State v. Jones

185 N.E.3d 131

STATE of Ohio, Plaintiff-Appellee,

v.Clarence JONES, Defendant-Appellant.

No. 20CA9

Court of Appeals of Ohio, Fourth District, Jackson County.

DATE JOURNALIZED: February 18, 2022

Roger Soroka and Joshua Bedtelyon, Columbus, Ohio, for appellant.

Justin Lovett, Jackson County Prosecuting Attorney, and Rachel E. Daehler, Jackson County Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

ABELE, J.

{¶1} This is an appeal from a Jackson County Common Pleas Court judgment of conviction and sentence. The trial court found Clarence Jones, defendant below and appellant herein, guilty of cocaine possession and sentenced him to serve eight years in prison.

{¶2} Appellant assigns the following error for review:

"THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED DURING AN UNLAWFUL SEARCH AND SEIZURE WHICH VIOLATED APPELLANT'S FOURTH AMENDMENT RIGHTS."

{¶3} During an April 2018 traffic stop, Ohio State Highway Patrol Trooper Matthew Atwood discovered approximately 130 grams of cocaine in a metal box attached to the undercarriage of appellant's vehicle. A Jackson County Grand Jury later returned an indictment that charged appellant with (1) possession of cocaine, in violation of R.C. 2925.11(A) ; (2) trafficking in cocaine, in violation of R.C. 2925.03(A)(2) ; and (3) operating a vehicle with a hidden compartment, in violation of R.C. 2923.241(C). Each drug offense also included a major drug offender specification. Appellant entered not guilty pleas.

{¶4} On October 17, 2019, appellant filed a motion to suppress the evidence discovered during the traffic stop. In particular, appellant asserted that the trooper (1) did not have reasonable suspicion or probable cause to stop the vehicle, and (2) did not have probable cause to search the vehicle.

{¶5} On June 17, 2020, the trial court held a hearing to consider appellant's motion to suppress. Trooper Atwood testified that on April 18, 2018, he noticed a vehicle with a "dark window tint." Also, the vehicle's occupants appeared to lean back so far that he "couldn't see them" and that "it looked like * * * a driverless car." Atwood also noted that the vehicle slowed as it passed the trooper's parked cruiser. At that point, Atwood decided to investigate and followed the car.

{¶6} Trooper Atwood followed the vehicle, he noticed the vehicle again slow down and depress the brakes. At that point, Atwood observed that one brake light did not work and, based upon the missing brake light and dark window tint, he decided to stop the vehicle.

{¶7} When Trooper Atwood reached the vehicle, he asked the driver (appellant) for his license, registration, and insurance. Atwood noticed that appellant and the passenger both were "breathing unusually heavily" and "were shaking." Atwood explained that when appellant handed over his driver's license, his "hand was trembling" and the passenger "was starting to sweat." Atwood also stated that the passenger did not make eye contact even though the trooper stood next to him.

{¶8} Trooper Atwood asked appellant to exit the vehicle and to walk toward the cruiser. Atwood then performed a pat-down search and placed appellant in the back of the cruiser. After Atwood returned to the vehicle and asked the passenger for identification, that at this point the passenger's "sweat was now running down his face." The passenger indicated that he had no identification and he also "was shifting around in his seat." During the passenger's shifting, Atwood detected the odor of raw marijuana emanating from the vehicle.

{¶9} Trooper Atwood returned to his cruiser, read appellant his Miranda rights, and informed appellant that the trooper had detected the odor of marijuana and that he intended to search the vehicle. During the search, Atwood found a black magnetic box attached to the bottom of the vehicle that contained a sock. Inside the sock, a vacuum-sealed bag contained approximately 130 grams of crack cocaine.

{¶10} Trooper Atwood testified that he later measured the window tint and found that the tint provided 44% light transmission.

{¶11} After Trooper Atwood's testimony, the state rested. The court asked appellant's counsel whether they had "any issue with the probable cause for the stop" and appellant's counsel responded "No, Your Honor." Counsel instead agreed that the issue "is whether or not the officer had reasonable suspicion that additional criminal activity was afoot."

