State v. Moore

[This opinion has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLEE, v. MOORE, APPELLANT.
                       [Cite as State v. Moore, 

.]
Criminal law—Search and seizure—Drugs—Smell of marijuana, alone, by a
        person qualified to recognize the odor, is sufficient to establish probable
        cause to conduct a search.
The smell of marijuana, alone, by a person qualified to recognize the odor, is
        sufficient to establish probable cause to conduct a search.
(Nos. 99-1855 and 99-1960—Submitted May 23, 2000—Decided September 20,
                                           2000.)
  APPEAL from and CERTIFIED by the Court of Appeals for Fairfield County, No.
                                         99CA24.
                                  __________________
        {¶ 1} On February 28, 1999, Sergeant Jeffrey Greene of the Ohio State
Highway Patrol stopped a vehicle on U.S. 33 after observing the vehicle run a red
light. As Sergeant Greene approached the vehicle, the driver, Christopher Moore
(defendant), rolled down his window. Sergeant Greene detected a strong odor of
fresh burnt marijuana emanating from the vehicle. He asked defendant to exit the
vehicle. Sergeant Greene also observed the odor emanating from the defendant.
The defendant denied any knowledge of the odor or having any illegal substances.
Sergeant Greene proceeded to search defendant and discovered drug paraphernalia
in one of defendant’s pockets. Sergeant Greene then searched defendant’s vehicle
and he discovered a burnt marijuana cigarette in the ashtray. Sergeant Greene cited
defendant for a red light violation, and a criminal affidavit was issued for
possession of drug paraphernalia and possession of marijuana.
        {¶ 2} Defendant filed a motion to suppress the evidence that Sergeant
Greene had discovered during the search of both his person and his vehicle. The
trial court conducted a hearing on March 25, 1999, and sustained the motion to
suppress. The court concluded that “plain smell” evidence is an insufficient basis
to conduct a warrantless search of an individual or an individual’s vehicle when
there is no other tangible evidence to justify the search.
        {¶ 3} The state of Ohio appealed.            The appellate court reversed and
remanded.     The court concluded that a law enforcement officer, trained and
experienced in detecting marijuana, may rely on his or her sense of smell to
establish the necessary probable cause to conduct a warrantless search of a vehicle.
The court did not separately consider the search of the defendant.
        {¶ 4} The appellate court also determined that its judgment was in conflict
with that of the Twelfth Appellate District in State v. Younts (1993), 

, 

, and that of the Eleventh Appellate District in State v.
                             SUPREME COURT OF OHIO




Haynes (July 19, 1996), Portage App. No. 95-P-7, unreported, 

,
and entered an order certifying a conflict.
       {¶ 5} This cause is now before this court upon our determination that a
conflict exists (case No. 99-1960), and pursuant to the allowance of a discretionary
appeal (case No. 99-1855).
                               __________________
       Terre Vandervoort, Lancaster City Prosecutor, and David A. Trimmer,
Assistant City Prosecutor, for appellee.
       Dagger, Johnston, Miller, Ogilvie & Hampson and Scott P. Wood, for
appellant.
       Betty D. Montgomery, Attorney General, and David M. Gormley, Associate
Solicitor, urging affirmance for amicus curiae, Attorney General of Ohio.
                               __________________
       LUNDBERG STRATTON, J.
       {¶ 6} The appellate court certified the following issue for our review and
resolution: “Is the odor of burnt marijuana, alone, sufficient to provide probable
cause to search a defendant’s motor vehicle?” We answer the certified question in
the affirmative and hold that the smell of marijuana, alone, by a person qualified to
recognize the odor, is sufficient to establish probable cause to search a motor
vehicle, pursuant to the automobile exception to the warrant requirement. There
need be no other tangible evidence to justify a warrantless search of a vehicle.
       {¶ 7} Sergeant Greene conducted a search both of the defendant’s person
and his vehicle based solely upon the strong odor of burnt marijuana in the vehicle
and on the defendant’s clothing. Defendant contends that the officer lacked
probable cause to conduct either search without a warrant. Defendant further
contends that, even if the odor of marijuana, without other tangible evidence,
justified a warrantless search of the defendant’s vehicle, the search of his person
prior to the search of the vehicle was unlawful.        We also hold that exigent
circumstances existed to justify the warrantless search of defendant’s person once
Sergeant Greene had probable cause based upon the odor of marijuana detected on
the defendant.
       {¶ 8} The Fourth Amendment to the United States Constitution, as applied
to the states through the Fourteenth Amendment, provides, “The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” Section 14, Article I
of the Ohio Constitution, nearly identical to its federal counterpart, likewise




