[Cite as State v. Chase, 2013-Ohio-2346.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO.    25322

v.                                                  :            T.C. NO.   10CR3257

ERIC D. CHASE                                       :            (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                         Rendered on the      7th       day of       June        , 2013.

                                            ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 703,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1}      After the trial court overruled his motion to suppress evidence, Eric D.
                                                                                                                                   2

Chase pled no contest to having weapons while under disability and carrying a concealed

weapon. The trial court found him guilty and sentenced him to twelve months in prison on

each count, to be served concurrently with each other and with the 18-month sentence

imposed in State v. Chase, Montgomery C.P. No. 2011 CR 3364.

         {¶ 2}         Chase appeals from the trial court’s judgment, claiming that the trial court

erred in denying his motion to suppress. 1 For the following reasons, the trial court’s

judgment will be affirmed.

                                                                I.

         {¶ 3}         Huber Heights Police Officers Shawn Waler and Frank Crouse testified on

behalf of the State at the hearing on Chase’s motion to suppress.                                           Their testimony

established the following facts.

         {¶ 4}         During the morning of April 29, 2010, Officers Shawn Waler and Kerry

Combs, a crash investigator, were following up on a traffic accident that had occurred. The

officers were in plain clothes and rode in an unmarked patrol car. Officer Waler testified

that the car he was in was “an unmarked patrol car, but it’s still obviously a police car.” He

stated that it was “a silver Chevy Impala with black wheels, a black spotlight, model

antennas, and visible cage over the rear windows, and * * * clear LED flashing lights in the

side windows.”

         {¶ 5}         As the officers stopped for a red light at Chambersburg Road and Brandt


             1
                  On October 9, 2012, this court consolidated State v. Chase, 2d Dist. Montgomery No. 25323, the appeal from
   Montgomery C.P. No. 2011 CR 3364, with this appeal. Because the events leading to the charges in these cases occurred at
   separate times and the issues raised on appeal relate to those factual circumstances, we will issue separate opinions and judgment
   entries for the two appeals.
                                                                                            3

Pike in Huber Heights, Officer Combs noticed Chase, who was parked at a gas pump at the

Speedway on that corner. Chase “took just a moment to stop and stare” at the officers and

continued to watch the officers “nervously” as he walked to the front door of the gas station.

 Waler found Chase’s behavior to be “out of the ordinary.”

       {¶ 6}     As Officer Waler drove through the intersection, Officer Combs continued

to watch Chase. Officer Combs contacted Officer Frank Crouse, who was working in

uniform and in a marked cruiser, and informed him that he and Officer Waler were watching

an individual at a gas station and the individual was watching them very intently. Combs

provided Crouse a description of the vehicle and its license plate number.

       {¶ 7}     Waler turned the unmarked patrol car around and stopped in a parking lot

across the street from the Speedway. Officer Combs ran the license plate on Chase’s

vehicle; he did not find any outstanding warrants. The officers learned that Chase’s vehicle

was not registered to a male, nor was it “registered in the city.”

       {¶ 8}     The officers saw Chase leave the gas station and head south on Brandt Pike.

 Officers Waler and Combs followed and saw Chase turn into another Speedway gas station

that was less than a mile away from the first. Both officers believed that Chase’s behavior

was suspicious. Waler testified:

       I recognized that a lot of times we have people who have multiple credit cards

       that don’t belong to them and they try different credit cards at different

       convenience stores, gas stations, or department stores, whatever the case may

       be, to see if they can get one to work. And I was concerned that there may

       be something like that going on today.
[Cite as State v. Chase, 2013-Ohio-2346.]
           {¶ 9}    Officers Waler and Combs circled their vehicle around and stopped across

the street from the second Speedway to see if they could observe what was going on. The

officers saw Chase looking over his shoulder, trying to maintain visual contact with the

unmarked patrol car. Officer Crouse also observed Chase’s vehicle as it turned into the gas

station.     Crouse drove his marked cruiser through the gas station parking lot; Chase

“watched [him] continuously” until the cruiser exited the property and drove east.

