[Cite as State v. Sarno, 2013-Ohio-5058.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25751 Plaintiff-Appellee : : Trial Court Case No. 2012-CR-1060 v. : : ANDREW M. SARNO : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 15th day of November, 2013.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
RICHARD S. SKELTON, Atty. Reg. #0040694, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Andrew Sarno appeals from his conviction and sentence, 2
following a no-contest plea, for Possession of Cocaine, in an amount equaling or exceeding 20
grams, but less than 27 grams, in violation of R.C. 2925.11(A), a felony of the second degree.
Sarno contends that the trial court erred by overruling his motion to suppress evidence obtained
following his traffic stop for speeding, because the state trooper who discovered the evidence did
not have probable cause for the search until after getting Sarno to step out of his van, and the
trooper’s reason for getting Sarno out of his van – to conduct field sobriety tests – lacked a
sufficient factual basis.
{¶ 2} We conclude that the trial court did not err. Even if the factual predicate for
Sarno’s argument is correct, which the State disputes, we agree with the State that the state
trooper could lawfully require Sarno to step out of his van even if the trooper’s reason for doing
so lacked a sufficient factual basis. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977); State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993). As soon as
Sarno was out of his van, if not before, the trooper smelled the odor of both burnt and raw
marijuana, which justified the search of Sarno’s van. Accordingly, the judgment of the trial
court is Affirmed.
I. Sarno Is Stopped for Speeding
{¶ 3} State Trooper Kyle Pohlabel was on patrol on a midnight shift in the early
morning of April 4, 2012. He testified that one of his purposes was to look for impaired drivers
and get them off the road.
{¶ 4} Pohlabel saw the van Sarno was driving pass by in the opposite direction at a
speed Pohlabel estimated as 50 miles per hour, in a 40-mile-per-hour zone. Pohlabel used radar 3
to verify his estimate. The radar reflected Sarno’s speed as 49 miles per hour and 47 miles per
hour, in two readings.
{¶ 5} Pohlabel made a u-turn, and followed Sarno. When Sarno turned left on an
intersecting road, Pohlabel turned left behind him, turned on his overhead lights, and effected a
traffic stop. Pohlabel saw no indication of erratic driving. His only basis for the stop was that
Sarno was speeding.
{¶ 6} Pohlabel testified that as soon as he engaged Sarno on the driver’s side of Sarno’s
van, he could smell the odor of burnt marijuana, and also the odor of an alcoholic beverage.
Pohlabel also testified that he has been trained in detecting the odors of burnt and raw (unburnt)
marijuana, which he testified are easy to tell apart, because they are distinctly different odors.
{¶ 7} Pohlabel’s cruiser video was admitted in evidence. We have reviewed it.
About 30 to 40 minutes after the stop, as Pohlabel was conversing with another officer who had
arrived on the scene with a field test kit for cocaine, Pohlabel made some remarks that suggest
that he did not smell any odor of marijuana, burnt or raw, until after Sarno got out of the van.
{¶ 8} In any event, Pohlabel decided to have Sarno get out of his van for the purpose of
performing field sobriety tests. The cruiser video reflects that Pohlabel told Sarno this was the
reason for his asking Sarno to get out of his van. Pohlabel testified that as soon as Sarno got out
of the van, Pohlabel could smell the odor of raw marijuana, in addition to the odor of burnt
marijuana.
{¶ 9} Pohlabel performed the horizontal gaze nystagmus test on Sarno, and found no
clues. Because of this negative finding, and the fact that Sarno had not exhibited any other
indicia of impairment, Pohlabel abandoned his suspicion of impaired driving. He had Sarno sit 4
in the back of the cruiser while Pohlabel searched the van.
{¶ 10} During the search, Pohlabel found a plastic baggie containing white powder
under an ashtray on the driver’s side of the front seat of the van. Later, he found a marijuana
pipe containing the residue of burnt marijuana. Sarno denied any knowledge of either item.
