine Zeke Laid Down on the Backpack

Officer Porter had searched the vehicle and had not located the narcotics that had caused Canine Zeke to indicate. Officer Porter then placed the backpack on the ground five to ten feet away from the vehicle and deployed Canine Zeke again. He intentionally moved the backpack away from the vehicle so that he could obtain an individualized indication on the backpack. Canine Zeke sniffed the bag and indicated again, this time by lying down on the bag.

Officers Used Bolt Cutters on the Backpack Lock

Officer Porter discussed the lock on the backpack with his supervisor and Officer Holderbaum. They were able to open the bag using a pair of lock cutters that Officer Holderbaum had in his patrol vehicle.

Methamphetamine is Discovered in the Locked Compartment of the Backpack

Inside the bag, Officer Porter located a plastic sandwich baggy containing a substance that he suspected was methamphetamine. There was also a small circular rubber container with a lid that had a clear crystal-like substance inside. Officer Porter seized the evidence and detained Mr. Kumuhone by placing him in the back of Officer Holderbaum’s patrol vehicle. Mr. Kumuhone confirmed that the backpack belonged to him.

Two Second Degree Felonies

Pursuant to department policy, Officer Porter advised his supervisor of Mr. Kumuhone’s detainment. Department procedure provided that narcotics were sent out to be tested prior to arresting a suspect, so Mr. Kumuhone was released at the scene.

Mr. Kumuhone was subsequently charged with trafficking, in violation of O.R.C. §2925.03(A)(2), a felony of the second degree, and drug possession, in violation of O.R.C. §2925.11(A), a felony of the second degree.

Motion to Suppress

Mr. Kumuhone moved to suppress the evidence obtained from the warrantless search of the backpack. The court held a hearing on the motion, where the state presented the testimony of Officer Porter.

Motion to Suppress is Granted

Following the hearing, the court granted Mr. Kumuhone’s motion to suppress, finding: Defendant’s motion to suppress is granted.

The testimony of Officer Joshua Porter together with his canine partner Zeke’s hit on the backpack would easily support probable cause for a search warrant to be issued. While the court finds the testimony offered by the state credible, there has been no evidence or suggestion that exigent circumstances required a warrantless search be conducted. Furthermore no credible evidence that the backpack would satisfy the single purpose container exception to the warrant requirement was offered.

Motion to Suppress is Appealed

The state then filed the instant appeal, raising one assignment of error for our review:

The trial court erred in granting appellee’s motion to suppress.

In its sole assignment of error, the state argues that the trial court erred in finding that the officers were required to obtain a warrant prior to searching the backpack.

Single Purpose Container

In granting Mr. Kumuhone’s motion, the trial court determined that the single-purpose-container exception did not apply in this matter, seemingly relying upon State v. Burroughs, 2022-Ohio-2146,. In Burroughs, the police executed an arrest warrant at a residence, during which they discovered a closed bookbag with a plastic baggie stuck in its zipper. Without first obtaining a search warrant, they opened the bookbag and discovered illegal drugs.

The state in Burroughs argued that a warrant was not required under the “Single-Purpose-Container exception” to the warrant requirement. This exception arises when the nature of a container makes its contents clear. In such a situation, the owner of the container can have no expectation of privacy in the contents.

Single Purpose Container is Not Applicable …

The Supreme Court of Ohio determined that the single-purpose- container exception was not applicable because it is a narrow exception that “applies only when the illegal nature of the contents of a package are readily apparent because of the distinctive characteristics of the package.” Id. at ¶ 1. The contents of the container must be sufficiently obvious to essentially be in plain view. The court noted that a bookbag is not a single-purpose container because it can carry many different types of items and its contents could not be discerned without opening it.

… But the Motor Vehicle Exception IS Applicable

While there was a similar container in the instant matter, under Ohio case law, a bookbag found in a residence is distinguishable from a backpack found in an automobile. Under the “automobile exception,” police may search an automobile without a warrant, as long as they have probable cause to believe the vehicle contains evidence of criminal activity. The rationale behind the automobile exception is two-fold:

(1) Vehicles are mobile, and

(2) There exists a lesser expectation of privacy in a vehicle.