           {¶ 10}   Chase left the Speedway and headed north on Brandt Pike. Officers Waler

and Combs again followed Chase and kept Officer Crouse updated on their location. Chase

passed vehicles while driving in the right lane and exceeded the posted 35 mph speed limit.

Waler accelerated to try to keep up with Chase’s vehicle; the unmarked patrol car went in

excess of 50 mph at more than one point. Chase’s car still appeared to be traveling faster

than the officers’ vehicle.

           {¶ 11}   Chase made a sharp left turn into a residential neighborhood.      After

waiting for traffic to pass, the officers followed. The officers located Chase’s vehicle near

the intersection of Luton Court and Alter Road. Chase was still in the vehicle with his foot

on the brake and his seatbelt on. The officers contacted Officer Crouse and told him the

location of Chase’s vehicle. The officers watched Chase from Alter Road. Chase’s vehicle

moved forward slightly, then backed up and stopped in front of a residence (where Chase

later claimed to live), partially blocking the driveway, a parking violation.

           {¶ 12}   Officer Waler parked the unmarked patrol car on Luton Court, facing

Chase’s vehicle but on the opposite side of the street. Waler did not activate any emergency

lights.     Both officers got out of the patrol car.     Officer Waler’s badge, firearm, and

handcuffs were attached to his belts and were visible.
                                                                                            5

       {¶ 13}    Officer Waler approached the driver’s side of Chase’s vehicle, and Chase

rolled down his window about two inches. Officer Waler identified himself and explained

that he had noticed Chase’s behavior of going to two different gas stations, that the behavior

seemed suspicious, and the officers wanted to make sure that everything was okay. Waler

asked Chase for identification, but Chase stated that he did not have any. Waler asked

Chase why he was driving a car without identification; Chase responded that he did not have

it with him. The officer tried to obtain a name, date of birth, social security number,

driver’s license number, or some other identifying information. Chase provided a name and

date of birth; he said he did not know his driver’s license or social security number. While

talking with Chase, Waler noticed an odor of raw marijuana emanating from the vehicle.

       {¶ 14}    Officer Waler went back to the patrol car to run the name and date of birth

Chase had provided through the onboard computer. Officer Combs waited by Chase’s

vehicle. Around this time, Officer Crouse arrived in his marked cruiser and spoke with

Officer Combs.

       {¶ 15}    Waler’s computer search produced a physical description that did not match

Chase’s appearance.     The computer results also indicated that the individual had a

concealed carry permit; Chase had not mentioned that he had a concealed carry permit.

Waler stated that, typically, “that’s one of the first things they tell whether they have a

firearm on them or not. They always tell that they’ve got that CCW permit.” Officer

Waler suspected that the name and date of birth that Chase had given was incorrect.

       {¶ 16}    Officer Waler got out of his vehicle and told Officers Combs and Crouse

that the information did not appear to match. Officer Crouse went into his cruiser and ran
                                                                                          6

the information Chase had provided through Justice Web, which has photos from various

jails. Crouse told the other officers, “Hey, this guy is not the same person that he gave

you.” Chase was asked to step out of his vehicle, and Officer Crouse asked him for consent

to search the vehicle. Chase declined to consent. Chase was secured, without handcuffs,

in Officer Crouse’s cruiser.

        {¶ 17}    Officer Waler told Officer Combs that he had smelled marijuana at the

opening of the window while he (Waler) was there.            Waler asked Combs, who had

previously worked in the narcotics unit, to step up to the car to see if he (Combs) also

detected the same odor. Officer Combs went up to Chase’s vehicle and reported that he

also smelled marijuana and that he could see, from outside the car, some “green leafy

material that looked like marijuana in the center console as well.”

