[Cite as State v. Shuttlesworth, 2014-Ohio-5206.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                              CASE NO. 5-14-13

        v.

TRENTON L. SHUTTLESWORTH,                                 OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2013 CR 00255

                                      Judgment Affirmed

                          Date of Decision: November 24, 2014




APPEARANCES:

        Alex K. Treece for Appellant

        Dennis W. McNamara for Appellee
Case No. 5-14-13


SHAW, J.

       {¶1} Plaintiff-appellant, the State of Ohio, appeals the June 9, 2014

judgment of the Hancock County Court of Common Pleas granting a motion to

suppress evidence filed by defendant-appellee, Trenton L. Shuttlesworth

(“Shuttlesworth”), and excluding 1,066 pills of Oxycodone seized from

Shuttlesworth’s coat pocket during a search by law enforcement from being used

in the State’s case-in-chief. The State subsequently filed this appeal pursuant to

Crim.R. 12(K) and asserted that it could not proceed with the Aggravated

Possession of Drugs charge against Shuttlesworth as a result of the trial court’s

judgment.

       {¶2} On Monday, November 18, 2013, at approximately 11:45 a.m.,

Sergeants Michael Walter and Kurt Beidelschies of the Ohio State Highway Patrol

were conducting a stationary patrol while positioned on a median crossover on I-

75.     Each Sergeant independently noticed that Shuttlesworth’s vehicle was

traveling too closely to the vehicle immediately in front of it. Sergeant Walter

pulled his patrol cruiser out of the crossover and followed Shuttlesworth’s vehicle.

The Sergeants then observed Shuttlesworth’s vehicle cross the white fog line

twice. Sergeant Walter illuminated the overhead lights on his patrol cruiser and

initiated the traffic stop.




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       {¶3} Once stopped, both Sergeants approached Shuttlesworth’s vehicle—

Sergeant Beidelschies from the driver side and Sergeant Walter from the

passenger side. Both Sergeants independently detected a “very strong” odor of

raw marijuana emanating from the passenger compartment of Shuttlesworth’s

vehicle. Sergeant Walter asked Shuttlesworth to exit the vehicle so that a search

of the vehicle could be performed. Sergeant Beidelschies then reported twice

detecting a “strong” odor of raw marijuana emanating from Shuttlesworth’s person

while Shuttlesworth was outside of the vehicle.

       {¶4} Sergeant Beidelschies determined he had probable cause to search

Shuttlesworth’s person. During the search, Sergeant Beidelschies discovered in

Shuttlesworth’s coat pocket a plastic sandwich size bag containing pills suspected

to be Oxycodone. Sergeant Beidelschies arrested Shuttlesworth and placed him in

Sergeant Walter’s patrol cruiser. The vehicle search did not uncover any illicit

drugs including any amount of marijuana. It was later determined that the plastic

bag retrieved from Shuttlesworth’s coat pocket during Sergeant Beidelschies’

search of his person contained 1,066 pills of Oxycodone, a Schedule II controlled

substance.

       {¶5} On November 26, 2013, the Hancock County Grand Jury indicted

Shuttlesworth on one count of Aggravated Possession of Drugs in violation of

R.C. 2925.11(A), a felony of the first degree.


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       {¶6} On February 3, 2014, Shuttlesworth filed a motion to suppress

evidence, asserting that the Oxycodone found on his person was the result of an

illegal search and seizure.

       {¶7} On May 7, 2013, the trial court held a hearing on Shuttlesworth’s

motion to suppress, where the State presented the testimony of Sergeants Walter

and Beidelschies. The video recording from Sergeant Walter’s patrol cruiser

documenting the traffic stop and subsequent search of Shuttlesworth’s person was

admitted as a joint exhibit. The evidence at the hearing revealed that the two

Sergeants did not converse after the initiation of the traffic stop and that Sergeant

Beidelschies’ decision to search Shuttlesworth’s person was based solely upon his

olfactory detection of raw marijuana coming from Shuttlesworth’s body outside of

the vehicle. Accordingly, the trial court concluded that Sergeant Beidelschies’

testimony and the video recording were the only pieces of evidence relevant in

determining whether there was probable cause to search Shuttlesworth.

