[Cite as State v. Butcher, 2012-Ohio-3836.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY


State of Ohio,                        :
                                      :
      Plaintiff-Appellant,            :
                                      :          Case No. 11CA18
      v.                              :
                                      :
Frank K. Willette,                    :          DECISION AND
Tyson J. Butcher,                     :          JUDGMENT ENTRY
                                      :
      Defendants-Appellees.           :          Filed: August 22, 2012
______________________________________________________________________

                                              APPEARANCES:

James Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellant.

John A. Bay, Bay Law Office, Columbus, Ohio, for Appellee, Tyson J. Butcher.
______________________________________________________________________

Kline, J.:

        {¶1}     The State of Ohio appeals the judgment of the Washington County Court

of Common Pleas, which granted Tyson Butcher’s motion to suppress evidence

obtained as a result of a search of Butcher’s person. The state contends that a highway

patrol officer had probable cause to search Butcher’s person. The record demonstrates

(1) the officer believed he saw marijuana in “plain view” on Butcher’s shirt and (2)

exigent circumstances justified the search of Butcher’s person. As a result, we

conclude that there was probable cause to search Butcher’s person. Accordingly, we

reverse the judgment of the trial court.

                                                   I.
Washington App. No. 11CA18                                                         2


       {¶2}   On September 19, 2010, at approximately 2:45 a.m., Butcher was riding in

the front passenger seat of a vehicle travelling westbound on State Route 550. Trooper

John Smith and Sgt. Todd McDonald of the Ohio Highway Patrol were also on State

Route 550 at that time. Trooper Smith observed the vehicle commit a traffic violation.

       {¶3}   Trooper Smith initiated a traffic stop on the vehicle. For safety reasons,

Trooper Smith ordered the driver to proceed to the driveway of a nearby elementary

school. Trooper Smith approached the driver’s side of the vehicle, and Sgt. McDonald

approached the passenger’s side. While standing next to the passenger-side door, Sgt.

McDonald shined his flashlight inside the car. Sgt. McDonald testified that he “observed

what appeared to be marijuana residue on Mr. Butcher’s shirt.” Suppression Hearing

Tr. at 56.

       {¶4}   Trooper Smith ordered the driver out of the vehicle to conduct a field

sobriety test. Sgt. McDonald then ordered Butcher out of the vehicle and patted him

down to check for weapons. After determining that Butcher did not have any weapons,

Sgt. McDonald shined his flashlight on the alleged marijuana residue on Butcher’s shirt.

Next, Sgt. McDonald ordered Butcher to empty his pockets. The search of Butcher’s

pockets revealed the presence of crack cocaine. Additionally, a baggie of marijuana fell

onto the ground as Butcher was emptying his pockets.

       {¶5}   A grand jury returned an indictment against Butcher for possession of

crack cocaine. Butcher filed a motion to suppress the evidence Sgt. McDonald obtained

as a result of the search of Butcher’s person. The trial court held a hearing on the

motion to suppress on May 9, 2011. And on June 16, 2011, the trial court ruled that
Washington App. No. 11CA18                                                         3


Sgt. McDonald lacked probable cause to search Butcher’s person. Consequently, the

trial court granted Butcher’s motion to suppress.

       {¶6}   The state appeals and asserts the following assignments of error: I. “THE

TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE FOUND ON APPELLEE’S

PERSON. THE SEARCH OF APPELLEE WAS BASED ON PROBABLE CAUSE AND

WAS AUTHORIZED WITHOUT A WARRANT, BASED ON THE EXIGENT

CIRCUMSTANCES EXCEPTION TO THE WARRANT REQUIREMENT AND THE

OHIO SUPREME COURT’S DECISION IN STATE V. MOORE.” II. “THE TRIAL

COURT ERRED IN RULING THAT THE OBSERVATION OF MARIJUANA RESIDUE

ON THE SHIRT OF A PERSON IS INSUFFICIENT TO CONSTITUTE PROBABLE

CAUSE FOR A SEARCH.” And, III. “THE TRIAL COURT’S RULING THAT THE

OFFICER’S OBSERVATION OF THE MARIJUANA RESIDUE WAS NOT

SUFFICIENTLY UNIQUE IS CONTRARY TO LAW AND AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE OR CLEARLY ERRONEOUS.”

