[Cite as State v. Caldwell , 2021-Ohio-3777.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

ROBERT RAPHAEL CALDWELL, Appellant. :

:

:

:

:

: CASE NO. CA2021-02-017

O P I N I O N

10/25/2021

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2019-10-1659

Michael T. Gmoser, Butler County Prosecuting Attorney, and Mich ael Greer, Assistant Prosecuting Attorney, for appellee. Cook Howard Law, Ltd ., and Melynda W. Cook Howard, for appellan t.

PIPER, P.J. {¶1} Appellant Robert Raphael Caldwell appeals his convictions in th e Butler County Court of Common Pleas for aggravated possession of drugs , trafficking in a fentanyl-related compound, and trafficking in cocaine. {¶2} In late September and early October 2019, Detective Jason Flick , of the West Chester Police Department, was conducting an investigation rega rding drug trafficking inButler CA2021-02-017

- 2 - the West Chester area. Through observation and a reliable, con fidential informant, Detective Flick identified Caldwell's vehicle as one that frequ ented known drug houses. As part of his investigation, Detective Flick became familiar with Caldwell's criminal record and

surveilled his movements. {¶3} On October 4, 2019, Detective Flick received a tip from his inf ormant that Caldwell was in possession of narcotics. After observing Caldw ell drive away from a drug house in West Chester, Detective Flick contacted West Chester p olice officer Guy Veeneman on his cell phone and requested a stop Caldwell's vehi cle. Detective Flick told Officer Veeneman about his drug trafficking investigation, note d that he had received a tip that Caldwell was carrying narcotics, gave background informati on on Caldwell's criminal record, and advised that Caldwell's vehicle had windows that we re illegally tinted. {¶4} At the time of this incident, Offi cer Veeneman was travelling w ith Officer Bradley Popplewell. Officer Veeneman was an 18-year veteran of the West Chester Police Department and was serving that day as Officer Popplewell's fie ld training officer. Officer Popplewell had been employed as a West Chester police officer f or a little more than three months. He had, however, been trained to recognize the odor of marijuana and had been involved in four marijuana-related incidents in the field. {¶5} Officers Popplewell and Veeneman l ocated Caldwell's vehicle, no ted the illegal window tint, and conducted a traffic stop approximately five minutes after Caldwell left the drug house. Officer Popplewell approached the driver' s side door of Caldwell's vehicle, while Officer Veeneman approached the passenger's side door. Officer Popplewell told Caldwell he had been pulled over for a window tint violati on. Caldwell gave Officer Popplewell his insurance card and driver's license. Caldwell t old him that he had received a previous warning for a window tint violation and that he was in the process of getting it corrected. Officer Popplewell said, "that's fine, I'll just ge t you another warning." HeButler CA2021-02-017

- 3 - returned Caldwell's insurance paperwork but kept the driver's l icense. {¶6} As Officer Popplewell and Officer Veeneman returned to their cr uiser, Officer Popplewell asked Officer Veeneman, "Call for a canine?" Office r Popplewell relayed that he had smelled the odor of marijuana. Officer Veeneman called for the canine, while Officer Popplewell put Caldwell's information in his computer system. Officer Veeneman contacted

the canine unit about its estimated time of arrival. Officers Popplewell and Veeneman later testified that they intended to search the vehicle regardless o f whether the canine unit arrived in time because Officer Popplewell had smelled marijuan a. {¶7} A little over twelve minutes after taking Caldwell's license, t he officers returned to the vehicle and asked Caldwell to step out. Officer Veenema n told Caldwell they were going to have a canine sniff the vehicle and Caldwell asked why the officers were calling a canine if he was stopped for a window tint violation. Officer Veeneman informed Caldwell that they had recognized the "odor of marijuana coming from the vehicle." Caldwell responded that he had a medical marijuana card. He showed it t o the officers and told them he had marijuana in the glove box. Officer Popplewell's testim ony revealed that he smelled both burnt and raw marijuana coming from the vehicle. 1 The canine and its handler promptly arrived and were directed to Caldwell's vehicle. {¶8} The officers stood talking to Caldwell for approximately three minutes while the canine sniffed the vehicle. Upon the canine alerting to th e presence of narcotics, Officer Veeneman began to perform a search of Caldwell. He discovered a small bag in Caldwell's front right pocket, and untied it to find a clear plastic baggi e filled with narcotics. Officer Veeneman then handcuffed Caldwell and continued searching him b efore placing him in the back of the squad car under arrest. The baggie was later f ound to contain 5.5 grams of

