State v. Owensby

2022 Ohio 1702

• Court: Ohio Court of Appeals
• Decided: May 23, 2022
• Docket: CA2021-08-092
• Status: Published

Opinion

[Cite as State v. Owensby, 2022-Ohio-1702.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellant, : CASE NO. CA2021-08-092

: OPINION - vs - 5/23/2022 :

CORTEZ OWENSBY, :

Appellee. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2020-08-0998

Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant Prosecuting Attorney, for appellant.

Michele Temmel, for appellee.

PIPER, J.

{¶1} Appellant, the state of Ohio, appeals a decision of the Butler County Court of

Common Pleas granting the motion to suppress of appellee, Cortez Owensby.

I. Facts and Procedural History

{¶2} On July 2, 2020, Detective Mark Hoyle and Detective Marco Caito were on

patrol in an unmarked vehicle at the intersection of Clark Street and Manchester Avenue in

Middletown, Ohio. At some point, Detective Caito received a phone call from a confidential Butler CA2021-08-092

informant ("CI") who had proven to be highly reliable on prior occasions reporting that

Owensby, a known drug offender, had "a large quantity of drugs" and was leaving the

apartments located at 1505-1507 Manchester Avenue in a white car.

{¶3} Shortly after the CI's call, Detective Hoyle observed Owensby in the front

passenger seat of a white Kia driven by Brandy Carmody. Consistent with the CI report,

the white Kia was seen leaving the Manchester Avenue Apartments. The vehicle then drove

past the detectives on Clark Street. Detective Hoyle began following the vehicle and

reported the license plate information to another nearby unit on patrol, Officer Dennis

Jordan.

{¶4} Officer Jordan ran the plate information and learned that the vehicle was

registered to Carmody. He also learned that she had a suspended driver's license and an

active warrant for her arrest. Within seconds, Officer Jordan observed the white Kia drive

past him.

{¶5} Officer Jordan stopped the white Kia at 4:24 p.m. near Gardner Park.

Carmody was arrested without incident by another officer. Based upon a bulletin he

received earlier in the day, Officer Jordan suspected that Owensby may be in the

possession of a weapon. In that bulletin, the Franklin Police Department reported that

Owensby had recently displayed a gun and threatened Carmody. With that information,

Officer Jordan ordered Owensby out of the car and conducted a weapons pat down. Officer

Jordan felt a large wad of cash in Owensby's pocket but did not remove it at that time.

Owensby admitted he was carrying approximately $2,500 in cash and told Officer Jordan it

was his "stimulus money." Following the weapons pat down, Officer Jordan concluded that

Owensby did not have a weapon and ordered him to sit on a nearby planter.

{¶6} Officer Jordan deployed his canine partner, Koda, and conducted a standard

undirected search of the vehicle. He then commanded Koda to conduct a directed search

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where he pointed to specific areas for Koda to search. Both times, Koda alerted on the

front passenger seat where Owensby had been seated. The canine sniff took

approximately two minutes. At that point, Owensby had been detained approximately 13

minutes. During the canine sniff, Owensby appeared to be "excessively nervous" and was

visibly shaking with his head placed in his hands.

{¶7} Based upon the canine alert, Officer Jordan searched the vehicle for

narcotics. After approximately 13 minutes, Officer Jordan located a drawstring or sling bag

containing approximately 30 grams of marijuana, a minor misdemeanor amount of the

drug.1 Owensby admitted that the marijuana was his. However, Officer Jordan stated that

Owensby remained agitated and extremely nervous.

{¶8} Approximately 27 minutes into the stop, Officer Smith, a former corrections

officer, arrived as backup. Officer Smith was new to the Middletown Police Department and

had only been on the job for a few months. Officer Jordan instructed Officer Smith to do a

"jail type" search on Owensby, meaning that he wanted him thoroughly searched. In the

meantime, Officer Jordan continued searching the passenger compartment for more

contraband.

{¶9} Officer Smith reported back to Officer Jordan that he had searched Owensby

but did not find anything. Owensby was then placed in the back of Officer Smith's cruiser

but was not handcuffed. Officer Jordan then turned off his body microphone so that he

could privately call Detective Hoyle. The two evaluated whether the drugs could still be on

Owensby and discussed what a "large amount" of drugs meant in context of the tip from the

CI. Officer Jordan concluded that the drugs had to be in Owensby's possession and

1. Possession of marijuana in an amount less than 100 grams is a minor misdemeanor. R.C. 2925.11(C)(3)(a)-(b).

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decided to search him personally.

