^^.

IN I'HE SUPREME COURT OF OHIO

STATE OF OI-IIO CASE i^10 101 ^"JIL

Plaintiff-Appellee,

- VS -

On Appeal from the LorainCounty Court of Appeals,Nintli Appellate District

I3FZETT JONES,

IJef:end ant-Appe ll ant.

Court of Appeals Case No.12CA010270

MEMORANDUM IN StJPPORT OF JURISDICTIONOF APPEI,LANT I3RETT JONES

PAUI.a GRIFFIN 40073561PAUL, A. GRIFFIN Co., L.P.A.600 Broadway, 2d FloorLorain, Ohio 44052Ph: (440) 245-5565Fax: (440) 244-0811paraffin44052Cc^;yahoo.c:oznATTORNEY F'OR APPELLANT, BRETT JONES

Mary R. SlanczkaAssistant Lorain County Prosecutor225 Court Street, 3d floorI:Ivria, Ohio 44035(440) 329-5454ATTORNEY FOR APPELLEE, STATL OF OI-IIO

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TABLE OF (:ONTENTS

TABLE OF CON'I'I ;NTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONALQI1EST'1ON, AND IS A CASE OF PLiBLIC OR GREAT GENNERAL INTEREST, ANI) WHYLEAVE TO APPEAL. SHOULD BE C'iR.ANTTED IIV' THIS FELONY CASE . . . . . . . . . . . . . . . . I

5TA"I'EMENT OF THE CASE AND 1~ACTS . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 2

ARGUIVIENT IN StTPPORT OI: PROPOSITION OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PROPOSITION OF LAW NO l:

When a law enforcement officer detects the odor of raw marijuana enianating from

the passenger compartment of a vehicle lawfully stopped, and upon searching the

passenger compartment, locates the source of the odor within the passenger

compartment, probable cause to search the vehicle does not extend to a search of the

trunk, unless the officer can articulate additional facts supporting probable cause to

believe that raw marijuana would also be found in the trunk. State v. Farres,109

Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION ..................................... ..................... 15

CERTIT'ICA'r'r? OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Opiiiion of th.eLorain County Court of Common Pleas granting Defendant'sMotion to Suppress Evidence(August 17, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A 1-4

Opinion of the Ninth District Court of Appeals(June11,2013). .... ................................... .........BI-.20

z

EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIALCl7NSTITUTIONAL QUESTION, IS A CASE OF PUBLIC OR GREAT

GENERAL INTEREST, AND WHY LEAVE TO APPEAL SHOULDBE GRANTED IN THIS FELONY CASE

In S.tczte 1,. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, this C.ourt held

that the trunk and the passenger compartment of a car are subject to different standards of

probable cause under the Ohio Constitution to conduct warrantless searches. In this case, an Ohio

State Trooper testified that his decision to search a bookbag located in the trunk of Appellant

Brett Jones's car was based solely on his detection of the odor of raw marijuana emanating froni

the passenger compartmont of Mr. Jones's car. The trial court suppressed the evidence found in

the bookbag. Relying on Farris, the trial court held that the Trooper's observations, while

providing probable cause to search the passenger conipartrnent, did not provide probable cause to

search the trunk. (Journal Entr)), dated 8-17-12; R. at 24; Appendix, Al-4).

"The Ninth District Court of Appeals reversed. State v. Jones, 9'n Dist. No. 12CA010270,

2013-Ohio-2375 (Appendix, B l 20). In a two-to-one decision, the Ninth District concluded that

Faryis only involved an analysis of the Ohio Constitution's Self-Incrimination Clause of Article

I, Section 10, not an evaluation of the Search and Seizure Clause of Article I, Section 14. Iones,

^15-I6. "I'he Ninth District further concluded that the search of Mr. Jones's trunk was permissible

because "the Ohio Constitution, like the United States Constitution, does not prohibit warrantless

searches of aii automobile trunk after law enforcement has found contraband in the passenger

cornpartmerlt." Id. at T,,,,20.

'I'he dissent disagreed with the majority's conclusion that Fctrf•is did, not involve an

evaluation of Article l, Section 14 of the Ohio Constitution, noting that this Court specifically

considered whether the officer had "probable cause to search an entire vehicle, including its

trunk, when he smells the odor of burnt marijuana conaing from the vehicle." Id, at T,30

(Belfance, J., dissenting). quoting State v. Farris. Regarding the search of the trunk itself; the

dissent agreed with the trial court's application of Farris, and concluded: "[u]nder the

circumstances of this case and recognizing the distinction between the probable cause to search a

trunk versus the search of the passengercompartment pursuant to .Farris, I would conclude that

probable cause did not exist to search the trunk."' Id.

'fhis Court should take this case for two reasons. First, to correct the Ninth District's

mistaken conciLision that Farris was limited to confessions, not searches and seizures. Second, to

reaffirin the holding in Fcra•ris that "a ti•unl: and a passenger compartment of an automc>bile are

subject to difterent standards of probable cause to conduct searches." Farri.s, at ^150. Under both

Article I, Section 14 of the Ohio Constitution, and the F aurth Amendment to the United States

Constitution, a police officer's detection of an odor of marijuana in the passenger cornpartment

of a car does not, ipso fuc.to, justifv a bumper-to-bumper search of the entire car and its contents.

"I'he search of the trunk of a car must be separately analyzed, and is justified oiily where it is

based on objective facts which would justify the issuance of a search warrant by a magistrate

supported by probable cause.

STATEMENT OF THE CASE AND FACTS

This case arises from the traffic stop of Appellant Brett Jones on the Ohio Turnpike in

Lorain County. (Tr. at 4-5). Trooper Daniel Morrison of the Ohio State Patrol. testified that he

stopped Mr. Jones's car because he observed it traveling in excess ox:l.he speed limit. (Tr. at 5-6.

13. 14, 24). After stopping the car, 'I'pr. Morrison approached the passenger side of the car and

2

made contact with Jones, who was the driver and only occupant of the car. (Tr. at 6, 21). The

passenger window was already rolled down, and 'I'pr. Morrison testified that he smelled "an odor

of raw marijua:na coming from the vehicle." (Tr. at 6). Tpr. Morrison further testified that Mr.

Jones seemed "irritated" at being pulled over, was "pretty shaky," and "appeared nervous." (Tr.

at 6). Mr.Jones produced a valid driver's license. (Tr. at 6).

Tpr. Morrison then asked Mr. Jones to exit the car. Tpr. Morrison explained that he did

this because "since I smelled an odor of raw marijuana, I knew I was going to be searching the

car, so I had to remove [Mr. Jones] from the vehicle." (Tr. at 7). He elaborated, "when I smell

raw marijuaiia, I was trained that the trunk, you can search that, with the sinell of raw marijuana."

(Tr. at 22).

Tpr. Morrison brought Mr. Jones back between his cruiser and Jones's car and asked for

consent to pat Iiim down, which Jones gave. (Tr. at 7). During the pat down, another Trooper,

Sergeant Laughlin, arrived on scene and approached Mr. Jones's open passenger window and

placed his head inside. Sgt. Laughlin (wlio did not testify at the suppression hearing) said to Tpr.

Morrison, "somebody has weed in the car; or there's been weed in there before." (Tr. at 8, 22).

After the pat-down (which evidently produced no evidence), Tpr. Morrison placed Mr.

Jones in the back of his patrol car. (Tr. at 8). According to "I'pr. Morrison, Mr. Jones continued to

exhibit signs of nervousness. (Tr. at 8). While Mr. Jones remained seated in the patrol car,

Morrison and Laughlin began searching the passenger compartment of Jones car. (Tr, at 9).

During the search, Sgt. Laughlin discovered "marijuana shake" on the passenger floorboard and

passenger seat. (Tr. at 9, 17, 24). Neither Trooper collected or tested the alleged shake to confirm

that it was marijuana. (Tr. at 18).

3

After searching the passenger compartinent, Tpr. Morrison searched the trunk of the car.

(Tr. at 10). Inside the trunk he located a bookbag. He opened the bookbag and found a large

yellow envelope. He opened the envelope and found marijuana. (Tr. at 10). Also inside the

bookbag, Tpr. Moi-rison found a wlrile plastic grocery bag which he opened and found "60

bindles of heroin." (Tr. at 10). I-1e also found a black trash bag in the trunk which contained more

heroin. (Tr. at 10). The heroin found in the trunk of the carformed. the basis for the charges in the

indictment in this case.

