[Cite as State v. Mobley, 2014-Ohio-4410.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :        C.A. CASE NO.       26044

v.                                                    :        T.C. NO.      13CR2518/1
                                                                               13CR2518/2
CAMERON MOBLEY                                        :
                                                                   (Criminal Appeal from
        Defendant-Appellant                           :            Common Pleas Court)

                                                      :

                                             ..........

                                             OPINION

                         Rendered on the        3rd       day of         October       , 2014.

                                             ..........

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

SHAWN P. HOOKS, Atty. Reg. No. 0079100, 131 N. Ludlow Street, Suite 630, Dayton,
Ohio 45420
      Attorney for Defendant-Appellant

                                             ..........

FROELICH, P.J.

                 {¶ 1} After his motion to suppress was overruled, Cameron Mobley pled no
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contest to one count of possession of heroin, a felony of the second degree. The trial court

found him guilty and sentenced him to a mandatory term of three years in prison, suspended

his driver’s license for three years, and fined him $7,500. Mobley appeals from the trial

court’s denial of his motion to suppress evidence.

       {¶ 2}     For the following reasons, the judgment of the trial court will be affirmed.

       {¶ 3}     At approximately 4:30 p.m. on August 15, 2013, Bryan Statzer of the

Montgomery County Sheriff’s Office, was working as a plain-clothes detective in an

unmarked cruiser when he saw a silver Pontiac maneuver illegally around a school bus on

Philadelphia Drive.    Statzer radioed other deputies about the Pontiac’s lane violation.

Deputy Fred Zollers, who was in a marked cruiser nearby, spotted the Pontiac “less than a

minute” after Statzer’s broadcast. Zollers also observed that the Pontiac did not have a

front license plate and that the windows of the vehicle had “extremely dark window tint.”

Because of the window tinting, Zollers could not ascertain how many people were in the car.



       {¶ 4}    Deputy Zollers initiated a traffic stop.     The driver (later identified as

Anthony Lane) briefly continued driving after Zollers activated his lights, and turned onto

another street before stopping. Zollers was curious as to why the car had stopped so slowly.

 When Zollers approached the vehicle and Lane opened his window, Zollers “immediately *

* * smell[ed] the odor of burnt marijuana”; the odor “just hit [him] in the face.” Mobley

was a passenger in the vehicle.

       {¶ 5}    Zollers asked for identification from both men, then asked Deputy Kyle

Baranyi, who had also arrived at the scene, to run the identification information. Zollers
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ordered Lane out of the vehicle and patted him down. When asked about the smell of

marijuana, Lane stated that he had smoked a joint earlier in the day.

       {¶ 6}    Det. Statzer also arrived at the scene and notice a “strong odor of burnt

marijuana emitting from the area around the vehicle” before he even walked up to it. After

Statzer arrived, Zollers made contact with Mobley, who was still seated in the front

passenger seat, and told him to step out of the vehicle. Mobley stepped out, handed a fast

food bag to Zollers, and consented to being pat down for weapons. Zollers instructed

Mobley to face the Pontiac, and Mobley complied, but Mobley then reached around toward

his left side. Zollers instructed Mobley not to reach around, and Mobley “simultaneously”

pushed off the car and started running. Lane started running at about the same time. A

chase ensued. Mobley was caught and handcuffed after being tackled and tazed. At that

point, the officers considered him to be under arrest. Lane was also caught and arrested.

       {¶ 7}     After his arrest, Mobley was patted down by Deputy Baranyi. Baranyi

found in Mobley’s shorts pocket numerous light-brown gel capsules, which the officers

associated with heroin, and a separate plastic baggie containing a substance that the officers

believed to be marijuana. At the scene and on the way to the jail, Mobley twice asserted

that Lane had placed the drugs in his (Mobley’s) pocket.

       {¶ 8}    After Lane and Mobley were in custody, Baranyi searched the vehicle. When he

opened the door, he smelled marijuana. Baranyi found plastic baggies in the center console and

a firearm under the front passenger seat.

       {¶ 9}     Mobley was indicted for possession of heroin, obstructing official business, and

resisting arrest. In September 2013, he filed a motion to suppress evidence. After a hearing, the
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trial court overruled the motion to suppress. On November 26, 2013, Mobley entered a no

contest plea to possession, and the other charges were dismissed. He was sentenced as described

above.

         {¶ 10} Mobley raises one assignment of error on appeal, which challenges the trial

court’s denial of his motion to suppress.

         THE TRIAL COURT ERRED WHEN IT OVERRULED MR. MOBLEY’S

         MOTION TO SUPPRESS.

         {¶ 11}   In ruling on a motion to suppress, “the trial court assumes the role of the trier of

fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of

the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994),

citing State v. Clay, 34 Ohio St.2d 250, 298 N.E.2d 137 (1972).        Accordingly, when we review

suppression decisions, “we are bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence.             Accepting those facts as true, we must

independently determine as a matter of law, without deference to the trial court’s conclusion,

whether they meet the applicable legal standard.” Id.; State v. Shipp, 2d Dist. Montgomery No.

24933, 2012-Ohio-6189, ¶ 11.

         {¶ 12}    First, Mobley argues that the officers did not have a reasonable articulable

suspicion on which to order him from Lane’s vehicle during the traffic stop, based only on the

“burnt odor of marijuana.”

