How Possession Of A Minor Misdemeanor Amount Of Marijuana Does Not Lead To Probable Cause To Arrest Or Search An Individual

One of the time honored traditions of being an attorney is waiting your turn to have your case called before the court.  Where an attorney’s name is on the waiting list can determine whether that attorney is looking at a 10 minute hearing or being stuck in the courtroom for hours on end.

During a court appearance the other day, I was about midway down the list for cases being called.  No big deal for me though, especially in the world of smartphones.  I was able to catch up on emails and get a couple games of solitaire in before my case was called.  However, on this particular court appearance, I witnessed something that I thought would not happen.

A defendant was before the court for a probation revocation.  Listening to the court, it was very clear that the court was not happy with the defendant not even doing one thing to satisfy his probation requirements.  The unpleasantness led to the defendant being sentenced to 30 days in the local county jail.  Now this defendant was in his street clothes for this hearing and had not been picked up by police prior to this hearing.  And wouldn’t you know it; the defendant had some marijuana in his pockets.  Given that he was going jail, having illegal contraband on him was a big no-no!

Now in this day and age, a person having small amounts of marijuana on their person is really no big surprise at all.  I am willing to bet that a majority of people you converse with on a daily basis has marijuana on their person or in their vehicle.  Hopefully those individuals would be smart enough to remove the marijuana before entering a courtroom that is protected by law enforcement officers.

The thought or notion of individuals having small amounts of marijuana on their person leads us to State v. Grubbs, 2017-Ohio-41.

In Grubbs, Grubbs was a passenger in a vehicle that was pulled over due to the driver driving while under a license suspension.  After speaking with the driver, the stopping officer initiated a conversation with Grubbs to ascertain his identity.   Grubbs handed the officer his Ohio ID and informed the officer that he was legally blind.

The officer then had Grubbs step out of the vehicle.  Grubbs, by himself, walked to the rear of the passenger side of the truck then turned and took a few steps behind the truck towards the roadway.  The officer stopped Grubbs and guided Grubbs by the arm to the passenger corner of the truck.  It was there that Grubbs began to try to call individuals to come pick him up.  After his phone call, Grubbs just stood in place and waited for his ride.

The officer called for back-up to assist him with the stop.  While waiting for backup to arrive, the officer asked the driver if he could search his person and the driver consented.  The officer found pills and placed the driver under arrest.  When the requested backup officer arrived, the stopping officer moved onto Grubbs.

The officer approached Grubbs and asked Grubbs if he had anything on him that he was not supposed to have.  Grubbs in turn, asked why he was being searched as he did nothing wrong.  The officer responded to Grubbs question by informing Grubbs that he noticed marijuana flakes on his shirt.  Grubbs immediately denied this assertion.

The officer again asked Grubbs, “Do you have anything on you before I search you here?”  Grubbs replied, “Just arrest me, man.  Take my shit, put me in cuffs.”  As you would imagine, Grubbs was handcuffed and searched.  The officer found pill bottles in Grubbs’ pocket.  Grubbs was subsequently indicted on one count of aggravated possession of drugs.  Grubbs filed a motion to suppress the evidence seized in the warrantless search.

At the suppression hearing, both the arresting officer and Grubbs testified.

The officer testified to the following at the suppression hearing:

1)         He could smell marijuana within one foot of Grubbs.

2)        He observed a one-hit pipe by the driver’s right leg, marijuana residue on Grubbs’ shirt and bulges in Grubbs’ pockets which he could see were pill bottles.

3)        He inquired about the contents of Grubbs’ pockets and Grubbs “just said he had all kinds of shit in there.”

4)        After Grubbs got out of the truck, he had to be stopped from walking into the roadway.

5)         After the consent search and arrest of the driver, he searched the truck and found two marijuana roaches in the ashtray.

6)        He placed Grubbs in handcuffs as he believed that he had probable cause to search Grubbs because of the marijuana residue on his shirt.

7)         He was not arresting Grubbs, but handcuffed Grubbs to safely conduct the search.

8)        He had no cause to believe Grubbs was armed or dangerous.

Grubbs testified to the following:

1)         The officer asked what was in his pockets because the officer saw bulges in his pockets.

2)        When he got out of the truck, another officer told one of the officers that he had pills in his pocket and to watch him because he was going to throw them.

3)        He was on the phone to try to arrange for a ride and obtained a ride when the officer told him to get off of the phone.

4)        He did not have a chance to tell the officer that he had a ride.

5)         He was legally blind, but he could see objects and saw cars on the interstate.

6)        He was not going to wander out into the highway.

After hearing all testimony, the trial court granted the motion to suppress.  The trial court found that the officer did not have probable cause to arrest or search Grubbs because the officer did not have grounds to reasonably believe Grubbs possessed more than a minor misdemeanor amount of marijuana.  The court further found Grubbs’ statements to the officer prior to the search did not constitute consent to search Grubbs’ person.  Lastly, the trial court concluded that since the officer did not have a search warrant and none of the warrant exceptions applied, the search violated Grubbs’ Fourth Amendment rights.

The state filed a timely appeal.

Fourth Amendment Warrant Exceptions and Investigative Stop & Frisk

The Fourth Amendment to the U.S. Constitution and the Ohio Constitution, prohibit unreasonable searches and seizures.  State v. Emerson, 2012-Ohio-5047.  While the Fourth Amendment requires a search warrant based upon probable cause, there are specifically established exceptions to the warrant requirement.  Katz v. United States, 389 U.S. 347 (1967).

