State v. Hubbard

S
[Cite as State v. Hubbard, 

2021-Ohio-1740

.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28941
                                                    :
 v.                                                 :   Trial Court Case No. 2020-CR-1246
                                                    :
 ARENZA DOUGLAS HUBBARD                             :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                             Rendered on the 21st day of May, 2021.

                                               ...........

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road,
Fairborn, Ohio 45324
      Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.
                                                                                           -2-


       {¶ 1} Defendant-appellant Arenza Douglas Hubbard appeals from his convictions

for possession of a fentanyl-related compound, trafficking in fentanyl, trafficking in heroin,

and possession of heroin. Hubbard filed a timely notice of appeal on October 20, 2020.

       {¶ 2} The incident which formed the basis of the charges occurred around 11:30

p.m. on April 27, 2020, when Miami Township Police Sergeant Raymond Swallen was

conducting routine road patrol on southbound I-75. Swallen testified that he was driving

a marked police cruiser and was wearing the uniform of the day. Sergeant testified that

he had been in law enforcement for approximately 15 years, and he had special training

and experience with drug investigations. Specifically, Swallen testified that he had been

part of the Miami Valley Bulk Smuggling Task Force for five years, where he solely

performed drug interdictions and drug investigations.

       {¶ 3}   While watching traffic on southbound I-75, Sergeant Swallen observed a

maroon Chevy Cruze with Michigan plates pass by him.              Swallen testified that he

immediately noticed that the front windows of the vehicle were heavily tinted from top to

bottom. Swallen testified that because of the heavy tint, he could not see into the vehicle

with his headlights shining forward. Based upon his observation regarding the heavy

tint, Swallen pulled onto southbound I-75 and began following the vehicle.

       {¶ 4} While following the Chevy Cruze, Sergeant Swallen observed that the vehicle

was traveling at a high rate of speed and moving faster than the other vehicles on the

roadway. Swallen testified that he was travelling at approximately 80 miles per hour and

still had some difficultly catching up with the target vehicle. Swallen testified that the

posted speed limit on the section of the interstate that they were traveling was 65 miles

per hour.
                                                                                             -3-


       {¶ 5} Sergeant Swallen followed the vehicle for a short period of time in order to

“pace” the vehicle. Swallen defined “pacing” as the process by which he matched the

speed of a subject vehicle with the speed of his cruiser for a certain distance without

closing the gap between the two vehicles. Swallen testified that he had received specific

training in pacing vehicles when he was in the police academy. By pacing the subject

vehicle for a short time, Swallen observed that the Cruze was traveling at a speed of 75

miles per hour for an extended period of time.

       {¶ 6} After observing both the window tint violation and the speeding, which were

citable offenses, Sergeant Swallen activated his overhead lights and initiated a traffic stop

of the vehicle. The vehicle stopped on the right shoulder of the interstate, and Swallen

exited his cruiser and approached the vehicle. Swallen testified that he could not discern

how many people were inside the vehicle until he approached the front driver’s side

window, which had been rolled down. Swallen testified that there were three individuals

in the vehicle; Hubbard was later identified as the individual sitting in the rear driver’s-side

seat in the vehicle. Swallen also testified that, upon approaching the open driver’s-side

window, he immediately detected the scent of raw and burnt marijuana.                  Swallen

observed a green leafy substance on Hubbard’s lap, on the front and back floorboards of

the vehicle, and on the center console.            Based upon his experience with drug

interdictions and investigations, Swallen believed that there was additional contraband in

the vehicle.

       {¶ 7} After speaking with the driver and getting her information, Sergeant Swallen

returned to his cruiser and requested another unit for assistance, as he was working by

himself. Shortly thereafter, Miami Township Police Officer Cory Caldwell arrived at the
                                                                                           -4-


scene to assist with the traffic stop. After obtaining all of the passengers’ information,

Swallen ran it through the LEADS database in his cruiser’s computer. Swallen testified

that he ran the information through LEADS in both Ohio and Michigan because the

vehicle’s passengers were from Michigan, and sometimes different results could occur.