         {¶ 13}   The Fourth Amendment to the United States Constitution protects individuals

from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968). “A police officer may lawfully stop a vehicle if he has a reasonable articulable
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suspicion that the motorist has engaged in criminal activity[,] including a minor traffic violation.”

 State v. Buckner, 2d Dist. Montgomery No. 21892, 2007-Ohio-4329, ¶ 8. Once a lawful stop has

been made, the police may require the driver and any passengers to exit the vehicle pending

completion of the traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d

331 (1977); Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); State v.

Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993). “What is now referred to as a ‘Mimms

order’ was viewed by the [U.S. Supreme] court as an incremental intrusion into the driver’s

personal liberty which, when balanced against the officer’s interest in protection against

unexpected assault by the driver and against accidental injury from passing traffic, is reasonable

under the Fourth Amendment.” Evans at 406; State v. Trammer, 8th Dist. Cuyahoga No.

85456, 2005-Ohio-3852, ¶ 14. Where there is a lawful basis for the stop, ordering an occupant

out of the car is proper, even if the officers are not prompted by a reasonable, articulable

suspicion of criminal activity. Evans at 408; see also State v. Broaddus, 2d Dist. Montgomery

23525, 2010-Ohio-490, ¶ 18.

       {¶ 14}    Mobley does not dispute the legitimacy of the traffic violations for which the car

was stopped, and the record supports the conclusion that numerous traffic laws had been broken.

If the car were lawfully stopped, the officers did not need a reasonable, articulable suspicion

before ordering Mobley to step out of the car. Mimms, 434 U.S. at 111; Evans at 408. Thus, his

first argument is without merit.

       {¶ 15} Second, Mobley argues that the officers lacked sufficient probable cause to pat

him down. The evidence presented at the suppression hearing established, and the trial court

found, that, although the officers intended to pat Mobley down for their safety when he got out of
                                                                                            6

the car, he attempted to flee and struggled with the officers before they had a chance to pat him

down. The deputies testified that, once they had Mobley handcuffed, which was accomplished

only through the involvement of three officers and a taser, he was under arrest for obstruction.

He was then searched incident to his arrest. Mobley’s argument improperly focuses on whether

the officers had probable cause to pat him down when he exited the car; he was searched incident

to his arrest.

        {¶ 16} A search incident to a lawful arrest is one exception to the general prohibition

against warrantless searches. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L

.Ed.2d 685 (1969). Upon an individual’s lawful custodial arrest, police officers are entitled to

conduct a warrantless search of the person and the immediately surrounding area incident to that

arrest. Chimel, supra; State v. Williams, 2d Dist. Montgomery No. 22924, 2009-Ohio-1627, ¶ 13.

 “When conducting a search incident to arrest, police are not limited to a Terry pat-down for

weapons, but may conduct a full search of the arrestee’s person for contraband or evidence of a

crime.” State v. Todd, 2d Dist. Montgomery No. 23921, 2011-Ohio-1740, ¶ 31, citing State v.

Gagaris, 12th Dist. Butler No. CA2007-06-142, 2008-Ohio-5418, ¶ 16. “The justification or

reason for the authority to search incident to a lawful arrest rests quite as much on the need to

disarm the suspect in order to take him into custody as it does on the need to preserve evidence

on his person for later use at trial.” Id., citing United States v. Robinson, 414 U.S. 218, 234, 94

S.Ct. 467, 38 L.Ed.2d 427 (1973).

        {¶ 17} Mobley attempted to flee a car that smelled strongly of marijuana, while deputies

were investigating, and struggled with them at some length. At that point, the deputies had

probable cause to arrest Mobley for obstructing official business. The deputies’ warrantless
                                                                                              7

search of Mobley was justified as a search incident to his arrest.

          {¶ 18}   Finally, Mobley argues that the statements he made and the evidence found on

his person and in the vehicle were fruit of the poisonous tree. We have found that the search of

Mobley’s person, during which the heroin was discovered, was not unlawful. Mobley was not

charged with any offenses based on the firearm and baggies found in the vehicle.

          {¶ 19} As for Mobley’s statements attempting to implicate Lane in the placement of the

drugs, Mobley argues that he “was not properly advised of his Miranda rights, and did not

knowingly, voluntarily or intelligently waive his rights.”

          {¶ 20}   The Miranda doctrine applies to custodial interrogation; it requires, among other

things, that law enforcement officers inform a suspect that he does not have to answer their

questions, and requires that police interrogation cease after an accused has invoked his right not

to respond to questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).     It is evident from the record that the statements Mobley made to the deputies about the

source of the drugs were not made in response to any interrogation, but were entirely unsolicited.

 Voluntary statements are not prohibited by the Miranda doctrine, and Miranda imposes no duty

on the State to ensure that the accused will make no voluntary incriminating statements. Id. at

478; State v. Montgomery, 2d Dist. Montgomery No. 23870, 2010-Ohio-5047, ¶ 15.

          {¶ 21}   The statements by Mobley were voluntary, and it is questionable whether they

were incriminating. No evidence was presented that Mobley’s statements were solicited by the

deputies. Thus, there is no basis for us to conclude that Mobley’s rights were violated or that his

statements should have been suppressed.

          {¶ 22} Mobley’s assignment of error is overruled.
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       {¶ 23} The judgment of the trial court will be affirmed.

                                          ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

April F. Campbell
Shawn P. Hooks
Hon. Mary Katherine Huffman