One exception to the warrant requirement is the investigative stop, which allows a police officer to stop a person if the officer has an objectively reasonable suspicion that criminal behavior has occurred or is imminent.  Terry v. Ohio, 392 U.S. 1 (1968).  The officer may then frisk the person for weapons if the officer has a reasonable suspicion that the person may be armed and dangerous.  Id.

During a traffic stop, an officer may order all occupants to step out of the vehicle pending completion of the traffic stop.  Maryland v. Wilson, 519 U.S. 408 (1997).  When a passenger is cooperative and gives no indication that he is armed or dangerous, an officer may not perform a protective frisk.  State v. Caldwell, 2000 Ohio App. LEXIS 4442 (Sept. 29, 2000).

The appellate court found that the officer had the right to stop the driver’s vehicle and the officer had the authority to order Grubbs out of the passenger seat.  The appellate court noted that Grubbs was cooperative and complied with all of the officer’s commands.  The appellate court further found that there was no evidence indicating that Grubbs had a weapon, that Grubbs was dangerous, and there was not any basis for the officer to believe that Grubbs was armed or dangerous.  The officer’s search of Grubbs was directed at discovering drugs, not weapons.  Thus, the appellate court found that the search cannot be justified under a Terry frisk analysis.

Probable Cause, Exigent Circumstances, and Minor Misdemeanor Searches

Probable cause exists if the facts and circumstances known to a police officer warrant a prudent man in believing the offense has been committed.  Henry v. United States, 361 U.S. 98 (1959).  A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.  Ybarra v. Williams, 444 U.S. 85 (1979).  In order to determine whether a police officer possessed probable cause to conduct a search of an individual, the appellate court reviews the totality of the circumstances known to the officer at the time of the search.  Beck v. Ohio, 379 U.S. 89 (1964).

Another exception to the warrant requirement is exigent circumstances, which generally include the necessity for immediate action to protect or preserve life or protect a governmental interest that outweighs the individual’s constitutionally protected privacy interest.  Mincey v. Arizona, 437 U.S. 385 (1978).  However, no search, even for exigent circumstances, can be conducted without probable cause.  State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49 (1985).  Exigent circumstances do not apply to misdemeanor offenses.  State v. Reining, 2011-Ohio-1545.

Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.  State v. Brown, 2003-Ohio-3931.  A police officer may briefly detain an individual for a minor misdemeanor offense and issue a citation, but the officer may not conduct a custodial arrest or a search of the individual, when none of the exception in R.C. 2935.26.  State v. Bradford, 2014-Ohio-5527.

R.C. 2935.26 provides:

(A)      Notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a citation, unless one of the following applies:

(1)       The offender requires medical care or is unable to provide for his own safety.

(2)       The offender cannot or will not offer satisfactory evidence of his identity.

(3)       The offender refuses to sign the citation.

(4)       The offender has previously been issued a citation for the commission of that misdemeanor and has failed to either appear for trial or plead guilty.

Looking at the evidence, the reason for searching Grubbs was because he had marijuana flakes on his shirt.  The officer testified that he believed that he had probable cause to search Grubbs because he had marijuana residue on his shirt.  No testimony was presented at the hearing that based on the officer’s training or experience prescription pill bottles are used to carry illegal drugs or that pill bottles are indicators of illegal drug possession.

The appellate court found that the officer conducted a search of Grubbs because he had marijuana flakes or residue on his shirt, which is a minor misdemeanor.  Thus, based on the totality of the circumstances, the officer did not have probable cause to search Grubbs.

Looking at R.C. 2935.26, the appellate court found that the only exception that could possibly apply in Grubbs’ case was subsection (A)(1) because Grubbs is legally blind.  However, the state did not argue this point and the evidence did not support such a finding.  Thus, the officer was not justified in searching Grubbs for a minor misdemeanor offense and exigent circumstances search is not justified since that exception does not apply to misdemeanor offenses.


Police may conduct a warrantless search of an individual with the individual’s voluntary consent.  Schneckloth v. Bustamonte, 412 U.S. 218 (1973).  Consent may not be coerced, by explicit or implicit means, by implied threat or covert force.  Id.  For, no matter how subtly the coercion was applied, the resulting consent would be no more than a pretext for the unjustified police intrusion.  Id.  Consent to search which is given following a claim of authority is not freely and voluntarily given, but is merely an acquiescence and an acknowledgment of authority.  Bumper v. North Carolina, 391 U.S. 543 (1968).

In Grubbs’ case, Grubbs challenged the officer’s question of whether he had anything on him that he was not supposed to have, by asking why he was being searched since he had done nothing wrong.  When the officer responded because Grubbs had flakes of marijuana on his shirt, Grubbs denied he did.  The officer then asked Grubbs, “do you have anything on you before I search you here?”  It was only then that appellee replied, “Just arrest me, man.”  “Take my shit, put me in cuffs.”

Based on the totality of the circumstances, the appellate court found that the officer’s questions and statements to Grubbs sent a message that Grubbs had no choice but to comply with the search, as the officer announced he would search Grubbs and acted as if he intended to search regardless of Grubbs’ response.  The officer clearly claimed the right to search without permission.  Further, Grubbs’ statements in response were merely a demonstration of acquiescence and submission to authority after he was told he was going to be searched.  Thus, Grubbs did not voluntarily consent to be searched.

Alright!  Talk about a legal primer for warrantless searches and seizures!  Great case with great analysis!

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