       {¶8} On June 9, 2014, the trial court issued a decision finding Sergeant

Beidelschies’ testimony regarding his detection of a “strong” odor of raw

marijuana on Shuttlesworth’s person was not credible.          The trial court then

concluded that Sergeant Beidelschies did not have the requisite probable cause to

search Shuttlesworth’s person and granted Shuttlesworth’s motion to suppress the

Oxycodone seized as a result of the illegal search.


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       {¶9} The State subsequently filed this appeal pursuant to Crim.R. 12(K)

and asserted that it could not proceed with the prosecution of the case without the

suppressed evidence.

                                Assignment of Error

       THE TRIAL COURT ERRED IN GRANTING THE
       DEFENDANT-APPELLEE’S MOTION TO SUPPRESS WHEN
       ITS FINDINGS WERE NOT SUPPORTED BY COMPETENT,
       CREDIBLE EVIDENCE.

       {¶10} In its sole assignment of error, the State argues that the trial court

erred in granting Shuttlesworth’s motion to suppress based on its determination

that Sergeant Beidelschies lacked probable cause to conduct a search of

Shuttlesworth’s person.

       {¶11} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact

and, as such, is in the best position to evaluate the evidence and the credibility of

witnesses. See State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a

ruling on a motion to suppress, deference is given to the trial court’s findings of

fact so long as they are supported by competent, credible evidence. Burnside at ¶

8. With respect to the trial court’s conclusions of law, however, our standard of

review is de novo; and, therefore, we must decide whether the facts satisfy the



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applicable legal standard. State v. McNamara, 124 Ohio App.3d 706, 710 (4th

Dist.1997).

      {¶12} At the outset we note that a search is reasonable pursuant to the

Fourth Amendment to the United States Constitution if it is based upon probable

cause and executed pursuant to a warrant. Katz v. United States, 389 U.S. 347, 88

S.Ct. 507 (1967). This requires first that there be probable cause, which is a

reasonable grounds for the belief of guilt. State v. Moore, 90 Ohio St.3d 47, 2000-

Ohio-10. “Probable cause must be based upon objective facts that would justify

the issuance of a warrant by a magistrate.” Id. at 49. Once probable cause is

found, an officer must obtain a search warrant unless an exception to the warrant

requirement applies. Id. “If the state fails to satisfy either step, the evidence

seized in the unreasonable search must be suppressed.” Id., citing Mapp v. Ohio,

367 U.S. 643, 81 S.Ct. 1684 (1961).

      {¶13} In the instant case, the trial court determined that the State failed to

establish that Sergeant Beidelschies had probable cause to search Shuttlesworth’s

person. Specifically, the trial court found Sergeant Beidelschies’ testimony at the

suppression hearing regarding his detection of a “strong” odor of raw marijuana on

Shuttlesworth’s person was “not believable.” (Doc. No. 30 at 13). As noted by

the trial court, Sergeant Beidelschies’ testimony and the video recording of the

stop were the only relevant pieces of evidence presented in support of Sergeant


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Beidelschies’ claims that he obtained the requisite probable cause to conduct a

search of Shuttlesworth’s person. Sergeant Beidelschies’ testimony revealed the

following at the suppression hearing.

         {¶14} Sergeant Beidelschies testified that he has been employed by the

Ohio State Highway Patrol for eight years and that for the last two years he has

been assigned to the special operations criminal patrol for the Findlay District. He

explained that as part of his employment he is trained to identify the odor of both

burnt and raw marijuana and that in his current assignment he “literally” sees,

smells, and touches, marijuana “every single day.” (Tr. at 74).

         {¶15} Sergeant Beidelschies recalled the day that he and Sergeant Walter

conducted the traffic stop of Shuttlesworth’s vehicle on I-75 near Findlay. He

explained that he is a certified instructor for the drug interdiction assistance

program and on that particular day he was riding with Sergeant Walter to advise

him on certain drug interdiction methods. He recalled that they were positioned

on a median crossover near mile marker 160 when he observed Shuttlesworth’s

vehicle travelling to closely to the vehicle in front of it.1 Sergeant Beidelschies

testified that as Shuttlesworth’s vehicle passed his location, he noticed that

Shuttlesworth was seated in a “leaned back” position in the driver seat. (Tr. at 77).


