Ohio Criminal Appeals Lawyer Blog

Felonies are not usually witnessed by police officers. Sometimes, but not usually. Traffic stops can lead to more than tickets for simple traffic violations and police know that. It is called "good police work." The vehicle you are driving or riding in is pulled over. Then the Officer sees, hears, or smells something and the next thing you know one or all of the occupants of the vehicle are handcuffed and seated in the back of police cars to face eventual felony charges.

Police can make the initial stop for all sorts of reasons like:

Following too closely as you can read by clicking here, 2009-Ohio-5199.
(The defendant ended up charged with possession and trafficking of drugs after her friend was following another vehicle too closely, the passenger and driver gave the officer different answers to questions, the passenger was intoxicated, a K-9 unit was called out, the dog alerted on the vehicle giving the officer probable cause to search, etc. It all started with following too closely.)

Failing to use your turn signal as you can read by clicking here 2009-Ohio-4897, or here 2009-Ohio-994, when either turning or switching lanes. In 2009-Ohio-559 the failure to use the turn signal when turning into someone's driveway led to a canine sniff and an alert on materials to make meth which ultimately led to a three year prison term.

A Perrysburg Township cop saw something he found really suspicious back in March of 2007 - a woman driving north on 75 with her two kids in the car while she stared straight ahead with her hands placed at the 8 and 4 positions as you are taught at driving school. She was traveling at 60 miles an hour and the speed limit was 65. Straight ahead, of course, would be the road in front of her and she was the driver. The cop also saw an adult male in the car who was also staring straight ahead. So of course the cop followed them for several miles. Eventually the female driver caught up to a semi going about 55 and she got up to within two car lengths before she started to pass. Oops, too close and that gave the cop probable cause to conduct a traffic stop.

But then the cop continued fishing. He separated the driver from the adult male and asked them questions wholly unrelated to the offense of following too closely. Where you going? Why? That sort of thing. The answers were not identical which the cop also found suspicious. The Sixth District Court of Appeals noted that this cop would have found identical answers to be suspicious too. This cop also found an affirmative response to the question, "do you mind if I search your car?" to be a consent to search. After searching, the cop requested a canine which took 19 minutes to arrive. The dog hit on the car and marijuana was found in the floor underneath the seating. The adult male was eventually sentenced to a total of six years in prison.

Not so fast, says the Sixth District Court of Appeals. The Court found the cop was fishing and prolonged the stop in order to continue fishing. The cop improperly prolonged the length of the stop in violation of the Fourth Amendment to the Constitution of the United States and Article I, Section 14 of the Ohio Constitution. The court of appeals ruled the trial court should have granted the appellant's motion to suppress the evidence as you can read by clicking here.

The Ohio Supreme Court said yes in State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10.  But the Ohio Supreme Court said that the officer has to be "a person qualified to recognize the odor."  The Ohio Supreme Court said an officer is qualified if he is "trained and experienced in the detection of marijuana."  If he is, the search is reasonable under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

This week, Ohio's Fifth District Court of Appeals said a loaded gun found in a car should have been suppressed where an officer searched the car only because he claimed he smelled marijuana.  State v. Birdsong, 2009-Ohio-1859.  While the officer testified at the suppression hearing that there was a strong distinct odor of burnt marijuana, he did not testify about any training or experience he had in detecting marijuana.  It is unclear from the Court's opinion whether he lacked such training or if the prosecutor just failed to ask.  But the officer never found any drugs or drug paraphernalia.

New York v. Belton, 453 U.S. 454, had been read to allow a complete search of the passenger compartment of an automobile as a reasonable search under the Fourth Amendment whenever any occupant of the car was arrested for any reason. This was true even if that occupant was secured in the back of a police car before the search was conducted. State v. Murrell, 94 Ohio St.3d 489, 2002-Ohio-1483. But not anymore!

Today in Arizona v. Gant, the SCOTUS reigned in Belton to allow an unlimited search of the passenger compartment of a car if an occupant of the car was arrested in only two circumstances.  One is if the occupant still has access to the passenger compartment of the car (to prevent the occupant from getting a weapon or hiding evidence).  Two is if the officers have a reasonable belief that evidence might be found in the car that relates to the reason the occupant was arrested (for example, a search for drugs if the occupant was arrested for drug dealing from the car).

Ohio's Second District Court of Appeals recently struggled with this very issue.  In State v. Williams, 2009-Ohio-1627, the Second District said it was bound to follow the Ohio Supreme Court's interpretation of Belton and allow a search incident to the arrest of a recent occupant of a car who had an outstanding warrant for his arrest (the car was stopped for littering).  Today's decision by the Ohio Supreme Court appears to give Williams solid grounds for an appeal to the Ohio Supreme Court.