State v. Moore - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10.]

THE STATE OF OHIO, APPELLEE, v. MOORE, APPELLANT.
[Cite as State v. Moore (2000), 90 Ohio St.3d 47.]
Criminal law -- Search and seizure -- Drugs -- Smell of marijuana, alone, by a
person qualified to recognize the odor, is sufficient to establish probable
cause to conduct a search.
The smell of marijuana, alone, by a person qualified to recognize the odor, is
sufficient to establish probable cause to conduct a search.
(Nos. 99-1855 and 99-1960 -- Submitted May 23, 2000 -- Decided September 20,
2000.)
APPEAL from and CERTIFIED by the Court of Appeals for Fairfield County, No.
99CA24.

On February 28, 1999, Sergeant Jeffrey Greene of the Ohio State Highway
Patrol stopped a vehicle on U.S. 33 after observing the vehicle run a red light. As
Sergeant Greene approached the vehicle, the driver, Christopher Moore
(defendant), rolled down his window. Sergeant Greene detected a strong odor of
fresh burnt marijuana emanating from the vehicle. He asked defendant to exit the
vehicle. Sergeant Greene also observed the odor emanating from the defendant.
The defendant denied any knowledge of the odor or having any illegal substances.
Sergeant Greene proceeded to search defendant and discovered drug paraphernalia
in one of defendant's pockets. Sergeant Greene then searched defendant's vehicle
and he discovered a burnt marijuana cigarette in the ashtray. Sergeant Greene
cited defendant for a red light violation, and a criminal affidavit was issued for
possession of drug paraphernalia and possession of marijuana.

Defendant filed a motion to suppress the evidence that Sergeant Greene had
discovered during the search of both his person and his vehicle. The trial court

conducted a hearing on March 25, 1999, and sustained the motion to suppress. The
court concluded that "plain smell" evidence is an insufficient basis to conduct a
warrantless search of an individual or an individual's vehicle when there is no
other tangible evidence to justify the search.

The state of Ohio appealed. The appellate court reversed and remanded.
The court concluded that a law enforcement officer, trained and experienced in
detecting marijuana, may rely on his or her sense of smell to establish the
necessary probable cause to conduct a warrantless search of a vehicle. The court
did not separately consider the search of the defendant.

The appellate court also determined that its judgment was in conflict with
that of the Twelfth Appellate District in State v. Younts (1993), 92 Ohio App.3d
708, 637 N.E.2d 64, and that of the Eleventh Appellate District in State v. Haynes
(July 19, 1996), Portage App. No. 95-P-7, unreported, 1996 WL 649167, and
entered an order certifying a conflict.

This cause is now before this court upon our determination that a conflict
exists (case No. 99-1960), and pursuant to the allowance of a discretionary appeal
(case No. 99-1855).
__________________

Terre Vandervoort, Lancaster City Prosecutor, and David A. Trimmer,
Assistant City Prosecutor, for appellee.

Dagger, Johnston, Miller, Ogilvie & Hampson and Scott P. Wood, for
appellant.

Betty D. Montgomery, Attorney General, and David M. Gormley, Associate
Solicitor, urging affirmance for amicus curiae, Attorney General of Ohio.
__________________

LUNDBERG STRATTON, J. The appellate court certified the following issue
for our review and resolution: "Is the odor of burnt marijuana, alone, sufficient to

2

provide probable cause to search a defendant's motor vehicle?" We answer the
certified question in the affirmative and hold that the smell of marijuana, alone, by
a person qualified to recognize the odor, is sufficient to establish probable cause to
search a motor vehicle, pursuant to the automobile exception to the warrant
requirement. There need be no other tangible evidence to justify a warrantless
search of a vehicle.

Sergeant Greene conducted a search both of the defendant's person and his
vehicle based solely upon the strong odor of burnt marijuana in the vehicle and on
the defendant's clothing. Defendant contends that the officer lacked probable
cause to conduct either search without a warrant. Defendant further contends that,
even if the odor of marijuana, without other tangible evidence, justified a
warrantless search of the defendant's vehicle, the search of his person prior to the
search of the vehicle was unlawful. We also hold that exigent circumstances
existed to justify the warrantless search of defendant's person once Sergeant
Greene had probable cause based upon the odor of marijuana detected on the
defendant.

