[Cite as State v. Nocon, 2012-Ohio-395.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 10CA009921
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE TROY A. NOCON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 09CR078821
DECISION AND JOURNAL ENTRY
Dated: February 6, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} State Trooper Joel Smith was driving eastbound on the Ohio Turnpike when he
saw a van in front of him drive outside its lane four times. Trooper Smith stopped the van and
approached its front passenger-side window. As soon as the driver, Troy Nocon, rolled down the
window, Trooper Smith could smell marijuana. After explaining to Mr. Nocon why he had
stopped him, asking him to step out of the van, having him sit in the back of his vehicle, and
administering Miranda warnings, Trooper Smith asked Mr. Nocon about the smell. Mr. Nocon
told him that someone had smoked marijuana in the van earlier in the day and that there was still
marijuana in the van in two places. Trooper Smith led his police dog, Diego, around the van, and
Diego alerted on the driver’s door. Trooper Smith searched the van and found marijuana and
psilocyn. The Grand Jury indicted Mr. Nocon for possession of drugs and drug paraphernalia.
Mr. Nocon moved to suppress the evidence against him, arguing that Trooper Smith did not have 2
reasonable suspicion to stop him, but only stopped him because of his race and hairstyle. After
the trial court denied his motion, Mr. Nocon pleaded no contest to the charges. The trial court
accepted Mr. Nocon’s plea, found him guilty of the offenses, and sentenced him to two years in
prison. Mr. Nocon has appealed, arguing that the trial court incorrectly denied his motion to
suppress. We affirm because the smell of marijuana, Mr. Nocon’s statements, and Diego’s alert
each gave Trooper Smith probable cause to search the van.
MOTION TO SUPPRESS
{¶2} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶8. Generally, a reviewing court “must
accept the trial court’s findings of fact if they are supported by competent, credible evidence.”
Id. But see State v. Metcalf, 9th Dist. No. 23600, 2007-Ohio-4001, at ¶14 (Dickinson, J.,
concurring). The reviewing court “must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Burnside,
2003-Ohio-5372, at ¶8.
LEGALITY OF THE SEARCH
{¶3} Mr. Nocon’s first assignment of error is that Trooper Smith’s search of his van
was illegal because he started it before having probable cause. He has noted that, when Trooper
Smith asked for his driver’s license, he told the trooper that he had to retrieve it from the back of
the van. Trooper Smith, therefore, asked Mr. Nocon to unlock the side-passenger door, so that
he could open it to keep an eye on Mr. Nocon as he went into the back of the van. Mr. Nocon
has argued that the trooper conducted an illegal search when he opened the side-passenger door
of his van without his consent. 3
{¶4} It is reasonable for an officer who has a legitimate reason for detaining a person to
take measures “against an ambush from the rear.” State v. Evans, 67 Ohio St. 3d 405, 410
(1993). In this case, however, it is not necessary to determine whether Trooper Smith was
allowed to open the side-passenger door for safety reasons because “[t]he smell of marijuana,
alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to
conduct a search [of a motor vehicle].” State v. Moore, 90 Ohio St. 3d 47, syllabus (2000).
Trooper Smith testified that he had been a law enforcement officer for 13 years, that he had
received repeated training in smelling marijuana, and that he detected the smell of marijuana
emanating from the van as soon as Mr. Nocon opened the window. The trial court found his
testimony credible. Accordingly, Trooper Smith was allowed to open the side-passenger door of
the van based on the probable cause established by the smell of marijuana. State v. Tooson, 2d
Dist. No. 23290, 2009-Ohio-6269, at ¶14. Mr. Nocon’s first assignment of error is overruled.
CREDIBILITY
{¶5} Mr. Nocon’s second assignment of error is that the search of his vehicle was
illegal because the State’s probable cause evidence was not credible. He has argued that Trooper
Smith could not have smelled marijuana coming from the van because there was only a small
quantity in the van, it was sealed in a glass container, and it was windy.
{¶6} Just because there was only a small quantity of marijuana in the van does not
mean that the van did not smell like marijuana. After all, the smoking of the substance would
have consumed it. On the video recording of the stop, Mr. Nocon can be heard admitting to
Trooper Smith that someone had smoked marijuana in the van earlier that day. In addition, Mr.
Nocon has overlooked the fact that, besides the marijuana in the glass jar, the trooper also found
a partially-burnt marijuana cigarette in the van. We, therefore, conclude that there was sufficient 4
evidence to support the trial court’s credibility finding. Mr. Nocon’s second assignment of error
is overruled.
IMPOUNDMENT
{¶7} Mr. Nocon’s third assignment of error is that the search of his van was illegal
because the State should have been required to impound the vehicle and obtain a warrant before
searching it. According to Mr. Nocon, once he was secured in the back of Trooper Smith’s
vehicle, the trooper did not have authority to search his vehicle incident to his arrest.
