Opinion
23CA8
12-09-2024
STATE OF OHIO, Plaintiff-Appellee, v. ANGELA BOYKINS, Defendant-Appellant.
Craig M. Jaquith, Assistant Ohio Public Defender, Columbus, Ohio, for appellant. Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Craig M. Jaquith, Assistant Ohio Public Defender, Columbus, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
Kristy S. Wilkin, Judge
{¶1} This is an appeal from a Ross County Court of Common Pleas judgment of conviction in which the jury found appellant, Angela Boykins, guilty of possession of a fentanyl-related compound, a first-degree felony, and possession of heroin, a third-degree felony. In her sole assignment of error, Boykins asserts that she was denied her Sixth Amendment right to effective assistance of counsel due to her trial counsel's failure to file a motion to suppress.
{¶2} After reviewing the record, the parties' briefs, and the applicable law, we find that Boykins has failed to prove that her trial counsel was ineffective. Therefore, we affirm her convictions.
FACTS AND PROCEDURAL BACKGROUND
{¶3} On September 3, 2019, Ohio State Highway Patrol Trooper Josh McCarty stopped Boykins' vehicle for a traffic violation. Upon initially speaking with Boykins, Trooper McCarty smelled the odor of raw marijuana coming from the vehicle. He asked Boykins if there was marijuana in the car and she responded "yes that she had a small bag of marijuana in the center console." Boykins also volunteered that she has her concealed carry permit and there was a firearm in the center console as well. Trooper McCarty then asked Boykins to exit the vehicle, read Boykins her Miranda rights, and placed her in the back of his patrol car.
{¶4} Trooper McCarty then searched Boykins' vehicle. He began his search in the front passenger seat where Boykins' purse was located. He found a girl scout cookie box in the purse. When he opened the cookie box, he found "a large bag of white powder." In the side pocket of the purse he found another bag that contained "7 small bags of a . . . grayish powder . . . that appeared to be heroin." He further located one bag of marijuana in the center console. The evidence seized was submitted to the Ohio State Highway Patrol Crime Lab where it analyzed the substances seized. The large white bag of powder was determined to be 86.5796 grams of fentanyl, the 7 small bags were determined to be 5.3093 grams of heroin, and the marijuana found in the center console "was micro tested, but no other testing was done."
{¶5} On June 5, 2020, Boykins was charged with (1) possession of fentanyl-related compound, in violation of R.C. 2925.11, a first-degree felony, and (2) possession of heroin, in violation of R.C. 2925.11, a third-degree felony. A jury found Boykins guilty of both counts and the trial court sentenced her to a minimum prison term of 11 years and a maximum term of 16 ½ years as to Count One, and 36 months as to Count Two to be served concurrently. Boykins now appeals this judgment entry of conviction.
ASSIGNMENT OF ERROR
MS. BOYKINS'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT.
{¶6} In Boykins' sole assignment of error, she argues that her trial counsel was ineffective for his failure to file a motion to suppress the evidence located in her purse. She maintains "that the record of the case demonstrates that there is a reasonable probability that a suppression motion would have been successful . . . because Trooper McCarty had no lawful basis upon which to conduct a warrantless search of [her] personal belongings. The search came after Ms. Boykins informed him that there was marijuana in the car, as well as a firearm." "Boykins told the trooper exactly where those two items were located-in the center console-and the record does not reflect that either item gave the trooper grounds to arrest Ms. Boykins."
{¶7} Boykins further distinguishes her case from State v. Vega, 2018-Ohio-4002, wherein the Supreme Court found constitutional a warrantless search of sealed envelopes located within the vehicle when a strong odor of raw marijuana was detected by law enforcement. Boykins seems to argue that unlike the Vega case, Trooper McCarty did not reference a "strong" odor of raw marijuana and therefore he had no probable cause to extend his search beyond the center console where Boykins told him the marijuana was located.
{¶8} Additionally, in Boykins' reply brief she argues that because she identified where the marijuana was located within the vehicle, the trooper had no "new and articulable reasonable suspicion" to continue searching for marijuana beyond the center console.
{¶9} The State responds by first noting that Trooper McCarty lawfully stopped Boykins for traffic violations. The trooper smelled the odor of marijuana and Boykins admitted she had marijuana in the center console; thus, the State argues that the trooper had probable cause to search the vehicle and its contents.
{¶10} Additionally, the State argues that Boykins' attempt to distinguish her case from Vega fails because "[t]he case law does not distinguish the strength of the odor" of marijuana and, even if it did, the State argues that Trooper McCarty was "a sixteen-year veteran of law enforcement [and] certainly knew how to identify the smell of marijuana" and "[c]learly [the odor] was strong enough the Trooper smelled it almost immediately upon initially questioning [Boykins]." Also, not only did the trooper smell marijuana in Boykins' vehicle, he had her "admission that contraband was in the vehicle. Thus, he clearly had probable cause to search everything in the car that could hold contraband."
