State v. Andrews

[Cite as State v. Andrews, 

.]




                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY


STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        : CASE NO. 24CA4076

        v.                                         :

MICHAEL WAYNE ANDREWS,                             : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                       :

_________________________________________________________________

                                              APPEARANCES:

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay
Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for
appellee.

Keith A. Yeazel, Columbus, Ohio, for appellant.1
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-1-25
ABELE, J.

        {¶1}    This is an appeal from a Scioto County Common Pleas Court

judgment of conviction and sentence.                    Michael Andrews, defendant

below and appellant herein, assigns the following error for review:

                “THE TRIAL COURT ERRED IN OVERRULING ANDREWS’
                MOTION TO SUPPRESS. (Order July 7, 2017).”



        1
            Different counsel represented appellant during the trial

court proceedings.
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     {¶2}   During a November 2022 traffic stop, Ohio State Highway

Patrol Trooper Nicholas Lewis discovered fentanyl, oxymorphone

pills, and drug-related criminal tools in a rental vehicle.      A

Scioto County Grand Jury returned an indictment that charged

appellant with (1) one count of trafficking in a fentanyl-related

compound in violation of R.C. 2925.03(A)(2), a first-degree felony,

(2) one count of aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(2), a second-degree felony, (3) one count of

possession of a fentanyl-related compound in violation of R.C.

2925.11(A), a first-degree felony, (4) one count of aggravated

possession of drugs in violation of R.C. 2925.11(A), a second-

degree felony, (5) one count of possessing criminal tools (rental

vehicle) in violation of R.C. 2923.24(A), a fifth-degree felony,

and (6) one count of possessing criminal tools (substance used to

cut narcotics labeled Super 3 & 1) in violation of R.C. 2923.24(A),

a fifth-degree felony.    Appellant entered not guilty pleas.

     {¶3}   Subsequently, appellant filed a motion to suppress the

evidence discovered during the traffic stop.    At the suppression

hearing, Trooper Lewis testified that around 12:40 a.m. on November

23, 2022, he observed a black Toyota Camry with Minnesota license

plates travel on Route 823, the U.S. 23 bypass.    Because the
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vehicle appeared to be a rental, and because U.S. 23 is “a major

drug trafficking route from Columbus, Dayton and Detroit to

Huntington, West Virginia, and all the little towns around

Huntington, West Virginia and Ashland, Kentucky,” Lewis followed

the vehicle, checked the license plates, and determined that the

vehicle’s registration expired on August 31, 2022.

     {¶4}   When Trooper Lewis initiated a traffic stop based on the

expired registration, he spoke with the driver, Andrea Anderson.

Lewis asked her to exit the vehicle “to verify her driver’s license

and show her the expiration on the vehicle.”    As Anderson exited

the vehicle, Lewis shone his flashlight into the car for weapons or

contraband and noticed “a white powder in between the seat and the

driver’s door.”    Lewis explained that when he observes cocaine at

night and shines his light on it, “it always appears to have a

bluish tint to it. . . so at this point I believed it was cocaine

residue.”

     {¶5}   Trooper Lewis patted Anderson down for weapons and placed

her in the back of his cruiser.    When asked about their travel

plans, Anderson said they traveled to Huntington to see appellant’s

daughter and planned to stay until after Thanksgiving.    “So, this

was Wednesday morning so it would’ve been Wednesday, Thursday and
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at least at the earliest Friday,” so Lewis asked about luggage, and

“they had no luggage in the vehicle.    So, basically, it’s a three

day trip with no tooth brush, no deodorant, no clothing, nothing.”



     {¶6}   After Lewis checked Anderson’s driver’s license, he

reapproached the vehicle and requested the front seat

passenger’s, appellant’s, identification.    Appellant also

informed Lewis the couple traveled “to Huntington, WV to see

[his] daughter.”     When Lewis informed appellant that he had

observed cocaine residue in the vehicle, appellant “became

kind of hostile to the point where I didn’t feel comfortable

putting my head down to check the cocaine residue with him in

the vehicle.    So, I asked him to go ahead and step out and I

placed him in the rear of my cruiser as well.”

