“So what did the officer testify he was searching for?”
Justice O’Donnell, to the Assistant County Prosecutor
“Would you agree that theoretically an officer’s probable cause could evolve? It could change?”
Justice French, to Vega’s counsel.
On June 12, 2018, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Edwin A. Vega, 2017-0618. The main issue in the case is whether a police officer may, during a search for raw marijuana after an initial traffic stop, open and search sealed odorless envelopes in the car. Also at issue is whether an unreasonable amount of time passed between the initial traffic stop and an extension of the stop to search for drugs which ultimately resulted in an arrest. Justice DeGenaro recused herself from the case. Sitting for her is Judge Marilyn Zayas of the First District Court of Appeals.
Case Background
On March 28, 2015, Cleveland State University Police Officer Jeffrey Madej pulled over Appellee Edwin Vega, after allegedly witnessing him run a red light. When the officer approached the vehicle, he smelled a strong odor of marijuana “billowing” from the car. Because of the smell, the officer searched Vega’s car and found a small amount of raw marijuana in the center console, along with three cell phones, cases of rolling papers, several canisters of odor-masking spray, an open pack of hard candy, and an open box with two sealed envelopes. Vega told the officer that the envelopes contained stickers, but the officer felt the envelopes and said they did not feel like stickers. Vega then refused to give consent to open the envelopes. The initial traffic stop and search lasted 23 minutes.
After the initial search revealed a small amount of marijuana, the officer requested the services of a K-9 unit. However, no unit was available. The resulting delay from the unsuccessful attempt to locate a K-9 unit took an additional 38 minutes. The officer then consulted with other officers to ask whether he had probable cause to open the envelopes, and was informed it was permissible.
Later, after 53 minutes into the traffic stop, the officer wrote Vega a ticket for the traffic violation and another for misdemeanor possession of marijuana.
While the tickets were being written, the officer proceeded to open the envelopes based on the strong odor of marijuana coming from the car. Inside the envelopes were 150 individually packaged Sweet Stone Candies. These hard candies were the same type found in the center console. The officer then realized the candy could contain marijuana and at this point, an hour and twelve minutes into the stop, he arrested Vega for drug trafficking. The candies later tested positive for marijuana and Vega was indicted on several drug related offenses.
Vega moved to suppress the 150 individual packages of marijuana candy found in the envelopes. The trial court granted the motion, finding that Vega was unlawfully detained for the 38 minutes after the initial stop and search of his vehicle. The state appealed.
The Eighth District Court of Appeals affirmed in a split decision.
Read the oral argument preview of the case here.
Key Precedent
Fourth Amendment of the United States Constitution (“The right of the people to be secure…against unreasonable searches and seizures, shall not be violated…”)
Article I, Section 14 of the Ohio Constitution (“The right of the people to be secure…against unreasonable searches and seizures shall not be violated…”)
Carroll v. United States, 267 U.S. 132 (1925) (Established the automobile exception to the Fourth Amendment’s prohibition on warrantless searches. Under this exception, an automobile may be searched without a warrant if the law enforcement officer has reasonable or probable cause.)
United States v. Ross, 456 U.S. 798 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”)
California v. Acevedo, 500 U.S. 565 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”)
Wyoming v. Houghton, 526 U.S. 295 (1999) (“When there is probable cause to search for contraband in a car, it is reasonable for police officers […] to examine packages and containers without a showing of individualized probable cause for each one.”)
State v. Moore, 2000-Ohio-10 (“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.”)
State v. Gonzales, 2009-Ohio-168 (6th Dist.) (“Compartments and packages within a vehicle which could contain the illicit object for which the police have probable cause to believe exist may be searched.”)
State v. Miller, 2011-Ohio-3600 (10th Dist.) (“A police officer may stop and detain someone for a minor misdemeanor offense, but the officer is not allowed to arrest that person and conduct a search incident to that arrest.”)
Rodriguez v. United States, 135 S. Ct. 1609 (2015) (Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s prohibition against unreasonable seizures.)
State v. Taylor, 2015-Ohio-3252 (10th Dist.) (The smell of marijuana establishes probable cause to search a vehicle including every part of the car that may conceal the object of the search.)
