Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Lake County Court of Common Pleas,
Case No. 2017 CR 000042.
Charles E. Coulson, Lake County Prosecutor, and Teri R.
Daniel, Assistant Prosecutor, For Plaintiff-Appellee.
Timothy S. Deeb, For Defendant-Appellant.
V. GRENDELL, J.
Defendant-appellant, Michael A. Anderson, Jr., appeals from
the judgment of the Lake County Court of Common Pleas,
denying his Motion to Suppress. The issues to be determined
by this court are whether a traffic stop was properly
conducted when the defendant's front license plate was
placed on his dashboard and whether there is probable cause
to conduct a search of a vehicle when an officer observes
marijuana "shake," notes the defendant's
drug-related criminal record, and smells burnt marijuana
after removing the defendant from the vehicle. For the
following reasons, we affirm the decision of the court below.
On March 13, 2017, the Lake County Grand Jury issued an
Indictment, charging Anderson with Trafficking in Marijuana
(Count One), a felony of the fifth degree, in violation of
R.C. 2925.03(A)(2); Possessing Criminal Tools (Count Two), a
felony of the fifth degree, in violation of R.C. 2923.24; and
Use or Possession of Drug Paraphernalia (Count Three), a
misdemeanor of the fourth degree, in violation of R.C.
2925.14(C)(1). All counts had forfeiture specifications
pursuant to R.C. 2941.1417 and 2981.04.
Anderson filed a Motion to Suppress Evidence/Motion in Limine
on April 27, 2017, raising various issues with the stop and
search of his vehicle. A hearing was held June 5, 2017, at
which the following testimony was presented:
Mentor Police Department Patrolman Bryan Distelrath testified
regarding the stop which occurred at 11:59 a.m. on December
30, 2016. While sitting stationary and observing traffic, he
saw Anderson did not have a license plate on the front bumper
of his vehicle. After effectuating a stop of Anderson, he
approached the vehicle from the passenger side and noticed
that the license plate was "on the dashboard."
Distelrath described that the plate was not "in plain
view" and was "up against the window tilted back *
* * about 45 degrees, maybe a little bit more. It wasn't
straight up and down where it was visible." He informed
Anderson of the reason for the stop and immediately noticed
"marijuana shake" in "several locations inside
the vehicle." He described this as "a little bit of
marijuana, a little bit of residue." He recognized the
substance from his training and experience. After observing
the shake, he called another unit to the scene as he intended
to conduct a search of the vehicle.
The dashboard camera video and Distelrath's testimony
showed that after speaking with Anderson for approximately 40
seconds, Distelrath returned to his vehicle and performed a
check on Anderson's information through his computer.
Distelrath found prior license suspensions for drug
trafficking and a recent offense relating to marijuana
possession. Approximately six minutes after returning to his
cruiser, Distelrath asked Anderson to exit his vehicle. While
searching Anderson, he noted the smell of burnt marijuana.
Anderson was arrested following a vehicle search, which
discovered marijuana. He was also issued a written warning
for the plate violation.
When asked during cross-examination why Distelrath did not
notice the smell of marijuana until after Anderson was
removed from the vehicle, he explained that there were
several air fresheners hanging from the rear-view mirror.
The court issued an Opinion and Judgment Entry on July 5,
2017, in which it denied the Motion to Suppress. In
describing the facts, the court noted that the license plate
was "up against the windshield leaning at 45
degrees" and that Distelrath "was unable to see the
license plate" prior to approaching the vehicle. The
court found that Distelrath saw the marijuana
"shake" when speaking with Anderson, returned to
his car, initiated a computer check on Anderson and noted
prior drug-related charges, and had initially planned on
issuing a warning but "concluded that he had probable
cause to search Anderson's car." The court held that
since the license plate was not "in plain view,"
the stop was proper, and Distelrath was then permitted to run
a computer check on Anderson's driver's license. The
court also concluded that since Distelrath saw the shake in
plain view during a valid stop, he had probable cause to
search the vehicle.
On July 27, 2017, Anderson entered a plea of no contest to
the charges as contained in the indictment.
Following a sentencing hearing, the court issued a September
7, 2017 Journal Entry, ordering Anderson to serve a term of
seven months in prison, which was stayed pending appeal.
Anderson timely appeals and raises the following ...