State v. Upchurch

2021 Ohio 2143

Opinion

[Cite as State v. Upchurch, 2021-Ohio-2143.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1130

Appellee Trial Court No. CR0201902580

v.

Brandon Upchurch DECISION AND JUDGMENT

Appellant Decided: June 25, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Grant Kozy, Assistant Prosecuting Attorney, for appellee.

Autumn D. Adams, for appellant.

***** DUHART, J.

{¶ 1} Appellant, Brandon Upchurch, appeals the judgment entered by the Lucas

County Court of Common Pleas on July 14, 2020, sentencing him to a term of two years of community control.1 For the reasons that follow, we affirm the judgment of the trial

court.

{¶ 2} Appellant sets forth the following assignment of error:

The Trial Court committed reversible error by denying Appellant’s

Motion to Suppress as there was no reasonable suspicion that Appellant

was engaged in illegal activity that would warrant police interaction and the

search of Appellant’s vehicle was an unconstitutional search and seizure.

Statement of the Case

{¶ 3} On September 9, 2019, appellant was indicted for improperly handling

firearms in a motor vehicle, in violation of R.C. 2923.16(B) and (I), a felony of the fourth

degree.

{¶ 4} On January 21, 2020, appellant filed a motion to suppress, arguing that the

evidence against him was obtained as the result of an illegal search and seizure. On

March 6, the trial court conducted a hearing on the matter. On March 17, 2020, the trial

court denied appellant’s motion to suppress.

{¶ 5} On July 14, 2020, appellant pleaded no contest to the indictment. The trial

court found him guilty. The trial court imposed a sentence of two years of community

control.

1 We note that the state mistakenly asserted in its brief that appellant was sentenced to a term of 18 months in prison.

2. Statement of the Facts

{¶ 6} Detective Donovan testified that on May 25, 2019, at around 8:20 p.m., he

was working a “stop program” in the 800 block of Walnut, around the Greenbelt Place

apartment complex. At this time, Donovan was assigned to the gang task force, and was

focusing on areas of Toledo that experienced a high number of violent crimes. Donovan

was specifically tasked with going to the Greenbelt Place housing complex as a result of

shooting incidents in the area and the statistical probability, as calculated by the Toledo

Police Department, that violent crime would be occurring in that location during the time

in question.

{¶ 7} Donovan and his partner, Detective Robert Bascone, were in a “limited

marked police vehicle in full uniform,” when they pulled into the parking lot of the

apartment complex and immediately smelled burnt marijuana coming from the area.

Donovan stated that there were only two cars in the parking lot, one of which was

occupied by appellant and his passenger. Donovan observed that appellant’s vehicle was

backed into a parking spot, with its windows rolled down and with the engine running.

Donovan drove his vehicle around appellant’s vehicle, noticed the smell of burning

marijuana was stronger as they drove around appellant’s vehicle, and then parked near

appellant’s vehicle. Donovan parked his police cruiser and attempted to initiate a casual

encounter to investigate the smell.

3. {¶ 8} As Donovan and his partner approached appellant’s vehicle, appellant and

his passenger rolled up the windows, “very quickly” exited the vehicle, and then

attempted to walk away. Donovan asked the two to stop, and they immediately

complied, within feet of appellant’s vehicle. Donovan stated that he could see clearly

through the vehicle’s windows and that he noticed an open container of what he believed

to be vodka in the center cup holder area. Appellant complied with Donovan’s request to

provide his information, and Donovan discovered that appellant had a warrant out for his

arrest. Once the warrant was verified, appellant was taken into custody. In addition,

appellant was issued a traffic citation for having an open container of intoxicating liquor

inside a motor vehicle.2

{¶ 9} Donovan testified that appellant’s vehicle was then secured, inventoried, and

towed pursuant to department policy, because it was parked on government property and

because the officers had verified that neither appellant nor his passenger lived at the

apartment complex.3 As part of securing the vehicle and its contents, Donovan gained

entry to the vehicle with a lock-out kit. Donovan opened the door from the driver’s side

and immediately encountered a handgun, with a very large extended magazine on it,

2 Although Donovan testified that he smelled alcohol on appellant’s breath, that appellant was intoxicated, and that appellant was placed under arrest “after he began screaming and yelling,” appellant was not subjected to any kind of field sobriety test, nor was he charged with any OVI or disorderly conduct offense. 3 Although Donovan testified that the police report stated that the vehicle was searched “incident to arrest,” and that the search took placed while appellant was in handcuffs and in the backseat of Donovan’s squad car, Donovan further testified that the vehicle was searched “[a]lso as part of an inventory.”