        {¶ 18}    Chase remained in the cruiser with Officer Crouse while Officers Waler

and Combs both searched Chase’s vehicle. The officers found a zippered CD case, which

looked “very thick and full inside,” on the passenger seat. The case contained a purple

Crown Royal bag with several individually wrapped bags of marijuana inside. Officer

Combs also found a handgun inside the center console. After the search was completed,

Officer Crouse took photographs of the inside of Chase’s vehicle and secured two marijuana

seeds that were still inside the car.

        {¶ 19}    Chase ultimately provided Officer Crouse his real name, and Crouse

confirmed the information through his computer. Crouse issued citations to Chase. Chase

spoke with Officer Combs about providing information and assistance to the police, and

Officer Crouse took Chase to the police department so that he could talk to some detectives.
                                                                                           7

At Chase’s request, Officer Crouse also parked Chase’s vehicle in the driveway that it had

been blocking (which was purportedly either Chase’s or his girlfriend’s driveway) so that the

vehicle would be legally parked.

       {¶ 20}    Chase was indicted for having weapons while under disability, a

third-degree felony, and carrying a concealed weapon, a fourth-degree felony. Chase moved

to suppress all evidence against him, claiming that he was improperly arrested for a minor

misdemeanor (possession of marijuana), that the traffic stop impermissibly extended, and

that his arrest for the minor misdemeanor was a pretext to conduct a search of his person and

vehicle.

       {¶ 21} The motion to suppress was denied after a hearing. The trial court reasoned

that “whether this [encounter] was characterized initially as a stop or not, the detective

approached and identified himself as a police officer and was constitutionally permitted to

be where he was at the driver’s side window, this particularly in light of the fact that the

detectives had observed numerous traffic and parking violations.” The trial court further

found that, upon seeing and smelling marijuana in the vehicle, the officers were entitled to

conduct a warrantless search of the vehicle.

       {¶ 22}    Chase subsequently pled no contest to having weapons while under

disability and carrying a concealed weapon. The trial court found him guilty and sentenced

him accordingly. Chase appeals from his conviction.

                                               II.

       {¶ 23}    In his sole assignment of error, Chase claims that the trial court erred in

denying his motion to suppress evidence. Chase’s arguments mirror those presented in the
                                                                                             8

trial court, namely that officers could not arrest him for a minor misdemeanor, that the arrest

was a pretext to search him, and that his detention exceeded the time necessary to issue a

ticket for a minor misdemeanor.

          {¶ 24}   In response to Chase’s arguments, the State contends that Officer Waler’s

initial contact with Chase at the driver’s side window was a consensual encounter or,

alternatively, the officer had a reasonable articulable suspicion of criminal activity (the

traffic violations) to justify an investigatory detention. The State further argues that, once

the officer smelled marijuana, he was permitted under the automobile exception to search

the vehicle for contraband.      Finally, the State asserts that the detention of Chase to

effectuate a search of his vehicle was lawful and did not extend beyond the time permitted

by law.

          {¶ 25}   In addressing a motion to suppress, the trial court assumes the role of the

trier of fact. State v. Morgan, 2d Dist. Montgomery No. 18985, 2002-Ohio-268, citing State

v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The court must

determine the credibility of the witnesses and weigh the evidence presented at the hearing.

Id. In reviewing the trial court’s ruling, an appellate court must accept the findings of fact

made by the trial court if they are supported by competent, credible evidence.              Id.

However, “the reviewing court must independently determine, as a matter of law, whether

the facts meet the appropriate legal standard.” Id.

          {¶ 26}   The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968).         Under Terry, police officers may briefly stop and/or
                                                                                               9

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin,

2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry. We determine the

existence of reasonable suspicion by evaluating the totality of the circumstances, considering

those circumstances “through the eyes of the reasonable and prudent police officer on the

scene who must react to events as they unfold.” State v. Heard, 2d Dist. Montgomery No.

19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565

N.E.2d 1271 (1991). The officer must have more than an inchoate hunch or suspicion to

justify an investigatory stop.