     {¶7}   Trooper Lewis explained that in his experience, when a

person behaves in a confrontational manner they are “usually

someone trying to scare me off of a traffic stop.”    Sometimes,

defendants think that if they “file a complaint or become so

hostile that they think I’ll back off and not search the vehicle or

not go further along with the stop.    Which I felt that was the case

in this instance.”    Lewis later stated on cross-examination that a
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better word may be argumentative rather than hostile.

     {¶8}   After Trooper Lewis asked appellant to exit the vehicle,

patted him down for weapons and placed him in the rear of his

cruiser with Anderson.    Lewis then returned to the rental vehicle

and swabbed the white powder, that tested positive for cocaine.

When Lewis showed appellant the test kit, appellant “claimed it was

a rental and they had no knowledge of it being in the vehicle.”

     {¶9}   When Trooper Lewis searched the vehicle, he also found a

Metro PCS bag on the front passenger seat floor.    Inside that bag,

Lewis found a bag of powder with a fox symbol that is typically

“used as a substance to mix with contraband.    So, if you have um 20

grams of fentanyl, you may put an extra 10 grams of cut in with it

and now you have 30 grams. . . and we commonly see that bag with a

fox symbol on it used as cut.”    Lewis explained that traffickers in

the Detroit area use the powder with the fox symbol on it as “cut,”

but it is sold as plant food.    After finding the cut, Lewis

searched the center console and found 211 oxymorphone pills and 80

grams of suspected fentanyl.

     {¶10} On cross-examination, Trooper Lewis stated that when he

asks a driver to exit the vehicle and place them in his cruiser, it

expedites the stop because he does not have to walk back and forth
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to the vehicle to ask about the status of the driver’s license and

other documents.   Lewis added that, if the driver does not wish to

exit the vehicle and Lewis has not smelled marijuana or seen

contraband in the vehicle, he does not usually force the driver out

of the vehicle to check their documentation.     Lewis also

acknowledged that when a driver or passenger exits their vehicle,

he has a better view of the inside of the car.     When asked why he

believed the bluish powder was cocaine, Lewis stated, “just 18

years of experience and probably a thousand drug arrests.”      Lewis

explained that when he tests a white powder with a bluish tint, “it

usually comes back as cocaine residue.   I couldn’t give you an

exact number but vast majority of it if it has a bluish tint to it,

it usually comes back as cocaine residue.”

    {¶11} Appellee played Trooper Lewis’s body camera video footage

for the trial court.   The video shows Trooper Lewis approach the

passenger side of the stopped rental vehicle, ask driver Anderson

for her license, and explain that the “tags are expired.”     When

Anderson informed Lewis that her boyfriend, appellant, rented the

car, appellant provided his license to Lewis.     Lewis said, “Ma’am,

I’ll have you come back here real quick, check your driver’s

license and show you where it’s expired and get you out of here,
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ok.”

       {¶12} As Trooper Lewis patted Anderson down, he said, “Ran your

tags when you guys passed.     Where you guys headed to tonight?”     The

driver replied, “To see my step daughter.     In Huntington.   We going

for Thanksgiving.”     After Lewis places Anderson in the cruiser, he

enters the cruiser and says, “You weren’t speeding or anything.        I

just ran the tag and it came back.”     Lewis showed Anderson where

the rental vehicle’s registration tag expired on August 31, 2022.

“You won’t get a ticket but you’ll definitely let them [the rental

car company] know”.     When Lewis asked, “How long you guys staying

in Huntington?,” Anderson replied, “Until right after

Thanksgiving.”     When asked if the couple possessed any luggage for

their trip, Anderson responded, “No.”     Lewis then stated, “You guys

don’t have anything illegal in the car do you?”     Anderson replied,

“No.”    Lewis asked, “You don’t care if I take a look real quick?,”

to which Anderson replied, “No.”

       {¶13} After Trooper Lewis reapproached the vehicle, he asked

appellant about the couple’s travel plans.     Appellant replied,

“going to see my daughter in Huntington.”     When Lewis asked how

long they would stay, appellant replied, “Ain’t make it there yet.”

