[Cite as State v. Brown, 2017-Ohio-2880.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellant                      :   Appellate Case No. 27377
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-2621
                                                  :
 TOBY BROWN, JR.                                  :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellee                       :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 19th day of May, 2017.

                                             ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellant

KRISTINE COMUNALE, Atty. Reg. No. 0062037, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellee

                                            .............
                                                                                            -2-



HALL, P.J.

       {¶ 1} The State of Ohio appeals, pursuant to R.C. 2945.67(A) and Crim.R. 12(K),

from the trial court’s decision and judgment entry sustaining defendant-appellee Toby

Brown’s motion to suppress evidence.

       {¶ 2} In its sole assignment of error, the State contends the trial court erred in

holding that police officers unlawfully ordered Brown out of his vehicle after smelling burnt

marijuana in his car at a sobriety checkpoint.

       {¶ 3} The facts underlying the present appeal are derived from the suppression-

hearing testimony of three police officers, the only witnesses at the hearing. Based on

their testimony, the trial court made the following factual findings in its suppression ruling:

              On March 17, 2016 Officer Will Wright was working as a volunteer at

       an OVI sobriety checkpoint in Washington Township, Montgomery County,

       Ohio. As of March 17, 2016 Will Wright had been employed by the City of

       Dayton as a police officer for twenty-nine years. Officer Wright’s general

       duties were homeland security officer for the City of Dayton Police

       Department. Officer Wright’s co-volunteer for the OVI sobriety checkpoint

       from the City of Dayton Police Department was Officer Seiter. Officer

       Matthew Poulton from the Montgomery County Sheriff’s Office was an

       additional officer located at station three of the OVI sobriety checkpoint.

              The OVI checkpoint at Miamisburg-Centerville Road and Paragon

       Road was supervised by Sergeant Flagg of the Montgomery County

       Sheriff’s Office. The operation had a manual that was provided to all of the

       police officers. The manual indicated that one of the objectives for the
                                                                                -3-


checkpoint was to arrest impaired drivers. Officer Wright and the other

volunteers received instructions before actually commencing their activity.

       Miamisburg-Centerville Road at Paragon Road is a four lane or four-

way roadway. The street is a major east-west thoroughfare in southern

Montgomery County. The checkpoint involved funneling cars by use of

cones and signs into one lane and then there [were] four or five stations for

the actual stop of the vehicle and driver-law enforcement personnel

encounter.

       Detective Will Wright was at station number three at the checkpoint.

Every car was being stopped. Officer Wright was assisted by two other

officers at that particular station.

       At about 10:30 p.m. on March 17, 2016 a vehicle operated by

Defendant came to rest at station three. Officer Wright began to speak to

Defendant through the window on the driver’s side of the vehicle. Officer

Wright engaged in an introduction during which he indicated who the

officers were and what they were involved in. He told the driver why the

officers were stopping the car. While Officer Wright was talking to Defendant

Brown he detected an odor of burnt marijuana.

       Detective Wright saw the Defendant’s eyes and heard his speech.

From these observations he could not detect any impairment of the

Defendant.

       Officer Wright analyzed his tactical plan as follows. He wished to

separate Defendant from any marijuana that may have been in the car. He
                                                                                -4-


felt that everything else, such as detecting impairment would be done

outside of the car. So, Detective Wright asked Defendant to step out of the

motor vehicle. Defendant opened the door and then dropped a cell phone

charger to the street. The Defendant then bent or moved down as if to pick

up the item and suddenly ran away. He ran from the south side of

Miamisburg-Centerville Road to the north. Three Officers, but not Officer

Wright, began to chase the Defendant.

      Matthew Poulton is an evidence technician with the Montgomery

County Sheriff’s Office. As of March 17, 2016 Officer Poulton had been

employed by the Montgomery County Sheriff’s Office for eighteen years.

Deputy Poulton was to work the OVI checkpoint in Washington Township

on March 17, 2016. He arrived at the Miamisburg-Centerville Road site for

the checkpoint at 10:00 p.m. He was not part of any oral briefing, but he had

received written instructions from Sergeant Flagg. He had the “Operations

Plan.” Deputy Poulton was working at station number three. He had worked

OVI checkpoints before March 17, 2016. On this particular occasion, the

officers were stopping every car.

      Deputy Poulton detected the odor of marijuana once the door of

Brown’s car opened. Deputy Poulton has experience in encountering

marijuana and has knowledge of how it smells because of numerous job

related exposures.

      Deputy Poulton saw Defendant drop his cell phone charger, reach to

pick it up and then run. Deputy Poulton chased Defendant. Deputy Poulton
                                                                               -5-


eventually stopped chasing Brown so he could look for items possibly

thrown by Defendant.

      Deputy Poulton did not detect any signs that Defendant Brown was

impaired. He was not involved in the search of Defendant’s motor vehicle.

He does not know if any marijuana was found in the vehicle.