The Fourth Amendment to the United States Constitution, as applied to the
states through the Fourteenth Amendment, provides, "The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." Section 14, Article I of the Ohio
Constitution, nearly identical to its federal counterpart, likewise prohibits
unreasonable searches. State v. Kinney (1998), 83 Ohio St.3d 85, 87, 698 N.E.2d
49, 51.

For a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant. Katz v.

3

United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585;
State v. Brown (1992), 63 Ohio St.3d 349, 350, 588 N.E.2d 113, 114. This
requires a two-step analysis. First, there must be probable cause. If probable cause
exists, then a search warrant must be obtained unless an exception to the warrant
requirement applies. If the state fails to satisfy either step, the evidence seized in
the unreasonable search must be suppressed. Mapp v. Ohio (1961), 367 U.S. 643,
81 S.Ct. 1684, 6 L.Ed.2d 1081; AL Post 763 v. Ohio Liquor Control Comm.
(1998), 82 Ohio St.3d 108, 111, 694 N.E.2d 905, 908.

The parties do not dispute that Sergeant Greene validly stopped defendant's
vehicle for a traffic violation. See Whren v. United States (1996), 517 U.S. 806,
116 S.Ct. 1769, 135 L.Ed.2d 89. To further detain the defendant and to conduct a
search, Sergeant Greene needed probable cause, a term that has been defined as "
`a reasonable ground for belief of guilt.' " Carroll v. United States (1925), 267
U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555. Probable cause must be
based upon objective facts that would justify the issuance of a warrant by a
magistrate. State v. Welch (1985), 18 Ohio St.3d 88, 92, 18 OBR 124, 127, 480
N.E.2d 384, 387. The United States Supreme Court has long acknowledged that
odors may be persuasive evidence to justify the issuance of a search warrant.
Johnson v. United States (1948), 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436,
440 (odor of burning opium from a hotel room gave officers probable cause to
obtain a search warrant); Taylor v. United States (1932), 286 U.S. 1, 52 S.Ct. 466,
76 L.Ed. 951 (distinctive odor of alcohol is an objective fact indicative of a
possible crime). So long as the person is qualified to know and identify the odor
and it is a distinctive odor that undoubtedly identifies a forbidden substance, this
constitutes a sufficient basis to justify the issuance of a search warrant. Johnson,
333 U.S. at 13, 68 S.Ct. at 369, 92 L.Ed. at 440.

4

Many state and federal courts have previously confronted this issue and
concluded that the detection of the odor of marijuana, alone, by an experienced law
enforcement officer is sufficient to establish probable cause to conduct a
reasonable search. See, e.g., People v. Kazmierczak (2000), 461 Mich. 411, 413,
605 N.W.2d 667, 668 ("the smell of marijuana alone by a person qualified to know
the odor may establish probable cause to search a motor vehicle"); Mendez v.
People (Colo.1999), 986 P.2d 275, 280 ("the smell of burning marijuana may give
an officer probable cause to search or arrest"); State v. Secrist (1999), 224 Wis.2d
201, 210, 589 N.W.2d 387, 391 ("The unmistakable odor of marijuana coming
from an automobile provides probable cause for an officer to believe that the
automobile contains evidence of a crime."); Green v. State (1998), 334 Ark. 484,
490, 978 S.W.2d 300, 303 ("the odor of marijuana emanating from a particular bag
located on a bus is sufficient to provide probable cause to conduct a search of that
bag").1 Likewise, federal courts share this view.2

Defendant concedes that the smell of marijuana is a relevant factor in a
probable-cause analysis; however, defendant argues that because of the ephemeral
and transient nature of odors, odor alone is insufficient to justify a search.
According to defendant, there must be other tangible evidence of drug use in order
to justify a search. We disagree. Instead, we adopt what appears to be the majority
view. This does not mean that we reject analysis using "the totality of the
circumstances." See Maumee v. Weisner (1999), 87 Ohio St.3d 295, 720 N.E.2d
507. However, even under such an analysis, if the smell of marijuana, as detected
by a person who is qualified to recognize the odor, is the sole circumstance, this is
sufficient to establish probable cause. There need be no additional factors to
corroborate the suspicion of the presence of marijuana.