                                            II.

       {¶7}   We will analyze the state’s assignments of error together because the

arguments are intertwined. Essentially, the state argues (1) that the alleged marijuana

on Butcher’s shirt was in “plain view” and (2) that exigent circumstances justified the

warrantless search of Butcher’s person.

       {¶8}   Our “review of a motion to suppress presents a mixed question of law and

fact. When considering a motion to suppress, the trial court assumes the role of trier of

fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850
Washington App. No. 11CA18                                                          4


N.E.2d 1168, ¶ 100, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. Therefore, we “must accept the trial court’s findings of fact if they

are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these

facts as true, [we] must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.

Accord Roberts at ¶ 100; State v. Stepp, 4th Dist. No. 09CA3328, 2010-Ohio-3540, ¶

14.

       {¶9}   The Fourth Amendment to the United States Constitution provides: “The

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and particularly describing

the place to be searched, and the persons or things to be seized.” The Fourth

Amendment “applie[s] to the states through the Fourteenth Amendment[.]” State v.

Moore, 90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000).

       {¶10} “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.” Id. at 49,

citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967);

State v. Brown, 63 Ohio St.3d 349, 350, 588 N.E.2d 113 (1992). This involves a two-

step analysis. “First, there must be probable cause. If probable cause exists, then a

search warrant must be obtained unless an exception to the warrant requirement

applies. If the state fails to satisfy either step, the evidence seized in the unreasonable

search must be suppressed.” Moore at 40, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961); AL Post 763 v. Ohio Liquor Control Comm., 82 Ohio St.3d
Washington App. No. 11CA18                                                         5


108, 111, 694 N.E.2d 905 (1998). Furthermore, “the state bears the burden of proving

that a warrantless search or seizure meets Fourth Amendment standards of

reasonableness.” Maumee v. Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507 (1999).

       {¶11} Here, there is no dispute that law enforcement properly initiated the traffic

stop. However, Sgt. McDonald needed probable cause to justify searching Butcher’s

person. Moore at 50. “‘Probable cause’ is defined as a reasonable ground of suspicion

that is supported by facts and circumstances, which are sufficiently strong to warrant a

prudent person in believing that an accused person had committed or was committing

an offense.” State v. Jones, 4th Dist. No. 03CA61, 2004-Ohio-7280, ¶ 40.

       {¶12} The trial court found as follows:

                 [Sgt.] McDonald approached the passenger side of

                 the car, briefly shining his flashlight into the interior of

                 the car, illuminating both the front and back seat

                 passengers. * * * Shortly after [the driver] was

                 removed from the vehicle, [Sgt.] McDonald, without

                 any further investigation, ordered the front seat

                 passenger, Tyson Butcher, from [the driver’s] vehicle

                 and patted him down. The stated reason for the pat

                 down was that [Sgt.] McDonald had identified

                 “marijuana residue” on [Butcher’s] shirt and pants by

                 flashlight through the window. Ruling on Motion to

                 Suppress at 2-3.
Washington App. No. 11CA18                                                        6


The trial court ultimately concluded that Sgt. McDonald “lacked probable cause to

search Butcher.” Id. at 4.

       {¶13} We conclude, however, that Sgt. McDonald did not violate Butcher’s

Fourth Amendment rights when Sgt. McDonald searched Butcher’s person without a

warrant. We find (1) that the alleged marijuana residue on Butcher’s shirt was in “plain

view” and (2) exigent circumstances justified Sgt. McDonald’s warrantless search of

Butcher’s person.

                                A. “Plain View” Doctrine

       {¶14} The “plain view” doctrine is a judicially recognized exception to the Fourth

Amendment’s warrant requirement. See State v. Akron Airport Post No. 8975, VFW of

the US, 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985).

                A warrantless search or seizure by a law enforcement

                officer of an object in plain view does not violate the

                Fourth Amendment if (1) the officer did not violate the

                Fourth Amendment in arriving at the place from which

                the object could be plainly viewed; (2) the officer has a

                lawful right of access to the object; and (3) the

                incriminating nature of the object is immediately

                apparent. State v. Hunter, 8th Dist. No. 92032, 2009-

                Ohio-4194, ¶ 12, citing State v. Steward, 8th Dist. No.