{¶10} Shortly after the "jail type" search, Officer Jordan conducted another search

of Owensby, which he described as a "credit card" search. Officer Jordan explained that

he slid his hands between Owensby's thighs and along his groin. During this process,

Officer Jordan felt a hard, irregular shaped lump with sharp edges concealed in the fly of

Owensby's underwear. Based on his training and experience, Officer Jordan knew that the

fly of men's underwear was a common place to conceal drugs and he immediately

suspected the package contained drugs. Officer Jordan then removed the object and

placed Owensby under arrest. Lab testing confirmed that the package contained

methamphetamine and fentanyl.

{¶11} Owensby was indicted on one count of possession of a fentanyl-related

compound and one count of aggravated possession of drugs.2 Owensby moved to

suppress evidence pursuant to Crim.R. 12(C)(3) and a hearing was held before the court.

At the hearing, Officer Jordan and Detective Hoyle testified. The court admitted Officer

Jordan's cruiser-cam video as an exhibit.

{¶12} Following the hearing, the trial court granted the motion to suppress and

issued a written entry. The state now appeals the trial court's decision, raising one

assignment of error.

II. Appeal

{¶13} THE TRIAL COURT ERRED AS A MATTER OF WELL-ESTABLISHED

FOURTH AMENDMENT LAW WHEN IT GRANTED OWENSBY'S MOTION TO

SUPPRESS THE METHAMPHETAMINE AND FENTANYL POLICE RECOVERED FROM

OWENSBY'S UNDERWEAR.

2. Owensby was also charged with two additional counts in the same indictment for separate conduct that occurred on July 28, 2020. However, those charges are not applicable to the facts in this appeal.

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{¶14} In its sole assignment of error, the state alleges the trial court erred by

suppressing the methamphetamine and fentanyl recovered from Owensby's underwear.

The constitutionality of the search in this case involves consideration of several different

phases of the entire incident culminating in the final "credit card" search that led to the

discovery of drugs on Owensby's person.

{¶15} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Shaibi, 12th Dist. Warren No. CA2020-07-038, 2021-

Ohio-1352, ¶ 24. The trial court, as the trier of fact, is in the best position to weigh the

evidence to resolve factual questions and evaluate witness credibility. State v. Casey, 12th

Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶ 16. Therefore, when reviewing a trial

court's decision on a motion to suppress, this court is bound to accept the trial court's

findings of fact if they are supported by competent, credible evidence. State v. Lynn, 12th

Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-Ohio-3335, ¶ 15. "An

appellate court, however, independently reviews the trial court's legal conclusions based on

those facts and determines, without deference to the trial court's decision, whether as a

matter of law, the facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist.

Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.

{¶16} The Fourth Amendment to the United States Constitution and Article I, Section

14 of the Ohio Constitution prohibit unreasonable searches and seizures. Bowling Green

v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563 at ¶ 11. The touchstone of the Fourth

Amendment is reasonableness. State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶ 14,

citing Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801 (1991). A passenger in an

automobile involved in a traffic stop is "seized" and may challenge the constitutionality of

the stop. Brendlin v. California, 551 U.S. 249, 251, 127 S.Ct. 2400 (2007). Where a law

enforcement officer has probable cause or an articulable, reasonable suspicion to stop a

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motorist for any criminal violation, including a minor traffic violation, the stop is

constitutionally valid. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996); accord State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23.

{¶17} The establishment of probable cause requires only a probability or substantial

chance of criminal activity, not an actual showing of such activity. State v. Pfeiffer, 12th

Dist. Butler No. CA2003-12-329, 2004-Ohio-4981, ¶ 23. "Probable cause is determined by

examining the historical facts, i.e., the events leading up to a stop or search, 'viewed from

the standpoint of an objectively reasonable police officer.'" Godwin, 2006-Ohio-3563 at ¶

14, quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657 (1996). "[P]robable

cause is a fluid concept—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set of legal rules." Illinois v.

Gates, 462 U.S. 213, 232, 103 S.Ct. 2317 (1983).

