RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Montgomery No. 02-4234 ELECTRONIC CITATION: 2004 FED App. 0243P (6th Cir.) File Name: 04a0243p.06 Appellant. Timothy D. Oakley, UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Richard W. Smith-Monahan, OFFICE OF THE FEDERAL UNITED STATES COURT OF APPEALS PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Timothy D. Oakley, UNITED STATES ATTORNEY, FOR THE SIXTH CIRCUIT Cincinnati, Ohio, for Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - No. 02-4234 v. - KENNEDY, Circuit Judge. Defendant Craig Montgomery > (“defendant”) appeals the district court’s denial of his motion , to suppress the crack cocaine that law enforcement officers CRAIG MONTGO MERY , - Defendant-Appellant. - seized during a search of his person, following a traffic stop of the vehicle in which he was a passenger. Preserving his N right to appeal the validity of that search, defendant pleaded Appeal from the United States District Court guilty to one count of possession with the intent to distribute for the Southern District of Ohio at Cincinnati. over five grams of crack cocaine in violation of 21 U.S.C. No. 02-00056—S. Arthur Spiegel, District Judge. §§ 841(a)(1) and (b)(1)(B)(iii). For the following reasons, we AFFIRM the district court’s denial of defendant’s suppression Argued: April 26, 2004 motion.

Decided and Filed: July 27, 2004 I. Background

Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge; At approximately 8:00 p.m. on April 16, 2002, Trooper RUSSELL, District Judge.* Brian Workman (“Workman”), of the Ohio State Highway Patrol, lawfully stopped a vehicle in Scioto County, Ohio, for _________________ a speeding violation. Workman learned that the driver of the vehicle, Meyah McCrory (“McCrory”), had been operating COUNSEL the vehicle on a suspended license. According to Workman, the vehicle’s passengers appeared very nervous. Trooper ARGUED: Richard W. Smith-Monahan, OFFICE OF THE Terry Mikesh (“Mikesh”), also of the Ohio State Highway FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Patrol, arrived at the scene to offer assistance. After requesting driver McCrory to exit the vehicle, Workman advised her that she had been driving on a suspended license, * and placed her in the back of his patrol car. While checking The Honorab le Thomas B . Russell, United States District Judge from the other occupants’ identifications, Mikesh, with the use of the Western District of Kentucky, sitting by designation.

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a flashlight, observed a stem, approximately one-inch long, After searching the vehicle, the troopers asked defendant to on the driver’s floorboard near the center console. Based exit the patrol car. Workman, with the intent of checking upon her training in and experience with the detection of defendant for any narcotics or paraphernalia, again patted narcotics, Mikesh was confident from her visual inspection defendant down and then ordered him to remove his shoes. that it was marijuana. Rand Simpson Jr. (“Simpson”), the A bag containing crack cocaine lay in one of defendant’s right front passenger, reached for the stem, and Mikesh yelled shoes. According to Workman, defendant was then placed at him to put it down. Mikesh showed Workman the under custodial arrest. Mikesh advised defendant of his marijuana stem. As Workman testified, he was able to Miranda rights for the second time. Subsequent field and observe the stem, which was large and still had vegetation laboratory tests revealed that the large stem was, in fact, attached to it, from outside of the vehicle, and he believed it marijuana. to be marijuana based upon his narcotics-detection training. Defendant filed a motion to suppress the crack cocaine Mikesh advised the occupants that the troopers were going found in his shoe.1 The district court held that the troopers’ to search the vehicle based upon their observation of search of defendant’s shoes did not violate the Fourth marijuana in the vehicle, and that the occupants were in Amendment because it was a search incident to a lawful “investigative custody” pending the completion of the search. arrest. In particular, the court found that the troopers had Mikesh also advised them of their Miranda rights. Workman arrested defendant at the time that they placed him in the back testified that, at that point, no one was under arrest. Rather, of the patrol car, and that they had probable cause to arrest according to Workman, they were in “investigative custody” defendant based upon: 1) the marijuana in plain view; and received Miranda warnings based upon the troopers’ 2) passenger Simpson’s attempt to conceal the marijuana discovery of marijuana in the vehicle. Workman observed from the troopers; 3) passenger Richardson’s concealment of Jamaal Richardson (“Richardson”), the left rear passenger, something under the armrest; and 4) the apparent nervousness shove a blue object underneath the back seat’s armrest. of all of the occupants. The troopers ordered the occupants, including defendant, II. Analysis the right rear passenger, out of the vehicle. Workman and Mikesh performed “protective pat-downs for weapons,” and, We review the district court’s legal conclusions in a with each occupant’s consent, examined the contents of his suppression hearing de novo, and its factual findings for clear pockets. The troopers then placed the occupants in another error. United States v. Smith, 263 F.3d 571, 581-82 (6th Cir. patrol car, which had subsequently arrived at the scene, to prevent them from fleeing the scene or from standing on the dangerous roadside. Upon searching the vehicle’s interior, 1 the troopers recovered the large marijuana stem on the In this suppression motion, defendant also challenged the adm issibility of any incriminating statem ents that he m ade to the troopers driver’s side, marijuana seeds, and a blue digital scale, which following their seizure of the crack cocaine on the ground that such Richardson had hidden underneath the backseat armrest and admis sions violated his Fifth Amendme nt Miranda rights; the district which had residue in the form of green leafy material and court denied this challenge. By failing to present any arg ument on it in white powder on it. Workman identified the white and green his brief, de fendant has ab andoned this Fifth Amendment issue on appeal. residue on the scale as cocaine and marijuana, respectively. See Som mer v. Da vis, 317 F.3d 686, 691 (6th Cir. 2003) (holding that plaintiffs abandoned an issue on appea l by not presenting any argument on it in their briefs).