                80993, 2003-Ohio-1337; Horton v. California, 496 U.S.

                128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112

                (1990); State v. Wilmoth, 1 Ohio St.3d 118, 438
Washington App. No. 11CA18                                                            7


                 N.E.2d 105 (1982); State v. Williams, 55 Ohio St.2d

                 82, 377 N.E.2d 1013 (1978).

       {¶15} “The ‘immediately apparent’ requirement of the ‘plain view’ doctrine is

satisfied when police have probable cause to associate an object with criminal activity.”

State v. Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d 925 (1986), paragraph three of the

syllabus. “In ascertaining the required probable cause to satisfy the ‘immediately

apparent’ requirement, police officers may rely on their specialized knowledge, training

and experience[.]” Id. at paragraph four of the syllabus.

       {¶16} Based on the trial court’s factual findings, we find that the alleged

marijuana on Butcher’s shirt was in “plain view.” Initially, we note that the state has

satisfied the first two prongs of the “plain view” test. As stated above, law enforcement

properly initiated the traffic stop. Thus, “the officers did not violate the Fourth

Amendment in arriving at the place from which the [substance on Butcher’s shirt] could

be plainly viewed.” Hunter at ¶ 12. Moreover, Sgt. McDonald testified that he viewed

the substance on Butcher’s shirt when he shined his flashlight inside the car. Sgt.

McDonald was permitted to shine his flashlight inside the vehicle as he investigated a

traffic violation. See State v. Reaves, 2d Dist. No. 18302, 2000 WL 1643808, *3 (Nov.

3, 2000). Accordingly, Sgt. McDonald had “a lawful right of access to the [substance on

Butcher’s shirt].” Hunter at ¶ 12.

       {¶17} Furthermore, the record demonstrates that the incriminating nature of the

substance on Butcher’s shirt was immediately apparent. Sgt. McDonald testified that he

believed he saw marijuana residue on Butcher’s shirt. Sgt. McDonald also testified

regarding his extensive training and experience in identifying marijuana. For example,
Washington App. No. 11CA18                                                            8


Sgt. McDonald testified that he had seen marijuana residue similar to what he viewed

on Butcher’s shirt “hundreds” of times over the course of his career. Suppression

Hearing Tr. at 58. Considering that Sgt. McDonald believed he saw marijuana residue

on Butcher’s shirt as well as Sgt. McDonald’s experience identifying marijuana residue,

Sgt. McDonald had probable cause to associate the substance on Butcher’s shirt with

criminal activity. See State v. Pounds, 2d Dist. No. 21257, 2006-Ohio-3040, ¶ 20.

Thus, we conclude that the incriminating nature of the substance on Butcher’s shirt was

immediately apparent.

       {¶18} Arguably, the trial court’s ruling implies that, given the lighting conditions

and Sgt. McDonald’s vantage point outside the vehicle, the court did not believe it was

possible for Sgt. McDonald to see marijuana residue on Butcher’s shirt. Even assuming

that the trial court meant to imply this, we still conclude that the incriminating nature of

the substance on Butcher’s shirt was immediately apparent. There is no question that

Trooper Smith lawfully detained the driver’s vehicle based on a traffic violation. And “an

officer making a traffic stop may order passengers to get out of the car pending

completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137

L.Ed.2d 41 (1997). Moreover, the officer’s subjective intent in doing so is irrelevant.

See Village of Kirtland Hills v. Strogin, 11th Dist. No. 2005-L-073, 2006-Ohio-1450, ¶ 19

(“Officer Parker did not violate appellee’s Fourth Amendment rights by requesting that

he get out of his vehicle, even if his subjective intent was to conduct field sobriety

testing.”). Thus, Sgt. McDonald lawfully ordered Butcher out of the vehicle.

       {¶19} Once Butcher was out of the vehicle, the record shows that Sgt. McDonald

could clearly see the substance he identified as marijuana residue on Butcher’s shirt.
Washington App. No. 11CA18                                                              9


After Sgt. McDonald patted Butcher down for weapons, Sgt. McDonald testified: “I

explained to [Butcher] that I saw marijuana residue on his shirt and pants. * * * [And] I *

* * shined the flashlight to the exact spot where I was referring to on his shirt.”