In the case at bar, Sergeant Greene testified regarding his extensive training
and experience in identifying and detecting the smell of marijuana. There seems to

5

be no dispute in this case that he was qualified to detect its characteristic odor. He
testified that he did not detect the odor as he approached the defendant's vehicle.
However, once the defendant lowered his window, Sergeant Greene immediately
noticed the strong odor emanating from the inside of the vehicle. Sergeant Greene
also testified that marijuana has a distinctive smell that cannot be compared to any
other odor. Based on the strength of the odor emanating from the vehicle, Sergeant
Greene believed that it was a fresh smell and that the substance had been recently
burning.

The odor of marijuana was a reasonable ground for Sergeant Greene to
believe that defendant was guilty of a drug-related criminal offense. Therefore, we
conclude that Sergeant Greene had sufficient probable cause to conduct a search
based exclusively upon the odor of marijuana coming from the defendant's vehicle
and his person.

Courts already acknowledge the use of a person's senses--sight, touch,
hearing--to identify contraband. See Minnesota v. Dickerson (1993), 508 U.S.
366, 113 S.Ct. 2130, 124 L.Ed.2d 334. We see no reason to afford less weight to
one's use of the sense of smell than to other senses when looking to probabilities.
Probabilities are the "factual and practical considerations of everyday life on which
reasonable and prudent [people], not legal technicians, act." Brinegar v. United
States (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890. The
use of one's sense of smell is no less reliable than other senses upon which we rely.
A familiar or distinctive odor, such as freshly cut grass, a bouquet of flowers, a hot
apple pie, or the scent of perfume, evokes a vivid and accurate image in our minds.
We draw factual conclusions about our surroundings from the use of our sense of
smell. Consequently, we agree with the appellate court that a law enforcement
officer, who is trained and experienced in the detection of marijuana, should not be

6

prohibited from relying on his or her sense of smell to justify probable cause to
conduct a search for marijuana.

Having concluded that Sergeant Greene had probable cause to conduct a
reasonable search, we must determine whether there existed an exception to the
warrant requirement of the Fourth Amendment in order for Sergeant Greene to
have searched defendant's person and his vehicle. Once a law enforcement officer
has probable cause to believe that a vehicle contains contraband, he or she may
search a validly stopped motor vehicle based upon the well-established automobile
exception to the warrant requirement. Maryland v. Dyson (1999), 527 U.S. 465,
466, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442, 445; United States v. Ross (1982),
456 U.S. 798, 804, 102 S.Ct. 2157, 2162, 72 L.Ed.2d 572, 580; State v. Mills
(1992), 62 Ohio St.3d 357, 367, 582 N.E.2d 972, 982. We find that Sergeant
Greene's search of defendant's vehicle did not violate the parameters of the Fourth
Amendment.

More problematic, however, is the search of defendant's person. The
overriding function of the Fourth Amendment is to "protect personal privacy and
dignity against unwarranted intrusion by the State." Schmerber v. California
(1966), 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 917. Therefore,
in the absence of an exception to the warrant requirement, the search of
defendant's person is unlawful. Sergeant Greene admitted at the suppression
hearing that this was not a patdown search and that he was not in fear for his
safety. He acknowledged that the only basis for his search of the defendant was
the odor of marijuana. Defendant strenuously argues that the automobile exception
to the warrant requirement does not apply because Sergeant Greene conducted the
search of his person prior to the search of the vehicle. Furthermore, the search was
not justified as being incidental to an arrest. State v. Darrah (1980), 64 Ohio St.2d
22, 26-27, 18 O.O.3d 193, 195-196, 412 N.E.2d 1328, 1331.