{¶18} The reasonable suspicion standard, on the other hand, is a less demanding

standard than probable cause but still requires more than an officer's undeveloped

suspicion or hunch. State v. Moore, 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-

4908, ¶ 33. Reasonable suspicion is "based on the totality of circumstances 'viewed

through the eyes of the reasonable and prudent police officer on the scene who must react

to events as they unfold.'" State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, ¶ 10,

quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, (1991).

A. Reasonableness of stop and pat down undisputed

{¶19} We begin our analysis by noting that there is no dispute concerning the

reasonableness of the initial stop and the weapons pat down on Owensby. In this case,

Officer Jordan stopped the vehicle because he was aware that Carmody had a warrant for

her arrest and was driving on a suspended license. State v. Watts, 12th Dist. Butler No.

CA2005-08-364, 2007-Ohio-221, ¶ 13 (stop for driving on a suspended license); State v.

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Lung, 12th Dist. Clermont No. CA2018-12-088, 2019-Ohio-2962, ¶ 23 (stop for driving on a

suspended license); State v. Thomas, 6th Dist. Williams No. WM-18-005, 2019-Ohio-2654,

¶ 7 (officer may lawfully stop a vehicle to make an arrest).

{¶20} Furthermore, the weapons pat down of Owensby was permissible for multiple

reasons. First, there is no dispute that Officer Jordan had received a bulletin that Owensby

displayed a gun and threatened Carmody earlier that day. "Once a lawful stop has been

made, the police may conduct a limited protective search for concealed weapons if the

officers reasonably believe that the suspect may be armed or a danger to the officers or to

others." State v. Jimenez, 12th Dist. Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 14.

In this case, Officer Jordan had reasonable suspicion that Owensby was in the possession

of a weapon based upon that bulletin. Furthermore, Officer Jordan was also aware that

Owensby was a known drug offender and that a highly reliable CI had reported that

Owensby had a "large quantity of drugs." As the supreme court has previously held, an

officer's right to conduct a weapons pat down is "virtually automatic when individuals

suspected of committing a crime like drug trafficking, for which they are likely to be armed."

State v. Evans, 67 Ohio St.3d 405, 413 (1993). Accordingly, there was no constitutional

infirmity with the vehicle stop or the weapons pat down of Owensby.

B. Contested aspects of the stop

1. Trial court's decision

{¶21} Consistent with what we listed above, the trial court did not grant the motion

to suppress based upon the stop or the weapons pat down.3 Instead, the trial court focused

its analysis on the "credit card" search leading to the discovery of the drugs. In so doing,

the trial court did not address whether Officer Jordan or Officer Smith had probable cause

3. The trial court did discuss the canine sniff but did not render any conclusions of law.

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to search Owensby. Instead, the trial court's analysis rested almost entirely upon the fact

that Officer Smith failed to locate any drugs on Owensby during the "jail type" search. The

trial court found that since Officer Smith's "jail type" search revealed nothing, that any

"reasonable suspicion" that Owensby was in the possession of drugs had dissipated.4

Therefore, the trial court ruled that Officer Jordan was not permitted to conduct the "credit

card" search and suppressed the evidence from that search. However, in so doing, the trial

court did not explain why the suspicion of criminality dissipated or how the discovery of

marijuana should lead Officer Jordan to abandon his suspicions of criminal activity. The

trial court merely stated:

A review of the totality of the circumstances, especially after watching the video of the entire stop, does not show, in the Court's opinion, that Officer Jordan had a reasonable articulable suspicion that the defendant was engaged in criminal activity. Even though the CI had provided information in the past that had led to the arrest and conviction of other individuals, when numerous searches of the car and the pat-down and subsequent "jail-search" failed to uncover any other contraband other than the minor misdemeanor amount of marijuana found on the initial search of the car, any reasonable and articulable suspicion was gone. The $2500 in cash found on the defendant certainly could have been from his stimulus check.

