State v. Curry

[Cite as State v. Curry, 2022-Ohio-627.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210274
TRIAL NO. B-2005513
Plaintiff-Appellant, :
O P I N I O N.
vs. :

ANDRE CURRY, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: March 4, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Bryan R. Perkins, for Defendant-Appellee.
 OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} Andre Curry was indicted on one count of having weapons while

under a disability after the police located a firearm in the trunk of his vehicle during

a traffic stop. Curry moved to suppress the firearm obtained during the warrantless

search of the trunk, and the trial court granted that motion after a suppression

hearing. The state of Ohio now appeals, claiming in one assignment of error that the

trial court erred in granting the motion to suppress.

{¶2} The state maintains the search of the trunk was justified under the

automobile exception to the warrant requirement. The investigating officer testified

to several key facts that demonstrate probable cause, including detecting the odor of

raw marijuana emanating from the trunk before the search, and the trial court

expressly found the officer credible. Curry characterizes the credibility finding as

“obscure” and unsupported by the record. We accept the credibility finding by the

trial court and conclude the trial court misapplied the law governing the automobile

exception because the facts demonstrate the officer had probable cause to search the

trunk. Consequently, we reverse.

I. Background Facts and Procedure

{¶3} Curry moved to suppress the firearm on the ground that the search of

his trunk was performed without a warrant. At the suppression hearing, Cincinnati

Police Officer Aubrey Pitts acknowledged the absence of a warrant, but indicated he

believed based on certain facts he observed and his training that the trunk contained

raw marijuana and therefore an immediate search was justified.

{¶4} Officer Pitts testified that he was patrolling the area of Gilbert Avenue

and Beecher Street as a member of the police department’s gun task force in the early

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evening of October 19, 2020. On that date, he had been a police officer for over five

years, patrolling on shifts for most of his tenure. He specified his training from

which he learned to distinguish the odor of burnt marijuana from raw marijuana and

to detect marijuana in vehicles.

{¶5} According to Officer Pitts, he stopped the 2019 Honda Civic driven by

Curry due to illegal “heavy window tint” that prevented him from seeing the

occupants inside the vehicle. Officer Pitts approached the “slow-to-stop” vehicle and

ordered Curry and the occupants out of the vehicle due to furtive movements

observed by another officer at the scene. The occupants were handcuffed and placed

in the back of his cruiser. The officer testified that at the same time he smelled the

odor of raw marijuana emanating from the passenger compartment along with the

scent of burnt marijuana. Additionally, the officer stated he detected the odor of raw

marijuana emanating from the unopened trunk of Curry’s vehicle.

{¶6} Inside the passenger compartment, Officer Pitts found a small

amount of raw marijuana, more on the passenger’s side than on the driver’s side. He

then searched the trunk of the vehicle. There, he found no marijuana, but located

the firearm that led to Curry’s indictment for having weapons while under a

disability.

{¶7} Curry testified at the suppression hearing, and that testimony

provided a perspective that differed from the officer’s perceptions. Curry said he

could not smell any marijuana that day in the passenger compartment or emanating

from the trunk, the quantity of drugs was too insignificant to be detected, based on

his experience with the substance, and no raw marijuana had ever been placed in the

trunk of his vehicle.

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{¶8} During closing arguments at the hearing, defense counsel argued the

exclusionary rule required suppression of the firearm. Characterizing as incredible

the officer’s testimony about smelling marijuana from a closed trunk that contained

no marijuana, defense counsel asserted the state failed to present any credible facts

to justify the warrantless search of the trunk based on the automobile exception.

Although the state relied solely on the automobile exception to justify the warrantless

search, defense counsel refuted the application of the other exceptions to the warrant

requirement, concluding that police could not search the trunk, an area where Curry

could not “reach.”