      Deputy Egloff of the Montgomery County Sheriff’s Office was a

member of the law enforcement team working the OVI checkpoint at

Paragon and 725 on March 17, 2016. As of March 2016 Deputy Egloff had

been employed with the Montgomery County Sheriff’s Office for twelve

years. On March 17, 2016 he was assigned as a “line checker” at station

number two.

      Deputy Egloff’s station was adjacent to station number three. Deputy

Egloff was working at about 10:30 p.m. He could not hear what was

occurring at station number three because there was a mechanical device

they were utilizing nearby. He generally overheard Detective Wright saying

that he smelled something and he therefore asked Defendant out of the

maroon Chevy he was driving. Deputy Egloff saw Defendant drop

something, reach for the item, and then run. Deputy Egloff chased

Defendant as he ran to the north of State Route 725 behind some buildings.

Deputy Egloff did not apprehend Defendant, but he was in the vicinity of the

arrest. He was in regular contact with Deputy Wolf, who made the

apprehension. Deputy Egloff prepared a report of the incident. In preparing

the report Deputy Egloff talked to Detective Wright, Deputy Poulton and
                                                                                          -6-


       Officer Powell. Deputy Egloff did not detect any signs of impairment with

       respect to Defendant Brown. Deputy Egloff did not include in his report any

       indication that any of the officers involved had detected any indicators of

       impairment with respect to Defendant Brown.

              Upon his apprehension, Defendant Brown was handcuffed and

       eventually placed in the backseat of a patrol cruiser. Later Defendant Brown

       was removed from that cruiser and placed in another patrol car. After

       Defendant was removed, suspected illegal narcotics were found on the seat

       near where Defendant had been located.

(Doc. # 15 at 1-4).

       {¶ 4} Following the foregoing incident, a grand jury indicted Brown on one count of

cocaine possession, a fifth-degree felony, apparently based on the narcotics left on the

seat. (Doc. #1). Brown later moved to suppress the evidence. (Doc. # 10). In a December

6, 2016 decision and entry, the trial court sustained the motion. (Doc. #15). The trial court

acknowledged the lawfulness of the sobriety-checkpoint stop of Brown’s car. (Id. at 4). It

concluded, however, that the officers had no lawful basis for ordering Brown out of his

vehicle. The trial court reached this conclusion for three reasons. First, while recognizing

that police may order a driver out of a vehicle during a traffic stop pursuant to

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct.330, 54 L.Ed.2d 331 (1977), the trial court

reasoned that sobriety-checkpoint stops did not afford officers the same authority.

Second, the trial court noted that drivers may be ordered out of their cars to perform field-

sobriety tests if they show signs of being impaired. Drawing an analogy to OVI cases, the

trial court concluded that the officers lacked reasonable suspicion that Brown was
                                                                                           -7-


operating a vehicle while impaired. Like the mere odor of alcohol, the trial court opined

that the smell of marijuana, alone, was not a sufficient indicator of impairment to remove

Brown from his car. Third, the trial court acknowledged that officers operating checkpoints

may have occasion to order suspects out of their vehicles to deal with “other crimes” not

involving impaired driving. The trial court noted, however, that police needed reasonable

and individualized suspicion that Brown “was in possession of marijuana.” (Id. at 8). The

trial court found such suspicion lacking and determined that Brown “randomly” had been

ordered out of his car. (Id.). In support, it noted that the officers described smelling “an

odor” of marijuana but did not characterize the odor as “strong” or “fresh.” It noted too that

the officers testified about smelling the marijuana odor in Brown’s car but not specifically

on Brown’s person. For these reasons, the trial court distinguished State v. Moore, 90

Ohio St.3d 47, 734 N.E.2d 804 (2000), wherein the Ohio Supreme Court held at the

syllabus that “[t]he smell of marijuana, alone, by a person qualified to recognize the odor,

is sufficient to establish probable cause to conduct a search.” Based on its finding that

the officers unlawfully had ordered Brown out of his car, the trial court suppressed all

evidence discovered after that point. (Id. at 9).

       {¶ 5} In ruling on a motion to suppress, a 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.” (Citation omitted.) State v. Retherford, 93 Ohio App.3d 586,

592, 639 N.E.2d 498 (2d Dist.1994). As a result, 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
                                                                                            -8-

they meet the applicable legal standard.” Id.

       {¶ 6} Here the record supports the trial court’s factual findings, which are based on

suppression-hearing testimony and are quoted above. The key issue raised on appeal is

a legal one, to wit: whether under those facts the officers were entitled to order Brown out

of his car to investigate the odor of marijuana they detected emanating from the vehicle.

In resolving this issue, we will accept, purely arguendo, the trial court’s distinction

between traffic stops and sobriety-checkpoint stops with regard to an officer’s authority to

order a driver out of his vehicle. We also will accept the trial court’s determination that the

officers lacked reasonable suspicion that Brown was operating his vehicle while impaired.

Although two officers smelled burnt marijuana when they approached Brown’s vehicle,

the record lacks evidence that his driving was impaired or that he personally exhibited

any other indicia of impairment.

