[Cite as State v. Crawford, 2020-Ohio-268.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108138 v. :
JAMES CRAWFORD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 30, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628647-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jillian J. Piteo, Assistant Prosecuting Attorney, for appellee.
Myron P. Watson, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant, James Crawford (“appellant”), brings the instant
appeal challenging his conviction for drug possession. Specifically, appellant argues
that the trial court erred in denying his motion to suppress the evidence obtained by
the police. After a thorough review of the record and law, this court affirms. I. Factual and Procedural History
The instant matter pertains to an incident that occurred during the
early morning hours on May 3, 2018, outside of the Three Kings Bar & Lounge
(“Three Kings”) on Emery Road in Warrensville Heights, Ohio. Sergeant Adam
Scherrer of the Warrensville Heights Police Department was patrolling the area
around the bar when he detected an odor of marijuana and smoke emanating from
an occupied vehicle in the parking lot. He approached the vehicle and encountered
appellant and a female passenger inside. Sergeant Scherrer observed, in plain view,
marijuana buds and a scale in appellant’s hands. He also observed a “burning
marijuana cigarette” in the car’s ashtray. (Tr. 14.) Appellant admitted to having
marijuana inside the vehicle and attempted to turn over the buds, scale, and
marijuana cigarette to Sergeant Scherrer.
Sergeant Scherrer asked appellant to step out of the vehicle. When
appellant exited the vehicle, Sergeant Scherrer observed an item enclosed in
appellant’s hand. Sergeant Scherrer testified that appellant shoved his hand inside
his pants. He did not know whether appellant was attempting to conceal something
inside his pants, or whether he had something inside his pants that he was trying to
retrieve. Based on these observations, and in order to ensure the safety of the
officers on the scene, officers conducted a pat-down search of appellant outside of
the vehicle. During this search, officers recovered a plastic baggie containing a white
powder that was subsequently determined to be cocaine. In Cuyahoga C.P. No. CR-18-628647-A, the Cuyahoga County Grand
Jury returned an indictment on May 22, 2018, charging appellant with one count of
drug possession, a fifth-degree felony in violation of R.C. 2925.11(A). The
indictment alleged that appellant possessed less than five grams of cocaine.
Appellant pled not guilty during his June 18, 2018 arraignment.
On October 17, 2018, appellant filed a motion to suppress and a motion
for leave to file a suppression motion. Therein, appellant argued that (1) the police
conducted an investigatory stop without reasonable suspicion, and as a result, the
investigatory stop was an unlawful seizure; (2) the police searched appellant’s
vehicle without a warrant or probable cause to do so; and (3) the discovery of
contraband in appellant’s underwear (the cocaine) should be suppressed as fruit of
the poisonous tree.
The state filed a brief in opposition on October 19, 2018. Therein, the
state argued that the police had probable cause to search appellant’s vehicle and his
person, and ultimately place him under arrest. Specifically, the state asserted that
the police had probable cause based on (1) the smell of marijuana, (2) drugs were
observed in plain view inside the vehicle, and (3) drugs were found on appellant’s
person.
The trial court held a suppression hearing on November 8, 2018.
Sergeant Scherrer and appellant testified during the suppression hearing. Sergeant
Scherrer’s testimony will be set forth in further detail below. Appellant
acknowledged that (1) he had marijuana buds inside the vehicle “in visible sight,” (2) he had a scale inside the vehicle, and (3) he attempted to conceal or “tuck” the
marijuana when Sergeant Scherrer approached the vehicle. Appellant explained
that he attempted to conceal the buds and scale in his hands, but turned the items
over when Sergeant Scherrer confronted him about his furtive movement. In
addition to these items, appellant retrieved a glass jar from the center console and
the cigarette in the vehicle’s ashtray and also turned them over to Sergeant Scherrer.
Appellant maintained that he had not been smoking marijuana in the vehicle at the
time of the encounter with Sergeant Scherrer. Finally, appellant testified that he
was merely adjusting his underwear when he stepped out of the vehicle, and that he
did not attempt to conceal anything inside his pants.
The parties presented closing arguments to the trial court on November
9, 2018. At the close of the suppression hearing, the trial court denied appellant’s
motion to suppress.
On November 13, 2018, appellant withdrew his not guilty plea and
entered a plea of no contest to the drug possession count. Based on the evidence
proffered by the state, the trial court found appellant guilty. The trial court ordered
a presentence investigation report and set the matter for sentencing.
The trial court held a sentencing hearing on December 19, 2018. The
trial court sentenced appellant to community control sanctions for a term of two
years.
On January 18, 2019, appellant filed the instant appeal challenging the
trial court’s judgment. Appellant assigns one error for review: I. The trial court erred and abused its discretion when it denied the appellant’s motion to suppress evidence.
