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State v. McCall

Court of Appeals of Ohio, Tenth District

January 14, 2020

State of Ohio, Plaintiff-Appellee,
Dominic O. McCall, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 17CR-2365

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.

          Yeura Venters, Public Defender, and Ian J. Jones, for appellant.


          Barbara A. Farnbacher.

          Ian J. Jones.


          BEATTY BLUNT, J.

         {¶ 1} Defendant-appellant, Dominic O. McCall, appeals a judgment from the Franklin County Court of Common Pleas denying his motion to suppress. Because the officers' initial approach toward McCall's vehicle was a consensual encounter, we affirm the trial court's decision.


         {¶ 2} McCall was indicted for one count of possession of cocaine, a felony in the fifth degree, in violation of R.C. 2925.11, after officers found a baggie of crack cocaine in his pocket during a pat-down.

         {¶ 3} McCall filed a motion to suppress on November 7, 2017, arguing that the police officers conducted an illegal stop and search of his person and his car. The trial court held a hearing on the motion on March 29, 2018.

         {¶ 4} Three witnesses testified at the suppression hearing: Columbus Police Officers Nicholas Powell and Tyler Wells, and appellant McCall. Officer Powell testified that he and his partner, Officer Wells, were working a summer safety initiative, whereby they "would just go out in the community and do proactive police work to try to fight crime." (Mar. 29, 2018 Tr. at 6.) This involved the officers having "consensual encounters" with the community to try to get guns and drugs off the street. (Tr. at 6.) In the course of these consensual encounters, Officer Powell testified that they would "just casually approach someone, make sure that they're not under any impression that they're detained at that time and they're free to go and then just try to obtain probable cause during that." (Tr. at 6.) Officer Powell testified that they will search individuals if they have probable cause to do so, and they are looking for both guns and drugs as part of the summer safety initiative.

         {¶ 5} In the course of that initiative, on June 15, 2016, Officer Powell testified that he and Officer Wells pulled into the Shop-N-Go convenience store and parked their marked cruiser in a parking spot. They immediately smelled marijuana coming from the front of the building. They noticed McCall sitting in his vehicle, which was parked in a parking spot, and they approached the vehicle. Officer Powell stated that their police cruiser was not blocking McCall's vehicle during their encounter. Wells approached the driver's side, and Officer Powell approached the passenger's side "just to engage [McCall] in casual conversation." (Tr. at 9.) According to Officer Powell, they approached McCall because they knew from "previous arrests and experience" that people often sit in their cars like McCall was doing to "buy, sell, or use narcotics." (Tr. at 9.) Officer Powell testified that the officers "walked up from either side as to not be behind [McCall] so [they] would not get struck by the vehicle," and that had McCall backed up, he "would have been free to just continue backing and then go about his direction pulling out of the lot." (Tr. at 14.) McCall's window was down when the officers approached him, and Officer Powell testified that Wells "could immediately smell raw marijuana coming from the inside of the vehicle where Mr. McCall was sitting in the driver's seat." (Tr. at 10.) The officers "crouched down" next to the car, "leaning towards it." (Tr. at 15.) According to Officer Powell, the officers were standing back enough "to where there'd still be room to where if he would have started to move the vehicle, [they] would not be struck." (Tr. at 16.) McCall's mirror "could have potentially" hit the officers if McCall reversed, but Officer Powell believed "it would not have caused serious physical harm." (Tr. at 16.) Officer Powell maintained that McCall still could have left at that point, and the officers "never made any statements to him that he was detained." (Tr. at 16, 17.) McCall did not attempt to leave.

         {¶ 6} Officer Powell admitted the officers did not have reasonable suspicion of criminal activity when they began approaching the vehicle. He testified that they did not have any reason to detain McCall until they began speaking with him. Officer Powell clarified they smelled burnt marijuana coming from the front of the store, and raw marijuana coming from McCall's car. It was at the point that Officer Powell's partner smelled raw marijuana coming from the car that Officer Powell believed McCall was no longer free to leave.

         {¶ 7} When the officers began speaking with McCall, they asked him if he had marijuana in the car, and he said no. Officer Powell testified that the officers then "pull[ed] him out of the car" and conducted a "pat-down for weapons due to the smell of marijuana." (Tr. at 10.) Officer Powell did not believe that McCall was a danger to the officers. According to Officer Powell, "drugs and guns go hand in hand," so the officers "had reason to believe that [McCall] could have been armed at the time." (Tr. at 20.)

         {¶ 8} Officer Wells testified next. He testified that he and Officer Powell were engaged in the summer safety initiative on June 15, 2016. He and Officer Powell stopped at the Shop-N-Go every day because they had made numerous gun and drug arrests at that location. On June 15, they pulled into a parking spot and smelled marijuana from in front of the store when they got out of the cruiser. When asked why the officers park in a parking spot, Officer Wells answered:

Because we were just going out and talking to individuals in the Shop-N-Go. We weren't detaining anybody. We weren't stopping any vehicles from leaving. We weren't blocking any egresses. So we would just park the cruiser like any other patron would of the store.

(Tr. at 28.) He said they approached McCall's vehicle "[b]ecause it was occupied," and there was a "smell of marijuana coming from the area." (Tr. at 29.) It was the only vehicle in the area that was occupied. According to Officer Wells, "it was very apparent as soon as [they] walked in that parking lot that [they] smelled the odor of raw marijuana." (Tr. at 31.) Officer Wells testified that he and Officer Powell approached McCall's vehicle on each side, and McCall's window was down. Wells was not able to testify with certainty whether he or Officer Powell ever walked behind McCall's car in their approach. Officer Wells testified that McCall could have backed his car up without hitting Officer Wells, either with the car itself or the car mirror, when the officers were approaching the car and when they were talking with McCall. Even though there was another car parked in the spot next to McCall's car, there was plenty of room between Officer Wells and ...

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