[Cite as State v. Farrow, 2019-Ohio-3311.]


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

STATE OF OHIO                                         C.A. No.      18CA011327

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RUSSELL FARROW                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   17CR095536

                                 DECISION AND JOURNAL ENTRY

Dated: August 19, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Russell D. Farrow, appeals from the trial court’s denial of his motion

to suppress evidence in the Lorain County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Sergeant Timothy Timberlake of the Ohio State Highway Patrol was working

traffic enforcement on I-80 in Lorain when he observed a vehicle traveling 54 miles per hour in a

70 mile-per-hour zone. He followed the vehicle and observed it exit the turnpike without

signaling a lane change, so he initiated a traffic stop. According to Sergeant Timberlake, once

the passenger side window was opened, he immediately smelled the odor of burnt marijuana

coming from within the vehicle. He separated the vehicle’s two occupants, and testified that the

driver indicated to him that marijuana had been smoked in the car earlier. Another trooper

(“Trooper Grabel”) secured the driver in her cruiser while Sergeant Timberlake spoke to Mr.
                                                2


Farrow. The sergeant testified that Mr. Farrow also admitted marijuana had been smoked earlier

and presented the sergeant with a cigar wrapper where he had previously kept the marijuana.

       {¶3}    According to Sergeant Timberlake, he had Mr. Farrow step out of the vehicle and

intended to conduct a protective pat down prior to securing him in a cruiser while the vehicle

was searched. According to another trooper (“Trooper Dowler”), he noticed a “big, abnormal

bulge” in the front of Mr. Farrow’s pants and believed he was trying to conceal something.

When questioned as to what he was concealing, Mr. Farrow said it was nothing and then

voluntarily removed a balled-up sock. “[A] bulge was still there,” however, and the troopers

inquired again. Mr. Farrow claimed it was his medicine and then removed a prescription pill

bottle with the label ripped off. According to Sergeant Timberlake, “there was still a bulge in his

pants[,]” and after more prompting from the troopers and a brief search of the exterior of his

clothes, Mr. Farrow eventually removed three bags of pills, which later tested positive for

oxycodone. A search of the vehicle revealed no marijuana, but a pack of cigarettes containing

nine more oxycodone pills was discovered in the center console or cup holder. In totality, the

police seized 491 oxycodone pills.

       {¶4}    Mr. Farrow was charged with felony trafficking in drugs, felony possession of

drugs, and misdemeanor illegal use or possession of drug paraphernalia. He filed a motion to

suppress, and the trial court held a suppression hearing. The court reviewed the evidence

presented and, one month later, ruled from the bench and denied the motion. The court later

filed a judgment entry denying the motion to suppress “[f]or reasons set forth on the record.”

Mr. Farrow then pled no contest to the indictment. The two felonies were merged for sentencing

as allied offenses of similar import, and the State elected to have Mr. Farrow sentenced on the

drug trafficking count. The trial court sentenced him to three years in prison for trafficking in
                                                 3


drugs and thirty days in jail for illegal use or possession of drug paraphernalia, to be served

concurrently. The court also ordered Mr. Farrow to pay a mandatory fine of $7,500.00 and court

costs. Mr. Farrow moved the trial court to stay execution of his sentence, and the court set a

$7,500.00 surety bond pending appeal.

        {¶5}    We note that, at both the plea and sentencing hearings, the trial court and both

parties all indicated an understanding that Mr. Farrow would be sentenced to a mandatory term

of incarceration. See R.C. 2925.03(C)(1)(d) and 2925.11(C)(1)(c). However, when the trial

court actually imposed its sentence for trafficking in drugs, both in open court and in its

sentencing entry, no indication was given that the prison term was mandatory. Neither party has

raised this issue in the instant appeal.

        {¶6}    Mr. Farrow now appeals from the trial court’s denial of his motion to suppress

evidence and raises two assignments of error for this Court’s review.

        {¶7}    For ease of analysis, we will consolidate Mr. Farrow’s assignments of error.

                                                II.

                                ASSIGNMENT OF ERROR ONE

        THE TRIAL COURT ERRED TO THE DETRIMENT OF FARROW WHEN
        SAID COURT DENIED FARROW’S MOTION TO SUPPRESS. THE TRIAL
        COURT ERRED DUE TO THE FACT THAT SAID COURT RELIED ON
        FACTS THAT WERE NOT SUPPORTED BY COMPETENT AND CREDIBLE
        EVIDENCE TO DETERMINE THAT SGT. TIMBERLAKE HAD
        ESTABLISHED PROBABLE CAUSE.