At Oral Argument
Arguing Counsel
Daniel T. Van, Assistant Cuyahoga County Prosecutor, for Appellant State of Ohio
Justin Weatherly, Henderson, Mokhtari, & Weatherly, Co., L.P.A, Cleveland, for Appellee Edwin Vega
State’s Argument
The Fourth Amendment’s prohibition against unreasonable searches and seizures is not violated when an officer extends a traffic stop based on probable cause that the vehicle contains contraband. In this case, the officer completed a traffic stop, and upon approaching the vehicle smelled raw marijuana billowing from the vehicle. He found some shake weed, an odor-masking agent, some rolling papers, three cellphones, a package of what ended up being marijuana candy, and two sealed envelopes. The officer asked Mr. Vega what was in the envelopes, but he did not believe the answer that they contained stickers. At that point, the officer was justified in extending the traffic stop and detaining Mr. Vega for as long as necessary to reasonably complete the search of the vehicle and its containers without necessarily having an individualized probable cause as to each container. The fact that the envelopes did not necessarily smell of marijuana did not negate cause to search those envelopes. While lack of smell is a factor that can negate probable cause, in this case, given all the other factors, it did not do so.
Based on the totality of what he found, the officer in this case had probable cause to extend the search beyond what he initially found. The U.S. Supreme Court decisions in Ross and Acevedo support the state’s position that the officer in this case had probable cause to conduct a warrantless search of the envelopes, without individualized probable cause as to each one.
Timing is the other issue here. It was the primary reason the trial court suppressed the evidence; the court believed the stop took too long. Once the officer approached the vehicle and smelled marijuana billowing out, this was no longer just a traffic stop. It was an investigation into possible drug activity. Once there was a reasonable suspicion about this, the officer was allowed to prolong the traffic stop for as long as reasonably necessary to complete the mission, which was then about drug activity.
The officer’s actions and conduct in this case were not unreasonable. He was genuinely trying to do the right thing, in trying to get a K-9, and in asking for advice from other officers. The officer can hardly be faulted for having some of the same concerns as are being debated in this court today.
Vega’s Argument
The state has two very high hurdles to clear to get a reversal in this case. There was no probable cause to open the packages, and even if there was, there was an unlawful detention that preceded the opening of those packages. If there was either an unlawful detention or a lack of probable cause, then suppression of the contents of those envelopes was proper.
The defense agrees with the state that because of the odor of marijuana coming from the car, there was probable cause to search the car to determine the source of that odor. The officer testified that he was looking for the source of the odor of marijuana. Once he found raw marijuana buds in the center console, and elsewhere in the car, that should have been the end of the matter. But the officer determined, mistakenly, that the marijuana that he found could not account for the overwhelming odor that he observed. And then he came across the packages, the envelopes, which emitted no odor at all. He had no basis on which to believe that those packages contained individualized drugs. He admitted that those envelopes exhibited no signs of criminality whatsoever. The state misinterprets Ross. The second part of Ross says that the contents must be able to conceal the object of the search. Because these envelopes emitted no odor of marijuana, there was no basis on which to search them. They were clearly not the object of the search, so they clearly could not conceal the object of the search.
But even if probable case had evolved to permit the search of those packages, there is still the seizure element, which is a reasonableness issue. The trial judge did not suppress this evidence because there was no probable cause to search the packages, although he did make that determination. He suppressed the evidence because of the unreasonableness of the detention. Mr. Vega was detained for 38 minutes while no ongoing investigation took place. Just because the drugs were actually found in the envelopes doesn’t justify the unlawful detention that preceded it. That’s why the trial judge determined that the detention, and not the probable cause for the envelopes, was the reason for the suppression of the evidence in this case.
The law in this case is very settled. Ross says specifically “if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and contents that may conceal the object of the search.” The object of the search in this case was always the source of the odor of marijuana. That was never the packages.
What Was On Their Minds
The Fluidity of Probable Cause
When was probable cause established so that those envelopes could be opened, asked Judge Zayas, commenting that probable cause was somewhat fluid, and that the smell of the marijuana could factor into probable cause. She noted that before the officer came across the packages, he came across the rolling paper, the spray, and the 3 cell phones (all of which were legal, noted defense counsel). How does the fact that the officer found all these things, and that he felt the envelopes, and didn’t believe Vega’s answer that they contained stickers– how does that all factor in? Wasn’t the trial court’s decision based on a determination that probable cause was established with the initial smell of marijuana and it remained right there? And so timing of the detention was all analyzed from that moment? And nothing that occurred after that was considered in the determination of probable cause?
Is the defense saying that because the officer didn’t testify that the probable cause changed, the court is limited to the probable cause of “I need to find raw marijuana” and that’s all, asked Justice French, in a key question.