       {¶ 7} We disagree, however, with the trial court’s final determination regarding the

officers’ authority to order Brown out of his vehicle to investigate the odor of marijuana

they detected. We do not disagree with the notion that to search Brown personally police

needed at least reasonable, individualized suspicion that Brown, the sole occupant of the

vehicle, was in possession of marijuana. But in our view, the odor of burnt marijuana they

detected provided both suspicion Brown, the only occupant, was in possession of

marijuana and the contraband was located in the vehicle. This authorized Brown’s

removal from his car. As set forth above, the Ohio Supreme Court has held that “the smell

of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish

probable cause to search a motor vehicle[.]” Moore at 48. We recognize that the officer

in Moore detected “the strong odor of burnt marijuana in the vehicle and on the
                                                                                              -9-

defendant’s clothing.” Id. Here the officers did not use an adjective to qualify the strength

of the odor they smelled. Nor did they specify that they smelled the odor in Brown’s car

and on his person. In our view, however, these differences do not meaningfully distinguish

Moore. The Moore court itself did not draw such distinctions, simply holding at the syllabus

that “[t]he smell of marijuana, alone, by a person qualified to recognize the odor, is

sufficient to establish probable cause to conduct a search.”1

       {¶ 8} The Ohio Supreme Court removed any doubt about the meaning of Moore

six years later in State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.

In Farris, an officer stopped the defendant for speeding. When the defendant lowered his

car window, the officer “smelled a light odor of burnt marijuana coming from inside the

car.” Id. at ¶ 1. In the course of its ruling, the Farris court relied on Moore to find that this

odor of marijuana justified detaining the defendant and searching his vehicle. The majority

reasoned:

              Here, Farris’s extended detention was not based upon the purpose

       of the original stop, excessive speed, but was based upon [officer] Menges’s


1 Compare State v. Rice, 8th Dist. Cuyahoga No. 80997, 2003-Ohio-557, ¶ 17-18
(“Appellant urges this court to find that the strength of that smell must somehow
determine whether a warrantless search of the vehicle is appropriate. From the tenor of
his argument, a search is not justified if the odor is weak in that a weak odor signifies a
more distant time that the marijuana was smoked by its occupants, who may or may not
be the same occupants detained. * * * Nonetheless, the Moore court did not make the
distinction urged by appellant. To the contrary, the Moore court merely stated that the
‘smell of marijuana,’ as detected by a person qualified to recognize that odor, is
sufficient to establish probable cause. Without more, we are unwilling to say that a less
potent odor of marijuana emanating from a vehicle is, therefore, insufficient thereby
making any evidence seized as result of a warrantless search of the vehicle subject to
suppression.”); see also State v. Davenport, 2017-Ohio-688, __ N.E.3d __ (2d Dist.), ¶
21-23 (holding that an officer had probable cause to search the passenger compartment
of the defendant’s vehicle where the officer detected “the faint smell of burnt marijuana
and the strong odor of air freshener”).
                                                                                          -10-

       detection of the scent of burnt marijuana. In State v. Moore (2000), 90 Ohio

       St.3d 47, 734 N.E.2d 804, a case involving the search of a driver and his

       car pursuant to a traffic stop, this court held, “The smell of marijuana, alone,

       by a person qualified to recognize the odor, is sufficient to establish

       probable cause to search a motor vehicle” without a warrant. Based on

       Moore, then, Farris's detention in order to effectuate a search was justified

       and did not violate the Fourth Amendment to the United States Constitution

       or its Ohio counterpart, Section 14, Article I of the Ohio Constitution.

Id. at ¶ 12.

       {¶ 9} In Ohio, possession of any quantity of marijuana is an offense. R.C.

2925.11(C)(3)(a). The odor of marijuana is evidence of possession. Under Moore and

Farris, a “strong odor” is not required. Any odor of marijuana emanating from a legally

stopped vehicle creates probable cause to believe a violation of the law has occurred.

That being so, the officers here lawfully ordered Brown out of his vehicle. The trial court

erred in holding otherwise.2 The State’s assignment of error is sustained.

       {¶ 10} The judgment of the Montgomery County Common Pleas Court is reversed,

and the cause is remanded for further proceedings.

                                      .............



FROELICH, J. and WELBAUM, J., concur.

2 In light of this conclusion, we need not address the possibility—not raised by either
party—that Brown independently subjected himself to a valid arrest by fleeing the scene
of the sobriety checkpoint on foot. Compare State v. Lewis, 2d Dist. Montgomery No.
27152, 2017-Ohio-1195, ¶ 12 (recognizing that a defendant cannot obstruct an officer in
the performance of his official duties, regardless of whether the officer’s actions are
lawful, by fleeing on foot and forcing police to chase him).
                            -11-




Copies mailed to:

Mathias H. Heck
Michael J. Scarpelli
Kristine Comunale
Hon. Timothy N. O’Connell