                                ASSIGNMENT OF ERROR TWO

        THE TRIAL COURT ERRED TO THE DETRIMENT OF FARROW WHEN
        SAID COURT DENIED FARROW’S MOTION TO SUPPRESS BECAUSE
        THE DRUGS AND DRUG PARAPHERNALIA FOUND ON FARROW WERE
        DISCOVERED AS THE RESULT OF AN UNCONSTITUTIONAL SEARCH.
                                                 4


       {¶8}    In both assignments of error, Mr. Farrow argues that the trial court erred in

denying his motion to suppress. He does not challenge the propriety of the initial traffic stop, but

instead focuses on the search of his person. He argues that (1) the trial court’s determination that

Sergeant Timberlake had probable cause to search was not based on competent, credible

evidence, and (2) the search was therefore unconstitutional. We disagree with both propositions.

       {¶9}    Mr. Farrow pled no contest in this case and is therefore not precluded from

asserting on appeal that the trial court erred to his prejudice in denying his motion to suppress.

See Crim.R. 12(I). “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.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶10} In denying Mr. Farrow’s motion to suppress, the trial court found that Sergeant

Timberlake had probable cause to search the vehicle and its two occupants, including Mr.

Farrow. In reaching its decision, the court acknowledged its review of the dash cam video and

the testimony of Trooper Dowler, but stated that the “vast majority” of information it relied on

came from Sergeant Timberlake’s testimony. The court found Sergeant Timberlake’s testimony

“relatively credible” with regard to the smell of marijuana in the vehicle, noting that the trooper

stuck his head completely into the passenger window on at least three occasions while

conducting his initial investigation and request for information. The court noted, however, that

questions were raised by defense counsel during cross-examination as to the trooper’s credibility
                                                5


“with regard to his observations and his smell.”         The court nonetheless found Sergeant

Timberlake “sufficiently credible” on the issue of smelling the odor of burnt marijuana, noting

further that (1) both occupants, in separate conversations with the sergeant, “confirmed that at

some time previously they had smoked marijuana,” and (2) two air fresheners were observed in

the vehicle. The court found that Sergeant Timberlake had probable cause to search the car’s

interior as well as the two occupants based on the smell of burnt marijuana, and further noted

Trooper Dowler’s observation of the “big pouch” on Mr. Farrow. Finally, the court found that

“there was ultimately going to be a discovery of the subject pharmacy pills * * *.”

           {¶11} Mr. Farrow argues that the trial court’s findings of fact were not based on

competent, credible evidence. He specifically challenges as disingenuous, contradictory, and not

supported by the dash cam video, Sergeant Timberlake’s testimony that (1) he smelled the odor

of burnt marijuana and (2) the occupants both admitted to him that marijuana had been smoked

earlier.

           {¶12} Sergeant Timberlake testified at the suppression hearing that, once the car

window was opened, he immediately detected the odor of burnt marijuana. He testified as to his

training and experience, including his familiarity with the odor of burnt marijuana and his ability

to readily distinguish it from other odors. According to the sergeant, “Burnt marijuana is burnt

marijuana. It doesn’t smell like anything else.” He testified that, in his twenty-five years of

experience, he has encountered the smell of marijuana “[a] lot[,]” including during a traffic stop

that occurred within a week prior to the traffic stop in this case. He also testified that when Mr.

Farrow opened the glove compartment to retrieve the vehicle’s rental agreement he observed

Christmas tree air fresheners and a bottle of air freshener inside of the glove compartment.