{¶8} Mr. Nocon has confused the search-incident-to-arrest exception to the Fourth
Amendment’s warrant requirement with the automobile exception. Mr. Nocon is correct that
“[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332,
129 S. Ct. 1710, 1723 (2009). This case, however, involves the automobile exception, under
which, “[o]nce a law enforcement officer has probable cause to believe that a vehicle contains
contraband, he or she may search a validly stopped motor vehicle[.]” State v. Moore, 90 Ohio St.
3d 47, 51 (2000). Unlike the search-incident-to-arrest exception, the reason for the automobile
exception is that “[t]he inherent mobility of [an] automobile create[s] a danger that the
contraband [will] be removed before a warrant [can] be issued.” Id. at 52. Mr. Nocon’s third
assignment of error is overruled.
PROFILING
{¶9} Mr. Nocon’s fourth assignment of error is that the search of his vehicle was based
on unconstitutional profiling. He has noted that, when Trooper Smith was asked whether he had
noticed Mr. Nocon’s long hair at the time of the stop, the trooper answered: “Yeah. In a van 5
like that, that would be normal appearance.” Mr. Nocon has argued that the trooper’s answer
demonstrates that part of his reason for searching the van was his and the van’s appearance.
{¶10} Trooper Smith denied that he searched the van because of Mr. Nocon’s
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Nocon, 2012-Ohio-395.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 10CA009921
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE TROY A. NOCON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 09CR078821
DECISION AND JOURNAL ENTRY
Dated: February 6, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} State Trooper Joel Smith was driving eastbound on the Ohio Turnpike when he
saw a van in front of him drive outside its lane four times. Trooper Smith stopped the van and
approached its front passenger-side window. As soon as the driver, Troy Nocon, rolled down the
window, Trooper Smith could smell marijuana. After explaining to Mr. Nocon why he had
stopped him, asking him to step out of the van, having him sit in the back of his vehicle, and
administering Miranda warnings, Trooper Smith asked Mr. Nocon about the smell. Mr. Nocon
told him that someone had smoked marijuana in the van earlier in the day and that there was still
marijuana in the van in two places. Trooper Smith led his police dog, Diego, around the van, and
Diego alerted on the driver’s door. Trooper Smith searched the van and found marijuana and
psilocyn. The Grand Jury indicted Mr. Nocon for possession of drugs and drug paraphernalia.
Mr. Nocon moved to suppress the evidence against him, arguing that Trooper Smith did not have 2
reasonable suspicion to stop him, but only stopped him because of his race and hairstyle. After
the trial court denied his motion, Mr. Nocon pleaded no contest to the charges. The trial court
accepted Mr. Nocon’s plea, found him guilty of the offenses, and sentenced him to two years in
prison. Mr. Nocon has appealed, arguing that the trial court incorrectly denied his motion to
suppress. We affirm because the smell of marijuana, Mr. Nocon’s statements, and Diego’s alert
each gave Trooper Smith probable cause to search the van.
MOTION TO SUPPRESS
{¶2} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶8. Generally, a reviewing court “must
accept the trial court’s findings of fact if they are supported by competent, credible evidence.”
Id. But see State v. Metcalf, 9th Dist. No. 23600, 2007-Ohio-4001, at ¶14 (Dickinson, J.,
concurring). The reviewing court “must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Burnside,
2003-Ohio-5372, at ¶8.
LEGALITY OF THE SEARCH
{¶3} Mr. Nocon’s first assignment of error is that Trooper Smith’s search of his van
was illegal because he started it before having probable cause. He has noted that, when Trooper
Smith asked for his driver’s license, he told the trooper that he had to retrieve it from the back of
the van. Trooper Smith, therefore, asked Mr. Nocon to unlock the side-passenger door, so that
he could open it to keep an eye on Mr. Nocon as he went into the back of the van. Mr. Nocon
has argued that the trooper conducted an illegal search when he opened the side-passenger door
of his van without his consent. 3
{¶4} It is reasonable for an officer who has a legitimate reason for detaining a person to
take measures “against an ambush from the rear.” State v. Evans, 67 Ohio St. 3d 405, 410
(1993). In this case, however, it is not necessary to determine whether Trooper Smith was
allowed to open the side-passenger door for safety reasons because “[t]he smell of marijuana,
alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to
conduct a search [of a motor vehicle].” State v. Moore, 90 Ohio St. 3d 47, syllabus (2000).
Trooper Smith testified that he had been a law enforcement officer for 13 years, that he had
received repeated training in smelling marijuana, and that he detected the smell of marijuana
emanating from the van as soon as Mr. Nocon opened the window. The trial court found his
testimony credible. Accordingly, Trooper Smith was allowed to open the side-passenger door of
the van based on the probable cause established by the smell of marijuana. State v. Tooson, 2d
Dist. No. 23290, 2009-Ohio-6269, at ¶14. Mr. Nocon’s first assignment of error is overruled.