{¶9} To refute defense counsel’s impossibility argument, the assistant

prosecutor directed the trial court to a decision from this court recognizing probable

cause based on police officers’ credible testimony that they perceived the odor of raw

marijuana emanating from a trunk. See State v. Howard, 1st Dist. Hamilton Nos. C-

070174 and C-070175, 2008-Ohio-2706, ¶ 11.

{¶10} After entertaining argument on Curry’s motion, the trial court took the

matter under advisement for a few weeks and then granted the motion to suppress.

In its oral comments explaining the basis of its decision, the court made the

following findings:

The defendant was stopped for tinted windows. After entering the

defendant’s vehicle, the passenger was found to have a nominal

amount of marijuana. The officer testified that his intent was to cite

only the defendant for the tinted windows, a minor misdemeanor, and

give a warning to the passenger. The search of the defendant’s trunk

was then done without consent and extensively due to a small amount

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of marijuana. A firearm was discovered in the trunk. The Court finds

that all of the testimony was credible.

{¶11} The trial court additionally indicated that “the issue is the search of the

trunk and the fact that it was beyond the scope of the stop.” The court referred to

three cases. First, a federal case involving what “scope” means in the context of

consent to search. United States v. Elliott, 107 F.3d 810 (10th Cir.1997). Second, an

Ohio Supreme Court decision holding that the scent of burnt marijuana coming from

the passenger compartment of a defendant’s vehicle did not, standing alone,

establish probable cause for a warrantless search of a trunk. State v. Farris, 109

Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985. Finally, a recent decision from

this court concluding that the scent of burning marijuana, standing alone, did not

support a warrantless search of a trunk. State v. Ulmer, 1st Dist. Hamilton Nos. C-

190304, C-190305 and C-190306, 2020-Ohio-4689.

II. Analysis

A. Decision on Motion to Suppress and Appellate Review

{¶12} An appellate court’s review of a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. “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.” Id. Where a motion to suppress

involves factual issues, the trial court “shall” state its essential findings on the record.

Crim.R. 12(F).

{¶13} We must accept the trial court’s findings of fact if they are supported

by competent and credible evidence. Burnside at ¶ 8. “Accepting these facts as true,

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[we] must then independently determine, without deference to the conclusion of the

trial court, whether the facts satisfy the applicable legal standard.” Id.

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B. Scope of Motion to Suppress

{¶14} “To suppress evidence obtained pursuant to a warrantless search or

seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the

grounds upon which the validity of the search or seizure is challenged in such a

manner as to give the prosecutor notice of the basis for the challenge.” City of Xenia

v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), paragraph one of the syllabus.

The notice requirement involves “the specific legal and factual grounds upon which

the validity of the search and seizure is challenged.” Id. at 219.

{¶15} Generally, a defendant waives for purposes of appeal grounds for

suppression that are not articulated in the motion to suppress and memorandum of

support, unless they are articulated later without objection by the state and with

permission of the court. See generally id. at 221; State v. Lattimore, 1st Dist.

Hamilton No. C-100675, 2011-Ohio-2863, ¶ 7-9; Moreover, where a defendant

concedes an issue in the lower court, the invited-error doctrine precludes revival of

the abandoned argument on appeal. Ulmer, 1st Dist. Hamilton Nos. C-190304, C-

190305 and C-190306, 2020-Ohio-4689, at ¶ 15.

{¶16} We mention these procedural rules because on appeal Curry presents

legal and factual grounds to support suppression of the firearm, including the

lawfulness of the stop, that he did not present in his written motion or memorandum

in support. In that motion, Curry sought suppression of the evidence seized from his

trunk because the “search of the trunk” was performed under circumstances that did

not fall under any of the recognized exceptions for a “warrantless search”: “[t]here

was no consent given to search the trunk of the vehicle, the contents of the trunk

were not in plain view * * *, there were no exigent circumstances that would allow a

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search for the safety of the officers to extend to a trunk of the vehicle that is not

accessible from inside the vehicle * * * nor was there a crime in progress, that would

justify the warrantless search of the trunk of the vehicle,” “regardless of any

suspicion the officers may have had at the time.”

