[Cite as State v. Ulmer,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-190304 C-190305 Plaintiff-Appellee, : C-190306 TRIAL NOS. 18-CRB32202A vs. : 18-CRB32202B 18-CRB32202C CORIE ULMER, :

Defendant-Appellant. : O P I N I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Appellant Discharged in C-190304; Affirmed in C-190305 and C-190306

Date of Judgment Entry on Appeal: September 30, 2020

Paula Boggs Muething, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Meagan D. Woodall, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Corie Ulmer appeals from the trial court’s judgment overruling his

motion to suppress. For the following reasons, we conclude that the trial court erred

in determining that the officer had probable cause to search the trunk of Ulmer’s car.

Accordingly, we sustain the assignment of error, reverse the trial court’s judgment,

and vacate the conviction for improperly handling firearms in a motor vehicle. We

affirm the judgment of the trial court in all other respects.

The Motion to Suppress

{¶2} Corie Ulmer was charged with improperly handling firearms in a

motor vehicle, criminal trespass, and possession of marijuana. Ulmer filed a motion

to suppress all of the evidence asserting that the police officers did not have

reasonable suspicion to conduct a Terry stop, the officers exceeded the permissible

scope of a patdown, and the officers had no probable cause to search his car or the

trunk of his car. The city did not file a memorandum in response to the motion to

suppress.

{¶3} At the suppression hearing, Officer Jeff Ruberg, a Cincinnati police

officer, testified that he was working for Downtown Property Management on

December 13, 2018, patrolling their properties with his partner Specialist McGraw.

The officers patrol numerous properties due to problems such as trespassing,

loitering, drinking, and drugs. Ruberg had been working this detail for 17 years.

{¶4} As the officers pulled into the parking lot, Ruberg saw Ulmer sitting in

his car in the parking lot. Ulmer got out of the car and walked toward the building.

The officers parked and approached him before he reached the steps leading to the

entrance of the building. Ruberg suspected that Ulmer was trespassing, and he

requested Ulmer’s driver’s license which he promptly provided. Ulmer made no

2 OHIO FIRST DISTRICT COURT OF APPEALS

sudden movements and was cooperative.

{¶5} Ruberg further testified that he could smell a very strong odor of

marijuana coming from Ulmer, the immediate area, and Ulmer’s car. Ruberg asked

Ulmer if he had been smoking marijuana, and Ulmer admitted that he had smoked

marijuana in his car and threw the butt of a joint out of his car window before the

officers had arrived. He also told Ruberg that he had marijuana in his pocket. At

that point, Ulmer was handcuffed and searched. Ruberg testified that the sole reason

for the patdown was to retrieve the marijuana. After Ruberg recovered a minute

amount of marijuana from Ulmer’s pocket, he placed Ulmer in the back of the police

cruiser.

{¶6} Ruberg testified that he took Ulmer’s car keys and searched his vehicle

because Ulmer, the car, and the whole area smelled like marijuana. He found the

butt of a joint in the passenger’s side door compartment. When he searched the

trunk, he found a loaded Glock 9 mm firearm. Ruberg charged Ulmer with criminal

trespassing, having a firearm in a motor vehicle, and a minor misdemeanor for

possessing marijuana.

{¶7} The video from Ruberg’s body camera was played and submitted into

evidence. The video confirmed that Ruberg and his partner stopped Ulmer as he was

approaching the entrance of the apartment. Ruberg asked him whether he lived in

the building. When Ulmer told them he was visiting his cousin, whom he was

currently calling, Ruberg requested his identification. Ruberg informed Ulmer that

he was trespassing on private property because visitors must park on the street and

must be escorted onto the property by a tenant.

{¶8} Ruberg asked Ulmer if he had just been “hitting a joint cause I can still

3 OHIO FIRST DISTRICT COURT OF APPEALS

smell it.” When Ulmer confirmed that he had been smoking marijuana in his car and

had thrown it out of the car when he pulled up, Ruberg responded, “Well, it’s still

burning wherever you threw it because I can smell it.” Ruberg and his partner both

used their flashlights to search the ground by the apartment entrance for the burning

marijuana.

