^^.
IN I'HE SUPREME COURT OF OHIO
STATE OF OI-IIO CASE i^10 101 ^"JIL
Plaintiff-Appellee,
- VS -
On Appeal from the LorainCounty Court of Appeals,Nintli Appellate District
I3FZETT JONES,
IJef:end ant-Appe ll ant.
Court of Appeals Case No.12CA010270
MEMORANDUM IN StJPPORT OF JURISDICTIONOF APPEI,LANT I3RETT JONES
PAUI.a GRIFFIN 40073561PAUL, A. GRIFFIN Co., L.P.A.600 Broadway, 2d FloorLorain, Ohio 44052Ph: (440) 245-5565Fax: (440) 244-0811paraffin44052Cc^;yahoo.c:oznATTORNEY F'OR APPELLANT, BRETT JONES
Mary R. SlanczkaAssistant Lorain County Prosecutor225 Court Street, 3d floorI:Ivria, Ohio 44035(440) 329-5454ATTORNEY FOR APPELLEE, STATL OF OI-IIO
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TABLE OF (:ONTENTS
TABLE OF CON'I'I ;NTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONALQI1EST'1ON, AND IS A CASE OF PLiBLIC OR GREAT GENNERAL INTEREST, ANI) WHYLEAVE TO APPEAL. SHOULD BE C'iR.ANTTED IIV' THIS FELONY CASE . . . . . . . . . . . . . . . . I
5TA"I'EMENT OF THE CASE AND 1~ACTS . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 2
ARGUIVIENT IN StTPPORT OI: PROPOSITION OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PROPOSITION OF LAW NO l:
When a law enforcement officer detects the odor of raw marijuana enianating from
the passenger compartment of a vehicle lawfully stopped, and upon searching the
passenger compartment, locates the source of the odor within the passenger
compartment, probable cause to search the vehicle does not extend to a search of the
trunk, unless the officer can articulate additional facts supporting probable cause to
believe that raw marijuana would also be found in the trunk. State v. Farres,109
Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CONCLUSION ..................................... ..................... 15
CERTIT'ICA'r'r? OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Opiiiion of th.eLorain County Court of Common Pleas granting Defendant'sMotion to Suppress Evidence(August 17, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 1-4
Opinion of the Ninth District Court of Appeals(June11,2013). .... ................................... .........BI-.20
z
EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIALCl7NSTITUTIONAL QUESTION, IS A CASE OF PUBLIC OR GREAT
GENERAL INTEREST, AND WHY LEAVE TO APPEAL SHOULDBE GRANTED IN THIS FELONY CASE
In S.tczte 1,. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, this C.ourt held
that the trunk and the passenger compartment of a car are subject to different standards of
probable cause under the Ohio Constitution to conduct warrantless searches. In this case, an Ohio
State Trooper testified that his decision to search a bookbag located in the trunk of Appellant
Brett Jones's car was based solely on his detection of the odor of raw marijuana emanating froni
the passenger compartmont of Mr. Jones's car. The trial court suppressed the evidence found in
the bookbag. Relying on Farris, the trial court held that the Trooper's observations, while
providing probable cause to search the passenger conipartrnent, did not provide probable cause to
search the trunk. (Journal Entr)), dated 8-17-12; R. at 24; Appendix, Al-4).
"The Ninth District Court of Appeals reversed. State v. Jones, 9'n Dist. No. 12CA010270,
2013-Ohio-2375 (Appendix, B l 20). In a two-to-one decision, the Ninth District concluded that
Faryis only involved an analysis of the Ohio Constitution's Self-Incrimination Clause of Article
I, Section 10, not an evaluation of the Search and Seizure Clause of Article I, Section 14. Iones,
^15-I6. "I'he Ninth District further concluded that the search of Mr. Jones's trunk was permissible
because "the Ohio Constitution, like the United States Constitution, does not prohibit warrantless
searches of aii automobile trunk after law enforcement has found contraband in the passenger
cornpartmerlt." Id. at T,,,,20.
'I'he dissent disagreed with the majority's conclusion that Fctrf•is did, not involve an
evaluation of Article l, Section 14 of the Ohio Constitution, noting that this Court specifically
considered whether the officer had "probable cause to search an entire vehicle, including its
trunk, when he smells the odor of burnt marijuana conaing from the vehicle." Id, at T,30
(Belfance, J., dissenting). quoting State v. Farris. Regarding the search of the trunk itself; the
dissent agreed with the trial court's application of Farris, and concluded: "[u]nder the
circumstances of this case and recognizing the distinction between the probable cause to search a
trunk versus the search of the passengercompartment pursuant to .Farris, I would conclude that
probable cause did not exist to search the trunk."' Id.
'fhis Court should take this case for two reasons. First, to correct the Ninth District's
mistaken conciLision that Farris was limited to confessions, not searches and seizures. Second, to
reaffirin the holding in Fcra•ris that "a ti•unl: and a passenger compartment of an automc>bile are
subject to difterent standards of probable cause to conduct searches." Farri.s, at ^150. Under both
Article I, Section 14 of the Ohio Constitution, and the F aurth Amendment to the United States
Constitution, a police officer's detection of an odor of marijuana in the passenger cornpartment
of a car does not, ipso fuc.to, justifv a bumper-to-bumper search of the entire car and its contents.
"I'he search of the trunk of a car must be separately analyzed, and is justified oiily where it is
based on objective facts which would justify the issuance of a search warrant by a magistrate
supported by probable cause.
STATEMENT OF THE CASE AND FACTS
This case arises from the traffic stop of Appellant Brett Jones on the Ohio Turnpike in
Lorain County. (Tr. at 4-5). Trooper Daniel Morrison of the Ohio State Patrol. testified that he
stopped Mr. Jones's car because he observed it traveling in excess ox:l.he speed limit. (Tr. at 5-6.
13. 14, 24). After stopping the car, 'I'pr. Morrison approached the passenger side of the car and
2
made contact with Jones, who was the driver and only occupant of the car. (Tr. at 6, 21). The
passenger window was already rolled down, and 'I'pr. Morrison testified that he smelled "an odor
of raw marijua:na coming from the vehicle." (Tr. at 6). Tpr. Morrison further testified that Mr.
Jones seemed "irritated" at being pulled over, was "pretty shaky," and "appeared nervous." (Tr.
at 6). Mr.Jones produced a valid driver's license. (Tr. at 6).
Tpr. Morrison then asked Mr. Jones to exit the car. Tpr. Morrison explained that he did
this because "since I smelled an odor of raw marijuana, I knew I was going to be searching the
car, so I had to remove [Mr. Jones] from the vehicle." (Tr. at 7). He elaborated, "when I smell
raw marijuaiia, I was trained that the trunk, you can search that, with the sinell of raw marijuana."
(Tr. at 22).
Tpr. Morrison brought Mr. Jones back between his cruiser and Jones's car and asked for
consent to pat Iiim down, which Jones gave. (Tr. at 7). During the pat down, another Trooper,
Sergeant Laughlin, arrived on scene and approached Mr. Jones's open passenger window and
placed his head inside. Sgt. Laughlin (wlio did not testify at the suppression hearing) said to Tpr.
Morrison, "somebody has weed in the car; or there's been weed in there before." (Tr. at 8, 22).
After the pat-down (which evidently produced no evidence), Tpr. Morrison placed Mr.
Jones in the back of his patrol car. (Tr. at 8). According to "I'pr. Morrison, Mr. Jones continued to
exhibit signs of nervousness. (Tr. at 8). While Mr. Jones remained seated in the patrol car,
Morrison and Laughlin began searching the passenger compartment of Jones car. (Tr, at 9).
During the search, Sgt. Laughlin discovered "marijuana shake" on the passenger floorboard and
passenger seat. (Tr. at 9, 17, 24). Neither Trooper collected or tested the alleged shake to confirm
that it was marijuana. (Tr. at 18).
3
After searching the passenger compartinent, Tpr. Morrison searched the trunk of the car.
(Tr. at 10). Inside the trunk he located a bookbag. He opened the bookbag and found a large
yellow envelope. He opened the envelope and found marijuana. (Tr. at 10). Also inside the
bookbag, Tpr. Moi-rison found a wlrile plastic grocery bag which he opened and found "60
bindles of heroin." (Tr. at 10). I-1e also found a black trash bag in the trunk which contained more
heroin. (Tr. at 10). The heroin found in the trunk of the carformed. the basis for the charges in the
indictment in this case.