1. Caldwell emphasizes that Officer Veeneman did not smell the odor, as if Officer Popplewell's credibility then comes into question. However, we note that Officer Veenem an was on the opposite side of the vehicle.Butler CA2021-02-017

- 4 - methamphetamine. Officers subsequently conducted a roadside se arch of the vehicle and found more drugs. After officers later obtained a search warra nt, a second, more thorough

search of the vehicle was conduc ted, and cocaine was found. {¶9} A Butler County Grand Jury indicted Caldwell for nine counts of drug-related offenses. Caldwell filed a motion to suppress evidence pursuan t to Crim.R. 12(C)(3) and a hearing was held before the court. At the hearing, Officer Pop plewell, Officer Veeneman,

and Detective Flick testified. The court admitted both Caldwel l's medical marijuana registry identification card and Officer Popplewell's body camera footag e as exhibits. {¶10} At the hearing, the court made an oral decision denying the mot ion to suppress evidence and issued a written decision one week later. The court found that officers had a reasonable, articulable suspicion to stop Caldwe ll's vehicle. The court also found that probable cause existed to search both Caldwell's veh icle and his person pursuant to the automobile exception and exigent circumstances, respecti vely. Additionally, the court determined that even if such exceptions were not applicable, th e discovery of the items on Caldwell's person was inevitable and therefore would be admissi ble pursuant to the inevitable discovery doctrine. {¶11} Caldwell eventually entered pleas of no contest to all counts i n the indictment. At sentencing, the court merged allied offenses and adjudicated Caldwell guilty of three offenses: aggravated possession of drugs in violation of R.C. 2 925.11(A), trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(1), a nd trafficking in cocaine in violation of R.C. 2925.03(A)(1). Caldwell was sentenced to 30 months, 17 months, and 11 months in prison on each count respectively, to run concurrentl y. {¶12} Caldwell now appeals, raising the following assignment of error : {¶13} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS.Butler CA2021-02-017

- 5 - {¶14} In his sole assignment of error, Caldwell contends that the tri al court erred in denying his motion to suppress the evidence seized by officers pursuant to their traffic stop. He argues that the officers illegally prolonged his detention f ollowing the initial stop and further, argues that the officers searched his person and vehic le without probable cause. 2 {¶15} Our review of a trial court's denial of a motion to suppress pr esents a mixed question of law and fact. State v. Blatchford , 12th Dist. Preble No. CA2015-12-023, 2016- Ohio-8456, ¶ 25. When considering a motion to suppress, the tr ial court, as the trier of fact, is in the best position to weigh the evidence in order to resol ve factual questions and evaluate witness credibility. State v. Casey , 12th Dist. Warren No. CA2013-10-090, 2014- Ohio-2586, ¶ 16. Therefore, when reviewing the denial of a mot ion to suppress, this court is bound to accept the trial court's findings of fact if they a re supported by competent,

credible evidence. State v. Lynn , 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08- 132, 2018-Ohio-3335, ¶ 15. An appellate court, however, indepe ndently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts s atisfy the appropriate legal

standard. State v. Vaughn , 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. I. Traffic Stop and Duration of Detention {¶16} The Fourth Amendment to the United States Constitution and Sect ion 14, Article I of the Ohio Constitution prohibit unreasonable search es and seizures, including unreasonable automobile stops. Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio3563, ¶ 11. When police stop a vehicle based on probable cause that a traffic violation has occurred, the stop is reasonable under the Fourth Amendment. 3 State v. Cruz , 12th Dist.

2. Caldwell also challenges the validity of the search warrant subsequently obtained. However, as our analysis demonstrates, we need not address that issue. 3. The Ohio Supreme Court has held that in felony cases, Articl e I, Section 14 of the Ohio Constitution provides the same protection as the Fourth Amendment to the United State s Constitution. State v. Banks-Harvey , 152Butler CA2021-02-017

- 6 - Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 14. The legality o f the traffic stop in this case is not disputed. Officer Popplewell's suppression hearing testimony that Caldwell was pulled over for a window tint violation is uncontroverted and s erved as the lawful basis for the stop. Dayton v. Erickson , 76 Ohio St.3d 3, 1996-Ohio-431, paragraph one of the syllabus. The focus of our first inquiry, therefore, is whethe r the officers illegally prolonged

