Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565612
ATTORNEY FOR APPELLANT Patrick E. Talty
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, Louis J. Brodnik Assistant Prosecuting Attorney
BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
EILEEN T. GALLAGHER, J.
(¶1} Defendant-appellant Quaison Harris ("Harris") appeals the trial court's judgment denying his motion to suppress. We find no merit to the appeal and affirm.
(¶2} In August 2012, Harris was arrested and charged with possession and trafficking in heroin, possession of codeine, and possession of criminal tools. Prior to trial, Harris filed a motion to suppress evidence arguing that because police did not have probable cause or reasonable suspicion that he was involved in any criminal activity, their search of his vehicle was unlawful.
(¶ 3} At the suppression hearing, Officer Hodous ("Hodous") of the Cleveland police department testified that on August 5, 2012, he and his partner were patrolling the area of East 93rd Street and Hough Avenue in response to numerous complaints of drug activity. They pulled into a parking lot on East 93rd Street and observed five or six men standing around a white 2012 Chevrolet, which was parked in the lot. Most of the men walked away when the police arrived, but one individual fled south on foot across Hough Avenue.
(¶ 4} Hodous testified that in his experience, flight activity is suspicious, and the officers drove closer to the car to investigate the situation. When they exited their zone car, a man exited the passenger side of the white Chevrolet and fled across Hough Avenue. The officers ran after the passenger, but their attempt to apprehend him quickly proved futile so they returned to the Chevrolet where they noticed a strong smell of fresh marijuana. Police asked the man, who was later identified as Harris, to step out of the car. Harris complied and admitted that he had some "weed" in his pocket and that there may be more inside the car. Hodous patted Harris down for weapons and removed a small bag of marijuana from his pants pocket.
(¶ 5} Hodous further testified that he observed a prescription bottle containing codeine cough syrup in plain view in the console cup holder. Half of the label was peeled off but the last name Brown was still visible. Having verified Harris's identity through the police computer, the officers knew that the prescription did not belong to him and placed him under arrest. The officers subsequently searched Harris's car and found a bag of suspected heroin in the pocket of the passenger side door. During the booking process at the police department, police found two more bags of heroin in Harris's underwear. Harris did not challenge the discovery of these two additional bags of heroin and agreed that the admissibility of this evidence was contingent upon the court's ruling on the initial search and arrest.
(¶6} The court denied Harris's motion to suppress, stating that police were permitted to investigate the smell of marijuana and the bottle of prescription codeine cough syrup, which was in plain view. And, because possession of codeine cough syrup is a first-degree misdemeanor and an arrestable offense, the subsequent search and inventory of Harris's car was lawful. This appeal followed.
(¶ 7} In his sole assignment of error, Harris argues the trial court committed prejudicial error when it denied his motion to suppress evidence. He argues that because he had done nothing illegal when police detained him, the subsequent search and seizure of his vehicle violated the Fourth Amendment to the United States Constitution, and Article I, Section 14, Ohio Constitution.
(¶ 8} Appellate review of a trial court's ruling on 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. Therefore, we give deference to the trial judge's factual findings but review the application of law to the facts de novo. Id.
(¶ 9} The Fourth Amendment to the United States Constitution, and Article I, Section 14, Ohio Constitution, prohibits unreasonable searches and seizures by government agents. State v. Kinney, 83 Ohio St.3d 85, 87, 698 N.E.2d 49 (1998). The principal remedy for violations of these constitutional protections is the exclusion of evidence from the criminal trial of the individual whose rights have been violated. Lakewood v. Crump, 8th Dist. Cuyahoga No. 93618, 2010-Ohio-5581, ¶ 8. Exclusion is mandatory when such evidence is ...