Mr. Jones filed a motion to suppress the evidenee found in the car. The trial court granted
the niotion on the basis that the odor of marijuana coming from the passenger compartment,
along with the Tzooper's discovery of "shake" in the passenger compartment, did not provide
probable cause to search the trunk. The trial court concluded that there was no evidence that the
Trooper detected the smell of marijuana emanating from the trunk, and that the trace amountsof
marijuana on the floor were therefore the object of the marijuana smell. Having discovered the
object of the smell in the passenger compartment, the Trooper did not have probable cause to
search the trunk. The trial court ruled that the search of the trunk was unlarvful pursuant to this
Court's decision in Vate v. Farr•is, stating:
"Wlien a law enforcement officer detects the odor of raw marijuana emanating from thepassenger compartment of a vehicle lawfully stopped, and upon searching the passengercompartment, locates the source of the odor within the passenger campartment, probablecause to search the vehicle does not extend to a search of the trunk, uniess the officer canarticulate additional facts supporting probable cause to believe that raw marijuana wouldalso be found in the trunk." (R. at 24; Appendix A 1-4).
The State appealed the trial court's grant of Mr. Jones's Motion to Suppress. The Ninth
District reversed. The Ninth District held that the trial court had "misread" Farris. According to
4
the majority, Farris involved an analysis of the Ohio Constitution's Self-Incrimination Clause of
Article I, Section 10 of the Ohio Constitution, not an evaluation of the Searches and Seizures
clause found in Article 1, Section 14. .Iones, ^15-16. Because Jones was not "attempting to
exclude evidence based on statements he made," id. atT16, the majority concluded that Fur•Yis
was inapplicable. But after finding Fcrrf-i,s inapplicable, the Court nevertheless concluded that the
discovery of contraband in the passenger compartment provided probable caLlse to search the
entire car, including the trunk and its contents. IrI at'^2t?. 'Ihe Ninth llistrict therefore abandoned
this Court'srequirement in Fari°is that the State show "other factors justifying a search beyond
the passenger compartment," FryNis, at tc`52, to justify a search of the trunk.
The dissent disagreed with the majority's conclusion that Furi•is did not involve an
evaluation of Article I, Section 14 of the Ohio Constitution. In Frris, this Court considered five
issues for review, one of which was wliether the officer had "probable cause to search an entire
vehicle, including its trunk, when he smells the odor of burnt marijuana coming from the
vehicle." Id. at ^'30 (Belfance, J., dissenting), quoting State ti-?; Farrris.
The dissent further disagreed with the majority's application of FizNT°is to the facts of the
case., stating: "[u]nder the circui»stances of this case and recognizing the distinction between the
probable cause to search a trunk versus the search of the passenger compartment pursuant to
Fccryis, I would conclude that probable cause did not exist to search the trunk."' Ic1 at !j32. Given
the extent of the search which may be condticted based on probable cause ("an officer essentially
has the ability to dismantle the vehicle, looking in the upholstery, in the doors, and in the
engines," id.), the dissent concluded at^,i32:
"The Foutth Amendment is supposed to protect citizens from unreasonable searches and
seizures, and I cannot believe that an expansive search of a trunk based on a minuteamount of marijuana found in the passenger conipartment could be considered reasonableor supported by probable cause."
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
1. When a law enforcement officer detects the odor of raw marijuana emanating from
the passenger compartment of a vehicle lawfully stopped, and upon searching the
passenger compartment, locates the source of the odor within the passenger
compartment, probable cause to search the vehicle does not extend to a search of the
trunk, unless the officer can articulate additional facts supporting probable cause to
believe that raw marijuana would also be found in the trunk. State v. Farris, 109
Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.
"I'he Fourth and Fourteenth Amendments to the United States Constitution, and Article 1.
Section 14 of the Ohio Constitution, prohibit unreasonable searches and seizures. A warrantless
seizure is Per• se unreasonable, unless it falls within one of the recognized exceptions to the
warrant recluirei-nent. Katz v. t,'niled States, 389 U.S. 347, 88 S.Ct. 507, 19 I,.Ed.2d 576 (1967);
S'taIe v. Pies, 140 Ohio App.3d 535, 748 N.E.2d 146 (15i Dist.2000). Ortce a warrantless search is
established, the burden of proof is on the State to prove an exception to the warrant requirement.
Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988).
One of the exceptions to the warrant requirement is the automobile exception. t?nder this
exception, a car inay be searched without awarrant only if there is probable cause to believe that
it contains contrabartd. Carroll v. L%nited State.s, 267 U.S. 132, 45 S.Ct. 280, 69 L.F,d 543 (1925);
tlniled States v: Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Probable cause to
search a car is established if, under the "totality of the circumstances" there is a"fair probability"
6
that the car contains contraband or evidence. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317,
76 I,.l ;d. 2d 527 ( 1983).
In ^S`tate v. Fzrrris, a State Trooper stopped the defendant for speeding. Upon approaching
the vehicle, the Trooper smelled an odor of burnt marijuana coming from inside the car. 13ased
on these observations, the `I'rooper searched the trunkof the car and found a marijuana pipe and
papers in a closed, opaque container, Farris, at ^5.
This Court rejected the State's argument that the Trooper had probable cause to believe
that the trunk of the car contained contraband due to his detection of the scent of marijuana
emanating from the passenger compartment, stating at ^;50-51:
"A trunk and a passenger compartment of an automobile are stibject to different standardsof probable cause to coiiduct searches.... The odor of burnt marijuana in the passengercompartment of a vehicle compartment does not, standing alone, establish probable causefor a warrantless search of the trunk of the vehicle."
"I'his Caurt cited United StUtes v. Nielsen; 9 F.3d 1487 (102h Cir.1993) in support of its
determination that the passenger compartment and trunk are subject to different standards of
probable cause. In Nielsen, a police officer stopped the defendant for speeding. After
approaching the car, the officer "recognized the smell of burned marijuana coming from the open
wizidow of Nielsen's vehicle." Id. at 1488. "I,he officer asked for consent to search the car;
Nielsen consented to a search of the passenger compartment, but not the trunk. Id. After finding
nothing in the passenger compartment, the officer searched the trunk without Nielsen's consent
and found two kilograms of cocaine. Icl. The District Court denied defendant's motion to
suppress. On appeal, the Tenth Circuit reversed, finding that the facts and circumsta.tlces known
to the officer did not establish a"fair probability that the trunk contained marijuana, or that a
7
disinterested magistrate would so hold if asked to issue a search warrant." Id. at 1491.
The Tenth District began its analysis by noting that probable cause to search a car is
established if, under the "totality of the circumstances" there is a "fair probability", that the car
contains cozitraband or evidence. Id. at 1490-91, citing Illinois v. Gates, 462 U.S. 213, 238, 103
S.Ct. 2317, 76 LEd.2d 527 (1983). The scope of a warrantless search is not unlimited, but is
instead "defined by the object of the search and the places in which there is probable cause to
believe that it may be found.'' Icl at 1491 (Punctuation and citation omitted).
The Terith District analyzed several prior cases where it held that the odor of znarijuana,
along with otller evidence, provided probable cause the search the car and its trunk. Icl at 1490.
The court distinguished those cases on the ground that facts other that the smell of marijuana
gave the officers a specific reason to believe that contraband would be found in the trunk. But in
the prior cases, "the search itself established the validity of the smell. In a1lof the searches
pursuant to the smell, marijuana N>as fvund in the area it tiacruld he expected to be, fUund," Id at
1491 (Emphasis added, footnote omitted).
Several Courts in Ohio have applied the analysis in FaF•y-is and Nielsen when evaluating
trunk searches. And these courts have required the State to establish specific facts whichwould
justify a separate search of a trunk. In State v. Price, 6`h Dist. -No. S-11-037, 2013-Ohio-130, the
defendant was a passenger in a car which was stopped for speeding. The driver did not have a
driver'slicense, and the officer determined that he possibly had a warrant for his arrest. The
offxcer searched the driver and found a large amount of cash in his pocket. He also smelled the
odor of burnt marijuana on the driver's person and inside the car, and detected the odor of
alcohol on the driver. Icl at^3. Afterconductirtg field sobriety tests on the driver, the officer
8
decided to arrest him and placed him in the back seat of his cruiser. Id.
T'he officer then removed defendant Price from the car to perform field sobriety tests on
him to determine whether he was sober enough to drive the car home. Id. at ^j4. Mr. Price was
nervous and fidgety during the tests. The officer asked him if he had "anything on him," icl., and
Price responded by emptying out his pockets. .Id. Price pulled out a piece of cellophane plastic
and told the officer it was "a piece that I didn't smoke earlier." Id.. The officer arrested Mr. Price
"under suspicion of having some sort of drugs or something with that cellophane." Id.
The officer then searched the passenger compartment of the car finding a small bag of
marijuana between the front console and the passenger seat. Ele continued searching and found a
bag in the back seat that smelled of marijuana. Id. at'1,6. Tlie officer then searched the trunk of
the car finding more marijuana. Id.
