State v. Perdue

2017 Ohio 8762

• Court: Ohio Court of Appeals
• Decided: December 1, 2017
• Docket: 27499
• Status: Published

Opinion

[Cite as State v. Perdue, 2017-Ohio-8762.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27499 : v. : Trial Court Case No. 2016-CR-1206 : IVAN L. PERDUE, JR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 1st day of December, 2017.

MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

DAVID J. FIERST, Atty. Reg. No. 0043954, 2533 Far Hills Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Ivan L. Perdue, Jr., appeals from his conviction in the

Montgomery County Court of Common Pleas following a no contest plea to having

weapons under disability, improperly handling a firearm in a motor vehicle, and

possession of heroin. In support of his appeal, Perdue challenges the trial court’s

decision overruling his motion to suppress evidence that was discovered inside his

vehicle while police officers were assisting him with an alleged medical emergency on the

roadway. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On May 11, 2016, the Montgomery County Grand Jury returned an

indictment charging Perdue with one count of having weapons under disability in violation

of R.C. 2923.13(A)(3) and one count of improperly handling a firearm in a motor vehicle

in violation of R.C. 2923.16(B). Thereafter, on May 31, 2016, a second indictment was

returned charging Perdue with one count of possessing cocaine in an amount equal to or

greater than 5 grams, but less than 10 grams, in violation of R.C. 2925.11(A), one count

of possessing heroin in an amount equal to or greater than 5 grams, but less than 10

grams, in violation of R.C. 2925.11(A), and one count of possessing drug paraphernalia

in violation of R.C. 2925.14(C)(1). The charges arose after police officers discovered the

aforementioned drugs and a loaded pistol inside Perdue’s vehicle while the officers were

assisting Perdue with an alleged medical emergency on the roadway in Moraine, Ohio.

{¶ 3} Following the indictments, on June 14, 2016, Perdue filed a motion to

suppress the evidence discovered inside his vehicle. A hearing on the motion was held -3-

on August 19, 2016, during which the State presented testimony from the following

Moraine police officers who assisted Perdue at the scene: Officer Matthew Barrie, Officer

Justin Eller, and Officer Molly Hayden. Perdue also testified in his defense at the

hearing.

{¶ 4} Officer Barrie testified that on the evening of April 17, 2016, a concerned

citizen approached him and advised that there was a driver at the intersection of Main

Street and Venetian Way who might be intoxicated. The citizen advised Barrie that the

driver was sitting in his vehicle at the traffic light, but was not moving when the signal

turned green. The citizen further advised that it appeared as if the driver was having

“some kind of issue.” Hearing Trans. (Aug. 19, 2016), p. 10.

{¶ 5} Following this report, Barrie went to the scene and observed the driver, later

identified as Perdue, sitting in his vehicle by himself at the intersection in question.

Barrie testified that he approached Perdue’s vehicle at the driver’s side window, which

was rolled down. Upon his approach, Barrie observed that the vehicle was not running

and that Perdue appeared lethargic. Specifically, Perdue was fumbling around with his

keys and moving very slowly. Barrie testified that when he made contact with Perdue

and asked if he was okay, Perdue could not provide a coherent response and that all of

Perdue’s actions seemed to require a lot of thought. Barrie indicated that Perdue’s

condition was consistent with some kind of medical issue or a heroin overdose.

{¶ 6} Shortly after Barrie made contact with Perdue, Officer Eller arrived at the

scene and approached Perdue’s vehicle. Eller testified that upon approaching, he

observed Barrie speaking with Perdue at the driver’s side window and noticed that Perdue

appeared lethargic and was having difficulty communicating. Eller claimed that Barrie -4-

advised him that there appeared to be some kind of drug or alcohol abuse issue.

{¶ 7} Officer Hayden, the last officer to arrive at the scene, testified that she initially

observed Barrie and Eller making contact with Perdue at his driver’s side window. As

she approached the vehicle, Hayden observed Barrie and Eller begin to physically assist

Perdue out of his vehicle. Hayden testified that Perdue could not stand and “was

completely out of it.” Hearing Trans. (Aug. 19, 2016), p. 39. Hayden also testified that

it appeared as if Perdue had overdosed on drugs.

