[Cite as State v. Turner,

.]

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

STATE OF OHIO : : Appellate Case No. 26520 Plaintiff-Appellee : : Trial Court Case No. 2014-CR-1597 v. : : (Criminal Appeal from JUSTIN TURNER : Common Pleas Court) : Defendant-Appellant : :

........... OPINION Rendered on the 6th day of November, 2015. ...........

MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

ROBERT L. SCOTT, Atty. Reg. No. 0086785, Oldham & Deitering, LLC, 8801 North Main Street, Suite 200, Dayton, Ohio 45415-1380 Attorney for Defendant-Appellant

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

FAIN, J.

{¶ 1} Defendant-appellant Justin Turner appeals from his conviction and sentence

for Possession of a Controlled Substance, Cultivating Marijuana, and Having Weapons -2-

Under Disability. Turner contends that the trial court erred by overruling his motion to

suppress the evidence recovered from the search of his car, because the officer did not

have a sufficient basis to stop and detain him. Turner also argues that the trial court erred

in overruling his motion to suppress the evidence obtained from a search of his home,

because probable cause did not exist for the search warrant. The State argues that the

officer did have a reasonable suspicion that Turner had committed a traffic offense when

his vehicle was stopped, and that probable cause did exist for a search warrant. The State

contends that after finding marijuana starter plants and hydroponic equipment supplies in

Turner’s car, the search warrant for Turner’s home was based on the suspicion that

further evidence of marijuana cultivation would be found in the home.

{¶ 2} We conclude that the trial court did not err in overruling Turner’s motion to

suppress evidence. The police officer observed Turner commit a traffic offense, which

provided a basis for the traffic stop. The smell of marijuana provided a sufficient basis to

search the vehicle, and the result of the vehicle search was sufficient probable cause to

issue the search warrant for the house. Therefore, the sole assignment of error is

overruled, and the judgment of the trial court is Affirmed.

I. The Traffic Stop and the Searches

{¶ 3} While traveling southbound on Salem Avenue, Turner was observed

traveling at the posted speed limit of 35 miles per hour, but with only one car-length

between his vehicle and the vehicle in front of him. The undercover officer who observed

Turner called a uniformed patrol officer to make a traffic stop for insufficient space

between moving vehicles, a minor misdemeanor, in violation of R.C. 4511.34. The patrol

officer followed Turner’s vehicle until it turned into, and stopped in, the driveway of -3-

Turner’s home on Tennyson. Turner was out of his vehicle, with the driver’s door open,

as the officer approached him and explained that the officer was initiating a traffic stop for

the traffic offense. After Turner gave the officer his driver’s license, a records check

revealed to the officer that Turner had a prior conviction for cultivation of marijuana. The

undercover officer arrived on the scene, and both officers testified that they were able to

smell the scent of raw marijuana from the open door of Turner’s vehicle. Based on the

officers’ suspicion that there were drugs in the car, they searched the vehicle and found

a small baggie of raw marijuana in the console of the front seat. They also found three

live marijuana starter plants located inside an unsealed box in the back seat of Turner’s

car. They found another box on the floor of the back-seat area, which contained

equipment for the cultivation of marijuana.

{¶ 4} Based on the discovery of the cultivation supplies in the car, the officers

decided to search Turner’s house on the suspicion that he was engaged in the cultivation

of marijuana. The officer who first approached the house testified that when he knocked

on the front door, Turner’s girlfriend opened the door, and he immediately detected the

smell of raw marijuana from the interior of the home. He also saw on the floor, inside the

house, near the front door a large Ziploc type plastic bag, containing several smaller

Ziplock type bags, which he believed were the type used to transport marijuana, but he

did not observe any contraband inside the bags. Neither Turner nor his girlfriend

consented to a search of the house, so a call was made to another officer to obtain a

search warrant, and for additional officers to help with the search. While waiting for the

search warrant, the officers on the scene conducted a protective search of the interior of

Turner’s house, for officer safety and to prevent the destruction of evidence. During the -4-

protective search, the officers saw, in plain sight, marijuana growing in the house.

{¶ 5} Approximately one hour after conducting the protective search, the officers

conducted another search of Turner’s home, based on a search warrant. The affidavit

used to obtain the search warrant avers that Turner was stopped by one officer after

another officer observed a traffic offense. The affidavit explains that the officer followed

Turner and made the stop after Turner turned into the driveway of his own residence.