       {¶ 8} Upon running the driver’s information, Sergeant Swallen found that she had

a protection order against her. Swallen then returned to the subject vehicle and asked

the driver to exit the vehicle. The driver complied and informed Swallen that she had a

carrying a concealed weapon (“CCW”) permit and that there was a firearm in the vehicle.

The driver also informed Swallen that there was marijuana inside the vehicle that they

brought to Ohio from Michigan. Swallen testified that, under Ohio law, if the driver of a

vehicle has a CCW permit, he or she is required to immediately inform the officer of that

fact and of whether the individual has a firearm.

       {¶ 9} Sergeant Swallen testified that he then ordered everyone out of the vehicle

for the following reasons: 1) the driver indicated that there was a firearm in the vehicle but

did not inform the officer where the gun was located; 2) the odor of raw and burnt

marijuana emanating from the vehicle; 3) the observation of marijuana inside the vehicle;

and 4) the driver’s informing Swallen that there was marijuana inside the vehicle that had

been transported from Michigan to Ohio. Swallen testified that he then patted Hubbard

down for safety because he had been informed that there was a firearm in the vehicle,

but he did not know where it was. During the pat down of Hubbard, Swallen located a

pill bottle containing marijuana in his pocket. After searching the vehicle, including the

trunk, the officers located a loaded firearm and illegal contraband. Hubbard was arrested

and taken into custody.
                                                                                           -5-


       {¶ 10} On May 7, 2020, Hubbard was indicted for the following offenses: Count I,

possession of a fentanyl-related compound (≥20 grams but  50 grams); Count II, one

count of trafficking in fentanyl (≥20 grams but  50 grams); Count III, trafficking in heroin

(≥10 grams but  50 grams); Count IV, possession of heroin (≥10 grams but  50 grams);

and Count V, possession of drugs (lorazepam). At his arraignment on May 13, 2020,

Hubbard stood mute, and the trial court entered pleas of not guilty on his behalf.

       {¶ 11} On May 27, 2020, Hubbard filed a three-branch motion to suppress: he

argued that the initial stop was illegal, that the officers had no basis upon which to conduct

a warrantless search of the vehicle, and that any statements made by Hubbard to the

officers before he was Mirandized should be suppressed. A hearing was held on the

motion to suppress on July 30, 2020. On September 9, 2020, the trial court overruled

Hubbard’s motion to suppress as it related to the legality of the initial stop and the

warrantless search of the vehicle, but sustained his motion to suppress with respect to

any statements he made to officers prior to being Mirandized.

       {¶ 12} On September 9, 2020, Hubbard pled no contest to Counts I through IV in

exchange for dismissal of Count V. At the sentencing hearing on September 23, 2020,

the trial court merged Counts I through IV, and the State elected to proceed to sentencing

on Count I, possession of a fentanyl-related compound, a felony of the first degree. The

trial court found Hubbard guilty and sentenced him to a mandatory minimum term four

years and a maximum term of six years in prison, ordered him to pay court costs, and

waived the mandatory fine.

       {¶ 13} It is from this judgment that Hubbard now appeals.

       {¶ 14} Hubbard’s first assignment of error is as follows:
                                                                                            -6-


       THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO

       SUPPRESS.

       {¶ 15} Hubbard contends that the trial court erred when it overruled the portions of

his motion to suppress wherein he argued that Sergeant Swallen had not had a

reasonable articulable suspicion to initiate a traffic stop and that the officers had no basis

upon which to conduct a warrantless search of the vehicle.

