State v. Olmstead

2018 Ohio 971

• Court: Ohio Court of Appeals
• Decided: March 15, 2018
• Docket: 17 COA 024
• Status: Published

Opinion

[Cite as State v. Olmstead, 2018-Ohio-971.]

OCOURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs- Case No. 17 COA 024 BRANDON S. OLMSTEAD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Ashland Municipal Court, Case No. 16 CRB 01236

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 15, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW N. BUSH JOSEPH P. KEARNS, JR. ASSISTANT LAW DIRECTOR MASON, MASON & KEARNS 1213 East Main Street Post Office Box 345 Ashland, Ohio 44805 153 West Main Street Ashland, Ohio 44805 Ashland County, Case No. 17 COA 024 2

Wise, P. J.

{¶1} Appellant Brandon S. Olmstead appeals following his conviction, in the

Ashland Municipal Court, Ashland County, for possession of drug paraphernalia and

possession of marijuana. Appellee is the State of Ohio. The relevant facts leading to this

appeal are as follows.

{¶2} On November 9, 2016, Detective Brian Evans of the Ashland Police

Department was in possession of a warrant to search a residence located at 139 Maple

Street, suspected of being the site of illegal drug trafficking. The search warrant also listed

the person of Desmond Evege and his cell phone. That afternoon, Detective Evans and

another officer, Detective Rohn, drove to the residence in question and set up a watch for

Evege. Suppression Tr. at 25, 29. At some point shortly after 3:00 PM, Det. Evans

observed Evege and “some other individuals” exit the house, head down Maple Street

and then turn onto Arthur Street. Tr. at 25. Det. Evans also had another officer, Patrolman

Abraham Neumann, in the area ready to assist. However, Det. Evans was not certain if

appellant was with Evege when Evege walked out of the house. Tr. at 26.

{¶3} Det. Evans then proceeded onto Arthur Street, at which point he observed

that appellant and Evege were standing with two other male individuals in or near a BP

gas station parking lot. Det. Evans exited his cruiser and went over to speak with Evege.

Tr. at 26. When he first made contact with Evege, appellant was standing closer to Main

Street, Evege was in the center, and the two others were closer to Maple Street, and all

were within the space of a ten-foot line. See Tr. at 27, 30-31. Appellant appears to have

then drifted away somewhat from the group. Evans directed his attention to Evege; Ashland County, Case No. 17 COA 024 3

meanwhile, appellant at that point happened to be in closer proximity to Patrolman

Neumann.

{¶4} Det. Evans said that as he came upon the group, he smelled an odor of

burnt marijuana, although he could not determine at that time who in the group it was

actually coming from. Tr. at 28, 32. But during Det. Evans’ interaction with Evege, the

officer could smell the odor of burnt marijuana coming from Evege’s person. Tr. at 32.

Evans at some point directed Neumann to search appellant. Tr. at 10, 29. In the

meantime, Det. Rohn was occupied with the two other individuals in the group. Patrolman

Neumann later recalled that appellant was approximately ten yards north of "the group."

Tr. at 6. When Neumann came to appellant he smelled the odor of burnt marijuana. Tr.

at 7. Patrolman Neumann at some point found, on or about appellant, a cellophane

wrapper with marijuana “roaches” inside. Tr. at 7.

{¶5} Appellant was thereafter charged with violating Ashland City Ordinance

513.12(C)(1), possession of drug paraphernalia, and 513.03(C)(2), possession of

marijuana.

{¶6} Appellant filed a motion to suppress the items found on his person. A

hearing was conducted on the issue on April 25, 2017. Det. Evans, Patrolman Neumann,

and appellant testified. Appellant presented a different version of events, testifying in

particular that the officers quickly came upon the group of men and handcuffed Evege

and him simultaneously. After said hearing, the trial court overruled the motion in its

entirety. The court inter alia found appellant’s testimony “completely devoid of credibility.”