Caldwell's detention. State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 8. {¶17} When detaining a motorist for a traffic violation, an officer m ay delay the motorist for a time period sufficient to issue a ticket or a wa rning. State v. Howard , 12th Dist. Preble Nos. CA2006-02-002 and CA2006-02-003, 2006-Ohio-56 56, ¶ 15. This time period also includes the period of time sufficient to run a com puter check on the driver's license, registration, and vehicle plates. State v. Bolden , 12th Dist. Preble No. CA2003-03- 007, 2004-Ohio-184, ¶ 17. "'In determining if an officer compl eted these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation."' Howard at ¶ 15, quoting State v. Carlson , 102 Ohio App. 3d 585, 598 (9th Dist. 1995). {¶18} Ohio courts, along with the United States Supreme Court, have d etermined "the exterior sniff by a trained narcotics dog to detect the od or of drugs is not a search within the meaning of the Fourth Amendment to the Constitution." State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 25. Moreover, a la wfully detained vehicle may be subjected to a canine sniff of the vehicle's exterior ev en without the presence of a reasonable suspicion of drug-related activity. Id . Stated differently, a canine sniff of a vehicle may be conducted within the time period necessary to ef fectuate the original

Ohio St.3d 368, 2018-Ohio-201, ¶ 16. Caldwell brings his claim s under both constitutions, and all analysis herein reflects both documents.Butler CA2021-02-017

- 7 - purpose of the stop. Batchilli , at ¶ 12. However, it must also be noted, the detention "may continue beyond [the normal] time frame when additional facts a re encountered that give rise to a reasonable, articulable suspicion of criminal activit y beyond that which prompted the initial stop." Id. , quoting Howard at ¶ 16. {¶19} The smell of marijuana, alone, by a person qualified to recogni ze the odor, is sufficient to establish probable cause to conduct a search. State v. Moore , 90 Ohio St.3d 47, 2000-Ohio-10, paragraph one of the syllabus. The odor of b urnt marijuana was indicative of probable cause in this situation even though Cald well had a medical marijuana card, because under Ohio's Medical Marijuana Control Program, " [t]he smoking or combustion of medical marijuana is prohibited." R.C. 3796.06(B )(1). 4 {¶20} Caldwell contends that Officer Po pplewell's assertion that it t ook ten minutes to complete the necessary license checks and make notes on his dash computer is not credible. We disagree. Officer Popplewell was still in field training at the time of this incident, which required dialogue and interaction with his fiel d training officer. Officer Popplewell would not be expected to process and clear a stop as quickly as a veteran officer. Moreover, Officer Veeneman testified that he did not recall delaying matters for the canine to arrive, and that he typically tried to check Officer Popplewell's work to ensure it was accurate before returning to stopped vehicles. As previous ly indicated, the court was obligated to consider the totality of the circumstances. {¶21} Even if the traffic stop extended beyond the "reasonable length of time" necessary to address a window tint violation, the officers were justified in continuing their investigation. Howard , 2006-Ohio-5656, at ¶ 15-16. Officer Veeneman testified that they intended to search the vehicle for drugs irrespective of the ca nine's arrival, since Officer

4. As a collateral matter, we note a rolled marijuana cigarette was subsequently found within the vehicle. When such items are smoked, the odor of burnt marijuana would o ccur.Butler CA2021-02-017

- 8 - Popplewell smelled burnt marijuana. Founded upon this initial existence of probable cause, there was no design to cause unreasonable delay, nor did any oc cur. {¶22} Officer Popplewell was qualified based on his training and expe rience to smell and identify the odor of marijuana. The prolonged detention of a stopped motorist merely requires a reasonable, articulable suspicion that criminal acti vity has occurred. Batchili at ¶ 12. The odor of marijuana created reasonable, articulable su spicion for officers to investigate further. 5 See Moore at paragraph one of the syllabus. Consequently, we find that the officers did not prolong the initial traffic stop, and further that the officers would have been justified in extending the duration of the initial stop if a reasonable amount of time was required to investigate the odor of marijuana detected. As the facts unfolded during the initial window tint traffic stop, matters quickly turned into a n investigation involving drugs and the officers' investigation was neither intrusive nor unrea sonable in duration. II. Exigent Circumstances/Discovery Inevitable {¶23} Searches and seizures conducted without a warrant are per se un reasonable unless the search and seizure fall within one of the few specif ically established and well delineated exceptions to the U.S. and Ohio Constitution warrant requirements. Lynn , 2018- Ohio-3335, at ¶ 16. "[I]n the absence of an exception to the w arrant requirement, the search of defendant's person is unlawful." Moore , 90 Ohio St.3d at 51. When a defendant moves to suppress evidence recovered during a warrantless search, the state has the burden of showing that the search fits within one of the defined exceptio ns to the Fourth Amendment's warrant requirement. Banks-Harvey , 2018-Ohio-201, at ¶ 18. {¶24} Caldwell argues that the search of his person without a warrant was not