II. Law and Analysis
A. Motion to Suppress
In his sole assignment of error, appellant challenges the trial court’s
judgment denying his motion to suppress.
1. Standard of Review
The Fourth and Fourteenth Amendments to the United States
Constitution prohibit warrantless searches and seizures. Warrantless searches are
per se unreasonable unless an exception applies. Katz v. United States, 389 U.S.
347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Evidence obtained from an
unreasonable search or seizure must be suppressed. Mapp v. Ohio, 367 U.S. 643,
651, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
This court reviews a trial court’s ruling on a motion to suppress under
a mixed standard of review.
“In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court must accept the trial court’s findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. With respect to the trial court’s conclusion of law, the reviewing court applies a de novo standard of review and decides whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
State v. Miller, 8th Dist. Cuyahoga No. 106946, 2018-Ohio-4898, ¶ 22.
2. Investigatory Stop First, appellant argues that the trial court erred in denying his motion
to suppress because his Fourth Amendment rights were violated when the police
conducted an investigatory stop without the requisite reasonable suspicion.
As noted above, warrantless searches and seizures are per se
unreasonable unless an exception applies. One well-known exception to the warrant
requirement is an investigative stop or a Terry stop. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968).
An investigatory stop is permissible if an officer has a reasonable
suspicion, based on specific and articulable facts, that an individual may be involved
in criminal activity. Id. at 21-22. The propriety of an investigative stop must be
viewed in light of the totality of the circumstances. State v. Freeman, 64 Ohio St.2d
291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus; State v. Bobo, 37 Ohio
St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus, cert. denied, 488
U.S. 910, 109 S.Ct. 264, 102 L.Ed.2d 252 (1988).
In the instant matter, appellant appears to argue that Sergeant
Scherrer did not have reasonable suspicion to approach the vehicle in the first place
and initiate the investigatory Terry stop. In support of his argument, appellant
asserts that he was lawfully parked in the parking lot, and that the officers “never
recovered any remnants of any burnt marijuana residue.” Appellant’s brief at 7.
Sergeant Scherrer testified that on the night in question, he was on
patrol in the general vicinity of Three Kings on Emery Road in Warrensville Heights,
Ohio. He explained that this particular area is known to him and the police department “for being a haven for drugs, liquor law violations, guns, fights.” (Tr.
10.)
During his shift, Sergeant Scherrer was walking around in the parking
lot, writing parking tickets, and trying to prevent fights. As he was walking around
the bar’s main parking lot, he “smelled an odor of burning marijuana.” (Tr. 11.) He
explained, “[marijuana is] a very distinct odor. I’ve been to school for drugs, drug
interdiction, made hundreds of drug arrests. So I started looking around for
occupied vehicles.” (Tr. 12.)
After detecting the odor of marijuana, he observed a silver Buick
Rendezvous parked crookedly in the parking lot with its lights on and engine
running. The Buick was the only occupied vehicle in the vicinity where he detected
the odor of marijuana. Sergeant Scherrer noticed that all four of the vehicle’s
windows were rolled down, and observed “smoke emanating from the vehicle.” (Tr.
19.)
Based on these observations, Sergeant Scherrer initiated an
investigatory Terry stop. He approached the driver’s side of the vehicle, activated
his flashlight and saw a male in the driver’s seat, later identified as appellant, and a
female passenger in the front passenger’s seat. Upon further inquiry, Sergeant
Scherrer observed marijuana buds and a scale in appellant’s hands, in plain view.
Additionally, he observed a “burning marijuana cigarette” in the car’s ashtray.
(Tr. 14.) During this initial encounter between Sergeant Scherrer and appellant, appellant admitted to using marijuana and he attempted to turn over the marijuana
buds, scale, and marijuana cigarette to Sergeant Scherrer.
Sergeant Scherrer asked appellant if there were any other drugs inside
the vehicle. Appellant “opened up the center console, he pulled out a glass Mason
jar which had another bag of marijuana in it. I had him put all the items inside of
the jar for the ease of evidence collection at that point in time, because we’re out in
the parking lot.” (Tr. 14.)
Sergeant Scherrer’s testimony during the suppression hearing was
consistent with the “probable cause synopsis” in the May 10, 2018 complaint
summary. The synopsis provides, in relevant part:
On 5/3/18 around 1:25am, Sgt. Scherrer was walking through the parking lot of the [Three Kings], located at 21899 Emery Rd, Warrensville Hts, when he smelled a strong odor of marijuana. Upon checking the parking lot, Sgt. Scherrer found that the smoke was coming from a silver Buick Rendezvous, which was occupied by two people. Upon making contact with the occupants, the driver, [appellant] and the front seat passenger, Kenyata Parker, Sgt. Scherrer saw that [appellant] was holding a marijuana cigarette. Upon further investigation, [appellant] was found to have a small plastic bag of suspected powder cocaine hidden in the crotch area of his pants. A [field] test and weight was done and the powder tested positive for cocaine and it had a field weight of under 5 grams.
