State v. Bush

2011 Ohio 5925

• Court: Ohio Court of Appeals
• Decided: November 17, 2011
• Docket: 96495
• Status: Published

Opinion

[Cite as State v. Bush, 2011-Ohio-5925.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96495

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANDRE L. BUSH DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-543922

BEFORE: Keough, J., Celebrezze, P.J., and Jones, J.

RELEASED AND JOURNALIZED: November 17, 2011 ATTORNEY FOR APPELLANT

Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Robert Botnick T. Allan Regas Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant, Andre L. Bush (“Bush”), appeals the trial court’s

decision denying his motion to suppress. For the reasons that follow, we affirm.

{¶ 2} In November 2010, Bush was charged with escape in violation of R.C.

2921.34(A)(1). Bush filed a “motion to dismiss,” which the trial court treated as a

motion to suppress based on the arguments raised within the motion. At the suppression

hearing, the following evidence was presented. {¶ 3} On the evening of November 2, 2010, Cleveland police officers Eric

Newton and Shane Bauhof were riding in a marked zone car on basic patrol. While

patrolling the area of East 103rd Street and Union Avenue, the officers observed a vehicle

traveling northbound and noticed that its rear license plate was not illuminated, which is a

violation of the traffic laws of the city of Cleveland. The officers activated the zone

car’s overhead lights to effectuate a stop of the vehicle. The vehicle immediately pulled

over and the driver turned off the car’s engine. Both officers exited the zone car; Officer

Newton approached the passenger side of the stopped vehicle and Officer Bauhof

approached the driver’s side.

{¶ 4} Officer Newton testified that as he approached, he could see three

individuals inside the vehicle; the back seat passenger, later identified as Bush, was

shifting back and forth in the seat and making a lot of movements with his head. Officer

Newton testified that these movements caused him “great alarm” because, based on his

experience, such movements typically indicate that the person is concealing or retrieving

something. Officer Newton testified that once he reached the passenger side of the

vehicle, he could smell marijuana and he observed marijuana in the back seat with Bush.

According to Officer Newton, Bush admitted they were “just smoking marijuana.” As

he was standing next to the vehicle, Officer Newton noticed that Bush kept moving his

hands down near his lap and waistband; Bush was ordered multiple times to keep his

hands visible to the officers. {¶ 5} When asked for identification, Bush said that he did not have any. At that

point, Officer Newton instructed Bush to exit the vehicle. Officer Newton testified that

he placed Bush in handcuffs and while patting Bush down for officer safety, he felt what

appeared to be the cylinder of a revolver. Bush then fled on foot; he was ultimately

apprehended and arrested. On cross-examination, Officer Newton admitted that before

Bush fled, it was his intention to arrest Bush for a minor misdemeanor drug abuse offense

because Bush could not produce identification.

{¶ 6} Bush appeals, raising as his sole assignment of error that the trial court

erred in denying his motion to suppress.

{¶ 7} Appellate review of 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 deciding a motion to suppress, the trial court assumes the role of trier of fact. Id. A

reviewing court is bound to accept those findings of fact if they are supported by

competent, credible evidence. Id. But with respect to the trial court’s conclusion of

law, we apply a de novo standard of review and decide whether the facts satisfy the

applicable legal standard. Id., citing State v. McNamara (1977), 124 Ohio App.3d 706,

707 N.E.2d 539.

{¶ 8} Bush first contends that the trial court erred in denying his motion to

suppress because the police lacked reasonable suspicion justifying the stop of the vehicle.

Officers Newton and Bauhof testified that they effectuated the traffic stop because the temporary license tag affixed in the rear license plate area of the vehicle was not

illuminated, which is a violation of the city of Cleveland’s traffic laws.

{¶ 9} The United States Supreme Court has explained that the Fourth Amendment

allows a police officer to stop and detain an individual if the officer possesses a

reasonable suspicion, based upon specific and articulable facts, that criminal activity

“may be afoot.” Terry v. Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889; see,

also, State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. To justify an

investigative stop, the officer must be able to articulate specific facts that would warrant a

reasonably prudent police officer to believe that the person stopped has committed or is

committing a crime. See Terry at 27.

{¶ 10} A traffic offense meets the requirements under Terry, constituting

reasonable grounds for an investigative stop. State v. Davenport, Cuyahoga App. No.

83487, 2004-Ohio-5020, ¶16, citing State v. Carlson (1995), 102 Ohio App.3d 585, 596,

657 N.E.2d 591; see, also, State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894

N.E.2d 1204, ¶7-8 (an officer may lawfully stop a vehicle if the officer has a reasonable

articulable suspicion that the operator has engaged in criminal activity, including a minor

traffic violation).