       {¶ 27}     Not every encounter between the police and an individual involves the

detention of the individual.      “A consensual encounter occurs when a police officer

approaches an individual, identifies himself, and requests information, while the individual

remains free to disregard the questions and walk away. United States v. Mendenhall, 446

U.S. 544, 555–556, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). A consensual encounter may

become a seizure if several officers are present and/or if an officer displays his weapon,

touches the individual, or uses language or a tone of voice indicating that compliance with

the officer's request might be compelled. Id. at 556. Consensual encounters do not become

seizures simply because the officer does not explicitly advise the individual that he is free to

leave. Id.” State v. Rogers, 2d Dist. Montgomery No. 24848, 2012-Ohio-4753, ¶ 11.

       {¶ 28}     We agree with the State that Officer Waler’s contact with Chase began as a

consensual encounter. Chase had already stopped his vehicle in front of a residence when

Officer Waler parked his unmarked car and approached Chase. Waler did not activate any
                                                                                              10

emergency lights, and he parked on the opposite side of the street in a manner that did not

restrict Chase’s ability to drive away. When Officer Waler approached Chase’s vehicle, he

identified himself and explained to Chase that Chase’s behavior at the two different gas

stations appeared suspicious and the officers wanted to make sure that everything was okay.

Waler’s request to see Chase’s identification and the conversation about Chase’s lack of

identification did not, at the time, convert the encounter into an investigatory detention.

       {¶ 29}    Even if we were to construe the encounter as a traffic stop, Officer Waler

had a reasonable articulable suspicion of criminal activity based on his observation of

Chase’s traffic violations, i.e., Chase’s speeding on Brandt Pike and his illegal parking on

Luton Court. A police officer may stop and detain a motorist when he has a reasonable and

articulable suspicion that a motorist has committed, is committing, or is about to commit any

criminal offense, including a traffic offense, and no independent reasonable and articulable

suspicion of other criminal activity is required under Terry. State v. Stewart, 2d Dist.

Montgomery No. 19961, 2004-Ohio-1319, ¶ 13; Dayton v. Erickson, 76 Ohio St.3d 3, 665

N.E.2d 1091 (1996).

       {¶ 30}    A traffic stop may last no longer than is necessary to resolve the issue that

led to the original stop, absent some specific and articulable facts establishing that further

detention was reasonable. State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762 (1997);

State v. Wilkins, 2d Dist. Montgomery No. 20152, 2004-Ohio-3917, ¶ 10. “When a law

enforcement officer stops a vehicle for a traffic violation, the officer may detain the motorist

for a period of time sufficient to issue the motorist a citation and to perform routine

procedures such as a computer check on the motorist’s driver's license, registration and
                                                                                             11

vehicle plates. ‘In determining if an officer completed these tasks within a reasonable

length of time, the court must evaluate the duration of the stop in light of the totality of the

circumstances and consider whether the officer diligently conducted the investigation.’”

Wilkins at ¶ 10, quoting State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-Ohio-4909.

       {¶ 31}    Once the reasonable period of time for issuing the traffic citation has

passed, a police officer must have a reasonable articulable suspicion of criminal activity in

order to continue the detention. Wilkins at ¶ 11. As explained by Ohio Supreme Court:

       When a police officer’s objective justification to continue detention of a

       person stopped for a traffic violation for the purpose of searching the person’s

       vehicle is not related to the purpose of the original stop, and when that

       continued detention is not based on any articulable facts giving rise to a

       suspicion of some illegal activity justifying an extension of the detention, the

       continued detention to conduct a search constitutes an illegal seizure.

Robinette at paragraph one of the syllabus.