Mr. Jones filed a motion to suppress the evidenee found in the car. The trial court granted

the niotion on the basis that the odor of marijuana coming from the passenger compartment,

along with the Tzooper's discovery of "shake" in the passenger compartment, did not provide

probable cause to search the trunk. The trial court concluded that there was no evidence that the

Trooper detected the smell of marijuana emanating from the trunk, and that the trace amountsof

marijuana on the floor were therefore the object of the marijuana smell. Having discovered the

object of the smell in the passenger compartment, the Trooper did not have probable cause to

search the trunk. The trial court ruled that the search of the trunk was unlarvful pursuant to this

Court's decision in Vate v. Farr•is, stating:

"Wlien a law enforcement officer detects the odor of raw marijuana emanating from thepassenger compartment of a vehicle lawfully stopped, and upon searching the passengercompartment, locates the source of the odor within the passenger campartment, probablecause to search the vehicle does not extend to a search of the trunk, uniess the officer canarticulate additional facts supporting probable cause to believe that raw marijuana wouldalso be found in the trunk." (R. at 24; Appendix A 1-4).

The State appealed the trial court's grant of Mr. Jones's Motion to Suppress. The Ninth

District reversed. The Ninth District held that the trial court had "misread" Farris. According to

4

the majority, Farris involved an analysis of the Ohio Constitution's Self-Incrimination Clause of

Article I, Section 10 of the Ohio Constitution, not an evaluation of the Searches and Seizures

clause found in Article 1, Section 14. .Iones, ^15-16. Because Jones was not "attempting to

exclude evidence based on statements he made," id. atT16, the majority concluded that Fur•Yis

was inapplicable. But after finding Fcrrf-i,s inapplicable, the Court nevertheless concluded that the

discovery of contraband in the passenger compartment provided probable caLlse to search the

entire car, including the trunk and its contents. IrI at'^2t?. 'Ihe Ninth llistrict therefore abandoned

this Court'srequirement in Fari°is that the State show "other factors justifying a search beyond

the passenger compartment," FryNis, at tc`52, to justify a search of the trunk.

The dissent disagreed with the majority's conclusion that Furi•is did not involve an

evaluation of Article I, Section 14 of the Ohio Constitution. In Frris, this Court considered five

issues for review, one of which was wliether the officer had "probable cause to search an entire

vehicle, including its trunk, when he smells the odor of burnt marijuana coming from the

vehicle." Id. at ^'30 (Belfance, J., dissenting), quoting State ti-?; Farrris.

The dissent further disagreed with the majority's application of FizNT°is to the facts of the

case., stating: "[u]nder the circui»stances of this case and recognizing the distinction between the

probable cause to search a trunk versus the search of the passenger compartment pursuant to

Fccryis, I would conclude that probable cause did not exist to search the trunk."' Ic1 at !j32. Given

the extent of the search which may be condticted based on probable cause ("an officer essentially

has the ability to dismantle the vehicle, looking in the upholstery, in the doors, and in the

engines," id.), the dissent concluded at^,i32:

"The Foutth Amendment is supposed to protect citizens from unreasonable searches and

seizures, and I cannot believe that an expansive search of a trunk based on a minuteamount of marijuana found in the passenger conipartment could be considered reasonableor supported by probable cause."

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

1. When a law enforcement officer detects the odor of raw marijuana emanating from

the passenger compartment of a vehicle lawfully stopped, and upon searching the

passenger compartment, locates the source of the odor within the passenger

compartment, probable cause to search the vehicle does not extend to a search of the

trunk, unless the officer can articulate additional facts supporting probable cause to

believe that raw marijuana would also be found in the trunk. State v. Farris, 109

Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.

"I'he Fourth and Fourteenth Amendments to the United States Constitution, and Article 1.

Section 14 of the Ohio Constitution, prohibit unreasonable searches and seizures. A warrantless

seizure is Per• se unreasonable, unless it falls within one of the recognized exceptions to the

warrant recluirei-nent. Katz v. t,'niled States, 389 U.S. 347, 88 S.Ct. 507, 19 I,.Ed.2d 576 (1967);

S'taIe v. Pies, 140 Ohio App.3d 535, 748 N.E.2d 146 (15i Dist.2000). Ortce a warrantless search is

established, the burden of proof is on the State to prove an exception to the warrant requirement.

Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988).

One of the exceptions to the warrant requirement is the automobile exception. t?nder this

exception, a car inay be searched without awarrant only if there is probable cause to believe that

it contains contrabartd. Carroll v. L%nited State.s, 267 U.S. 132, 45 S.Ct. 280, 69 L.F,d 543 (1925);

tlniled States v: Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Probable cause to

search a car is established if, under the "totality of the circumstances" there is a"fair probability"

6

that the car contains contraband or evidence. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317,

76 I,.l ;d. 2d 527 ( 1983).

In ^S`tate v. Fzrrris, a State Trooper stopped the defendant for speeding. Upon approaching

the vehicle, the Trooper smelled an odor of burnt marijuana coming from inside the car. 13ased

on these observations, the `I'rooper searched the trunkof the car and found a marijuana pipe and

papers in a closed, opaque container, Farris, at ^5.

This Court rejected the State's argument that the Trooper had probable cause to believe

that the trunk of the car contained contraband due to his detection of the scent of marijuana

emanating from the passenger compartment, stating at ^;50-51:

"A trunk and a passenger compartment of an automobile are stibject to different standardsof probable cause to coiiduct searches.... The odor of burnt marijuana in the passengercompartment of a vehicle compartment does not, standing alone, establish probable causefor a warrantless search of the trunk of the vehicle."

"I'his Caurt cited United StUtes v. Nielsen; 9 F.3d 1487 (102h Cir.1993) in support of its

determination that the passenger compartment and trunk are subject to different standards of

probable cause. In Nielsen, a police officer stopped the defendant for speeding. After

approaching the car, the officer "recognized the smell of burned marijuana coming from the open

wizidow of Nielsen's vehicle." Id. at 1488. "I,he officer asked for consent to search the car;

Nielsen consented to a search of the passenger compartment, but not the trunk. Id. After finding

nothing in the passenger compartment, the officer searched the trunk without Nielsen's consent

and found two kilograms of cocaine. Icl. The District Court denied defendant's motion to

suppress. On appeal, the Tenth Circuit reversed, finding that the facts and circumsta.tlces known

to the officer did not establish a"fair probability that the trunk contained marijuana, or that a

7

disinterested magistrate would so hold if asked to issue a search warrant." Id. at 1491.

The Tenth District began its analysis by noting that probable cause to search a car is

established if, under the "totality of the circumstances" there is a "fair probability", that the car

contains cozitraband or evidence. Id. at 1490-91, citing Illinois v. Gates, 462 U.S. 213, 238, 103

S.Ct. 2317, 76 LEd.2d 527 (1983). The scope of a warrantless search is not unlimited, but is

instead "defined by the object of the search and the places in which there is probable cause to

believe that it may be found.'' Icl at 1491 (Punctuation and citation omitted).

The Terith District analyzed several prior cases where it held that the odor of znarijuana,

along with otller evidence, provided probable cause the search the car and its trunk. Icl at 1490.

The court distinguished those cases on the ground that facts other that the smell of marijuana

gave the officers a specific reason to believe that contraband would be found in the trunk. But in

the prior cases, "the search itself established the validity of the smell. In a1lof the searches

pursuant to the smell, marijuana N>as fvund in the area it tiacruld he expected to be, fUund," Id at

1491 (Emphasis added, footnote omitted).

Several Courts in Ohio have applied the analysis in FaF•y-is and Nielsen when evaluating

trunk searches. And these courts have required the State to establish specific facts whichwould

justify a separate search of a trunk. In State v. Price, 6`h Dist. -No. S-11-037, 2013-Ohio-130, the

defendant was a passenger in a car which was stopped for speeding. The driver did not have a

driver'slicense, and the officer determined that he possibly had a warrant for his arrest. The

offxcer searched the driver and found a large amount of cash in his pocket. He also smelled the

odor of burnt marijuana on the driver's person and inside the car, and detected the odor of

alcohol on the driver. Icl at^3. Afterconductirtg field sobriety tests on the driver, the officer

8

decided to arrest him and placed him in the back seat of his cruiser. Id.

T'he officer then removed defendant Price from the car to perform field sobriety tests on

him to determine whether he was sober enough to drive the car home. Id. at ^j4. Mr. Price was

nervous and fidgety during the tests. The officer asked him if he had "anything on him," icl., and

Price responded by emptying out his pockets. .Id. Price pulled out a piece of cellophane plastic

and told the officer it was "a piece that I didn't smoke earlier." Id.. The officer arrested Mr. Price

"under suspicion of having some sort of drugs or something with that cellophane." Id.

The officer then searched the passenger compartment of the car finding a small bag of

marijuana between the front console and the passenger seat. Ele continued searching and found a

bag in the back seat that smelled of marijuana. Id. at'1,6. Tlie officer then searched the trunk of

the car finding more marijuana. Id.