{¶22} The trial court went on to conclude, that "[e]ven if * * * reasonable and

articulable suspicion was still present," only a further brief detention would have been

permissible. The trial court determined that this was not a brief detention and discussed

certain details contained in the cruiser cam video, such as how the officers searched the

vehicle on their "hands and knees."5 With those facts in mind, the trial court found that

4. For reasons unclear, the trial court conducted a Terry analysis rather than a probable cause analysis.

5. The mere duration of a stop, although relevant, is not determinative when an officer is investigating for reasonable suspicion of criminal activity. "In determining if an officer completed these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation." State v. Grenoble, 12th Dist. Preble No. CA2010-09-011, 2011-Ohio-2343, ¶ 28. E.g., State v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184 (canine sniff 23 minutes after traffic stop was not unconstitutional); State v.

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Owensby's continued detention and the search that led to the discovery of the drugs were

impermissible under the Fourth Amendment and granted the motion to suppress.

2. Owensby's arguments on appeal.

{¶23} Unsurprisingly, Owensby agrees with the trial court's decision granting his

motion to suppress. Although he agrees that the initial stop and weapons pat down were

permissible, he argues that his "continued detention and warrantless searches [were]

blatantly unconstitutional."

{¶24} Owensby further argues that the court was "spot on when it stated that after

the finding of marijuana and $2,500.00 in stimulus money, any reasonable suspicion that

Mr. Owensby was engaged in criminal activity was extinguished."6 Thereafter, Owensby

claims that Officer Jordan "mistakenly" instructed Officer Smith to conduct the "jail type"

search. Owensby claims that Officer Jordan lacked probable cause to secure a warrant for

the search and argues there were no exigent circumstances to justify the warrantless search

of his person. He further maintains that the "jail search" revealed "absolutely nothing" and

alleges he was illegally detained and searched when Officer Jordan conducted the "credit

card" search that led to the discovery of the drugs.

3. The state's argument on appeal

{¶25} The state disagrees with nearly every aspect of the trial court's decision, citing

Beltran, 12th Dist. Preble No. CA2004-11-015, 2005-Ohio-4194 (canine sniff 42 minutes after traffic stop was not unconstitutional); State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353 (canine sniff 28 minutes after traffic stop was not unconstitutional). Furthermore, once Officer Jordan had probable cause, he could detain Owensby "as long as reasonably necessary to complete the search of the vehicle." State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, ¶ 20. Officer Jordan had probable cause to search the vehicle when the dog alerted, which then later extended to probable cause to search Owensby's person as facts were developed and reviewed during the investigation, i.e., the discovery of marijuana yet no "large amount" of drugs found in the vehicle consistent with the otherwise verified information from the CI.

6. Owensby does not adequately explain why "reasonable suspicion" should have ended at this point. After all, the search of the vehicle did reveal the presence of marijuana. Furthermore, the record reflects that Koda was trained to detect not just marijuana, but also crack, cocaine, methamphetamine, and heroin.

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both flaws in the court's legal analysis and its factual determinations.7 The state maintains

that the stop and initial pat down were valid. Following chronologically, the state details

each aspect of the stop leading to the eventual conclusion that Officer Jordan possessed

probable cause to search Owensby for drugs and that a warrantless search was necessary

based upon exigent circumstances.

C. Analysis

{¶26} Based upon a thorough review of the record, we find the trial court erred by

granting Owensby's motion to suppress. Because the continuing chain of events leading

up to the warrantless searches and discovery of the drugs are relevant to the issue of

probable cause, we will review each aspect of the stop in succession. In general, courts

should be mindful that, as investigations unfold, the facts and circumstances may change,

and the duration of engagement reasonably expanded.

1. Canine sniff

{¶27} After Carmody was arrested, Officer Jordan reported Owensby's information

to dispatch and was waiting to learn if Owensby had any warrants for his arrest or if he had

the ability to drive the vehicle away from the scene. Therefore, Officer Jordan asked

Owensby to sit on a nearby planter next to the park. Officer Jordan then deployed Koda to

conduct a canine sniff of the white Kia because he had a reasonable and articulable

suspicion that Owensby was involved in criminal activity based upon the tip from the CI.

State v. Bunn, 12th Dist. Preble No. CA2011-08-009, 2012-Ohio-2151, ¶ 22 (informant's tip

provided reasonable suspicion to investigate criminal activity). Moreover, a lawfully

detained vehicle may be subjected to a canine sniff of the vehicle's exterior even without

7. For example, the state criticizes the trial court's focus on the length of the cruiser cam video. Although the trial court stated that the search lasted 50 minutes, the state maintains that Owensby was detained for only 35 minutes until establishing probable cause. The state maintains that the 50-minute cruiser cam video contains events occurring after the arrest, such as the time for towing Carmody's vehicle from the scene.