The trial court granted defendant's motion to suppress. Id. atT,18. The Sixth District
reversed. The first part of its analysis dealt with the application ofArizcJna v. Gant, 556 U.S. 332,
129 S.Ct. 17I0, 173 L.Ed.2d 485 (2009), where the t?nited States Supreme Court held that the
search of the passenger cainpartment of a car is permissible where the arrestee is within reaching
distance of the vehicle, or it is reasonable to believe that the vehicle contains evidence of the
offense for which he was arrested. Price, at ^ 10. The Sixth District concluded that the search of
the passenger conlpartment was permissible under Gant, because the odor of burnt marijuana, the
large arnount of cash in the driver's pocket, and the cellophane wrapper found in Price's pocket
gave the officer a reasonable belief that the passenger compartnient of the car contained fiarther
evidence of the offense for which Mr. Price was arrested (i.e., possession of drugs). Id. at^17.
Ilowever, the evidence found in the trunk was not justified under Gant, because Gant is
9
limited to a search of the passenger compartment, not the trunk. For the evidence found in the
trunk to be admissible, it must be under a different justification, which the Sixth District
identified as the "automobile exception" found in C,'cirroll v. United States, 267 U.S. 132, 45
S.Ct. 280, 69 L.Ed. 543 (1925), and UyaitedStates v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72
L.Ed.2d 572 (I982). I'rice, at ¶12. The court noted that while the State need not prove exigent
circumstances to justify a search under the automobile exception, "the scope of a warrantless
search of an automobile based upon probable cause may nevertheless be limited." Id. at ¶16. I'he
Court observed at ¶16:
"After an officer has probable cause to believe that a vehicle contains contraband, apermissible search of the vehicle`is defined by the object of the search and places inwhich there is probable cause to believe that it may be found.' Sttate v. Gonzales, 6'h Dist.No. V4'D-07-060, 2009-0hio-168,^17, citing tInited States v. Ross. Thus, forexample, the `odor of burnt marijuana in the passenger conlpartment of a vehicle doesnot, standing alone, establish probable cause for a warrantless search of the trunk of avehicle.' Vate v, Farris, ¶52. `This proposition is established by the common senseobsetvation than an odor of burning marijuana would not create an inierence that burningmarijuana was found intlie trunk.' Gbnzales at¶21. However, where an officer detects astrong odor of raw nzarij uana, but no large amount is found within the passengerconipartment of the vehicle, the officer has probable cause to search the trunk. CTonzales,suhra. Hence, [i] f probable causejustities the search of a lawfully stopped vehicle, itjustifies the search of every part of the vehicle and its contents that may conceal theoMject of the search.' Ross at 825."'
Applying this test, the Sixth District found the officer had sufficient probable cause to
search the trunk of the car. T11e odor of burnt marij uana, the large amount of cash, the fact that
the driver did not have a license, Mr. Price's nervousness, the cellophane wrapper, and actual
rnarijuana found in the passenger compartment, gave the officer reason to believe that "there may
be more marijuana in the vehicle." Ie.l. at ¶5.
'Che concurrence in Price agreed with the majority's analysis of Gant, and I'urris, and
10
agreed that there was probable cause to search the truiik. In the concurring Judge's opinion, the
officer's discovery of the marijuana in front seat, and a related bag in the back, provided
"sufficient probable cause to believe nacre contrcrband tivotalcl he foisnd iy? the truhk.'° Id. at
But, the concurring Judge found that the facts "narrowly distinguish[ed]," id at^39, this case
from Fars•is, and that had the officer not discovered the two bags in the passenger compartment,
"a subsequent warrantless search of the trunk would have been t3nreasona.ble under Fur•Yis '
stricter standard.'' Id at ¶40.
In State v. Grirfith, 2d Dist. No. 24275, 2011-C)hio-4476, the Second District determined
that an officer had probable cause to search the trunk of a car where he saw a bag of iriarij uataa on
the console between the driver's and passenger's seats. But, the officer's observations of the
passenger compartment did not, ipso_fcrcto, provide probable cause to search the trunk. " The
Fourth Amendrnent limits searches to plczces ivher•e evidence of criminal crctivity is likely to be
. fozcnd." Id. at T121. In applying f ayris, the Second District noted that the odor of marijuana in the
passenger compartment does not automatically mean marijuana will be found in the trunk. "The
point of distinction is whether the character or nature of drugs found `in plain view' (or smell) in
the passenger compartmei3t presents a likelihood that the vehicle's trunk contains drugs or other
contraband, st.lch that a search of the trunk is justified by the automobile exception to the warrant
requirement." Id
The trial coxart and dissent in this case applied Fcry-ris in a manner similar to the Courts in
Price and Gr°ff.fah. While the Trooper's observations gave him probable cause to investigate the
passenger compartment, there was no evidence which gave him a reason to believe there was
nlore marijuana in the car. C;ompare, State v. Fogel, 5" Dist. No. I I-CA-97, 2012-0hao-196(},
11
41[24 ("The trooper's testimony the small amount of marijuana discovered on the floorboards was
izisuffzcient to explain the detected odor of raw marijuana emanating from the vehicle is crucial
to our decision the officers were justified in searching the trunk of the vellicle in addition to the
driver's compartment."); State v. Gonzales, 6" Dist. No. WD-07-060, 200y-Ohio-1 fi$, T23 (If
and officer detects an overwhelming odor of raw marijuana which causes him to believe that the
vehicle contains a large amount of raw marijuana, and "no large amount of raw marijuana is seen
in the passenger compartment, the officer is justified in believing that a large amount of raw
rnarijuana may be found in a container or compartment - including the trunk."),
The Trooper in this case took his authority to search for granted. Once he detected the
odor of marijuana emanating from the passenger compartment, he assuTned he had the right to
conduct a burnper-to-bumper search of the car. But, he offered no explanation to justify a belief
that a search of the trunk would reveal more marijuana. The trial court and dissent correctly
concluded that the Fourth Amendment of the United States Constitution, and Article I, Section
14 of the Ohio Constitution, prohibit this type otwarrantless search,
The trial cotu-t and dissent's analyses are consistent with this Court's holding in Earris.
And this Court's analysis in FaYris is consistent with the United States Supreme Court's analysis
in United States v. Ross. In Ross, the police received information trom a reliable inforinant that
Ross was selling narcotics out of the trunk of his car. Ross, 456 U.S. at 800. The informant had
witnessed a sale, and Ross had told the informant that additional narcotics were in the trunk of
the car. Id. Acting on this information, the police went to the area where the inforinant indicated
Ross would be located and stopped Ross's car. The officers ordered Ross out of the car and
found a bullet where he was seated. Id. at 801. 'I'he officers searched the interior of the car and
12
found a pistol in the glove compartment. Ross was arrested and handcuffed, and the officers
proceeded to search the trunk of his car where they fou.nd narcotics in a brown. paper bag and a
leather pouch. Id. at 801.
'Ine Supreme Court held that the search of the trunk, and the containers in the trunk, did
not violate the Fourth Amendment. Specifically, the Court held that where the police have
legitirnately stopped an automobile, and have probable cause to believe that contraband is
concealed sornervhere within it, they may conduct a warrantless "search of the vehicle that is as
thorough as a magistrate could authorize in a warrant 'particularly describing the place to be
searched."' Id. at 800, quoting the Fourth Amendment to the United States Constitution. "The
probable cause determination must be based ozi objective facts that could justify the issuance of a
warrant by a rnagistrate." Ici: at 808.
Ross has often been inistakenly cited for the proposition that where probable cause exists
to search a passenger compartment, the probable cause, ipso facto, extends to the entire car. See
e.g., ,State v. Greenrtioott, 2d l)ist. No. 19820, 2004-Ohio-2737 (the observation of marijuana on
the passenger seat and floorboard gave him probable cause to search the entire vehicle); :State v.
ff'hcztley, 5t" Dist. No. 10-CA-93, 2011 -C)hio-2297. The majority in this case adopted this
mistaken interpretation of both Ross and Farris. It held that the discovery of contraband in the
passenger compartment provided probable cause to search the trunk. It did not require a separate
showing of how these observations gave the officer probable cause to believe that the trunk
would contain contraband. Jones, at ^19-20.
But a carefut reading of Ross shows that the Supreme Court did not intend this broad of a
}rolding. The Cour-t placed limitations on the scope of a warrantless search, stating: "[t]he
13
rationale justifying a warrantless search of an automobile that is believed to be transporting
contraband arguably applies with equal force to any movable container that is believed to be
car°ry,ing an illicit substance." Id. at 809 (Emphasis added). "fl warrant to search a vehicle would
support a search of every part of the vehicle that niiglzt contain the object of tlie search." IcI at
821 (Eniphasis added). "The scope qf a ivayrcrntless search based on probable cause is no
narrower- and no broader - than the scope of a search authorized by a warrant supported by
probable cause." Id. at 823 (Emphasis added). Further, it concluded:
"t^^here police officers have probable cause to search an entire vehicle, they may conducta warrantless search of every part of the vehicle and its contents, including all containersand packages, that may conceal the object of the search. The scope of the search is notdefined by the nature of the container in which the contraband is secreted. Rather, it isdefined by the object of tdresearch and the Irlacesin ivhich there is probable cause tobelieve that it rncty be found. For example, probable cause to believe that undocumentedaliens are being transported in a van wili not justify a warrantless search of a suitcase." Iilat syllabus (c)(Empllasis added).
