[Cite as State v. Burgin, 2013-Ohio-4261.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.     12CA010277

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
WILLIAM P. BURGIN, IV                               COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   11CR082876

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2013



        MOORE, Presiding Judge.

        {¶1}     Defendant, William P. Burgin, appeals from the judgment of the Lorain County

Court of Common Pleas. We affirm.

                                               I.

        {¶2}     On May 10, 2012, Trooper Michael Trader of the Ohio State Highway Patrol

initiated a traffic stop of a car that Mr. Burgin was driving. The stop ultimately led to the

officer’s search of Mr. Burgin’s car and the discovery of marijuana, the prescription drug

Adderall, drug paraphernalia, a scale, and a “FoodSaver” machine. As a result, the Lorain

County Grand Jury indicted Mr. Burgin on two counts of possession of drugs in violation R.C.

2925.11(A) and on one count of each of the following: trafficking in drugs in violation of R.C.

2925.03(A)(2), possessing criminal tools in violation of R.C. 2923.24(A), and possessing drug

paraphernalia in violation of R.C. 2925.14(C)(1).
                                                   2


       {¶3}    Mr. Burgin pleaded not guilty and moved to suppress the evidence, the discovery

of which he argued, in part, resulted from an illegal search of his vehicle. After holding an

evidentiary hearing, the trial court denied his motion. Thereafter, Mr. Burgin amended his plea

to no contest, and the trial court found him guilty on all counts contained in the indictment. In a

journal entry dated September 12, 2012, the trial court imposed sentence.

       {¶4}    Mr. Burgin timely filed a notice of appeal from the sentencing entry, and he now

presents one assignment of error for our review.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED [MR.] BURGIN’S MOTION
       TO SUPPRESS.

       {¶5}    In his sole assignment of error, Mr. Burgin argues that the trial court erred in

denying his motion to suppress. We disagree.

       Appellate 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. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

Accord State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied).

       {¶6}    After careful review of the record, we accept the trial court’s findings of fact as

follows, because these findings are supported by competent, credible evidence. See Burnside at

¶ 8. In the late morning hours of May 10, 2011, Trooper Trader was monitoring traffic on the

Ohio Turnpike when he observed Mr. Burgin’s car traveling 62 m.p.h. at a distance of
                                                  3


approximately one and one-half car lengths behind another vehicle. Trooper Trader began to

follow Mr. Burgin, and he activated his overhead lights to initiate a traffic stop for following too

closely. Once he activated his overhead lights, the trooper observed a passenger, Christopher

Green, sit up in the front passenger seat.          Mr. Green then moved about the passenger

compartment as the car slowly pulled onto the berm.

       {¶7}    Thereafter, the trooper approached Mr. Burgin and asked him to exit the vehicle.

The trooper explained the reason for the stop and performed a “consensual search for weapons”

on Mr. Burgin’s person. Following the pat-down search, the trooper “secured him in [the

trooper’s] vehicle.”

       {¶8}    Trooper Trader then approached Mr. Green via the passenger side of Mr. Burgin’s

vehicle. The trooper told Mr. Green that he had observed his movements, and the trooper asked

him to exit the vehicle. As the trooper was speaking to Mr. Green, he smelled the odor of burnt

marijuana emanating from the car. After Mr. Green exited the car, the trooper placed him in the

patrol car of Trooper Mike Helmick, who had arrived at the scene.

       {¶9}    Troopers Trader and Helmick then proceeded to conduct a search of the front

passenger area of Mr. Burgin’s car. Between the front passenger seat and the center console, the

troopers located a bag of marijuana and a marijuana pipe. Trooper Trader then returned to his

patrol car and read Mr. Burgin his Miranda rights. He also informed Mr. Burgin that he was

going to conduct a full search of the vehicle based upon his discovery of the contraband in the

front seat. During the search, the trooper located a backpack in the passenger compartment that

contained eight pills, later identified as Adderall, and a scale. In the trunk of the car, the troopers

located a “FoodSaver” machine, three “FoodSaver” bags of marijuana and a “Ziploc” bag of

marijuana.
                                                4


       {¶10} On appeal, Mr. Burgin does not challenge the basis for the stop of his vehicle.

However, he maintains that, based upon the above, Trooper Trader impermissibly detained him

in the patrol car and unjustifiably searched his vehicle. Mr. Burgin maintains that these actions

were in contravention to the Fourth Amendment, and that all evidence seized from his car should

have been suppressed.

       {¶11} The Fourth Amendment to the United States Constitution and Article I, Section

14, of the Ohio Constitution prohibit law enforcement from conducting unreasonable and

warrantless searches and seizures. “Warrantless searches are per se unreasonable under the

Fourth Amendment subject only to a few specifically established and well-delineated exceptions.

