[Cite as State v. Rodriguez,
2024-Ohio-6085.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 24 CA 00001
EDUARDO RODRIGUEZ
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 23 CR 0004
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 27, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT JORDEN M. MEADOWS
PROSECUTING ATTORNEY P.O. Box 310
111 North High Street, P. O. Box 569 Logan, Ohio 43138
New Lexington, Ohio 43764-0569
Perry County, Case No. 24 CA 00001 2
Wise, J.
{¶1} Defendant-appellant, Eduardo Rodriquez, appeals the judgment of the
Perry County Court of Common Pleas, arguing that the trial court erred by denying his
motion to suppress. Plaintiff-appellee is the State of Ohio. For the reasons that follow,
the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶2} On September 24, 2022, Deputy Jeremy Justice II of the Perry County
Sheriff’s Office was assigned to the patrol division in the Thornville, Ohio area and parked
at the Circle K gas station just outside Thornville. Around 4:00 a.m. he observed a 2007
Honda CRV pull out of the station. He was parked facing the Circle K store, and the
Honda crossed in front of his marked sheriff cruiser. He could view the driver’s side of
the Honda and saw no headlights.
{¶3} Deputy Justice pulled out of the parking lot and started following the Honda.
The Honda and patrol cruiser turned onto State Route 13. Deputy Justice activated his
emergency lights and stopped the Honda.
{¶4} Deputy Justice exited his cruiser, activated his body-worn camera, and
approached the passenger side of the Honda. The passenger, a female, rolled down her
window and Deputy Justice noted that the Honda was driven by a male. He asked for
their driver’s license, registration and proof of insurance.
{¶5} Deputy Justice noted the smell of raw marijuana coming out of the Honda
and asked the occupants about it. The passenger told him that she had been smoking
marijuana and had some inside the Honda along with some marijuana paraphernalia.
Perry County, Case No. 24 CA 00001 3
{¶6} Deputy Justice had both occupants step out of the Honda. The Deputy
learned that the driver was the appellant, Eduardo aka Eddie Rodriguez. Meanwhile,
Deputy Justice had called for backup and Deputy Devin Hillyer arrived.
{¶7} As Rodriguez was getting out of the Honda, Deputy Hillyer saw him throw
a white clear bag containing white pills that he was trying to hide into the berm of the
roadway. Rodriguez was read his Miranda rights.1 When asked what the pills were,
Rodriguez stated they were Percocet. “I have a Percocet issue.”
{¶8} The Deputies searched the Honda and found marijuana in the center
console and Oxycontin and Methamphetamine in the trunk.
{¶9} Video from the Circle K gas station was obtained and showed neither of the
bulbs on the front driver’s side were illuminated. Later, a search warrant for the Honda
was obtained and inspected. Upon inspection, it showed that the low beam headlights
on the driver’s side did not work, while the high beams worked on both sides of the Honda.
Rodriguez was issued a citation for driving without headlights. R.C. 4513.04.
{¶10} On February 1, 2023, Rodriguez was indicted for aggravated possession of
drugs, a violation of R.C. 2925.11(A) and (C)(1)(a), [F5], aggravated trafficking in drugs,
a violation of R.C. 2925.03(A)(2) and (C)(1)(f), [F1], aggravated possession of drugs, a
violation of R.C. 2925.11(A) and (C)(1)(e) [F1 ] and tampering with evidence, a violation
of R.C. 2921.12(A)(1) [F3]. Two of the charges contained major drug offender
specifications.
{¶11} Rodriguez pleaded not guilty and filed a motion to suppress.
1 Miranda v. Arizona, 384 U.S. 436 (1966)
Perry County, Case No. 24 CA 00001 4
{¶12} Deputies Justice and Hillyer testified at the suppression hearing. Footage
from Deputy Justice’s body camera was presented, as well as video from the Circle K gas
station.
{¶13} On January 19, 2024, the trial court denied Rodriguez’s motion to suppress,
finding that Deputy Justice had the necessary reasonable and articulable suspicion and
probable cause to stop Rodriguez. Judgment Entry, Jan. 19, 2024.
{¶14} On February 1, 2024, Rodriquez returned to the trial court and changed his
not guilty plea to a no contest plea to aggravated trafficking in drugs, a violation of R.C.
2925.03(A)(2) and (C)(1)(e), a felony of the first degree. The remainder of the charges
including the major drug offender specifications were dismissed by appellee-state. The
trial court accepted his no contest plea and the state read the facts upon which the
indictment was based.
. . . the evidence would show that the Defendant was stopped by a
Perry County Deputy near the intersection of State Route 13 and 204 here
in Perry County. That during that stop, he...they found in excess of 50 – 50
times the bulk amount of methamphetamine within that vehicle. It would be
established that he was transporting that with purpose to distribute.
{¶15} Tr. Sentencing and Plea at 10.
{¶16} Rodriguez agreed that those facts were substantially correct, and the trial
court found him guilty of aggravated trafficking in drugs. He also signed a Crim.R. 11 plea
form of no contest.
