[Cite as State v. Smith,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : Case No. 12CA3308 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : CARLOS M. SMITH, : : RELEASED 01/11/13 Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Aaron M. McHenry, Chillicothe, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecutor, and Jeffrey C. Marks, Ross County Assistant Prosecutor, for appellee. ______________________________________________________________________ Harsha, J.

{¶1} After pleading no contest to complicity to possession of cocaine, Carlos

Smith appeals the trial court’s denial of his motion to suppress. During a traffic stop, he

admitted that he and his passenger had been smoking marihuana and gave the trooper

a small baggie of it. Aside from loose marihuana on Smith’s t-shirt and in the vehicle’s

passenger compartment, the trooper found no other contraband on Smith or in the

vehicle. However, during a pat down search the trooper detected a hard object, which

he believed to be crack cocaine, between the passenger’s buttocks. The trooper

transported Smith and the passenger to a patrol post where the trooper searched both

men again. The trooper found no contraband on Smith but seized crack cocaine from

between the passenger’s buttocks. When confronted with the trooper’s discovery,

Smith made incriminating statements.

{¶2} Smith contends that the statements he made after the trooper found the Ross App. No. 12CA3308 2

crack cocaine should be suppressed because they were elicited during an

unconstitutional detention. We disagree. At the time Smith made the statements, the

trooper had a reasonable articulable suspicion that Smith was complicit in his

passenger’s possession of crack cocaine. Smith admitted that the pair engaged in one

illegal drug activity together (smoking marihuana), and they gave inconsistent stories

about their travels. Smith and the passenger claimed they were together their entire

time in Ohio, so Smith would have witnessed any drug transactions the passenger

conducted in the state. Smith also gave inconsistent stories about his lodging in Ohio

and claimed he came to the state to buy clothes even though none were in the vehicle.

Moreover, the trooper testified that it is common for criminals to give a suspicious officer

a small bag of marihuana, like Smith did, to “appease” the officer, i.e., to mollify his

suspicions and avoid discovery of a larger stash of drugs. Accordingly, we affirm the

trial court’s judgment.

I. Facts

{¶3} The Ross County grand jury indicted Smith on one count of complicity to

possession of cocaine, a first degree felony, in violation of R.C. 2923.03. Smith filed a

motion to suppress, which the trial court denied after a hearing, challenging the validity

of the traffic stop. Smith later filed a second motion to suppress his statements to law

enforcement.

{¶4} At the hearing on the second motion, Trooper Benjamin Seabolt with the

Ohio State Highway Patrol testified that on August 19, 2010, he initiated a traffic stop of

a rental car for a following too close violation. A video recording of the stop showed it

occurred at approximately 6:23 p.m. Smith was the driver and Christopher Carey was Ross App. No. 12CA3308 3

the front passenger. As Seabolt approached the vehicle, he smelled a “strong odor of

burnt marihuana emitting from the vehicle.” He saw loose marihuana in the vehicle and

on the t-shirts of Smith and Carey. He Mirandized the men and began to question

Smith. Smith said he was coming from Dayton, Ohio and going to Charleston, West

Virginia. He told Seabolt he had been in Ohio for about a week clothes shopping, but

Seabolt observed no clothing in the vehicle. Then Smith told Seabolt he had only been

in Ohio for a couple of days. Initially, Smith said he stayed with friends and family in

Dayton. Later, he claimed he stayed with his girlfriend but did not know her name.

Smith also did not know Carey’s real name – just his nickname. Smith told the trooper

that he and Carey had been together their whole time in Ohio. The rental car

agreement showed the car had been rented the day before; however, Smith’s uncle was

the only authorized driver.