The [S]tate has the burden of establishing the application of one of the exceptions to this rule

designating warrantless searches as per se unreasonable.” (Internal citations and quotations

omitted.) State v. Kessler, 53 Ohio St.2d 204, 207 (1978). Courts are required to exclude

evidence obtained by means of searches and seizures that are found to violate the Fourth

Amendment. Mapp v. Ohio, 367 U.S. 643, 657 (1961).

       {¶12} A police-initiated stop of an automobile is a seizure under the Fourth Amendment

and falls within the purview of Terry v. Ohio, 392 U.S. 1 (1968). See Delaware v. Prouse, 440

U.S. 648, 653, 663 (1979). Pursuant to Terry, officers must possess a reasonable suspicion of

criminal activity in order to justify a traffic stop. See Terry at 21. However, a traffic offense

provides an officer with probable cause to make a traffic stop. State v. Myers, 9th Dist. Summit

No. 18292, 1998 WL 15599, *3 (Jan. 7, 1998). In such a case, the scope of the traffic stop “must

be carefully tailored to its underlying justification * * * and last no longer than is necessary to

effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983); see also State v.

Gonyou, 108 Ohio App.3d 369, 372 (6th Dist.1995). In State v. Payne, 4th Dist. No. 11CA3272,
                                                 5


2012-Ohio-4696, ¶ 27, the Fourth District explained that “[t]he rule set forth in Royer is designed

to prevent law enforcement officers from conducting ‘fishing expeditions’ for evidence of a

crime.” Id., citing Gonyou, and Sagamore Hills v. Eller, 9th Dist. Summit No. 18495, 1997 WL

760693 (Nov. 5 1997). However, the detention of a motorist may be extended where further

articulable facts giving rise to a suspicion of some illegal activity justify an extension of the

detention. State v. Robinette, 80 Ohio St.3d 234, 241 (1997). With these principles in mind, we

will separately address Mr. Burgin’s arguments pertaining to his detainment in the police cruiser,

the troopers’ search of the passenger compartment, and the troopers’ search of the trunk.

Detainment in Patrol Car

       {¶13} First, as to the detainment of Mr. Burgin in the patrol car, Mr. Burgin argues that

this detainment was unlawful, and that all evidence seized thereafter was “fruit of the poisonous

tree.” In making this argument, he maintains that, had he not been placed in the cruiser, the

trooper “would [not have] smelled any marijuana on the passenger side because he [never] would

have [] ventured over there.” This Court is unable to discern a nexus between Mr. Burgin’s

placement in the patrol car and the trooper’s approach of the passenger side of the vehicle. See

State v. Chagaris, 107 Ohio App.3d 551, 557 (9th Dist.1995) (officer speaking with passenger

during lawful traffic stop does not in itself violate Fourth Amendment), State v. Wright, 9th Dist.

No. 2371-M, 1995 WL 404964, *4 (June 28, 1995) (following a lawful stop, “any questioning

which occurs during the detention, even if unrelated to the scope of the detention, is valid so long

as the questioning does not improperly extend the duration of the detention”), and Maryland v.

Wilson, 519 U.S. 408, 415 (1997) (“an officer making a traffic stop may order passengers to get

out of the car pending completion of the stop”).         The dash cam video introduced at the

suppression hearing indicates that, after stopping the car, the trooper caused Mr. Burgin to step
                                                   6


out, spoke to him briefly, conducted a pat-down search, and placed him in the patrol car. Less

than one minute after causing Mr. Burgin to exit the vehicle, the officer approached Mr. Green

on the passenger side of the car. We conclude that, “even assuming that [Trooper Trader]’s act

of asking Mr. [Burgin] to sit in his cruiser did constitute an illegal seizure under the Fourth

Amendment, Mr. [Burgin] has not pointed to any evidence obtained by this seizure.” (Emphasis

added.) See State v. Delossantos, 9th Dist. Lorain No. 11CA009951, 2012-Ohio-1383, ¶ 12.

Accordingly, we will proceed to review Mr. Burgin’s arguments as they pertain to the search of

his vehicle.

Search of Passenger Compartment

       {¶14} In regard to the search of the passenger compartment of Mr. Burgin’s vehicle, in

its journal entry, the trial court noted that the State had maintained that the search of the vehicle

was justified for two reasons. First, the State had argued that the search was proper as a

protective search. Second, the State had argued that the search was proper because the trooper

smelled marijuana emanating from the car. The trial court, citing State v. Steen, 9th Dist.

Summit No. 21871, 2004-Ohio-2369, and State v. Garcia, 32 Ohio App.3d 38, 39 (9th

Dist.1986), noted that this Court has held that the detection of the odor of marijuana may justify

the search of a passenger compartment of a vehicle. The trial court further relied on State v.

Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 12 for the proposition that the smell of burnt

marijuana alone may establish probable cause to search a motor vehicle.

