State v. Lewis

2023 Ohio 3036, 224 N.E.3d 57

• Court: Ohio Court of Appeals
• Decided: August 30, 2023
• Docket: C-220457
• Status: Published

Opinion

[Cite as State v. Lewis, 2023-Ohio-3036.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220457 TRIAL NO. B-2103782-B Plaintiff-Appellee, : vs. O P I N I O N. : BRITTANY LEWIS,

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: August 30, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Brian A. Smith, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} In this appeal, we are asked to consider the narrow application of the

automobile exception to the Fourth Amendment’s warrant requirement: whether

officers may, in the course of a car search, search a container held roughly 25 feet away

from the car. We hold that the automobile exception does not extend to containers

removed from the car before officers develop probable cause to search the car.

I. Facts and Procedure

{¶2} In July 2021, Cincinnati Police Officers Nicholas Clark and Carl Reed

were on patrol when they encountered a car parked in a “no-parking” zone in a cul-de-

sac. The officers entered the cul-de-sac and watched defendant-appellant Brittany

Lewis exit from the driver’s side door, with her purse in hand, and walk to a nearby

townhouse.

{¶3} As the officers approached the end of the cul-de-sac, they ran a search

of the car’s license plate. The search revealed outstanding felony warrants for drug

trafficking involving the vehicle’s owner, Donnie Dukes.

{¶4} The officers stopped their cruiser and approached the car. The driver’s

side door opened, and Dukes emerged after having “crawled over from the passenger’s

side seat.” The officers noticed a pink cell phone on the driver’s seat and recognized a

strong odor of marijuana emitting from the vehicle. Dukes was arrested and placed

into the police cruiser. Clark searched the vehicle and found drugs in a backpack on

the passenger side of the vehicle, and a gun in the center console.

{¶5} As the arrest and search were unfolding, Lewis “turned her attention

back towards the vehicle” and walked towards the officers. Clark testified that Lewis

stood in the street, approximately 25 feet away from the car, with her purse slung

across her shoulder and asked for her phone. According to Clark, Lewis was 2 OHIO FIRST DISTRICT COURT OF APPEALS

cooperative and complied with officer instructions. Clark testified that an officer

handcuffed Lewis, “removed her purse from her person,” unzipped it, and searched its

contents. Inside, the officer found and inspected two pill bottles.

{¶6} Based on the search of the purse and pill bottles, the state charged Lewis

with two counts of trafficking in a fentanyl-related compound in violation of R.C.

2925.03(A)(2) and two counts of possessing a fentanyl-related compound in violation

of R.C. 2925.11(A).

{¶7} Lewis moved to suppress the evidence, challenging the warrantless

searches of the car and her purse. The trial court denied her motion. A jury found

Lewis guilty of all four counts. The trial court merged three of the counts into the first

count of trafficking-in-a-fentanyl-related compound and sentenced her to 18 months

of incarceration. On appeal, Lewis raises four assignments of error.

II. Law and Analysis

{¶8} In her first assignment of error, Lewis argues that the trial court erred

when it overruled her motion to suppress. First, she argues that the search of the car

violated the Fourth Amendment, disputing the application of the automobile and

search-incident-to-arrest exceptions to the warrant requirement. Second, she argues

that the automobile exception fails to justify the subsequent search of her purse.

{¶9} An appeal of a trial court’s denial of a motion to suppress “ ‘presents a

mixed question of law and fact.’ ” State v. Thompson, 1st Dist. Hamilton No. C-

200388, 2021-Ohio-3184, ¶ 10, quoting State v. Taylor, 174 Ohio App.3d 477, 2007-

Ohio-7066, 882 N.E.2d 945, ¶ 11 (1st Dist.). The parties agree that Lewis exited from

the car and walked to the townhouse before officers arrested Dukes, smelled the

marijuana, and searched the car. And they agree that she returned to the cul-de-sac

before officers detained her and searched her purse. Therefore, we must 3 OHIO FIRST DISTRICT COURT OF APPEALS

independently determine whether those facts “ ‘ satisfy the applicable legal standard.’ ”