Appellant handed Lewis what appeared to be the rental agreement.
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Lewis asked, “Anything illegal in the car? . . . You don’t care if

I take a look real quick?”     Appellant replied, “I mean, I don’t see

what’s the reason.”   Lewis stated, “Well, she kinda said you guys

are staying down there for awhile.     But she said you don’t have any

luggage in the car. . .”     Appellant replied, “Come on, cut the crap

right now.   That ain’t got nothing to do with nothing.”     Lewis

asked, “what do you mean?”     Appellant replied, “I mean, you telling

me she saying. . . what is the reason. . . what is the point right

now. . . what is you saying?     I’m about to get hostile with you.”

Lewis replied, “well, don’t get hostile with me.”      Appellant

stated, “I’m not going to get hostile with you at all.      I’m saying

. . . I don’t understand.     Let me call somebody.”   Lewis replied,

“You can call whoever you want.”     Appellant asked, “Can you call

somebody who’s like a sheriff?”

    {¶14} Trooper Lewis explained that he “could have the car towed

because it’s got an expired registration,” but “I’m trying to be

nice to you.”   Lewis said, “I asked her a simple question.        She

said you guys staying past Thanksgiving which would be Friday and

you don’t have any luggage with you, so to me it looks funny. . .

maybe they can get you a new car and I can tow this one.”          Lewis

continued, “I tell you what man, I’m actually going to have you
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come back here with me real quick.”     Appellant asked, “Why do you

want me to get out of the car?”     Lewis replied, “well, there’s some

white powder over there. . . on the floor.”     After appellant exited

the vehicle, Lewis patted him down for weapons and asked him to sit

in his cruiser.     Appellant stated, “you don’t think you’re

violating my rights officer?”     Lewis replied, “How am I violating

your rights?”     Appellant stated, “You take me out of my car. . . we

haven’t done anything wrong. . . it’s around the holidays. . . we

haven’t done anything wrong.”     Lewis responded that he planned to

check the white powder he saw on the rocker panel (the space

between the seat and the door) when Anderson exited the vehicle.

Appellant asked, “can you show me the white powder first?”

    {¶15} After Trooper Lewis checked the driver’s licenses and

explained the registration expiration, he returned to the rental

vehicle, tested the white powder on the driver’s side floor, and

then returned to the cruiser with the swab that turned blue.       Lewis

asked, “How long you had the car for sir?     You see that little blue

spot right there?     This is a cocaine test kit.”   When asked where

he found cocaine, Lewis replied, “on the rocker panel between the

seat and the door.     Am I going to find anything in your car?”

Appellant replied, “No.”
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     {¶16} After Trooper Lewis searched the vehicle and found pills,

the bag that contained a white powder substance, and material used

to “cut” narcotics,” he returned to the cruiser.   He then advised

Anderson and appellant of their Miranda rights, which both

acknowledged understanding.   After Lewis photographed the

contraband and the rental vehicle and placed the drugs on the hood

of the cruiser, Lewis asked, “Whose those pills and I guess that’s

heroin belong to?”   After appellant and Anderson denied ownership,

Lewis said, “Dude the cut was in your Metro bag up front. . .

between your feet. . . the cut was in that bag.”   Appellant argued

that because the vehicle is a rental, “somebody else in the car.”

     {¶17} Subsequently, the trial court overruled the motion to

suppress evidence.   Appellant then entered a no contest plea to the

indictment, the court accepted appellant’s plea and found him

guilty.   The court then: (1) merged Count 3 possession of drugs

with Count 1 trafficking in drugs and sentenced appellant on Count

1 to an 11-year mandatory minimum to 16 ½ years maximum indefinite

term, (2) merged Count 4 aggravated possession of drugs and Count 2

aggravated trafficking in drugs and sentenced appellant on Count 2

aggravated trafficking to serve 6 years, (3) ordered that appellant

serve a 12-month prison term on Count 5 possessing criminal tools,
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(4) ordered that appellant serve a 12-month prison term on Count 6

possessing criminal tools, (5) ordered that appellant serve

sentences for Counts 1, 2, 5 and 6 concurrently to one another for

a total intended sentence of 11-year minimum to 16 ½ year maximum

with 11 of those years being mandatory, (6) ordered that appellant

serve a 2 to 5-year postrelease control term, and (7) ordered

appellant to pay costs.   This appeal followed.



                                 I.