{¶ 8} Officer Barrie testified that he did not smell any alcoholic beverage on

Perdue’s person after he assisted Perdue out of his vehicle. Officer Eller, however,

testified that upon assisting Perdue out of his vehicle, he smelled the odor of burnt

marijuana emanating from the vehicle and from Perdue’s person. Officer Hayden also

testified that she smelled the odor of marijuana coming from Perdue’s vehicle while Barrie

and Eller were assisting Perdue.

{¶ 9} Officer Eller, who identified himself as the officer in charge of the scene,

testified that Perdue’s vehicle was searched due to the vehicle smelling of marijuana and

for purposes of inventorying the contents of the vehicle. Eller testified that an inventory

search was necessary because Perdue was in no condition to drive and his vehicle was

blocking traffic and needed to be towed from the roadway.

{¶ 10} Barrie and Hayden also testified that Perdue appeared to be in no condition

to drive. Hayden further testified that it is the Moraine Police Department’s policy to

inventory items in a vehicle before the vehicle is towed. Hayden also identified a copy

of the police department’s tow policy.

{¶ 11} As for the search of Perdue’s vehicle, Hayden testified that she conducted -5-

the search while Barrie and Eller tended to Perdue and called for medical assistance.

Hayden testified that she began the search by looking inside the vehicle as she walked

around to the passenger side. When she reached the passenger side, Hayden searched

the vehicle’s glove compartment and found a loaded pistol. Barrie and Eller testified that

Perdue was handcuffed and placed in custody once the pistol was discovered. Eller

testified that Perdue was detained for safety purposes until the officers could investigate

the matter further.

{¶ 12} After the pistol was discovered, the search continued and various drugs

were discovered inside Perdue’s vehicle. Although no marijuana was discovered in the

vehicle, Eller discovered a broken marijuana cigarette in Perdue’s pants pocket after

completing a pat down search.

{¶ 13} There is no dispute that Perdue was taken to the hospital once the medics

arrived at the scene. Although the officers believed that Perdue might have been on

drugs, Perdue testified that he was suffering from a diabetic episode due to low blood

sugar. Purdue claimed that he stopped his vehicle at the traffic light in question and

waited to recover from his diabetic episode because he could not continue driving.

Perdue testified that he had eaten some candy a few minutes earlier and was waiting for

the candy to “kick in.” Hearing Trans. (Aug. 19, 2016), p. 48.

{¶ 14} Continuing, Perdue testified that he was incoherent and unable to talk with

the officers when they approached him. While Perdue admitted that he was unable to

communicate, he nevertheless claimed that he understood everything that was

happening during the encounter. Perdue testified that the officers assisted him out of his

vehicle and that he was able to stand on his own by leaning up against his vehicle. -6-

Perdue also claimed that after he was out of his vehicle, the officers asked if he was

having a medical episode, and that he responded affirmatively by shaking his head “yes.”

Id. at 52.

{¶ 15} Perdue further testified that the officers asked for his license and insurance

information, which he claimed he provided by handing over his entire wallet from his back

pocket. Perdue then recalled being handcuffed a few minutes later, which he noted was

around the same time Officer Hayden was searching his vehicle. Perdue also admitted

to marijuana being found in his pants pocket.

{¶ 16} After considering the testimony and evidence submitted by the parties at

the suppression hearing, the trial court overruled Perdue’s motion to suppress. In

overruling the motion, the trial court explained that it had found the officers’ testimony

credible, and that because the officers detected the odor of marijuana coming from

Perdue’s vehicle, the officers had probable cause to search every compartment and

container inside the vehicle. The trial court also concluded that the inventory search was

subsidiary to the probable cause search since the search of the vehicle was permissible

regardless of whether the inventory search was authorized.

