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State v. Anderson

Court of Appeals of Ohio, Eleventh District, Lake

June 25, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL A. ANDERSON, JR., Defendant-Appellant.

          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.

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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:

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} On July 27, 2017, Anderson entered a plea of no contest to the charges as contained in the indictment.

         {¶9} 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.

         {¶10} Anderson timely appeals and raises the following ...


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