4. sticking out of the pocket of the driver’s side door. Further inventory of the vehicle

revealed a second loaded handgun, tucked between the driver’s seat and the center

console, a third loaded handgun, located under the passenger’s seat, a container of

alcohol, and a small amount of marijuana.

Analysis

{¶ 10} In his assignment of error, appellant essentially claims that the trial court

erred when it denied his motion to suppress, because the evidence was obtained during an

illegal search of his vehicle. This court, in State v. Ruffer, 6th Dist. Fulton No. F-11-007,

2012-Ohio-4491, articulated the applicable standard of review for a trial court’s denial of

a motion to suppress, as follows:

Review of a trial court's denial of a motion to suppress presents

mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152,

2003–Ohio–5372, 797 N.E.2d 71, ¶ 8. “When considering a motion to

suppress, the trial court assumes the role of trier of fact and is therefore in

the best position to resolve factual questions and evaluate the credibility of

witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d

972.” Id. An appellate court defers to a trial court's factual findings made

with respect to its ruling on a motion to suppress where the findings are

supported by competent, credible evidence. Id.; State v. Brooks, 75 Ohio

St.3d 148, 154, 661 N.E.2d 1030 (1996). “[T]he appellate court must then

independently determine, without deference to the conclusion of the trial

5. court, whether the facts satisfy the applicable legal standard. State v.

McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539.” State v.

Burnside at ¶ 8.

Id. at ¶ 5.

{¶ 11} Appellant initially argues that officers lacked the requisite specific

and articulable facts to conclude that appellant was engaged in criminal activity.

Specifically, appellant challenges the state’s claim that Donovan was justified in

stopping appellant as part of an investigation arising out of Donovan’s smelling

burnt marijuana, because the state failed to prove that Donovan was qualified to

detect and distinguish the smell of burnt marijuana.

{¶ 12} The state initially argues that because appellant’s trial counsel failed to

raise the qualification issue, appellant has waived the issue and may not raise it for the

first time on appeal. “Legal issues which are not raised in the trial court may not

generally be raised for the first time in the appellate court.” State v. Cunningham, 2d Dist.

Montgomery No. 20059, 2004-Ohio-3088, ¶ 26. “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. This rule

applies to arguments that are not asserted either in a written motion to suppress or at the

suppression hearing. State v. Allen, 6th Dist. Wood No. WD-16-058, 2018-Ohio-887, ¶

25. In cases such as the one at hand, Ohio courts have deemed the issue of an officer’s

6. qualifications to detect the odor of marijuana to be waived where it was not timely raised

by appellant. See, e.g., State v. Walker, 2012-Ohio-3303, 974 N.E.2d 1213, ¶ 32 (11th

Dist.) (because there was no timely objection, any error resulting from officer’s testimony

regarding the odor of marijuana coming from inside a vehicle was deemed waived);

Cunningham at ¶ 25-26 (challenge to officer’s qualifications to detect odor of marijuana

was waived where it was not timely raised). Because appellant in the instant case failed

to challenge Donovan’s qualifications in the trial court, we find that any error resulting

from Donovan’s testimony was, in fact, waived.

{¶ 13} Even, assuming arguendo, that appellant’s objections had been timely

made, we would nevertheless uphold the legality of the initial intrusion in this case.

While Ohio law clearly provides that “the odor of marijuana establishes probable cause to

search a vehicle only when the odor is detected by a person qualified to recognize it,”

State v. Thames, 2d Dist. Montgomery No. 26052, 2015-Ohio-626, ¶ 8, at this point in

the analysis we are only considering the legality of the initial intrusion, and not the

legality of the subsequent search.

{¶ 14} Focusing on the initial intrusion, we are mindful that “during a consensual

encounter, the officer and citizen can engage in conversation, and a person’s voluntary

statements may be used against him or her, as long as the person knows that he or she is

free to walk away and the police have not conveyed a message that compliance with their

requests is required.” State v. Millerton, 2d Dist. No. 26209, 2015-Ohio-34, 26 N.E.3d

317, ¶ 21. An “investigatory detention,” also known as a Terry stop, “allows an officer to

7. briefly stop and temporarily detain individuals in order to investigate possible criminal

activity.” Id. at ¶ 22. During a brief investigatory stop, “an officer is entitled to ask

questions to confirm his suspicions that criminal activity occurred,” and, further, “an

officer can ask for identification or sufficient information to write a citation or to run a

background check for outstanding warrants.” Id. at ¶ 23.