{¶ 11} Cleveland Codified Ordinances (“C.C.O.”) 435.09, which is identical to

R.C. 4503.21, regulates the proper placement of license plates and temporary placards. It

provides that “[n]o person to whom a temporary license placard or windshield sticker has

been issued for the use of a motor vehicle * * * and no operator of that motor vehicle, shall fail to display the temporary license placard in plain view from the rear of the

vehicle either in the rear window or on an external rear surface of the motor vehicle * *

*.”

{¶ 12} Furthermore, C.C.O. 437.04, which is identical to R.C. 4513.05, addresses

illumination of the rear license plate and provides that “either a tail light or a separate

light shall be so constructed and placed as to illuminate with a white light the rear

registration place, when such registration plate is required, and render it legible from a

distance of fifty feet to the rear.”

{¶ 13} A violation of either C.C.O. 435.09 or 437.04 (or the respective Ohio

Revised Code counterparts) is a minor misdemeanor traffic offense.

{¶ 14} In Wilmington v. Conner (2001), 144 Ohio App.3d 735, 761 N.E.2d 663,

the Twelfth District determined that R.C. 4503.21 and 4513.05 are to be read in

conjunction with each other. Accordingly, the court held that “these statutes can lead

only to the conclusion that when a temporary tag is placed in the rear license plate space,

illumination of the space is required by law. Any other explanation would be contrary to

logic and common sense. If a license plate on the rear of the vehicle is required to be

illuminated so that law enforcement officials can read the letters and numbers, it would

make little sense to find the illumination requirement inapplicable to temporary tags

placed in the exact same position.” Id. at 739.

{¶ 15} We find Connor well-reasoned. When a temporary tag is affixed in the

license plate area on the rear of a vehicle, there is no distinction between a temporary tag or license plate; thus the area needs to be illuminated. Accordingly, because the

temporary tag affixed to the vehicle in the license plate area was not properly illuminated,

the officers in this case had reasonable grounds for an investigative stop of the vehicle.

{¶ 16} Bush also contends that the trial court erred in denying his motion to

suppress because the officers lacked the requisite reasonable suspicion or probable cause

to detain and search him when there was no basis for the court to conclude that Officer

Newton was qualified to recognize the odor of marijuana.

{¶ 17} Once a police officer has made a legitimate stop of a vehicle, the driver and

passengers may be detained only for as long as the officer continues to have a reasonable

suspicion that there has been a violation of the law. State v. Myers (1990), 63 Ohio

App.3d 765, 771, 580 N.E.2d 61. However, “[i]f during the scope of the initial stop, an

officer discovers additional specific and articulable facts which give rise to a reasonable

suspicion of criminal activity beyond that which prompted the stop, the officer may detain

the vehicle, driver, and passengers for as long as the new articulable and reasonable

suspicion continues.” State v. Waldroup (1995), 100 Ohio App.3d 508, 513, 654 N.E.2d

390.

{¶ 18} It is well-established that the “smell of marijuana, alone, by a person

qualified to recognize the odor, is sufficient to establish probable cause to search a motor

vehicle, pursuant to the automobile exception to the warrant requirement. There need be

no other tangible evidence to justify a warrantless search of a vehicle.” State v. Moore,

90 Ohio St.3d 47, 48, 2000-Ohio-10, 734 N.E.2d 804. See, also, State v. Evans, Cuyahoga App. No. 94984, 2011-Ohio-3046. In State v. Hopper, Cuyahoga App. Nos.

91269 and 91327, 2009-Ohio-2711, this court held that the smell of marijuana gives rise

to a reasonable suspicion that the person stopped is engaged in criminal activity and thus,

the police have the right to detain the car’s occupants and search the car.

{¶ 19} Bush argues that there was no basis on which to conclude that Officer

Newton was qualified to recognize the odor of marijuana. Officer Newton testified that

as he reached the passenger side of the vehicle, he could smell marijuana emanating from

inside. He could also see, in plain view, what he suspected was marijuana in the back

seat with Bush. No additional testimony was elicited or given regarding the officer’s

training or experience in marijuana arrests, identification, or detection.

{¶ 20} Therefore, we agree with Bush that no evidence was adduced to establish

that Officer Newton was qualified to recognize the odor of marijuana. See State v.

McKee, Hancock App. No. 5-03-10, 2003-Ohio-5124, and State v. O’Neal, Hancock App.