Immediately upon approaching Turner’s vehicle the officer smelled an odor of raw

marijuana emanating from the interior of Turner’s vehicle. The odor was the basis of a

probable cause search of the vehicle, which resulted in the finding of several small

marijuana starter plants. The affidavit for the search warrant also avers that when the

officer approached Turner’s residence and his girlfriend opened the front door, the officer

immediately smelled the odor of raw marijuana and could see bags associated with the

packaging of marijuana. The affidavit includes a statement that Turner was convicted of

cultivating marijuana in 2007. The affidavit did not include any reference to the finding of

cultivation equipment in Turner’s vehicle, the baggie of raw marijuana found in the

console of the car, or anything observed during the protective sweep of the home.

{¶ 6} Based on the second search of Turner’s home, the inventory of items seized

lists a Glock 23 (firearm) with magazines and rounds of ammunition, marijuana seeds,

live marijuana plants, scales, marijuana paraphernalia, dried and processed marijuana

and hydroponic magazines. The police also seized from Turner’s person a bag of

marijuana, a cell phone and $5,614 cash.

{¶ 7} The affidavit used to obtain the search warrant and the inventory of items -5-

seized was admitted into evidence at the suppression hearing, but the facts contained

therein were not identified or discussed by the trial court in its ruling on the motion to

suppress.

II. The Course of Proceedings

{¶ 8} Turner was indicted on one count of Possession of a Controlled Substance,

a fifth degree felony in violation of R.C. 2925.11(A); one count of Cultivating Marijuana, a

fifth degree felony in violation of R.C. 2925.04, and one count of Having Weapons Under

Disability, a third degree felony, in violation of R.C. 2923.13(A)(3). He moved to suppress

the evidence. The trial court issued a written decision overruling the motion to suppress,

finding the officers’ testimony credible, which supported a reasonable suspicion that

Turner had committed a traffic offense, and that the officer detected the smell of raw

marijuana when he approached the car, which justified a search of the vehicle. The trial

court further concluded that the issuance of the search warrant was based on probable

cause, because there was a fair probability that evidence of a crime would be found in

the place to be searched.

{¶ 9} Following the overruling of his motion to suppress, Turner pled no contest,

and was sentenced to community control sanctions, and a mandatory fine of $5,000.

From his conviction and sentence, Turner appeals.

III. Standard of Review

{¶ 10} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier -6-

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Koon, 2d Dist. Montgomery No. 26296,

,

¶ 13 quoting State v. Burnside,

,

,

. “Consequently, an appellate court must accept the trial court's findings of fact if they

are supported by competent, credible evidence. Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion

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

The

application of the law to the trial court's findings of fact is subject to a de novo standard

of review. State v. Gordon, 5th Dist. Fairfield No. 14-CA-13,

, citing

Ornelas v. United States,

,

,

(1996).

IV. The Trial Court Did Not Err in Overruling Turner’s Motion to Suppress

{¶ 11} Turner’s sole assignment of error on appeal states:

THE TRIAL COURT ERRED BY OVERULING THE MOTION TO

SUPPRESS PROFERRED BY DEFENDANT-APPELLANT.

{¶ 12} Turner raises two separate issues in his contention that the trial court erred

by overruling his motion to suppress. First, Turner contends that the trial court erred in

finding that the officers had a reasonable suspicion of criminal activity to warrant a traffic

stop. Secondly, Turner contends that the trial court erred by finding that probable cause

existed for the issuance of a search warrant.

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

individuals from unreasonable searches and seizures. Terry v. Ohio,

,

,

(1968). Under Terry, police officers may briefly stop and/or -7-

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot. State v.

Martin, 2d Dist. Montgomery No. 20270,

, citing Terry. We

determine the existence of reasonable suspicion by evaluating the totality of the

circumstances, considering those circumstances “through the eyes of the reasonable and

prudent police officer on the scene who must react to events as they unfold.” State v.