The Supreme Courttherefoxerejected the notion that the discovery of an item of
contraband in a car, ipso fucto, establishes probable cause to search other parts of a car. Rather,
the Supreme Court placed a burden on the Government to produce evidence, the quality of which
would be sufticient to convince a neutral and detached magistrate that there was probable cause
to issue a search warrant "partieularlydescribing the place to be searched." Id at 800. See also,
United States v. C'aYter; 300 F.3d 415, 422 (4°' Cir.2002)("probable cause must be tailored to
specific compartments and containers within an automobile."); Cornmonwealth v. Garden, 451
Mass. 43, 51 (2008)(Citing Farris and holding that "[t]he search of the ^* * trunk in this case
exceeded the permissible scope of the search because [the officer] could not reasonably have
believed that the source of the smell of burnt znarijua.na would be found in the trunk.").
14
In Ross, the police had information from a reliable informant which was specific to the
trunk of the car. Ross, 456 U.S. at fn 22. :Itere, the ^l'rooper did not possess this quality of
information, but instead took his authority to search for granted. "If `standard procedure' * * * is
permitted to usurp the judicial function of determining the reasonableness or unreasonableness of
searchescomportable with the Fourth aniendment; then the end result is to make evexy police
department judge and jury of its own conduct, the vezy danger the people so zealously guarded
against by their adoption of the Fourtll Amendment." Kansas E;'ity v. I3utiers, 507 S.W.2d 49, 55
(Mo.App.1974).
The Ninth District incorrectly overturned the trial court's determination that, pursuant to
Fcrr<ris; the Trooper did not have probable cause to justify the search of Mr. Jones's trunk.
CONCLUSION
For the foregoing reasons, this felony case raises a substantial constitutional question, and
invodves matters of public and great general interest. Appellant requests that this court accept
jurisdiction in this case so that this important issue will be reviewed on the merits.
Respectfully submitted,
PAUL A. GRIFFIN Co., L.P+
qv//L
PAUL GRIFFIN 40073561Attorney for Appellant600 Broadway, 2d FloorLorain, C)hio 44052I'H: (440) 245-5565Fax: (440) 244-0811
15
CERTIFICATE OF SERVICE
I certify that a copy of this Memorandum in Support of Jurisdiction of Appellant Brett
Jones was sent by ordinary U.S. Mail to counsel for Appellee, State of Ohio, Mary R. Slanczka,
Assistant I,orain County I'rosectitor, 225 Court Street, 3d floor, Elyria, Ohio 44035 on this 24th,
day of July. 2013.
PAUL GRIFFINAttorney for Appellant
16
IN THE SUPREME COURT OF OHIO
STATE. OF OHIO
Plaintiff-Appellee,
-vs-
I3RE"I'`I' JONE5,
Defendant-Appellant.
CASE NO.
On Appeal from the LorainCounty Court of Appeals,Ninth Appellate District
Court of Appeals Case No.I2CA010270
APPLNDIX
Opinion of the Lorain County Court of Common Pleas granting Defendant'sMotion to Suppress Evidence(August17,2t112) .... ................................................... A1-4
Opinion of the Ninth District Court of Appeals(.lune11,20 13) . .................................................. ......131-20
I^ I-I^,.,R-T4T OF COMMON PLEAS^L`6I^AAIl^ COUNTY, OHIO
t
STATE OF OHIO, 7p+;Z hLu 1^l P2' 0 2 CASE i^7O. 12 R084582
vs.
BRETT JONFES,
Plain.tiff,, JUDGE J^Yv1ES M. $URCrE
Defendant.
JOUR.NAL ENTRY
6p, .,,
This case came on to be heard upon defendant's motion to suppress, as evidence
to be presented a trial, all evidence seized during a search of his automobile by Troopers
employed by the Ohio State Highway Patrol on February 9, 2012.
Statement of Facts
Resolving the facts adduced at hearing most favorably to the state of O'hio, the
court finds the following:
2.
4
6.
On Februarv 9, 2012, defendant was operating a motor vecle oillhe ,_;
Ohio Turnpike; ^ .^--t - .Upon deterznining that defendant was operating a vehzccl^ at5'sp^
k ,c17)greater than the posted speed limit of 70 mph, Trooper I7i^^ M>rison`=
mC:;stopped defendant's vehicle to investigate the violation;
After opening the driver's side window to speak with Trooper Morrison,
defendant furnished the trooper with appropriate documentation;
While waiting for defendant to ftxrnish the requested information, Trooper
Morrison detected the odor of raw marihuana emanating from the
passenger compartment of defendant's vehicle;
After. detecting the odor of marihuana from defendant's vehicle, Trooper
Morrison placed defendant in the rear of his cruiser and searched the
passenger coinparrtment of defendant's vehicle;
Upon searching the passenger compartment of defendant's vehicle,
Trooper Morrison located raw marihuana .scatiered on the floor and on the
front passenger seat;
L\Jouma
. ^ .^^..,_.`e_.._.....-,. ^
A-I
7. After searching the passenger compartment, the trooper zmmediately
searched the trunk of defendant's vehicle, and f-ound defendant's carrying
bag located in the trunk;
8. Trooper Morrison then searched defendant's carrying bag, and found
defendant's toiletries, four ounces of marihuana wrapped in two plastic
bags, and other drugs separately packaged;
9. The searches of defendant's trunk and carrying bag were conducted
without warrant, without an alert from a drug-detecting canine, without
any indication by the trooper that he detected the odor of raw marihuana
upon approaching the trunlc, or upon opening the trunlc, or, upon opening
defendant's carrying bag.
Conclusions of Law
To the foregoing facts, the court finds the following law applicable:
1. Interpreting the Fourth Amendment to the United States Constitution, the
U.S. Supreme Court has held ihat if a police officer has probable cause to
search a vehicle after a law-ful stop, the officer is justi_fied in searching all
parts of the vehicle, including the trunk and any contaiiier in the vehicle
that may conceal the items sought to be seized. US, v. Ross, 456 U.S. 798,
823 (1982);
2. Under the Suprerne Court's construction of the Fourth. Amendment,
Trooper Morrison would have been justified in searching the trunk of
defendant's vehicle, whether the odor of burnt rnarihu.ana or the odor of
raw marihuana was detected coming from the passenger compartment of
defendant's vehicle;
3. Ohio courts, however, have been reluctazrt to extend the scope of an
automobile search under similar facts, beyond the passenger compartment;
4. Cozasidering facts siznilar to the facts here, the Ohio Supreme Court, in
State v. ^Farris; 109 Ohio St. 3d 519 (2006), at syllabus 6, held that when
a motorist is lawfu.lly detained by a police officer wlzo detects the odor of
A-"'2,2
burnt marihuana emanating from the passenger coinpartment of the
vehicle, the officer may search the passenger compartment, but that the
authority to search does not extend to the trunk;
5. Thus, in Farris, the Supreme Court held that Article 1, Section 14 of the
Ohio Constitution (search and seizure provision) provides greater
protection to motorists than is granted by the Fiftli Amendment to the U.S.
Constitution, as expressed by the U.S. Suprenie Court in US, v. Ross,
supra,•
6, Thus, the issue before the eourt is: if, under Article 1, Section.14 of the
Ohio Constitution, the odor of baarnt rr^arihuana emanating from the
passenger compartment of an automobile gives.rise to a lawful search of
the passenger compartment of a vehicle, but does not extend the scope
of the authorized search of the vehicle to the trunk, does the odor of raw
marihuana emanating from the passenger compartment of a velftle
authorize a warrantless search of the trunk?
Analysis
Applying the above principles of law to the facts of this case, the court reasons as
follows:
1. The Ohio Supreme Court has determined that while the odor of burnt
marihuana present in the passenger compartment of an automobile may
give rise to the probability that burnt m.arihuana will be found in the
passenger compa.rtrnent, the same facts would not give rise to the
probability that more marihuana or drug paraphernalia will be found in the
trunk of the vehicle;
2. In the case sub judice, Trooper Morrison testified that he detected the odoz
of raw marikiuana coming from the passenger compartment of defendant's
vehicle and, therefore, the court finds that the trooper had probable cause
to search the passenger compartment of the velucle;
3. Therefore, the issue before the court is whether, after searching the
passenger compartnrent of defendant's vehicle and finding the source of
the odor of raw marihuana, i.e. raw marihuana scattered over the front seat
3
and on the floor of the vehicle, Trooper Morrison had probable cause to
believe that more marihuana would be found in the trunk of defendant's
vehicle, thus authorizing the warrantless search;
4. Following the reasoning of State v. Farrzs, supra, the court answers this
question. in the negative.