The trial court granted defendant's motion to suppress. Id. atT,18. The Sixth District

reversed. The first part of its analysis dealt with the application ofArizcJna v. Gant, 556 U.S. 332,

129 S.Ct. 17I0, 173 L.Ed.2d 485 (2009), where the t?nited States Supreme Court held that the

search of the passenger cainpartment of a car is permissible where the arrestee is within reaching

distance of the vehicle, or it is reasonable to believe that the vehicle contains evidence of the

offense for which he was arrested. Price, at ^ 10. The Sixth District concluded that the search of

the passenger conlpartment was permissible under Gant, because the odor of burnt marijuana, the

large arnount of cash in the driver's pocket, and the cellophane wrapper found in Price's pocket

gave the officer a reasonable belief that the passenger compartnient of the car contained fiarther

evidence of the offense for which Mr. Price was arrested (i.e., possession of drugs). Id. at^17.

Ilowever, the evidence found in the trunk was not justified under Gant, because Gant is

9

limited to a search of the passenger compartment, not the trunk. For the evidence found in the

trunk to be admissible, it must be under a different justification, which the Sixth District

identified as the "automobile exception" found in C,'cirroll v. United States, 267 U.S. 132, 45

S.Ct. 280, 69 L.Ed. 543 (1925), and UyaitedStates v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72

L.Ed.2d 572 (I982). I'rice, at ¶12. The court noted that while the State need not prove exigent

circumstances to justify a search under the automobile exception, "the scope of a warrantless

search of an automobile based upon probable cause may nevertheless be limited." Id. at ¶16. I'he

Court observed at ¶16:

"After an officer has probable cause to believe that a vehicle contains contraband, apermissible search of the vehicle`is defined by the object of the search and places inwhich there is probable cause to believe that it may be found.' Sttate v. Gonzales, 6'h Dist.No. V4'D-07-060, 2009-0hio-168,^17, citing tInited States v. Ross. Thus, forexample, the `odor of burnt marijuana in the passenger conlpartment of a vehicle doesnot, standing alone, establish probable cause for a warrantless search of the trunk of avehicle.' Vate v, Farris, ¶52. `This proposition is established by the common senseobsetvation than an odor of burning marijuana would not create an inierence that burningmarijuana was found intlie trunk.' Gbnzales at¶21. However, where an officer detects astrong odor of raw nzarij uana, but no large amount is found within the passengerconipartment of the vehicle, the officer has probable cause to search the trunk. CTonzales,suhra. Hence, [i] f probable causejustities the search of a lawfully stopped vehicle, itjustifies the search of every part of the vehicle and its contents that may conceal theoMject of the search.' Ross at 825."'

Applying this test, the Sixth District found the officer had sufficient probable cause to

search the trunk of the car. T11e odor of burnt marij uana, the large amount of cash, the fact that

the driver did not have a license, Mr. Price's nervousness, the cellophane wrapper, and actual

rnarijuana found in the passenger compartment, gave the officer reason to believe that "there may

be more marijuana in the vehicle." Ie.l. at ¶5.

'Che concurrence in Price agreed with the majority's analysis of Gant, and I'urris, and

10

agreed that there was probable cause to search the truiik. In the concurring Judge's opinion, the

officer's discovery of the marijuana in front seat, and a related bag in the back, provided

"sufficient probable cause to believe nacre contrcrband tivotalcl he foisnd iy? the truhk.'° Id. at

But, the concurring Judge found that the facts "narrowly distinguish[ed]," id at^39, this case

from Fars•is, and that had the officer not discovered the two bags in the passenger compartment,

"a subsequent warrantless search of the trunk would have been t3nreasona.ble under Fur•Yis '

stricter standard.'' Id at ¶40.

In State v. Grirfith, 2d Dist. No. 24275, 2011-C)hio-4476, the Second District determined

that an officer had probable cause to search the trunk of a car where he saw a bag of iriarij uataa on

the console between the driver's and passenger's seats. But, the officer's observations of the

passenger compartment did not, ipso_fcrcto, provide probable cause to search the trunk. " The

Fourth Amendrnent limits searches to plczces ivher•e evidence of criminal crctivity is likely to be

. fozcnd." Id. at T121. In applying f ayris, the Second District noted that the odor of marijuana in the

passenger compartment does not automatically mean marijuana will be found in the trunk. "The

point of distinction is whether the character or nature of drugs found `in plain view' (or smell) in

the passenger compartmei3t presents a likelihood that the vehicle's trunk contains drugs or other

contraband, st.lch that a search of the trunk is justified by the automobile exception to the warrant

requirement." Id

The trial coxart and dissent in this case applied Fcry-ris in a manner similar to the Courts in

Price and Gr°ff.fah. While the Trooper's observations gave him probable cause to investigate the

passenger compartment, there was no evidence which gave him a reason to believe there was

nlore marijuana in the car. C;ompare, State v. Fogel, 5" Dist. No. I I-CA-97, 2012-0hao-196(},

11

41[24 ("The trooper's testimony the small amount of marijuana discovered on the floorboards was

izisuffzcient to explain the detected odor of raw marijuana emanating from the vehicle is crucial

to our decision the officers were justified in searching the trunk of the vellicle in addition to the

driver's compartment."); State v. Gonzales, 6" Dist. No. WD-07-060, 200y-Ohio-1 fi$, T23 (If

and officer detects an overwhelming odor of raw marijuana which causes him to believe that the

vehicle contains a large amount of raw marijuana, and "no large amount of raw marijuana is seen

in the passenger compartment, the officer is justified in believing that a large amount of raw

rnarijuana may be found in a container or compartment - including the trunk."),

The Trooper in this case took his authority to search for granted. Once he detected the

odor of marijuana emanating from the passenger compartment, he assuTned he had the right to

conduct a burnper-to-bumper search of the car. But, he offered no explanation to justify a belief

that a search of the trunk would reveal more marijuana. The trial court and dissent correctly

concluded that the Fourth Amendment of the United States Constitution, and Article I, Section

14 of the Ohio Constitution, prohibit this type otwarrantless search,

The trial cotu-t and dissent's analyses are consistent with this Court's holding in Earris.

And this Court's analysis in FaYris is consistent with the United States Supreme Court's analysis

in United States v. Ross. In Ross, the police received information trom a reliable inforinant that

Ross was selling narcotics out of the trunk of his car. Ross, 456 U.S. at 800. The informant had

witnessed a sale, and Ross had told the informant that additional narcotics were in the trunk of

the car. Id. Acting on this information, the police went to the area where the inforinant indicated

Ross would be located and stopped Ross's car. The officers ordered Ross out of the car and

found a bullet where he was seated. Id. at 801. 'I'he officers searched the interior of the car and

12

found a pistol in the glove compartment. Ross was arrested and handcuffed, and the officers

proceeded to search the trunk of his car where they fou.nd narcotics in a brown. paper bag and a

leather pouch. Id. at 801.

'Ine Supreme Court held that the search of the trunk, and the containers in the trunk, did

not violate the Fourth Amendment. Specifically, the Court held that where the police have

legitirnately stopped an automobile, and have probable cause to believe that contraband is

concealed sornervhere within it, they may conduct a warrantless "search of the vehicle that is as

thorough as a magistrate could authorize in a warrant 'particularly describing the place to be

searched."' Id. at 800, quoting the Fourth Amendment to the United States Constitution. "The

probable cause determination must be based ozi objective facts that could justify the issuance of a

warrant by a rnagistrate." Ici: at 808.

Ross has often been inistakenly cited for the proposition that where probable cause exists

to search a passenger compartment, the probable cause, ipso facto, extends to the entire car. See

e.g., ,State v. Greenrtioott, 2d l)ist. No. 19820, 2004-Ohio-2737 (the observation of marijuana on

the passenger seat and floorboard gave him probable cause to search the entire vehicle); :State v.

ff'hcztley, 5t" Dist. No. 10-CA-93, 2011 -C)hio-2297. The majority in this case adopted this

mistaken interpretation of both Ross and Farris. It held that the discovery of contraband in the

passenger compartment provided probable cause to search the trunk. It did not require a separate

showing of how these observations gave the officer probable cause to believe that the trunk

would contain contraband. Jones, at ^19-20.

But a carefut reading of Ross shows that the Supreme Court did not intend this broad of a

}rolding. The Cour-t placed limitations on the scope of a warrantless search, stating: "[t]he

13

rationale justifying a warrantless search of an automobile that is believed to be transporting

contraband arguably applies with equal force to any movable container that is believed to be

car°ry,ing an illicit substance." Id. at 809 (Emphasis added). "fl warrant to search a vehicle would

support a search of every part of the vehicle that niiglzt contain the object of tlie search." IcI at

821 (Eniphasis added). "The scope qf a ivayrcrntless search based on probable cause is no

narrower- and no broader - than the scope of a search authorized by a warrant supported by

probable cause." Id. at 823 (Emphasis added). Further, it concluded:

"t^^here police officers have probable cause to search an entire vehicle, they may conducta warrantless search of every part of the vehicle and its contents, including all containersand packages, that may conceal the object of the search. The scope of the search is notdefined by the nature of the container in which the contraband is secreted. Rather, it isdefined by the object of tdresearch and the Irlacesin ivhich there is probable cause tobelieve that it rncty be found. For example, probable cause to believe that undocumentedaliens are being transported in a van wili not justify a warrantless search of a suitcase." Iilat syllabus (c)(Empllasis added).