{¶5} The trooper asked Smith about drugs in the vehicle, and Smith admitted

that he and Carey had been smoking marihuana. After further questioning, Smith

retrieved a baggie that contained approximately 10 grams of marihuana from his crotch

area. Seabolt acknowledged that possession of this amount would only constitute a

minor misdemeanor. He also admitted that the contents of the baggie were probably

never tested, and he only identified it as marihuana based on his training and

experience. Seabolt testified that it is a common technique for people to have drop

baggies, i.e., small baggies, of marihuana to give an officer to “appease the officer so

that they can go on their way.” Seabolt performed a pat down search of Smith, which

revealed no other contraband. However, Seabolt testified that because Smith wore very

tight jean shorts, he could not satisfactorily pat down the area in the back of his shorts. Ross App. No. 12CA3308 4

Seabolt put Smith in the cruiser. He never gave Smith a citation for the marihuana or

traffic violations. He also never conducted field sobriety tests or determined whether

Smith violated a criminal statute by operating the rental vehicle without authorization.

{¶6} Next, Seabolt questioned Carey, who did not know where the pair was

traveling from. He claimed they just left West Virginia at 11 a.m. that morning and had

only been in Ohio a few hours. Carey also told Seabolt that he and Smith had been

together their whole time in Ohio. Seabolt searched Carey and felt a long, hard object

approximately five or six inches long lodged between Carey’s buttocks. It was a “rock

type hard object and had edges on it.” Seabolt could not positively identify the object at

that time because Carey was being uncooperative. He consistently pulled away from

Seabolt and was “clinching his buttocks.” He kept his feet close together “even after

repeatedly being instructed to not do that and to move his feet apart.” Seabolt testified

that he believed the object was a large quantity of crack cocaine based on his training

and experience. He later testified that he was also concerned the object might be a

weapon. Seabolt handcuffed Carey and secured him in the patrol car while Seabolt and

other troopers searched the vehicle. The troopers found “shake,” i.e. loose marihuana,

spread throughout the passenger compartment of the vehicle. Seabolt had the vehicle

towed because Smith’s uncle, the only authorized driver under the rental agreement,

was not present.

{¶7} Seabolt transported Smith and Carey to a patrol post. They arrived at

approximately 7:45 p.m., roughly one hour and twenty minutes after the initial stop. He

wanted to “afford Mr. Carey the dignity of not having his clothing removed beside * * *

the roadway * * *.” Seabolt brought Smith to the post in part because Seabolt thought Ross App. No. 12CA3308 5

he would have a complicity charge against Smith for whatever drugs he found on Carey.

Seabolt testified that at the post, Smith was in investigative custody and was not free to

call someone to get him. Less than 10 minutes after their arrival at the post, Seabolt

found approximately 70 grams of crack cocaine in between Carey’s buttocks. Seabolt

searched Smith again, with Smith’s outer shorts removed, and found nothing. Seabolt

testified that he believed this search occurred after the second search of Carey but

before Seabolt questioned Smith again. Seabolt told Smith about the drugs on Carey

and said that Smith was going to be arrested for complicity. Smith told Seabolt that he

could provide the location the drugs came from and made other incriminating

statements. According to Seabolt, Smith made these statements approximately 15

minutes after arriving at the post.

{¶8} The trial court denied the second motion to suppress. Smith pleaded no

contest to the charged offense, and the court found him guilty and sentenced him. This

appeal followed.

II. Assignment of Error

{¶9} Smith assigns one error for our review: “I. THE TRIAL COURT ERRED

WHEN IT DENIED SMITH’S SECOND MOTION TO SUPPRESS.”

III. Motion to Suppress

{¶10} In his sole assignment of error, Smith contends that the trial court erred

when it denied his second motion to suppress. Our review of a trial court’s decision on

a motion to suppress presents a mixed question of law and fact. State v. Burnside,

,

,

. When considering a motion to

suppress, the trial court acts as the trier of fact and is in the best position to resolve Ross App. No. 12CA3308 6

factual questions and evaluate witness credibility.

Accordingly, we must 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, without deference to

the conclusion of the trial court, whether the facts satisfy the applicable legal standard.”

Id. at ¶ 8.