No. 5-03-05, 2003-Ohio-5122 (upholding suppression when no evidence was presented

that the police officer was qualified to recognize the odor of marijuana). In cases where

no testimony is adduced regarding a police officer’s training, experience, or qualifications

regarding detection and identification of the odor of marijuana, reviewing courts have

held that suppression is proper when the sole basis for arrest or search is the smell or

presence of marijuana. See State v. Birdsong, Stark App. No. 2008 CA 00221,

2009-Ohio-1859; State v. Bradley, Richland App. No. 2003-CA-0040; 2003-Ohio-5914;

State v. Gaus, Ross App. No. 00CA2546, 2001-Ohio-2418. {¶ 21} However, in this case, even though no testimony was elicited regarding

Officer Newton’s qualifications regarding marijuana identification and detection, the

limited testimony given by Officer Newton regarding the suspected smell and presence of

marijuana, coupled with Bush’s admission to smoking marijuana, created reasonable

articulable suspicion and probable cause justifying further detention of the vehicle and its

occupants, including Bush. Hopper, supra.

{¶ 22} Bush’s final challenge to the trial court’s decision denying his motion to

suppress is that his detention and subsequent search were premised on an arrest for a

minor misdemeanor, which is impermissible pursuant to R.C. 2935.26.

{¶ 23} Absent an exception specified in R.C. 2935.26, a person may not be

arrested for a minor misdemeanor offense. R.C. 2935.26; State v. Jones, 88 Ohio St.3d

430, 2000-Ohio-374, 727 N.E.2d 886; State v. Brown, 99 Ohio St.3d 323,

2003-Ohio-3931, 792 N.E.2d 175. One exception, which applies in this case, is when

the defendant cannot or will not produce sufficient identification. R.C. 2935.26(A)(2).

{¶ 24} In this case, when asked for identification, Bush indicated that he did not

have any. Accordingly, because an exception under R.C. 2935.26 existed, Officer

Newton was permitted to arrest Bush.

{¶ 25} Notwithstanding his inability to present any identification, Bush asks this

court to consider cases where reviewing courts determined suppression was proper when

the police did not attempt to obtain or verify a defendant’s identity when the defendant

could not produce proper identification. See State v. Satterwhite (1997), 123 Ohio App.3d 322, 704 N.E.2d 259, and State v. Ellison, 148 Ohio App.3d 270,

2002-Ohio-2919, 772 N.E.2d 1222. We find these cases unpersuasive based on the facts

in this case.

{¶ 26} Once Bush was unable to provide identification, Officer Newton instructed

him to exit the vehicle. Officer Newton testified that he placed Bush in handcuffs and

patted him down for officer safety, which was reasonable given Officer Newton’s

testimony that the movements of the back seat passenger caused him “great alarm” and

that he repeatedly had to tell Bush to keep his hands visible to the officers.

{¶ 27} When questioned why he placed Bush in handcuffs, Officer Newton said:

{¶ 28} “We didn’t even know who he even was at that point. We had a male that

was not cooperating with commands to show his hands, was observed shifting his weight

back and forth inside the car at our stop.

{¶ 29} “And when we did approach, again, he was told several times to keep his

hands where they could be seen, and he was not complying. There was a lot of concern

that there may be something there that could harm us.”

{¶ 30} An officer, regardless of whether he has probable cause to arrest, may pat

down a person for weapons when he has reason to believe that he is dealing with an

armed and dangerous individual. Terry at 27. The purpose of this limited search is to

allow an officer to pursue his or her investigation without fear of violence; it is not

intended to provide the officer with an opportunity to ascertain evidence of a crime.

State v. Evans (1993), 67 Ohio St.3d 405, 408, 618 N.E.2d 162. {¶ 31} In this case, the use of handcuffs and the subsequent search were warranted

based on the totality of the circumstances. Given Officer Newton’s observations prior to

and during the encounter with Bush, Officer Newton’s concerns for his and his partner’s

safety were reasonable and justified the protective detention and search. Although

Officer Newton was going to arrest Bush because he could not produce identification, the

use of handcuffs and the pat-down search were reasonable based on Bush’s prior furtive

movements and refusal to comply with the officer’s directives to keep his hands visible.

See State v. Hubbard, Cuyahoga App. No. 83385, 2004-Ohio-4498. Cf. State v. Huey,

Cuyahoga App. No. 96168, 2011-Ohio-5496 (detention and pat-down search was not

conducted for officer safety, but merely to arrest an individual for a minor misdemeanor;

thus suppression upheld).

{¶ 32} Further, although probable cause existed to arrest Bush for lack of

identification, once he fled during the protective pat-down search, Bush created an

additional basis for his arrest.

{¶ 33} Accordingly, we find that the trial court did not err in denying the motion to

suppress. Bush’s assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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.

KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and LARRY A. JONES, J., CONCUR