       {¶ 16} In regard to a motion to suppress, “the trial court assumes the role of trier

of fac[t] and is in the best position to resolve questions of fact and evaluate the credibility

of witnesses.” State v. Hopfer, 

112 Ohio App.3d 521

, 548, 679 N.E .2d 321 (2d Dist.1996),

quoting State v. Venham, 

96 Ohio App.3d 649

, 653, 

645 N.E.2d 831

 (4th Dist.1994). The

court of appeals must accept the trial court's findings of fact if they are supported by

competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No.

20662, 

2005-Ohio-3733

, citing State v. Retherford, 

93 Ohio App.3d 586

, 

639 N.E.2d 498

(2d Dist.1994). Accepting those facts as true, the appellate court must then determine,

as a matter of law and without deference to the trial court's legal conclusion, whether the

applicable legal standard is satisfied. 

Id.

                                        Initial Traffic Stop

       {¶ 17} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. Terry v. Ohio, 

392 U.S. 1

, 

88 S.Ct. 1868

, 

20 L.Ed.2d 889

 (1968). A traffic stop

by a law-enforcement officer must comply with the Fourth Amendment's reasonableness

requirement. Whren v. United States, 

517 U.S. 806

, 

116 S.Ct. 1769

, 

135 L.Ed.2d 89

(1996). Under Terry, police officers may briefly stop and/or temporarily detain individuals
                                                                                            -7-


in order to investigate possible criminal activity if the officers have a reasonable,

articulable suspicion that criminal activity may be afoot, including a minor traffic violation.

State v. Martin, 2d Dist. Montgomery No. 20270, 

2004-Ohio-2738

, ¶ 10, citing Terry; State

v. Mays, 

119 Ohio St.3d 406

, 

2008-Ohio-4539

, 

894 N.E.2d 1204

, ¶ 7-8. The existence

of reasonable suspicion is determined by evaluating the totality of the circumstances,

considering those circumstances “through the eyes of the reasonable and prudent police

officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist.

Montgomery No. 19323, 

2003-Ohio-1047

, ¶ 14, quoting State v. Andrews, 

57 Ohio St.3d

86

, 87-88, 

565 N.E.2d 1271

 (1991).

       {¶ 18} “ ‘Reasonable, articulable suspicion’ is a ‘less demanding standard than

probable cause and requires a showing considerably less than preponderance of the

evidence.’ ” State v. Fears, 8th Dist. Cuyahoga No. 94997, 

2011-Ohio-930

, ¶ 5, citing

Illinois v. Wardlow, 

528 U.S. 119

, 123, 

120 S.Ct. 673

, 

145 L.Ed.2d 570

 (2000); State v.

Scott, 2d Dist. Clark No. 2013-CA-104, 

2014-Ohio-4963

, ¶ 12. Finally, any violation of

traffic law provides the reasonable suspicion required to make an investigatory stop. See

Whren; State v. Wilhelm, 

81 Ohio St.3d 444

, 

692 N.E.2d 181

 (1998); Dayton v. Erickson,

76 Ohio St.3d 3

, 

665 N.E.2d 1091

 (1996) (holding that when a law enforcement officer

has an articulable and reasonable suspicion or probable cause to stop a driver for any

criminal violation, including a minor traffic violation, the stop is constitutionally valid

regardless of the officers' subjective motivation for stopping the driver).

                                  Window Tint Violation

       {¶ 19} Here, Hubbard argues that the trial court erred when it found that the traffic

stop was proper because Sergeant Swallen observed a window tint violation.
                                                                                            -8-


Specifically, Hubbard claims that Swallen could not have seen the window tint because

the subject vehicle was traveling at a high rate of speed past the officer. Hubbard also

argues that there was insufficient evidence to find a reasonable articulable suspicion of a

window tint violation, because there was no testimony that the window tint was tested by

anyone in order to establish that the tint was in violation of Michigan and/or Ohio law.

       {¶ 20} As previously stated, Sergeant Swallen testified that when he first observed

the subject vehicle as it passed his position on southbound I-75, he had a reasonable

suspicion that, based upon his 15 years of law enforcement experience, the vehicle’s

darkly tinted windows violated legal window tint limits.