     {¶18} In his sole assignment of error, appellant asserts that

the trial court erred when it denied his motion to suppress

evidence.   In particular, appellant argues that (1) he did not

consent to a search of the vehicle, (2) Trooper Lewis lacked

particularized and objectively reasonable suspicion that criminal

activity was afoot, and (3) this is not a search incident to lawful

arrest because appellant was not within reaching distance of the

vehicle’s passenger compartment at the time Lewis initiated the

search.

     {¶19} Generally, appellate review of a motion to suppress

evidence presents a mixed question of law and fact.   State v.

Hawkins, 

, citing State v. Burnside, 2003-Ohio-
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5372, ¶ 8l, State v. Hansard, 

 (4th Dist.).

When ruling on a motion to suppress evidence, a trial court assumes

the role of trier of fact and is best positioned to resolve

questions of fact and evaluate witness credibility.     State v.

Roberts, 

, ¶ 100.     Thus, a reviewing court must defer

to a trial court's findings of fact if competent, credible evidence

exists to support the trial court's findings.     Id.; State v.

Fanning, 

 (1982); State v. Debrossard, 2015-

Ohio-1054, ¶ 9 (4th Dist.).    A reviewing court must then

independently determine, without deference to the trial court,

whether the trial court properly applied the substantive law to the

case's facts.     See 

; Burnside, supra, at ¶ 8.

     {¶20} The Fourth and Fourteenth Amendments to the United States

Constitution and Section 14, Article I of the Ohio Constitution

protect individuals from unreasonable governmental searches and

seizures.   State v. Shrewsbury, 

 (4th Dist.),

citing State v. Emerson, 

.    The exclusionary

rule protects this constitutional guarantee and mandates the

exclusion of evidence obtained from an unreasonable search and

seizure.    

     {¶21} A traffic stop initiated by a law enforcement officer
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                                                                       13
constitutes a seizure within the meaning of the Fourth Amendment.

Whren v. United States, 

, 809–810 (1996).     Thus, a

traffic stop must comply with the Fourth Amendment's general

reasonableness requirement.    

   An officer's decision to stop a

vehicle is reasonable when the officer has probable cause or

reasonable suspicion to believe that a traffic violation has

occurred.   

 (citations omitted); accord State v. Mays,

, ¶ 23; Dayton v. Erickson, 

, 11–12,

(1996).    Law enforcement officers also may stop a vehicle if they

have reasonable suspicion “that criminal activity ‘ “may be afoot.”

’ ”   United States v. Arvizu, 

 (2002), quoting

United States v. Sokolow, 

 (1989), quoting Terry v.

Ohio, 

 (1968).

      {¶22} A police officer who observes a de minimis violation of

traffic laws may stop a driver.      State v. Netter, 2024-Ohio- 1068,

¶ 15, citing Debrossard, 

 at ¶ 13 (4th Dist.), citing

State v. Guseman, 

, ¶ 20 (4th Dist.), citing State v.

Bowie, 

, ¶ 8, 12, and 16 (4th Dist.), citing Whren at

809–810.    Moreover, the Supreme Court of Ohio has held, “Where a

police officer stops a vehicle based on probable cause that a

traffic violation has occurred or was occurring, the stop is not
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                                                                    14
unreasonable under the Fourth Amendment to the United States

Constitution even if the officer had some ulterior motive for

making the stop[.]”   

, paragraph one

of the syllabus.

     {¶23} In the case sub judice, the trial court observed that the

parties did not dispute that the rental vehicle’s license plates

had expired, thus making the stop proper.   See State v. Mapes,

 (6th Dist.)(initial stop proper because

probable cause arose for officer to execute traffic stop when

officer performed computer check on defendant’s license plate and

discovered it had expired).   Accordingly, Trooper Lewis possessed a

reasonable and articulable suspicion to initiate the traffic stop.

     {¶24} After Trooper Lewis properly initiated the traffic stop,

Trooper Lewis asked Anderson to exit the car “to verify her

driver’s license and show her the expiration on the vehicle.” Lewis

added that placing the driver in his cruiser “expedites the stop”

because he does not need to walk back and forth from his cruiser to

the driver’s vehicle if he has further questions or needs

clarification or other documents.