5. Despite Caldwell's indication that he was registered to lega lly use marijuana, "[t]he amount of medical marijuana possessed by a registered patient shall not exceed a ninety-day supply." R.C. 3796.22(B); see also Ohio Adm.Code 3796:8-2-04 (enumerating the legal quantities of permitted forms of medical marijuana). Caldwell's production of his registry identification card does not necessarily defeat an officer's sufficient reason to believe criminal activity has occurred when considering the totality of the circumstances.Butler CA2021-02-017

- 9 - supported by any exception to the warrant requirement. The tri al court, however, found that the officers had probable cause to search Caldwell's person and that the search of his person was justified by exigent circumstances. It further dete rmined that the discovery of the drugs was inevitable. {¶25} "[C]ertain situations present exigent circumstances that justif y a warrantless

search." Moore at 52. The exigent circumstances doctrine requires a finding o f probable cause plus exigent circumstances. State v. Wilson , 12th Dist. Clinton CA2006-03-008, 2007-Ohio-353, ¶ 22. The finding of probable cause for exigent circumstances is based on the totality of the circumstances, and is an objective determin ation. State v. Pettiford , 12th Dist. Fayette No. CA2017-05-010, 2018-Ohio-1015, ¶ 25. One of the key purposes of the exigent circumstances exception to the warrant requirement is t o "prevent the imminent

destruction of evidence." State v. Luong , 12th Dist. Butler No. CA2011-06-101, 2012-Ohio4519, ¶ 25, quoting Kentucky v. King , 563 U.S. 452, 460, 131 S.Ct. 1849 (2011). "Because marijuana and other narcotics are easily and quickly hidden or destroyed, a warrantless search may be justified to preserve evidence." Moore at 52. {¶26} In this case, Officer Veeneman had probable cause to believe Ca ldwell had committed illegal acts based upon Officer Popplewell's detectio n of the odor of burnt marijuana. Moore at 53. Detective Flick's information that Caldwell was a perso n of interest in a drug trafficking investigation and the canine's alert to t he presence of drugs in the vehicle immediately prior to the search also contribute to an o bjective finding of probable cause. Based upon the totality of these circumstances, we find that probable cause existed to search Caldwell's person. Pettiford at ¶ 25. {¶27} The trial court also found that suppression would be denied due to the doctrine of inevitable discovery. We agree. As previously discussed, t he officers were entitled to search Caldwell's vehicle pursuant to the automobile exception to the warrant requirement.Butler CA2021-02-017

- 10 - Cruz , 2014-Ohio-4280, at ¶ 18, quoting State v. Dominguez , 12th Dist. Preble No. CA2011- 09-010, 2012-Ohio-4542, ¶ 22 ("[I]f a trained narcotics dog 'al erts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to s earch the vehicle for contraband.'"). When the officers conducted a search of Caldwe ll's vehicle, he would have been arrested pursuant to the drugs they would have found there in. His person would then have been searched incident to that arrest, and the drugs in hi s pocket would then have inevitably been discovered. State v. McCullough , 12th Dist. Fayette No. CA2013-07-021, 2014-Ohio-1696, ¶ 29.

III. Search of the Vehicle {¶28} The officers discovered drugs during their warrantless roadside search of Caldwell's vehicle. Caldwell argues that the automobile except ion to the warrant requirement does not apply and therefore the evidence obtained from the search of his vehicle should be suppressed. This argument, however, ignores the specific facts of this case and disregards the rationale behind the automobile excepti on. {¶29} Under the automobile exception to the warrant requirement, once police officers obtain probable cause to believe a vehicle contains co ntraband, the officers may

search the vehicle. State v. Raphael , 12th Dist. Warren Nos. CA2014-11-138 and CA2014- 11-139, 2015-Ohio-3179, ¶ 23. Probable cause to search a vehic le and its contents exists where a narcotics dog alerts to the odor of drugs from a lawful ly detained vehicle.

Blatchford , 2016-Ohio-8456, at ¶ 38. {¶30} We agree with the trial court that the automobile exception to the warrant requirement applies in this case and justified the officers' ro adside search of the vehicle. Both the canine's alert on the vehicle and Officer Popplewell's smell of burnt marijuana provided the officers with probable cause to believe the vehicl e contained contraband. Consequently, the offi cers were permitted to search the vehicle on the roadside.Butler CA2021-02-017

- 11 - {¶31} After examining all arguments, we find that the trial court did not err in denying Caldwell's motion to suppress. C aldwell's sole assignment of e rror is overruled. {¶32} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.