       {¶ 21} We have repeatedly held that a traffic stop for a suspected window-tint

violation is lawful. See, e.g., State v. Cole, 2d Dist. Montgomery No. 26576, 2015-Ohio-

5295, ¶ 16; State v. Carson, 2d Dist. Montgomery No. 26505, 

2015-Ohio-4110

, ¶ 26;

State v. Dudley, 2d Dist. Montgomery No. 24904, 

2012-Ohio-960

, ¶ 8, citing State v.

Taylor, 

114 Ohio App.3d 416

, 

683 N.E.2d 367

 (2d Dist.1996). The Ohio Supreme Court

has also held that, whether pretextual or not, a traffic violation, including a tint violation,

gives an officer a reasonable, articulable suspicion justifying a traffic stop. See Mays at

¶ 20. Ohio law requires that, where windows are tinted, 70% of light pass through a

windshield and 50% of light pass through the front side windows. Ohio Adm. Code 4501-

41-03(A)(2)-(A)(3); State v. Davenport, 

2017-Ohio-688

, 

85 N.E.3d 443

, ¶ 18 (2d Dist.).

       {¶ 22} As previously stated, Sergeant Swallen testified that, upon initially

observing the subject vehicle, he immediately noticed that the front windows of the vehicle

were heavily tinted from top to bottom. Swallen testified that, because of the heavy tint,

he could not see into the vehicle with his headlights shining forward; he could not discern
                                                                                        -9-


how many people were in the vehicle. In Taylor, we concluded that an officer's testimony

that window tinting appeared “exceptionally dark” such that he could not see into the

vehicle even with the police cruiser’s headlights shining directly on the vehicle provided

reasonable articulable suspicion to conduct a traffic stop. “We agree that this could have

reasonably caused [the officer] to suspect that [the defendant]'s vehicle was unsafe and

in violation of R.C. 4513.02. This supports the trial court's conclusion that the vehicle

was lawfully stopped. Therefore, we find that the initial stop of [the defendant]'s car was

reasonable, and did not violate his Fourth Amendment rights.” 

Id. at 421

.

       {¶ 23} In light of the foregoing, we find that the trial court did not err when it

concluded that Sergeant Swallen had had a reasonable articulable suspicion to stop the

subject vehicle based upon his belief that he observed a window tint violation.

                                   Speeding Violation

       {¶ 24} Hubbard also argues that Sergeant Swallen had no basis for stopping the

vehicle for a speeding violation because the officer’s training in “pacing” a vehicle

occurred approximately 15 years earlier, when Swallen was in the police academy. In

support of his argument, Hubbard cites State v. Woods, 8th Dist. Cuyahoga No. 98054,

2012-Ohio-5509

, ¶ 21. Additionally, Hubbard argues that Swallen was not aware of any

calibrations done to his cruiser’s speedometer or calibrations to his onboard GPS system.

Hubbard also argues that Swallen was unaware of how often his cruiser’s speedometer

was calibrated and did not take into account the curvature of the interstate in determining

speed.

       {¶ 25} This court has upheld the use of pacing as a method of determining speed.

See, e.g., State v. Starks, 2d Dist. Montgomery No. 26932, 

2016-Ohio-5872

, ¶ 19; State
                                                                                          -10-


v. Collins, 2d Dist. Clark No. 2002-CA-51, 

2002-Ohio-6858

, ¶ 14.            Other appellate

districts have also upheld this method. See, e.g., City of Cleveland v. Bates, 8th Dist.

Cuyahoga No. 90212, 

2008-Ohio-3679

; State v. Horn, 7th Dist. Belmont No. 04 BE 31,

2005-Ohio-2930

.

       {¶ 26} In Woods, there was no evidence that the pacing officer was trained in

visually estimating speed. 

Id. at ¶ 21

. Thus, the appellate court affirmed the trial court's

finding that there was no basis for admitting a visual estimation of the defendant's speed.