     {¶25} Generally, during a traffic stop an officer may order all

occupants to step out of a vehicle pending completion of the
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traffic stop.   Maryland v. Wilson, 

(1997); accord

State v. Grubbs, 

 (6th Dist.).   See also

Pennsylvania v. Mimms, 

 (1977) (“once a

motor vehicle has been lawfully detained for a traffic violation,

the police officers may order the driver to get out of the vehicle

without violating the Fourth Amendment's proscription of

unreasonable seizures.”); State v. Maddux, 

, ¶ 6 (6th

Dist.) (officer may order motorist to exit vehicle properly stopped

for traffic violation); State v. Kilbarger, 

(4th Dist.)(once officer lawfully stops driver, officer may order

driver to exit vehicle without additional justification); State v.

Alexander-Lindsey, 

 (4th Dist.)(“officers can

order a driver and a passenger to exit the vehicle, even absent any

additional suspicion of a criminal violation”).

    {¶26} Next, we turn to what transpired when driver Anderson

exited the vehicle.   As she exited, Trooper Lewis shined his

flashlight into the vehicle.   He testified at the suppression

hearing

    Um so basically just to my eyes it’s the only way to
    describe it. When I see cocaine residue at night and shine
    my light on it, it always appears to have a bluish tint to
    it. I don’t know if it’s the chemicals they use to cut it
    with, um but when I shine my light on it, it usually has a
    bluish tint to it. Um, so at this point I believed it was
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     cocaine residue.


     {¶27} On cross-examination, Lewis testified that, if a driver

opens their door, “it gives me a chance to again check for weapons,

contraband or anything like that.”    When Lewis shined his

flashlight into the vehicle as driver Anderson exited, Lewis

observed the white powder with a bluish tint in the carpeted area

between the driver’s seat and the door, an area he described as the

“rocker panel.”    The trial court concluded that the cocaine residue

Trooper Lewis observed when he shone his flashlight into the

vehicle as the driver exited constituted admissible plain view

evidence.   We agree.

     {¶28} The Supreme Court of Ohio has held that the Fourth

Amendment protects the individual's actual and justifiable

expectation of privacy from the ear and eye of the government.

State v. Buzzard, 

, ¶ 13, footnote omitted, citing

Smith v. Maryland, 

, 740–741 (1979); Katz v. United

States, 

 (1967).    Thus, if the State wishes to

intrude on the individual's right to be secure in his person,

house, paper, and effects by searching or seizing him or his

things, the State must first secure a warrant.     Buzzard, supra,

citing Section 14, Article I, Ohio Constitution.    Accordingly, the
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plain-view or open-view doctrine “embodies the understanding that

privacy must be protected by the individual, and if a police

officer is lawfully on a person's property and observes objects in

plain or open view, no warrant is required to look at them.”   Id.

at ¶ 16, citing Horton v. California, 

, 134–137, 140–

142 (1990).

    {¶29} In the case at bar, although the trial court refers to

the “plain view” doctrine, as we observed in State v. Hobbs, 2018-

Ohio-4059 (4th Dist.):

    “[t]he plain view doctrine applies to warrantless seizures,
    not warrantless searches. The open view doctrine applies
    where an officer views an object that is not subject to a
    reasonable expectation of privacy.        No search occurs
    because the owner of the object has voluntarily exposed it
    to public view.” State v. Bradford, 4th Dist. Adams No.
    09CA880, 

, 

, ¶ 35, citing Katz
    and Giannelli, Ohio Criminal Law (2 Ed.), Section 16:3.
    Thus, “if contraband is left in open view and is observed
    by a police officer from a lawful vantage point, there has
    been no invasion of a legitimate expectation of privacy
    and thus no ‘search’ within the meaning of the Fourth
    Amendment—or at least no search independent of the initial
    intrusion that gave the officers their vantage point.”
    Minnesota v. Dickerson, 

, 

, 

, (1993) (citations omitted); Florida
    v. Riley, 

, 

, 

 (1989), quoting California v. Ciraolo, 

,
    

, 

 (1986), quoting Katz v.
    United States, 

, 

, 

 (1967) (“ ‘What a person knowingly exposes to
    the public, even in his own home or office, is not a subject
    of Fourth Amendment protection.’ ”); see State v. Buzzard,
    

