State v. Lewis

224 N.E.3d 57

2023-Ohio-3036

STATE of Ohio, Plaintiff-Appellee,

v.Brittany LEWIS, Defendant-Appellant.

APPEAL NO. C-220457

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: August 30, 2023

Criminal Appeal From: Hamilton County Court of Common Pleas, TRIAL NO. B-2103782-B.

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Brian A. Smith, Akron, for Defendant-Appellant.

OPINION.

Bock, Judge.

{¶1} In this appeal, we are asked to consider the narrow application of the automobile exception to the Fourth Amendment’s warrant requirement: whether officers may, in the course of a car search, search a container held roughly 25 feet away from the car. We hold that the automobile exception does not extend to containers removed from the car before officers develop probable cause to search the car.

I. Facts and Procedure

{¶ 2} In July 2021, Cincinnati Police Officers Nicholas Clark and Carl Reed were on patrol when they encountered a car parked in a "no-parking" zone in a cul-de-sac. The officers entered the cul-de-sac and watched defendant-appellant Brittany Lewis exit from the driver’s side door, with her purse in hand, and walk to a nearby townhouse.

{¶3} As the officers approached the end of the cul-de-sac, they ran a search of the car’s license plate. The search revealed outstanding felony warrants for drug trafficking involving the vehicle’s owner, Donnie Dukes.

{¶4} The officers stopped their cruiser and approached the car. The driver’s side door opened, and Dukes emerged after having "crawled over from the passenger’s side seat." The officers noticed a pink cell phone on the driver’s seat and recognized a strong odor of marijuana emitting from the vehicle. Dukes was arrested and placed into the police cruiser. Clark searched the vehicle and found drags in a backpack on the passenger side of the vehicle, and a gun in the center console.

{¶5} As the arrest and search were unfolding, Lewis "turned her attention back towards the vehicle" and walked towards the officers. Clark testified that Lewis stood in the street, approximately 25 feet away from the car, with her purse slung across her shoulder and asked for her phone. According to Clark, Lewis was cooperative and complied with officer instructions. Clark testified that an officer handcuffed Lewis, "removed her purse from her person," unzipped it, and searched its contents. Inside, the officer found and inspected two pill bottles.

{¶6} Based on the search of the purse and pill bottles, the state charged Lewis with two counts of trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(2) and two counts of possessing a fentanyl-related compound in violation of R.C. 2925.11(A).

{¶7} Lewis moved to suppress the evidence, challenging the warrantless searches of the car and her purse. The trial court denied her motion. A jury found Lewis guilty of all four counts. The trial court merged three of the counts into the first count of trafficking-in-a-fentanyl-related compound and sentenced her to 18 months of incarceration. On appeal, Lewis raises four assignments of error.

II. Law and Analysis

{¶8} In her first assignment of error, Lewis argues that the trial court erred when it overruled her motion to suppress. First, she argues that the search of the car violated the Fourth Amendment, disputing the application of the automobile and search-incident-to-arrest exceptions to the warrant requirement. Second, she argues that the automobile exception fails to justify the subsequent search of her purse.

[1] {¶9} An appeal of a trial court’s denial of a motion to suppress " ‘presents a mixed question of law and fact.’ " State v. Thompson, 1st Dist. Hamilton No. C-200388, 2021-Ohio-3184, 2021 WL 4192120, ¶ 10, quoting State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066, 882 N.E.2d 945, ¶ 11 (1st Dist.). The parties agree that Lewis exited from the car and walked to the townhouse before officers arrested Dukes, smelled the marijuana, and searched the car. And they agree that she returned to the cul-de-sac before officers detained her and searched her purse. Therefore, we must independently determine whether those facts " ‘satisfy the applicable legal standard.’ " State v. Curry, 1st Dist. Hamilton No. C-210274, 2022-Ohio-627, 2022 WL 627749, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

[2, 3] {¶10} The Fourth Amendment to the United States Constitution ensures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The search of the vehicle and Lewis’s purse occurred without a warrant, and warrantless searches are per se unreasonable unless the search falls under one of the "‘jealously and carefully drawn’" exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); see Thompson at ¶ 11, quoting State v. Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.). When a warrantless search is challenged, the state carries the burden of showing that the search falls within one of the well-defined exceptions. See Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988); State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 18, citing Athens v. Wolf, 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974).