Ho ldinR
Based upon the above analysis, the court holds that when a law enforcement
officer detects the odor of raw marihuana emanating from the passenger compartment of
a vehicle lawfully stopped, and upon searching the passenger cosnpart.m.ent, locates the
source of the odor within the passenger compartment, probable cause to search the
vehicle does not extend to a search of the trunk, unless the officer can articulate
additional facts supportiiz g probable cause to believe that raw marihuana would also be
found in. the t7unk.
This Case
As Trooper Morrison, at hearing, was not able to articulate any facts which would
give rise to probable cause for the belief that defendant's trunk contained additional
marihuana or other coritraban.d, the search of the trunk violated Article 1, Section 14 of
the Ohio Constitution and was, therefore, illegal.
Conclusion
Thus, all evidence obtained fro-rn the search of defendant's trIa.uk herein is
suppressed as evidence to be presented at trial.
Order
It is so ordered.
1-A
HERYTH cORfGth ^0 4 F1LCVI'N SH S C^FFlCFPY^F
;[3AKOV^^SKi, f_OR;%.if^ COUh1YT}{c COURT OF COR4PJION PLEA9
A- `1
STATE OF OHIO ))ss:
COUNTY OF LORAIN )
STATE OF OHIO
Appellant
v.
BRETT JONES
Appellee
.....,^ °-"^ . .. _.
LN THE COURT OF APPEALS': ;.,NINTH JUDICIAL DISTRICT
2 J3
C.A. No. 12CA010270r - .
APPEAL FRQIvI JLTDGMENTENTERED IN,THECOURT OF COIvIIv1ON PLEASCOUNTY OF LORAIN, OHIOCA SE No. 12CR084582
DECISIONANTF' ^.._E NTRY
Dated: June 10, 2013
VJHITMORE, Judge.
(^'A^X
{¶1} Appellant, the State of Ohio, appeals from a judgment of the Lorain County Court
of Common Pleas granting Appellee, Brett Jones', motion to suppress. This Court reverses.
I
{¶2} On a clear February afternoon, Ohio State Highway Patrol Trooper Daniel
Morrison conducted a traffic stop of a Chevy Impala driven by Jones on the Ohio Turnpike.
Trooper Morrison testified that he witnessed Jones travelling 75 m.p.h. in a 70 m..p.h, zone.
Trooper Morrison further testified that he approached the passenger's side window, which was
already dowa, and "immediately [] began smelling an odor of raw marijuana coming from the
vehicle."
{1^13} Trooper Morrison asked Jones to step out of the car so that he could conduct a
search. While conducting a pat dou-^n of Jones, Sergeant Laughlin arrived. According to
Trooper Morrison, Sergeant Laughlin, before having any contact with Trooper Morrison,
^-i
2
commented that the car smelled of marijuana. Jones was placed in Trooper Morrison's cruiser,
while the officers searched the passenger compartment. Trooper Morrison testified that they
found marijuana residue ("shake") on the passenger's seat and floor. Trooper Morrison then
proceeded to search the trunk of the car. In the trunk, Trooper Morrison found 'a backpack
containing Jones' personal items, 106 grams of marijuana, 60 bindles of heroin, and a brown
brick of heroin (506 grams).
{¶4} Jones was indicted on (1) traffickin.g in violation of R.C. 2925.03(_A)(2), a felony
of the first degree; (2) possession in violation of R.C. 2925.11 (A), a felony of the first degree; (3)
possession in violation of R.C. 2925.11(A), a misdemeanor of the fourth degree; and (4) drug
paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree.
{¶5} Jones filed a motion to suppress arguing that the officers did not have probable
cause to search the trunk of the car. After a hearing, the court agreed and granted his motion.
The State now appeals and raises one assignment of error for our review.
E
Assignment of Error
THE TRIAL COURT ERRED IN GRANri'LNG MR.. JONES' MOTION TOSUPPRESS AS THE EVIDENCE RECOVERED FROM HIS VEHICLE WASOBTAINED THROUGH A LEGAL SEARCH.
{¶6} In its sole assignment of error, the State argues the court erred in granting Jones'
motion to suppress because the officers had probable cause to search the trurik for marijuana.
We agree.
Appellate review of a motion to suppress presents a mixed question of law andfact. When considering a motion to suppress, the trial court assumes the role oftrier of fact and is therefore in the best position to resolve factual questions andevaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366(1992). Consequently, an appellate court must accept the trial court's fmdings offact if they are supported by competent, credible evidence. State v. Fanning, I
6 -2
I
Ohio St.3d 19 (1982). Accepting these facts as true, the appellate courrt must thenindependently determine, without deference to the conclusion of the trial court,whether the facts satisfy the applicable legal standard. State v. McNanzara, 124Ohio App.3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ^ S. This Court, therefore, will first
review the trial court's findings of fact to ensure those fmdings are supported by com.petent and
credible evidence. This Court will then review the trial court's legal conclusions de novo.
{1^7} There has been no challenge to the court's finding that the initial traffic stop was
constitutionally valid. Accordingly, we limit our review to the search conducted by the officers.
{¶8} The Fourth Amendment of the United States Constitution, applied to the states
through the Fourteenth Amendment, protects persons against unreasonable searches and seizures.
"'For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon
probable cause and executed pursuant to a warrant." State v. Moore, 90 Ohio St.3d 47, 49
(2000). Searches conducted withotrt a warrant are presumptively unreasonable, unless an
exception to the warrant requirement applies. See Payton v. ITew York, 445 U.S. 573, 586
(1980).
{¶9} The automobile exception is one exception to the warrant requirement. Uiiited
States v. Ross, 456 U.S. 798, 807 (1982). "Although the Fourth Am.endment recognizes that
individuals have privacy interests in their vehicles, the inherent characteristics of vehicles
`justif[y] a lesser degree of protection of [the privacy] interests [in them]."' State v. Friedman,
194 Ohio App.3d 677, 2011-Ohio-2989, ^j 7 (9th Dist.), quoting California v. Car-ney, 471 U.S.
386, 390 (1985). Provided there is "probable cause to search an entire vehicle, [officers] may
conduct a warrantless search of every part of the vehicle and its contents, including all movable
containers and packages, that may logically conceal the object of the search." State v, Welch, 18
Ohio St.3d 88 (1985), syllabus. Probable cause is determined by the totality of the
b-3
4
circumstances. State v. Steen, 9th Dist, No. 21871, 2004-Ohio-2369, T 5, citing Illinois v. Gates,
462 U.S. 213, 238 (1983).
{¶10} Here, Trooper Morrison testified that he smelled a strong odor of raw marijuana
as he first approached the passenger's window and that he has been trained to recognize the scent
of the drug. A warrantless search of the passenger compartment is permissible if an odor of
marijizana is detected by a qualified person. Moore, 90 Ohio St.3d at 50 ("[I]f the smell of
marijuana, as detected by a person who is qualified to recognize the odor, is the sole
circumstance, this is sufficient to establish probable cause. There need be no additional factors
to corroborate the suspicion of the presence of marijuana."). Jones does not challenge the search
of the passenger compartment. Instead, Jones focuses his challenge on the scope of the search
conducted. Specifically, Jones argues that the officers exceeded the scope of the probable cause
when they searched the trunk of b.is car.
{¶11} In reaching its factual findings, the trial court stated that it "[r]esolv[ed] the facts
adduced at [the suppression] hearirig most favorably to the state of Ohio." However, at a
suppression hearing the trial judge is not simply to resolve .facts in favor of the State; instead, the
judge is to evaluate the evidence and the credibility of the witnesses. See.Itlalls, 62 Ohio St.3d at
366. Nevertheless, we conclude the court's fmdings that "Trooper Morrison detected the odor of
raw marihuana emanating from the passenger compartment of [Jones'] vehicle *[and]
located raw marihuana scattered on the fioor and on the front passenger seat" to be supparted by
competent, credible evidence.
{T12} Trooper Morrison found contraband in b:is search of the passenger compartrnent.
Specifically, "[t]here was marijuana shake on the passenger's floorboard and sea.t." After
discovering the marijuazia sli.ake in the passenger compartment, Trooper Morrison conducted a
(^- 9
5
search of the trwak. In its judgment entry, the trial court correctly acknowledged that, under
these eircumstances, a search of the trunk would have been perinissible under the Fourth
Amendment, citing United States v. Ross, 456 U.S. 798 (1982). However, the court also held
that the search of the trunk was unlawful under the Ohio Constitution because the state
constitution provides greater protection than that of the Fourth Amendment.