The Supreme Courttherefoxerejected the notion that the discovery of an item of

contraband in a car, ipso fucto, establishes probable cause to search other parts of a car. Rather,

the Supreme Court placed a burden on the Government to produce evidence, the quality of which

would be sufticient to convince a neutral and detached magistrate that there was probable cause

to issue a search warrant "partieularlydescribing the place to be searched." Id at 800. See also,

United States v. C'aYter; 300 F.3d 415, 422 (4°' Cir.2002)("probable cause must be tailored to

specific compartments and containers within an automobile."); Cornmonwealth v. Garden, 451

Mass. 43, 51 (2008)(Citing Farris and holding that "[t]he search of the ^* * trunk in this case

exceeded the permissible scope of the search because [the officer] could not reasonably have

believed that the source of the smell of burnt znarijua.na would be found in the trunk.").

14

In Ross, the police had information from a reliable informant which was specific to the

trunk of the car. Ross, 456 U.S. at fn 22. :Itere, the ^l'rooper did not possess this quality of

information, but instead took his authority to search for granted. "If `standard procedure' * * * is

permitted to usurp the judicial function of determining the reasonableness or unreasonableness of

searchescomportable with the Fourth aniendment; then the end result is to make evexy police

department judge and jury of its own conduct, the vezy danger the people so zealously guarded

against by their adoption of the Fourtll Amendment." Kansas E;'ity v. I3utiers, 507 S.W.2d 49, 55

(Mo.App.1974).

The Ninth District incorrectly overturned the trial court's determination that, pursuant to

Fcrr<ris; the Trooper did not have probable cause to justify the search of Mr. Jones's trunk.

CONCLUSION

For the foregoing reasons, this felony case raises a substantial constitutional question, and

invodves matters of public and great general interest. Appellant requests that this court accept

jurisdiction in this case so that this important issue will be reviewed on the merits.

Respectfully submitted,

PAUL A. GRIFFIN Co., L.P+

qv//L

PAUL GRIFFIN 40073561Attorney for Appellant600 Broadway, 2d FloorLorain, C)hio 44052I'H: (440) 245-5565Fax: (440) 244-0811

15

CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum in Support of Jurisdiction of Appellant Brett

Jones was sent by ordinary U.S. Mail to counsel for Appellee, State of Ohio, Mary R. Slanczka,

Assistant I,orain County I'rosectitor, 225 Court Street, 3d floor, Elyria, Ohio 44035 on this 24th,

day of July. 2013.

PAUL GRIFFINAttorney for Appellant

16

IN THE SUPREME COURT OF OHIO

STATE. OF OHIO

Plaintiff-Appellee,

-vs-

I3RE"I'`I' JONE5,

Defendant-Appellant.

CASE NO.

On Appeal from the LorainCounty Court of Appeals,Ninth Appellate District

Court of Appeals Case No.I2CA010270

APPLNDIX

Opinion of the Lorain County Court of Common Pleas granting Defendant'sMotion to Suppress Evidence(August17,2t112) .... ................................................... A1-4

Opinion of the Ninth District Court of Appeals(.lune11,20 13) . .................................................. ......131-20

I^ I-I^,.,R-T4T OF COMMON PLEAS^L`6I^AAIl^ COUNTY, OHIO

t

STATE OF OHIO, 7p+;Z hLu 1^l P2' 0 2 CASE i^7O. 12 R084582

vs.

BRETT JONFES,

Plain.tiff,, JUDGE J^Yv1ES M. $URCrE

Defendant.

JOUR.NAL ENTRY

6p, .,,

This case came on to be heard upon defendant's motion to suppress, as evidence

to be presented a trial, all evidence seized during a search of his automobile by Troopers

employed by the Ohio State Highway Patrol on February 9, 2012.

Statement of Facts

Resolving the facts adduced at hearing most favorably to the state of O'hio, the

court finds the following:

2.

4

6.

On Februarv 9, 2012, defendant was operating a motor vecle oillhe ,_;

Ohio Turnpike; ^ .^--t - .Upon deterznining that defendant was operating a vehzccl^ at5'sp^

k ,c17)greater than the posted speed limit of 70 mph, Trooper I7i^^ M>rison`=

mC:;stopped defendant's vehicle to investigate the violation;

After opening the driver's side window to speak with Trooper Morrison,

defendant furnished the trooper with appropriate documentation;

While waiting for defendant to ftxrnish the requested information, Trooper

Morrison detected the odor of raw marihuana emanating from the

passenger compartment of defendant's vehicle;

After. detecting the odor of marihuana from defendant's vehicle, Trooper

Morrison placed defendant in the rear of his cruiser and searched the

passenger coinparrtment of defendant's vehicle;

Upon searching the passenger compartment of defendant's vehicle,

Trooper Morrison located raw marihuana .scatiered on the floor and on the

front passenger seat;

L\Jouma

. ^ .^^..,_.`e_.._.....-,. ^

A-I

7. After searching the passenger compartment, the trooper zmmediately

searched the trunk of defendant's vehicle, and f-ound defendant's carrying

bag located in the trunk;

8. Trooper Morrison then searched defendant's carrying bag, and found

defendant's toiletries, four ounces of marihuana wrapped in two plastic

bags, and other drugs separately packaged;

9. The searches of defendant's trunk and carrying bag were conducted

without warrant, without an alert from a drug-detecting canine, without

any indication by the trooper that he detected the odor of raw marihuana

upon approaching the trunlc, or upon opening the trunlc, or, upon opening

defendant's carrying bag.

Conclusions of Law

To the foregoing facts, the court finds the following law applicable:

1. Interpreting the Fourth Amendment to the United States Constitution, the

U.S. Supreme Court has held ihat if a police officer has probable cause to

search a vehicle after a law-ful stop, the officer is justi_fied in searching all

parts of the vehicle, including the trunk and any contaiiier in the vehicle

that may conceal the items sought to be seized. US, v. Ross, 456 U.S. 798,

823 (1982);

2. Under the Suprerne Court's construction of the Fourth. Amendment,

Trooper Morrison would have been justified in searching the trunk of

defendant's vehicle, whether the odor of burnt rnarihu.ana or the odor of

raw marihuana was detected coming from the passenger compartment of

defendant's vehicle;

3. Ohio courts, however, have been reluctazrt to extend the scope of an

automobile search under similar facts, beyond the passenger compartment;

4. Cozasidering facts siznilar to the facts here, the Ohio Supreme Court, in

State v. ^Farris; 109 Ohio St. 3d 519 (2006), at syllabus 6, held that when

a motorist is lawfu.lly detained by a police officer wlzo detects the odor of

A-"'2,2

burnt marihuana emanating from the passenger coinpartment of the

vehicle, the officer may search the passenger compartment, but that the

authority to search does not extend to the trunk;

5. Thus, in Farris, the Supreme Court held that Article 1, Section 14 of the

Ohio Constitution (search and seizure provision) provides greater

protection to motorists than is granted by the Fiftli Amendment to the U.S.

Constitution, as expressed by the U.S. Suprenie Court in US, v. Ross,

supra,•

6, Thus, the issue before the eourt is: if, under Article 1, Section.14 of the

Ohio Constitution, the odor of baarnt rr^arihuana emanating from the

passenger compartment of an automobile gives.rise to a lawful search of

the passenger compartment of a vehicle, but does not extend the scope

of the authorized search of the vehicle to the trunk, does the odor of raw

marihuana emanating from the passenger compartment of a velftle

authorize a warrantless search of the trunk?

Analysis

Applying the above principles of law to the facts of this case, the court reasons as

follows:

1. The Ohio Supreme Court has determined that while the odor of burnt

marihuana present in the passenger compartment of an automobile may

give rise to the probability that burnt m.arihuana will be found in the

passenger compa.rtrnent, the same facts would not give rise to the

probability that more marihuana or drug paraphernalia will be found in the

trunk of the vehicle;

2. In the case sub judice, Trooper Morrison testified that he detected the odoz

of raw marikiuana coming from the passenger compartment of defendant's

vehicle and, therefore, the court finds that the trooper had probable cause

to search the passenger compartment of the velucle;

3. Therefore, the issue before the court is whether, after searching the

passenger compartnrent of defendant's vehicle and finding the source of

the odor of raw marihuana, i.e. raw marihuana scattered over the front seat

3

and on the floor of the vehicle, Trooper Morrison had probable cause to

believe that more marihuana would be found in the trunk of defendant's

vehicle, thus authorizing the warrantless search;

4. Following the reasoning of State v. Farrzs, supra, the court answers this

question. in the negative.

