         [Cite as State v. Whitfield, 2020-Ohio-2929.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :    APPEAL NO. C-190591
                                                         TRIAL NO. B-1901131
        Plaintiff-Appellant,                        :

                                                           O P I N I O N.
  vs.                                               :

LAWAYNE WHITFIELD,                                  :

    Defendant-Appellee.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 13, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellant,

Timothy J. McKenna, for Defendant-Appellee.
                      OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}    Defendant-appellee LaWayne Whitfield was the passenger in a car

stopped by Cincinnati Police Officers Oscar Cuiranek and Thomas Wells for a traffic

violation. The officers called for a K9 team to conduct a “sniff” around the car, and

asked the driver and Whitfield to step out of the car. When Whitfield stepped out of

the car, he was frisked and then searched, whereupon officers discovered ten grams

of cocaine in his possession. Whitfield filed a motion to suppress the cocaine, which,

after a hearing, was granted by the trial court.

       {¶2}    The state has appealed, arguing in one assignment of error that the

trial court erred in granting Whitfield’s motion to suppress.            For the reasons

discussed below, we overrule the state’s assignment of error, and affirm the

judgment of the trial court.

                                 Factual Background


       {¶3}    The trial court held a hearing on the motion to suppress, where it

considered the testimony of officers Cuiranek, Wells, and Jason Hesselbrock, as well

as footage of the encounter from their body cameras, which was admitted as exhibits.

       {¶4}    Officer Cuiranek testified that he and Wells were part of a P.I.V.O.T.1

squad assigned to patrol “hot spot,” high-violence areas in the city of Cincinnati.

Cuiranek testified that they were looking to initiate a traffic stop that could lead to

the investigation of more serious crimes. In this case, they initiated a traffic stop on

the vehicle due to excessive window tinting. Cuiranek approached the driver’s side,

and Wells approached the passenger’s side. Whitfield was in the passenger seat.


1 Placed Based Investigations of Violent Offender Territories (“P.I.V.O.T.”) uses crime data
analysis to identify and police small areas where violence has been chronic and sustained.
https://www.cincinnati-oh.gov/police/community-involvement/pivot/ (accessed May 6, 2020).


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Cuiranek asked the driver and Whitfield for their driver’s licenses, and then, after a

brief conversation with the driver, Cuiranek asked if they had been smoking

marijuana. Whitfield responded that he had smoked marijuana earlier in the day,

but not in the car. As Cuiranek walked back to his patrol car, he called for a drug

sniffing K9 team. Cuiranek testified that he had smelled a weird scent coming from

the car, but he was not 100 percent sure if it was marijuana, so he called a K9 team to

the scene to confirm the presence of marijuana in the car.

       {¶5}   While waiting for the K9 team to arrive, Wells stood by the passenger

side of the stopped vehicle, occasionally speaking with Whitfield and the driver.

Wells testified that he smelled marijuana coming from the car. Officer Hesselbrock

and his K9 arrived approximately 15 minutes after the encounter began. Wells told

both the driver and Whitfield to step out of the car. Hesselbrock testified that this

was standard procedure before police conducted a sniff using a K9 for the safety of

the officers and the occupants.     Hesselbrock approached the driver’s side and

escorted the driver to the sidewalk without frisking her. He testified that he did not

smell any marijuana.

       {¶6}   Wells testified that when officers order the occupants out of a car

during a traffic stop, they frisk the occupants to make sure they don’t possess any

weapons. After Whitfield stepped out of the car, Wells frisked him. During the frisk,

Wells told Whitfield that he smelled “a little something” and asked Whitfield if he

had marijuana on him. As he frisked Whitfield’s leg, Wells said “there’s weed right

there.” Wells testified that he had felt a “hard lump on the right side, inside of

[Whitfield’s] leg,” which felt like a hard ball of marijuana. Wells alerted Cuiranek,

who put Whitfield in handcuffs and then reached into Whitfield’s pockets and




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retrieved a baggy of ten grams of cocaine and a scale. After officers found the cocaine

and scale, Whitfield told the officers that there was a bag of marijuana under the

passenger’s seat. Officer Hesselbrock retrieved the marijuana, which was hidden

under the passenger seat.

       {¶7}    Whitfield filed a motion to suppress the evidence seized as a result of

the search of his person. The trial court granted Whitfield’s motion to suppress,

stating in its decision that “there was no indication that Whitfield was engaged in any

illegal, much less threatening behavior prior to the search of, and discovery of drugs

on his person.” The court held that “there was no identifiable odor of marijuana, no

suspicious behavior, or illegal activity being conducted by Whitfield that gave the

Officer’s [sic] probable cause to search his person.”

                            Sole Assignment of Error

       {¶8}    An appellate court reviews a motion to suppress as a mixed question of

law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552, 2020-Ohio-650, ¶ 9.

“We must accept the trial court’s findings of fact if they are supported by competent

and credible evidence, but we review de novo the application of the relevant law to

those facts.” Id.