Id.

 The appellate court further noted that it would not substitute its judgment for that of

the trial court, which found that the officer had not traveled far enough to pace the vehicle.

Id.

 In Woods, the trial court found that the officer had used neither sufficient time nor

distance to establish the speed of the defendant's vehicle by pacing, and the appellate

court agreed.

       {¶ 27} Unlike the officer in Woods, however, Sergeant Swallen testified that he had

received training in pacing when he was at the police academy, and the trial court found

his testimony to be credible regarding his training and experience in that regard.

Specifically, Swallen observed that the subject vehicle was traveling at a high rate of

speed and moving faster than the other vehicles on the roadway. Swallen testified that

he was travelling at approximately 80 miles per hour and still had some difficultly catching

up with the subject vehicle, in an area where the posted speed limit was 65 miles per

hour. Thereafter, Swallen followed the vehicle in order to pace it, and he observed that

the vehicle was traveling at a speed of 75 miles per hour for an extended period of time

in a 65 mile-per-hour zone.

       {¶ 28} In order to determine the speed he was traveling and to pace the subject
                                                                                         -11-


vehicle, Sergeant Swallen observed the speed on his speedometer, which was a certified

speedometer for a police interceptor cruiser.         Swallen testified that his cruiser’s

speedometer was calibrated. Furthermore, Swallen testified that he was experienced in

the use of the GPS system on his cruiser camera system, which also calculated the

cruiser’s speed and displayed it on the cruiser video. Swallen testified that the GPS

system monitored the speed of the cruiser and calculated how fast the cruiser was moving

based upon the time it took to travel a particular distance. Although Swallen testified that

he did not personally calibrate the cruiser’s in-camera GPS speedometer, he did observe

the GPS’s recorded speeds on a daily basis and stated that they were consistent with his

cruiser’s speedometer. Swallen testified that on the date that he initiated a stop of the

subject vehicle, the GPS speedometer was consistent with his cruiser’s speedometer.

Furthermore, Swallen testified that, while he was pacing the subject vehicle, they were

traveling on a straight section of the interstate and not on a curve.

       {¶ 29} Additionally, we find that no expert testimony was necessary to establish

that Sergeant Swallen’s cruiser’s speedometer and the GPS speedometer were properly

calibrated and providing accurate readings. See City of East Cleveland v. Ferrell, 

168

Ohio St. 298

, 303, 

154 N.E.2d 630

 (1958). It is well established that “readings of a radar

speed meter may be accepted in evidence, just as we accept photographs, X rays,

electroencephalographs, speedometer readings, and the like, without the necessity of

offering expert testimony as to the scientific principles underlying them.” (Emphasis

added.) 

Id.

       {¶ 30} As previously stated, Sergeant Swallen was trained in pacing vehicles while

he was in the police academy, and he had also received LIDAR training only a year prior
                                                                                         -12-


to this top, wherein he was trained to match speeds with the radar and the speedometers

of the vehicles.   Swallen testified that, since his original training in pacing, he had

personally conducted “hundreds” of investigations and traffic stops involving pacing a

subject vehicle in order to determine its speed. Therefore, we find that the trial court did

not err when it concluded that Swallen had a reasonable articulable suspicion to stop the

subject vehicle based upon his belief that he observed it speeding.

                          Warrantless Search of the Vehicle

       {¶ 31} Under the automobile exception, police may conduct a warrantless search

of a vehicle if there is probable cause to believe that the vehicle contains contraband and

exigent circumstances necessitate a search or seizure. State v. Mills, 

62 Ohio St.3d 357

,

367, 

582 N.E.2d 972

 (1992); Chambers v. Maroney, 

399 U.S. 42

, 48, 

90 S.Ct. 1975

, 

26

L.Ed.2d 419

 (1970). A vehicle's mobility is the traditional exigency for this exception to

the warrant requirement, and no other exigency is required. Mills at 367; Maryland v.