Ho ldinR

Based upon the above analysis, the court holds that when a law enforcement

officer detects the odor of raw marihuana emanating from the passenger compartment of

a vehicle lawfully stopped, and upon searching the passenger cosnpart.m.ent, locates the

source of the odor within the passenger compartment, probable cause to search the

vehicle does not extend to a search of the trunk, unless the officer can articulate

additional facts supportiiz g probable cause to believe that raw marihuana would also be

found in. the t7unk.

This Case

As Trooper Morrison, at hearing, was not able to articulate any facts which would

give rise to probable cause for the belief that defendant's trunk contained additional

marihuana or other coritraban.d, the search of the trunk violated Article 1, Section 14 of

the Ohio Constitution and was, therefore, illegal.

Conclusion

Thus, all evidence obtained fro-rn the search of defendant's trIa.uk herein is

suppressed as evidence to be presented at trial.

Order

It is so ordered.

1-A

HERYTH cORfGth ^0 4 F1LCVI'N SH S C^FFlCFPY^F

;[3AKOV^^SKi, f_OR;%.if^ COUh1YT}{c COURT OF COR4PJION PLEA9

A- `1

STATE OF OHIO ))ss:

COUNTY OF LORAIN )

STATE OF OHIO

Appellant

v.

BRETT JONES

Appellee

.....,^ °-"^ . .. _.

LN THE COURT OF APPEALS': ;.,NINTH JUDICIAL DISTRICT

2 J3

C.A. No. 12CA010270r - .

APPEAL FRQIvI JLTDGMENTENTERED IN,THECOURT OF COIvIIv1ON PLEASCOUNTY OF LORAIN, OHIOCA SE No. 12CR084582

DECISIONANTF' ^.._E NTRY

Dated: June 10, 2013

VJHITMORE, Judge.

(^'A^X

{¶1} Appellant, the State of Ohio, appeals from a judgment of the Lorain County Court

of Common Pleas granting Appellee, Brett Jones', motion to suppress. This Court reverses.

I

{¶2} On a clear February afternoon, Ohio State Highway Patrol Trooper Daniel

Morrison conducted a traffic stop of a Chevy Impala driven by Jones on the Ohio Turnpike.

Trooper Morrison testified that he witnessed Jones travelling 75 m.p.h. in a 70 m..p.h, zone.

Trooper Morrison further testified that he approached the passenger's side window, which was

already dowa, and "immediately [] began smelling an odor of raw marijuana coming from the

vehicle."

{1^13} Trooper Morrison asked Jones to step out of the car so that he could conduct a

search. While conducting a pat dou-^n of Jones, Sergeant Laughlin arrived. According to

Trooper Morrison, Sergeant Laughlin, before having any contact with Trooper Morrison,

^-i

2

commented that the car smelled of marijuana. Jones was placed in Trooper Morrison's cruiser,

while the officers searched the passenger compartment. Trooper Morrison testified that they

found marijuana residue ("shake") on the passenger's seat and floor. Trooper Morrison then

proceeded to search the trunk of the car. In the trunk, Trooper Morrison found 'a backpack

containing Jones' personal items, 106 grams of marijuana, 60 bindles of heroin, and a brown

brick of heroin (506 grams).

{¶4} Jones was indicted on (1) traffickin.g in violation of R.C. 2925.03(_A)(2), a felony

of the first degree; (2) possession in violation of R.C. 2925.11 (A), a felony of the first degree; (3)

possession in violation of R.C. 2925.11(A), a misdemeanor of the fourth degree; and (4) drug

paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree.

{¶5} Jones filed a motion to suppress arguing that the officers did not have probable

cause to search the trunk of the car. After a hearing, the court agreed and granted his motion.

The State now appeals and raises one assignment of error for our review.

E

Assignment of Error

THE TRIAL COURT ERRED IN GRANri'LNG MR.. JONES' MOTION TOSUPPRESS AS THE EVIDENCE RECOVERED FROM HIS VEHICLE WASOBTAINED THROUGH A LEGAL SEARCH.

{¶6} In its sole assignment of error, the State argues the court erred in granting Jones'

motion to suppress because the officers had probable cause to search the trurik for marijuana.

We agree.

Appellate review of a motion to suppress presents a mixed question of law andfact. When considering a motion to suppress, the trial court assumes the role oftrier of fact and is therefore in the best position to resolve factual questions andevaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366(1992). Consequently, an appellate court must accept the trial court's fmdings offact if they are supported by competent, credible evidence. State v. Fanning, I

6 -2

I

Ohio St.3d 19 (1982). Accepting these facts as true, the appellate courrt must thenindependently determine, without deference to the conclusion of the trial court,whether the facts satisfy the applicable legal standard. State v. McNanzara, 124Ohio App.3d 706 (4th Dist.1997).

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ^ S. This Court, therefore, will first

review the trial court's findings of fact to ensure those fmdings are supported by com.petent and

credible evidence. This Court will then review the trial court's legal conclusions de novo.

{1^7} There has been no challenge to the court's finding that the initial traffic stop was

constitutionally valid. Accordingly, we limit our review to the search conducted by the officers.

{¶8} The Fourth Amendment of the United States Constitution, applied to the states

through the Fourteenth Amendment, protects persons against unreasonable searches and seizures.

"'For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon

probable cause and executed pursuant to a warrant." State v. Moore, 90 Ohio St.3d 47, 49

(2000). Searches conducted withotrt a warrant are presumptively unreasonable, unless an

exception to the warrant requirement applies. See Payton v. ITew York, 445 U.S. 573, 586

(1980).

{¶9} The automobile exception is one exception to the warrant requirement. Uiiited

States v. Ross, 456 U.S. 798, 807 (1982). "Although the Fourth Am.endment recognizes that

individuals have privacy interests in their vehicles, the inherent characteristics of vehicles

`justif[y] a lesser degree of protection of [the privacy] interests [in them]."' State v. Friedman,

194 Ohio App.3d 677, 2011-Ohio-2989, ^j 7 (9th Dist.), quoting California v. Car-ney, 471 U.S.

386, 390 (1985). Provided there is "probable cause to search an entire vehicle, [officers] 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." State v, Welch, 18

Ohio St.3d 88 (1985), syllabus. Probable cause is determined by the totality of the

b-3

4

circumstances. State v. Steen, 9th Dist, No. 21871, 2004-Ohio-2369, T 5, citing Illinois v. Gates,

462 U.S. 213, 238 (1983).

{¶10} Here, Trooper Morrison testified that he smelled a strong odor of raw marijuana

as he first approached the passenger's window and that he has been trained to recognize the scent

of the drug. A warrantless search of the passenger compartment is permissible if an odor of

marijizana is detected by a qualified person. Moore, 90 Ohio St.3d at 50 ("[I]f the smell of

marijuana, as detected by a person who is qualified to recognize the odor, is the sole

circumstance, this is sufficient to establish probable cause. There need be no additional factors

to corroborate the suspicion of the presence of marijuana."). Jones does not challenge the search

of the passenger compartment. Instead, Jones focuses his challenge on the scope of the search

conducted. Specifically, Jones argues that the officers exceeded the scope of the probable cause

when they searched the trunk of b.is car.

{¶11} In reaching its factual findings, the trial court stated that it "[r]esolv[ed] the facts

adduced at [the suppression] hearirig most favorably to the state of Ohio." However, at a

suppression hearing the trial judge is not simply to resolve .facts in favor of the State; instead, the

judge is to evaluate the evidence and the credibility of the witnesses. See.Itlalls, 62 Ohio St.3d at

366. Nevertheless, we conclude the court's fmdings that "Trooper Morrison detected the odor of

raw marihuana emanating from the passenger compartment of [Jones'] vehicle *[and]

located raw marihuana scattered on the fioor and on the front passenger seat" to be supparted by

competent, credible evidence.

{T12} Trooper Morrison found contraband in b:is search of the passenger compartrnent.

Specifically, "[t]here was marijuana shake on the passenger's floorboard and sea.t." After

discovering the marijuazia sli.ake in the passenger compartment, Trooper Morrison conducted a

(^- 9

5

search of the trwak. In its judgment entry, the trial court correctly acknowledged that, under

these eircumstances, a search of the trunk would have been perinissible under the Fourth

Amendment, citing United States v. Ross, 456 U.S. 798 (1982). However, the court also held

that the search of the trunk was unlawful under the Ohio Constitution because the state

constitution provides greater protection than that of the Fourth Amendment.