Perry County, Case No. 24 CA 00001 5
{¶17} Rodriquez waived a pre-sentence investigation and sentencing immediately
followed the plea. Rodriguez was sentenced to the agreed upon sentence of six to nine
years in a state prison. The mandatory fine was waived.
{¶18} Rodriguez filed a timely appeal arguing two assignments of error.
ASSIGNMENTS OF ERROR
{¶19} "I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS. ALL EVIDENCE OBTAINED AS A RESULT OF THE
UNLAWFUL STOP OF APPELLANT’S VEHICLE AND UNLAWFUL SEARCH OF
APPELLANT’S VEHICLE, VIOLATED THE FOURTH AND FOURTEENTH
AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION
14 OF THE OHIO CONSTITUTION.
{¶20} "II. UNDER OHIO’S CURRENT REGULATORY SCHEME FOR
CANNABIS, THE MERE ODOR OF CANNABIS NO LONGER PROVIDES INHERENT
EVIDENCE OF CRIMINAL ACTIVITY."
LAW AND ANALYSIS
{¶21} In his first assignment of error, appellant contends that the stop of his
vehicle based on no headlight on the driver’s side, and the subsequent search of his
vehicle, were unlawful and a violation of his rights under the United States and Ohio
Constitutions
Standard of Review
{¶22} “Normally, appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Codeluppi, 2014-Ohio-1574, ¶ 7, citing State v.
Burnside,
2003-Ohio-5372, ¶ 8.
Perry County, Case No. 24 CA 00001 6
{¶23} As the Ohio Supreme Court explained:
When considering a motion to suppress, the trial court assumes the
role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses. Consequently, an
appellate court must accept the trial court’s findings of fact, if they are
supported by competent, credible evidence. Accepting these facts as true,
the appellate court must then independently determine, without deference
to the conclusion of the trial court, whether the facts satisfy the applicable
legal standard. (Citations omitted) Burnside at ¶ 8.
{¶24} Rodriguez argues that the trial court’s finding that the initial traffic stop was
legal was an error. Rodriguez claims that the evidence at the suppression hearing
demonstrated that his headlights were on when he pulled out of the Circle K gas station
in front of the Deputy’s cruiser. Rodriguez contends that the Deputy violated his Fourth
and Fourteenth Amendment rights when he conducted the initial stop and later found
probable cause to search his vehicle when he detected the odor of raw marijuana.
Unreasonable search and seizure
{¶25} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State v.
Emerson, 2012-Ohio-5047, ¶ 15. “This constitutional guarantee is protected by the
exclusionary rule, which mandates the exclusion at trial of evidence obtained from an
unreasonable search and seizure.”
Id.
{¶26} Searches and seizures conducted without a warrant are per se
unreasonable under the Fourth Amendment, subject only to a few specific and well-
Perry County, Case No. 24 CA 00001 7
established exceptions. Katz v. United States, 389 U.S. 347, 357, (1967). “Once a
defendant demonstrates that he or she was subjected to a warrantless search or seizure,
the burden shifts to the state to establish that the warrantless search or seizure was
constitutionally permissible.” State v. Roberts,
2006-Ohio-3665, ¶ 98.
{¶27} In this case, Deputy Justice initiated a traffic stop without a warrant when
he alleged he observed a traffic violation – no headlights on the driver’s side.
Constitutionality of the Traffic Stop
{¶28} A traffic stop initiated by a law enforcement officer constitutes a seizure
under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-810, (1966).
Thus, a traffic stop must comply with the Fourth Amendment’s requirement of general
reasonableness based on a totality of the circumstances.
Id. at 810.
{¶29} “. . . [I]f an officer’s decision to stop a motorist for a criminal violation,
including a traffic violation, is prompted by a reasonable and articulable suspicion
considering all the circumstances, then the stop is constitutionally valid.” State v. Mays,
2008-Ohio-4539, ¶ 8. Even if the officer has an ulterior motive, a traffic stop is valid if the
action complained of was permissible. Dayton v. Erickson,
76 Ohio St.3d 3, 11-12, (1996);
State v. Martin,
2019-Ohio-4934, ¶ 19 (5th Dist.).
{¶30} In this case, Deputy Justice testified at the suppression hearing that he was
parked at the Circle K gas station when he observed the white Honda CRV Rodriquez
was driving pull away from the gas pump with no headlights on the driver’s side.
{¶31} The video surveillance from the Circle K gas station was admitted into
evidence at the suppression hearing and viewed by the trial court. The trial court found
Perry County, Case No. 24 CA 00001 8
that the “video from the store confirms the driver’s side headlight was not illuminated, but
the passenger side was.” Judgment Entry, Jan. 19, 2024 at 1.
{¶32} Rodriguez argues that the body camera worn by Deputy Justice at the time
he stopped the Honda and photographs show that both headlights are illuminated. But
the trial court has an explanation for that – “It appears from the evidence the Defendant
put on his bright lights when he got to the intersection. However, he did travel on East
Columbus Street with only one headlight illuminated. The Deputy, therefore, had the
necessary reasonable and articulable suspicion and probable cause to stop him.”
Judgment Entry, Jan. 19, 2024 at 3. This finding was also supported by the later
inspection of the Honda which showed that the lower beams did not work but the higher
beams did.