{¶11} The Fourth Amendment to the United States Constitution, as applied to

the states through the Fourteenth Amendment, provides: “The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” Section 14, Article I of the Ohio

Constitution also prohibits unreasonable searches and seizures. Because Section 14,

Article I and the Fourth Amendment contain virtually identical language, the Supreme

Court of Ohio has interpreted the two provisions as affording the same protection. State

v. Orr,

,

(2001).

{¶12} Searches and seizures conducted without a prior finding of probable

cause by a judge or magistrate are per se unreasonable under the Fourth Amendment,

subject to only a few specifically established and well-delineated exceptions. Katz v.

United States,

,

,

(1967). Once the

defendant demonstrates that he was subjected to a warrantless search or seizure, the

burden shifts to the state to establish that the warrantless search or seizure was

constitutionally permissible. See Maumee v. Weisner,

,

(1999). In this case, law enforcement did not obtain a warrant for any Ross App. No. 12CA3308 7

purpose.

{¶13} “An officer’s temporary detention of an individual during a traffic stop

constitutes a seizure of a person within the meaning of the Fourth Amendment * * *.”

State v. Lewis, 4th Dist. No. 08CA3226,

. A stop is

constitutionally valid if the officer’s decision to stop the motorist for a “ ‘criminal violation,

including a traffic violation, is prompted by a reasonable and articulable suspicion

considering all the circumstances * * *.’ ” State v. Kilbarger, 4th Dist. No. 11CA23,

, quoting State v. Mays,

,

,

. However, “the officer must ‘carefully tailor’ the scope of the stop

‘to its underlying justification,’ and the stop must ‘last no longer than is necessary to

effectuate the purpose of the stop.’ ” State v. Marcinko, 4th Dist. No. 06CA51, 2007-

Ohio-1166, ¶ 26, quoting Florida v. Royer,

,

,

(1983).

{¶14} “ ‘An officer may lawfully expand the scope of the stop and may lawfully

continue to detain the individual if the officer discovers further facts which give rise to a

reasonable suspicion that additional criminal activity is afoot.’ ” Kilbarger at ¶ 16,

quoting Marcinko at ¶ 26. “[T]he officer may detain the driver for as long as that new

reasonable articulable suspicion continues.” State v. Goggins, 6th Dist. No. L-99-1218,

, *1 (Mar. 31, 2000). “In deciding whether a reasonable suspicion

exists, courts must examine the ‘ “totality of the circumstances” of each case to

determine whether the detaining officer has a “particularized and objective basis” for

suspecting legal wrongdoing.’ ” State v. Spindler, 4th Dist. No. 01CA2624,

, *3 (Apr. 23, 2002), quoting United States v. Arvizu,

, 122 Ross App. No. 12CA3308

,

(2002).

{¶15} Smith does not challenge the constitutionality of the initial traffic stop.

However, he contends that at the time the trooper questioned him about the crack

cocaine found on Carey, his detention had become illegal. Smith suggests that after the

trooper conducted two fruitless searches of him and found no contraband in the vehicle

(aside from the “shake” in the passenger compartment), he should have been free to

leave or call someone to pick him up. He argues that when the trooper questioned him

about the crack cocaine, the trooper had no reasonable, articulable suspicion of any

other criminal activity, i.e., Smith’s complicity in Carey’s possession of crack cocaine.

And Smith claims that because he made statements about the crack cocaine during an

unconstitutional seizure, those statements must be suppressed under the exclusionary

rule.

{¶16} “The exclusionary rule operates to exclude evidence obtained by the

government in violation of the United States Constitution.” State v. Helton,

,

,

(11th Dist.). “The purpose of this

rule is to deter police misconduct.”

“The exclusionary rule reaches not only primary

evidence obtained as a direct result of an illegal search or seizure, but also evidence

that is subsequently discovered and derivative of that prior illegality.” State v.

McLemore,

,

,

(2d Dist.).