       {¶9}    Whitfield concedes that the traffic stop and detention for purposes of

bringing in the K9 unit were both lawful. He takes issue with being ordered out of

the car, frisked, and then searched. Because we find that the frisk was unlawful, we

do not reach the merits of his other arguments.

       {¶10} The Fourth Amendment to the United States Constitution, and Article

I, Section 14 of the Ohio Constitution, prohibit “unreasonable searches and seizures.”

“Unless an exception applies, warrantless searches are per se unreasonable.” State v.




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Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.).

“Evidence is inadmissible if it stems from an unconstitutional search or seizure.”

Showes at ¶ 11, quoting Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct.

407, 9 L.Ed.2d 441 (1963). The burden of persuasion is on the state to show the

validity of a warrantless search. State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶

13 (1st Dist.).

        {¶11} The state first argues that the trial court’s determination that there was

no identifiable odor of marijuana is not supported by the record because two officers

testified that they smelled what they believed was marijuana. The state contends

that due to the smell of marijuana, the search of Whitfield’s person was justified

under State v. Moore, 90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000) (holding that

“exigent circumstances existed to justify the warrantless search of defendant’s person

once [the officer] had probable cause based upon the odor of marijuana detected on

the defendant”).

        {¶12} “When considering a motion to suppress, the trial court assumes the

role of the trier of fact and is therefore in the best position to resolve factual

questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “A reviewing court should not

reverse a decision simply because it holds a different opinion concerning the

credibility of the witnesses and the evidence submitted before the trial court.”

Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984).

“Reviewing courts should accord deference to the trial court’s decision because the

trial court has had the opportunity to observe the witness’ demeanor, gestures, and

voice inflections that cannot be conveyed to us through the written record.” State v.




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Woods, 2018-Ohio-3379, 117 N.E.3d 1017, ¶ 19 (5th Dist.), citing Miller v. Miller, 37

Ohio St.3d 71, 523 N.E.2d 846 (1988).

       {¶13} Here the record contains competent, credible evidence that supports

the trial court’s conclusion that there was “no identifiable odor of marijuana.” One

officer testified that he “smelled a weird smell coming out of the car, but [he] wasn’t

a hundred percent sure if it was a marijuana smell.” A second officer testified that he

smelled marijuana. A third officer testified that he did not smell marijuana. The trial

court considered the surrounding circumstances of the stop and all of the testimony,

viewed the body camera footage of all three officers, and made a determination that

there was “no identifiable odor of marijuana.” After a thorough review of the record,

we cannot say that there was no competent, credible evidence to support the trial

court’s conclusion.

       {¶14} Accepting the trial court’s factual finding as true, we turn to the state’s

argument that the frisk of Whitfield was legal under Terry v. Ohio, 392 U.S. 1, 24, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer is permitted to

conduct a limited frisk of a person if the officer reasonably believes that “the

individual whose suspicious behavior he is investigating at close range is armed and

presently dangerous to the officer or others.” State v. Evans, 67 Ohio St.3d 405,

408, 618 N.E.2d 162 (1993), quoting Terry at 24. An officer must have a reasonable,

objective basis to conduct the frisk. Showes, 1st Dist. Hamilton No. C-180552, 2020-

Ohio-650, at ¶ 12. The officer “must articulate specific facts which would lead a

reasonable person to conclude that the person being investigated is armed and

dangerous.” Id.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} In its brief, the state contends that Whitfield waived the right to

challenge the frisk on appeal by not challenging it in his motion to suppress or

during the suppression hearing. We disagree. Although perhaps not the main thrust

of his argument before the trial court, Whitfield sufficiently challenged the frisk for

purposes of preserving his right to raise the issue on appeal.

       {¶16} Cuiranek and Wells initiated a traffic stop for excessive window

tinting. Wells testified that it is standard procedure for officers to remove occupants

from a vehicle before a K9 team conducts an “open air sniff” around the vehicle.

Wells testified that for the safety of the officers involved, once an individual is

removed from a vehicle during a traffic stop, it is “typical” for officers to frisk the

individual to ensure that the individual does not possess any weapons. However, to

satisfy the Terry exception to the warrant requirement, an officer must be able to

articulate specific facts that would lead a reasonable person to conclude that the

individual under investigation is armed and dangerous. Showes at ¶ 12.

       {¶17} The traffic stop was for excessive window tinting. None of the officers

testified to any furtive movements or suspicious behavior by Whitfield or the driver.

In fact, Wells’s body camera footage showed the driver and Whitfield calmly waiting

in the car while police waited for a K9 team to arrive. The state has failed to show

that the warrantless search was legally justified. Its sole assignment of error is

overruled.

                                     Conclusion

       {¶18} The state’s assignment of error is overruled and the judgment of the

trial court is affirmed.

                                                                  Judgment affirmed.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, P.J., and BERGERON, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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