[Cite as State v. Blevins, 2016-Ohio-2937.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103200
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BARRY BLEVINS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-592088-A
BEFORE: Boyle, J., Kilbane, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: May 12, 2016 ATTORNEY FOR APPELLANT
Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Aleksandra Chojnacki Mary McGrath Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Barry Blevins, appeals his convictions. He raises
one assignment of error for our review:
The trial court erred in denying the defendant’s motion to suppress evidence and statements obtained in violation of his federal and state constitutional rights where police engaged in an unlawful search and custodial interrogation of defendant to elicit incriminating statements without providing Miranda warnings.
{¶2} Finding no merit to his appeal, we affirm the judgment of the trial court.
I. Procedural History and Factual Background
{¶3} In December 2014, Blevins was indicted on eight counts: two counts of
trafficking (cocaine) in violation of R.C. 2925.03(A)(2), with a one-year firearm
specification; one count of drug possession (cocaine) in violation of R.C. 2925.11(A),
with a one-year firearm specification; one count of carrying a concealed weapon in
violation of R.C. 2923.12(A)(2); one count of improperly handling firearms in a motor
vehicle in violation of R.C. 2923.16(B); one count of receiving stolen property in
violation of R.C. 2913.51(A); and two counts of having a weapon while under disability
in violation of R.C. 2923.13(A)(2) and (3). All counts also carried a forfeiture
specification.
{¶4} In February 2015, Blevins moved to suppress evidence against him. The
state opposed Blevins’s motion. After holding an evidentiary hearing, the trial court
denied Blevins’s motion. {¶5} In June 2015, Blevins withdrew his previous plea of not guilty and pleaded
no contest to all charges. The trial court imposed an aggregate sentence of three years in
prison. It is from this judgment that Blevins appeals.
II. Standard of Review
{¶6} A motion to suppress presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In Burnside, the
Ohio Supreme Court explained this standard of review as follows:
When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).
Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (1997).
{¶7} Within his single assignment of error, Blevins raises several issues for our
review: (1) whether the initial stop of Blevins was a valid investigatory stop, (2) whether
Officer Sistek’s questions to Blevins amounted to a custodial interrogation, and (3)
whether the inevitable discovery doctrine applied as an alternative basis for denying
Blevins’s motion to suppress. We will discuss these issues together as they all relate to
his sole assignment of error, i.e., whether the trial court properly denied his motion to
suppress. III. Motion to Suppress Hearing
{¶8} The state presented Officer Scott Sistek, a patrol officer for the Cleveland
Police Department. On December 17, 2014, around 2:00 a.m., Officer Sistek was
“sweeping” parking lots in an area where there are a “bunch of apartments” because a
man had recently reported that someone had broken into his vehicle. Officer Sistek was
“just making sure there [were] no suspicious people in the parking lot” because they also
had other reports of cars being broken into in parking lots in that area.
{¶9} Around 2:25 a.m., Officer Sistek encountered two males sitting in a vehicle
with the lights on and the engine running. Officer Sistek approached the driver’s side of
the vehicle “just to see what they were doing, [and] engage them in casual conversation.”
Officer Sistek asked the driver of the vehicle, who was later identified to be Blevins,
what he was doing. Blevins responded that he was “freaking a mild.” Officer Sistek
explained that “freaking a mild” meant that Blevins was removing the tobacco from a
“Black and Mild” cigar. Officer Sistek observed Blevins removing the tobacco from the
cigar.
{¶10} Officer Sistek then saw a piece of paper with what “looked like suspected
marijuana inside of it” in the “front middle console.” Officer Sistek also “smelled the
odor of marijuana.” Officer Sistek said that from his experience as a police officer, he
was familiar with what marijuana looked and smelled like. At that point, Officer Sistek
asked Blevins to step out of the vehicle. Officer Sistek told the passenger to place his
hands “where he could see them on the dashboard.” Officer Sistek explained that he did not ask the passenger to step out of the vehicle because he did not have other officers to
assist him.