{¶ 11} Because Pohlabel did not have a field test kit for cocaine, another state trooper
was sent for. Upon the arrival of the other officer, the white powder was tested, and was found
to be cocaine. Sarno was arrested.
II. The Course of Proceedings
{¶ 12} Sarno was charged by indictment with one count of Possession of Cocaine, in an
amount equaling or exceeding 20 grams, but less than 27 grams, in violation of R.C. 2925.11(A),
a felony of the second degree. He moved to suppress both the evidence obtained as a result of
the allegedly unlawful search, and also statements he made.
{¶ 13} Following a hearing, the trial court overruled Sarno’s motion to suppress.
Thereafter, Sarno pled no contest, was found guilty, and was sentenced to two years in prison.
From his conviction, Sarno appeals.
III. Trooper Pohlabel Was Not Required to Have Any Reason to
Require Sarno to Get out of his Van; Therefore, Even if the Reason
Pohlabel Gave for Doing So Lacked a Sufficient Factual Basis,
He Could Nevertheless Lawfully Require Sarno to Get out of his Van
{¶ 14} Sarno’s sole assignment of error is as follows: [Cite as State v. Sarno, 2013-Ohio-5058.] THE SEARCH OF MR. SARNO’S AUTOMOBILE VIOLATED HIS
FOURTH AMENDMENT CONSTITUTIONAL PROTECTIONS.
{¶ 15} Sarno concedes that he was lawfully stopped. He argues that Pohlabel had no
lawful basis for searching his van until after Pohlabel required Sarno to step out of his van, at
which time Pohlabel smelled marijuana for the first time. Sarno argues that because Pohlabel’s
reason for requiring him to step out of his van was so that Pohlabel could administer field
sobriety tests, and because Pohlabel lacked a sufficient factual basis for administering field
sobriety tests, Pohlabel’s requiring him to step out of his van was unlawful; therefore, Pohlabel’s
detection of the odor of marijuana, which was the probable cause for the search, was the fruit of
the poisoned tree, being the unlawful requirement that Sarno get out of his van.
{¶ 16} The State disputes at least one predicate for Sarno’s argument. It contends that
we must take as fact that Pohlabel smelled the odor of burnt marijuana even before Sarno got out
of his car, since Pohlabel so testified. Sarno contends that this is belied by the conversation
between Pohlabel and the other officer at the scene, recorded on the cruiser video, which,
according to Sarno, establishes that Pohlabel did not smell any odor of marijuana until after he
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Sarno, 2013-Ohio-5058.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25751 Plaintiff-Appellee : : Trial Court Case No. 2012-CR-1060 v. : : ANDREW M. SARNO : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 15th day of November, 2013.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
RICHARD S. SKELTON, Atty. Reg. #0040694, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Andrew Sarno appeals from his conviction and sentence, 2
following a no-contest plea, for Possession of Cocaine, in an amount equaling or exceeding 20
grams, but less than 27 grams, in violation of R.C. 2925.11(A), a felony of the second degree.
Sarno contends that the trial court erred by overruling his motion to suppress evidence obtained
following his traffic stop for speeding, because the state trooper who discovered the evidence did
not have probable cause for the search until after getting Sarno to step out of his van, and the
trooper’s reason for getting Sarno out of his van – to conduct field sobriety tests – lacked a
sufficient factual basis.
{¶ 2} We conclude that the trial court did not err. Even if the factual predicate for
Sarno’s argument is correct, which the State disputes, we agree with the State that the state
trooper could lawfully require Sarno to step out of his van even if the trooper’s reason for doing
so lacked a sufficient factual basis. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977); State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993). As soon as
Sarno was out of his van, if not before, the trooper smelled the odor of both burnt and raw
marijuana, which justified the search of Sarno’s van. Accordingly, the judgment of the trial
court is Affirmed.
