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Are You Smelling What I’m Smelling? First District Court of Appeals Addresses Odor of Marijuana in Traffic Stop

The 1st District Court of Appeals recently upheld a trial court’s grant of a motion to suppress.  In State v. Whitfield, police initiated a traffic stop for excessive window tinting. Officers Cuiranek and Wells stood next to the car and spoke with the occupants. Cuiranek, who stood on the driver’s side, testified at the suppression hearing that “He had smelled a weird scent coming from the car, but he was not 100 percent sure if it was marijuana, so he called a K9 team to the scene to confirm the presence of marijuana in the car.” Officer Wells, who stood on the passenger side, where the defendant was seated, testified that he smelled marijuana coming from the car.  

When the K9 officer arrived, he approached the car on the driver’s side, and ordered the occupants out of the car. That officer testified that he smelled no odor of marijuana. Officer Wells then performed a frisk search of the defendant, during which he smelled “a little something.” Wells felt a hard lump in the defendant’s pants pocket, which he believed to be marijuana. The officers then put the defendant in handcuffs, and removed the object from his pocket, which turned out to be a baggie with cocaine and a scale. The officers asked him if there was any marijuana in the car. He admitted that there was a bag of marijuana under the seat, and the officers retrieved the marijuana.

The trial court granted the defendant’s motion to suppress, finding that there was no indication that he was engaged in any illegal activity, that there “was no identifiable odor of marijuana coming from the car,” and that therefore the police lacked reasonable suspicion to conduct the frisk search. The state appealed.

Ohio courts have consistently held that an odor of marijuana, detected by a police officer who recognizes the smell from his experience and training, is probable cause to conduct a search. Courts are generally willing to accept an officer’s testimony on this matter as true, and, because of the ephemeral nature of smell, there is often little a defendant can do to challenge this testimony. In this case, however, because three officers gave three differing accounts off what smell, if any, was detectable from the car, the Court of Appeals upheld the trial court’s decision to grant the motion to suppress.

Importantly, this decision was couched in deference to the trial court’s findings. The Court of Appeals noted that “We must accept the trial court’s findings of fact if they are supported by competent and credible evidence,” and held that the evidence did support the trial court’s determination that there was no identifiable odor of marijuana. Under this holding, a trial court facing similar facts could reach a different result and survive appellate scrutiny. A court could choose to credit an officer’s testimony that he smelled marijuana, even where a second officer testified to the contrary. A reviewing court could then determine that competent credible evidence supported the finding that there was an odor of marijuana. Still, Whitfield represents a valuable effort to draw the line somewhere on when to credit an officer’s testimony about odor of marijuana.  

Read the opinion here.

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State v. Jeffries – 6th Circuit Finds No Proximate Cause Requirement for Controlled Substance Act Sentence Enhancement

In United States v. Jeffries, the 6th Circuit Court of Appeals
confronted the issue of whether a sentence enhancement for selling drugs that cause the death of the user requires proof that the drugs were the proximate cause of death.

Appellant Jeffries had sold fentanyl to a woman who overdosed and died. At trial, medical experts for the Government testified that the amount of fentanyl in her system was “significantly above the lethal level,” and that no other “anatomical issues” could have caused her death. Jeffries was charged with distributing a Schedule II substance under 21 U.S.C. § 841(a)(1), a part of the Controlled Substance Act. Based on the amount of drugs Jeffries sold, 21 U.S.C § (b)(1)(C) set his maximum penalty at twenty years. However, if death or injury results from the use of the drugs sold by the defendant, the maximum penalty becomes life imprisonment.

Because the “death results” enhancement increases the maximum penalty for the offense, the 6th Amendment right to a jury applies to this issue under Apprendi v. New Jersey. The Supreme Court had previously applied Apprendi to § 841’s “death results” enhancement in Burrage v. US, in which it held that the enhancement requires proof that the drugs were the but-for cause of death. In that case, the Court reversed the defendant’s conviction, where the evidence at trial showed that the victim had ingested several drugs at once, and it could not be determined that the heroin sold by the defendant would have caused death by itself. The Court left open the question of whether the enhancement also requires proof of proximate cause.

In Jeffries, the District Court for the Northern District of Ohio
rejected the defendant’s request for a jury instruction requiring the state to
prove that the drugs were the proximate cause of death. The defendant was convicted, and subsequently filed a motion for a new trial. The District Court held that it had erred in denying the defendant’s request for a jury instruction, and granted the motion for a new trial on that basis. The
government appealed.

The Court of Appeals reversed, holding that the sentencing enhancement only requires proof of but-for cause. The court first noted the ordinary meaning of the statutory language “results from” only implies but-for causation, not proximate cause. The court next explained that the broader statutory context also supported its conclusion, stating that “use of a schedule I or II controlled substance is inherently dangerous. Death to the drug user is therefore always foreseeable when a defendant manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute, or dispense those substances.”

The court therefore held that Congress, by creating the sentencing
enhancement, had abrogated the common law principle that criminal liability requires both proximate and but-for cause. The court also noted that all circuit courts that had addressed the issue reached the same conclusion.