{¶13} The language of Section 14, Article I of the Ohio Constitution is virtually

identical to the Fourth Amendment. "[VJ]here the provisions are similar and no persuasive

reason for a d:iffering interpretation is presented, [the Supreme Court of Ohio] has deteixnined

that protections afforded by Ohio's Constitution are coextensive with those provided by the

United States Constitution." State v. Robinette, 80 Ohio St.3d 234, 238 (1997). In Robinette, the

Court addressed the issue of whether the Ohio Constitution provided an additional requirement

for officers "to inform an individual, stopped for a traffic violation, that he or she is free to go

before the officer may attempt to engage in consensual interrogation." Id, at 245. The Ohio

Supreme Court found no persuasive reason to read greater protections into Section 14, Article I

of the Ohio Constitution than those that were already provided by the Fourth Amendment. Id, at

245.

{T,114} Subsequent to Robinette, the Ohio Supreme Court has xecognized only one area

where the Ohio Constitution provides greater protection than the Fourth Amendment and that

involves warrantless arrests for minor misdemeanors. See State v. Brown, 99 Ohio St.3 d 323,

2003-Ohio-3931. In reaching its conclusion, the Brown Court relied on its analysis in State v.

Jones, 88 Ohio St.3d 430 (2000), where it weighed "the degree to which the governlxa.ental action

intrudes upon a person's liberty and privacy [against] * * * the degree to which the intrusion is

necessary for the promotion of legitimate governmental interests."' Jones at 438. Other than this

^- S

6

narrow exception, the Ohio Supreme Court has not recognized any other areas in which Section

14, Article I, of the Ohio Constitution provides greater protection than the Fourth Amendment.

{T15} The Ohio Supreme Court has found that the Ohio Constitution provides greater

protection than the Fifth Amendment. In granting Jones' motion to suppress, the trial court

relied on State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255. We conclude that the trial court

misread Farris and, moreover, Farris is inapplicable in. this case because it applied Section 10,

Article I of the Ohio Constitution and the Fifth Amendment, while this case involves Section 14,

Article I of the Ohio Constitution and the Fourth Amendment. Robinette and Farris applied two

different provisions of the Ohio and United States Constitutions, and application of Farris to this

case is inappropriate.

^¶16} The Court in Farris held that Section 10, .A..rticle I of the Ohio Constitution

provides greater protection than the Fifth Amendment to the LTnited States Constitution. Farris

at ¶ 49. The issue in Farris was whether "evidence obta7.ned as the direct result of statements

made in custody without the benefit of a Miranda warning should be excluded." Id. The Court

recognized that the Fifth Amendment did not require the exclusion of such evidence, but held

that the Ohio Constitution must provide greater protection. Here, neither the Fifth Amendment,

nor Section 10, Article I of the Ohio Constitution is at issue. Jones is not attempting to exclude

evidence based on statements he made.

{T17} We i^xrther note that Farr•is is factuaily distinguishable ^°om the case at hand. In

Farr°is, the Court was faced with the question of whether an officer may search the trunk of a car

without finding any physical contraband in the passenger compartment. Here, it is undisputed

that Trooper Morrison found contraband (i.e., marijuana shake) on the passenger's seat and floor.

Therefore, we conclude that we do not need to reach the issue of whether the smell of raw

^-4

7

marijuana in the passenger compartment of a vehicle, standing alone, is sufficient to establish

probable cause tosearch the trunlc of the vehicle. Trooper Morrison observed more than just the

smell of marijuana.

{41J18} Factually, this case is more analogous State v. Car°nZichael, 9th Dist. No.

IlCA010086, 2012-Ohio-5923. In Carmichael, the Trooper observed "marijuana seeds, buds,

and stems on the lap of the front seat passenger." Id. at T, 2. In addition, the driver turn:ed over

marijuana from the center console on request, and the Trooper discovered marijuana in the back

seat during his search of the passenger compartment. Id. at ¶ 2-3. NVhile we acknourledge the

concern raised by the dissent, we disagree that the amount of contraband found determines

whether there is probable cause to search the remaining portions of the vehicle. The test is

whether in light of the totality of the circumstances, "there is a fair probability that contraband *

* * will be found in the trunk." (Internal citations, alterations, and quotations omitted.)

Carmichael atTi 9.

{¶19} Neither the trial court nor Jones cites any case to support their position that

Section 14, Article I of the Ohio Constitution prohibits a warrantless search of an automobile

trunk once law enforcement finds contraband in the passenger compartment. Nor are we

persuaded to find additional protections in the Ohio Constitution after weighing "the degree to

which the governmentat action intrudes upon a person's liberty and privacy [against] * * * the

degree to which the intrusion is necessary for the promotion of legitizrLate govern,^. -̂nental

interests.'' Jones, 88 Ohio St.3d at 438. The protections provided by the Fourth Amendment and

Section 14, Article I of the Ohio Constitution, as they apply in this case, are coextensive.

{1[20} We conclude that the Ohio Constitution, like the United States Constitution, does

not prohibit warrantless searches of an automobile trunk after law enforcement has found

^-^

8

contraband in the passenger compartment. The trial court correctly concluded that this search

would be proper under the United States Constitution, but erroneously decided that Farris

required a different result under the Ohio Constitution. The trial court erred by granting Jones'

motion to suppress, and the State's sole assignment of error is sustained.

III

{¶2I} The State's sole assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed, and this cause is remanded for further proceedings

consistent with this opinion.

Judgment reversed,arld cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

(3- S

9

Costs taxed to Appellee.

BETH Wl-I.1TIvIOREFOR THE COURT

CARR, J.CONCURS.

BELFANCE, P. J.DISSENTING.

{T22} I respectfully dissent. The trooper's detection of the odor of raw marijuana

coming from the passenger compartment gave him probable cause to search the passenger

compartment of the vehicle. State v. Moore, 90 Ohio St.3d 47, 49-50 (2000); State v. Farris, 109

Ohio St.3d 519, 2006-Ohio-3255, TI, 50-52. However, once in the car, the trooper discovered

"slzake[,J" which the trial court determined was what the officer had smelled. In addition, the

trial couxt determined that there was no indication the trooper had detected any odor emanating

from the trunk. Notably, the State has not challenged the trial court's determinations on these

points. Thus, in keeping with Farris, the trial court determined that the trooper had probable

cause to search the passenger conspartment of the vehicle but not the trunk. At issue in this case

is whether the trooper's discovery of a miniscule amount of marijuana on the passenger seat and

floor provided probable cause for him to search a separate and contained part of the vehicle from

which no smell was emanating.

{T23} The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the

Ohio Constitution both protect individuals from unreasonable searches. With respect to the

Fourth Amendment, the United States Supreme Court has repeatedly stated that "searches

f ?D-^

10

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." (Internal quotations and citations omitted.) (Emphasis omitted.)

California v. Acevedo, 500 U.S. 565, 580 (1991).1 One such exception is the "automobile

exception," which was first enunciated in Carroll v. United States, 267 U.S. 132 (1925). In that

case, which was decided during the Prohibition era, police engaged in a warrantless seizure and

search of a vehicle that was suspected to contain contraband alcohol. See id at 160-162. In

upholding the warrantless search, the United States Supreme Court repeatedly emphasized that

the Fourth Amendment protects citizens from unreasonable searches. Id. at 147. However, it

determined that the seizure and search of the vehicle was reasonable given that "the vehicle can

be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at

153. Essentially, the Court held that the vehicle's mobility creates an exigent circumstance

excepting it from the warrant requirement.

{¶24} However, it is important to place Carroll in its tirne. While courts have

consistently followed Carroll without giving its rationale much thought, Carroll was decided

prior to any police department in the country putting radios in police cars. Lewis Coe, Wireless

Radio: A.Brief History, 128 (1996) (Police cars were not regularly equipped with radio receivers

until the late 1920s, and two-way radios did not become common until the naid-1930s.). In a

time before police cars were even equipped wi°d.-i radios, it would riave been inlpracticable, if not

impossible, for officers to obtain a warrant or even speak with a judge or magistrate before a

vehicle eluded them. Even if there were two police cars, meaning one could follow the

1 However, as Justice Scalia noted in his concurring opinion, the United State Supreme Court hascontinually expanded its list of exceptions, meaning "the `warrant requirement' had become soriddled with exceptions that it was basically unrecognizable." Acevedo at 582 (Scalia, J.,concurring in the judgment); see also id. (listing 13 exceptions to the warrant requirement).

(..*7-lo,

11

suspected vehicle while the officers in the other car went to secure a warrant, there would have

been no way for the police to fuzd the suspected vehicle again given that they could not

communicate with the car that remained behind to follow the suspects. Essentially, to obtain a

warrant, the officers would have had to give up following the vehicle and hope to find it again

later.

{TI25} Whether an exigency exists that justifies acting without a warrant depends on the

totality of the circumstances. Missouri v. McNeely, - U.S. -, 133 S.Ct. 1552, 1559 (2013).