After reviewing the record, and based on the totality of the
circumstances, we find that Sergeant Scherrer had a reasonable suspicion,
supported by specific and articulable facts, that appellant was engaged in criminal
activity justifying the investigatory Terry stop. Although appellant maintains that
he was lawfully parked, Sergeant Scherrer testified that the vehicle from which the odor of marijuana and smoke were emanating was “parked crooked in a parking
spot[.]” (Tr. 12.) Furthermore, appellant’s argument regarding the lack of “burnt
marijuana residue” recovered inside the vehicle is misplaced. Appellant’s brief at 7.
As noted above, although appellant denied smoking inside of the vehicle, Sergeant
Scherrer testified that the marijuana cigarette was burning when he approached the
vehicle and spoke with appellant. Assuming, arguendo, that (1) the cigarette or cigar
recovered from the vehicle’s ashtray contained tobacco and not marijuana, and (2)
the cigarette or cigar was not “burning” during appellant’s encounter with Sergeant
Scherrer, Sergeant Scherrer observed — in plain view — marijuana buds and a scale
which appellant admitted to possessing and attempted to turn over to Sergeant
Scherrer.
Finally, appellant appears to argue that the trial court erred in
believing the testimony of Sergeant Scherrer during the suppression hearing rather
than appellant’s testimony that he and his passenger were merely having a
conversation inside the vehicle and not smoking marijuana.
It is well-established that determinations regarding the credibility of
witnesses and the weight of the testimony are primarily for the trier of fact. State v.
Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is uniquely
situated to view the witnesses’ demeanor, gestures, facial expressions, and voice
inflections. In the instant matter, the trial court, as the trier of fact, was in the best position to assess the credibility of Sergeant Scherrer and appellant during the
suppression hearing.
Accordingly, appellant’s sole assignment of error is overruled in this
respect.
3. Search of Appellant’s Person
Appellant further argues that the trial court erred in denying his
motion to suppress because his Fourth Amendment rights were violated when the
police “conducted a full custodial search of appellant’s person” without a reasonable
and objective basis to do so. In support of his argument, appellant contends that
Sergeant Scherrer did not have a reasonable objective basis to believe that appellant
was armed and dangerous. Appellant’s argument is misplaced and unsupported by
the record.
Sergeant Scherrer asserted that he searched appellant based on his
observation that appellant was attempting to conceal something after he exited the
vehicle. When appellant exited the vehicle, he turned away from Sergeant Scherrer
and “tried to start shoving an unknown item or tried to retrieve an unknown item —
I wasn’t sure at that point in time — from his crotch area.” (Tr. 15.) Based on his
training, experience, and police protocol, it is typical for officers to search an
individual who attempts to conceal something, “especially not knowing what
[appellant] had, whether it was a weapon or additional narcotics.” (Tr. 17.)
On cross-examination, Sergeant Scherrer testified that when appellant
exited the vehicle, “[appellant] now had something enclosed in his hand and shoved it down the front of his pants, and he would not take his hand out of his pants after
being given numerous commands to do so.” (Tr. 27.) Sergeant Scherrer confirmed
again that he did not know what appellant had in his pants, whether he had shoved
something into his pants or was attempting to retrieve something out of his pants,
or whether the item appellant was attempting to conceal or retrieve was drugs or a
weapon.
For all of these reasons, the record reflects that Sergeant Scherrer had
a reasonable suspicion, supported by specific and articulable facts, that appellant
was engaged in criminal activity justifying the Terry stop and search of appellant’s
person. Based on the totality of the circumstances and Sergeant Scherrer’s
observations before approaching the vehicle, during his encounter with appellant,
and after appellant exited the vehicle, we find that Sergeant Scherrer’s actions were
reasonable and that he had a reasonable articulable suspicion to search appellant’s
person for additional narcotics, contraband, and any weapons.
Sergeant Scherrer explained that his primary concern based on his
observation of appellant shoving his hand inside his pants was officer safety. He is
trained and experienced in conducting pat-down searches in situations like this for
officer safety. In his experience as a law enforcement officer, individuals can conceal
the following items in their pants: “[g]uns, knives, brass knuckles, saps. There’s
been plenty documented instances where handcuffed prisoners who are not
properly searched by officers were to retrieve items that were concealed in their
crotch or buttocks area that either shoot themselves or shoot officers.” (Tr. 36.) Finally, Sergeant Scherrer confirmed that “[w]e just checked the area that
[appellant] had shoved his hand into immediately to retrieve for officer safety,
whatever the item was.” (Emphasis added.) (Tr. 36.)
