[Cite as State v. Sarno,

.]

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,

,

,

(1977); State v. Evans,

,

(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,

.] 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.

and State v.

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.

, 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),

,

,

, 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,

,

,

(1996), and Dayton v. Erickson, 76 7

Ohio St.3d 3,

(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

court is Affirmed.

.............

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck Andrew T. French Richard S. Skelton Hon. Barbara P. Gorman