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2001); see United States v. Forest, 355 F.3d 942, 952 (6th warrantless search of defendant’s shoes, from which the crack Cir. 2004) (holding that whether the facts establish probable cocaine was seized.2 cause to justify an arrest is a question of law that we review de novo); United States v. Avery, 137 F.3d 343, 348 (6th Cir. Under the “search-incident-to-a-lawful-arrest” exception to 1997) (holding that whether the facts establish an the warrant requirement, a law enforcement officer may unconstitutional seizure is a question of law that we review de conduct a full search of an arrestee’s person incident to a novo). When considering the denial of a suppression motion, lawful custodial arrest. United States v. Robinson, 414 U.S. we must view the evidence in the light most favorable to the 218, 234-35 (1973) (explaining that the reasoning behind this government. United States v. Wellman, Jr., 185 F.3d 651, exception is the “need to disarm the suspect in order to take 654-55 (6th Cir. 1999). “We may affirm a decision of the him into custody [and] . . . the need to preserve evidence on district court if correct for any reason, including one not his person for later use at trial”). Moreover, as the Supreme considered below.” United States Postal Serv. v. Nat’l Ass’n Court held in Rawlings v. Kentucky, 448 U.S. 98, 110-11 n.6 of Letter Carriers, AFL-CIO, 330 F.3d 747, 750 (6th Cir. (1980), the search-incident-to-a-lawful-arrest rule also permits 2003). an officer to conduct a full search of an arrestee’s person before he is placed under lawful custodial arrest as long as Defendant does not contest that Workman had probable “the formal arrest follow[s] quickly on the heels of the cause to stop the vehicle in which defendant was a passenger challenged search of . . . [his person]” and the fruits of that for a speeding violation. Defendant also does not dispute that search are not necessary to sustain probable cause to arrest the troopers had probable cause to search the vehicle. In him. C.f. Knowles v. Iowa, 525 U.S. 113, 116-19 (1998) addition, the troopers were clearly justified in ordering (holding that the search-incident-to-a-lawful-arrest rule does defendant out of the vehicle pursuant to either the routine not apply to an officer’s search of the defendant’s vehicle traffic stop or the lawful vehicle search. See Maryland v. where the officer, while subsequently arresting the defendant Wilson, 519 U.S. 408, 413-14 (1997) (extending the rule in for drug-law violations based upon that search, never actually Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), that “a arrested the defendant for the speeding violation, which gave police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle” to any passengers in such a vehicle). Based upon the nervousness of all of the 2 occupants, the marijuana stem in plain view, Simpson’s and There wa s no reasonable concern for officer safety so as to justify, under the Terry doctrine, this search of defendant’s person; indeed, Richardson’s attempts to conceal the marijuana stem and an W orkman testified that he conducted the search solely to check defendant unknown object, respectively, it was reasonable for the for narco tics or drug paraphernalia. See Yb arra v. Illinois, 444 U.S. 85, troopers to believe that defendant may have been armed and 93-94 (1979) (cautioning that the Terry doctrine, which created a narrow dangerous so as to justify patting him down for weapons after exception to the no rmal d ictates of the Fourth Amendment, does not he exited the vehicle. See Terry v. Ohio, 392 U.S. 1, 27 perm it a “generalized cursory search for weapons” or “any search whatever for anything but weapons”). Yet, this warrantless evidentiary (1968). Defendant, however, asserts that the troopers lacked search may, nevertheless, be valid if it falls within an exception to the the requisite justification to conduct the subsequent, warrant requirement. See Un ited States v. H add ix, 239 F.3d 766, 767 n.2 (6th Cir. 2001) (summarizing the leading exceptions to the warrant requirement as, among others, “investigatory detentions, warrantless [public] arrests, searche s incident to a valid arrest, seizure of items in plain view, exigent circumstances, consent searches, vehicle searches”) (internal quotation m arks omitted).