Dyson, 

527 U.S. 465

, 467, 

119 S.Ct. 2013

, 

144 L.Ed.2d 442

 (1999); California v. Carney,

471 U.S. 386

, 393, 

105 S.Ct. 2066

, 

85 L.Ed.2d 406

 (1985). “If a car is readily mobile

and probable cause exists to believe it contains contraband, the Fourth Amendment * * *

permits police to search the vehicle without more.” Pennsylvania v. Labron, 

518 U.S. 938

,

940, 

116 S.Ct. 2485

, 

135 L.Ed.2d 1031

 (1996).            Probable cause exists when a

reasonably prudent person would believe that a place to be searched contains evidence

of a crime. Beck v. Ohio, 

379 U.S. 89

, 

85 S.Ct. 223

, 

13 L.Ed.2d 142

 (1964). We have

held that probable cause is “not whether it is reasonable to believe items to be seized

might be found in the place to be searched,” but instead whether the evidence provides

reasonable cause to believe the items would likely be found in the place to be searched.
                                                                                         -13-


State v. Cole, 2d Dist. Montgomery No. 23058, 

2009-Ohio-6131

, ¶ 23.

      {¶ 32} Once an officer sees contraband in plain view inside a vehicle, he or she

then has probable cause to believe the vehicle contains other items of contraband and

may conduct a warrantless search of the vehicle pursuant to the automobile exception to

the search warrant requirement. State v. Thompson, 2d Dist. Montgomery No. 25658,

2013-Ohio-4825

, ¶ 13, citing State v. Pounds, 2d Dist. Montgomery No. 21257, 2006-

Ohio-3040, ¶ 21. “Under the automobile exception, police may warrantlessly search a

vehicle that they have probable cause to believe contains contraband.” 

Id.,

 citing State v.

Moore, 

90 Ohio St.3d 47

, 51, 

734 N.E.2d 804

 (2000). “The scope of the search extends

to anywhere in the vehicle that contraband might be hidden.” 

Id.,

 citing United States v.

Ross, 

456 U.S. 798

, 825, 

102 S.Ct. 2157

, 

72 L.Ed.2d 572

 (1982).

      {¶ 33} Hubbard relies upon State v. Farris, 

109 Ohio St.3d 519

, 

2006-Ohio-3255

,

849 N.E.2d 955

, to argue that the search of his trunk was unlawful; in that case, the Ohio

Supreme Court wrote that the trunk and the passenger compartment of an automobile

were subject to different standards of probable cause to conduct searches. Hubbard's

reliance upon Farris is misplaced because that case is factually distinguishable.

      {¶ 34} In Farris, following a traffic stop, an officer detected a “light odor” of burnt

marijuana coming from the vehicle's passenger compartment. The officer subsequently

searched the vehicle's trunk, where drugs were discovered and seized.             The Ohio

Supreme Court held as follows:

             A trunk and a passenger compartment of an automobile are subject

      to different standards of probable cause to conduct searches. In State v.

      Murrell, 

94 Ohio St.3d 489

, 

764 N.E.2d 986

 (2002), syllabus, this court held
                                                                                       -14-


       that “[w]hen a police officer has made a lawful custodial arrest of the

       occupant of an automobile, the officer may, as a contemporaneous incident

       of that arrest, search the passenger compartment of that automobile.”

       (Emphasis added.) The court was conspicuous in limiting the search to the

       passenger compartment.

              The odor of burnt marijuana in the passenger compartment of a

       vehicle does not, standing alone, establish probable cause for a warrantless

       search of the trunk of the vehicle. United States v. Nielsen, 

9 F.3d 1487

       (C.A.10, 1993). No other factors justifying a search beyond the passenger

       compartment were present in this case. The officer detected only a light

       odor of marijuana, and the troopers found no other contraband within the

       passenger compartment.         The troopers thus lacked probable cause to

       search the trunk of Farris's vehicle. Therefore, the automobile exception

       does not apply in this case.