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the presence of a reasonable suspicion of drug-related activity. State v. Cochran, 12th Dist.

Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 25. This is because an "exterior sniff by a

trained narcotics dog to detect the odor of drugs is not a search within the meaning of the

Fourth Amendment to the Constitution." Id.

{¶28} As noted above, the trial court did not issue any conclusions of law concerning

this aspect of the stop. However, because Owensby claims his continued detention was

"blatantly unconstitutional," we find it necessary to address further. That is, despite his

assertions otherwise, there is no merit to Owensby's claim that the continued stop and

investigation violated his constitutional rights.

{¶29} At the point of the canine sniff, Owensby was legally detained, and Officer

Jordan had reasonable suspicion that Owensby was engaged in criminal activity,

specifically drug-related activity. There is no evidence that the stop was unconstitutionally

prolonged or otherwise impermissible. Koda, Officer Jordan's canine partner, was on patrol

with Officer Jordan and was deployed in less than 10 minutes after the stop. Furthermore,

Owensby was a known drug offender and Officer Jordan had knowledge of the report from

the CI. As a result, not only was the canine sniff "not a search," but Officer Jordan also

possessed reasonable suspicion of drug-related activity and was permitted to dispatch his

canine unit.

2. Warrantless search of the vehicle (automobile exception)

{¶30} Once deployed, Koda quickly alerted Officer Jordan to the presence of

narcotics. There is ample case law that when a trained narcotics dog alerts to the presence

of drugs from a lawfully detained vehicle, an officer has probable cause to search the entire

vehicle for contraband. State v. Maffey, 12th Dist. Clermont No. CA2020-08-045, 2021-

Ohio-2460, ¶ 31; State v. Cruz, 12th Dist. Butler No. CA2013-10-008, 2014-Ohio-4280, ¶

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15; State v. Dominguez, 12th Dist. Preble No. CA2011-09-010, 2012-Ohio-4542, ¶ 22.8

Accordingly, once Koda alerted to the presence of narcotics, Officer Jordan was permitted

to search the vehicle without a search warrant.

{¶31} During this search, Officer Jordan searched the main cabin of the car, the

trunk, and other items found in the car, such as a purse. Officer Jordan was later joined by

two additional officers who assisted in the search of the vehicle. Officer Jordan noted that

Owensby appeared excessively nervous during the search. Eventually, Officer Jordan

located a drawstring or sling bag containing marijuana on the passenger side of the vehicle

where Owensby had been seated. Owensby admitted the marijuana was his but remained

agitated and excessively nervous.

3. Searches of Owensby

{¶32} After the discovery of the marijuana, and with all the information he had

available to him at the time, Officer Jordan asked Officer Smith, a less experienced officer,

to conduct a "jail type" search of Owensby's person.

{¶33} The decision to conduct a search under these circumstances is reasonable

under the Fourth Amendment if: (1) probable cause exists to conduct the search, and (2)

an exception to the warrant requirement applies. State v. Young, 12th Dist. Warren No.

CA2011-06-066, 2012-Ohio-3131, ¶ 17. "If the state fails to satisfy either step, the evidence

seized in the unreasonable search must be suppressed." Id.

{¶34} As noted above, probable cause does not require the same type of specific

evidence of each element of the offense as would be needed to support a conviction. State

v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179 ¶ 73. Instead, probable cause is a fluid

concept assessing probabilities. Gates, 462 U.S. at 231. In determining whether a law

8. This is known as the "automobile exception" and is a well-established exception to the need for a warrant. Maffey at ¶ 21.

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enforcement officer possessed probable cause to conduct a search, a court must review

the totality of the circumstances known to the officer at the time of the search. State v.

