[Cite as State v. Vega,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104058

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

EDWIN A. VEGA DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-599025-A

BEFORE: Blackmon, J., Kilbane, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: February 23, 2017 -i-

ATTORNEYS FOR APPELLANT

Michael C. O’Malley Cuyahoga County Prosecutor

Brett Hammond Daniel T. Van Eleina Thomas Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

John H. Lawson The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103

Brandon J. Henderson Justin M. Weatherly Henderson, Mokhtari & Weatherly Co., L.P.A. 3238 Lorain Avenue Cleveland, OH 44113

PATRICIA ANN BLACKMON, J.: {¶1} The state of Ohio appeals from the trial court’s granting defendant Edwin

Vega’s (“Vega”) motion to suppress and assigns the following error for our review:

I. The trial court erred when it suppressed the evidence.

{¶2} Having reviewed the record and pertinent law, we affirm. The apposite

facts follow.

{¶3} On March 28, 2015, Cleveland State University Police Officer Jeffrey

Madej initiated a traffic stop at E. 18th Street and Payne Avenue in Cleveland, after

allegedly witnessing Vega turn left at a red light. Officer Madej approached Vega’s car,

smelled a strong odor of raw marijuana coming from the vehicle, and advised Vega that

he was going to search the car. Vega was put in the back of the police car. In the center

console and cup holder area of Vega’s vehicle, Officer Madej found three cell phones,

several “raw buds of marijuana,” a small amount of “shake weed,” and an open pack of

hard candy. Officer Madej also found cases of rolling papers, several aerosol canisters

of an “odor masking agent,” and “a white package box, USPS box, on the back seat.”

This box was partially opened and inside were “two white mail packages,” which were

sealed but unlabeled.

{¶4} Vega told Officer Madej that the envelopes contained stickers and refused

to give consent to open the packages. Officer Madej continued to detain Vega, and

approximately 23 minutes into the traffic stop, conferred with other officers and law

enforcement officials, both on the scene and via phone calls, and tried to locate a

narcotics K9 unit. After 38 additional minutes, the police were unsuccessful in locating a K9 unit. Approximately 53 minutes into the traffic stop, Officer Madej wrote Vega

tickets for a traffic infringement and misdemeanor possession of marijuana.

{¶5} In the meantime, the police made a “collaborative decision” to open the

packages. This decision was “based * * * on the strong odor of marijuana coming from

the vehicle.” Inside the packages, Officer Madej found “three large Ziplock clear bags

containing a large amount of Sweet Stone Candy.” This is the same brand of candy that

was found in the center console. It was not until the packages were opened that Officer

Madej realized the candy “could contain THC.” One hour and 12 minutes after Officer

Madej stopped Vega’s car, Vega was arrested for drug trafficking.

{¶6} On September 9, 2015, Vega was indicted with five drug-related offenses.

On January 11, the court held a suppression hearing, and on January 25, 2016, the court

granted Vega’s motion to suppress, finding that Vega was unlawfully detained for an

unreasonable amount of time after the initial search of his vehicle revealed a

misdemeanor quantity of marijuana. The court suppressed the “150 individual packages

of the Sweet Stone candy found in the envelopes that were opened during a

constitutionally impermissible detention.”

{¶7} It is from this order that the state of Ohio appeals.

Standard of Review — Motion to Suppress

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

(Citations omitted.) State v. Burnside,

,

,

.

Law and Analysis

{¶8} The Fourth Amendment to the United States Constitution provides

protection against warrantless searches and seizures. There are exceptions, however, to

the warrant requirement. See generally State v. Smith,

,

,

. “[T]he smell of marijuana, alone, by a person

qualified to recognize the odor, is sufficient to establish probable cause to conduct a

search.” State v. Moore,

,

(2000).

{¶9} However, the Ohio Supreme Court has held that “where police officers

have probable cause to search an entire vehicle, they may conduct a warrantless search of

every part of the vehicle and its contents, including all movable containers and packages,

that may logically conceal the object of the search.” (Emphasis added.) State v. Welch,

,

(1985). See also State v. Young,

,

(11th Dist. 2001) (“[t]he right to be free of unreasonable searches precludes the issuance of a search warrant for a litany of narcotics based upon

the observation of a misdemeanor amount of marijuana”).