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the officer the probable cause to arrest the defendant before a mere investigative detention under the progeny of Terry,3 the search, but, rather, only issued a citation, and reasoning for purposes of the search-incident-to-a-lawful-arrest that the rule’s underlying twin rationales of officer safety and exception.4 See United States v. Avery, 137 F.3d 343, 352 evidence preservation were only minimally present and not present at all, respectively, in the context of a traffic citation); Smith v. Ohio, 494 U.S. 541 (1990) (holding that the search- 3 Although neither the government nor defendant seem to challenge incident-to-a-lawful-arrest rule does not apply to a warrantless the district co urt’s determination that the troopers had arrested defendant search that provides the probable cause for the subsequent at the time that they placed him in the back of the patrol car, we have arrest because one cannot justify the arrest by the search and some reservations about the accuracy of this determination. It is uncertain then simultaneously justify the search by the arrest). whether the troopers’ ordering defendant out of the vehicle, frisking him, and placing him in the back of a patrol car are circumstances sufficient in themselves to escalate the detention into a custodial arrest given that the The district court found that, at the time of the search of legality of the troopers’ action here does not seem to hinge upon any such defendant’s shoes, the troopers had seized defendant within arrest. Rathe r, as discussed above, eve n without arresting defendant, the the meaning of the Fourth Amendment. A reasonable person troopers had sufficient justificatio n to order defendant out of the vehicle would not have felt free to leave the scene based upon the and to frisk him. B ased upon the lawful vehicle search, the troope rs likely had adequate justification to place defendant in the back of the patrol car following circumstances: 1) three patrol cars were at the both for his and the troopers’ safety pending the completion of that scene; 2) the troopers observed marijuana in plain view in the search. There is no evidence that the troopers, at the time they placed vehicle, in which defendant was a passenger; 3) Mikesh defendant in the back of the patrol car, had drawn their weapons, yelled at passenger Simpson to put the marijuana stem down; handcuffed defendant, or used physical force to place him in the patrol 4) defendant had been ordered out of the vehicle, frisked, and car. Mo reover, while M ikesh advised defendant of his rights under the placed in the back of a patrol car; 5) Mikesh read defendant Miranda doctrine, whose application requires that one be subject to a formal arrest or its de facto equivalent, she simply informed defendant his Miranda warnings; and 6) the troopers searched the that he was in “investigative custody” pending the completion of the vehicle. See United States v. Butler, 223 F.3d 368, 374 (6th vehicle search; she never told defendant that he was under arrest at that Cir. 2000) (“A ‘seizure’ occurs . . . when the police detain an time. See Stan sbury v. Californ ia, 511 U.S. 318, 322 (1994). To the individual under circumstances where a reasonable person extent that he may have conveyed his subjective intent to defendant, would feel that he or she is not at liberty to leave”); Kaupp v. W orkm an testified that defendant was no t under arrest at that point. See United States v. Rose, 88 9 F.2 d 14 90, 1 493 (6th Cir. 1989) (holding that Texas, 538 U.S. 626, 630 (2003) (illustrating circumstances officers’ subjective intent is relevant to a Fo urth Amendme nt analysis indicating a seizure as follows: “‘the threatening presence of only to the extent that they have c onve yed that intent to the confronted several officers, the display of a weapon by an officer, some individual). In any event, we need not decide this issue because we find physical touching of the person of the citizen, or the use of that, whether the troopers arrested defendant upon placing him in the language or tone of voice indicating that compliance with the patrol car or only after they conducted the search of his shoes, the search- incident-to-a-lawful-arrest rule app lies so as to justify that search. officer’s request might be compelled’”) (citing United States v. Mendenhall, 446 U.S. 544 (1980)). However, it is unclear 4 As Professor Joshua Dressler aptly observed, the Supreme Court has whether this “seizure” was a full custodial arrest, rather than yet to apply the search-incident-to-a-lawful-arrest rule to any context other than a full custodial arrest. Dressler argues that the twin rationales underlying this exception–evidence preservation and officer safety–do not app ly or on ly marginally apply in the context of a non-custodial arrest or temporary detention. Understanding Criminal Procedure § 13.02 (2d ed. 1997) (reasoning that the context of a custodial arrest poses a far greater danger to the officer than one of temporary detention as, in the latter