Aslinger, 12th Dist. Preble No. CA2011-11-014, 2012-Ohio-5436, ¶ 13.

a. The two probable cause searches of Owensby were permissible

{¶35} The trial court did not go into specific detail concerning the "jail type" search

of Owensby that was conducted by Officer Smith. The trial court noted that the "jail type"

search was more intrusive than the prior weapons pat down but did not address whether

the search was supported by probable cause. In any event, since Officer Smith was unable

to locate any contraband on Owensby, the trial court concluded that all "reasonable

articulable suspicion" that Owensby was engaged in criminal activity had dissipated and

suppressed the evidence discovered during the subsequent "credit card" search.9

i. "Jail type" search

{¶36} Although Officer Jordan had probable cause to search the entire vehicle under

the automobile exception, the canine hit alone was not enough to establish probable cause

to search Owensby's person. State v. Chapman, 7th Dist. Belmont No. 18 BE 0004, 2019-

Ohio-3339, ¶ 51-53 (no appellate court in Ohio has held that a canine hit, alone, provides

sufficient probable cause to search the occupants of a vehicle), citing State v. Young, 12th

Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶ 22-23 (canine hit on a vehicle is one

factor in the totality of the circumstances test applied to determine the existence of probable

cause). However, this changed, at the very latest when Officer Jordan located the

marijuana. When Officer Jordan found the marijuana, he had probable cause to search

Owensby's person. State v. Moore, 90 Ohio St.3d 47, 50-51 (2000); State v. Blevins, 8th

9. The trial court also determined that there were no exigent circumstances to justify the search because the stop was a very short drive from the Middletown Police Department and Municipal Court where a judge might have been presented with an affidavit in support of a search warrant.

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Dist. Cuyahoga No. 103200, 2016-Ohio-2937, ¶ 27.

{¶37} In Moore, a police officer stopped a defendant for a traffic violation. Moore at

49. When the defendant rolled down his window, the officer detected the strong odor of

fresh burnt marijuana coming from the vehicle. Id. at 47. When the defendant stepped out

of the vehicle, the officer also detected the odor on the defendant. Id. at 51. The officer

then searched the defendant and the defendant's person, finding drug paraphernalia and

marijuana. Id. at 53.

{¶38} The supreme court accepted review and considered the question of whether

"the odor of burnt marijuana, alone, [was] sufficient to provide probable cause to search a

defendant's motor vehicle" and a defendant's person. Id. at 48. The supreme court

answered affirmatively and upheld both searches because it found that the smell of

marijuana alone by an officer experienced in smelling it was sufficient probable cause to

search the defendant's vehicle and person. Id. at ¶ 50.

{¶39} The facts in this case are not the same as the facts in Moore because there

is no indication that Owensby smelled of marijuana. However, there is a more analogous

case from our sister district that discusses Moore when marijuana is actually observed by

law enforcement. In Blevins, the Eighth District found an officer had probable cause to

search a defendant after smelling marijuana and then observing the drug in plain view. 10

Blevins, 2016-Ohio-2937 at ¶ 35. Similar to this case, the officer in Blevins did not state

that he smelled marijuana on the defendant's person, rather the court determined the officer

had probable cause to search the defendant's person because he had actually seen the

marijuana in the car. Id. In other words, the court found that the facts were "even stronger

than they were in Moore" because the officer did not just smell marijuana, he saw it in plain

10. It is no consequence that possession of marijuana under 100 grams is a minor misdemeanor. State v. Perryman, 8th Dist. Cuyahoga No. 82965, 2004-Ohio-1120, ¶ 19.

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view. Id.

{¶40} In this case, Officer Jordan found Owensby's marijuana during the valid

search of the vehicle and Owensby admitted the drugs were his. As in Blevins, this is

enough to constitute probable cause to search Owensby's person. Furthermore, the

discovery of marijuana was not the only fact that supported probable cause. By the time

Officer Jordan asked Officer Smith to conduct the "jail type" search on Owensby, Officer

Jordan had learned of a number of facts to support a finding of probable cause. Here,

Owensby was a known drug offender and Officer Jordan was investigating a tip from a

highly reliable CI that Owensby was leaving the Manchester Avenue Apartments with a

"large quantity of drugs" in a white car. Officer Jordan was made aware of the tip by

Detective Hoyle. State v. Kelley, 4th Dist. Ross No. 10CA3182, 2011-Ohio-3545, ¶ 25 (an

officer may derive knowledge from an informant's tip). Immediately after the CI tip,

Detective Hoyle was able to corroborate certain elements of the tip, for example, that

Owensby was leaving the Manchester Avenue Apartments in a white Kia.