I. Sarno Is Stopped for Speeding
{¶ 3} State Trooper Kyle Pohlabel was on patrol on a midnight shift in the early
morning of April 4, 2012. He testified that one of his purposes was to look for impaired drivers
and get them off the road.
{¶ 4} Pohlabel saw the van Sarno was driving pass by in the opposite direction at a
speed Pohlabel estimated as 50 miles per hour, in a 40-mile-per-hour zone. Pohlabel used radar 3
to verify his estimate. The radar reflected Sarno’s speed as 49 miles per hour and 47 miles per
hour, in two readings.
{¶ 5} Pohlabel made a u-turn, and followed Sarno. When Sarno turned left on an
intersecting road, Pohlabel turned left behind him, turned on his overhead lights, and effected a
traffic stop. Pohlabel saw no indication of erratic driving. His only basis for the stop was that
Sarno was speeding.
{¶ 6} Pohlabel testified that as soon as he engaged Sarno on the driver’s side of Sarno’s
van, he could smell the odor of burnt marijuana, and also the odor of an alcoholic beverage.
Pohlabel also testified that he has been trained in detecting the odors of burnt and raw (unburnt)
marijuana, which he testified are easy to tell apart, because they are distinctly different odors.
{¶ 7} Pohlabel’s cruiser video was admitted in evidence. We have reviewed it.
About 30 to 40 minutes after the stop, as Pohlabel was conversing with another officer who had
arrived on the scene with a field test kit for cocaine, Pohlabel made some remarks that suggest
that he did not smell any odor of marijuana, burnt or raw, until after Sarno got out of the van.
{¶ 8} In any event, Pohlabel decided to have Sarno get out of his van for the purpose of
performing field sobriety tests. The cruiser video reflects that Pohlabel told Sarno this was the
reason for his asking Sarno to get out of his van. Pohlabel testified that as soon as Sarno got out
of the van, Pohlabel could smell the odor of raw marijuana, in addition to the odor of burnt
marijuana.
{¶ 9} Pohlabel performed the horizontal gaze nystagmus test on Sarno, and found no
clues. Because of this negative finding, and the fact that Sarno had not exhibited any other
indicia of impairment, Pohlabel abandoned his suspicion of impaired driving. He had Sarno sit 4
in the back of the cruiser while Pohlabel searched the van.
{¶ 10} During the search, Pohlabel found a plastic baggie containing white powder
under an ashtray on the driver’s side of the front seat of the van. Later, he found a marijuana
pipe containing the residue of burnt marijuana. Sarno denied any knowledge of either item.
{¶ 11} Because Pohlabel did not have a field test kit for cocaine, another state trooper
was sent for. Upon the arrival of the other officer, the white powder was tested, and was found
to be cocaine. Sarno was arrested.
II. The Course of Proceedings
{¶ 12} Sarno was charged by indictment with one count of Possession of Cocaine, in an
amount equaling or exceeding 20 grams, but less than 27 grams, in violation of R.C. 2925.11(A),
a felony of the second degree. He moved to suppress both the evidence obtained as a result of
the allegedly unlawful search, and also statements he made.
{¶ 13} Following a hearing, the trial court overruled Sarno’s motion to suppress.
Thereafter, Sarno pled no contest, was found guilty, and was sentenced to two years in prison.
From his conviction, Sarno appeals.
III. Trooper Pohlabel Was Not Required to Have Any Reason to
Require Sarno to Get out of his Van; Therefore, Even if the Reason
Pohlabel Gave for Doing So Lacked a Sufficient Factual Basis,
He Could Nevertheless Lawfully Require Sarno to Get out of his Van
{¶ 14} Sarno’s sole assignment of error is as follows: [Cite as State v. Sarno, 2013-Ohio-5058.] THE SEARCH OF MR. SARNO’S AUTOMOBILE VIOLATED HIS
FOURTH AMENDMENT CONSTITUTIONAL PROTECTIONS.
