State v. Payne

        [Cite as State v. Payne, 

.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-230144
                                                        TRIAL NO. B-2201501
        Plaintiff-Appellee,                         :

  vs.                                               :     O P I N I O N.

EDDIE PAYNE,                                        :

     Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 22, 2023




Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.

       {¶1}    Following no-contest pleas, defendant-appellant Eddie Payne was

convicted of aggravated trafficking in drugs under R.C. 2925.03(A)(2) and having

weapons under a disability under R.C. 2923.13(A)(2).           He now appeals those

convictions. In his sole assignment of error, he asserts that the trial court erred in

denying his motion to suppress evidence obtained following a warrantless search of

his vehicle after a traffic stop. We find no merit in his arguments, and we affirm his

convictions.

       {¶2}    The record shows that on March 29, 2022, Officers Taylor Howard and

Cameron Fehrman of the Cincinnati Police Department were assigned to conduct

traffic stops in their marked cruiser. They were working in Winton Terrace, which is

a high-crime area with ongoing complaints of drug use and drug trafficking.

       {¶3}    The officers received a request from plain clothes officers to stop a

vehicle for making a turn on to Winneste Avenue without using a turn signal. They

followed the vehicle, which was being driven by Payne, and discovered that the

vehicle’s temporary license plate had expired.

       {¶4}    The officers initiated a traffic stop. Officer Fehrman approached the

driver’s side, explained the reason for the stop, and asked Payne for his license and

proof of insurance. At the same time, Officer Howard approached the passenger side.

Both officers smelled a strong odor of marijuana emanating from the vehicle. In the

ashtray, Officer Howard saw a crumpled-up lottery ticket. He stated that in his

experience, lottery tickets are used to wrap marijuana and other drugs. He asked

Payne if it contained marijuana. Payne handed it to him, and he opened it up and

found “shake,” particles of raw marijuana, “just as if a bud was in there at one point.”



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   Based upon the odor and the “shake,” the officers decided to search the

vehicle. They detained Payne, handcuffed him, and put him in a police cruiser. During

the search, they discovered clear bags of raw marijuana and a small baggie containing

pills, later determined to be methamphetamine, in the center console. They recovered

a loaded gun under the driver’s seat. In a backpack on the back seat, they found

paperwork relating to an ongoing criminal case against Payne in the Boston area.

Subsequently, Payne was arrested.

       {¶6}   In his sole assignment of error, Payne contends that the trial court erred

in denying his motion to suppress evidence obtained from the search of his vehicle. He

argues that the search of the vehicle and the seizure of his person were

unconstitutional under Terry v. Ohio, 

, 

, 

(1968), and that “the intrusion was greater than necessary under the totality of the

circumstances.” This assignment of error is not well taken.

       {¶7}   Appellate review of a motion to suppress presents a mixed question of

law and fact. We must accept the trial court's findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside, 

,

, 

; State v. Houston, 1st Dist. Hamilton No. C-

190598, 

.

       {¶8}   An investigative stop is a seizure within the meaning of the Fourth

Amendment that must be supported by objective justification. State v. Andrews, 

, 

 (1991); Houston at ¶ 57. The analysis is governed

by the standards enunciated in Terry and its progeny. 

. Terry held that

the police may stop and temporarily detain an individual for an investigation “when

an officer has reasonable suspicion based on specific and articulable facts that criminal

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                     OHIO FIRST DISTRICT COURT OF APPEALS



activity has occurred or is imminent.” State v. Rogers, 1st Dist. Hamilton No. C-

210666, 

.

       {¶9}   Payne’s reliance on Terry is misplaced. He concedes that the initial stop

of his vehicle was “justified at its inception.” See 

. Where an officer has

“probable cause that a traffic violation has occurred or was occurring, the stop is not

unreasonable * * * even if the officer had some ulterior motive for making the stop,

such as a suspicion that the violator was engaging in more nefarious criminal activity.”

State v. Mosley, 1st Dist. Hamilton No. C-200448, 

, quoting

Dayton v. Erickson, 

, 

 (1996).

       {¶10} As to the propriety of the search, the trial court did not rely on Terry. It

found that the police officers had probable cause to search Payne’s vehicle.

Reasonable suspicion is a less demanding standard than probable cause. Alabama v.

White, 

, 

, 

 (1990); State v. Erkins, 1st

Dist. Hamilton No. C-110675, 

. An officer who has probable

cause necessarily has a reasonable and articulable suspicion. Therefore, probable

cause is a complete justification for a stop. State v. Mays, 

, 2008-

Ohio-4539, 

; Erkins at ¶ 32.

       {¶11} Under the automobile exception to the warrant requirement, police

officers may conduct a warrantless search of an entire vehicle if the officers have

probable cause to believe that they will discover evidence of a crime. State v. Moore,

, 

 (2000); In re L.S., 1st Dist. Hamilton No. C-

150526, 

; State v. Jones, 1st Dist. Hamilton No. C-130069, 2014-

Ohio-1201, ¶ 6. Officers who have probable cause to search an automobile may search

all packages and containers inside the car if they have probable cause to believe that



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                      OHIO FIRST DISTRICT COURT OF APPEALS



the package or container contains contraband. Wyoming v. Houghton, 

, 

, 

 (1999); In re L.S. at ¶ 15.

        {¶12} Probable cause to search exists where “known facts and circumstances

are sufficient to warrant a [person] of reasonable prudence in the belief that

contraband or evidence of a crime will be found.” Jones at ¶ 16, quoting Ornelas v.

United States, 

, 

, 

 (1996). Whether

probable cause exists depends on the objective factors articulated by the officer. If the

search is objectively reasonable, the officer's stated reason for the search is irrelevant.

In re L.S. at ¶ 16.

        {¶13} Payne argues that the odor of marijuana and the small amount of

“shake” in the vehicle did not provide probable cause to search the vehicle. The Ohio

Supreme Court has held 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.” State v. Vega, 

, 

, 

, quoting 

; State v.

Curry, 1st Dist. Hamilton No. C-210274, 

.

        {¶14} Payne further argues that there was so little marijuana in the lottery

ticket “that the officers could not have smelled it to any degree rising to probable

cause.” The trial court found the officers’ testimony that they smelled a strong odor of

marijuana to be credible and supported by the fact that the officers discovered “at least

two clear bags of raw marijuana approximately the size of a human hand in close

proximity to where the officers indicated that they smelled marijuana.”

        {¶15} Once the officers smelled the strong odor of marijuana and discovered

the marijuana in the lottery ticket, they had probable cause to believe that the vehicle

contained contraband. Therefore, they were justified in conducting a warrantless

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                     OHIO FIRST DISTRICT COURT OF APPEALS



search of the vehicle and the containers inside under the automobile exception to the

warrant requirement. See 

; State v. Jackson, 1st Dist. Hamilton No. C-

190676, 

. Consequently, we overrule Payne’s assignment of error

and affirm the trial court’s judgment.

                                                                 Judgment affirmed.

BERGERON, P.J., and BOCK, J., concur.



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




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