Furthermore, citing Sergeant Scherrer’s testimony on cross-
examination that he is “always in fear of his safety,” appellant appears to argue that
Sergeant Scherrer conducted the pat-down search of appellant’s person based on
this general fear rather than reasonable articulable suspicion that appellant had
drugs, contraband, or a weapon on his person. Appellant’s argument is misplaced
and unsupported by the record.
During cross-examination, Sergeant Scherrer testified that he is
always in fear for his safety when he is “standing at a vehicle” and when he is “dealing
with somebody in [a law] enforcement encounter.” (Tr. 37-38.) The record reflects,
however, that this general fear when dealing with an individual or suspect was not
the basis upon which he conducted the pat-down search of appellant. Sergeant
Scherrer confirmed that during his encounter with appellant, he became fearful of
his safety “[w]hen [appellant] reached into his pants.” (Tr. 39.) When appellant
reached inside his pants, Sergeant Scherrer either began to or did, in fact, draw his
weapon. (Tr. 38.) Sergeant Scherrer explained that when appellant reached inside
his pants, “I don’t know what he was going for. I’m going home to my wife and three
kids.” (Tr. 37.)
Finally, during oral arguments, appellant argued that officers did not
conduct a protective pat-down search of appellant’s person for officer safety purposes, but rather conducted an impermissible search to look for additional
contraband. Appellant’s argument is misplaced and unsupported by the record. As
noted above, the search of appellant’s person was conducted for two primary
purposes: (1) to determine whether appellant was attempting to conceal the item
that was in his hands when he exited the vehicle, and if so, what the item was; and
(2) to ensure that appellant was not attempting to retrieve a weapon from inside of
his pants with which to harm the officers on scene.
Based on the foregoing analysis, we find that the police lawfully
conducted the investigatory Terry stop and lawfully searched appellant’s person
based on the totality of the circumstances and Sergeant Scherrer’s observations
before and during his encounter with appellant. Appellant’s sole assignment of error
is overruled in this respect.
4. Search of Appellant’s Vehicle
Finally, to the extent that appellant challenges the search of the
vehicle, we find no merit to this argument.
Sergeant Scherrer acknowledged that appellant attempted to hand
him the marijuana buds and scale that had been in his hands, and the burnt cigar
that was in the ashtray. However, the record reflects that Sergeant Scherrer had a
reasonable articulable suspicion that there were more drugs inside the vehicle.
Sergeant Scherrer testified that when he approached the vehicle and shined his
flashlight inside, “[appellant] attempted to conceal something in the [center]
console. I advised him [to] stop, I’ve already seen the drugs, let’s cut the games. He handed — tried to hand me the [marijuana] buds and the scale, which was what the
object was in his left hand.” (Tr. 14.) Based on these observations, which led
Sergeant Scherrer to believe that there may be additional narcotics or contraband
inside the vehicle, officers searched the area “where [appellant] had made the furtive
movement” after appellant exited the vehicle. (Tr. 16.)
Even if appellant had not made any furtive movements or attempted
to conceal items inside the vehicle, Sergeant Scherrer testified that under similar
circumstances where he smells marijuana inside of a vehicle, he asks the occupants
to exit the vehicle. Sergeant Scherrer opined that he has had “[h]undreds” of
previous encounters during which he smelled marijuana inside a vehicle and asked
the occupants to step out of the vehicle. (Tr. 15.) He explained that in the present
matter, as in similar circumstances, he asked appellant to exit the vehicle in order to
“[s]earch him based off probable cause that there may be more drugs on his person.”
(Tr. 15.) On cross-examination, Sergeant Scherrer testified that even though he was
only going to issue a citation for marijuana possession, rather than arresting
appellant, police protocol and procedure would still be to search the car and conduct
a “probable cause search.” (Tr. 26.)
For all of these reasons, the record reflects that Sergeant Scherrer had
a reasonable suspicion, supported by specific and articulable facts, that appellant
was engaged in criminal activity justifying the Terry stop and search of appellant’s
vehicle. Based on the totality of the circumstances and Sergeant Scherrer’s
observations before approaching the vehicle and during his encounter with appellant, we find that Sergeant Scherrer’s actions were reasonable and that he had
a reasonable articulable suspicion to search the vehicle for additional narcotics,
contraband, and any weapons.
Appellant’s sole assignment of error is overruled to the extent that he
challenges the search of the Buick Rendezvous.
III. Conclusion
After reviewing the record, we find no basis upon which to conclude
that the trial court erred in denying appellant’s motion to suppress. Based on his
observations and the totality of the circumstances present in this case, we find that
Sergeant Scherrer had a reasonable and articulable suspicion to initiate an
investigatory Terry stop, search appellant’s vehicle, and conduct the pat-down
search of appellant’s person.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and LARRY A. JONES, SR., J., CONCUR