Because of the technological li.mitations listed above, it is easy to see why the Carroll Court

would treat an automobile as essentially being a per se exigent circumstance. However,

"technological developments that enable police officers to secure warrants more quickly, and do

so without undermining the neutral magistrate judge's essential role as a check on police

discretion, are relevant to an assessment of exigency[,]" and there have been many technological

developments in the 88 years since Carroll was decided. McNeely at 1562-1563. Radios are

now an integral part of every police car as well as the advent of other forms of commtinication,

meaning the concerns existing at the time Carroll was decided have been dramatically reduced if

not eliminated entirely. In fact, we are fast approaching a time where officers could use a

technology siznilar to Facetime or Skype to swear out an affidavit remotely before a magistrate

while the magistrate signs a warrant and electronically returns it to the officer. Unfortunately,

the existing jurisprudence fails to account for these dramatic changes in technology, which cail

into question the reasonableness of the exigency rationale in the context of a warrantless search

of an automobile.`

2 However, some state courts have held that their state constitutions require a showing ofexigency beyond the mobility of the vehicl.e to justify a warrantless search. See, e.g.,Pennsylvania v. Perry, 568 Pa. 499, 504 (2002) ("[U]nder Pennsylvania law, for a warrantless

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{¶26} In addition, when Carroll was decided, there was no basis upon which to stop or

detain a person absent probable cause, a fact that formed the basis of the Court's reasoning in

that case. See Carroll, 267 U.S. at 155-157. However, subsequent to the landmark decision of

Terry v. Ohio, 392 U.S. 1 (1968), officers are now able to stop and detain citizens without

probable cause but rather upon reasonable, articulable suspicion of criminal activity. id. at 21.

See also State v. Widner, 69 Ohio St.2d 267, 269 (1982) (applying Terry to a vehicle stop). See

also State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, T, 7, citing Delaware v. Prouse, 440

U.S. 648, 663 (1979) ("[.A] traffic stop is constitutionally valid if an officer has a reasonable and

articulable suspicion that a motorist has committed, is committing, or is about to commit a

crime."). Thus, officers now have the ability, unavailable when Carroll was decided, to seize

citizens for less than probable cause.3 NVhile an officer who stops an individual upon reasonable,

articulable suspicion must allow the individual to proceed about his or business once the officer's

suspicion has been satisfied, the officer may also continue the detention should new facts be

discovered which may ultimately rise to the level of probable cause to continue the seizure as

search of a motor vehicle to be valid, there must be a showing of both probable cause andexigent circumstances.") (Emphasis omitted.); Nevada v. Harnisch, 114 Nev. 225, 228-229(1998) ("[T]he Nevada Constitution requires both probable cause and exigent circumstances inorder to justify a warrantless search of a parked, immobile, unoccupied vehicle."); New Mexicov. Gomez, 122 N.M. 777, 788 (1997).s It is important to note that not every automobile stop will entail a search but every stop doesentail a seizure. Although it is apparent that these are not equally invasive, the United StatesSupreme Court continued to treat seizures and searches as equally invasive despite probablecause generally being required to conduct a search while seizures may be effected on reasonable,articulable suspicion in the wake of Terry< See Chambers v. Maroney, 399 U.S. 42, 52 (1970)("For constitutional purposes, we see no difference between on the one hand seizing and holdinga car before presenting the probable cause issue to a.m.agistrate and on the other hand carryingout an immediate search without a warrant."). Wbile a seizure is invasive, searches arenecessarily more invasive given that a search involves delving into one's personal and privatebelongings. See Chambers at 63 (Harland, J., concurring in part and dissenting in part) ("[]]n thecircumstances in which this problem [(a seizure or a search)] is likely to occur, the lesserintrusion will almost always be the simple seizure of the car for the period-perhaps a day-necessary to enable the officers to obtain a search warrant.").

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well as to conduct a search. Berkerner v. McCarty, 468 U.S. 420, 439-440 (1984) ("[T]he stop

and inquiry niust be reasonably related in scope to the justification for their initiation. Typically,

this means that the officer may ask the detainee a moderate number of questions to deterrnin.e his

identity and to try to obtain information comFirming or dispelling the officer's suspicions. But

the detainee is ilot obliged to respond. And, unless the detainee's answers provide the officer

with probable cause to arrest him, he must then be released.'°) (Internal quotations and citations

omitted.). In addition, Carroll was decided at a time when the United States Supreme Court had

not yet deterinined that a sniff around a vehicle is not a search within the meaning of the Fourth

Amendment. fllinois v. Caballes, 543 U.S. 405, 408-410 (2005). Thus, in a case of a traff c stop

where an officer suspects that the car contains illegal narcotics, the 'stop may be instantly

coordinated with a drug dog that can immediately sniff the vehicle. Moreover, if there is

reasonable articulable suspicion, the initial stop may be extended to allow for the arrival of a

drug-sniffing dog. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ^ 15. Thus, the

advent of technology, drug-sniffing dogs, and the ability to detain a vehicle on less than probable

cause render the exigency rationale expressed in Carroll less compelling than it was in 1925.4

{¶27} Following Carroll, the United States Supreme Court developed a second

justification for the automobile exception: the reduced expectation of privacy rationale. See, e.g.,

Cardwell v. Lewis, 417 U.S. 583, 590 (1974) ("One has a lesser expectation of privacy in a motor

4 The touchstone of the Fourth Amendment is reasonableness measured in objective terms by anexamination of the totality of the circumstances. Iri the context of evaluating a warrantlesssearch of an individual stopped in his vehicle, the McNeely court emphasized the application of a"finely tuned" totality of the circumstances approach when evaluating the reasonableness of awarrantless search based upon alleged exigent circurzstaxzces. (In.ternal quotations and citationomitted.) McNeely, 133 S.Ct. at 1559. The Court found that the fact-specific nature of thereasonableness inquiry demands that courts evaluate each case of alleged exigency on its facts..1d, at 1563. Applying this approach in keeping with the technological advances outlined abovecalls into question whether the continued application of the automobile exception's per seexigency rule without consideration of the facts of the case is reasonable.

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vehicle because its function is transportation and it seldom serves as one's residence or as the

repository of personal effects. A car has Iittle capacity for escaping public scrutiny. It travels

public thoroughfares where its occupants and its contents are in plain view."). However, how

items visible in a car are different from those visible in a home through its windows has never

been explained, let alone those items which are concealed from view by being fully underneath a

seat or stored in a trunk. Moreover, unlike the days of the Model T, today American citizens do

actually live in their cars. Many spend countless hours in bottleneck traffic where they eat,

drink, work, watch: television and movies, and socialize whether in person or via mobile phones

or iPads. It is not uncommon for a vehicle to be equipped with plugs for computers, compact fax

machines and refrigerators. Nor can it be said that citizens do not store their personal belongings

and effects in areas of their automobiles that are not open to public view. See Katz v. United

States, 389 U.S. 347, 351 (1967) ("Verhat a person knowingly exposes to the public, even in his

own home or office, is not a subject of Fourth Amendment protection. But what he seeks to

preserve as private, even in an area accessible to the public, may be constitutionally protected.")

(Internal citations omitted.). Although the United States Supreme Court viewed the automobile

as an exterrnal location subject to lesser protection, that premise is questionable given the very

different role of the automobile in today's society. Moreover, although it may be that a citizen

can be said to have a diminished expectation of privacy in an automobile, there is nonetheless an

expectation of privacy. See id.

{¶28} Turning to Farris, an officer smelled an odor of burnt marijuana during a traffic

stop and searched the entire vehicle. Farri.r, 109 Ohio St.3d 519, 2006-Ohio-3255, at g l, 5.

The Ohio Supreme Court found that the search of the passenger compartment was permissible

but not the tz unk, holding that "[a] trunk and a passenger compartment of an automobile are

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subject to different standards of probable cause to conduct searches." Id. at T 51. Although, the

Ohio Supreme Court did not provide further analysis as to why the passenger com:partinen.t and

trunk are subject to different standards of probable cause, it is possible that the court was

alluding to the privacy rationale underpinning the "automobile exception" to the warrant

requirement when evaluating the reasonableness of the search, and in doing so, recognized the

distinction between a citizen's expectations of privacy in the passenger compartment versus the

trunk.5 In other words, while an open and visible passenger com.partment rnay be reasonably

subject to a reduced expectation of privacy, the same is not true of a closed trtink which is

private and not visible for all to see. This is only logical since people use their cars to transport

and store items of value of personal °unportance and, oftentimes, will keep those items in the

trunk for greater safety (e.g. to hide them from potential thieves walking past parked cars and

looking for valuables lying on the seat). However, the "automobile exception" jurisprudence of

the United States Supreme Court makes no distinction between a passenger compartment and a

trunk. See generally United States v. Ross, 456 U.S. 798, 825 (1982). Thus, to the extent the

Ohio Supreme Court intended in Farris to recognize a citizen's expectation of privacy in the

trunk of a vehicle for purposes of evaluating probable cause to conduct a warrantless search, it

intended to do so under Article I, Section 14 of the Ohio Constitution,

{l^29} VJhile the Ohio Supreme Court has generally interpreted Arrticle I, Section 14 of

the Ohio Constitution to be coextensive with the Fourth Amendment, it has acknowledged that

deviation may be appropriate in certain cases. See State v. Brown, 99 Ohio St.3d 323, 2003-

Ohio-3931, T 22, quoting State v, Robinette, 80 Ohio St.3d 234, 239 (1997) ("`[VvJe should

5 In alluding to different standards of probable cause, it would appear that the Farris Court wasrecognizing the relationship of the privacy interest at stake inherent to the evaluation of theoverall reasonableness of a warrantless search, to the quantum of evidence reasonably necessaryto establish probable cause.