{¶41} After stopping the vehicle, Officer Jordan conducted a brief weapons pat down

on Owensby. Although he did not find a weapon, he noticed that Owensby was in

possession of a large amount of cash. Upon questioning, Owensby admitted that he was

in possession of a large amount of money, approximately $2,500, which he claimed was

his "stimulus money." When Officer Jordan deployed his canine unit, Koda, the unit alerted

to the presence of narcotics on the side of the vehicle where Owensby had been sitting.

With probable cause to search the vehicle, Officer Jordan found marijuana, which Owensby

admitted was his. Despite already finding drugs in the vehicle, Officer Jordan noticed that

Owensby remained excessively agitated and excessively nervous under the circumstances.

State v. Raphael, 12th Dist. Warren Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-

3179, ¶ 24 (nervousness one consideration in probable cause determination). Upon

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continued discussion with Detective Hoyle, Officer Jordan concluded that the 30 grams of

marijuana was inconsistent with the CI tip that Owensby was in possession of "a large

quantity of drugs" and therefore determined that the drugs referenced by the CI were likely

on Owensby's person. Considering the facts in their totality, we find that Officer Jordan had

probable cause to search Owensby for drugs. Consequently, a warrantless search of

Owensby was permissible if an exception to the warrant requirement applies. Young, 2012-

Ohio-3131 at ¶ 17.

{¶42} As to that point, the supreme court has recognized that a warrantless search

is justified if there is "imminent danger that evidence will be lost or destroyed if a search is

not immediately conducted." Moore, 90 Ohio St.3d at 52. Because "narcotics are easily

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

evidence." Id. Here, because Officer Jordan had probable cause to believe that Owensby

was in the possession of drugs, a warrantless search was justified to remove them because

Owensby could have quickly hidden or destroyed them. State v. Arrasmith, 12th Dist.

Madison No. CA2013-09-031, 2014-Ohio-4173, ¶ 20; State v. Rodriguez, 12th Dist. Butler

No. CA2014-03-073, 2015-Ohio-571, ¶ 20. Accordingly, the "jail type" search conducted

by Officer Smith was reasonable under the Fourth Amendment.

ii. "Credit card" search

{¶43} While the "jail type" search did not lead to the discovery of other contraband,

Officer Jordan questioned the adequacy of the search by Officer Smith, who was much less

experienced and new to the department. This court has previously held that multiple

searches can be justified if the second officer did not observe the original or was concerned

about the adequacy of the search. State v. Wyatt, 12th Dist. Warren No. CA2020-11-076,

2021-Ohio-3146, ¶ 27; State v. Bean, 12th Dist. Butler No. CA2015-07-136, 2016-Ohio-

876, ¶ 17. Here, the record reflects that Officer Jordan did not observe the "jail type" search.

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After Officer Smith failed to locate any drugs on Owensby, Officer Jordan called Detective

Hoyle to discuss whether the marijuana was consistent with the CI tip. Concluding that the

drugs had to be on Owensby, Officer Jordan conducted the "credit card" search shortly after

the "jail type" search and stated that he did so because he was concerned about the

adequacy of Officer Smith's search. Upon searching Owensby, Officer Jordan felt a hard,

irregular shaped lump concealed in the fly of Owensby's underwear that turned out to be

methamphetamine and fentanyl. Contrary to the trial court's finding below, we do not find

that Officer Smith's failure to locate any drugs during the "jail type" search dissipated any

concerns of criminal activity. By the time, Officer Jordan conducted the "credit card" search

on Owensby, he had obtained ample evidence justifying a probable cause search of

Owensby's person. When Officer Smith, the less experienced officer, failed to discover

drugs after patting down Owensby, we do not find it unreasonable for Officer Jordan to

question the thoroughness of the search, especially in light of the evidence justifying a

probable cause search. Considering all of the facts and circumstances, we find the "credit

card" search was reasonable, supported by probable cause, and justified based upon

exigent circumstances.

D. Conclusion

{¶44} After reviewing the record, we find the trial court erred by granting Owensby's

motion to suppress. In this case, Officer Jordan had probable cause to search Owensby

for drugs based upon the totality of the circumstances and the warrantless search was

further justified by the existence of exigent circumstances. Accordingly, the state's sole

assignment of error is sustained.

{¶45} Judgment reversed and remanded.

M. POWELL, P.J., and HENDRICKSON, J., concur.

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