Law and analysis
{¶11} To demonstrate ineffective assistance of counsel, Boykins "must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Short, 2011-Ohio-3641, ¶ 113, citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984); State v. Bradley, 42 Ohio St.3d 136 (1988), paragraph two of the syllabus. Failure to demonstrate either prong of this test "is fatal to the claim." State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.), citing Strickland, 466 U.S. 668.
{¶12} "In Ohio a properly licensed attorney is presumed competent." State v. Ruble, 2017-Ohio-7259, ¶ 47 (4th Dist.), citing State v. Gondor, 2006-Ohio-6679, ¶ 62. Therefore, when reviewing an ineffective-assistance-of-counsel claim, "we must indulge in 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id., quoting Strickland at 697.
{¶13} To establish ineffective assistance of counsel for failing to seek suppression of the contraband seized from Boykins' purse, she "must prove that there was a basis to suppress[.]" State v. Whitehead, 2022-Ohio-479, ¶ 40 (4th Dist.), quoting State v. Brown, 2007-Ohio-4837, ¶ 65, citing State v. Adams, 2004-Ohio-5845, ¶ 35."' "Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion."' " Id., quoting State v. Drummond, 2006-Ohio-5084, ¶ 208, quoting State v. Gibson, 69 Ohio App.2d 91, 95 (8th Dist. 1980).
{¶14} The Fourth and Fourteenth Amendments to the United States Constitution, as well as Section 14, Article I of the Ohio Constitution, protect individuals against unreasonable governmental searches and seizures. Delaware v. Prouse, 440 U.S. 648, 662 (1979). "[Searches [and seizures] conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967).
{¶15} "When a law enforcement officer has probable cause to believe that a vehicle contains contraband, the officer may search a validly stopped motor vehicle based upon the well-established automobile exception to the warrant requirement." State v. Malone, 2022-Ohio-1409, ¶ 30 (4th Dist.), citing State v. Moore, 90 Ohio St.3d 47, 51 (2000). Probable cause exists when there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Furthermore, "Ohio courts have held that the production of drugs by an occupant of a vehicle independently provides an officer with additional probable cause to believe that the vehicle contains evidence of contraband." State v. Donaldson, 2019-Ohio-232, ¶ 29 (6th Dist.).
{¶16} Moreover, this court has outlined that
under the automobile exception to the warrant requirement, law enforcement officers may search containers located within the
vehicle so long as they have probable cause to believe that contraband or evidence may be concealed inside the automobile. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In other words, "[i]f 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." Ross at 825. Consequently, when officers have "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." Wyoming v. Houghton 526 U.S. 295, 320, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999); accord State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262 (officer could lawfully open sealed envelope located inside vehicle when officer possessed probable cause to search vehicle).Malone at ¶ 31.
{¶17} In the case at bar, we do not agree with Boykins that Trooper McCarty lacked probable cause to search beyond the center console of the vehicle, specifically her purse, for evidence of criminal activity. When Trooper McCarty initially approached Boykins' vehicle, he immediately detected the smell of raw marijuana and Boykins admitted that there was marijuana in the center console of the car as well as a firearm. The discovery that Boykins possessed illegal drugs in her vehicle gave Trooper McCarty probable cause to search the vehicle. Thus, once Trooper McCarty obtained probable cause to search the vehicle, he could lawfully search the entire vehicle and any place where evidence could be concealed, including Boykins' purse. See State v. Malone, 2022-Ohio-1409, ¶ 32 (4th Dist.); see also State v. Young, 2012-Ohio-3131, ¶ 32-33 (12th Dist.) (once driver admitted he possessed marijuana, officers obtained probable cause to search vehicle).
{¶18} Further, Boykins' volunteering the location of the contraband in her vehicle does not preempt the officer from searching other areas of the vehicle that may contain contraband. See Donaldson at¶ 27. This is because" 'an officer searching a car for drugs and paraphernalia need not stop after each discovery and determine again whether there is probable cause to continue the search. Similarly, a person stopped by officers cannot preempt a search and remove probable cause by volunteering some contraband to the officer.'" State v. Donaldson, 2019-Ohio-232, ¶ 27 (6th Dist.), quoting United States v. Deysie, 2014 WL 3887873, at *4 (D. Ariz. Aug. 7, 2014).
{¶19} Because Boykins cannot establish there was a basis to suppress the evidence in question, we reject her claim that defense counsel was deficient for failing to file a motion to suppress. Accordingly, we overrule Boykins' sole assignment of error and affirm the trial court's judgment entry of conviction.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.