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harmonize our interpretation of Section 14, Article I of the Ohio Constitution with the Fourth

Amendment, unless there are persuasive reasons to find otherwise."').6 The automobile

exception may be such an instance. Notably, other states have similarly deviated from the

federal automobile exception cases based on their state constitutions. See, e.g., Oregon v.

Kurokawa-Lasciak, 351 Or. 179, 190 (2011) ("[A]ny search of an automobile that was parked,

immobile and unoccupied at the time the police first encountered it in connection with the

investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively,

the prosecution must demonstrate that exigent circuznstances other than the potential mobility of

the automobile exist.") (Internal quotations and citation omitted.) (Emphasis omitted.); Perry,

568 Pa. at 504; Harnisch, 114 Nev. at 228-229; Gomez, 122 N.M. at 788; Connecticut v. Miller,

227 Conn. 363, 384-385 (1993) (holding that once a vehicle has been impounded, a warrantless

search is no longer permitted under the automobile exception). See also Vermont v. Savva, 159

Vt. 75, 88 (1991) (concluding that mobility did not constitute a per se exigency and that it would

diverge from the federal automobile exception and would "recognize a separate and higher

expectation of privacy for containers used to transport personal possessions than for objects

exposed to plain view withun an automobile's interior").

{TI30} The majority suggests that Farris is a case solely concer.ned with the Self-

Incrimination Clause of Article I, Section 10 of the Ohio Constitution. See Farris, 109 Ohio

St.3d 519, 2'006-Ohio-3255, at ^i 9. However, this is siznply iiot the case. See id (listizig five

issues before the Supreme Court for review including "whether the [other four] issues are

irrelevant in this matter because an officer has probable cause to search an entire vehicle,

6 Notably, in Farris, the Court already had deviated from the general rule that essentiallyidentical provisions of the Oliio and United States Constitutions should be hannonized when itconcluded that Article I, Section 10 provided greater protection than the Fifth Amendment. SeeFarris, 109 Ohio St.3d 519, 2006-Ohio-3255, at T 45-50.

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including its trwnk, when he smells the odor of burnt marijuana coming from the vehicle").

Whether an officer has probable cause to search is obviously outside the scope of Article I,

Section 10 of the Ohio Constitution, and, instead, falls fir.tnly within the confines of A.rticle I,

Section 14. While the Supreme Court did analyze whether the defendant's statements were

inadmissible under Article I, Section 10 of the Ohio Constitution, see id at T 45-49 (concluding

that Article l, Section 10 of the Ohio Constitution provides greater protection than the Fifth.

Amendment), it then went on to deterznine whether the officer "had probable cause to believe

that the car contained contraband due to his detection of the scent of marijuana and that the

automobile exception to the warrant requireinent permitted him to search the vehicle." Id. at T

50. See also ia'. at T 9.

{l^31} With this in mmind, it is necessary to discuss this Court's representation of Farris's

holding i.n State v. Carmichael, 9th Dist. No. 11CA010086, 2012-Ohio-5923. While Carmichael

quotes the statement in Farris that "[t]he automobile exception does not apply in this case[,]" it

plucks that statement from its context and attempts to paint Farris as a search incident to arrest

case. See Carmichael at T 12, quoting Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, at T 52.

However, what the Farris majority actually said was as follows:

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 tn.ulk ofthe vehicle. No other factors justifyirtg a search beyond the passengercoznpartment were present in this case. The officer detected only a light odor ofmarijuana, and the troopers found no other contraband within the passengercompartment. The troopers thus lacked probable cause to search the tnmk ofFarris's vehicle. Therefore, the automobile exception does not apply in this case.

(Inteznal citation omitted.) Farris at 1^ 52. In other words, the evidence discovered as a result of

the officer's warrantless search was not admissible under the automobile exception because the

officer had lacked probable cause. In fact, at no time was it suggested that the evidence was

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discovered as a result of a search incident to arrest; rather, the question was always whether the

evidence was admissible under the automobile exception. 7 See Farris atT, 6-7. See also State v.

Farris, 9th Dist, No. 03CA0022, 2004-Ohio-826, T 17-19 (upholding the search solely under the

automobile exception). Thus, to the extent that Carmichael treats Farris as a search incident to

arrest,l believe that it is incorrect.

{t32} In applying Farris to this case, and in keeping with the findings of the trial court,

the question arises as to whether the trooper had probable cause to conduct a warrantless search

of Mr. Jones' trunk vc>hen there was no evidence the trooper detected any smell emanating from

the trunk and trace amounts of marijuana were found on the floor and passenger seat, which the

trial court decided was the object of the smell. Under the circumstances of this case and

recognizing the distinction betweeza the probable cause to search a trunk versus the search of the

passenger compartment pursuant to Farris, I would conclude that probable cause did not exist to

search the trunk. Rather, I would conclude that the trooper had reasonable articulable suspicion

to engage in further inquiry. Probable cause means "more than bare suspicion: [it] exists wliere

`the facts and circumstances withi.n their (the officers') knowledge and of which they had

reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable

caution in the belief that' an offense has been or is being committed." Brinegar v. United States,

338 U.S. 160, 175-176 ( 1949), quoting Carroll, 267 U.S. at 162. Once probable cause exists, an

officer essentially has the ability to dismantle the vehicle, looking in the upholstery, in the doors,

7 Admittedly, the Farris Court's citation to State v. Murrell, 94 Ohio St.3d 489 (2002), isconfusing since Adurrell was a search incident to arrest case. See Farris at ¶ 51. However,searches incident to arrest do not involve probable cause, meaning that the Farris Court couldnot have been analyzing the search as a search incident to arrest given its discussion of probablecause. See Murrell at 493 ("[T]he United States Supreme Court in Belton deliberately chose ilotto analyze the situation before it under the automobile exception to the warrant requirement,which is based on probable cause.") (Emphasis omitted.). See generally.New York v. Beltan, 453U.S. 454 (1981); Chinzel v. Californza, 395 U.S. 752 (1969).

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and in the engines. See, e.g,, Carroll, 267 U.S. at 132, 162 (concluding that officers had

probable cause to tear upholstery to locate hidden liquor), See also Ross, 456 U.S. at 821

("When a legitimate search is under way, and when its purpose and its limits have been precisely

defi.ned, nice distinctions between closets, drawers, and containers, in the case of a home, or

between glove compartrnents, upholstered seats, trunks; and wrapped packages, in the case of a

vehicle, must give way to the interest in the prompt and efficient completion of the task at

hand."). The Fourth Amendment is supposed to protect citizens from unreasorzable searches and

seizures, and I cannot believe that an expansive search of a trunk based on a minute amount of

marijuana found in the passenger compartment could be considered reasonable or supported by

probable cause. See Acevedo, 500 U.S. at 569.

{¶33} The majority relies on Carmichael in concluding that it is. However, Carmichael

involved significantly different facts, not least of which were that the front-seat passenger had

"marijuana seeds, buds, and stems" on his lap. Carmichael, 2012-Ohio-5923, at Tj 2. Moreover,

when asked whether there was contraband in the vehicle, the driver handed the officer "a piece

of folded cardboard containing marijuana from the center console."' See id. at T 10. The officer

in Carmichael also testified that he found some marijuana where the defendant was sitting. Id.

The officer in Carmichael had the driver produce contraband, saw contraband on a passenger,

and found additional contraband where the tlurd passenger was sitting. Id. This is significantly

more evidence of criminal activity by the car's occupants than the "shake" on the passenger seat

and floor.

{^34} While I believe that the "shake" provided the trooper with reasonable, articulable

suspicion, to furtbier detain and question'vlr. Jones, and perhaps bring a K-9 unit to the scene, in

keeping with Farris; I do not believe that the miniscule traces of marijuana found on the

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passenger seat and floor provided probable cause to conduct a warrantless search beyond the

passenger compartment of the vehicle. Accordingly, I d'zssent.

APPEARANCES:

DENNIS P. WILL, Prosecutiiig Attorney, and NATASHA RUIZ GUERRIERI, AssistantProsecuting Attorney, for Appellant.

SAMIR. HADEED, Attorney at Law, for Appellee.

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