7

However, certain situations present exigent circumstances that justify a
warrantless search. Generally, there must be "compelling reasons" or "exceptional
circumstances" to justify an intrusion without a warrant. McDonald v. United
States (1948), 335 U.S. 451, 454, 69 S.Ct. 191, 193, 93 L.Ed. 153, 158. For
example, the concept of exigency underlies the automobile exception to the
warrant requirement. The inherent mobility of the automobile created a danger
that the contraband would be removed before a warrant could be issued. South
Dakota v. Opperman (1976), 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d
1000, 1004. A warrantless search is also justified if there is imminent danger that
evidence will be lost or destroyed if a search is not immediately conducted. Cupp
v. Murphy (1973), 412 U.S. 291, 294-296, 93 S.Ct. 2000, 2003-2004, 36 L.Ed.2d
900, 905-906 (exigent circumstances justified a warrantless search of fingernails
for skin, blood cells, and fabric when officers feared evidence would be
destroyed); Schmerber v. California, 384 U.S. at 769-771, 86 S.Ct. at 1835-1836,
16 L.Ed.2d at 919-920 (exigent circumstances justified the warrantless seizure of a
blood sample for alcohol level that would be destroyed through dissipation); Ker
v. California (1963), 374 U.S. 23, 41-42, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726, 743
(exigent circumstances justified the warrantless search of an apartment for drugs
when officers feared destruction of evidence).

Because marijuana and other narcotics are easily and quickly hidden or
destroyed, a warrantless search may be justified to preserve evidence. See United
States v. Wilson (C.A.1, 1994), 36 F.3d 205; United States v. Fields (C.A.2, 1997),
113 F.3d 313; United States v. Grissett (C.A.4, 1991), 925 F.2d 776; United
States v. Gaitan-Acevedo (C.A.6, 1998), 148 F.3d 577; United States v. Parris
(C.A.8, 1994), 17 F.3d 227.

Here, Sergeant Greene was alone at the time he stopped defendant's vehicle.
He had probable cause to believe that defendant had been smoking marijuana from

8

the strong odor of burnt marijuana emanating from the vehicle and on the
defendant. In order to obtain a warrant before searching defendant's person for
possible narcotics, he would have had to permit defendant to leave the scene in
defendant's vehicle. Having to permit defendant to leave the scene alone,
unaccompanied by any law enforcement officer, the dissipation of the marijuana
odor, and the possible loss or destruction of evidence were "compelling reasons"
for Sergeant Greene to be able to conduct a warrantless search of defendant's
person. We find these to be exigent circumstances that would justify the
warrantless search of defendant's person.

Therefore, we hold that the smell of marijuana, alone, by a person qualified
to recognize the odor, is sufficient to establish probable cause to conduct a search.
Here, Sergeant Greene's searches of defendant's person and vehicle were exempt
from the warrant requirement under the Fourth Amendment on the basis of the
automobile exception and exigent circumstances. We affirm the judgment of the
court of appeals.
Judgment affirmed.

MOYER, C.J., RESNICK and F.E. SWEENEY, JJ., concur.

COOK, J., concurs in judgment.

DOUGLAS and PFEIFER, JJ., concur in part and dissent in part.
FOOTNOTES:
1.
See,
also,
State v. Harrison (1975), 111 Ariz. 508, 533 P.2d 1143;
People v. Gale (1973), 9 Cal.3d 788, 108 Cal.Rptr. 852, 511 P.2d 1204; Minnick v.
United States (D.C.App.1992), 607 A.2d 519, 525; State v. MacDonald (1993),
253 Kan. 320, 856 P.2d 116; State v. Barclay (Me.1979), 398 A.2d 794; Miller v.
State (Miss.1979), 373 So.2d 1004; State v. Fuente (Mo.1994), 871 S.W.2d 438;
State v. Watts (1981), 209 Neb. 371, 307 N.W.2d 816; State v. Gilson (1976), 116
N.H. 230, 356 A.2d 689; State v. Capps (1982), 97 N.M. 453, 641 P.2d 484; State