Judgment Entry, May 30, 2017, at 3. Ashland County, Case No. 17 COA 024 4

{¶7} Appellant pled no contest to both charges on June 06, 2017 and was

convicted, receiving a sentence of 15 days on each charge, concurrent, $150.00 fine on

each case, plus costs, and a one-year license suspension on the marijuana possession

charge.

{¶8} Appellant filed a notice of appeal on June 30, 2017. He herein raises the

following sole Assignment of Error:

{¶9} “I. THE TRIAL COURT ERRED WHEN IT RULED THAT PHYSICAL

EVIDENCE WAS PROPERLY OBTAINED BY LAW ENFORCEMENT.”

I.

{¶10} In his sole Assignment of Error, appellant contends the trial court erred in

denying his motion to suppress the evidence against him obtained as a result of the

events of November 9, 2016. We disagree.

{¶11} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437

N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry

(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d

623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d Ashland County, Case No. 17 COA 024 5

726. The United States Supreme Court has held that as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal. See

Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911.

{¶12} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271.

Initial Contact with Officers

{¶13} Police officers are permitted to engage in “consensual encounters” with

citizens without running afoul of Fourth Amendment prohibitions on searches and

seizures. See United States v. Hinojosa, 534 Fed.Appx. 468, 470 (6th Cir. 2013), citing

Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United

States v. Waldon, 206 F.3d 597, 602–03 (6th Cir. 2000). A consensual encounter occurs

“* * * when the police merely approach a person in a public place, engage the person in

conversation, request information, and the person is free not to answer and walk away.”

State v. Daniels, 5th Dist. Stark No. 2002CA00290, 2003–Ohio–2492, ¶ 12, quoting State

v. Taylor (1995), 106 Ohio App.3d 741, 747, 667 N.E.2d 60. We review the issue of the

existence of a consensual encounter by examining the totality of the circumstances. See

Florida v. Royer (1983), 460 U.S. 491, 506–507, 103 S.Ct. 1319, 75 L.Ed.2d 229.

{¶14} Upon review of the record in the case sub judice, while Det. Evans had a

warrant for Evege, we find the officers’ initial contact with appellant near the BP gas Ashland County, Case No. 17 COA 024 6

station constituted a consensual encounter. However, we hold that once Det. Evans,

having exited his cruiser, detected a smell of burnt marijuana from the group, his directive

to Neumann to stop and search appellant converted the encounter to a Terry stop.

Terry Stop

{¶15} Because some contacts that start out as constitutional may at some point

cross a line and become an unconstitutional seizure (see United States v. Weaver, 282

F.3d 302, 309 (4th Cir. 2002)), we next consider the constitutionality of Patrolman

Neumann’s pedestrian stop of appellant.

{¶16} A Terry stop is an investigatory detention, more intrusive than a consensual

encounter, but less intrusive than a formal custodial arrest, and such a stop is valid if the

officer had a reasonable and articulable suspicion of criminal activity. See State v. Stonier,

5th Dist. Stark No. 2012 CA 00179, 2013–Ohio–2188, ¶ 43. “In determining whether a

temporary seizure without probable cause is itself permissible, Terry established that the

officer must have reasonable articulable suspicion of criminal activity based on ‘specific

and articulable facts’ and ‘rational inferences from those facts[.]’ Id. at 21. This initial

inquiry must be satisfied in order to justify any detention at its inception.” Brunswick v.

Ware, 9th Dist. Medina No. 11CA0114-M, 2011-Ohio-6791, ¶ 18 (Belfance, P. J.,

dissenting).

{¶17} In Patrolman Neumann’s testimony at the suppression hearing, he stated

that when he first arrived at the area of the BP station, appellant was standing “probably

maybe ten yards *** north of the group.” Tr. at 6. Neumann then walked toward appellant.