, 

, 

, 2007
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, ¶ 17 (2007) (stating that “mere observation of
    an object in plain view does not constitute a search”).
    Consequently, “information obtained as a result of
    observation of an object in plain sight may be the basis
    for probable cause ….” Texas v. Brown, 

, 

, 

 (1983), fn. 4;
    see generally Washington v. Chrisman, 

, 12–14,
    

, 819–20, 

 (1982) (White, J.,
    dissenting) (explaining that “[i]f a police officer passing
    by an open door of a home sees incriminating evidence
    within the house, his observation may provide probable
    cause for the issuance of a search warrant”).


Id. at ¶ 43.

    {¶30} Furthermore, law enforcement officers generally “ ‘ “are

free to observe whatever may be seen from a place where they are

entitled to be.”’ ”   Hobbs at ¶ 44, citing State v. Buzzard, 2007-

Ohio-373, ¶ 15, quoting United States v. Fields, 

(C.A.2, 1997); State v. Johnson, 

 (4th Dist.)

(“Generally, the police are free to observe whatever may be seen

from a place where they are entitled to be.”).   Thus, “if a police

officer is lawfully on a person's property and observes objects in

plain or open view, no warrant is required to look at them.”

Buzzard at ¶ 16, citing Horton v. California, 

, 134–

137, 140–142 (1990); State v. Halczyszak, 

(1986), quoting Illinois v. Andreas, 

 (1983)

(stating that “ ‘once police are lawfully in a position to observe
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                                                                    19
an item first-hand, its owner's privacy interest in that item is

lost’ ”).

     {¶31} In accordance with the “open view” doctrine, when a

police officer can observe contraband without making a prior

physical intrusion into a constitutionally protected area, such as

when a police officer “sees an object. . . within a vehicle,” there

“has been no search at all.”   State v. Harris, 

, (8t Dist. 1994), quoting 1 Wayne R. LaFave, Search and

Seizure, Section 2.2(a) (2d Ed.1987); State v. Gregory, 2023-Ohio-

331, ¶ 77 (6th Dist.).   The Harris court reasoned that “a

distinction should be made between evidence discovered in plain

view, invoking Fourth Amendment analysis, and evidence discovered

in open view, which does not invoke Fourth Amendment analysis.”

; Gregory at ¶ 78.

     {¶32} Here, the white powder Trooper Lewis observed between the

driver’s seat and the driver’s door is open view evidence.

However, the same result may be obtained under a plain view

analysis.   Under the Fourth Amendment's plain-view doctrine, an

officer may seize an object in plain view without a warrant if (1)

the officer did not violate the Fourth Amendment in arriving at the

place from which the evidence could be viewed, (2) the object's
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incriminating nature is immediately apparent, and (3) the officer

has a right to access the object where it is located.    State v.

Burroughs, 

, citing Horton, 

.    There is simply no reasonable expectation of privacy in

the outward appearance of an object that has been left in plain

view.    

 citing 

.   See State v. Jackson, 2021-Ohio-

517, ¶ 16 (1st Dist.)(incriminating nature readily apparent when

officer walked up to car, looked in, and found marijuana cigarette

plainly visible).

     {¶33} In State v. Claytor, 

 (4th Dist. 1993),

an officer looked through a car window and observed an open plastic

bag containing a white powder on the driver’s seat where appellant

had been sitting.    This court concluded that the officer was in a

position where he could lawfully view the contraband.    

.

See also State v. Gainer, 

 (8th Dist.)(weapon

properly seized pursuant to plain view exception to warrant

requirement when officer first observed weapon when driver exited

vehicle); State v. Ballein, 

 (4th Dist.)(officer

properly asked driver to exit the vehicle and when driver exited,

officer observed the drug pipe and bag of methamphetamine in plain

view).
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    {¶34} Moreover, many courts have concluded that the use of a

flashlight by a police officer in dark situations does not, by

itself, elevate an officer’s actions to a search:

    See, e.g., [State v. ]Reaves, [

, (2d Dist.
    Nov. 3, 2000] supra, at p. 3 (finding that shining a
    flashlight into a vehicle allowing the officer to recognize
    the butt end of a gun sticking out from under the seat does
    not constitute a “search” which triggers Fourth Amendment
    protections); [State v. ]Strothers, [

, (2d
    Dist. Dec. 22, 2000] supra, at p. 3 (holding that use of
    flashlight to look into pocket where baggie was protruding
    was insignificant); State v. Ward (Nov. 16, 1994),
    Montgomery App. No. CA 14186, unreported, at p. 2 (holding
    that use of flashlight to look into a car finding a weapon
    did not constitute a search). “The use of a flashlight by
    a police officer does not negate the fact that an item is
    otherwise in plain view or that its discovery is
    inadvertent.” Id., citing State v. Kirk (Jan. 26, 1984),
    Montgomery App. No. 8249, unreported. See, also, Texas v.
    Brown, 

 (1983).

State v. White, 

, *5 (2d Dist.)

    {¶35} The second prong of the plain view analysis, the

“immediately apparent” requirement, is satisfied when police

possess probable cause to associate an object with criminal

activity.    State v. Stewart, 

, citing State v

Waddy, 

 (1992), citing State v. Halczyszak,

 (1986); State v. Hakim, 

 (8th

Dist.).     The Supreme Court of Ohio has held that “in ascertaining

the required probable cause to satisfy the immediately apparent
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                                                                    22
requirement, police may rely on their specialized knowledge,

training and experience.”   

.

     {¶36} In the case sub judice, appellant contends that police

may not move evidence to determine criminality, citing Arizona v.

Hicks, 

 (1987).   Appellant argues that because

Trooper Lewis later moved the cocaine residue from the floor of the

rental vehicle to a test strip, it somehow invalidates the

“immediately apparent” requirement.   However, Trooper Lewis

testified that he understood the criminality of the substance

before he confirmed it with the test kit.

     Q. And can you describe (inaudible) knowledge, training
     and experience that white powder has significance to you?

     A. Um so basically just to my eyes it’s the only way to
     describe it. When I see cocaine residue at night and shine
     my light on it, it always appears to have a bluish tint to
     it. I don’t know if it’s the chemicals they use to cut it
     with, um but when I shine my light on it, it usually has a
     bluish tint to it. Um, so at this point I believed it was
     cocaine residue.


Later during cross-examination, Trooper Lewis testified

     Q. So, this isn’t State Patrol policy or you haven’t done
     research about what could possibly -
     A. I think it has to do with something - the chemicals they
     use to cut it with, but I am not sure? I just - like I said
     I base it on 18 years of doing drug interdiction, it always
     appears to have a bluish tint to me.          That’s how I
     differentiate between just like I said powder off a powder
     donut and cocaine residue.
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                                                                        23

    Q. But you’ve not conducted any kind of tests to verify
    that this is a fact -

    A. No sir, just 18 years of experience and probably a
    thousand drug arrests.


    {¶37} In 

 the Ohio Supreme Court

distinguished the application of the plain view doctrine to stolen

automobiles versus drugs and noted that “nothing about an auto

itself proclaims its illegal character.”     Id. at 208.   Thus, cars

differ from “accumulations of white powder or plants possessing

distinctive leaves or odors.”     Id.

    {¶38} Again, in ascertaining the existence of probable cause,

police officers may rely on their specialized knowledge, training,

and experience.    Id. at 303.   See also State v. Johnson, 2013-Ohio-

575, ¶ 33 (8th Dist.)(safe initially examined for weapon but upon

opening it, officer found white     powder believed to be cocaine;

once evidence of a drug-related crime uncovered, law enforcement

authorized to seize related items because incriminating nature of

items immediately apparent.); State v. Little, 

 (8th

Dist. Oct. 12, 2000)(officers almost immediately observed “a large

cloud of white     powder in the back seat of the car” and a large

plastic bag.; officers reasonably concluded, based on their
SCIOTO, 24CA4076




                                                                   24
training and experience, that this white, powdery substance was

more likely than not cocaine; thus providing probable cause to

effect an arrest under the plain view doctrine.); State v. West,

, (9th Dist. Nov. 23, 1988)(officer on public street

viewed black bag in car covered with white powder; officer’s

experience led him to immediately conclude white powder was

cocaine; thus cocaine properly admitted under plain view doctrine).