{¶10} In the case at hand, the trial court found that Officer Madej’s search of the

envelopes in Vega’s backseat was unreasonable. This finding is supported by Officer

Madej’s testimony that his probable cause to search was based “on the strong odor of

marijuana coming from the vehicle * * * along with other indicators [such as] the

odor-masking agent * * * [and] a lot of rolling papers.” Officer Madej was looking for

“marijuana in its raw form. Bud marijuana. Something that hasn’t been smoked yet.”

He testified that, because the odor was “billowing out of” Vega’s car, he was looking for

more than the three marijuana buds and “shake weed” that he found in the center console.

{¶11} However, Officer Madej also testified that the envelopes “were not the

source of the odor of marijuana.” Additionally, the officer’s testimony is inconsistent as

to what he thought was in the envelopes. He testified as follows during the suppression

hearing: he thought the envelopes contained “individually packaged drugs”; the

envelopes “felt like it was individual bags and it wasn’t consistent with stickers,” and the

packages showed no signs of containing “illicit materials.”

{¶12} As to the hard candy found in the center console of Vega’s car, Officer

Madej testified he “didn’t pay attention to it” when he first found it, that he didn’t find

anything “illicit” about it, and that it had no odor. Officer Madej did not mention the

candy to any of the other officers he conferred with, nor did he mention the candy in

Vega’s traffic citations. In short, Officer Madej was not searching for candy. Furthermore, his testimony supports the finding that Officer Madej had no reason to

believe the large amount of raw marijuana he was searching for was contained in the two

envelopes.

{¶13} This case is on point with State v. Gonzales, 6th Dist. Wood No.

WD-07-060,

, which holds that “compartments and packages within

a vehicle which could contain the illicit object for which the police have probable cause

to believe exist may also be searched.”

{¶14} In the case at hand, the police had probable cause to search Vega’s vehicle

when they found a small amount of loose marijuana and detected a strong odor of raw

marijuana. Officer Madej did, in fact, conduct this search. However, he did not find

any additional marijuana, and he could not get a K9 unit to the scene within a reasonable

amount of time. Vega should have been released after his misdemeanor citations were

issued and the search of the car revealed no further incriminating evidence. If, before

the police completed this search, a K9 unit had alerted that the sealed envelopes may

contain drugs, this may have constituted probable cause to open the envelopes.

Furthermore, if Officer Madej had detected an odor of marijuana coming from the

envelopes or testified that, in his training and experience, raw marijuana was typically

packaged in envelopes of this type, these scenarios may have constituted probable cause

as well.

{¶15} Police may conduct “a canine sniff of the vehicle during a traffic stop, so

long as the duration of the traffic stop is not extended beyond what is reasonably necessary to resolve the issue that led to the stop and issue a traffic citation.” (Citations

omitted.) State v. Greene, 2d Dist. Montgomery No. 25577,

.

Although this case is factually different than Greene in that a misdemeanor amount of

marijuana was found in Vega’s vehicle, the same rationale can be used to determine that

the search of the envelopes violated Vega’s Fourth Amendment rights. In other words,

the police cannot extend the search of a vehicle — after the search revealed no further

contraband — to wait for a K9 unit to arrive and sniff a sealed package.

{¶16} The trial court in the case at hand found that “without more, the smell of

marijuana does not provide probable cause to open every container located during the

search.” Additionally, the court concluded that the “delay while waiting for an answer

via either the ‘sniff’ of trained K-9 officer or legal guidance from superiors exceeded

constitutionally permissible grounds to detain the defendant in this case.” See State v.

Miller, 10th Dist. Franklin Nos. 10AP-1017 and 10AP-1018,

, ¶ 30 (“a

police officer may stop and detain someone for a minor misdemeanor offense, but the

officer is not allowed to arrest that person and conduct a search incident to that arrest”).