State v. Curry, 1st Dist. Hamilton No. C-210274, 2022-Ohio-627, ¶ 13, quoting State

v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶10} The Fourth Amendment to the United States Constitution ensures

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” The search of the vehicle and Lewis’s

purse occurred without a warrant, and warrantless searches are per se unreasonable

unless the search falls under one of the “ ‘jealously and carefully drawn’ ” exceptions

to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), quoting Jones v. United States, 357 U.S. 493, 499, 78

S.Ct. 1253, 2 L.Ed.2d 1514 (1958); see Thompson at ¶ 11, quoting State v. Bacher, 170

Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.). When a warrantless

search is challenged, the state carries the burden of showing that the search falls within

one of the well-defined exceptions. See Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524

N.E.2d 889 (1988); State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96

N.E.3d 262, ¶ 18, citing Athens v. Wolf, 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974).

The Vehicle Search Was Constitutional.

{¶11} We begin with the search of the car. Lewis appears to argue that the

unconstitutionality of the car search renders the ensuing search of her purse

unconstitutional. The Fourth Amendment’s automobile exception justifies “a

warrantless search of a lawfully stopped vehicle if [officers] have probable cause to

believe that the vehicle contains contraband.” State v. Mitchell, 1st Dist. Hamilton No.

C-210582, 2022-Ohio-2564, ¶ 13, citing United States v. Ross, 456 U.S. 798, 825, 102

S.Ct. 2157, 72 L.Ed.2d 572 (1982), and State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d

804 (2000). Warrantless vehicle searches are reasonable given the innate mobility of 4 OHIO FIRST DISTRICT COURT OF APPEALS

vehicles, which “ ‘can be quickly moved out of the locality or jurisdiction in which the

warrant must be sought.’ ” Ross at 806, quoting Carroll v. United States, 267 U.S. 132,

153, 45 S.Ct. 280, 69 L.Ed. 543 (1932). The scope of the search extends to “every part

of the vehicle and its contents that may conceal the object of the search.” Id. at 825.

{¶12} But officers must have probable cause to believe that the vehicle

contains contraband. Id. at 808. Probable cause is an objective standard. See

Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). An

officer has probable cause when the officer possesses “objective facts that would justify

the issuance of a warrant by a magistrate.” Curry, 1st Dist. Hamilton No. C-210274,

2022-Ohio-627 at ¶ 20. And “[p]robable cause to search a vehicle may be based on

odors.” Id. at ¶ 21, citing State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116

N.E.3d 1262, ¶ 15, quoting Moore at 51.

{¶13} Officers knew that Dukes had outstanding warrants for drug trafficking.

Officer Clark described his training and field experience with marijuana. He arrested

Dukes and recognized “a strong odor of marijuana coming from the vehicle.” It is well

established that the smell of marijuana emitting from a vehicle can establish probable

cause to search the passenger compartment. Moore at 52; see Curry at ¶ 21. Therefore,

the facts known to the officers provided ample reason to believe that the vehicle held

marijuana or other evidence of drug activity and the search of the vehicle and

containers in the passenger compartment was proper under the automobile exception.

The Purse Search Was Unconstitutional.

{¶14} Turning to the search of her purse, Lewis argues that the automobile

exception cannot serve as a basis for the purse search because she had exited from the

car before officers approached the vehicle to apprehend Dukes. But the state, relying

on our opinion in State v. Mercier, 1st Dist. Hamilton No. C-060490, 2007-Ohio-2017, 5 OHIO FIRST DISTRICT COURT OF APPEALS

argues that the search of Lewis’s purse fell under the automobile exception. The state

does not offer arguments under any other Fourth Amendment exception.

{¶15} Because Lewis had exited from the car before officers developed

probable cause to search the car without a warrant, we hold that the search of Lewis’s

purse violated the Fourth Amendment.