       {¶ 32}    Regardless of whether the encounter began as a consensual encounter or an

investigatory detention, Chase was not free to leave when Officer Waler went back to his

patrol car to check the identifying information that Chase had provided. At that juncture,

however, Officer Waler had a reasonable suspicion of criminal activity to justify Chase’s

continued detention. Waler had smelled what he believed to be an odor of raw marijuana

emanating from Chase’s vehicle, and Chase had lowered the driver’s side window only

about two inches, which, based on Waler’s training and experience, indicated to the officer

that Chase might be trying to hide something within the vehicle. In addition, once Officer
                                                                                              12

Waler ran the name and date of birth that Chase had provided through his computer, he

learned that the information Chase had provided was false. Based on the totality of the

circumstances, the officers were entitled to detain Chase not only for the time necessary to

check Chase’s identity and to issue a traffic citation, but also for the purpose of investigating

Chase’s possible possession of marijuana.

       {¶ 33}    Once Officer Waler notified Officers Combs and Crouse that the

identifying information Chase had provided was not correct, Chase was asked to exit his

vehicle. A police officer may require the occupant(s) of a motor vehicle to exit the vehicle

because of the legitimate safety concerns of both the officer and the occupant(s). See

Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 54 L.Ed.2d 331(1977); State v.

Evans, 67 Ohio St.3d 405, 407-08, 618 N.E.2d 162 (1993). Chase was secured in Officer

Crouse’s cruiser while the other officers searched Chase’s vehicle; however, Chase was not

handcuffed, and there is no indication that he was placed under arrest at that time.

       {¶ 34}    Finally, Officers Waler and Combs lawfully searched Chase’s vehicle under

the automobile exception to the Fourth Amendment's warrant requirement.                Under the

automobile exception, police may conduct a warrantless search of a vehicle if there is

probable cause to believe that the vehicle contains contraband, and exigent circumstances

necessitate a search or seizure. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972

(1992); Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.E.2d 442 (1999). A

vehicle’s mobility is the traditional justification for this exception to the warrant

requirement. Mills at 367; Dyson at 467. “[T]he automobile exception does not have a

separate exigency requirement: ‘If a car is readily mobile and probable cause exists to
                                                                                                                                   13

believe it contains contraband, the Fourth Amendment * * * permits police to search the

vehicle without more.’”2 Dyson at 467, quoting Pennsylvania v. Labron, 518 U.S. 938,

940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). The search may extend to closed containers

within the vehicle that may conceal the object of the search. See Wyoming v. Houghton,

526 U.S. 295, 301-02, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). “The smell of marijuana,

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

conduct a search.” State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000).

         {¶ 35}        Officer Waler testified that both he and Officer Combs detected the odor of

raw marijuana coming from Chase’s vehicle through the partially opened window. Officer

Combs reported to Officer Waler that he could see “green leafy material that looked like

marijuana in the center console as well.” This testimony established that the officers had

probable cause to believe that Chase’s vehicle contained marijuana. The officers were thus

permitted to search the passenger compartment of Chase’s vehicle for marijuana under the

automobile exception. Upon searching the passenger compartment of Chase’s vehicle,

Officers Waler and Combs lawfully recovered a handgun and a zippered CD case containing

a purple Crown Royal bag with several individually wrapped bags of marijuana.

         {¶ 36}        In summary, the trial court did not err when it denied Chase’s motion to

suppress. The assignment of error is overruled.



             2
               In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, the Ohio Supreme Court clarified that “[a]
   trunk and a passenger compartment of an automobile are subject to different standards of probable cause to conduct searches”
   under the automobile exception. Id. at ¶ 51. The supreme court held that the odor of burnt marijuana in the passenger
   compartment of a vehicle did not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle. Id.
   at ¶ 52. As the search in this case did not extend to the trunk of Chase’s vehicle, we need not discuss Farris further.
                                                               14

                                            III.

       {¶ 37}   The trial court’s judgment will be affirmed.

                                       ..........

FAIN, P.J. and WELBAUM, J., concur.

Copies mailed to:

Michele D. Phipps
Elizabeth C. Scott
Hon. Gregory F. Singer