(Emphasis added.) Suppression Hearing at 59. Thus, Sgt. McDonald shined his

flashlight directly on the alleged marijuana residue on Butcher’s shirt. Therefore, even if

the incriminating nature of the substance was not immediately apparent when Butcher

was inside the vehicle, this changed after Butcher was outside the vehicle.1

       {¶20} Consequently, for the reasons stated above, we conclude that alleged

marijuana residue on Butcher’s shirt was in “plain view.”

                                 B. Exigent Circumstances

       {¶21} Sgt. McDonald’s “plain view” observation of the alleged marijuana

substance on Butcher’s shirt alone does not justify the warrantless search of Butcher’s

person. The state must justify the warrantless search of Butcher’s person with an

exception to the warrant requirement. We conclude that “exigent circumstances”

justified the warrantless search of Butcher’s person.

       {¶22} “[C]ertain situations present exigent circumstances that justify a

warrantless search. Generally, there must be ‘compelling reasons’ or ‘exceptional

circumstances’ to justify an intrusion without a warrant.” Moore, 90 Ohio St.3d at 52,

734 N.E.2d 804, citing McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93

L.Ed. 153 (1948). For example, “[a] warrantless search is * * * justified if there is

1
  The trial court was also troubled by the fact that Sgt. McDonald did not testify how he
was able to determine that there was not an innocent explanation for the residue. The
trial court suggested that the residue could have come from legal cigarettes instead of
marijuana. To that end, we note that an innocent explanation for a defendant’s activity
does not necessarily preclude a finding of probable cause. See State v. Althiser, 4th
Dist. No. 97CA14, 1998 WL 2514, *4 (Jan. 6, 1998).
Washington App. No. 11CA18                                                       10


imminent danger that evidence will be lost or destroyed if a search is not immediately

conducted.” Moore at 52. “Because marijuana and other narcotics are easily and

quickly hidden or destroyed, a warrantless search may be justified to preserve

evidence.” Id.

       {¶23} Here, Sgt. McDonald observed what he believed to be marijuana on

Butcher’s shirt during a traffic stop at approximately 2:45 a.m. This observation created

a “reasonable ground of suspicion * * * to warrant a prudent person in believing that

[Butcher] had committed or was committing an offense.” Jones, 2004-Ohio-7280, at ¶

40. That is, Sgt. McDonald had probable cause to believe Butcher had contraband on

his person. In order to obtain a warrant to search Butcher’s person, Sgt. McDonald

would have had to either (1) detain Butcher for several hours in the middle of the night

until law enforcement could obtain a warrant or (2) release Butcher but risk that Butcher

would hide or destroy any contraband he possessed. We find that these options were

unreasonable. See Jones at ¶ 42. Consequently, compelling reasons existed for Sgt.

McDonald to search Butcher’s person without first obtaining a warrant. As a result,

exigent circumstances justified the warrantless search of Butcher’s person. See Moore

at 52-53; State v. Kelley, 4th Dist. No. 10CA3182, 2011-Ohio-3545, ¶ 30; State v. Fuller,

2d Dist. No. 18994, 2002 WL 857671, *6 (April 26, 2002).

       {¶24} In conclusion, Sgt. McDonald observed the alleged marijuana on

Butcher’s shirt consistent with the requirements of the “plain view” doctrine. Moreover,

considering the time of the traffic stop and the nature of the suspected contraband,

exigent circumstances justified the warrantless search of Butcher’s person.

Consequently, the trial court erred in granting Butcher’s motion to suppress. As a
Washington App. No. 11CA18                                                     11


result, we sustain the state’s assignments of error, and we reverse the judgment of the

trial court.

                                  JUDGMENT REVERSED AND CAUSE REMANDED.
Washington App. No. 11CA18                                                       12


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE REVERSED and the cause be
REMANDED for further proceedings consistent with this opinion. Appellee shall pay the
costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.


Abele, P.J. and Harsha, J.: Concur in Judgment & Opinion.


                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