{¶16} In Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 143

L.Ed.2d 408 (1999), the Supreme Court of the United States held that, as part of a

search of a vehicle’s passenger compartment, officers “may inspect passengers’

belongings found in the car that are capable of concealing the object of the search.” In

doing so, the Court explained that both drivers and passengers “possess a reduced

expectation of privacy with regard to the property that they transport in cars.” Id. at

303. The Court recognized the unique and distinguishable characteristics of cars to

justify finding that reduced expectation of privacy, as cars are subjected to extensive

government regulations and are frequently exposed to the public view. Id. The Court

considered “practical realities,” including the competing interests of law enforcement

and the public in these situations and concluded that the needs of law enforcement

overshadowed “a personal-privacy interest that is ordinarily weak.” Id. at 306.

{¶17} And so, when a passenger’s property in a vehicle is searched, “traumatic

consequences are not to be expected.” Id. at 303. The Houghton Court contrasted the

search of a passenger’s belongings with the “traumatic consequences” of a search of an

individual—“ ‘[e]ven a limited search of the outer clothing * * * constitutes a severe,

though brief, intrusion upon cherished personal security, and it must surely be an

annoying, frightening, and perhaps humiliating experience.’ ” Id., quoting Terry v.

Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶18} The state invokes Houghton and our opinion in Mercier to argue the

application of the automobile exception to the search of Lewis’s purse. The state

contends that officers could have prevented Lewis from leaving the car had they

approached the vehicle earlier. But both Houghton and Mercier addressed the

constitutionality of a search of a passenger’s belongings, or containers, that were

inside the vehicle when officers established probable cause to search the vehicle.

{¶19} In Houghton, Houghton was in the car with her purse during a traffic

stop when the officer noticed a syringe in the driver’s front pocket and the driver

subsequently explained “that he used it to take drugs.” Houghton, 526 U.S. at 298, 119

S.Ct. 1297, 143 L.Ed.2d 408. And in Mercier, Mercier sat with her purse in the car

when officers observed the driver sell a half pound of marijuana to a confidential

informant. Mercier, 1st Dist. Hamilton No. C-060490, 2007-Ohio-2017, at ¶ 3. She

was inside of the car with her purse when officers pulled the car over and the driver

admitted that the car contained marijuana. Id. at ¶ 4. In fact, Mercier was ordered out

of the car and instructed to leave her purse behind. Id. at ¶ 8. Considering these facts,

we relied on Houghton to hold that the automobile exception permits an officer to

search a passenger’s purse after the officer ordered the passenger to exit from the car

and leave her purse behind. Id. at ¶ 19.

{¶20} Significantly, in Mercier we explained that the officer had “a right to

ensure that the purse was not removed from the authorized search area.” Id. We were

unequivocal that Houghton “emphasizes that the location of the property in the

automobile is the important factor.” (Emphasis added.) Id. at ¶ 18. And when we

discussed the privacy implications of the search of Mercier’s purse, we reasoned that

“heightened protection[s] afforded to a passenger against the search of his or her

person does not apply to the search of a passenger’s personal property found inside an 7 OHIO FIRST DISTRICT COURT OF APPEALS

automobile. The important issue is the location of the container within the

automobile.” (Emphasis added.) Id. at ¶ 14.

{¶21} Ohio caselaw interpreting Mercier makes clear that the automobile

exception is limited to containers within the vehicle when officers develop probable

cause to search the vehicle’s passenger compartment. See State v. Eiler, 5th Dist.

Tuscarawas No. 2015 AP 05 0023, 2016-Ohio-224, ¶ 32 (“because the purse was inside

the vehicle at the time probable cause to search existed, the instruction to Appellant

not to remove her purse does not violate the Fourth Amendment.”); State v. Abbuhl,

5th Dist. Tuscarawas No. 11AP030014, 2011-Ohio-6550, ¶ 15; State v. Raslovsky,

2020-Ohio-515, 152 N.E.3d 402, ¶ 24 (2d Dist.) (“While Raslovsky’s purse was in the

vehicle, probable cause arose that allowed officers to search the interior of the vehicle

and containers therein.”). Likewise, the Fourth Circuit relied on the automobile

exception and Houghton to uphold the search of a bag underneath a car because

probable cause to search the car for narcotics “extended to any containers within the

vehicle,” including the bag which was inside the car as officers smelled marijuana.