If probable cause can evolve based on circumstances that are revealed to the officer as he proceeds, and Vega made a statement that the officer did not believe, that the envelopes contained stickers, when the officer is feeling something else in the envelope, does that not give him cause to open that envelope, asked Chief Justice O’Connor? Once the officer believed Vega was lying, didn’t that give him the right to investigate further?
The Object of the Search
What was it the officer was really looking for, asked Justice French? If the officer was just looking for marijuana, then you would just follow the smell, but if you are looking for drug activity, then perhaps you could go further than that, she commented.
Once the officer smelled and located the marijuana, did the officer issue a citation at that point, asked Chief Justice O’Connor?
The Odorless Envelopes
If those packages didn’t smell, the phones don’t smell, and all the officer is doing is following the smell, isn’t that then the limit of how far the officer can go, asked Justice French?
Isn’t this a closed container case, asked Justice O’Donnell? Isn’t it the authority of the investigating officer to search a closed container? Is there any authority for a police officer or a law enforcement agent to search a closed container in a vehicle? Just because the envelopes didn’t smell like marijuana, did that preclude them from containing marijuana?
Doesn’t individualized probable cause mean that the state must establish probable cause as a condition precedent before the envelopes could be opened, asked Judge Zayas?
What about the fact that the officer didn’t believe Vegas’ statement that the contents were stickers asked Chief Justice O’Connor? Wouldn’t that fact, plus his own feel and his training and experience allow him to open those envelopes?
Length of the Detention
Does time affect our view of this case and the ability to have a closed container search, asked Chief Justice O’Connor? What’s the effect of the 38 minute delay? Once the officer was satisfied that this initial traffic citation case turned into a drug possession case, the time limits don’t matter?
What difference does it make whether or not the officer got the K-9 assistance if he had the authority under the applicable case authority to open the packages, asked Justice O’Donnell? Is that irrelevant?
Isn’t the reasonableness of the detention tied to the establishment of probable cause, asked Judge Zayas?
Precedent
How do Ross and Acevedo impact the officer’s conduct, asked Justice O’Donnell? If we apply those two cases to this case, what outcome would we reach?
Should the court have even taken this case in, asked Justice French? Is this something more than just error correction?
How It Looks From The Bleachers
To Professor Emerita Bettman
I agree with my student contributor Ivy Charneski that initially the momentum seemed to be against the state, with Mr. Van struggling to justify the search beyond the initial discovery of the marijuana, and the length of the detention, but Judge Zayas’ introduction of the “fluidity of probable cause” seemed to gain traction as the case went on.
Of the justices who spoke (and neither Justice DeWine nor Justice Fischer said a word, and Justice Kennedy never does), plus Judge Zayas, there seemed to be growing sentiment toward the state’s position that once the officer felt the envelopes and didn’t believe Vega about what was in them, a different kind of drug investigation was begun, and the officer was justified in extending the traffic stop and detaining Mr. Vega for as long as necessary to reasonably complete the search of the vehicle and the envelopes. So, I’m parting company with Ivy and calling this for the state, although for the record, I’d uphold the suppression in this case. I found Judge Ambrose’s opinion on the motion to suppress to be particularly well-written and analyzed.
To Student Contributor Ivy Charneski
After reading the briefs I was very interested to see how this argument would play out. I was particularly interested in hearing how the court would interpret Ross and what it means to be able to conceal the object of a search. At first, during the State’s argument, I thought the court was leaning in favor of Mr. Vega, agreeing that the envelopes could not conceal the object of the search because they did not smell like marijuana. I think Justice French’s direct question about what the officer was looking for illustrates this.
I liked how Judge Zayas described probable clause as “fluid”. It seemed like the court was trying to throw the State a lifeline here via an opportunity to argue that, yes, probable cause can change and based on everything else the officer observed in the car, probable cause was changing to more general drug activity which might have justified opening the envelopes. However, the State did not take the lifeline. If the state would have taken Judge Zayas’ hint and shifted its argument to focus on the officer’s experience paired with the fluidity of probable cause, perhaps they would have had a stronger argument. I think the State tried to argue this, but not clearly or effectively. However, as Mr. Vega’s attorney pointed out, the testimony just isn’t there to support that argument. The officer testified that he was looking for raw marijuana and that the envelopes exhibited no signs of criminality.
I was surprised by the amount of questions the court had for Mr. Vega’s attorney and this made me question which way the court was leaning. Chief Justice O’Connor’s question about if just because the envelopes don’t smell, does that mean they can’t contain marijuana really gave me pause. Nonetheless, I don’t think the State put on a very strong argument and I predict that the court will affirm the lower court decisions and hold in favor of Mr. Vega.