CREDIBILITY
{¶5} Mr. Nocon’s second assignment of error is that the search of his vehicle was
illegal because the State’s probable cause evidence was not credible. He has argued that Trooper
Smith could not have smelled marijuana coming from the van because there was only a small
quantity in the van, it was sealed in a glass container, and it was windy.
{¶6} Just because there was only a small quantity of marijuana in the van does not
mean that the van did not smell like marijuana. After all, the smoking of the substance would
have consumed it. On the video recording of the stop, Mr. Nocon can be heard admitting to
Trooper Smith that someone had smoked marijuana in the van earlier that day. In addition, Mr.
Nocon has overlooked the fact that, besides the marijuana in the glass jar, the trooper also found
a partially-burnt marijuana cigarette in the van. We, therefore, conclude that there was sufficient 4
evidence to support the trial court’s credibility finding. Mr. Nocon’s second assignment of error
is overruled.
IMPOUNDMENT
{¶7} Mr. Nocon’s third assignment of error is that the search of his van was illegal
because the State should have been required to impound the vehicle and obtain a warrant before
searching it. According to Mr. Nocon, once he was secured in the back of Trooper Smith’s
vehicle, the trooper did not have authority to search his vehicle incident to his arrest.
{¶8} Mr. Nocon has confused the search-incident-to-arrest exception to the Fourth
Amendment’s warrant requirement with the automobile exception. Mr. Nocon is correct that
“[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. 332,
129 S. Ct. 1710, 1723 (2009). This case, however, involves the automobile exception, under
which, “[o]nce a law enforcement officer has probable cause to believe that a vehicle contains
contraband, he or she may search a validly stopped motor vehicle[.]” State v. Moore, 90 Ohio St.
3d 47, 51 (2000). Unlike the search-incident-to-arrest exception, the reason for the automobile
exception is that “[t]he inherent mobility of [an] automobile create[s] a danger that the
contraband [will] be removed before a warrant [can] be issued.” Id. at 52. Mr. Nocon’s third
assignment of error is overruled.
PROFILING
{¶9} Mr. Nocon’s fourth assignment of error is that the search of his vehicle was based
on unconstitutional profiling. He has noted that, when Trooper Smith was asked whether he had
noticed Mr. Nocon’s long hair at the time of the stop, the trooper answered: “Yeah. In a van 5
like that, that would be normal appearance.” Mr. Nocon has argued that the trooper’s answer
demonstrates that part of his reason for searching the van was his and the van’s appearance.
{¶10} Trooper Smith denied that he searched the van because of Mr. Nocon’s
appearance, stating that it was because of the smell of marijuana, Mr. Nocon’s admission that
there was marijuana in the van, and Diego’s hit on the driver’s door. The trial court found his
testimony credible. Upon review of the record, we conclude that Mr. Nocon has failed to
demonstrate that Trooper Smith searched the van because of illegal profiling. His fourth
CHANGE IN LAW
{¶11} Mr. Nocon’s fifth assignment of error is that the law should be changed so that the
police are not allowed to search a person’s vehicle when the only probable cause the police can
establish is a violation of a minor misdemeanor. Specifically, he has argued that the police
should not have been allowed to keep searching his van after finding the marijuana that he told
Trooper Smith was in the van.
{¶12} If an accredited drug dog alerts to the presence of drugs in a vehicle, the officer
has probable cause to search the entire vehicle. State v. Calhoun, 9th Dist. No. 94CA005824,
1995 WL 255929 at *4 (May 3, 1995). As the Sixth District has explained, “[s]uch a dog is
trained to pick up the scent of narcotics and, hopefully, lead the handler directly to the source of
the scent. However, many factors may prevent the dog from getting to that source. Therefore,
the only practical rule is to permit a thorough search of the vehicle.” State v. Bolding, 6th Dist.
No. E-97-115, 1999 WL 334494 at *7 (May 28, 1999). The cases Mr. Nocon has cited,
involving the search of residences, fail to persuade us that the law should be changed. In any
event, considering that the Ohio Supreme Court has held that a drug dog alert gives an officer 6
probable cause to search a vehicle, we do not have authority to entertain Mr. Nocon’s argument.
See Blue Ash v. Kavanagh, 113 Ohio St. 3d 67, 2007-Ohio-1103, at ¶26. Mr. Nocon’s fifth
CONCLUSION
{¶13} The trial court correctly denied Mr. Nocon’s motion to suppress. The judgment
of the Lorain County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON FOR THE COURT 7
CARR, P.J. WHITMORE, J. CONCUR
APPEARANCES:
KENNETH N. ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.