State v. Bonham

2012 Ohio 3982

• Court: Ohio Court of Appeals
• Decided: August 28, 2012
• Docket: 12 CAA 01 002
• Status: Published

Opinion

[Cite as State v. Bonham, 2012-Ohio-3982.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : Case No. 12 CAA 01 002 SIDNEY L. BONHAM : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 10 CR I 10 0560

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: August 28, 2012

APPEARANCES:

For Appellant: For Appellee:

TODD A. LONG CAROL HAMILTON O’BRIEN 5354 N. High St. DELAWARE COUNTY PROSECUTOR Columbus, OH 43214 DOUGLAS DUMOLT 140 N. Sandusky St., 3rd Floor Delaware, OH 43015

Delaney, P.J. {¶1} Defendant-Appellant Sidney L. Bonham appeals the June 30, 2011

judgment entry of the Delaware County Court of Common Pleas denying his Motion to

Suppress. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} On October 22, 2010, Bonham was indicted by the Delaware County

Grand Jury with one count of Trafficking in Marijuana, in violation of R.C.

2925.03(A)(2), a felony of the third degree, and one count of Possession of Marijuana,

in violation of R.C. 2925.11(A), a felony of the third degree.

{¶3} Bonham filed a Motion to Suppress on May 13, 2011. The trial court

held an evidentiary hearing on the motion. The following facts were adduced at the

hearing.

{¶4} Delaware County Deputy Sheriff Derek Beggs has been employed as a

police officer for seven years. Deputy Beggs is trained in the detection of raw and

burnt marijuana and has been involved in over one-hundred traffic stops where he

determined the presence of narcotics by smell.

{¶5} On May 13, 2010, Deputy Beggs was travelling northbound on Interstate

71 near milepost 133. At approximately 5:56 p.m., Deputy Beggs observed a red

Hyundai Elantra travelling northbound on I-71 commit a marked lane violation. Deputy

Beggs then initiated a traffic stop of the vehicle.

{¶6} The red Hyundai Elantra pulled over. The driver of the vehicle was

Sidney Bonham. The passenger in the vehicle was Brendan Bonham, Sidney’s

brother. Deputy Beggs approached the passenger side of the vehicle. When the

passenger window was rolled down, Deputy Beggs detected an odor of marijuana coming out of the passenger compartment of the vehicle. The officer did not specify

whether the odor was burnt or raw marijuana. Due to the odor, Deputy Beggs

collected the driver’s licenses of both men. The officer returned to his vehicle to check

the records of the men and found no outstanding warrants and that the men had valid

driver’s licenses. The vehicle was determined to be owned by Felicia Montaro, the

mother of Sidney Bonham’s child. Sidney Bonham was driving the vehicle with her

permission.

{¶7} Deputy Beggs asked Sidney Bonham to step to the rear of the vehicle so

the officer could speak with him. Deputy Beggs advised Bonham that he detected the

odor of marijuana coming from the passenger compartment of the vehicle and based

on that odor, he was going to conduct a vehicle search. Bonham responded that he

did not know why there would be an odor of marijuana within the vehicle. Bonham

was patted down and placed in the rear of the police cruiser.

{¶8} Deputy Beggs asked Brendan Bonham to exit the vehicle. The officer

advised Brendan of the same information. Brendan denied using marijuana because

he was a college basketball player and stated he did not know why there would be a

smell of marijuana in the vehicle. Brendan was also placed in the rear of the cruiser.

{¶9} Deputy Beggs conducted a vehicle search of the passenger

compartment. On the driver’s and passenger’s floorboard of the vehicle, Deputy

Beggs located an amount of marijuana “shake.” He also observed marijuana “shake”

on the hand rest of the driver’s armrest of the driver’s door and driver’s door handle.

Deputy Beggs began a search of the back seat of the vehicle. As he was searching the back seat of the vehicle, he detected a stronger odor of raw marijuana coming

from and around the back seat itself.

{¶10} Deputy Beggs opened the trunk of the vehicle. He observed a white

body pillow pushed up against the back seat that appeared to be covering something.

The officer removed the body pillow and found a closed black nylon duffle bag. The

officer opened the nylon duffle bag and found fifteen, one-gallon sealed plastic bags

containing a green leafy substance. The green leafy substance was determined to be

marijuana.

{¶11} After the discovery of the fifteen bags of marijuana, Deputy Beggs

arrested Sidney and Brendan Bonham.

{¶12} Tony Corroto testified at the suppression hearing as an expert witness

for the defense. He was a former seventeen-year police officer who testified as an

expert witness in the field of police procedures and identification of drugs, including

marijuana. Corroto testified it was his expert opinion that a person could not smell the

odor of raw marijuana in plastic bags from inside or outside of the vehicle.