{¶13} The language of Section 14, Article I of the Ohio Constitution is virtually
identical to the Fourth Amendment. "[VJ]here the provisions are similar and no persuasive
reason for a d:iffering interpretation is presented, [the Supreme Court of Ohio] has deteixnined
that protections afforded by Ohio's Constitution are coextensive with those provided by the
United States Constitution." State v. Robinette, 80 Ohio St.3d 234, 238 (1997). In Robinette, the
Court addressed the issue of whether the Ohio Constitution provided an additional requirement
for officers "to inform an individual, stopped for a traffic violation, that he or she is free to go
before the officer may attempt to engage in consensual interrogation." Id, at 245. The Ohio
Supreme Court found no persuasive reason to read greater protections into Section 14, Article I
of the Ohio Constitution than those that were already provided by the Fourth Amendment. Id, at
245.
{T,114} Subsequent to Robinette, the Ohio Supreme Court has xecognized only one area
where the Ohio Constitution provides greater protection than the Fourth Amendment and that
involves warrantless arrests for minor misdemeanors. See State v. Brown, 99 Ohio St.3 d 323,
2003-Ohio-3931. In reaching its conclusion, the Brown Court relied on its analysis in State v.
Jones, 88 Ohio St.3d 430 (2000), where it weighed "the degree to which the governlxa.ental action
intrudes upon a person's liberty and privacy [against] * * * the degree to which the intrusion is
necessary for the promotion of legitimate governmental interests."' Jones at 438. Other than this
^- S
6
narrow exception, the Ohio Supreme Court has not recognized any other areas in which Section
14, Article I, of the Ohio Constitution provides greater protection than the Fourth Amendment.
{T15} The Ohio Supreme Court has found that the Ohio Constitution provides greater
protection than the Fifth Amendment. In granting Jones' motion to suppress, the trial court
relied on State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255. We conclude that the trial court
misread Farris and, moreover, Farris is inapplicable in. this case because it applied Section 10,
Article I of the Ohio Constitution and the Fifth Amendment, while this case involves Section 14,
Article I of the Ohio Constitution and the Fourth Amendment. Robinette and Farris applied two
different provisions of the Ohio and United States Constitutions, and application of Farris to this
case is inappropriate.
^¶16} The Court in Farris held that Section 10, .A..rticle I of the Ohio Constitution
provides greater protection than the Fifth Amendment to the LTnited States Constitution. Farris
at ¶ 49. The issue in Farris was whether "evidence obta7.ned as the direct result of statements
made in custody without the benefit of a Miranda warning should be excluded." Id. The Court
recognized that the Fifth Amendment did not require the exclusion of such evidence, but held
that the Ohio Constitution must provide greater protection. Here, neither the Fifth Amendment,
nor Section 10, Article I of the Ohio Constitution is at issue. Jones is not attempting to exclude
evidence based on statements he made.
{T17} We i^xrther note that Farr•is is factuaily distinguishable ^°om the case at hand. In
Farr°is, the Court was faced with the question of whether an officer may search the trunk of a car
without finding any physical contraband in the passenger compartment. Here, it is undisputed
that Trooper Morrison found contraband (i.e., marijuana shake) on the passenger's seat and floor.
Therefore, we conclude that we do not need to reach the issue of whether the smell of raw
^-4
7
marijuana in the passenger compartment of a vehicle, standing alone, is sufficient to establish
probable cause tosearch the trunlc of the vehicle. Trooper Morrison observed more than just the
smell of marijuana.
{41J18} Factually, this case is more analogous State v. Car°nZichael, 9th Dist. No.
IlCA010086, 2012-Ohio-5923. In Carmichael, the Trooper observed "marijuana seeds, buds,
and stems on the lap of the front seat passenger." Id. at T, 2. In addition, the driver turn:ed over
marijuana from the center console on request, and the Trooper discovered marijuana in the back
seat during his search of the passenger compartment. Id. at ¶ 2-3. NVhile we acknourledge the
concern raised by the dissent, we disagree that the amount of contraband found determines
whether there is probable cause to search the remaining portions of the vehicle. The test is
whether in light of the totality of the circumstances, "there is a fair probability that contraband *
* * will be found in the trunk." (Internal citations, alterations, and quotations omitted.)
Carmichael atTi 9.
{¶19} Neither the trial court nor Jones cites any case to support their position that
Section 14, Article I of the Ohio Constitution prohibits a warrantless search of an automobile
trunk once law enforcement finds contraband in the passenger compartment. Nor are we
persuaded to find additional protections in the Ohio Constitution after weighing "the degree to
which the governmentat action intrudes upon a person's liberty and privacy [against] * * * the
degree to which the intrusion is necessary for the promotion of legitizrLate govern,^. -̂nental
interests.'' Jones, 88 Ohio St.3d at 438. The protections provided by the Fourth Amendment and
Section 14, Article I of the Ohio Constitution, as they apply in this case, are coextensive.
{1[20} We conclude that the Ohio Constitution, like the United States Constitution, does
not prohibit warrantless searches of an automobile trunk after law enforcement has found
^-^
8
contraband in the passenger compartment. The trial court correctly concluded that this search
would be proper under the United States Constitution, but erroneously decided that Farris
required a different result under the Ohio Constitution. The trial court erred by granting Jones'
motion to suppress, and the State's sole assignment of error is sustained.
III
{¶2I} The State's sole assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed, and this cause is remanded for further proceedings
consistent with this opinion.
Judgment reversed,arld cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
(3- S
9
Costs taxed to Appellee.
BETH Wl-I.1TIvIOREFOR THE COURT
CARR, J.CONCURS.
BELFANCE, P. J.DISSENTING.
{T22} I respectfully dissent. The trooper's detection of the odor of raw marijuana
coming from the passenger compartment gave him probable cause to search the passenger
compartment of the vehicle. State v. Moore, 90 Ohio St.3d 47, 49-50 (2000); State v. Farris, 109
Ohio St.3d 519, 2006-Ohio-3255, TI, 50-52. However, once in the car, the trooper discovered
"slzake[,J" which the trial court determined was what the officer had smelled. In addition, the
trial couxt determined that there was no indication the trooper had detected any odor emanating
from the trunk. Notably, the State has not challenged the trial court's determinations on these
points. Thus, in keeping with Farris, the trial court determined that the trooper had probable
cause to search the passenger conspartment of the vehicle but not the trunk. At issue in this case
is whether the trooper's discovery of a miniscule amount of marijuana on the passenger seat and
floor provided probable cause for him to search a separate and contained part of the vehicle from
which no smell was emanating.
{T23} The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the
Ohio Constitution both protect individuals from unreasonable searches. With respect to the
Fourth Amendment, the United States Supreme Court has repeatedly stated that "searches
f ?D-^
10
conducted outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment-subject only to a few specifically established and
well-delineated exceptions." (Internal quotations and citations omitted.) (Emphasis omitted.)
California v. Acevedo, 500 U.S. 565, 580 (1991).1 One such exception is the "automobile
exception," which was first enunciated in Carroll v. United States, 267 U.S. 132 (1925). In that
case, which was decided during the Prohibition era, police engaged in a warrantless seizure and
search of a vehicle that was suspected to contain contraband alcohol. See id at 160-162. In
upholding the warrantless search, the United States Supreme Court repeatedly emphasized that
the Fourth Amendment protects citizens from unreasonable searches. Id. at 147. However, it
determined that the seizure and search of the vehicle was reasonable given that "the vehicle can
be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at
153. Essentially, the Court held that the vehicle's mobility creates an exigent circumstance
excepting it from the warrant requirement.
{¶24} However, it is important to place Carroll in its tirne. While courts have
consistently followed Carroll without giving its rationale much thought, Carroll was decided
prior to any police department in the country putting radios in police cars. Lewis Coe, Wireless
Radio: A.Brief History, 128 (1996) (Police cars were not regularly equipped with radio receivers
until the late 1920s, and two-way radios did not become common until the naid-1930s.). In a
time before police cars were even equipped wi°d.-i radios, it would riave been inlpracticable, if not
impossible, for officers to obtain a warrant or even speak with a judge or magistrate before a
vehicle eluded them. Even if there were two police cars, meaning one could follow the
1 However, as Justice Scalia noted in his concurring opinion, the United State Supreme Court hascontinually expanded its list of exceptions, meaning "the `warrant requirement' had become soriddled with exceptions that it was basically unrecognizable." Acevedo at 582 (Scalia, J.,concurring in the judgment); see also id. (listing 13 exceptions to the warrant requirement).
(..*7-lo,
11
suspected vehicle while the officers in the other car went to secure a warrant, there would have
been no way for the police to fuzd the suspected vehicle again given that they could not
communicate with the car that remained behind to follow the suspects. Essentially, to obtain a
warrant, the officers would have had to give up following the vehicle and hope to find it again
later.
{TI25} Whether an exigency exists that justifies acting without a warrant depends on the
totality of the circumstances. Missouri v. McNeely, - U.S. -, 133 S.Ct. 1552, 1559 (2013).