{¶ 15} In Thames, where the defendant seemed “exceptionally nervous,” and the

officer “smelled an overwhelming odor of air freshener and a faint odor of marijuana,”

such evidence, “at a minimum, met the reasonable, articulable suspicion [of criminal

activity] standard,” which justified extending a traffic stop for a drug sniff, even though

the officer’s qualifications to detect the smell of marijuana were never specifically

addressed during the suppression hearing. Thames at ¶ 8, 11.

{¶ 16} Here, where the officers smelled an overwhelming smell of marijuana,

apparently coming from appellant’s vehicle, in an otherwise sparsely populated area, and

where appellant quickly locked and exited the vehicle upon the officers’ arrival, we find

that the initial approach -- perhaps best described as a “casual encounter” that quickly

evolved into a Terry investigative stop -- was lawful under the circumstances, permitting

the officers to conduct a routine background check for outstanding warrants.

{¶ 17} We additionally note that, in addition to the odor of marijuana, which gave

rise to the officers’ initial approach and temporary detention of appellant, the officers,

upon reaching the vicinity of appellant’s car, noticed an open container in the car. In this

case, discovery of the open container provided a second, independent basis for a

8. detention with a background/identification check. See, State v. Brown, 2d Dist.

Montgomery No. 20336, 2004-Ohio-4058, ¶ 18 (open beer container located in car

provided officer with reasonable, articulable suspicion that appellant had engaged in an

open container violation, thereby providing an independent basis to request appellant’s

identification); State v. Carlisle, 4th Dist. Lawrence No. 07CA16, 2008-Ohio-744, ¶ 13

(investigative stop justified where appellant was carrying an open container of alcohol).

{¶ 18} Once the background check was conducted, revealing that there were

outstanding warrants for both appellant and his passenger, the two men were lawfully

arrested and taken into custody, and an inventory search of appellant’s vehicle was

performed. Addressing the concept of inventory searches, the Supreme Court of Ohio, in

State v. Mesa, 87 Ohio St.3d 105, 717 N.E.2d 329 (1999), relevantly stated the following:

Inventory searches are a ‘well-defined exception to the warrant

requirement of the Fourth Amendment.’ Colorado v. Bertine (1987), 479

U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739, 745. See, also, South

Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d

1000. Inventory searches involve administrative procedures conducted by

law enforcement officials and are intended to (1) protect an individual's

property while it is in police custody, (2) protect police against claims of

lost, stolen or vandalized property, and (3) protect police from dangerous

instrumentalities. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d

at 1005. Because inventory searches are administrative caretaking

9. functions unrelated to criminal investigations, the policies underlying the

Fourth Amendment warrant requirement, including the standard of

probable cause, are not implicated. Id. at 370, 96 S.Ct. at 3097, 49 L.Ed.2d

at 1006, fn. 5. See, also, Bertine, 479 U.S. at 371, 107 S.Ct. at 741, 93

L.Ed.2d at 745. Rather, the validity of an inventory search of a lawfully

impounded vehicle is judged by the Fourth Amendment's standard of

reasonableness. See Opperman and Bertine, supra.

Id. at 108–09. An inventory search is lawful where there is evidence to show that the

decision to conduct an inventory search of a vehicle was made in good faith, and in

accordance with established police inventory procedure. See, e.g., State v. Easton, 2016-

Ohio-5516, 69 N.E.3d 1202 (8th Dist.)

{¶ 19} In reviewing the record, we find that the evidence in this case is sufficient

to show that the officers’ decision to conduct the inventory search of appellant’s vehicle

was made in good faith, following the lawful arrest of appellant and his passenger, and

was in accordance with police department policy. Accordingly, we find that the officers’

inventory search was lawful.

{¶ 20} For all of the foregoing reasons, we find appellant’s assignment of error not

well-taken. We affirm the judgment of the Lucas County Court of Common Pleas.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

10. L-20-1130 State v. Upchurch

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________ JUDGE Gene A. Zmuda, P.J. _______________________________ Myron C. Duhart, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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