1
  Sergeant Walter testified that when he first observed Shuttlesworth’s vehicle, he estimated the vehicle to
be travelling 55-57 mph while only maintaining approximately one car length distance from the vehicle
travelling immediately ahead.


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He also spotted a barcode on the rear passenger window, which indicated that the

vehicle was a rental car. He further stated that he observed an “old crumbly

looking chair” in the vehicle. (Tr. at 78). After Shuttlesworth’s vehicle passed

him, Sergeant Beidelschies noticed the vehicle had Tennessee license plates.2 He

recalled that these items “piqued [his] curiosity” because they are clues he looks

for when engaging in drug interdiction. (Tr. at 96).

        {¶16} As they approached Shuttlesworth’s vehicle, Sergeant Beidelschies

observed the vehicle drift over the white fog line twice, hitting the rumble strips

on the second time. Once the patrol cruiser was positioned behind Shuttlesworth’s

vehicle, he stated that Sergeant Walter illuminated his overhead lights to initiate

the traffic stop.

        {¶17} Sergeant Beidelschies testified that Sergeant Walter first approached

the passenger side of the vehicle to make contact with Shuttlesworth. He stated

that he did not make any contact with Shuttlesworth while Shuttlesworth was in

the vehicle.      He also recalled that it was an extremely windy and blustery

November day, preventing him from hearing the conversation between

Shuttlesworth and Sergeant Walter. Notably, the video recording of the stop

demonstrates that, at times, the wind was so forceful that Sergeant Walter had to



2
  Sergeant Beidelschies explained that the Tennessee license plates were significant because it is well
known to law enforcement engaging in drug interdiction on I-75 that West Virginia, Kentucky and
Tennessee are “pill hubs” for distributing contraband from Toledo and Detroit. (Tr. at 96).

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brace himself against the vehicle as he spoke to Shuttlesworth and his necktie

vigorously flapped in the wind.

       {¶18} Sergeant Beidelschies explained that he approached the driver side of

the vehicle as Sergeant Walter conversed with Shuttlesworth on the passenger

side. He testified that the front driver side widow was rolled down approximately

three to four inches allowing him to detect a “very strong” odor of raw marijuana

emanating from the vehicle. He recalled that the wind was blowing southwest at a

45 degree angle through Shuttlesworth’s vehicle and into his face.               He

remembered being concerned that Sergeant Walter was unable to detect the odor

of raw marijuana emanating from the vehicle because the wind was blowing away

from where Sergeant Walter was positioned at the passenger side.            Sergeant

Beidelschies then walked around to the passenger side to tell Sergeant Walter

about the odor. However, before he could say anything, Sergeant Walter walked

around to the driver side door and directed Shuttlesworth to exit the vehicle.

       {¶19} Sergeant Beidelschies testified that while still standing on the

passenger side, he detected a “strong” odor of raw marijuana emanating from

Shuttlesworth’s person as Shuttlesworth exited through the driver side door on the

other side of the vehicle. The video recording shows that Sergeant Beidelschies

was leaning down into the passenger compartment through the passenger side

front window as Shuttlesworth exited the vehicle.


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       {¶20} Sergeant Beidelschies recalled that he then walked to the back of

Shuttlesworth’s vehicle near the front of the patrol cruiser where Shuttlesworth

had been directed to stand by Sergeant Walter after exiting his vehicle. Sergeant

Beidelschies stated that as he approached Shuttlesworth he again detected a

“strong” odor of raw marijuana emanating from Shuttlesworth. He testified that

he had a brief exchange with Shuttlesworth, which the video shows lasted for a

matter of seconds. He recalled informing Shuttlesworth that he could smell the

odor of raw marijuana coming from his body and asked if he had any marijuana on

his person. Sergeant Beidelschies stated Shuttlesworth “never said a word.” (Tr.

at 83).   Sergeant Beidelschies then conducted a “probable cause search” of

Shuttlesworth based on his detection of raw marijuana emanating from

Shuttlesworth’s person. (Tr. at 84). During the search, Sergeant Beidelschies

uncovered a plastic bag of Oxycodone from Shuttlesworth’s coat pocket. Upon

finding the pills, Sergeant Beidelschies made the decision to place Shuttlesworth

under arrest.