According to the sergeant, this was indicative of an “attempt[] to mask the odor of something.”
                                                  6


       {¶13} Sergeant Timberlake then testified that he asked the driver to step out of the

vehicle. When he told her he could smell marijuana in the vehicle, “[s]he tilted her head back

and exhaled and didn’t say anything.” According to the sergeant: “[She then] told [him] that

they had smoked - - that she had not been smoking marijuana, but marijuana had been smoked

earlier in the vehicle.” Trooper Grabel was now at the scene and secured the driver, while

Sergeant Timberlake re-approached the vehicle to speak to Mr. Farrow. The sergeant testified

that he told Mr. Farrow he could smell burnt marijuana in the vehicle, and Mr. Farrow “told

[him] that they had been smoking it earlier in the vehicle, and he pulled out a cigar wrapper out

of the * * * handle for the vehicle * * * and showed it to [him], told [him] that it was in there, but

that there was no marijuana in the car at that time.” Sergeant Timberlake testified that, at that

time, he was going to do a probable cause search based on the plain smell of burnt marijuana

inside of the vehicle. He had Mr. Farrow step out of the vehicle, and testified that he intended to

pat him down for weapons before securing him in a cruiser for safety purposes during the search

of the vehicle.

       {¶14} Trooper Dowler testified that when Mr. Farrow emerged from the vehicle it

seemed “odd” that he was holding a red sweatshirt in front of him and “act[ing] almost like he

was trying to conceal something, or hide something that he had on him * * *.” The trooper

further testified that he saw “a big, abnormal bulge[] just sticking out from [Mr. Farrow’s]

sweatpants.” The trooper questioned Mr. Farrow about it, and Mr. Farrow removed a balled-up

sock from his groin area. Trooper Dowler testified that “a bulge was still there,” and Sergeant

Timberlake testified that Mr. Farrow then removed a pill bottle with the label ripped off, while

claiming, “[I]t’s just medicine.” Sergeant Timberlake testified that “there was still a bulge in his

pants[,]” however, so he conducted a search on the exterior of Mr. Farrow’s clothing by reaching
                                               7


up into the groin area of his pants. According to the sergeant, he “could feel pills still in his

trousers, in the groin area of his trousers.” He told Mr. Farrow he could feel the pills, and Mr.

Farrow removed three plastic bags of pills from inside of his pants. Sergeant Timberlake

testified that Mr. Farrow would have been subjected to a typical pat down prior to being placed

into a cruiser before a search of the vehicle even if the troopers had not noticed a bulge in his

pants. He testified that it was possible the contraband would have been discovered during the

forthcoming pat down. Mr. Farrow was placed under arrest, handcuffed, and read his Miranda

rights. During a search of the vehicle, the police found a cigarette pack containing nine more

pills in either the center console or the cup holder, but no marijuana. The pills later tested

positive for oxycodone.

       {¶15} The incident was also captured on video by Sergeant Timberlake’s dash cam,

which was entered into evidence. In the video, Sergeant Timberlake places his head in or near

the vehicle’s open, passenger side window on multiple occasions. Once he removes the driver

from the vehicle, he asks her if Mr. Farrow has been drinking today, and she replies, “No.” He

asks if she has been drinking, and she again replies, “No.” He then says, “Anybody been

smoking marijuana in the car today? I can smell it.” The driver does not say anything, but lets

out a very pronounced exhale or sigh in response, and turns her head down and away from the

sergeant. When Sergeant Timberlake speaks to Mr. Farrow back at the car, he says he “can

smell the weed in the car[,]” and asks Mr. Farrow, “How much marijuana y’all got in here?”

Although Mr. Farrow’s response is inaudible on the video, the sergeant responds to Mr. Farrow

with, “Smokin’ it earlier?” Mr. Farrow’s response is again inaudible, but the sergeant replies,

“You smoked it?” Mr. Farrow’s response is once again inaudible, but the sergeant responds,

“Nothin’ left?” The sergeant has Mr. Farrow step out of the vehicle and asks him, “How long
                                                 8


ago’d you smoke that in there?” Mr. Farrow replies, “I didn’t smoke in the car.” Mr. Farrow

then tries to hand something to the sergeant and says, “It was, um, it was in here.”

       {¶16} Despite Mr. Farrow’s argument to the contrary, our review of both the

suppression hearing transcript and the dash cam video reveals that the sergeant’s testimony was

mostly corroborated by the dash cam video, except the driver only sighed and turned her head

away when asked about marijuana; she did not verbally say marijuana had been smoked in the

car, as Sergeant Timberlake testified. It would not be unreasonable based on the video, however,

for both Sergeant Timberlake and the trial court to infer from the driver’s immediate physical

reaction to being asked if anyone had smoked marijuana in the car today that she knew marijuana

had been smoked in the car that day. See, e.g., State v. Little, 9th Dist. Lorain No. 09CA009539,

2010-Ohio-101, ¶ 20 (stating that a jury could reasonably infer from a physical reaction of

sweating profusely that the defendant knew a clear plastic bag contained illegal drugs).