{¶11} Officer Sistek told Blevins to put his hands on top of the vehicle. Officer
Blevins stated: “Basically it’s all officer safety at that point. Tell him to put his hands
immediately on the car and I’m going to pat him down, and I’m going to ask do you have
anything on you you shouldn’t have.” Officer Sistek said that he was concerned about
being stabbed with a knife or heroin needle. Officer Sistek asked Blevins if he had
anything on him that he should not have. Blevins responded that he had a gun in his
“right front waistband.” At that point, Officer Sistek “immediately called for another
car to respond,” and then handcuffed Blevins and removed the handgun. Officer Sistek
said the gun was loaded with “nine rounds in the magazine.”
{¶12} While waiting for backup assistance, Blevins told Officer Sistek that he had
“a murder warrant [for] an incident from West 117th.” Officer Sistek confirmed that
Blevins had a murder warrant out for his arrest before the other officer arrived.
{¶13} Officer Sistek and the other officer searched Blevins’s person “to make sure
he had no other weapons or contraband on him.” They found suspected cocaine in his
“front pants pocket.” At that point, Officer Sistek placed Blevins in the back of his zone
car and Mirandized him. Blevins then told Officer Sistek that the white substance was
cocaine. {¶14} Officer Sistek searched Blevins’s vehicle once Blevins was in the back of
the patrol car. Officer Sistek found a mason jar on the front floor of the passenger side
of the vehicle that contained what looked like marijuana inside of it.
{¶15} Officer Sistek also removed the passenger from the vehicle and searched
him. The passenger had a warrant out for his arrest as well, so he was “taken to jail.”
{¶16} Officer Sistek said that Blevins was also cited for possessing marijuana and
either a suspended license or no license; he could not recall which one.
{¶17} On cross-examination, Officer Sistek agreed that he did not have any
information that Blevins was engaged in criminal activity prior to approaching Blevins’s
vehicle. Officer Sistek further agreed that Blevins did not make any “furtive
movements” or do anything that would make Officer Sistek think that he was trying to
hide something, nor did Officer Sistek have any reason to believe that Blevins was
dangerous prior to speaking with him. Officer Sistek also agreed that Blevins
cooperated with him.
IV. Fourth Amendment and a Terry “Stop and Frisk”
{¶18} The Fourth Amendment to the United States Constitution protects “the right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,” and provides that “no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” Ohio Constitution, Article I, Section 14, is nearly identical to its federal counterpart. State v. Kinney, 83 Ohio St.3d
85, 87, 698 N.E.2d 49 (1998).
{¶19} 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. See Katz v.
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This requires a
two-step analysis. First, there must be probable cause. If probable cause exists, then a
search warrant must be obtained unless an exception to the warrant requirement applies.
If the state fails to satisfy either step, the evidence seized in the unreasonable search must
be suppressed. Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
{¶20} Search warrants may be obtained upon a demonstration of probable cause to
support the search to a neutral, detached magistrate. Crim.R. 41. Probable cause for a
search is present when the totality of the circumstances make it fairly probable that
particularly described evidence of a crime will be found. Illinois v. Gates, 462 U.S. 213,
238, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983). Probable cause requires a fair probability
of criminal activity, not a showing by preponderance of the evidence or beyond a
reasonable doubt. Moreover, in assessing probable cause or reasonable suspicion, a
court must consider the facts in their totality. State v. Gantz, 106 Ohio App.3d 27, 35,
665 N.E.2d 239 (10th Dist.1995). Police officers may draw inferences based upon their
experience and training in order to decide whether probable cause exists and, of course,
those inferences may not be obvious to an untrained person. United States v. Cortez,
449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). {¶21} One such exception to the warrant requirement is an investigative stop (or
Terry stop), which was established by the United States Supreme Court in Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the court held that “a police
officer may in appropriate circumstances and in an appropriate manner approach a person
for purposes of investigating possible criminal behavior even though there is no probable
cause to make an arrest.” Id. at 22. For a stop to be valid pursuant to Terry, the police
officer involved “must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.”