9

v. Greenwood (1981), 301 N.C. 705, 273 S.E.2d 438; State v. Binns (N.D.1972),
194 N.W.2d 756; State v. Pfaff (S.D.1990), 456 N.W.2d 558; State v. Hughes
(Tenn.1976), 544 S.W.2d 99; State v. Greenslit (1989), 151 Vt. 225, 559 A.2d
672; State v. Smith (1993), 190 W.Va. 374, 438 S.E.2d 554.
2.
See
United States v. Staula (C.A.1, 1996), 80 F.3d 596; United States
v. Haley (C.A.4, 1982), 669 F.2d 201; United States v. McSween (C.A.5, 1995), 53
F.3d 684; United States v. Garza (C.A.6, 1993), 10 F.3d 1241; United States v.
Thompson (C.A.9, 1977), 558 F.2d 522; United States v. Downs (C.A.10, 1998),
151 F.3d 1301.
__________________

PFEIFER, J., concurring in part and dissenting in part. I agree with the
majority that the smell of marijuana, alone, can be sufficient to establish probable
cause to conduct a search. I also agree that there was, in this case, probable cause
to search Moore's vehicle based on the automobile exception to the warrant
requirement. I further agree that the only exception to the warrant requirement that
can apply to this case is the exigent-circumstances exception. However, given the
facts of this case, the exception is not applicable.

The majority cites three United States Supreme Court cases to justify its
conclusion that "a warrantless search is also justified if there is imminent danger
that evidence will be lost or destroyed if a search is not immediately conducted."
Each of the three is patently distinguishable.
In
Cupp v. Murphy (1973), 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900, a
warrantless search was permitted in part because there was probable cause to
believe that murder had been committed. The court has since stated that "an
important factor to be considered when determining whether any exigency exists is
the gravity of the underlying offense for which the arrest is being made." Welsh v.
Wisconsin (1984), 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732, 745.
10

The case before us involves probable cause to believe that someone had been
smoking marijuana, a misdemeanor. The gravity of this offense is not sufficient to
overcome the presumption of unreasonableness that attaches to every warrantless
search. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19
L.Ed.2d 576, 585; Minnesota v. Dickerson (1993), 508 U.S. 366, 372, 113 S.Ct.
2130, 2135, 124 L.Ed.2d 334, 343-344.
Further,
in
Cupp, the court sanctioned only the "very limited search
necessary to preserve the highly evanescent evidence they found under his
fingernails." Cupp, 412 U.S. at 296, 93 S.Ct. at 2004, 36 L.Ed.2d at 906. Here,
the officer conducted a full body search. Cupp does not authorize the search that
took place in this case.

The majority also relies upon Schmerber v. California (1966), 384 U.S. 757,
86 S.Ct. 1826, 16 L.Ed.2d 908, and Ker v. California (1963), 374 U.S. 23, 83 S.Ct.
1623, 10 L.Ed.2d 726. In Schmerber, the court stated, "we conclude that the
attempt to secure evidence of blood-alcohol content in this case was an appropriate
incident to petitioner's arrest." Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16
L.Ed.2d at 920. In Ker, the challenged search was conducted incident to an arrest,
and at the conclusion of extensive surveillance that provided probable cause to
believe that a crime had been committed. Ker, 374 U.S. at 25-30, 41-43, 83 S.Ct.
at 1625-1628, 1634-1635, 10 L.Ed.2d at 733-735, 742-744. The case before us is
clearly inapposite to Schmerber and Ker.

The search of the car here was reasonable because given the smell of
marijuana smoke emanating from the car there was probable cause to believe that a
crime was occurring or had occurred in the car. The smell of marijuana smoke on
a person is entirely different; it provides probable cause that marijuana has been
smoked not that the person smoked it. (Everyone in a smoke-filled room smells of
smoke whether or not they actually smoked.) The fact that evidence of a crime
11

may be easily disposed of cannot justify this search; if it did, the Fourth
Amendment would be eviscerated and no one would be safe from warrantless
searches. The state has not overcome the presumption that the warrantless search
was unreasonable as to Moore's person. Accordingly, I concur in part and dissent
in part.

DOUGLAS, J., concurs in the foregoing opinion.
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