{¶13} On June 30, 2011, the trial court issued its judgment entry denying

Sidney Bonham’s motion to suppress.

{¶14} The matter proceeded to trial before a jury. At the conclusion of the trial,

the jury found Sidney Bonham guilty as to both counts. The offenses were allied

offenses and the State elected to sentence under Trafficking in Marijuana. The trial

court sentenced Bonham on December 2, 2011 to two years in prison. The trial court

granted Bonham’s motion to stay execution of sentence and granted him bond

pending appeal. ASSIGNMENTS OF ERROR

{¶15} Bonham raises two Assignments of Error:

{¶16} “I. THE TRIAL COURT’S CONCLUSION, THAT RAW MARIJUANA

SHAKE WAS FOUND IN THE INTERIOR OF BONHAM’S VEHICLE, IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶17} “II. ASSUMING, ARGUENDO, THAT THERE WAS MARIJUANA SHAKE

IN THE PASSENGER ARE OF THE CAR, BEGGS STILL LACKED PROBABLE

CAUSE TO SEARCH THE TRUNK.”

ANALYSIS

I., II.

{¶18} We analyze Bonham’s two Assignments of Error together because they

both involve analysis of the trial court’s determination of the motion to suppress.

STANDARD OF REVIEW

{¶19} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328 (4th

Dist. 1998). During a suppression hearing, the trial court assumes the role of trier of

fact and, as such, is in the best position to resolve questions of fact and to evaluate

witness credibility. State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996). A

reviewing court is bound to accept the trial court's findings of fact if they are supported

by competent, credible evidence. State v. Metcalf, 111 Ohio App.3d 142 (4th Dist.

1996). Accepting these facts as true, the appellate court must independently determine

as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the applicable legal standard. State v. Williams, 86 Ohio App.3d

37 (4th Dist.1993), overruled on other grounds.

{¶20} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); and State v. Klein, 73 Ohio App.3d

486 (4th Dist. 1991). Second, an appellant may argue that the trial court failed to apply

the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See State v. Williams,

86 Ohio App.3d 37 (4th Dist. 1993), overruled on other grounds. Finally, an appellant

may argue the trial court has incorrectly decided the ultimate or final issues raised in a

motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. See State v. Claytor, 85

Ohio App.3d 623 (4th Dist. 1993).

MANIFEST WEIGHT OF THE EVIDENCE

{¶21} Bonham argues in his first Assignment of Error that the trial court’s

finding there was marijuana shake in the vehicle was against the manifest weight of

the evidence.

{¶22} Deputy Beggs testified he smelled the odor of marijuana coming from the

vehicle when the passenger window was rolled down upon his approach. Upon his

search of the passenger compartment of the vehicle, Deputy Beggs testified he observed marijuana shake on the floorboards, in the driver’s armrest, and driver’s door

handle of the vehicle. Bonham argues there is no further evidence, such as

photographs of the alleged marijuana shake or a sample of the alleged marijuana

shake, to support the trial court’s finding of fact there was marijuana shake in the

passenger compartment of the vehicle.

{¶23} As stated above, the trial court is the trier of fact in a suppression

hearing. The trial court is in the best position to resolve questions of fact and

determine the witness’s credibility. The police officer in this case is trained in

narcotics detection and is familiar with the appearance and characteristics of

marijuana. Upon this record, we find there was competent credible evidence to

support the trial court’s finding there was marijuana shake in the passenger

compartment of the vehicle. WARRANTLESS SEARCH OF THE TRUNK

{¶24} Bonham argues in his second Assignment of Error assuming arguendo

Deputy Beggs observed marijuana shake in the passenger compartment of the

vehicle, this did not give Deputy Beggs probable cause for a warrantless search of the

trunk of the vehicle.

{¶25} “For a search or seizure to be reasonable under the Fourth Amendment,

it must be based on probable cause and executed pursuant to a warrant.” State v.

Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000). The Fourth Amendment to the

United States Constitution prohibits warrantless searches and seizures, rendering

them per se unreasonable unless an exception applies. Katz v. United States, 389

U.S. 347, 457, 88 S.Ct. 507 (1967). The United States Supreme Court recognizes an

“automobile exception” to the Fourth Amendment’s requirement that police officers

must generally obtain a warrant before conducting a search. State v. Ivery, 11th Dist.

2011-L-081, 2012-Ohio-1270, ¶23 citing California v. Carney, 471 U.S. 386, 390 S.Ct.