Id. at 21. Such an investigatory stop “must be viewed in the light of the totality of the
surrounding circumstances” presented to the police officer. State v. Freeman, 64 Ohio
St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.
{¶22} “Once a lawful stop has been made, the police may conduct a limited
protective search [sometimes called a “frisk”] for concealed weapons if the officers
reasonably believe that the suspect may be armed or a danger to the officers or to others.”
State v. Lawson, 180 Ohio App.3d 516, 2009-Ohio-62, 906 N.E.2d 443, ¶ 21 (2d Dist.).
“The purpose of this limited search is not to discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence.” State v. Evans, 67 Ohio
St.3d 405, 422, 618 N.E.2d 162 (1993), citing Terry at 24. To justify a pat-down, “the
police officer must be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion.” Terry at
27. {¶23} It is well recognized that the need for a protective pat-down becomes more
urgent where drugs are involved. “The very nexus between drugs and guns can create a
reasonable suspicion of danger to the officer.” State v. Thompson, 1st Dist. Hamilton
No. C-050400, 2006-Ohio-4285, ¶ 11. Further, “[r]ecognizing the prevalence of
weapons in places where illegal drugs are sold and used * * * an officer’s fear of violence
when investigating drug activity is a legitimate concern that will justify a pat-down search
for weapons.” State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, ¶
23, citing State v. Taylor, 82 Ohio App.3d 434, 612 N.E.2d 728 (2d Dist.1992).
V. Seeing and Smelling Marijuana
{¶24} Officer Sistek testified that he approached the vehicle to engage the
occupants in casual conversation. Officer Sistek walked up to Blevins, who was the
driver of the vehicle, and asked him what he was doing. There is no dispute that at this
point Officer Sistek did not violate Blevins’s Fourth Amendment rights.
{¶25} “An officer may approach an individual in a street or other public place for
the purpose of a consensual encounter. A consensual encounter is not a seizure, so no
Fourth Amendment rights are invoked. The individual must be free to terminate the
consensual encounter or decline the officer’s request.” Florida v. Bostick, 501 U.S. 429,
111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Moreover, a seizure has not occurred when an
officer approaches a vehicle and questions its occupants. State v. Boys, 128 Ohio
App.3d 640, 642, 716 N.E.2d 273 (1st Dist.1998), citing State v. Johnston, 85 Ohio
App.3d 475, 620 N.E.2d 128 (4th Dist.1993). {¶26} When Officer Sistek asked Blevins what he was doing, however, Officer
Sistek immediately smelled marijuana and saw what he suspected was marijuana in a
piece of paper in the middle console of the vehicle. Officer Sistek stated that based on
his experience as a police officer, he was familiar with what marijuana looked and
smelled like. It was at this point that Officer Sistek asked Blevins to step out of the
vehicle. As the trial court found, Officer Sistek asked Blevins to step out of the vehicle
having “seen and smelled quite enough.”
{¶27} Officer Sistek did not violate Blevins’s Fourth Amendment rights when he
asked Blevins to step out of the vehicle because Officer Sistek had more than a
reasonable suspicion that Blevins was engaged in criminal activity — he had probable
cause of criminal activity once he smelled the marijuana and saw it in plain view. See
State v. Moore, 90 Ohio St.3d 47, 50-51, 734 N.E.2d 804 (2000); State v. Buckner, 2d
Dist. Montgomery No. 21892, 2007-Ohio-4329, ¶ 9-10; State v. Perryman, 8th Dist.
Cuyahoga No. 82965, 2004-Ohio-1120, ¶ 20.
{¶28} In Moore, the police officer stopped the defendant for running a red light.