{¶9} After handcuffing Ulmer and putting him into the police cruiser,

Ruberg searched the car and found a small butt of a burnt marijuana joint in the

passenger’s-side door compartment and proceeded to thoroughly search the car.

Finding nothing more, Ruberg used his flashlight to conduct a cursory search around

the vehicle for the burning marijuana. When he again found nothing, Ruberg

searched the trunk of Ulmer’s car. After finding the firearm, he arrested Ulmer and

charged him. The state admitted the video as an exhibit, and both parties rested.

{¶10} During closing arguments, Ulmer did not challenge his initial stop and

detention. Instead, he only argued that the officers did not have probable cause to

search the car and asked the trial court to suppress the gun. The court made the

following factual findings:

the officers [were] serving an investigation regarding a trespass on

private property and observe[d] the Defendant smelling of marijuana

– may or may not, because I did not mark it down – he admitted he

just smoked it, and threw it down, recovering additional marijuana on

his person with an admission that he was smoking marijuana in the

car as he pulled up to go visit his cousin.

{¶11} The court concluded that the officer had probable cause for everything

he did, with the exception of the search of the trunk. The trial court continued the

4 OHIO FIRST DISTRICT COURT OF APPEALS

hearing to conduct additional research regarding the search of the trunk. To aid the

court, Ulmer submitted a supplemental brief on that issue and conceded that the

initial encounter with the officer was constitutional. Ultimately, the trial court

determined that Ruberg had probable cause to search the trunk due to the odor of

marijuana and Ulmer’s admission that he had thrown marijuana on the ground.

Ulmer has appealed, and in one assignment of error, he argues that the trial court

erred in overruling the motion to suppress because Ruberg did not have reasonable

suspicion to justify a Terry stop, and the warrantless search of Ulmer’s car was

unconstitutional.

Standard of Review

{¶12} Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552,

. “We must accept the trial court’s findings of fact if they are

supported by competent and credible evidence, but we review de novo the

application of the relevant law to those facts.”

{¶13} Under the Fourth Amendment to the United States Constitution and

Article I, Section 14, of the Ohio Constitution, warrantless searches are per se

unreasonable without prior approval of a judge or magistrate, subject to a few well-

established exceptions. See State v. Ward,

,

(1st

Dist.); Katz v. United States,

,

,

(1967).

Under the automobile exception, an officer may conduct a warrantless search of an

automobile if there is probable cause to believe the vehicle contains contraband.

State v. Moore,

,

(2000). “Probable cause is ‘a

belief reasonably arising out of circumstances known to the seizing officer, that an

5 OHIO FIRST DISTRICT COURT OF APPEALS

automobile or other vehicle contains that which by law is subject to seizure and

destruction.’ ” State v. Durham,

,

, ¶ 32 (12th

Dist.), quoting State v. Kessler,

,

(1978).

However, the scope of the search is limited by the object of the search and the places

that may conceal the contraband. State v. Howard, 1st Dist. Hamilton Nos. C-

070174 and C-070175,

.

The Officer did not have Probable Cause to Search the Trunk

{¶14} Ulmer first contends that the officer did not have reasonable suspicion

to detain him. In response, the city argues that Ulmer waived the right to challenge

the initial stop by conceding in his supplemental brief that the initial stop was

constitutional.

{¶15} Although Ulmer challenged the stop in his motion to suppress, he did

not argue that the initial stop was unconstitutional at the suppression hearing, and

he conceded in his supplemental brief that the initial encounter was constitutional.

Thus, Ulmer abandoned this argument and invited any error by the trial court in not

addressing whether the initial stop was supported by reasonable suspicion, and he is

precluded from raising the issue now, even under a plain-error analysis. See State ex

rel. Kline v. Carroll,

,

,

; State

v. Robinson, 4th Dist. Washington No. 16CA22,

, ¶ 32 (a defendant

who abandons a claim raised in his motion to suppress waives even plain error on

appeal).