{¶17} It is clear that during the initial detention, the trooper developed a

reasonable, articulable suspicion that Smith was involved in criminal activity – personal

possession of contraband. The trooper smelled burnt marihuana when he approached

the vehicle and saw loose marihuana in the vehicle and on Smith’s person. Then Smith Ross App. No. 12CA3308 9

gave inconsistent stories about his travels and lodging. Smith admitted to smoking

marihuana and gave the trooper a baggie of it, prompting the trooper to conduct two

searches of his person and a search of the vehicle. But aside from some “shake” in the

vehicle, the trooper found nothing during these searches.

{¶18} At the latest, after the second search of Smith the trooper’s reasonable

and articulable suspicion that Smith personally possessed contraband dissipated. The

trooper chose not to cite Smith for the traffic violation or minor misdemeanor marihuana

possession, so Smith’s continued detention was not justified by the trooper’s need to

write citations. Thus, Smith’s continued detention and questioning about the crack

cocaine was illegal unless the trooper had a reasonable articulable suspicion of Smith’s

involvement in other criminal activity, i.e., his complicity in Carey’s possession of crack

cocaine.

{¶19} The parties do not dispute the facts.1 Instead, they dispute the import of

those facts, i.e., whether they satisfy the applicable legal standard.

{¶20} Smith argues that it is not reasonable to assume a driver of a vehicle

knows his passenger has contraband hidden beneath his pants and between his

buttocks absent other evidence. The State focuses its argument on the constitutionality

of the trooper’s decision to transport Smith to the patrol post – not Smith’s detention at

the time of his statements about the crack cocaine. Thus some of the facts the State

highlights relate to Smith’s personal possession of marihuana, not complicity in Carey’s

possession of crack cocaine: 1.) the odor of marihuana in the vehicle, 2.) the

1 Smith contends that his detention lasted over four hours. While the traffic stop and continued detention at the patrol post lasted approximately four hours, based on the recordings of the stop and Seabolt’s testimony, Smith made the incriminating statements he seeks to suppress approximately 95 minutes after the stop. Ross App. No. 12CA3308 10

marihuana flakes on Smith and in the vehicle, 3.) Smith’s admission to smoking

marihuana, 4.) the baggie of marihuana Smith gave the trooper, and 5.) the fact that

Smith’s tight shorts hindered the trooper’s initial pat down search.

{¶21} However, additional evidence suggests Smith was complicit in Carey’s

possession of crack cocaine. Smith and Carey were obviously willing to engage in

illegal drug activity together as evidenced by Smith’s admission that the pair had been

smoking marihuana. The pair gave inconsistent stories about the length of their travels.

However, Smith and Carey agreed that they were together their entire time in Ohio, so

Smith would have been with Carey during any drug transactions Carey conducted in the

state. In addition, Smith acted suspicious by operating a rental vehicle without

authorization, giving inconsistent stories about his lodging, and saying he was clothes

shopping in Ohio when there was no clothing in the vehicle.

{¶22} Moreover, Seabolt testified that it is a “common technique, a common

trend for people to have drop Baggies of marihuana, meaning small Baggies of

marihuana, that they’ll give an officer trying to appease the officer so that they can go

on their way.” In other words, it is common for criminals to give a suspicious officer a

token amount of marihuana in the hope that it will quell the officer’s suspicions so he will

not investigate further and find their larger stash of drugs. Thus, the fact that Smith

gave Seabolt a small baggie of marihuana could have been a ploy to detract attention

from the crack cocaine between Carey’s buttocks.

{¶23} We find this to be sufficient evidence to support a conclusion that under

the totality of the circumstances, the trooper had a particularized and objective basis to

suspect Smith was complicit in Carey’s possession of crack cocaine. Accordingly, we Ross App. No. 12CA3308 11

overrule the sole assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED. Ross App. No. 12CA3308 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and the Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.

For the Court

BY: ____________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.