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                                January Term, 2000




prohibits unreasonable searches. State v. Kinney (1998), 

, 

, 51.
       {¶ 9} 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. Katz v.
United States (1967), 

, 

, 

;
State v. Brown (1992), 

, 

. 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 state fails to satisfy either step, the evidence seized in
the unreasonable search must be suppressed. Mapp v. Ohio (1961), 

,

, 

; AL Post 763 v. Ohio Liquor Control Comm. (1998),

, 

.
       {¶ 10} The parties do not dispute that Sergeant Greene validly stopped
defendant’s vehicle for a traffic violation. See Whren v. United States (1996), 

, 

, 

. To further detain the defendant and to
conduct a search, Sergeant Greene needed probable cause, a term that has been
defined as “ ‘a reasonable ground for belief of guilt.’ “ Carroll v. United States
(1925), 

, 

, 

. Probable cause
must be based upon objective facts that would justify the issuance of a warrant by
a magistrate. State v. Welch (1985), 

, 18 OBR 124, 127, 

. The United States Supreme Court has long acknowledged that
odors may be persuasive evidence to justify the issuance of a search warrant.
Johnson v. United States (1948), 

, 

, 

 (odor of burning opium from a hotel room gave officers probable cause to
obtain a search warrant); Taylor v. United States (1932), 

, 

,

 (distinctive odor of alcohol is an objective fact indicative of a possible
crime). So long as the person is qualified to know and identify the odor and it is a
distinctive odor that undoubtedly identifies a forbidden substance, this constitutes
a sufficient basis to justify the issuance of a search warrant. Johnson, 

, 

, 

.
       {¶ 11} Many state and federal courts have previously confronted this issue
and concluded that the detection of the odor of marijuana, alone, by an experienced
law enforcement officer is sufficient to establish probable cause to conduct a
reasonable search. See, e.g., People v. Kazmierczak (2000), 

,

 (“the smell of marijuana alone by a person qualified to know
the odor may establish probable cause to search a motor vehicle”); Mendez v.
People (Colo.1999), 

 (“the smell of burning marijuana may give
an officer probable cause to search or arrest”); State v. Secrist (1999), 

                                 SUPREME COURT OF OHIO




201, 210, 

 (“The unmistakable odor of marijuana coming from
an automobile provides probable cause for an officer to believe that the automobile
contains evidence of a crime.”); Green v. State (1998), 

, 

 (“the odor of marijuana emanating from a particular bag located
on a bus is sufficient to provide probable cause to conduct a search of that bag”). 1
Likewise, federal courts share this view.2
        {¶ 12} Defendant concedes that the smell of marijuana is a relevant factor
in a probable-cause analysis; however, defendant argues that because of the
ephemeral and transient nature of odors, odor alone is insufficient to justify a
search. According to defendant, there must be other tangible evidence of drug use
in order to justify a search. We disagree. Instead, we adopt what appears to be the
majority view. This does not mean that we reject analysis using “the totality of the
circumstances.” See Maumee v. Weisner (1999), 

, 

. However, even under such an analysis, if the smell of marijuana, as detected
by a person who is qualified to recognize the odor, is the sole circumstance, this is
sufficient to establish probable cause. There need be no additional factors to
corroborate the suspicion of the presence of marijuana.
        {¶ 13} In the case at bar, Sergeant Greene testified regarding his extensive
training and experience in identifying and detecting the smell of marijuana. There
seems to be no dispute in this case that he was qualified to detect its characteristic
odor. He testified that he did not detect the odor as he approached the defendant’s
vehicle. However, once the defendant lowered his window, Sergeant Greene
immediately noticed the strong odor emanating from the inside of the vehicle.
Sergeant Greene also testified that marijuana has a distinctive smell that cannot be
compared to any other odor. Based on the strength of the odor emanating from the
vehicle, Sergeant Greene believed that it was a fresh smell and that the substance
had been recently burning.
        {¶ 14} The odor of marijuana was a reasonable ground for Sergeant Greene
to believe that defendant was guilty of a drug-related criminal offense. Therefore,


1. See, also, State v. Harrison (1975), 

, 

; People v. Gale (1973), 

, 

, 

; Minnick v. United States (D.C.App.1992), 

; State v. MacDonald (1993), 

, 

; State v. Barclay (Me.1979),

; Miller v. State (Miss.1979), 

; State v. Fuente (Mo.1994), 

; State v. Watts (1981), 

, 

; State v. Gilson (1976), 

,

; State v. Capps (1982), 

, 

; State v. Greenwood (1981), 

, 

; State v. Binns (N.D.1972), 

; State v. Pfaff (S.D.1990),

; State v. Hughes (Tenn.1976), 

; State v. Greenslit (1989), 

, 

; State v. Smith (1993), 

, 

 .