{¶17} In conclusion, the smell of marijuana amounts to probable cause to search a

vehicle. However, this is limited to “every part of the vehicle and its contents that may

conceal the object of the search.” U.S. v. Ross,

,

,

(1982). The trial court in the case at hand, after evaluating the credibility of

Officer Madej’s testimony, concluded that the Officer was searching for raw marijuana

and did not believe the envelopes contained this contraband. This factual conclusion is supported by the evidence in the record. The court then concluded that an unreasonable

amount of time passed while the police were looking for another basis for probable cause

to open the envelopes. Accordingly, the court did not err in granting Vega’s motion to

suppress, the state of Ohio’s sole assigned error is overruled, and the trial court’s

judgment is affirmed.

{¶18} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS; MELODY J. STEWART, J., DISSENTS (SEE ATTACHED DISSENTING OPINION)

MELODY J. STEWART, J., DISSENTING: {¶19} The majority concludes both that the officer could not open packages that

did not smell like marijuana and that the officer unreasonably detained Vega while

waiting for a drug sniffing dog. Respectfully, these conclusions are legally unsupported.

{¶20} The search in this case was based on more than a mere suspicion of criminal

activity — the trial judge acknowledged that the officer believed that small amount of

marijuana he saw on initial observation was not enough to account for the very strong

odor of marijuana “billowing” from Vega’s vehicle. On that basis, the trial judge found

that the officer was justified in conducting “a more thorough search.” The trial judge did

not characterize his ruling as “probable cause” to search Vega’s vehicle, but that is the

only reasonable conclusion from the court’s findings. The majority concedes that the

arresting officer had probable cause to search Vega’s vehicle. Ante, at ¶ 14.

{¶21} In general, the Fourth Amendment to the United States Constitution does

not require a warrant to search an automobile when the police have probable cause to

believe it contains contraband or evidence of criminal activity. Carroll v. United States,

,

,

(1927). This exception to the warrant

requirement exists because of the inherent mobility of automobiles and the reduced

expectation of privacy that results from their pervasive regulation.

(explaining

that the ability to move a vehicle quickly “out of the locality or jurisdiction in which the

warrant must be sought” makes it “impracticable to secure a warrant.”); California v.

Carney,

,

,

(1985) (“our later cases

have made clear that ready mobility is not the only basis for the exception * * * [b]esides the element of mobility, less rigorous warrant requirements govern because the

expectation of privacy with respect to one’s automobile is significantly less than that

relating to one’s home or office.”).

{¶22} “If probable cause justifies the search of a lawfully stopped vehicle, it

justifies the search of every part of the vehicle and its contents that may conceal the

object of the search.” United States v. Ross,

,

,

(1982). See also California v. Acevedo,

,

,

(1991) (“The police may search an automobile and the containers within

it where they have probable cause to believe contraband or evidence is contained”) and

(“During virtually the entire history of our country — whether contraband

was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile — it

has been assumed that a lawful search of a vehicle would include a search of any

container that might conceal the object of the search.”) (Emphasis added.)

{¶23} Although the majority concludes that the arresting officer had probable

cause to open and search all containers or packages in the vehicle, it finds that probable

cause to open the sealed envelopes ceased because the arresting officer did not smell

marijuana coming from inside the envelopes. It believes that the arresting officer’s

inability to smell marijuana coming from the envelopes means that he could not have

logically believed that the mailing envelopes contained marijuana.

{¶24} This conclusion is contrary to United States Supreme Court precedent that

“[w]hen there is probable cause to search for contraband in a car, it is reasonable for police officers * * * to examine packages and containers without a showing of

individualized probable cause for each one.” (Emphasis added.) Houghton, 526 U.S. at

302. That the officer may not have detected an odor of marijuana coming from the

envelopes did not vitiate probable cause because the lack of a marijuana odor did not

mean that the envelopes did not contain drug contraband. See, e.g., State v. Dixon, 2d

Dist. Montgomery No. 22147,

(immaterial that police officer

could not detect the smell of marijuana coming from a duffle bag in a car because having

smelled marijuana emanating from the interior of the vehicle, “it was reasonable for the

police officer to search the duffle bag sitting on the rear seat in plain view.”).