2066 (1985). Under the automobile exception, there is no need to demonstrate that a

“separate exigency” exists to justify the search. Id. citing Maryland v. Dyson, 527 U.S.

465, 466, 119 S.Ct. 2013 (1999). “If a car is readily mobile and probable cause exists

to believe that it contains contraband, the Fourth Amendment thus permits police to

search the vehicle without more.” Id. quoting Pennsylvania v. Labron, 518 U.S. 938,

940, 116 S.Ct. 2485 (1996).

{¶26} In State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000), the Ohio

Supreme Court determined “* * * a law enforcement officer, who is trained and

experienced in the detection of marijuana, should not be prohibited from relying on his or her sense of smell to justify probable cause to conduct a search for marijuana.”

“Once a law enforcement officer has probable cause to believe that a vehicle contains

contraband, he or she may search a validly stopped motor vehicle based upon the

well-established automobile exception to the warrant requirement.” Id.

{¶27} Bonham states the Ohio Supreme Court has limited a police officer’s

authority to conduct a warrantless search of a motor vehicle under the automobile

exception. Specifically, in State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849

N.E.2d 985, the court held that a police officer does not have the authority to search

the trunk of a vehicle based solely on the smell of burnt marijuana emanating from the

passenger compartment of a vehicle following a traffic stop.

{¶28} Our brethren in the Sixth District Court of Appeals analyzed the holding

of Farris in State v. Gonzales, 6th Dist. WD-07-060, 2009-Ohio-168. The court stated

that Farris did not create a “trunk exception.” Id. at ¶23. The court explained:

Farris depended on United States v. Nielsen (C.A.10, 1993), 9

F.3d 1487, for the proposition that 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 trunk of a vehicle.”

Farris, 2006-Ohio-3255, ¶ 52, 109 Ohio St.3d 519, 849 N.E.2d 985. This

proposition is established by the common sense observation that an odor

of burning marijuana would not create an inference that burning

marijuana was located in a trunk. Nielsen explicitly limited the scope of a

search to the passenger compartment because that was the place from

which the officer smelled burnt marijuana. Because a warrantless search of an automobile “is defined by the object of the search and the

places in which there is probable cause to believe that it may be found,”

the smell of burnt marijuana does not provide probable cause to search a

trunk. Nielsen, 9 F.3d at 1491, quoting United States v. Ross, 456 U.S.

at 824.

{¶29} In Farris, the facts of the case gave the police officer no justification to

search the vehicle beyond the passenger compartment. In this present case, we find

the facts to be distinguishable from Farris. Deputy Beggs is a trained law enforcement

officer with seven years of experience in conducting traffic stops involving narcotics.

Upon approaching the vehicle, Deputy Beggs testified he smelled the odor of

marijuana emanating from the vehicle when the passenger window was rolled down.

Deputy Beggs searched the passenger compartment of the vehicle and observed

marijuana shake in the vehicle. When Deputy Beggs searched the back seat of the

vehicle, he testified he smelled the odor of raw marijuana coming from and around the

back seat of the vehicle. Deputy Beggs then searched the trunk of the vehicle and

found fifteen plastics bags filled with marijuana.

{¶30} The expert witness in this case testified it was his opinion that a police

officer could not smell raw marijuana when it was sealed in plastic bags. The expert

witness, however, could not speculate as to how and when the plastic bags of

marijuana came to be placed in the vehicle. Upon cross examination, he testified that

if the raw marijuana had been placed in the plastic bags while in the trunk, it could

have left an odor of raw marijuana in the car. {¶31} As to factual issues, it is to the trier of fact to resolve factual disputes and

determine the credibility of the witnesses. In this case, the trial court determined the

police officer had sufficient probable cause to search the trunk of the vehicle. The

odor of marijuana from the vehicle, the presence of the marijuana shake in the

passenger compartment, and the smell of raw marijuana emanating from the back

seat of the vehicle gave Deputy Beggs probable cause to believe the vehicle

contained contraband and therefore entitled him to search the entire vehicle. See

State v. Greenwood, 2nd Dist. No. 19820, 2004-Ohio-2737, ¶11.

{¶32} We agree there was competent credible evidence for the trial court to

determine Deputy Beggs had sufficient probable cause to search the trunk of the

vehicle. CONCLUSION

{¶33} Based on the foregoing, we overrule Bonham’s two Assignments of

Error.

{¶34} The judgment of the Delaware County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE

PAD:kgb IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

: STATE OF OHIO : : Plaintiff - Appellee : JUDGMENT ENTRY : : -vs- : : Case No. 12 CAA 01 002 SIDNEY L. BONHAM : : Defendant - Appellant : :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.