{¶17} Further, at the suppression hearing, the assistant prosecutor objected

to defense counsel’s attempt to extend the specified legal and factual grounds

asserted in Curry’s written motion. The trial court sustained the objection. Finally,

Curry effectively conceded the lawfulness of the stop, telling the court at the

conclusion of the hearing that “since the [window tinting] law has been changed * * *

it’s basically [the officer’s] opinion whether they can see into the vehicle or not.” On

this record, we conclude Curry waived these new arguments, including the

lawfulness of the stop, for purposes of appeal.

{¶18} Accordingly, we limit our discussion to the legal and factual grounds

presented in the motion to suppress—whether the search of Curry’s vehicle during a

lawful detention fit into a recognized exception to the warrant requirement and was

thus reasonable under the Fourth Amendment to the United States Constitution and

Article 1, Section 14, of the Ohio Constitution.

C. Automobile Exception

{¶19} Warrantless searches are per se unreasonable without prior approval

of a judge or magistrate, subject to a few well-established exceptions. See Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Ulmer, 1st

Dist. Hamilton Nos. C-190304, C-190305 and C-190306, 2020-Ohio-4689, at ¶ 13.

The state maintains the search was constitutionally reasonable based on the

“automobile exception” to the warrant requirement. See United States v. Ross, 456

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U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Moore, 90 Ohio St.3d

47, 51, 734 N.E.2d 804 (2000).

{¶20} The “automobile exception” applies to searches of “validly stopped

motor vehicles” that are supported by an officer’s “probable cause to believe that

[the] vehicle contains contraband.” Moore at 51. Probable cause must be based

upon objective facts that would justify the issuance of a warrant by a magistrate.

Ross at 809; Moore at 49. “[T]he scope of the search is limited by the object of the

search and the places that may conceal the contraband.” Ulmer, 1st Dist. Hamilton

Nos. C-190304, C-190305 and C-190306, at ¶ 13, citing Howard, 1st Dist. Hamilton

Nos. C-070174 and C-070175, 2008-Ohio-2706, ¶ 11.

{¶21} Probable cause to search a vehicle may be based on odors. See Moore

at syllabus (“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.”), quoted in State v. Vega, 154

Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262, ¶ 15. The scope of the search

based on that odor is circumscribed, as “[a] trunk and a passenger compartment of

an automobile are subject to different standards of probable cause to conduct

searches.” Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, at ¶ 51. To

search a trunk, an officer must observe more than just an odor of burnt marijuana in

the passenger compartment. See Farris at ¶ 52, cited in Ulmer at ¶ 17.

{¶22} Curry agrees that under the case law governing the search of trunks

based on the scent of raw marijuana, the objective facts presented through Officer

Pitts’s testimony, if believed, are sufficient to support a finding that raw marijuana

would be found in the trunk. See State v. Gartrell, 3d Dist. Marion No. 9-14-02,

2014-Ohio-5203, ¶ 58; Howard, 1st Dist. Hamilton Nos. C-070174 and C-070175,

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2008-Ohio-2706, at ¶ 11. Officer Pitts detected the odor of raw marijuana emanating

specifically from the trunk, he smelled marijuana in the passenger compartment but

recovered just a small quantity of marijuana, and he had training and experience in

identifying the scent of raw marijuana.

{¶23} The parties disagree as to whether the trial court accepted the

officer’s testimony. The state takes the position that the trial court expressly found

the officer credible, but committed error when the court failed to properly

distinguish the facts of this case from Farris and Ulmer. Curry argues the state’s

argument is based on a faulty premise that trial court accepted Officer Pitts’s

testimony about detecting the scent of raw marijuana emanating from trunk.

{¶24} In support of his position, Curry notes the lower court found “all the

testimony was credible” and two witnesses presented conflicting perspectives. Curry

further points out the trial court ultimately ruled that suppression was appropriate

after weighing the evidence. Curry contends the trial court simply disbelieved the

officer and concluded the officer lacked a lawful basis to extend the scope of the stop

without the detection of the scent of marijuana from the trunk.