       {¶15} Here, the trial court determined that, when Trooper Trader approached the

passenger side of the car, he detected the odor of marijuana emanating from the car. Based upon

this, the trial court concluded that the trooper was justified in searching the car.
                                                 7


       {¶16} Therefore, the trial court’s ruling turned upon the trooper’s detection of the odor

of marijuana. This Court has held that the smell of marijuana alone may provide probable cause

for an officer to search the passenger compartment of a vehicle pursuant to the automobile

exception to the warrant requirement. Steen at ¶ 7, citing Garcia at 39 (stating that “[t]he odor of

marijuana, standing alone, has * * * been held to provide probable cause for warrantless

searches”); State v. Jones, 9th Dist. Lorain No. 12CA010270, 2013-Ohio-2375, ¶ 10 (“A

warrantless search of the passenger compartment is permissible if an odor of marijuana is

detected by a qualified person.”).

       {¶17} Despite the trial court’s reasoning, which focused on the detection of the odor of

marijuana, Mr. Burgin dedicated much of his merit brief to challenge the search based upon the

validity of a protective search for weapons. However, we conclude that, based upon the totality

of the circumstances, including the officer’s determination that the car was relatively slow to pull

onto the berm, the furtive movements of Mr. Green, and the smell of burnt marijuana emanating

from the vehicle, probable cause existed to search the passenger compartment of the car pursuant

to the automobile exception to the warrant requirement. See Jones at ¶ 10. Therefore, we need

not determine whether the search was justified as a protective search for weapons.

       {¶18} In regard to the detection of the odor of marijuana, in his reply brief, Mr. Burgin

asks this Court to distinguish between an odor of “fresh[ly] burnt marijuana” and a stale odor of

“burnt marijuana” in considering whether probable cause exists for the search of a vehicle.

(Emphasis added.) However, Mr. Burgin may not raise new issues for consideration in his reply

brief, which is limited to issues of rebuttal. See Loc.R. 7(C) (“Proper rebuttal is confined to new

matters in the appellee’s brief.”), and State v. Palmison, 9th Dist. Summit No. 20854, 2002-

Ohio-2900, ¶ 32, fn.2, quoting Sheppard v. Mack, 68 Ohio App.2d 95, 97, fn. 1 (1990). This
                                                  8


Court, therefore, declines to address this issue. See Summit Retirement Plan Servs., Inc. v.

Bergdorf, 9th Dist. Summit No. 23200, 2006-Ohio-6154, ¶ 14.

Search of Trunk

       {¶19} The test for probable cause to search a trunk under the automobile exception is

“whether in light of the totality of the circumstances, ‘there is a fair probability that contraband *

* * will be found in the trunk.’” (Internal citations, alterations, and quotations omitted.) Jones at

¶ 18, quoting State v. Carmichael, 9th Dist. Lorain No. 11CA010086, 2012-Ohio-5923, ¶ 9. In

Jones at ¶ 20, this Court held that neither the Ohio Constitution nor the United States

Constitution “prohibit[s] warrantless searches of an automobile trunk after law enforcement has

found contraband in the passenger compartment.”

       {¶20} Again in his reply brief, Mr. Burgin argues that the discovery of the marijuana

and marijuana bowl in the passenger compartment of the vehicle did not give rise to probable

cause to search the trunk of the vehicle. Because this argument was raised in his reply brief, we

decline to address it. See Bergdorf, 2006-Ohio-6154, at ¶ 14

       {¶21} Accordingly, the trial court did not err in denying Mr. Burgin’s motion to

suppress, and his sole assignment of error is overruled.

                                                 III.

       {¶22} Mr. Burgin’s assignment of error is overruled.           The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      CARLA MOORE
                                                      FOR THE COURT




HENSAL, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶23} I respectfully dissent. In his motion to suppress, Burgin initially argued that the

traffic stop was not valid. With respect to the subsequent search of his vehicle, Burgin argued

that there was no basis for the officer to engage in a protective search, and that there was no

justification for placing Burgin and Green in the patrol car. Burgin asserted that because there

was no basis for the officer’s decision to place the two men in the cruiser and conduct a safety

search, all of the evidence obtained by police thereafter fell within the fruit of the poisonous tree

doctrine. In its journal entry denying the motion to suppress, the trial court did not address
                                               10


Burgin’s argument that there was no basis for the protective search, and that it was inappropriate

to place Burgin and Green in the patrol car. Instead, the trial court generally acknowledged that

Burgin had argued that “the search of the passenger compartment of the vehicle was

unwarranted[,]” and then concluded that the search was valid based on the officer’s detection of

the odor of burnt marijuana. Because the trial court did not address Burgin’s argument regarding

the circumstances of the safety search, I would remand this matter to the trial court to address

that issue in the first instance.


APPEARANCES:

STEPHEN P. HANUDEL, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