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(6th Cir. 1997) (noting that a “seizure” for purposes of the search. Chiefly relying upon United States v. Di Re, 332 U.S. Fourth Amendment comprises either a Terry investigative 581 (1948), defendant argues that, while the troopers had detention requiring “reasonable, articulable suspicion of probable cause to arrest the vehicle’s other occupants, they criminal activity” or an arrest requiring probable cause); lacked probable cause to arrest defendant because his conduct compare Kaupp, 538 U.S. at 630 (holding that law did not provide them with sufficient individualized suspicion enforcement’s involuntary transportation of a suspect to a regarding his involvement in any illegal activity. Rather, police station for questioning constitutes a de facto arrest according to defendant, the facts and circumstances available requiring probable cause), with Houston v. Clark County to the troopers establish, at most, that defendant, by virtue of Sheriff Deputy John Does 1-5, 174 F.3d 809, 814-15 (6th Cir. being a passenger in the vehicle, was in proximity to the other 1999) (holding that, where police officers reasonably believed occupants’ drug-related activity. that a vehicle’s occupants had just been involved in a shooting, the officers’ ordering the suspects out of the vehicle, In United States v. Di Re, 332 U.S. 581, 583, 592-94 drawing their weapons on them, frisking and handcuffing (1948), the Supreme Court held that, under state law, officers them, and detaining them in the back of patrol cars did not lacked probable cause to arrest the defendant, who was exceed the bounds of a Terry investigative detention) and ultimately convicted of knowingly possessing counterfeit United States v. Bradshaw, 102 F.3d 204, 211-12 (6th Cir. gasoline ration coupons. In Di Re, law enforcement officers 1996) (holding that “detention in a police car does not approached a vehicle that contained Buttitta (the driver of the automatically constitute an arrest,” but recognizing that it vehicle); Reed (an informer who previously had advised the “may rise to the level of an arrest in some circumstances”). officers that he was to buy counterfeit gasoline ration coupons from Buttitta); and the defendant (who was sitting next to In any event, even if the troopers had not placed defendant Buttitta). Id. at 583. When the officers, upon approaching the in full custodial arrest before the search of his person, it is vehicle, observed that Reed was holding two of these coupons clear that they did so immediately after that search–after they – which later proved to be counterfeit – and asked Reed who discovered crack cocaine in his shoe. Mikesh testified that, had given him the coupons, Reed inculpated only Buttitta. Id. after the discovery of that crack cocaine, she informed The officers placed the defendant, along with Buttitta and defendant that he was under arrest and, once again, advised Reed, under custodial arrest. Id. During a subsequent search him of his Miranda rights. Workman also testified that of the defendant’s person, officers recovered over one defendant was placed under arrest at that time. Thus, hundred counterfeit gasoline ration coupons from his shirt and regardless of whether the troopers placed defendant in full underwear. Id. custodial arrest before or immediately after the evidentiary search of his person, the search-incident-to-a-lawful-arrest The Court held that the officers had no probable cause to rule would validate that search as long as the troopers, arrest the defendant for committing, in the officers’ presence, independent of the crack cocaine seized during that search, the misdemeanor of knowing possession of counterfeit had probable cause to arrest defendant at the time of that coupons. Id. at 592. The Court reasoned that only Reed was visibly in possession of the coupons, and that the officers had no evidence demonstrating the defendant’s possession of any coupons, “unless his presence in the car warranted that situation, the suspect has less incentive to use a weapon or to destroy inference.” Id. (rejecting, likewise, the contention that the evidence, and the officer need not transport the suspect to the police station). officers had probable cause to arrest the defendant for a

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felony entailing both possession of the coupons and recovered $763 from the glove compartment and five plastic knowledge of their counterfeit nature). The Court then held bags containing cocaine from behind the back-seat armrest. that the defendant’s presence in the car was insufficient to Id. The officers placed all three occupants under arrest when, imply his participation in the Buttitta-Reed sale and, thus, upon questioning, none of them offered any information insufficient to sustain probable cause for any felony regarding the ownership of the drugs or the money. Id. conspiracy charge. Id. at 593. The Court reasoned that there (noting that the other two occupants were eventually released was no evidence indicating that the defendant was in the when the defendant, during interrogation, subsequently vehicle when Buttitta had given the coupons to Reed. Id. admitted ownership of the contraband and stated that they The Court further reasoned: knew nothing about