{¶25} We are not persuaded by Curry’s position. The state sought to justify

the warrantless search based on the exception for probable-cause-based searches of

automobiles. The state relied on objective facts presented through Officer Pitts’s

testimony, including the key fact concerning the odor of marijuana emanating from

the trunk. As previously mentioned, Crim.R. 12(F) requires the court when

adjudicating a motion to suppress to “state its essential findings on the record.”

Here, the trial court granted the motion to suppress but never stated it found the

officer’s testimony incredible, an “essential finding” for suppression based on the

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governing law and facts at issue in this case. Instead, the trial court made an express

finding of credibility.

{¶26} Relatedly, we are unable say the finding of credibility is not supported

by competent and credible evidence. A trained officer’s testimony concerning the

detection of the odor of marijuana from a closed trunk is not inherently incredible.

See, e.g., Howard, 1st Dist. Hamilton Nos. C-070174 and C-070175, 2008-Ohio-

2706.

{¶27} We are troubled by the absence of marijuana in the trunk, but realize

there could have been a lingering scent of marijuana. The trial court was in the best

position to judge the officer’s credibility. Thus, we defer to the trial court’s

acceptance of Officer Pitts’s testimony, which adequately conveyed his experience

and training with the substance.

{¶28} Finally, we conclude Curry’s concerns about the conflicting

testimony—his versus the officer’s—are unwarranted. In our view, the trial court

directed the credibility comment to the officer’s testimony, but then misapplied the

law concerning the automobile exception to the warrant requirement. That

exception allows a probable-caused based search of a trunk during the lawful

detention of a motorist, even when that probable cause is based primarily on the

odor of raw marijuana emanating from the trunk and is unrelated to the basis for the

traffic stop.

{¶29} Given the circumstances of this case, we hold the trial court erred by

suppressing the firearm recovered from the trunk of Curry’s vehicle. Accordingly, we

sustain the state’s single assignment of error.

III. Conclusion

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{¶30} The judgment of the trial court is reversed, and this cause is remanded

for further proceedings consistent with this decision and the law.

Judgment reversed and cause remanded.

MYERS, P.J., concurs.
BERGERON, J., dissents.

BERGERON, J., dissenting.

{¶31} I agree with the majority that, if the officer actually smelled raw

marijuana wafting from the trunk, that would provide probable cause to search

pursuant to the automobile exception. Our disagreement stems from how we read

the trial court’s decision. The majority indicates that “the trial court expressly found

the officer credible,” which provides its rationale for concluding that the trial court

committed legal error. Majority opinion at ¶ 2. That, however, is not the case. The

trial court, summarizing the testimony, noted only: “The Court finds that all of the

testimony was credible.” It is significant that the officer and Mr. Curry both testified

(painting diametrically opposed pictures of what happened), so the trial judge could

not believe both sets of testimony. A more complete examination of what unfolded

below convinces me that the trial court did not find the officer’s testimony credible,

and therefore I respectfully dissent.

{¶32} It is well-established that appellate courts must accept the factual

findings of a trial court in evaluating a suppression motion when they are supported

by competent, credible evidence. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-

Ohio-201, 96 N.E.3d 262, ¶ 14 (“Appellate review of a ruling on a motion to suppress

presents a mixed question of law and fact * * * [a]n appellate court must accept the

trial court’s findings of fact if they are supported by competent, credible evidence.”);

see State ex rel. Portage Lakes Edn. Assn. v. State Emp. Relations Bd., 95 Ohio St.3d

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533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 39 (“The issue of probable cause in

criminal proceedings is essentially one of fact.”). And if we harbor doubt as to how to

understand the trial court’s conclusion, we must interpret it in a manner consistent

with the judgment. See State v. Bennett, 1st Dist. Hamilton No. C-190181, 2020-

Ohio-652, ¶ 12 (“[W]hen evidence is susceptible to more than one construction, a

reviewing court must give it the interpretation that is consistent with the

judgment.”); Karches v. City of Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350

(1988) (“[I]f the evidence is susceptible of more than one construction, we must give

it that interpretation which is consistent with the verdict and judgment, most

favorable to sustaining the trial court’s verdict and judgment.”).