{¶ 15} Sarno concedes that he was lawfully stopped. He argues that Pohlabel had no
lawful basis for searching his van until after Pohlabel required Sarno to step out of his van, at
which time Pohlabel smelled marijuana for the first time. Sarno argues that because Pohlabel’s
reason for requiring him to step out of his van was so that Pohlabel could administer field
sobriety tests, and because Pohlabel lacked a sufficient factual basis for administering field
sobriety tests, Pohlabel’s requiring him to step out of his van was unlawful; therefore, Pohlabel’s
detection of the odor of marijuana, which was the probable cause for the search, was the fruit of
the poisoned tree, being the unlawful requirement that Sarno get out of his van.
{¶ 16} The State disputes at least one predicate for Sarno’s argument. It contends that
we must take as fact that Pohlabel smelled the odor of burnt marijuana even before Sarno got out
of his car, since Pohlabel so testified. Sarno contends that this is belied by the conversation
between Pohlabel and the other officer at the scene, recorded on the cruiser video, which,
according to Sarno, establishes that Pohlabel did not smell any odor of marijuana until after he
got Sarno out of the van.
{¶ 17} But the State also argues that it does not make any difference whether Pohlabel
first smelled the odor of marijuana before, or immediately after, Sarno got out of the van. We
agree.
{¶ 18} The State cites Pennsylvania v. Mimms, supra, and State v. Evans, supra, for the
proposition that an officer who makes a lawful traffic stop may require the occupant of the
vehicle to exit the vehicle, whether or not there is some factual predicate for doing so. In
Mimms, the United States Supreme Court described its holding as follows: “We hold only that 6
once a motor vehicle has been lawfully detained for a traffic violation, the police officers may
order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription
of unreasonable searches and seizures.” Id. at 111, fn. 6.
{¶ 19} In State v. Evans, supra, at 408, the Supreme Court of Ohio held as follows:
Mimms merely dispenses with the requirement that the police officer
possess reasonable suspicion of criminal activity before the officer may order the
driver out of an already lawfully stopped vehicle. Accordingly, the ordering of
defendant to get out of his car was proper even if the officers were unable to
articulate a reasonable suspicion which prompted this action.
Contrary to the lower court's opinion, the order to step out of the vehicle is
not a stop separate and distinct from the original traffic stop. It is so minimal and
insignificant an intrusion that the Mimms court refused to apply the requirements
for an investigatory stop. Unlike an investigatory stop, where the police officer
involved “must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion,” Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d
889, 906, a Mimms order does not have to be justified by any constitutional
quantum of suspicion.
{¶ 20} The only arguable distinction that can be made in the case before us is that
Trooper Pohlabel offered a reason for ordering Sarno out of his van – to conduct field sobriety
tests – which reason Sarno argues lacked a sufficient factual basis. But we know from Whren v.
United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and Dayton v. Erickson, 76 7
Ohio St.3d 3, 665 N.E.2d 1091 (1996), that the lawfulness of a traffic stop does not depend upon
the actual motivation of the police officer making the stop, even when the proffered basis for the
stop is pretextual; i.e., a lie. Mimms and Evans treat the ordering of a motorist out of his vehicle
during a traffic stop as merely an incident of the stop, requiring no additional justification.
Therefore, following Whren and Erickson, the proffer of an additional justification for ordering a
motorist out of his vehicle does not render the order unlawful if the proffered additional
justification is found to lack a factual basis.
{¶ 21} Pohlabel had a lawful basis for the traffic stop. Sarno concedes as much.
Therefore, Pohlabel could lawfully order Sarno out of his vehicle – no additional justification for
that order was required.
{¶ 22} In the trial court, Sarno conceded, appropriately, that once Pohlabel smelled the
odor of marijuana, he could lawfully search Sarno’s van.
{¶ 23} Sarno’s sole assignment of error is overruled.
III. Conclusion
{¶ 24} Sarno’s sole assignment of error having been overruled, the judgment of the trial
DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck Andrew T. French Richard S. Skelton Hon. Barbara P. Gorman