When the defendant rolled down his window, the officer “detected a strong odor of fresh
burnt marijuana emanating from the vehicle.” Id. at 47. When the defendant stepped
out of the vehicle, the officer also smelled the odor on the defendant. The officer
searched the defendant’s vehicle and the defendant’s person, finding drug paraphernalia
and marijuana. The trial court granted the defendant’s motion to suppress, but the
appellate court reversed. Id. The defendant appealed. {¶29} The question before the Ohio Supreme Court in Moore was whether “the
odor of burnt marijuana, alone, [was] sufficient to provide probable cause to search a
defendant’s motor vehicle” and a defendant’s person. Id. at 48. The court explained
that “[p]robable cause must be based upon objective facts that would justify the issue of a
warrant by a magistrate.” Id. at 49, citing State v. Welch, 18 Ohio St.3d 88, 480 N.E.2d
384 (1985). The Ohio Supreme Court upheld both searches because it found that the
smell of marijuana alone by an officer experienced in smelling it was sufficient probable
cause to search the defendant’s vehicle and the defendant’s person. Id. at 51.
{¶30} Having found probable cause to search, the Moore court then addressed the
question of whether an exception to the warrant requirement existed to justify the search
of the defendant’s vehicle and the defendant’s person. Id. The court easily determined
that the automobile exception to the warrant requirement existed to search the defendant’s
vehicle. Id. The court then went on to examine the “more problematic” question: the
search of defendant’s person. It upheld the search of the defendant’s person, however,
based on the smell of marijuana on the defendant, reasoning:
In order to obtain a warrant before searching defendant’s person for possible narcotics, [the officer] would have had to permit defendant to leave the scene in defendant’s vehicle. Having to permit defendant to leave the scene alone, unaccompanied by any law enforcement officer, the dissipation of the marijuana odor, and the possible loss or destruction of evidence were “compelling reasons” for [the officer] to be able to conduct a warrantless search of defendant’s person. We find these to be exigent circumstances that would justify the warrantless search of defendant’s person.
Id. at 52-53. {¶31} This court has also held that the smell of marijuana alone gives police
officers probable cause to conduct a warrantless search. Perryman, 8th Dist. Cuyahoga
No. 82965, 2004-Ohio-1120, ¶ 26. In Perryman, a police officer pulled into a parking
lot around noon, and observed two men reclining in the front seat of a vehicle. The
officers approached the vehicle and knocked on the window. When the driver rolled the
window down, the officer immediately smelled the “odor of burnt marijuana coming from
the car.” Id. at ¶ 3. Based on smelling the marijuana, the officer asked the driver to
exit the vehicle and searched him. Another officer also searched the passenger, who
was the defendant in the case (Perryman). Perryman had one large bag and 15 smaller
bags of marijuana on his person.
{¶32} Perryman moved to suppress the evidence, arguing (as Blevins also does
here) “that any intrusion beyond a citation for smoking marijuana or possession of
marijuana under 100 grams, a minor misdemeanor, was unwarranted.” Id. at ¶ 7. The
trial court granted Perryman’s motion and suppressed the evidence. The state appealed,
arguing that the search of Perryman was valid because of the smell of marijuana
emanating from the vehicle.
{¶33} This court held in Perryman that once the officers smelled burnt marijuana
emanating from the vehicle, the smell established “both a reasonable articulable suspicion
and probable cause that marijuana was being used or had just been used by the vehicle’s
occupants.” Id. at ¶ 18. We further noted:
The fact that smoking marijuana is a minor misdemeanor offense is of no consequence. Where the presence of marijuana or any drug is reasonably suspected, the location, quantity and packaging are legitimate inquiries for the authorities based on the existing probable cause. See [State v. Bird, 4th Dist. Washington No. 92CA2, 1992 Ohio App. LEXIS 6797 (Dec. 31, 1992)]. Certainly, if only a small amount is found after an inquiry, then an arrest is not justified and a citation may be issued.
Id. at ¶ 19.
{¶34} We held that “[t]he seizure of marijuana from Perryman’s person was not a
violation of the United States or Ohio Constitutions since the officers had probable cause
to search Perryman.” Id. at ¶ 20. See also State v. Simmons, 8th Dist. Cuyahoga No.
85297, 2005-Ohio-3428 (search of defendant’s person valid when officers smelled burnt
marijuana when defendant rolled down the window of the vehicle); Bird, 4th Dist.