Id. at ¶ 51-52

.

       {¶ 35} The Fourth Amendment limits searches to places where evidence of

criminal activity is likely to be found. State v. Griffith, 2d Dist. Montgomery No. 24275,

2011-Ohio-4476

, ¶ 21. Farris stands for the proposition that the odor of burnt marijuana

in a vehicle's passenger compartment, standing alone, does not present a likelihood that

the vehicle's trunk contains marijuana. In the instant case, Sergeant Swallen testified

that, upon approaching the open driver’s side window, he immediately detected the scent

of raw and burnt marijuana. Swallen observed a green leafy substance on Hubbard’s

lap, on the front and back floorboards of the vehicle, and on the center console. Based
                                                                                        -15-


upon his experience with drug interdictions and investigations, Swallen believed that there

was additional contraband in the vehicle.

      {¶ 36} Additionally, the driver of the vehicle failed to immediately inform Sergeant

Swallen that she possessed a CCW permit and that there was a loaded firearm in the

subject vehicle.   Only after Sergeant Swallen input her information into the LEADS

system and returned to the vehicle did she inform him that she had a CCW permit and

that there was a firearm in the vehicle. The loaded firearm was later found during a

search of the vehicle on the floorboard of the front passenger seat.

      {¶ 37} R.C. 2923.126(A) states in pertinent part:

      * * * If a licensee is the driver or an occupant of a motor vehicle that is

      stopped as the result of a traffic stop or a stop for another law enforcement

      purpose and if the licensee is transporting or has a loaded handgun in the

      motor vehicle at that time, the licensee shall promptly inform any law

      enforcement officer who approaches the vehicle while stopped that the

      licensee has been issued a concealed handgun license and that the

      licensee currently possesses or has a loaded handgun * * *.

      {¶ 38} We also note that once all of the passengers were removed from the vehicle

and patted down, the driver was found to have $1,000 in cash on her person, the front

seat passenger was found to have $1,000 cash on his person, and Hubbard was found

to have marijuana in a pill bottle in his pocket. Based upon all of this information and

evidence, Sergeant Swallen searched the trunk of the vehicle, where he found Hubbard’s

backpack containing additional contraband. “The police may search an automobile and

the containers within it [without a warrant] where they have probable cause to believe
                                                                                          -16-


contraband or evidence is contained.” California v. Acevedo, 

500 U.S. 565

, 580, 

111 S.Ct.

1982

, 

114 L.Ed.2d 619

, 634 (1991).

       {¶ 39} Unlike in Farris, Sergeant Swallen did not rely on the odor of bunt marijuana

emanating from the vehicle's passenger compartment, standing alone, to justify the

search of the vehicle's trunk. Rather, Swallen relied upon the following factors in addition

to the smell of marijuana coming from the vehicle in order to justify his search of the trunk:

1) the presence of raw marijuana in Hubbard’s lap, 2) the driver’s failure to immediately

inform him that she had a CCW permit and a loaded firearm in the vehicle, 3) the

discovery of large amounts of money in the possession of the driver and front seat

passenger; and 4) the driver informed Swallen that there was marijuana inside the vehicle

that they had transported from Michigan to Ohio. See, e.g., State v. Greenwood, 2d Dist.

Montgomery No. 19820, 

2004-Ohio-2737

, ¶ 11 (holding that an officer's observation of

marijuana on a vehicle's passenger seat and floorboard provided probable cause to

search the entire vehicle, including the trunk and its contents); State v. Price, 2013-Ohio-

130, 

986 N.E.2d 553

, ¶ 19 (6th Dist.) (finding that other evidence, in addition to the odor

of burnt marijuana, established probable cause to allow the officer to search the entire

vehicle, including the trunk). The trial court reasonably concluded that Swallen had

probable cause to open the backpack found in the trunk of the vehicle as an officer

conducting a warrantless search with probable cause may “search every part of the

vehicle and its contents, including all movable containers and packages, that may

logically conceal the object of the search.” State v. Welch, 

18 Ohio St.3d 88

, 

480 N.E.2d

384

 (1995), syllabus.