California v. Carney, 471 U.S. 386, 391 (1985).

Canine Alert Established Probable Cause

Ohio courts, including this court, have held that once a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, there is probable cause to justify a warrantless search of the vehicle for contraband. State v. Davis, 2007-Ohio-408

Probable Cause to Search Containers in a Vehicle

Established Case Law

We agree with the state that Zeke’s indication during his sniff of the vehicle constituted probable cause to search the vehicle. The justification for the search of the vehicle also extended to the backpack found inside. “‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’” United States v. Ross, 456 U.S. 798, 825, (1982)

‘“When there is probable cause to search for contraband in a car, it is reasonable for police officers … to examine packages and containers without a showing of individualized probable cause for each one.’” State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262, ¶ 14, quoting Wyoming v. Houghton, 526 U.S. 295, 302, (1999).

Officers had Enough Probable Cause to Search All Containers

Furthermore, while individualized probable cause was not necessary to permit the search of the backpack, there was, in fact, separate probable cause to justify the search. Canine Zeke performed an isolated sniff of the backpack away from the vehicle and specifically alerted by lying down on the backpack.

Trial Judge is Overturned and Chris’ Methamphetamine IS Admissible

Based on the foregoing, probable cause existed to search the backpack, and the search was not improper. The trial court therefore erred in granting Mr. Kumuhone’s motion to suppress evidence.

We reverse the decision of the trial court and remand this matter for further proceedings.

Information for this article was obtained from State v. Kumuhone, 2023 – Ohio – 2586.

State v. Kumuhone, 2023 – Ohio – 2586 was issued on July 27, 2023 by the Eighth District Appellate Court and is binding in Cuyahoga County, Ohio.

Lessons Learned:

  1. Motor Vehicle Exception – The trial judge suppressed the methamphetamine that was nestled inside a locked backpack (!) as the judge held “The testimony of Officer Joshua Porter together with his canine partner Zeke’s hit on the backpack would easily support probable cause for a search warrant to be issued. While the court finds the testimony offered by the state credible, there has been no evidence or suggestion that exigent circumstances required a warrantless search be conducted.”. This holding by the trial judge is disappointing as a judge should know that an exigent circumstance is not a prerequisite to the Motor Vehicle Exception since Tuesday June 1, 1982 when the U.S. Supreme Court issued United States v. Ross, 456 U.S. 798 (1982) as the court held  “‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’” Id at 825.  Consequently, the Motor Vehicle Exception legal threshold is probable cause that a container inside a vehicle contains contraband.  For more on United States v. Ross, 456 U.S. 798 (1982) see What is Bandit’s Paper Bag?
  2. Single Purpose Doctrine – At some point the Single Purpose Container Doctrine was argued. This doctrine was first established by the U.S. Supreme Court in Texas v. Brown, 460 U.S. 730 (1983) as it held “[T]he balloon could be one of those rare single-purpose containers which by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”. Id at 751. Here a backpack is not a single purpose container, even if it is locked.  For more on the Single Purpose Container Doctrine see Kennedy’s Marijuana Sprint led to Plastic Baggie Peek-a-Boo and the application of the Single Purpose Container Doctrine.
  3. Additional Case that May have been Instructive for the Trial Court Judge – For more information on sealed or locked containers discovered during a traffic stop see: The Officer Not Only “Pushed the Envelope” He Opened Two and Found Gummy ears, Two Appeals and a Supreme Court Ruling and Can Law Enforcement Search a Locked Safe Discovered Inside a Vehicle Based on Probable Cause?
  4. Pre-Sent Arms! I would like to commend Middleburg Heights Police Officer Joshua Porter, Officer Holderbaum and of course Canine Zeke! Job well done!  Keep up the great work and do not let an incorrect decision by a trial judge discourage your good work!

Does your agency train on Traffic Stops?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.