The court distinguished the case from US v. Martinez, in which the
6th circuit held that similar “results from” language in a different statute
required proximate causation. The statute at issue in Martinez was a
sentencing enhancement for health care fraud, which applied where the fraud caused death. The Jeffries court stated that “ in circumstances in
which the potential for injury or death is not an inherently foreseeable result. . . it might make sense to require the government to prove that it was reasonably foreseeable to the defendant that the conduct would be likely to lead to injury or death.” By contrast, since it is “always foreseeable that” the sale of schedule I or II drugs “will involve an ultimate user of the
substance, and that death or injury may result from that use,” and therefore, “it makes sense to require the government to prove only but-for causation in order to apply the enhanced penalty.”

In a dissenting opinion, Judge Bernice Bouie Donald wrote that she would
have affirmed the District Court in requiring the government to prove proximate cause. The dissent found little persuasive value in the out-of-circuit cases which had not found a requirement of proximate cause. The dissent pointed out that the Fourth Circuit had been the first to make this holding in US v. Patterson, and that all other circuit courts that had decided the issue essentially cited to Patterson with little or no analysis.
For that reason, Judge Donald concluded that “although the cases look
impressive as a whole, a cursory inspection of each case reveals that they
stand on uneasy footing, and should not be given the persuasive value proscribed by the majority.”

The dissent also took issue with the majority’s attempt to distinguish the
case from Martinez, pointing out that the court had treated near
identical language as ambiguous in one statute, and unambiguous in another. Judge Donald wrote:

The majority also explicitly argues that it is always reasonably foreseeable
that death will result if someone manufactures, distributes, dispenses, or
possess with intent to do any of those things . . .If that is the case, then
why would the Court not impose a proximate cause requirement for the rare case when it was not foreseeable?”

The dissent placed rightful skepticism in the majority’s assumption that
congress had intended to displace the common law rule requiring both but-for and proximate cause. The fact that death is almost always a foreseeable result of selling drugs is a thin justification for deciding Congress has abrogated the common law in this case, but not in the case of the statute at issue in Martinez. Even accepting the court’s argument, cases where proximate cause is a genuine issue for the jury are not hard to imagine. For example, consider a drug user who drives while intoxicated and dies as the result of an accident. Are the drugs the proximate cause of death? What if the drugged driver instead causes the death of another? While these situations may be outliers, they are not so far-fetched as to make a proximate cause requirement unnecessary. Requiring proof of proximate cause would therefore be more in line with Apprendi and its progeny.

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8th District Issues Reminders on Due Process for Criminal Contempt

The 8th District Court of Appeals issued two decisions recently reminding trial courts about the proper use of the contempt power, and the difference between direct and indirect contempt of court.

Direct contempt occurs in court. Here, the judge has summary power to hold someone in contempt. This unique situation, in which a judge can find someone guilty of a crime and sentence them, without any opportunity to present a defense, is a product of the court’s need to control the courtroom, and promote the orderly administration of justice. The fact that the judge personally witnesses the conduct also lessens the need for an evidentiary hearing.

Indirect contempt punishes conduct outside of court which violates a court order.  With indirect contempt, the defendant is entitled by statute to a hearing, where the State must prove contempt beyond a reasonable doubt. Unlike with direct contempt, the judge has not witnessed the conduct constituting contempt firsthand. Also, the interest in the orderly administration of justice does not apply here, because the contempt does not occur in or near the court. Therefore, the judge’s contempt power must yield to due process rights.

Because the summary contempt power is justified only by the specific concerns present in cases of direct contempt, it must be strictly limited to those cases. The 8th District’s recent opinions both reverse lower courts that exercised summary power in cases of indirect contempt.

In Cleveland v. Robinson, the defendant was found in contempt of court for violating a protection order. The conduct occurred outside of a court. The court scheduled a hearing on the matter. However, at that hearing, when the alleged victim failed to appear, the court found the defendant in contempt, with no evidence having been presented.

The court of appeals reversed. It held that direct contempt did not apply here, and the defendant could only be held in indirect contempt, which requires a hearing. The court stated: “Because the court generally has no personal knowledge of the alleged contemptuous behavior, it must afford the accused procedural safeguards such as a written charge, an adversary hearing, and the opportunity for legal representation.”

In Cleveland v. Goodman, the defendant was held in contempt for his outbursts directed at the court and defense counsel after his sentencing hearing. The court was still on the record, but the defendant had been sentenced, and the hearing was effectively at an end. The judge found him in indirect contempt of court. The court of appeals reversed, holding that the court had not provided him the hearing required under the indirect contempt statute.

Could the judge have avoided the hearing requirement by holding the defendant in direct contempt? After all, this conduct occurred in the courtroom, and in front of the judge. Given that the hearing had ended, however, the defendant’s conduct posed no risk of interfering with court proceedings.

Several Ohio courts have held that even in cases of direct contempt, summary action is not always warranted. These courts, such as the courts of appeals for the Fifth[i]  and Tenth[ii] Districts, hold that the summary contempt power should be reserved for cases of contempt that actually obstruct justice, and require the court to swiftly impose punishment to maintain the order of the courtroom. While the 8th District did not need to reach this issue in Goodman, that defendant’s conduct, which did not result in obstruction of justice, was not the kind that requires summary punishment. Wider adoption of the rule followed by the Fifth and Tenth Districts would ensure that the summary contempt power is confined to the limited circumstances in which it is necessary.

Read the opinions in Robinson and Goodman.


[i] In Re Lodico, 2005-Ohio-172.

[ii] Bank One Trust Co., N.A. v. Scherer,2008-Ohio-2952.