(Emphasis added.) United States v. Davis, 576 F.Appx. 292, 295 (4th Cir.2014).

{¶22} But here, Officer Clark testified that Lewis had exited the from car with

her purse before the officers established probable cause—“[s]he walked towards the

dead end towards a townhouse.” He further testified that she returned after the

officers arrested Dukes and initiated the car search. And she remained “in the middle

of the cul-de-sac,” roughly 25 feet from the officers searching the car. Furthermore,

she was cooperative throughout the search and made no furtive movements.

{¶23} Recently, the Idaho Supreme Court considered whether the automobile

exception justifies the search of a purse held by an individual standing near the car.

See State v. Maloney, 168 Idaho 936, 942, 489 P.3d 847 (2021). After a review of cases 8 OHIO FIRST DISTRICT COURT OF APPEALS

from around the nation addressing this “narrow issue,” the Maloney court explained

that “the location of the container at the time probable cause arises is dispositive of

whether the container is subject to the automobile exception.” Id. at 942 (collecting

cases). Because the Fourth Amendment requires “a container be within a vehicle at the

time probable cause develops for the automobile exception to apply,” the court held

that the exception was inapplicable where the container was removed from the vehicle

before probable cause was established. Id. at 943.

{¶24} We hold that the automobile exception did not justify the search of

Lewis’s purse, which was removed from the vehicle before officers developed probable

cause to search the car. This holding is consistent with the narrow and well-defined

automobile exception, which “extends no further than the automobile itself.” Collins

v. Virginia, ___U.S.___, 138 S.Ct. 1663, 1671, 201 L.Ed.2d 9 (2018).

{¶25} This holding is a narrow one. We are confident that this holding is

consistent with law enforcement’s interests in evidence gathering and prosecuting

criminal activity. Our holding does not address the authority of police to search

property that an individual tosses out of a car. See State v. Martin, 12th Dist. Warren

No. CA2018-09-105, 2019-Ohio-2792, ¶ 15 (“An individual forfeits his expectation of

privacy when he voluntarily abandons his property”), citing State v. Gould, 131 Ohio

St.3d 179, 2012-Ohio-71, 963 N.E.2d 136, ¶ 37. And we are not addressing instances of

sudden flight from a vehicle during a lawful stop. See State v. Kates, 169 Ohio App.3d

766, 2006-Ohio-6779, 865 N.E.2d 66 (10th Dist.) (“Fleeing from a police officer, who

is lawfully attempting to detain a suspect under the authority of Terry, is an

affirmative act that hinders or impedes the officer in performance of the officer’s duties

as a public official and is a violation of R.C. 2921.31.”).

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶26} Therefore, the trial court erred when it denied Lewis’s motion to

suppress. We sustain Lewis’s first assignment of error.

{¶27} We note that the trial court merged Lewis’s two possessing-a-fentanyl-

related-compound counts and her second trafficking-in-a-fentanyl-related-compound

count into her first trafficking count. Accordingly, she was never sentenced for those

three merged counts, and we lack jurisdiction to consider them. However, all four

counts relate to the substances recovered from the search of Lewis’s purse and our

reasoning in this appeal would apply to the three merged counts as well.

{¶28} In her second assignment of error, Lewis argues that her conviction is

against the manifest weight of the evidence. In her third assignment of error, she

challenges the trial court’s response to jury questions. And finally, in her fourth

assignment of error, Lewis argues that her sentence is contrary to law. These

assignments of error are moot, and we decline to address them. See App.R. 12(A)(1)(c).

III. Conclusion

{¶29} We sustain Lewis’s first assignment of error because the trial court erred

when it denied her motion to suppress. We reverse Lewis’s conviction and discharge

her from further prosecution. Her remaining assignments of error are moot.

Judgment reversed and appellant discharged.

ZAYAS, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.