2. See United States v. Staula (C.A.1, 1996), 

; United States v. Haley (C.A.4, 1982),

; United States v. McSween (C.A.5, 1995), 

; United States v. Garza (C.A.6,
1993), 

; United States v. Thompson (C.A.9, 1977), 

; United States v.
Downs (C.A.10, 1998), 

.




                                               4
                                January Term, 2000




we conclude that Sergeant Greene had sufficient probable cause to conduct a search
based exclusively upon the odor of marijuana coming from the defendant’s vehicle
and his person.
       {¶ 15} Courts already acknowledge the use of a person’s senses—sight,
touch, hearing—to identify contraband. See Minnesota v. Dickerson (1993), 

, 

, 

. We see no reason to afford less weight
to one’s use of the sense of smell than to other senses when looking to probabilities.
Probabilities are the “factual and practical considerations of everyday life on which
reasonable and prudent [people], not legal technicians, act.” Brinegar v. United
States (1949), 

, 

, 

, 1890. The
use of one’s sense of smell is no less reliable than other senses upon which we rely.
A familiar or distinctive odor, such as freshly cut grass, a bouquet of flowers, a hot
apple pie, or the scent of perfume, evokes a vivid and accurate image in our minds.
We draw factual conclusions about our surroundings from the use of our sense of
smell. Consequently, we agree with the appellate court that a law enforcement
officer, who is trained and experienced in the detection of marijuana, should not be
prohibited from relying on his or her sense of smell to justify probable cause to
conduct a search for marijuana.
       {¶ 16} Having concluded that Sergeant Greene had probable cause to
conduct a reasonable search, we must determine whether there existed an exception
to the warrant requirement of the Fourth Amendment in order for Sergeant Greene
to have searched defendant’s person and his vehicle. Once a law enforcement
officer has probable cause to believe that a vehicle contains contraband, he or she
may search a validly stopped motor vehicle based upon the well-established
automobile exception to the warrant requirement. Maryland v. Dyson (1999), 

, 

, 

; United States v. Ross
(1982), 

, 

, 

; State v.
Mills (1992), 

, 

. We find that Sergeant
Greene’s search of defendant’s vehicle did not violate the parameters of the Fourth
Amendment.
       {¶ 17} More problematic, however, is the search of defendant’s person.
The overriding function of the Fourth Amendment is to “protect personal privacy
and dignity against unwarranted intrusion by the State.” Schmerber v. California
(1966), 

, 

, 

. Therefore,
in the absence of an exception to the warrant requirement, the search of defendant’s
person is unlawful. Sergeant Greene admitted at the suppression hearing that this
was not a patdown search and that he was not in fear for his safety.              He
acknowledged that the only basis for his search of the defendant was the odor of




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marijuana. Defendant strenuously argues that the automobile exception to the
warrant requirement does not apply because Sergeant Greene conducted the search
of his person prior to the search of the vehicle. Furthermore, the search was not
justified as being incidental to an arrest. State v. Darrah (1980), 

, 

, 

.
       {¶ 18} However, certain situations present exigent circumstances that
justify a warrantless search. Generally, there must be “compelling reasons” or
“exceptional circumstances” to justify an intrusion without a warrant. McDonald
v. United States (1948), 

, 

, 

, 158.
For example, the concept of exigency underlies the automobile exception to the
warrant requirement. The inherent mobility of the automobile created a danger that
the contraband would be removed before a warrant could be issued. South Dakota
v. Opperman (1976), 

, 

, 

. A warrantless search is also justified if there is imminent danger that
evidence will be lost or destroyed if a search is not immediately conducted. Cupp
v. Murphy (1973), 

, 

, 

 (exigent circumstances justified a warrantless search of fingernails
for skin, blood cells, and fabric when officers feared evidence would be destroyed);
Schmerber v. California, 

, 

, 

 (exigent circumstances justified the warrantless seizure of a blood
sample for alcohol level that would be destroyed through dissipation); Ker v.
California (1963), 

