{"id":3940,"date":"2010-12-29T08:56:49","date_gmt":"2010-03-11T09:05:22","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-03-11T09:13:10","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3940","title":{"rendered":"OH2: Men on street around smell of burning marijuana could not be searched without more"},"content":{"rendered":"

One police officer told another that four men were smoking marijuana at a bus stop. Another officer went to the bus stop and smelled marijuana. It could not be pinpointed to a particular man. This was less like Pringle<\/a> and more like Ybarra<\/a>, and searching the defendant was without probable cause. State v. Johnson<\/a>, 2010 Ohio 840, 186 Ohio App. 3d 648, 929 N.E.2d 1094 (2d Dist. 2010):<\/p>\n

[*P25] Defendant’s presence at the location where the odor of marijuana was in the air implicated him in the suspected crime, if only by complicity, on the view that smoking marijuana is an act which is visibly criminal. However, and unlike the three men in Pringle who were each implicated directly in possession of drugs that police saw in their car, Defendant’s complicity did not create an implication that he actually possessed drugs. Also unlike the men in Pringle who shared the same car, Defendant and the other men who were standing at the public bus stop at Fourth and Main Streets in downtown Dayton were not engaged in conduct from which a common enterprise is reasonably inferred. Finally, and unlike in Moore, where the defendant was in a car that smelled of marijuana and smelled of marijuana himself, Defendant and the other men were in a public space. A strong odor of marijuana was in the open air, but that fact did not create probable cause to believe that Defendant was in possession of marijuana, absent some additional indication which the trial court found was lacking. Defendant’s situation was more akin to that of the bar patrons in Ybarra, in which the Supreme Court held that mere propinquity to a crime is insufficient to create probable cause to believe the accused engaged in it. Therefore, probable cause to search Defendant’s person for the drugs that he moved to suppress was lacking, and the trial court erred when it denied Defendant’s motion to suppress the evidence that was seized from his person. Terry.\n<\/p><\/blockquote>\n

Defendant\u2019s car was stopped for a traffic violation, and he was shoving something in his pants. The officer had him get out of the car, and a bag of marijuana fell out. The stop and removal from the car were legal. State v. Courtney<\/a>, 2010 Ohio 774, 2010 Ohio App. LEXIS 630 (8th Dist. March 4, 2010).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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