it). The defendant was convicted of possession and possession with intent to distribute cocaine. [The inference] that one who accompanies a criminal to Id. at 799. a crime rendezvous cannot be assumed to be a bystander, forceful enough in some circumstances, is farfetched The Supreme Court noted that, although the officers had when the meeting is not secretive or in a suspicious hide- probable cause to believe that a felony had been committed out but in broad daylight, in plain sight of passersby, in upon recovering the cocaine from the vehicle, the question is a public street of a large city, and where the alleged whether they had probable cause to believe that the defendant substantive crime is one which does not necessarily committed that crime. Id. (looking to state law to determine involve any act visibly criminal. the substantive crime as well as the law enforcement officers’ authority to arrest). The Court first explained the probable- Id. (internal quotation marks omitted, and emphasis added). cause standard as follows: As the Court noted, even if the defendant had witnessed the transfer of the coupons, the counterfeit nature of those [It is a] practical, nontechnical conception that deals with coupons would not have been readily apparent to him. Id. the factual and practical considerations of everyday life The Court underscored that, where the government informer on which reasonable and prudent men, not legal singles out as the guilty party only an individual other than technicians, act. Probable cause is a fluid the defendant, any inference or suspicion arising from the concept–turning on the assessment of probabilities in defendant’s presence at the crime scene must disappear. Id. particular factual contexts–not readily, or even usefully, at 594. reduced to a neat set of legal rules. The probable-cause standard is incapable of precise definition or However, in Maryland v. Pringle, – U.S. –, 124 S.Ct. 785, quantification into percentages because it deals with 798 (2003), on facts similar to those present here, the probabilities and depends upon the totality of the Supreme Court held that law enforcement officers had circumstances . . . . [Its substance] is a reasonable ground probable cause to arrest the defendant. In Pringle, police for belief of guilt, [which] . . . must be particularized officers, based upon a speeding violation, had pulled over a with respect to the person to be searched or seized. vehicle, in which there were three occupants, one of whom was the defendant, the front-seat passenger. Id. When the Id. at 799-800 (internal quotation marks and citations driver opened up the glove compartment to retrieve the omitted) (noting that the test is one of objective vehicle’s registration, the officers observed a large roll of reasonableness based upon all of the facts leading up to the cash. Id. Upon a consent search of the vehicle, the officers search or seizure in question). The Court then found that the

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officers had probable cause to believe that the defendant had circumstances within the officer’s knowledge . . . are committed the crime of possession of a controlled substance. sufficient to warrant a prudent person , or one of reasonable Id. at 802. The Court reasoned that the defendant was one of caution, in believing . . . that the suspect has committed, is three men riding in the vehicle at 3:00 a.m.; there was a $763 committing, or is about to commit an offense”). The large roll of cash in the glove compartment directly in front of the marijuana stem, which was approximately one-inch long and defendant; there was cocaine behind the back-seat armrest still had vegetation attached to it, was in plain view on the that was accessible to all three men; and all three men failed driver’s floorboard near the center console. Thus, defendant to offer any information concerning the ownership of the had both visual and physical access to the marijuana stem. cocaine or money. Id. at 800. The Court affirmed that “a car Defendant had been sitting directly next to passenger passenger . . . will often be engaged in a common enterprise Richardson when he concealed from the troopers the digital with the driver, and have the same interest in concealing the scale, which was visibly covered in drug residue. Therefore, fruits or the evidence of their wrongdoing.” Id. at 801 defendant had ready physical access to the drug scale. (factually distinguishing Ybarra v. Illinois,444 U.S. 85, 91 Moreover, based upon Richardson’s perceived need to (1979), and citing Wyoming v. Houghton, 526 U.S. 295, 304- conceal it in the first instance, one could reasonably conclude 05 (1999)) (internal quotation marks omitted). The Court that the drug scale had been in plain view and, thus, that held that “it was reasonable for the officer to infer a common defendant had visible access to it as well. Simpson’s and enterprise among the three men [because] [t]he quantity of the Richardson’s attempts to conceal the marijuana stem and the drugs and cash in the car indicated a likelihood of drug scale from the troopers, respectively, demonstrated a shared dealing, an enterprise [into] which