Moreover, although the dash cam video did not adequately capture all of Mr. Farrow’s verbal

responses to Sergeant Timberlake’s questions about smoking marijuana, this does not mean that

the video contradicts the sergeant’s testimony that Mr. Farrow admitted marijuana had been

smoked earlier. The sergeant clearly inquires as to the odor of marijuana in the car and engages

Mr. Farrow in a specific conversation about smoking marijuana earlier, who smoked it, and

whether any was left. The sergeant testified that Mr. Farrow said they had been smoking

marijuana earlier in the vehicle, but that statement cannot be heard during the conversation. In

the video, Mr. Farrow clarifies at the end of the conversation that he did not smoke it in the car,

but he presents a cigar wrapper to the sergeant and says, “[I]t was in here.” When faced with

both a trooper’s testimony and an unclear video of an incident, it is “not [] unreasonable for the

trial court to believe that the [trooper’s] view of the events was at least somewhat different than
                                                 9


that captured by the video given the circumstances[,]” provided the video does not contradict the

trooper’s testimony. State v. Panaro, 9th Dist. Medina No. 16CA0067-M, 2018-Ohio-1005, ¶

13.   See also State v. Andrews, 2d Dist. Greene No. 2016-CA-13, 2017-Ohio-1383, ¶ 47

(deferring to the trial court’s assessment of the trooper’s credibility when the video of the

incident was unclear); State v. Prater, 2d Dist. Montgomery No. 24936, 2012-Ohio-5105, ¶ 8

(deferring to the trial court’s finding, based on the officer’s testimony, that consent to search was

given because the video did not contradict the officer’s testimony, as “not every word on the

recording can be heard”); Brooklyn v. Woods, 8th Dist. Cuyahoga No. 103120, 2016-Ohio-1223,

¶ 37 (deferring to the trial court’s resolution of alleged inconsistencies between video footage

and testimony, when the video is “not definitive given the limitations of the camera angle”).

Accordingly, as the video does not discredit the trooper’s testimony, we cannot say that the trial

court’s findings in this matter were unsupported by the evidence. See Panaro at ¶ 14. Finally,

no marijuana was ultimately discovered in the vehicle, but the trial court was not required to

consider that particular fact as fatal to Sergeant Timberlake’s credibility. See, e.g., State v.

Nocon, 9th Dist. Lorain No. 10CA009921, 2012-Ohio-395, ¶ 6 (“Just because there was only a

small quantity of marijuana in the van does not mean that the van did not smell like marijuana.

After all, the smoking of the substance would have consumed it.”).

       {¶17} We remain mindful that the trial court, as the trier of fact, is in the best position to

resolve any factual questions and evaluate the credibility of witnesses, and we must further

accept the trial court’s findings of fact if they are supported by competent, credible evidence.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. While trial court acknowledged that

defense counsel’s cross-examination raised some questions as to Sergeant Timberlake’s

credibility, it nonetheless found him to be a sufficiently credible witness. Based on our review of
                                                   10


the evidence presented, we determine that the trial court’s findings of fact were based on

competent, credible evidence. See id. Accepting the trial court’s findings of fact as true, we

must now independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard. See id.

       {¶18} Mr. Farrow argues that he was subjected to an unconstitutional search of his

person. The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, prohibits unreasonable searches and seizures.                Accord

Article I, Section 14, of the Ohio Constitution.

       For a search or seizure to be reasonable under the Fourth Amendment, it must be
       based upon probable cause and executed pursuant to a warrant. * * * This requires
       a two-step analysis. First, there must be probable cause. If probable cause exists,
       then a search warrant must be obtained unless an exception to the warrant
       requirement applies. If the [S]tate fails to satisfy either step, the evidence seized
       in the unreasonable search must be suppressed.

State v. Moore, 90 Ohio St.3d 47, 49 (2000). Probable cause has been defined as “‘a reasonable

ground for belief of guilt’” and “must be based upon objective facts that would justify the

issuance of a warrant by a magistrate.” Id., quoting Carroll v. United States, 267 U.S. 132, 161

(1925). Whether probable cause exists is determined by the totality of the circumstances. State v.