{¶ 17} Following the trial court’s decision overruling the motion to suppress, on

February 3, 2017, Perdue pled no contest to having weapons under disability, improperly

handling a firearm in a motor vehicle, and possession of heroin. In exchange for his no

contest plea, the State agreed to dismiss the remaining charges for possessing cocaine

and drug paraphernalia. Thereafter, the trial court found Perdue guilty of the charges for

which he pled no contest and sentenced him to 18 months in prison on each count. The

trial court ordered the prison terms to be served concurrently for an aggregate prison -7-

sentence of 18 months.

{¶ 18} Perdue now appeals from his conviction, raising a single assignment of

error for review.

Assignment of Error

{¶ 19} Perdue’s sole assignment of error is as follows:

THE EVIDENCE USED TO CONVICT APPELLANT WAS OBTAINED AS

OF AN ILLEGAL SEARCH AND SEIZURE AND SHOULD HAVE BEEN

SUPPRESSED.

{¶ 20} Under his single assignment of error, Perdue challenges the trial court’s

decision overruling his motion to suppress the evidence discovered in his vehicle.

Perdue contends that the evidence should have been suppressed because it was

discovered as the result of an illegal, warrantless search that violated his Fourth

Amendment rights. Perdue does not challenge the officers’ initial approach and the

investigation as to why he was parked at the traffic light, but only the subsequent search

of his vehicle.

{¶ 21} “In ruling on a motion to suppress, the trial court ‘assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.’ ” State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7

(2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d

Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept

the trial court’s findings of fact if they are supported by competent, credible evidence.

Accepting those facts as true, we must independently determine as a matter of law, -8-

without deference to the trial court’s conclusion, whether they meet the applicable legal

standard.’ ” Id., quoting Retherford.

{¶ 22} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures, and a trial court is required to

suppress evidence obtained during an unconstitutional search and seizure. State v.

Davenport, 2017-Ohio-688, 85 N.E.3d 443, ¶ 16 (2d Dist.), citing Terry v. Ohio, 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Wong Sun v. United States, 371 U.S. 471, 484-

85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Warrantless searches and seizures are per se

unreasonable under the Fourth Amendment, subject to only a few well recognized

exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967).

{¶ 23} One of the exceptions to the warrant requirement is the automobile

exception, which “allows police to conduct a warrantless search of a vehicle if there is

probable cause to believe that the vehicle contains contraband and exigent

circumstances necessitate a search or seizure.” State v. Mills, 62 Ohio St.3d 357, 367,

582 N.E.2d 972 (1992), citing Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26

L.Ed.2d 419 (1970). (Other citation omitted.) A vehicle’s mobility is the traditional

exigency for the automobile exception to the warrant requirement. Id., citing California

v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Therefore, “[i]f a

car is readily mobile and probable cause exists to believe it contains contraband, the

Fourth Amendment * * * permits police to search the vehicle without more.”

Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996),

citing Carney at 393. -9-

{¶ 24} “When probable cause is found to exist under the facts and circumstances

of a given case, law enforcement officers have the necessary constitutional justification

to explore any areas in the vehicle, including all movable containers and packages that

may reasonably contain the object of their search.” Davenport at ¶ 23, citing State v.

Shipp, 2d Dist. Montgomery No. 24933, 2012-Ohio-6189, ¶ 33 and State v. Welch, 18

Ohio St.3d 88, 92, 480 N.E.2d 384 (1985).

{¶ 25} “ ‘The smell of marijuana, alone, by a person qualified to recognize the odor,

is sufficient to establish probable cause to conduct a search.’ ” State v. Chase, 2d Dist.

Montgomery No. 25323, 2013-Ohio-2347, ¶ 23, quoting State v. Moore, 90 Ohio St.3d

47, 53, 734 N.E.2d 804 (2000). “There need be no additional factors to corroborate the

suspicion of the presence of marijuana.” Moore at 50. “ ‘[A] law enforcement officer,

who is trained and experienced in the detection of marijuana, should not be prohibited

from relying on his or her sense of smell to justify probable cause to conduct a search for

marijuana.’ ” State v. Thompson, 2d Dist. Montgomery No. 26130, 2014-Ohio-4244,

¶ 40, quoting Moore at 51.