a dealer would be unlikely interest in concealing the fruits of their wrong-doing. In to admit an innocent person with the potential to furnish addition, the drugs along with the digital scale, covered in evidence against him.” Id. The Court distinguished Di Re on drug residue and commonly used in the distribution of drugs, the ground that, unlike in that case, there was no singling out indicated a drug-dealing enterprise. As the Supreme Court of an individual other than the defendant as the guilty observed, guilty parties would not likely admit an innocent individual as none of the three men provided any ownership person into such a criminal enterprise for fear of that person information concerning the contraband. Id. Thus, the Court furnishing incriminating evidence against them. Id. at 801. found that it was “an entirely reasonable inference from the[] Consequently, it would have been unreasonable to believe facts that any or all three of the occupants had knowledge of, that all of the occupants except for defendant were engaged in and exercised dominion and control over, the cocaine,” and, a common drug-related enterprise. Unlike Di Re, there was thus, that “a reasonable officer could conclude that there was no “singling out” or incrimination of the other three probable cause to believe that . . . [the defendant] committed occupants to the exclusion of defendant. Thus, the troopers the crime of possession of cocaine, either solely or jointly.” had probable cause to believe that defendant was violating Id. at 800-01 (emphasis added). various state drug laws–whether singly or jointly. 5 In sum, As Pringle teaches, the facts and circumstances within the troopers’ knowledge here afforded an adequate basis from 5 For examp le, the troopers had probable cause to believe that which reasonably to infer that defendant was engaged in a defendant knowingly and constructively possessed, whether jointly or common narcotics-related enterprise with the other occupants singly, drug paraphernalia– the digital scale– , in violation of O hio Revised of the vehicle. See Michigan v. De Fillippo, 443 U.S. 31, 37 Code § 2925.14, a fourth degree misdemea nor. See R.C. § 2925.01(K) (providing that “po ssession means having control over a thing or (1979) (holding that probable cause exists when the “facts and substance, but may not be inferred solely from mere access to the thing or

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under the search-incident-to-a-lawful-arrest rule, the troopers’ warrantless evidentiary search of defendant’s person passes muster under the Fourth Amendment because the troopers had probable cause to arrest defendant independent of the search and because defendant’s lawful custodial arrest either preceded the search or quickly followed it. See Rawlings, 448 U.S. at 110-11 n.6. For the preceding reasons, we AFFIRM the district court’s denial of defendant’s suppression motion.

substance through ownership or occupation of the premises upon which the thing or substance is found” ); State v. Kobi, 701 N.E.2d 420, 430 (Ohio Ct. App. 199 7) (ho lding that “possession” under O.R.C. § 2925.01 may be ac tual or constructive; defining constructive possession as an ability to exercise dominion or control over the items; and holding that “read ily usable drugs found in very close proximity to a defendant may constitute circum stantial evidence” of constructive possession of such drugs); Ohio v. Hilton, No. 21624, 2004 WL 573 838 , at *4 (O hio Ct. App. March 24, 2004) (holding that possession may be joint, and that constructive possession may entail knowledge of the presence of the object). Moreo ver, since the digital scale appeared to contain cocaine residue, the troopers had probable cause to believe that defendant had know ingly and constructively possessed, whether jointly or singly, cocaine in violation of Ohio Revised Code § 2925.11(C)(4)(a), a crime which is, at a minim um, a fifth degree felony. See State v. Teamer, 696 N.E.2d 1049, 1051 (Ohio 1998) (affirming that O.R.C. § 2925.11 punishes the possession of any amount of a controlled substance without quantifying that amount, and, thus, affirming a conviction for knowing possession of cocaine based upon a m etal crack pipe containing cocaine residue, which was incapable of being weighed). Under Ohio law, the troopers had authority to arrest defend ant for either or bo th of these crimes. See Ohio Revised Code § 5503.02 (A) (providing that “any state highway patro l troop er may arrest, without a warrant, any person, who is the driver of or a passenger in a ny vehicle operated or standing o n a state highwa y, whom the . . . trooper has reaso nable cause to believe is guilty of a felony, under the same circumstances and with the same power that any peace officer may make such an arrest); Ohio Revised Code § 5503.02 (D)(1) (providing that “[s]tate highway patrol troopers have the same right and power of search and seizure as other p eace officers”); State v. Humm el, 796 N.E.2d 558, 561 (Ohio Ct. App. 200 3) (noting the general rule that an officer may not make a warrantless arrest for a misdemeanor unless the offense was com mitted in the officer’s presence).