Heard, 2d Dist. Montgomery No. 19323,

, ¶ 14, quoting State v. Andrews,

, 87–88,

(1991). “A police officer may stop and detain

a motorist when he has a reasonable and articulable suspicion that the motorist has

committed, is committing, or is about to commit any criminal offense, including a traffic

offense, and no independent reasonable and articulable suspicion of other criminal

activity is required under Terry.” State v. Chase, 2d Dist. Montgomery No. 25323, 2013-

Ohio-2347, ¶¶ 15-17, citing State v. Stewart, 2d Dist. Montgomery No. 19961, 2004-Ohio-

1319, ¶ 13; Dayton v. Erickson,

,

(1996).

{¶ 14} Based on the findings made by the trial court, that the officer on the scene

had observed Turner driving too close to the vehicle in front of him, we conclude that the

officer had a reasonable suspicion that Turner was committing a traffic offense when the

officer made the stop. Since the officer’s decision to stop Turner for a criminal violation

was prompted by a reasonable and articulable suspicion, the stop was constitutionally

valid. State v. Mays,

,

,

.

{¶ 15} Because Turner has not challenged the court's determination that the

officer was credible when he testified that he detected the odor of raw marijuana or the

court’s conclusion that the odor gave the officer probable cause to search the car, we -8-

need not address that issue on appeal. See App.R. 16(A)(7). We only address Turner’s

argument that the court should have suppressed the results of the vehicle search because

the search came after an unreasonable traffic stop. Since the stop was constitutionally

valid, based on a reasonable articulable suspicion of a traffic offense, we conclude that

the first issue raised by Turner in his first assignment of error does not provide grounds

to suppress the evidence obtained from the search.

{¶ 16} Turner has raised the issue of whether the averments in the affidavit used

to obtain the search warrant were sufficient to constitute probable cause. While we must

give deference to the court’s factual findings, we note that the trial court made no factual

findings with respect to the contents of the search warrant. Since the affidavit was

entered as an exhibit at the suppression hearing, and made part of the record, we can

view its contents to reach an independent conclusion whether its averments are sufficient

to constitute probable cause.

{¶ 17} We have questioned whether sufficient probable cause exists for the

issuance of a search warrant of a suspect’s home following the discovery of an individual’s

possession of contraband during a traffic stop without some evidentiary link between the

drugs in the car and the suspected drug activity in the suspect’s home. State v. Cole, 2d

Dist. Montgomery No. 23508,

. See also State v. Perez,

,

(2d Dist.). Although we found in Cole that probable cause to issue a

search warrant for an individual’s home was not present based solely on the individual’s

possession of drugs or other evidence of drug trafficking, we found that suppression of

the evidence was not warranted based on the “good faith exception.” Cole at ¶ 30. In the

case before us, we need not address the good-faith exception, because we conclude that -9-

probable cause did exist based on the facts contained in the affidavit. The averments in

the affidavit did present a sufficient evidentiary link between the marijuana plants found

in Turner’s car and a suspicion of drug activity in Turner’s home, because he drove the

marijuana plants to his home, and had a history of being convicted of cultivation of

marijuana. Based on this combination of facts, the trial court properly concluded that there

was a reasonable probability that evidence of drug activity could be found in Turner’s

home.

{¶ 18} Accordingly, Turner’s sole assignment of error is overruled.

V. Conclusion

{¶ 19} Turner’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.

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

WELBAUM, J., concurs.

DONOVAN, J., concurring: {¶ 20} On this record, I agree with the majority’s resolution of this case. However,

I cannot recall a case where the vehicle search was conducted as a result of the police

detecting the odor of raw, i.e., unburnt marijuana in less than significant quantity.

{¶ 21} The record is not fully developed on this point, e.g., the size of the starter

plants in a box in the rear of the vehicle is not established; the quantity of the marijuana

recovered from a sealed baggie in the front console area of the vehicle is not in the record,

and most importantly, the testimony that a relatively small quantity of raw marijuana

emanates an odor was not effectively disputed. -10-

{¶ 22} The trial court accepted the officer’s testimony that the unburnt, raw

marijuana had a noticeable smell. Thus, we must defer to the trial court on this issue.

Nevertheless, whether this is a fact supported by the scientific community is not in this

record, and the officer’s testimony on this point was largely unchallenged, including his

qualifications to detect and discern a distinction between burnt and unburnt marijuana.

..........

Copies mailed to:

Mathias H. Heck Dylan Smearcheck Robert L. Scott Hon. Michael Tucker