, 

, 

(exigent circumstances justified the warrantless search of an apartment for drugs
when officers feared destruction of evidence).
       {¶ 19} Because marijuana and other narcotics are easily and quickly hidden
or destroyed, a warrantless search may be justified to preserve evidence. See
United States v. Wilson (C.A.1, 1994), 

; United States v. Fields (C.A.2,
1997), 

; United States v. Grissett (C.A.4, 1991), 

; United
States v. Gaitan-Acevedo (C.A.6, 1998), 

; United States v. Parris
(C.A.8, 1994), 

.
       {¶ 20} 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”




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                                  January Term, 2000




for Sergeant Greene to be able to conduct a warrantless search of defendant’s
person.     We find these to be exigent circumstances that would justify the
warrantless search of defendant’s person.
          {¶ 21} Therefore, we hold that the smell of marijuana, alone, by a person
qualified to recognize the odor, is sufficient to establish probable cause to conduct
a search. Here, Sergeant Greene’s searches of defendant’s person and vehicle were
exempt from the warrant requirement under the Fourth Amendment on the basis of
the automobile exception and exigent circumstances. We affirm the judgment of
the court of appeals.
                                                                  Judgment affirmed.
          MOYER, C.J., RESNICK and F.E. SWEENEY, JJ., concur.
          COOK, J., concurs in judgment.
          DOUGLAS and PFEIFER, JJ., concur in part and dissent in part.
                                __________________
          PFEIFER, J., concurring in part and dissenting in part.
          {¶ 22} I agree with the majority that the smell of marijuana, alone, can be
sufficient to establish probable cause to conduct a search. I also agree that there
was, in this case, probable cause to search Moore’s vehicle based on the automobile
exception to the warrant requirement. I further agree that the only exception to the
warrant requirement that can apply to this case is the exigent-circumstances
exception. However, given the facts of this case, the exception is not applicable.
          {¶ 23} The majority cites three United States Supreme Court cases to justify
its conclusion that “a warrantless search is also justified if there is imminent danger
that evidence will be lost or destroyed if a search is not immediately conducted.”
Each of the three is patently distinguishable.
          {¶ 24} In Cupp v. Murphy (1973), 

, 

, 

, a warrantless search was permitted in part because there was probable cause
to believe that murder had been committed. The court has since stated that “an
important factor to be considered when determining whether any exigency exists is
the gravity of the underlying offense for which the arrest is being made.” Welsh v.
Wisconsin (1984), 

, 

, 

.
The case before us involves probable cause to believe that someone had been
smoking marijuana, a misdemeanor. The gravity of this offense is not sufficient to
overcome the presumption of unreasonableness that attaches to every warrantless
search. Katz v. United States (1967), 

, 

, 

; Minnesota v. Dickerson (1993), 

, 

, 

.




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           {¶ 25} Further, in Cupp, the court sanctioned only the “very limited search
necessary to preserve the highly evanescent evidence they found under his
fingernails.” Cupp, 

, 

, 

. Here, the
officer conducted a full body search. Cupp does not authorize the search that took
place in this case.
           {¶ 26} The majority also relies upon Schmerber v. California (1966), 

, 

, 

, and Ker v. California (1963), 

, 

, 

. In Schmerber, the court stated, “we conclude
that the attempt to secure evidence of blood-alcohol content in this case was an
appropriate incident to petitioner’s arrest.” Schmerber, 

, 

, 

. In Ker, the challenged search was conducted incident to
an arrest, and at the conclusion of extensive surveillance that provided probable
cause to believe that a crime had been committed. Ker, 

,

, 

. The case
before us is clearly inapposite to Schmerber and Ker.
           {¶ 27} The search of the car here was reasonable because given the smell
of marijuana smoke emanating from the car there was probable cause to believe
that a crime was occurring or had occurred in the car. The smell of marijuana
smoke on a person is entirely different; it provides probable cause that marijuana
has been smoked not that the person smoked it. (Everyone in a smoke-filled room
smells of smoke whether or not they actually smoked.) The fact that evidence of a
crime may be easily disposed of cannot justify this search; if it did, the Fourth
Amendment would be eviscerated and no one would be safe from warrantless
searches. The state has not overcome the presumption that the warrantless search
was unreasonable as to Moore’s person. Accordingly, I concur in part and dissent
in part.
           DOUGLAS, J., concurs in the foregoing opinion.
                                 __________________




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