{¶ 26} In this case, Officer Eller and Officer Hayden testified that they smelled the

odor of marijuana emanating from Perdue’s vehicle as Perdue was being assisted out of

his vehicle. Despite Eller and Hayden’s testimony, Perdue argues that the State failed

to establish that the officers had probable cause to search his vehicle. Specifically,

Perdue claims that the officers’ testimony failed to establish that they were sufficiently

qualified to recognize the odor of marijuana.

{¶ 27} Perdue’s argument has no merit because Officer Eller testified that he was

familiar with the odor of burnt marijuana through police academy and FTO training. Eller -10-

further claimed that during his training, he found multiple bags of raw marijuana, grow

operations, pipes with burnt marijuana, and marijuana cigarettes. As a result, Eller

testified that based on his experience finding these items and based on all his other

training, he is able to tell the difference between raw and burnt marijuana odors.

{¶ 28} Officer Hayden, on the other hand, generally testified that she encounters

drugs two to three times per week in the course of her police duties and that she has been

a police officer for just under two years. Although Officer Hayden’s testimony regarding

her qualifications is sparse and does not specifically address her training and experience

with recognizing the odor of marijuana, Officer Eller’s testimony clearly indicates that he

has been trained and has had experience in detecting the odor of marijuana.

{¶ 29} As a further matter, Perdue never argued in his motion to suppress or at the

suppression hearing that the officers were not qualified to recognize the odor of

marijuana. The defendant in State v. Cunningham, 2d Dist. Montgomery No. 20059,

2004-Ohio-3088 failed to raise the same argument before the trial court and we held that:

“Legal issues which are not raised in the trial court may not generally be raised for the

first time in the appellate court. The general rule is that an appellate court will not

consider any error which counsel for a party complaining of the trial court's judgment could

have called but did not call to the trial court’s attention at a time when such error could

have been avoided or corrected by the trial court.” Id. at ¶ 26, citing State v. Childs, 14

Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. (Other citation

omitted.)

{¶ 30} Even if Perdue had raised the issue of the officers’ qualifications to

recognize the odor of marijuana at the trial level, under the circumstances of this case, -11-

the trial court did not err in failing to suppress the evidence discovered in Perdue’s vehicle.

Since the trial court found the officers’ testimony credible, there is competent, credible

evidence in the record supporting the trial court’s finding that the officers based their

warrantless search of Perdue’s vehicle on the smell of marijuana emanating from the

vehicle. As previously discussed, the smell of marijuana is, by itself, sufficient to

establish probable cause to conduct a warrantless search when it is detected by a person

qualified to recognize the odor. Moore, 90 Ohio St.3d at 53, 734 N.E.2d 804. Here,

Officer Eller testified that he smelled the odor of marijuana coming from Perdue’s vehicle,

and also testified regarding his training and experience with recognizing the odor of

marijuana. As a result, probable cause existed for the warrantless search of Perdue’s

vehicle. Because there was probable cause to search Perdue’s vehicle, the search falls

under the automobile exception to the warrant requirement, thus making the evidence

obtained during the search admissible.

{¶ 31} In light of the foregoing holding, we need not address the inventory of

Perdue’s vehicle as an alternative justification for the warrantless search. As noted by

the trial court, the inventory search was subsidiary to the probable cause search because

regardless of whether the officers had authority to conduct an inventory search, the

search was lawful based on Officer Eller detecting the odor of marijuana coming from the

vehicle.

{¶ 32} For the foregoing reasons, Perdue’s sole assignment of error is overruled.

Conclusion

{¶ 33} Having overruled Perdue’s sole assignment of error, the judgment of the -12-

trial court is affirmed.

DONOVAN, J. and TUCKER, J., concur.

Copies mailed to:

Mathias H. Heck, Jr. Alice B. Peters David J. Fierst Hon. Mary Lynn Wiseman