{¶25} As this case shows, marijuana can be found in more than just its plant form,

and those alternative forms may be less odoriferous. In addition, drug traffickers go the

great lengths to abate the odor of marijuana, whether by packaging, State v. Mowler, 8th

Dist. Cuyahoga No. 100019,

(vacuum sealing), or using odors as a

masking agent. State v. McGee,

,

, ¶ 25 (7th Dist.)

(cologne often used to mask the smell of marijuana); State v. Fogel, 5th Dist. Licking No.

11-CA-97,

(fabric softener used to mask the smell of large

amounts of marijuana).

{¶26} Smell is not the sine qua non of a drug search supported by probable cause.

For this reason, a drug detecting dog’s failure to alert to the presence of drugs does not

negate probable cause to search a vehicle. See, e.g., United States v. Williams,

,

, *5 (5th Cir. 2005) (holding that, “under the * * * circumstances, the failure of the drug dog to alert did not deprive the officers of

probable cause to search the vehicle”); United States v. Ramirez,

(10th Cir. 2003) (“We will not require investigators to cease an otherwise reasonable

investigation solely because a dog fails to alert, particularly when we have refused to

require that a dog sniff test be conducted at all.”); United States v. Gill,

, 926

and fn. 3 (9th Cir. 2002) (denying defendant’s suppression motion although a drug “dog

did not alert”).

{¶27} Dogs are far better at detecting odors than humans. If a trained drug

sniffing dog’s failure to alert to the presence of drugs does not destroy probable cause, a

police officer’s similar failure to alert to the same drugs cannot be the basis for finding

that probable cause has been destroyed. This is especially so when drug traffickers

actively try to mask the odor of marijuana. In other words, it would be perfectly logical

that a package might not smell. This is not a case where the police were searching for a

tuba by opening a sealed envelope.

{¶28} The second basis for the court’s decision was that the 38-minute delay

occasioned both by the officer’s consultation on the scope of the vehicle search and

obtaining the services of a drug sniffing dog was so unreasonable as to void the search.

{¶29} Because traffic stops are “especially fraught with danger to police officers,”

Michigan v. Long,

,

,

(1983), “an

officer may need to take certain negligibly burdensome precautions in order to complete

his mission safely.” Rodriguez v. United States,

,

,

(2015). An officer may take a reasonable amount of time between the initial traffic

stop and deciding whether there is probable cause to search the stopped vehicle for

contraband, provided that the delay is no longer than that “reasonably required to

complete” the issuance of a traffic citation. Illinois v. Caballes,

,

,

(2005).

{¶30} When a police officer timely determines that there is probable cause to

search a vehicle for contraband, “[t]here is no requirement that the warrantless search of a

vehicle occur contemporaneously with its lawful seizure.” United States v. Johns,

,

,

(1985). While the police “may not

indefinitely retain possession of a vehicle and its contents before they complete a vehicle

search,” requiring the police to conduct an immediate search of containers and packages

discovered during a warrantless vehicle search

would be of little benefit to the person whose property is searched, and where police officers are entitled to seize the container and continue to have probable cause to believe that it contains contraband, we do not think that delay in the execution of the warrantless search is necessarily unreasonable.

.

{¶31} In this case, the court focused on the length of time that elapsed while the

police tried to obtain the services of a drug sniffing dog, but that fact was irrelevant. The

officer had probable cause to search the vehicle, as the trial court found, after the traffic

stop based on the strong odor of marijuana emanating from the car. And because there

was probable cause to search, this finding permitted the officer to open the envelopes —

containers that could reasonably contain the contraband — regardless of whether the services of a drug-sniffing dog could be obtained. The delay in obtaining the services of

a drug-sniffing dog was immaterial and should not have been a factor in deciding the

motion to suppress. I therefore dissent.