       {¶21} At the suppression hearing, Sergeant Beidelschies maintained that he

conducted the search of Shuttlesworth based solely on his olfactory detection of

raw marijuana emanating from Shuttlesworth’s person and that there was no

officer safety issue precipitating the search. He also testified that even though no

marijuana was found either on Shuttlesworth’s person or in his vehicle, a “very


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strong” odor of raw marijuana continued to emanate from Shuttlesworth and the

plastic bag of pills at the patrol post. However, Sergeant Beidelschies stated that

his own clothes did not smell of raw marijuana after he drove Shuttlesworth’s

rental vehicle to the patrol post.3

         {¶22} In its decision to grant Shuttlesworth’s motion to suppress, the trial

court acknowledged the State’s assertion that Sergeant Beidelschies obtained the

requisite probable cause to search Shuttlesworth’s person based solely on Sergeant

Beidelschies’ claims that he smelled a “strong” odor of raw marijuana coming

from Shuttlesworth’s body, outside of the vehicle. The trial court then stated that:

         It is therefore incumbent upon the Court to analyze the existing
         evidence to determine if Beidelschies did smell the odor of raw
         marijuana about the Defendant as he described in his testimony.
         Necessarily this analysis involves a determination of Beidelschies’
         credibility.

(Doc. 30 at 10) (Emphasis added). The trial court thoroughly analyzed Sergeant

Beidelschies’ testimony regarding what had transpired during the traffic stop

together with the video recording obtained from Sergeant Walter’s patrol cruiser.

After reviewing this evidence the trial court concluded the following in its

decision granting the motion to suppress.

         Perhaps Beidelschies “anticipated” or “expected” the odor to be
         present when Shuttlesworth approached him based upon what

3
  Sergeant Walter testified that after he was arrested, Shuttlesworth told an investigator with the Ohio State
Highway Patrol that he had received the Oxycodone from a residence in Toledo were raw marijuana was
present. Sergeant Walter assumed that the odor of raw marijuana must have permeated Shuttlesworth’s
clothes and the plastic bag containing the Oxycodone.

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       he smelled near the car, but logic and common sense, the short
       sequence of events, Beidelschies’ own statements and the visual
       evidence leads this Court to the conclusion that his testimony on
       this point is not believable.

(Doc. No. 30 at 13).

       {¶23} On appeal, the State contends that the trial court erred in concluding

that Sergeant Beidelschies’ testimony was not credible to establish that he had

probable cause to conduct a search of Shuttlesworth’s person and requests this

Court reverse the trial court’s decision on this basis.

       {¶24} Whether or not we may have been inclined to accept Sergeant

Beidelschies’ testimony that Shuttlesworth indeed smelled of a “strong” odor of

raw marijuana is not relevant to our consideration of the issue raised on appeal.

Although the trial court acknowledged that Sergeant Beidelschies was qualified

and experienced in the detection and identification of the odor of raw marijuana in

general, the trial court apparently had difficulty accepting Sergeant Beidelschies’

claims in this instance that he smelled a “strong” odor of raw marijuana coming

from Shuttlesworth’s body given the weather conditions present that day and

Sergeant Beidelschies’ statements regarding the direction of the wind. The trial

court also found the video evidence documenting the traffic stop to be inconsistent

with Sergeant Beidelschies’ testimony regarding his olfactory detection of raw

marijuana on Shuttlesworth’s person. And it is notable that the trial court based its



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decision to suppress the evidence squarely upon its determination that Sergeant

Beidelschies’ testimony was not credible.

       {¶25} As previously noted, the trial court was in the best position to resolve

factual questions and evaluate the credibility of the witnesses. See State v. Mills,

62 Ohio St.3d 357, 366 (1992). Therefore, we defer to the trial court’s credibility

determination of Sergeant Beidelschies’ testimony and find that the record

establishes that the trial court’s factual findings were supported by competent,

credible evidence. Accordingly, we cannot conclude that the trial court erred in

granting Shuttlesworth’s motion to suppress on the basis that Sergeant

Beidelschies lacked the requisite probable cause to conduct a search of

Shuttlesworth’s person.

       {¶26} Because we have determined that the trial court did not err in finding

the State failed to establish probable cause we do not need to examine whether an

exception to the warrant requirement was present. Therefore, the assignment of

error is overruled and the judgment of the trial court is affirmed.

                                                                Judgment Affirmed

WILLIAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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