Because of the technological li.mitations listed above, it is easy to see why the Carroll Court
would treat an automobile as essentially being a per se exigent circumstance. However,
"technological developments that enable police officers to secure warrants more quickly, and do
so without undermining the neutral magistrate judge's essential role as a check on police
discretion, are relevant to an assessment of exigency[,]" and there have been many technological
developments in the 88 years since Carroll was decided. McNeely at 1562-1563. Radios are
now an integral part of every police car as well as the advent of other forms of commtinication,
meaning the concerns existing at the time Carroll was decided have been dramatically reduced if
not eliminated entirely. In fact, we are fast approaching a time where officers could use a
technology siznilar to Facetime or Skype to swear out an affidavit remotely before a magistrate
while the magistrate signs a warrant and electronically returns it to the officer. Unfortunately,
the existing jurisprudence fails to account for these dramatic changes in technology, which cail
into question the reasonableness of the exigency rationale in the context of a warrantless search
of an automobile.`
2 However, some state courts have held that their state constitutions require a showing ofexigency beyond the mobility of the vehicl.e to justify a warrantless search. See, e.g.,Pennsylvania v. Perry, 568 Pa. 499, 504 (2002) ("[U]nder Pennsylvania law, for a warrantless
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{¶26} In addition, when Carroll was decided, there was no basis upon which to stop or
detain a person absent probable cause, a fact that formed the basis of the Court's reasoning in
that case. See Carroll, 267 U.S. at 155-157. However, subsequent to the landmark decision of
Terry v. Ohio, 392 U.S. 1 (1968), officers are now able to stop and detain citizens without
probable cause but rather upon reasonable, articulable suspicion of criminal activity. id. at 21.
See also State v. Widner, 69 Ohio St.2d 267, 269 (1982) (applying Terry to a vehicle stop). See
also State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, T, 7, citing Delaware v. Prouse, 440
U.S. 648, 663 (1979) ("[.A] traffic stop is constitutionally valid if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to commit a
crime."). Thus, officers now have the ability, unavailable when Carroll was decided, to seize
citizens for less than probable cause.3 NVhile an officer who stops an individual upon reasonable,
articulable suspicion must allow the individual to proceed about his or business once the officer's
suspicion has been satisfied, the officer may also continue the detention should new facts be
discovered which may ultimately rise to the level of probable cause to continue the seizure as
search of a motor vehicle to be valid, there must be a showing of both probable cause andexigent circumstances.") (Emphasis omitted.); Nevada v. Harnisch, 114 Nev. 225, 228-229(1998) ("[T]he Nevada Constitution requires both probable cause and exigent circumstances inorder to justify a warrantless search of a parked, immobile, unoccupied vehicle."); New Mexicov. Gomez, 122 N.M. 777, 788 (1997).s It is important to note that not every automobile stop will entail a search but every stop doesentail a seizure. Although it is apparent that these are not equally invasive, the United StatesSupreme Court continued to treat seizures and searches as equally invasive despite probablecause generally being required to conduct a search while seizures may be effected on reasonable,articulable suspicion in the wake of Terry< See Chambers v. Maroney, 399 U.S. 42, 52 (1970)("For constitutional purposes, we see no difference between on the one hand seizing and holdinga car before presenting the probable cause issue to a.m.agistrate and on the other hand carryingout an immediate search without a warrant."). Wbile a seizure is invasive, searches arenecessarily more invasive given that a search involves delving into one's personal and privatebelongings. See Chambers at 63 (Harland, J., concurring in part and dissenting in part) ("[]]n thecircumstances in which this problem [(a seizure or a search)] is likely to occur, the lesserintrusion will almost always be the simple seizure of the car for the period-perhaps a day-necessary to enable the officers to obtain a search warrant.").
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well as to conduct a search. Berkerner v. McCarty, 468 U.S. 420, 439-440 (1984) ("[T]he stop
and inquiry niust be reasonably related in scope to the justification for their initiation. Typically,
this means that the officer may ask the detainee a moderate number of questions to deterrnin.e his
identity and to try to obtain information comFirming or dispelling the officer's suspicions. But
the detainee is ilot obliged to respond. And, unless the detainee's answers provide the officer
with probable cause to arrest him, he must then be released.'°) (Internal quotations and citations
omitted.). In addition, Carroll was decided at a time when the United States Supreme Court had
not yet deterinined that a sniff around a vehicle is not a search within the meaning of the Fourth
Amendment. fllinois v. Caballes, 543 U.S. 405, 408-410 (2005). Thus, in a case of a traff c stop
where an officer suspects that the car contains illegal narcotics, the 'stop may be instantly
coordinated with a drug dog that can immediately sniff the vehicle. Moreover, if there is
reasonable articulable suspicion, the initial stop may be extended to allow for the arrival of a
drug-sniffing dog. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ^ 15. Thus, the
advent of technology, drug-sniffing dogs, and the ability to detain a vehicle on less than probable
cause render the exigency rationale expressed in Carroll less compelling than it was in 1925.4
{¶27} Following Carroll, the United States Supreme Court developed a second
justification for the automobile exception: the reduced expectation of privacy rationale. See, e.g.,
Cardwell v. Lewis, 417 U.S. 583, 590 (1974) ("One has a lesser expectation of privacy in a motor
4 The touchstone of the Fourth Amendment is reasonableness measured in objective terms by anexamination of the totality of the circumstances. Iri the context of evaluating a warrantlesssearch of an individual stopped in his vehicle, the McNeely court emphasized the application of a"finely tuned" totality of the circumstances approach when evaluating the reasonableness of awarrantless search based upon alleged exigent circurzstaxzces. (In.ternal quotations and citationomitted.) McNeely, 133 S.Ct. at 1559. The Court found that the fact-specific nature of thereasonableness inquiry demands that courts evaluate each case of alleged exigency on its facts..1d, at 1563. Applying this approach in keeping with the technological advances outlined abovecalls into question whether the continued application of the automobile exception's per seexigency rule without consideration of the facts of the case is reasonable.
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vehicle because its function is transportation and it seldom serves as one's residence or as the
repository of personal effects. A car has Iittle capacity for escaping public scrutiny. It travels
public thoroughfares where its occupants and its contents are in plain view."). However, how
items visible in a car are different from those visible in a home through its windows has never
been explained, let alone those items which are concealed from view by being fully underneath a
seat or stored in a trunk. Moreover, unlike the days of the Model T, today American citizens do
actually live in their cars. Many spend countless hours in bottleneck traffic where they eat,
drink, work, watch: television and movies, and socialize whether in person or via mobile phones
or iPads. It is not uncommon for a vehicle to be equipped with plugs for computers, compact fax
machines and refrigerators. Nor can it be said that citizens do not store their personal belongings
and effects in areas of their automobiles that are not open to public view. See Katz v. United
States, 389 U.S. 347, 351 (1967) ("Verhat a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection. But what he seeks to
preserve as private, even in an area accessible to the public, may be constitutionally protected.")
(Internal citations omitted.). Although the United States Supreme Court viewed the automobile
as an exterrnal location subject to lesser protection, that premise is questionable given the very
different role of the automobile in today's society. Moreover, although it may be that a citizen
can be said to have a diminished expectation of privacy in an automobile, there is nonetheless an
expectation of privacy. See id.
{¶28} Turning to Farris, an officer smelled an odor of burnt marijuana during a traffic
stop and searched the entire vehicle. Farri.r, 109 Ohio St.3d 519, 2006-Ohio-3255, at g l, 5.
The Ohio Supreme Court found that the search of the passenger compartment was permissible
but not the tz unk, holding that "[a] trunk and a passenger compartment of an automobile are
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subject to different standards of probable cause to conduct searches." Id. at T 51. Although, the
Ohio Supreme Court did not provide further analysis as to why the passenger com:partinen.t and
trunk are subject to different standards of probable cause, it is possible that the court was
alluding to the privacy rationale underpinning the "automobile exception" to the warrant
requirement when evaluating the reasonableness of the search, and in doing so, recognized the
distinction between a citizen's expectations of privacy in the passenger compartment versus the
trunk.5 In other words, while an open and visible passenger com.partment rnay be reasonably
subject to a reduced expectation of privacy, the same is not true of a closed trtink which is
private and not visible for all to see. This is only logical since people use their cars to transport
and store items of value of personal °unportance and, oftentimes, will keep those items in the
trunk for greater safety (e.g. to hide them from potential thieves walking past parked cars and
looking for valuables lying on the seat). However, the "automobile exception" jurisprudence of
the United States Supreme Court makes no distinction between a passenger compartment and a
trunk. See generally United States v. Ross, 456 U.S. 798, 825 (1982). Thus, to the extent the
Ohio Supreme Court intended in Farris to recognize a citizen's expectation of privacy in the
trunk of a vehicle for purposes of evaluating probable cause to conduct a warrantless search, it
intended to do so under Article I, Section 14 of the Ohio Constitution,
{l^29} VJhile the Ohio Supreme Court has generally interpreted Arrticle I, Section 14 of
the Ohio Constitution to be coextensive with the Fourth Amendment, it has acknowledged that
deviation may be appropriate in certain cases. See State v. Brown, 99 Ohio St.3d 323, 2003-
Ohio-3931, T 22, quoting State v, Robinette, 80 Ohio St.3d 234, 239 (1997) ("`[VvJe should
5 In alluding to different standards of probable cause, it would appear that the Farris Court wasrecognizing the relationship of the privacy interest at stake inherent to the evaluation of theoverall reasonableness of a warrantless search, to the quantum of evidence reasonably necessaryto establish probable cause.