The Vehicle Search Was Constitutional.

[4–6] {¶11} We begin with the search of the car. Lewis appears to argue that the unconstitutionality of the car search renders the ensuing search of her purse unconstitutional. The Fourth Amendment’s automobile exception justifies "a warrantless search of a lawfully stopped vehicle if [officers] have probable cause to believe that the vehicle contains contraband." State v. Mitchell, 1st Dist. Hamilton No. C-210582, 2022-Ohio-2564, 2022 WL 2965430, ¶ 13, citing United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), and State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000). Warrantless vehicle searches are reasonable given the innate mobility of vehicles, which " ‘can be quickly moved out of the locality or jurisdiction in which the warrant must be sought,’ " Ross at 806, 102 S.Ct. 2157, quoting Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The scope of the search extends to "every part of the vehicle and its contents that may conceal the object of the search." Id. at 825, 102 S.Ct. 2157.

[7–9] {¶12} But officers must have probable cause to believe that the vehicle contains contraband. Id. at 808, 102 S.Ct. 2157. Probable cause is an objective standard. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). An officer has probable cause when the officer possesses "objective facts that would justify the issuance of a warrant by a magistrate." Curry, 1st Dist. Hamilton No. C-210274, 2022-Ohio-627 at ¶ 20. And "[p]robable cause to search a vehicle may be based on odors." Id. at ¶ 21, citing State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262, ¶ 15, quoting Moore at 51, 734 N.E.2d 804.

[10] {¶13} Officers knew that Dukes had outstanding warrants for drug trafficking. Officer Clark described his training and field experience with marijuana. He arrested Dukes and recognized "a strong odor of marijuana coming from the vehicle." It is well established that the smell of marijuana emitting from a vehicle can establish probable cause to search the passenger compartment. Moore at 52, 734 N.E.2d 804; see Curry at ¶ 21. Therefore, the facts known to the officers provided ample reason to believe that the vehicle held marijuana or other evidence of drug activity and the search of the vehicle and containers in the passenger compartment was proper under the automobile exception.

The Purse Search Was Unconstitutional.

[11] {¶14} Turning to the search of her purse, Lewis argues that the automobile exception cannot serve as a basis for the purse search because she had exited from the car before officers approached the vehicle to apprehend Dukes. But the state, relying on our opinion in State v. Mercier, 1st Dist. Hamilton No. C-060490, 2007-Ohio-2017, 2007 WL 1225858, argues that the search of Lewis’s purse fell under the automobile exception. The state does not offer arguments under any other Fourth Amendment exception.

{¶15} Because Lewis had exited from the car before officers developed probable cause to search the car without a warrant, we hold that the search of Lewis’s purse violated the Fourth Amendment.

{¶16} In Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), the Supreme Court of the United States held that, as part of a search of a vehicle’s passenger compartment, officers "may inspect passengers’ belongings found in the car that are capable of concealing the object of the search." In doing so, the Court explained that both drivers and passengers "possess a reduced expectation of privacy with regard to the property that they transport in cars." Id. at 303, 119 S.Ct. 1297. The Court recognized the unique and distinguishable characteristics of cars to justify finding that reduced expectation of privacy, as cars are subjected to extensive government regulations and are frequently exposed to the public view. Id. The Court considered "practical realities," including the competing interests of law enforcement and the public in these situations and concluded that the needs of law enforcement overshadowed "a personal-privacy interest that is ordinarily weak." Id. at 306, 119 S.Ct. 1297.

{¶17} And so, when a passenger’s property in a vehicle is searched, "traumatic consequences are not to be expected." Id. at 303, 119 S.Ct. 1297. The Houghton Court contrasted the search of a passenger’s...