Id. The prosecutor at the hearing asked appellant: “So again, in this instance when you

came upon Mr. Olmstead you smelled the odor of burnt marijuana, is that correct?” Tr. at Ashland County, Case No. 17 COA 024 7

7. Neumann answered: “That is correct.” Id. During cross-examination, Neumann added

that appellant “smelled of the odor of marijuana as well.” Tr. at 10 (emphasis added). As

such, we find no merit in appellant’s insistence that Neumann never stated that he smelled

the odor of burnt marijuana coming from appellant’s person. See Appellant’s Brief at 9.

{¶18} It is presently undisputed that Det. Evans did not have a search warrant for

appellant’s person (only for Evege), and even though appellant was not far from the house

at 139 Maple Street, Det. Evans could not state with 100% certainty that appellant had

recently left said residence. However, the smell of marijuana gives rise to a reasonable

suspicion that the person stopped is engaged in criminal activity. State v. Hopper, 8th

Dist. Cuyahoga No. 91269, 2009-Ohio-2711, ¶ 20, citing State v. Moore, 90 Ohio St.3d

47, 53, 734 N.E.2d 804, 2000-Ohio-10. While in the fluidity of these events there appears

to have been a brief lapse of time between Det. Evans’ detection of the burnt marijuana

smell emanating from the general group and the point at which Neumann walked up to

appellant, about ten yards from the group, and noticed a marijuana smell on him, we

conclude the State showed via the suppression testimony a reasonable articulable

suspicion of criminal activity justifying the Terry stop of appellant.

{¶19} Appellant also urges that Neumann was not shown to have been qualified

to testify as to the smell of burnt marijuana. However, Neumann noted as follows:

Well, obviously, I went to high school and I was around people that

smoked marijuana, and I have been around people that smoked marijuana

in the military, and we never burned marijuana in my training academy, but

I have made - - I have been here ten years, going on ten years in October, Ashland County, Case No. 17 COA 024 8

but I have been around cars that have been stopped with burnt marijuana

in the car prior to the car being stopped.

{¶20} Tr. at 7.

{¶21} The Ohio Rules of Evidence give a trial judge broad discretion concerning

the admissibility of evidence presented at a suppression hearing. State v. Diaz, 5th Dist.

No. 2016 CA 00113, 2017-Ohio-262, 81 N.E.3d 866, ¶ 27. We find the State sufficiently

established Neumann’s qualifications to testify at the suppression regarding the smell of

Search of Appellant’s Person

{¶22} Finally, we consider whether Patrolman Neumann properly expanded the

Terry stop into a search of appellant’s person.1 In Moore, supra, the Ohio Supreme Court

held that the smell of marijuana, alone, by a person qualified to recognize the odor, is

sufficient to establish probable cause to conduct a search of a vehicle or person. Id. at

53. The Court also aptly recognized: “Because marijuana and other narcotics are easily

and quickly hidden or destroyed, a warrantless search may be justified to preserve

evidence.” Id. at 52, citing United States v. Wilson (C.A.1, 1994), 36 F.3d 205 (additional

citations omitted). Given Neumann’s aforecited testimony and the additional

circumstances of appellant’s proximity to Evege, the subject of a drug-related search

warrant at the time in question, we find probable cause existed to permit a warrantless

search of appellant’s person.

1 We note Neumann did not specifically testify as to how or where appellant was carrying the contraband items. Although appellant seems to take issue with this in his brief, the question of the sufficiency of the evidence going to the possession offenses is not before us. Ashland County, Case No. 17 COA 024 9

Conclusion

{¶23} Accordingly, upon review, we hold the trial court did not err in denying

appellant's suppression motion in regard to the discovery and seizure of the marijuana

roaches at issue.

{¶24} Appellant's sole Assignment of Error is therefore overruled.

{¶25} For the reasons stated in the foregoing opinion, the judgment of the Ashland

Municipal Court of Ashland County, Ohio, is hereby affirmed.

By: Wise, P. J.

Gwin, J., and

Hoffman, J., concur.

JWW/d 0226