^-IS
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harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth
Amendment, unless there are persuasive reasons to find otherwise."').6 The automobile
exception may be such an instance. Notably, other states have similarly deviated from the
federal automobile exception cases based on their state constitutions. See, e.g., Oregon v.
Kurokawa-Lasciak, 351 Or. 179, 190 (2011) ("[A]ny search of an automobile that was parked,
immobile and unoccupied at the time the police first encountered it in connection with the
investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively,
the prosecution must demonstrate that exigent circuznstances other than the potential mobility of
the automobile exist.") (Internal quotations and citation omitted.) (Emphasis omitted.); Perry,
568 Pa. at 504; Harnisch, 114 Nev. at 228-229; Gomez, 122 N.M. at 788; Connecticut v. Miller,
227 Conn. 363, 384-385 (1993) (holding that once a vehicle has been impounded, a warrantless
search is no longer permitted under the automobile exception). See also Vermont v. Savva, 159
Vt. 75, 88 (1991) (concluding that mobility did not constitute a per se exigency and that it would
diverge from the federal automobile exception and would "recognize a separate and higher
expectation of privacy for containers used to transport personal possessions than for objects
exposed to plain view withun an automobile's interior").
{TI30} The majority suggests that Farris is a case solely concer.ned with the Self-
Incrimination Clause of Article I, Section 10 of the Ohio Constitution. See Farris, 109 Ohio
St.3d 519, 2'006-Ohio-3255, at ^i 9. However, this is siznply iiot the case. See id (listizig five
issues before the Supreme Court for review including "whether the [other four] issues are
irrelevant in this matter because an officer has probable cause to search an entire vehicle,
6 Notably, in Farris, the Court already had deviated from the general rule that essentiallyidentical provisions of the Oliio and United States Constitutions should be hannonized when itconcluded that Article I, Section 10 provided greater protection than the Fifth Amendment. SeeFarris, 109 Ohio St.3d 519, 2006-Ohio-3255, at T 45-50.
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including its trwnk, when he smells the odor of burnt marijuana coming from the vehicle").
Whether an officer has probable cause to search is obviously outside the scope of Article I,
Section 10 of the Ohio Constitution, and, instead, falls fir.tnly within the confines of A.rticle I,
Section 14. While the Supreme Court did analyze whether the defendant's statements were
inadmissible under Article I, Section 10 of the Ohio Constitution, see id at T 45-49 (concluding
that Article l, Section 10 of the Ohio Constitution provides greater protection than the Fifth.
Amendment), it then went on to deterznine whether the officer "had probable cause to believe
that the car contained contraband due to his detection of the scent of marijuana and that the
automobile exception to the warrant requireinent permitted him to search the vehicle." Id. at T
50. See also ia'. at T 9.
{l^31} With this in mmind, it is necessary to discuss this Court's representation of Farris's
holding i.n State v. Carmichael, 9th Dist. No. 11CA010086, 2012-Ohio-5923. While Carmichael
quotes the statement in Farris that "[t]he automobile exception does not apply in this case[,]" it
plucks that statement from its context and attempts to paint Farris as a search incident to arrest
case. See Carmichael at T 12, quoting Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at T 52.
However, what the Farris majority actually said was as follows:
The odor of burnt marijuana in the passenger compartment of a vehicle does not,standing alone, establish probable cause for a warrantless search of the tn.ulk ofthe vehicle. No other factors justifyirtg a search beyond the passengercoznpartment were present in this case. The officer detected only a light odor ofmarijuana, and the troopers found no other contraband within the passengercompartment. The troopers thus lacked probable cause to search the tnmk ofFarris's vehicle. Therefore, the automobile exception does not apply in this case.
(Inteznal citation omitted.) Farris at 1^ 52. In other words, the evidence discovered as a result of
the officer's warrantless search was not admissible under the automobile exception because the
officer had lacked probable cause. In fact, at no time was it suggested that the evidence was
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discovered as a result of a search incident to arrest; rather, the question was always whether the
evidence was admissible under the automobile exception. 7 See Farris atT, 6-7. See also State v.
Farris, 9th Dist, No. 03CA0022, 2004-Ohio-826, T 17-19 (upholding the search solely under the
automobile exception). Thus, to the extent that Carmichael treats Farris as a search incident to
arrest,l believe that it is incorrect.
{t32} In applying Farris to this case, and in keeping with the findings of the trial court,
the question arises as to whether the trooper had probable cause to conduct a warrantless search
of Mr. Jones' trunk vc>hen there was no evidence the trooper detected any smell emanating from
the trunk and trace amounts of marijuana were found on the floor and passenger seat, which the
trial court decided was the object of the smell. Under the circumstances of this case and
recognizing the distinction betweeza the probable cause to search a trunk versus the search of the
passenger compartment pursuant to Farris, I would conclude that probable cause did not exist to
search the trunk. Rather, I would conclude that the trooper had reasonable articulable suspicion
to engage in further inquiry. Probable cause means "more than bare suspicion: [it] exists wliere
`the facts and circumstances withi.n their (the officers') knowledge and of which they had
reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable
caution in the belief that' an offense has been or is being committed." Brinegar v. United States,
338 U.S. 160, 175-176 ( 1949), quoting Carroll, 267 U.S. at 162. Once probable cause exists, an
officer essentially has the ability to dismantle the vehicle, looking in the upholstery, in the doors,
7 Admittedly, the Farris Court's citation to State v. Murrell, 94 Ohio St.3d 489 (2002), isconfusing since Adurrell was a search incident to arrest case. See Farris at ¶ 51. However,searches incident to arrest do not involve probable cause, meaning that the Farris Court couldnot have been analyzing the search as a search incident to arrest given its discussion of probablecause. See Murrell at 493 ("[T]he United States Supreme Court in Belton deliberately chose ilotto analyze the situation before it under the automobile exception to the warrant requirement,which is based on probable cause.") (Emphasis omitted.). See generally.New York v. Beltan, 453U.S. 454 (1981); Chinzel v. Californza, 395 U.S. 752 (1969).
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and in the engines. See, e.g,, Carroll, 267 U.S. at 132, 162 (concluding that officers had
probable cause to tear upholstery to locate hidden liquor), See also Ross, 456 U.S. at 821
("When a legitimate search is under way, and when its purpose and its limits have been precisely
defi.ned, nice distinctions between closets, drawers, and containers, in the case of a home, or
between glove compartrnents, upholstered seats, trunks; and wrapped packages, in the case of a
vehicle, must give way to the interest in the prompt and efficient completion of the task at
hand."). The Fourth Amendment is supposed to protect citizens from unreasorzable searches and
seizures, and I cannot believe that an expansive search of a trunk based on a minute amount of
marijuana found in the passenger compartment could be considered reasonable or supported by
probable cause. See Acevedo, 500 U.S. at 569.
{¶33} The majority relies on Carmichael in concluding that it is. However, Carmichael
involved significantly different facts, not least of which were that the front-seat passenger had
"marijuana seeds, buds, and stems" on his lap. Carmichael, 2012-Ohio-5923, at Tj 2. Moreover,
when asked whether there was contraband in the vehicle, the driver handed the officer "a piece
of folded cardboard containing marijuana from the center console."' See id. at T 10. The officer
in Carmichael also testified that he found some marijuana where the defendant was sitting. Id.
The officer in Carmichael had the driver produce contraband, saw contraband on a passenger,
and found additional contraband where the tlurd passenger was sitting. Id. This is significantly
more evidence of criminal activity by the car's occupants than the "shake" on the passenger seat
and floor.
{^34} While I believe that the "shake" provided the trooper with reasonable, articulable
suspicion, to furtbier detain and question'vlr. Jones, and perhaps bring a K-9 unit to the scene, in
keeping with Farris; I do not believe that the miniscule traces of marijuana found on the
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passenger seat and floor provided probable cause to conduct a warrantless search beyond the
passenger compartment of the vehicle. Accordingly, I d'zssent.
APPEARANCES:
DENNIS P. WILL, Prosecutiiig Attorney, and NATASHA RUIZ GUERRIERI, AssistantProsecuting Attorney, for Appellant.
SAMIR. HADEED, Attorney at Law, for Appellee.
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