{¶16} Next, Ulmer asserts that the officer did not have probable cause to

search the passenger compartment or the trunk of his vehicle because the odor of

burning marijuana was outside of the vehicle. Ulmer is mistaken because Ruberg

6 OHIO FIRST DISTRICT COURT OF APPEALS

testified that the odor of marijuana was coming from the car. It is well established

that “the smell of marijuana, alone, by a person qualified to recognize the odor, is

sufficient to establish probable cause to search a motor vehicle, pursuant to the

automobile exception to the warrant requirement.” Moore,

,

. Therefore, the search of the passenger compartment was justified.

{¶17} However, “[a] trunk and a passenger compartment of an automobile

are subject to different standards of probable cause to conduct searches.” State v.

Farris,

,

,

. The “odor of

burnt marijuana in the passenger compartment of a vehicle does not, standing alone,

establish probable cause for a warrantless search of the trunk of a vehicle.” Id. at ¶

52. “This proposition is established by the common sense observation that an odor

of burning marijuana would not create an inference that burning marijuana was

located in a trunk.” State v. Gonzales, 6th Dist. Wood No. WD-07-060, 2009-Ohio-

168, ¶ 21.

{¶18} Ulmer argues that the smell of burning marijuana was insufficient to

provide probable cause to search the trunk. The city contends that the search of the

trunk was supported by the “raw marijuana joint” found in the passenger

compartment, Ulmer’s admissions and possession of a small amount of marijuana,

and the strong odor of marijuana.

{¶19} After a thorough review of the record, we conclude that Ruberg relied

solely on the odor of burning marijuana, standing alone, to justify the search of the

trunk. A review of the video confirms that Ruberg smelled burning marijuana and

scanned the immediate area around the car and searched the inside of the car for the

source of the odor. Ruberg believed that the marijuana was still burning based upon

7 OHIO FIRST DISTRICT COURT OF APPEALS

the strong odor in the general area. Ruberg did not find raw marijuana in the car; he

found the burnt end of a marijuana joint. Moreover, Ruberg did not testify that he

smelled raw marijuana or that he was trained to detect the odor of raw marijuana.1

The sole focus of Ruberg’s search was the source of the odor of burning marijuana.

Thus, the odor of burning marijuana did not support a search of the trunk. See id.;

Farris at ¶ 52.

{¶20} Contrary to the city’s argument, this is not a case where additional

factors indicating drug activity were present to justify the search of the trunk. For

example, Ruberg did not find drug paraphernalia, scales, or a large quantity of cash.

See, e.g., State v. Braxton, 12th Dist. Warren No. CA2019-03-019,

, ¶

18 (finding that the discovery a prescription pill bottle and a cellophane wrapped

oxycodone pill in the center console, in addition to the odor of burnt marijuana,

provided probable cause to expand the search to the trunk); State v. Quaker, 3d Dist.

Allen No. 1-19-33,

(probable cause was established when

the trooper saw raw marijuana shake in the car and felt large quantities of cash in

defendant’s pockets, defendant provided an expired rental agreement, defendant was

not the person named in the agreement, and no additional drivers were authorized to

drive the car); State v. Whatley, 5th Dist. Licking No. 10-CA-93,

(officer found marijuana in the passenger compartment of the car in plain view,

was given a false name by defendant, and the driver made an attempt to get into the

trunk as she was walking toward the officer’s cruiser).

{¶21} Accordingly, we sustain the assignment of error because the officer did

not have probable cause to search the trunk.

1 Presumably, the city would have elicited testimony regarding Ruberg’s training to detect the odor of raw marijuana had the officer testified that he smelled raw marijuana.

8 OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶22} We sustain the assignment of error, reverse the trial court’s judgment

in the case numbered C-190304, reverse the conviction for improperly handling

firearms in a motor vehicle, and Ulmer is discharged on that count. We affirm the

judgments of the trial court in the cases numbered C-190305 and C-190306.

Judgment accordingly. MYERS and CROUSE, JJ., concur.

Please note: The court has recorded its own entry this date.

9