Washington No. 92CA2, 1992 Ohio App. LEXIS 6797 (officer smelling marijuana upon
approaching a parked car provided the requisite probable cause for both the search of
defendant’s person and the vehicle); State v. Garcia, 32 Ohio App.3d 38, 513 N.E.2d
1350 (9th Dist.1986) (odor of marijuana alone can provide probable cause to search).
{¶35} In this case, Officer Sistek smelled marijuana from inside the vehicle, but he
did not state that he smelled marijuana on Blevins or emanating from Blevins. But
Officer Sistek did not just smell marijuana here; he also saw it in plain view. Thus,
although Officer Sistek did not smell marijuana on Blevins’s person, the facts in this case
are even stronger than they were in Moore and Perryman to establish probable cause to
search Blevins’s vehicle and person. As the trial court found here, Officer Sistek asked
Blevins to step out of the vehicle having “seen and smelled quite enough.” {¶36} The fact that Officer Sistek said that he intended to conduct a pat-down for
weapons is immaterial. In Perryman, this court noted that the officer “made no attempt
to rationalize his search for contraband solely under the pretext of a Terry patdown.” Id.
at ¶ 19. We stated that “[w]hether we examine this case in the context of probable cause
justifying a warrantless search or under a Terry standard for officer safety, the result
would have been the same.” Id. at ¶ 24.
VI. Custodial Interrogation an Inevitable Discovery
{¶37} Regarding Blevins’s argument that his statement about the gun in his
waistband should be suppressed due to the fact that Officer Sistek did not give him
Miranda warnings, we disagree. Even assuming for the sake of argument that Blevins
was “in custody” for purposes of Miranda when he instructed Blevins to place his hands
on his vehicle and asked him if he had anything on him that he should not have, Officer
Sistek had probable cause to search Blevins’s person. Thus, Officer Sistek would have
lawfully found the gun on Blevins despite Officer Sistek’s alleged illegal conduct.
Thus, the doctrine of inevitable discovery would apply.
{¶38} The doctrine of inevitable discovery was established by the United States
Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
In Nix, the court held that illegally obtained evidence should nevertheless be admitted if
it inevitably would have been obtained lawfully. Id. at 448. The court reasoned that if
evidence obtained as a result of a constitutional violation would have ultimately been
discovered through lawful means, then such evidence should be admissible because its suppression would have no legitimate deterrent effect on illegal police behavior. Id.
Under the inevitable discovery doctrine of Nix, illegally obtained evidence is admissible if
the prosecution proves by a preponderance of the evidence that the police would have
inevitably discovered it in a lawful manner. Id.
{¶39} The Ohio Supreme Court has adopted the inevitable discovery doctrine in
State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985). The court held: “The
ultimate or inevitable discovery exception to the Exclusionary Rule is hereby adopted so
that illegally obtained evidence is properly admitted in a trial court proceeding once it is
established that the evidence would have been ultimately or inevitably discovered during
the course of a lawful investigation.” Id. at the syllabus. See also State v. Jackson, 57
Ohio St.3d 29, 36, 565 N.E.2d 549 (1991) (applying the inevitable discovery doctrine).
{¶40} The inevitable discovery doctrine is appropriately triggered only in those
instances where there has been an implementation of police investigative procedures that
ultimately would have led to the certain discovery of the same
evidence. In other words, the investigative procedures must have already been
implemented prior to the discovery of the incriminating evidence through unconstitutional
means. See State v. Masten, 3d Dist. Hancock No. 5-88-7, 1989 Ohio App. LEXIS
3723, *20-21 (Sept. 29, 1989) (“circumstances justifying application of the rule are most
likely to be present if investigative procedures were already in place prior to the discovery
via the illegal means”). {¶41} Here, Officer Sistek observed and smelled marijuana in Blevins’s vehicle.
Thus, he had probable cause to search Blevins and Blevins’s car. Thus, under the
doctrine of inevitable discovery, Officer Sistek would have found the gun on Blevins’s
person when he lawfully searched him.
{¶42} Accordingly, we overrule Blevins’s sole assignment of error.
{¶43} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and ANITA LASTER MAYS, J., CONCUR