Compare 

 (8th Dist.)(officer who

found white powder inside a pill bottle testified that when he

first saw the bottle he was unsure what it contained; criminal

nature of the item was not immediately apparent for plain view

analysis).

     {¶39} In the case at bar, appellant contends that the trial

court “should not have credited Trooper Lewis’ self-proclaimed

ability to see a bluish tint on cocaine residue and not a powdered

donut as objective evidence of contraband.”   However, the trial

court concluded

     Trooper Lewis is not required to definitely know it [the
     white powder] is cocaine. The standard is whether Trooper
     Lewis had probable cause to continue on with additional
     investigatory steps.     Trooper Lewis has 18 years of
     experience dealing with various drugs, including cocaine.
     In addition, he has been an instructor teaching Drug
     Identification at the Academy.    Trooper Lewis’ training
     and experience led him to believe the powder was not mere
SCIOTO, 24CA4076




                                                                      25
     debris, but cocaine. He does not have to have a lab test
     to have probable cause.    This court finds that Trooper
     Lewis’ observation of the powder with a bluish tint,
     coupled with his extensive field experience, gave Lewis
     reason to believe that a drug crime had been or was being
     committed. As such, he had probable cause, and the search
     of the vehicle was Constitutional and the evidence found
     is admissible.


     {¶40} We agree.   Further, as appellee points out, in addition

to seeing the white powder in plain view, appellant’s hostility

toward Trooper Lewis arguably gave him additional cause to believe

criminal activity occurred and provided reasonable suspicion to

expand the scope of the stop and to search the vehicle.     State v.

Rose, 

 (4th Dist.).    The body camera footage

reveals that when Lewis told appellant that Anderson stated that

the couple would be in Huntington, West Virginia through

Thanksgiving and the couple had no luggage in the car, appellant

replied, “Come on, cut the crap right now.     That ain’t got nothing

to do with nothing.”     Appellant continued, “What is the reason. . .

what is the point right now. . . what is you saying?     I’m about to

get hostile with you.”



     {¶41} Turning to the final plain view analysis prong, Trooper

Lewis had a right to access the white powder residue where it was
SCIOTO, 24CA4076




                                                                     26
located.   As the trial court observed, “Trooper Lewis testified

that what he saw was not just white powder.    It was a white powder

that when he shone the light on it had a bluish tint.    In his 18

years of experience he had encountered such powder with a bluish

tint in the light, and that he had seen that it tested for cocaine

in the majority of cases.”   Once Trooper Lewis observed the white

powder on the floor of the vehicle between the seat and the door,

he had probable cause to believe that appellant’s car contained

contraband.   Jackson, 

.   Then, under the

automobile exception to the Fourth Amendment’s warrant requirement,

officers may search a vehicle without obtaining a warrant when they

have probable cause to believe the vehicle contains evidence of

illegal activity.   

 citing Chambers v. Maroney, 

(1970).

     {¶42} Although appellant contends that neither he nor driver

Anderson consented to the vehicle search, no consent was necessary

due to the plain view nature of the cocaine residue.    Further,

appellant’s assertion that this search did not constitute a search

incident to lawful arrest is irrelevant.   After Trooper Lewis

observed the cocaine residue in plain view, Lewis possessed

probable cause to believe that appellant and Anderson possessed
SCIOTO, 24CA4076




                                                                  27
and/or trafficked in narcotics and therefore, provided probable

cause to search the vehicle.

    {¶43} Accordingly, based upon the foregoing reasons, we

overrule appellant’s sole assignment of error and affirm the trial

court’s judgment.

                                        JUDGMENT AFFIRMED.
SCIOTO, 24CA4076




                                                                     28




                          JUDGMENT ENTRY

     It is ordered that the judgment be affirmed.   Appellee shall
recover from appellant the costs herein taxed.

    The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court
directing the Scioto County Common Pleas Court to carry this
judgment into execution.

     If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

     A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

    Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

                                   For the Court




    BY:_____________________________
SCIOTO, 24CA4076




                                                                  29
                                       Peter B. Abele, Judge

                         NOTICE TO COUNSEL

     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.