Jones, 9th Dist. Lorain No. 12CA010270, 2013-Ohio-2375, ¶ 9; Illinois v. Gates, 462 U.S. 213,

238 (1983).

       {¶19} Sergeant Timberlake smelled the odor of marijuana coming from within the

stopped car as soon as the window was opened. The Supreme Court of Ohio has held:

       [T]he smell of marijuana, alone, by a person qualified to recognize the odor, is
       sufficient to establish probable cause to search a motor vehicle, pursuant to the
       automobile exception to the warrant requirement. There need be no other tangible
       evidence to justify a warrantless search of a vehicle.
                                                11


Moore at 48. Mr. Farrow correctly points out in his brief that the trooper in the Moore case

detected a “strong” odor of burnt marijuana, while Sergeant Timberlake neglected to describe the

strength of the odor he detected in this case and did not further delineate whether he believed the

odor was emanating specifically from the vehicle’s occupants or from the vehicle itself.

However, the Supreme Court’s holding in Moore drew no such distinctions, and plainly requires

only the smell of marijuana, not a “strong” smell of marijuana. See State v. Brown, 2d Dist.

Montgomery No. 27377, 2017-Ohio-2880, ¶ 7. See also State v. Evans, 8th Dist. Cuyahoga No.

94984, 2011-Ohio-3046, ¶ 14 (“To create such a narrow rule would require the police to ignore

the obvious.”). Notably, the Supreme Court later relied on its holding in Moore when analyzing

an occupant’s justifiable “detention in order to effectuate a search” of a vehicle’s passenger

compartment when a trooper “smelled a light odor of burnt marijuana coming from inside the

car.” (Emphasis added.) State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 12, ¶ 1. Here,

the odor of burnt marijuana coming from within the vehicle established probable cause for

Sergeant Timberlake to search the passenger compartment of the vehicle for contraband,

pursuant to the automobile exception to the warrant requirement. See Moore at 48, 51.

       {¶20} The search of a vehicle’s occupants is more problematic, however, and will be

deemed unlawful in the absence of an exception to the warrant requirement. See id. at 51.

Similar to the trooper in Moore, Sergeant Timberlake admitted that he did not conduct a simple

protective pat down, but in fact conducted a search by grabbing the bulge in Mr. Farrow’s pants

prior to searching the vehicle. See id. at 51-52. Generally, for the exigent circumstances

exception to the warrant requirement to apply, there must be “‘compelling reasons’” or

“‘exceptional circumstances’” to justify such an intrusion without a warrant. Id. at 52, quoting

McDonald v. United States, 335 U.S. 451, 454 (1948). See also State v. Price, 134 Ohio App.3d
                                                 12


464, 467 (9th Dist.1999), quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“Although there

is no precise list of all the exigent circumstances that might justify a warrantless search, exigent

circumstances generally must include the necessity for immediate action that will ‘protect or

preserve life or avoid serious injury,’ * * * or will protect a governmental interest that outweighs

the individual’s constitutionally protected privacy interest * * *.”). For instance, a warrantless

search is justified if there is imminent danger that evidence will be lost or destroyed if a search is

not immediately conducted; e.g., marijuana and other narcotics are easily and quickly hidden or

destroyed, so a warrantless search may be justified to preserve evidence. Id.

       {¶21} In Moore, the Supreme Court found that the following exigent circumstances

justified the warrantless search of Mr. Moore’s person:

       Here, Sergeant Greene was alone at the time he stopped defendant’s vehicle. He
       had probable cause to believe that defendant had been smoking marijuana from
       the strong odor of burnt marijuana emanating from the vehicle and on the
       defendant. In order to obtain a warrant before searching defendant’s person for
       possible narcotics, he would have had to permit defendant to leave the scene in
       defendant’s vehicle. Having to permit defendant to leave the scene alone,
       unaccompanied by any law enforcement officer, the dissipation of the marijuana
       odor, and the possible loss or destruction of evidence were “compelling reasons”
       for Sergeant Greene to be able to conduct a warrantless search of defendant’s
       person.