       {¶ 40} Hubbard’s first assignment of error is overruled.
                                                                                       -17-


      {¶ 41} Hubbard’s second assignment of error is as follows:

      APPELLANT       RECEIVED      INEFFECTIVE       ASSISTANCE       OF TRIAL

      COUNSEL.

      {¶ 42} In his second assignment, Hubbard argues that he received ineffective

assistance of counsel when his trial attorney failed to specifically challenge the

warrantless search of the trunk of the vehicle in a memorandum filed after the suppression

hearing.

             We review the alleged instances of ineffective assistance of trial

      counsel under the two prong analysis set forth in Strickland v. Washington,

      

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

 (1984), and adopted by the

      Supreme Court of Ohio in State v. Bradley (1989), 

42 Ohio St.3d 136

, 

538

N.E.2d 373

. Pursuant to those cases, trial counsel is entitled to a strong

      presumption that his or her conduct falls within the wide range of reasonable

      assistance. Strickland, 

466 U.S. at 688

. To reverse a conviction based on

      ineffective assistance of counsel, it must be demonstrated that trial

      counsel's conduct fell below an objective standard of reasonableness and

      that his errors were serious enough to create a reasonable probability that,

      but for the errors, the result of the trial would have been different. 

Id.

      Hindsight is not permitted to distort the assessment of what was reasonable

      in light of counsel's perspective at the time, and a debatable decision

      concerning trial strategy cannot form the basis of a finding of ineffective

      assistance of counsel. State v. Cook, 

65 Ohio St.3d 516

, 

605 N.E.2d 70

      (1992).
                                                                                          -18-


State v. Mitchell, 2d Dist. Montgomery No. 21957, 

2008-Ohio-493

, ¶ 31.

       {¶ 43} A defendant is not deprived of effective assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown,

38 Ohio St.3d 305

, 319, 

528 N.E.2d 523

 (1988). The test for a claim of ineffective

assistance of counsel is not whether counsel pursued every possible defense; the test is

whether the defense chosen was objectively reasonable. State v. Conley, 2015-Ohio-

2553, 

43 N.E.3d 775

, ¶ 56 (2d Dist.), citing Strickland.       A reviewing court may not

second-guess decisions of counsel which can be considered matters of trial strategy.

State v. Smith, 

17 Ohio St.3d 98

, 

477 N.E.2d 1128

 (1985). Debatable strategic and

tactical decisions may not form the basis of a claim of ineffective assistance of counsel,

even if, in hindsight, it looks as if a better strategy had been available. State v. Cook, 

65

Ohio St.3d 516

, 524, 

605 N.E.2d 70

 (1992).

       {¶ 44} Here, Hubbard argues that his counsel was ineffective for failing to

specifically challenge the warrantless search of the trunk of the subject vehicle in a

memorandum filed after the motion to suppress hearing. Given our analysis with respect

to Hubbard’s first assignment regarding the propriety of Sergeant Swallen’s warrantless

search of the trunk of the subject vehicle, the decision of defense counsel not to challenge

the search in a post-hearing memorandum may be viewed as a tactical decision which

did not impact the outcome. No prejudice is established. Accordingly, we conclude that

defense counsel’s decision not to pursue this argument any further did not constitute

ineffective assistance of counsel.

       {¶ 45} Hubbard’s second assignment of error is overruled.

       {¶ 46} Both of Hubbard’s assignments of error having been overruled, the
                                                      -19-


judgment of the trial court is affirmed.

                                      .............



TUCKER, P.J. and EPLEY, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Heather N. Ketter
David R. Miles
Hon. Dennis J. Adkins

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