{¶12} The trial court subsequently overruled appellant's motion to suppress evidence. The court found that Trooper Atwood detected the odor of marijuana, and that the smell of marijuana gave Atwood probable cause to search appellant's vehicle.

{¶13} On November 19, 2020, appellant entered a no-contest plea to cocaine possession. The trial court found appellant guilty of cocaine possession, dismissed the remaining counts and specifications, and sentenced appellant to serve eight years in prison. This appeal followed.

I

{¶14} In his sole assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress the evidence discovered during the traffic stop. Appellant contends that (1) the trooper did not have reasonable suspicion to stop the vehicle for a window-tint violation, and (2) even if the trooper had reasonable suspicion to stop the vehicle for a window-tint violation, the trooper impermissibly expanded the scope of the stop. Appellant argues that the trooper did not have reasonable suspicion that criminal activity was afoot so as to justify the expanded scope of the stop.

{¶15} Appellate review of a trial court's ruling on a motion to suppress evidence involves a mixed question of law and fact. E.g., State v. Castagnola , 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 32 ; State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8 ; State v. Moore , 2013-Ohio-5506, 5 N.E.3d 41 (4th Dist.), ¶ 7. Appellate courts thus " ‘must accept the trial court's findings of fact if they are supported by competent, credible evidence.’ " State v. Leak , 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting Burnside at ¶ 8. Accepting those facts as true, reviewing courts " ‘independently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.’ " Id. , quoting Burnside at ¶ 8.

{¶16} The Fourth and Fourteenth Amendments to the United States Constitution, as well as Section 14, Article I of the Ohio Constitution, protect individuals against unreasonable governmental searches and seizures. Delaware v. Prouse , 440 U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979) ; State v. Gullett , 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992). "[S]earches [and seizures] conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) ; State v. Roberts , 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 98. "Once a warrantless search is established, the burden of persuasion is on the state to show the validity of the search." Xenia v. Wallace , 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988) (citation omitted).

{¶17} A traffic stop initiated by a law enforcement officer constitutes a seizure within the meaning of the Fourth Amendment. Whren v. United States , 517 U.S. 806, 809–810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, a traffic stop must comply with the Fourth Amendment's general reasonableness requirement. Id. An officer's decision to stop a vehicle is reasonable when the officer has probable cause or reasonable suspicion to believe that a traffic violation has occurred. Id. at 810, 116 S.Ct. 1769 (citations omitted); accord State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23 ; Dayton v. Erickson , 76 Ohio St.3d 3, 11–12, 665 N.E.2d 1091 (1996). Law enforcement officers also may stop a vehicle if they have reasonable suspicion "that criminal activity " ‘may be afoot.’ " " United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; accord State v. Tidwell , 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19 (officer may "make an investigatory stop, including a traffic stop, of a person if the officer has reasonable suspicion to believe that the person is or is about to be engaged in criminal activity").

{¶18} In the case sub judice, although appellant contends on appeal that the trooper lacked reasonable suspicion or probable cause to stop the vehicle, appellant chose not to contest the validity of the traffic stop during the suppression hearing. The trial court asked appellant's counsel about any issue with the vehicle stop, and counsel responded "No." In his post-hearing brief, however, appellant challenged the lawfulness of the initial stop of his vehicle. We therefore question whether appellant properly preserved the issue for purposes of appellate review. State v. Wintermeyer , 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 19, citing Wallace , 37 Ohio St.3d at 218, 524 N.E.2d 889 (defendant may stipulate to, or narrow, the issues that trial court reviewing suppression motion must resolve and that "[a]rguments not made by the defendant at the suppression hearing are, therefore, deemed to have been waived").

{¶19} Nevertheless, we believe that Trooper Atwood articulated sufficient facts that gave him reasonable suspicion or probable cause to stop appellant's vehicle. Atwood stated that the window tint appeared darker than the legal limit and that he noticed a defective brake light. Either of these factors gave Atwood reasonable...