Id. at 52-53. In the case sub judice, probable cause existed to believe that the vehicle contained

marijuana, and Mr. Farrow was a passenger in that vehicle. Evidence was also presented that

Mr. Farrow (1) admitted to smoking marijuana earlier, (2) presented Sergeant Timberlake with

the purported source of his marijuana, i.e., the cigar wrapper, and (3) appeared to Trooper

Dowler to be trying to conceal or hide something on his person. Because marijuana can be easily

destroyed or hidden on one’s person, we determine that a search of Mr. Farrow was justified

under the particular circumstances in this case. See id. at 52. Unlike the trooper in Moore,

Sergeant Timberlake was not alone at the traffic stop, but we nonetheless conclude that the
                                               13


dissipation of the marijuana odor and the possible loss or destruction of evidence were

compelling reasons to permit a warrantless search of Mr. Farrow’s person.           See State v.

Rodriguez, 12th Dist. Butler No. CA2014-03-073, 2015-Ohio-571, ¶ 20; Moore at 52-53. See

also State v. Arrasmith, 12th Dist. Butler No. CA2013-09-031, 2014-Ohio-4173, ¶ 20 (finding

probable cause and exigent circumstances to remove drugs from a bulge in Arrasmith’s sock

because he could have quickly hidden or destroyed them); State v. Kelley, 4th Dist. Ross No.

10CA3182, 2011-Ohio-3545, ¶ 30 (concluding a warrantless search was justified to preserve

evidence, as “Appellant obviously was attempting to conceal something and the officers had

ample, reliable information that appellant had illegal drugs. The reasonable inference is that

appellant was attempting to hide drugs. If the officer had not immediately searched him, the

danger of further attempts at detection or destruction of evidence existed.”). Requiring Sergeant

Timberlake to either detain Mr. Farrow for perhaps several hours until law enforcement could

obtain a search warrant or release him and risk that he would hide or destroy the contraband he

possessed were unreasonable options under these circumstances. See State v. Butcher, 4th Dist.

Washington No. 11CA18, 2012-Ohio-3836, ¶ 23. Therefore, we conclude that the search of Mr.

Farrow’s person was supported by probable cause and exigent circumstances.

       {¶22} Even assuming arguendo the search of Mr. Farrow’s person was unreasonable, we

conclude that the pills on Mr. Farrow’s person would have nevertheless been admissible under

the doctrine of inevitable discovery. “Evidence that is illegally obtained is properly admitted

‘once it is established that the evidence would have been ultimately or inevitably discovered

during the course of a lawful investigation.’” State v. Farrey, 9th Dist. Summit No. 26703,

2013-Ohio-4263, ¶ 17, quoting State v. Perkins, 18 Ohio St.3d 193 (1985), syllabus. See also

Nix v. Williams, 467 U.S. 431 (1984). Sergeant Timberlake had probable cause to search the
                                                  14


vehicle when he detected the odor of burnt marijuana emanating from within it. Sergeant

Timberlake intended to pat Mr. Farrow down for safety purposes prior to securing him and

searching the vehicle, and he testified that he could have possibly discovered the pill bags during

that pat down. Moreover, the lawful search of the vehicle ultimately revealed nine oxycodone

pills in the center console or cup holder, and the discovery of those pills would have given

Sergeant Timberlake probable cause to arrest Mr. Farrow for aggravated possession of drugs and

search him incident to arrest. See R.C. 2925.11(A) and 2925.11(C)(1)(a). Furthermore, prior to

the search of Mr. Farrow’s person, Mr. Farrow voluntarily removed a pill bottle with the label

ripped off, claiming it was his medicine. Removing the label on a prescription bottle containing

medication is a first-degree misdemeanor under R.C. 3719.08(E) and 3719.99 and is, therefore,

an arrestable offense under R.C. 2935.03. See State v. Harris, 8th Dist. Cuyahoga No. 99481,

2013-Ohio-3735, ¶ 16. Thus, Sergeant Timberlake would have inevitably discovered the three

additional bags of pills hidden on Mr. Farrow’s person either during the forthcoming protective

pat down or during a search incident to arrest for either possession of the nine oxycodone pills

found in the car or for removing the pill bottle’s label, or both.

       {¶23} We conclude that the facts of this case satisfy the applicable legal standard, and

the trial court therefore did not err in denying Mr. Farrow’s motion to suppress. See Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8.

       {¶24} Accordingly, Mr. Farrow’s first and second assignments of error are overruled.

                                                 III.

       {¶25} Mr. Farrow’s first and second assignments of error are overruled. The judgment

of the Lorain County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                15




       There were reasonable grounds for this appeal.

       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.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

KENNETH N. ORTNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