{¶33} With the benefit of that perspective, I see several reasons why the trial

court might not have found the officer’s testimony about a smell of raw marijuana in

the empty trunk plausible. The officer testified that he smelled raw marijuana

emanating from the cab and the trunk of the car before observing anything. He then

saw raw marijuana “shakes” on the passenger side, but in such a trivial amount that

it could not legally provide a basis for arrest. At some point, the officer claims to

have seen marijuana shakes on Mr. Curry’s side of the car as well, though again, in

such a meager amount that it could not be collected as evidence. On redirect, the

officer testified that he also smelled burnt marijuana (albeit not “burning

marijuana”). The nasal detection of raw marijuana allegedly sealed in the trunk

seems to be a pretty remarkable observation since no marijuana (raw, burnt, or

otherwise) turned up. The majority appropriately admits some concern about the

smell of nonexistent raw marijuana, but posits that “there could have been a

lingering scent of marijuana” in the trunk. Majority opinion at ¶ 27. Of course, the

officer never testified to that, and I don’t think we should be bolstering testimony on

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appeal—particularly going out of our way like this to reject the trial court’s

conclusions.

{¶34} Second, the officer insinuated that Mr. Curry attempted to flee by

testifying that another unit “deployed Stop Sticks to stop the car because it continued

to roll * * * [i]f any vehicle attempts to flee us, Stop Sticks are deployed so we don’t

have a high-speed pursuit.” When pressed by defense counsel (and reminded that

body-camera video captured the incident), the officer acknowledged that stop sticks

were not placed directly in front of the car until after the vehicle had stopped and Mr.

Curry was handcuffed. The testimony about the stop sticks is punctuated by

inconsistencies, yet the officer relied on Mr. Curry’s alleged “slow[ness] to stop” as

the originating reason to suspect the vehicle contained contraband. Although the

officer witnessed no furtive movements from any of the occupants of the vehicle, he

claimed that another officer on scene did. Conveniently, that officer did not testify at

the hearing and the testifying officer provided no details on the nature of this

“movement” that apparently justified removing the occupants from the vehicle and

handcuffing them.

{¶35} Third, the officer insisted that no legal standard governed window-tint

violations, which stands at odds with existing law. R.C. 4513.241(A) provides that

the director of public safety “shall adopt rules governing the use of tinted glass * * *

that prevent a person of normal vision looking into the motor vehicle from seeing or

identifying persons or objects inside the motor vehicle.” And we find those

governing rules in the Ohio Administrative Code. Ohio Adm.Code 4501-41-03(A)(2)

(tinting on windshield must have a “light transmittance of not less than seventy per

cent plus or minus three per cent”); Ohio Adm.Code 4501-41-03(A)(3) (tinting on

side windows must have a “light transmittance of not less than fifty per cent plus or

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minus three per cent”). In fact, if no standard existed, it would allow any officer to

pull over any car based on window tint, thus throwing open a wide door to pretextual

stops.

{¶36} The trial court thus confronted (a) smells of burnt and raw marijuana

without any physical evidence of such; (b) a potential exaggeration about the car

seeking to flee (or at least inconsistencies on that score); (c) vagueness on the nature

of any movement in the vehicle, and no first-hand account of it; and (d) a stop for a

window-tint violation when the officer never actually substantiated the grounds for

the stop because he did not believe any legal standard applied. In light of that, it’s

not difficult to see why the smell testimony might raise concerns. Regardless, our job

is to “neither weigh the evidence nor judge the credibility of witnesses.” State v.

Woods, 2018-Ohio-3379, 117 N.E.3d 1017, ¶ 19 (5th Dist.). We defer to the trial court

because “the trial court has had the opportunity to observe the witness’ demeanor,

gestures, and voice inflections that cannot be conveyed to us through the written

record.” State v. Whitfield, 1st Dist. Hamilton No. C-190591, 2020-Ohio-2929, ¶ 12.

Inferences to be drawn from the evidence present factual questions within the

province of the trial court, and “[a] reviewing court can not usurp the function of the

triers of fact by substituting its judgment for theirs.” Simon v. Lake Geauga Printing

Co., 69 Ohio St.2d 41, 45, 430 N.E.2d 468 (1982); Seasons Coal Co. v. City of

Cleveland, 10 Ohio St.3d 77, 81, 461 N.E. 2d 1273 (1984) (“A reviewing court should

not reverse a decision simply because it holds a different opinion concerning the

credibility of the witnesses and evidence submitted before the trial court.”).

{¶37} To support its opinion, the majority determines that the trial court

really meant to find the officer’s testimony fully credible. I’m afraid I just can’t

divine that from the transcript. After all, the trial court explained that the search

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resulted “extensively due to a small amount of marijuana”—not from the smell of raw

marijuana in the trunk. Given the state’s focus on the smell throughout the hearing,

that comment alone suggests the trial court, with the benefit of observing the

testimony described above, discounted the smell of raw marijuana in the trunk as the

basis for probable cause. From that springboard, the trial court proceeded to cite

three cases supporting its decision to suppress the evidence. United States v. Elliot,

107 F.3d 810 (10th Cir.1997) (granting motion to suppress where officer exceeded

scope of consent); State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d

985 (holding that light odor of burnt marijuana does not establish probable cause for

warrantless search of the trunk); State v. Ulmer, 1st Dist. Hamilton Nos. C-190304,

C-190305 and C-190306, 2020-Ohio-4689 (reversing conviction where the officer

did not have probable cause to search the trunk). The citation of these cases further

supports the trial court’s rejection of the state’s theory for probable cause.

{¶38} In Ulmer, for instance, officers stopped the defendant in a parking lot

on suspicion of trespassing. At the hearing on the motion to suppress, one officer

testified that he searched the trunk because he could smell a very strong odor of

marijuana coming from Mr. Ulmer, the immediate vicinity, and the vehicle. We

disagreed with the state’s theory of probable cause, explaining that the odor of

burning marijuana could not support the search of the vehicle’s trunk (because

burning marijuana would be unlikely to be found in the trunk). We specifically

contrasted that situation with a scenario in which an officer testified “that he smelled

raw marijuana or that he was trained to detect the odor of raw marijuana.” Ulmer at

¶ 19. This case provides the exact scenario contemplated by Ulmer, so if the trial

court believed the officer’s testimony about the smell of raw marijuana (as the

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majority concludes), the court would have used that as a fairly obvious reason to

distinguish Ulmer. But that’s not what the trial court did.

{¶39} Similarly, in Farris, the smell of burning marijuana could not be

wielded to justify a search of the trunk. “The odor of burnt marijuana in the

passenger compartment of a vehicle does not, standing alone, establish probable

cause for a warrantless search of the trunk of the vehicle. No other factors justifying

a search beyond the passenger compartment were present in this case. The officer

detected only a light odor of marijuana, and the troopers found no other contraband

within the passenger compartment.” Farris at ¶ 52. Again, if the trial court reached

the conclusion that the majority envisions, it would have readily distinguished this

result rather than follow it.

{¶40} Admittedly, the trial court could have been clearer in setting forth its

credibility findings. But the majority’s conclusions simply can’t be squared with my

reading of the trial court’s decision. And the record amply supports trial court’s

decision to disbelieve the testimony about the odor of raw marijuana in the trunk. I

accordingly respectfully dissent and would affirm the trial court’s judgment.

Please note:
The court has recorded its own entry this date.

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