{¶33} Accordingly, we find that Deputy Justice had a reasonable suspicion to stop
the Honda for violation of Ohio’s traffic regulations requiring the display of lights at the
front of a vehicle from sunset to sunrise. Accordingly, the initial traffic stop passes
constitutional muster.
{¶34} Appellant argues that Rodriguez was not cited for any traffic violation. But
the reports of Deputy Justice in the record state Rodriguez was cited for a headlight
violation. Even so, this Court has held that a police officer’s objectively reasonable belief
that a traffic violation has occurred, including reasonable mistakes of law, can constitute
reasonable suspicion to justify a traffic stop. State v. Martin, supra, ¶ 20 (“It is well
established that an officer’s reasonable articulable suspicion does not require proof
beyond a reasonable doubt that the defendant’s conduct has satisfied the elements of the
offense.”); State v. Mays, supra, ¶ 17 (“An officer is not required to determine whether
Perry County, Case No. 24 CA 00001 9
someone who has been observed committing a crime might have a legal defense to the
charge.”)
{¶35} After our review, we agree with the trial court that the Deputy had the
necessary reasonable and articulable suspicion to stop the appellant and deny the motion
to suppress.
{¶36} The first assignment of error is overruled.
II.
{¶37} In appellant’s second assignment of error, he contends that even if the initial
stop complied with the Fourth Amendment, Deputy Justice improperly expanded the
scope of the stop when he claimed to detect the odor of raw marijuana. Appellant claims
that under Ohio’s cannabis laws, the testimony of Deputy Justice that he prolonged the
stop and searched the Honda when he smelled the odor of raw marijuana is no longer a
legal basis to perform a vehicle search without a warrant. Specifically, appellant argues
that since medical marijuana and hemp have become legal and because it looks and
smells the same as illegal marijuana, the distinctive odor of raw marijuana has become
unusable as an identifier to rely on to support probable cause to search a vehicle without
a warrant.
{¶38} The first problem with appellant’s argument is that neither the motion to
suppress nor his written proposed findings of fact and conclusions of law after the
suppression hearing addressed the issue of cannabis law. While there was a short
discussion during cross examination of Deputy Justice at the suppression hearing on
whether he asked the occupants of the Honda whether it was medical marijuana, that
theory was not raised during the proposed findings of fact and conclusions of law
Perry County, Case No. 24 CA 00001 10
submitted by appellant. Issues not raised in the trial court cannot be raised for the first
time on appeal. Greenwood v. Taft, 105 Ohio App.3d 295, 302 (1st Dist., 1985) citing
Stores Realty Co. v. Cleveland,
41 Ohio St.2d 41 (1975); State v. Wright, 2024-Ohio-
1763, ¶ 15 (1st Dist.). (When filing a motion to suppress, a defendant must raise the
grounds upon which the validity of the search or seizure is challenged).
{¶39} But even if raised, the case law from this Court and the Ohio Supreme Court
does not support appellant’s argument. Law enforcement may still rely on the odor of
marijuana to establish probable cause to prolong a stop and lawfully search a vehicle.
{¶40} In State v. Tillman, 2022-Ohio-4341 (5th Dist.), defendant was indicted for
possession of marijuana and trafficking in marijuana. He pleaded not guilty and filed a
motion to suppress. At the hearing, the Deputy testified that he stopped defendant’s
vehicle for speeding. When he made contact with the defendant, he immediately smelled
a strong odor of raw marijuana. He then conducted a probable cause search of the vehicle
and found a bag of marijuana and a marijuana cigarette.
{¶41} The trial court denied the motion to suppress and the defendant pleaded no
contest. On appeal to this Court, he argued that the search of his vehicle was not
supported by probable cause.
{¶42} In State v. Moore, 2000-Ohio-10, the Ohio Supreme Court found that the
smell of marijuana alone by a person qualified to recognize the odor is sufficient to
establish probable cause to search a motor vehicle. Relying on Moore, this Court found
that the standards in Moore had been satisfied.
The fact that illegal marijuana and legal forms of hemp have the
same odor is irrelevant so long as some forms of marijuana remain illegal.
Perry County, Case No. 24 CA 00001 11
Thus, Moore remains good law and any detection of the odor would give
probable cause to search. State v. Withrow, 2022-Ohio-2850, ¶ 19 (7th
Dist.). Id. at ¶ 19. Accord State v. Speelman, 2023-Ohio-992, ¶ 23 (5th
Dist.).
{¶43} This Court is not alone in holding that Moore is still good law. In State v.
Wright, 2024-Ohio-1763, (1st Dist.) at ¶ 15, the court recently rejected a similar argument
to the one made by appellant here. (“At the time of this stop, most forms of marijuana
were illegal in Ohio. While the legalization of medical marijuana and hemp products may
have lowered the likelihood that Kylo [drug sniffing dog] was alerting to contraband, that
likelihood was far from zero.”); State v. Johnson,
2022-Ohio-2773, ¶ 33, 35 (8th Dist.).
(“…Trooper Dowler’s testimony that he smelled the odor of raw marijuana when he
approached the vehicle was sufficient probable cause to search the vehicle even if the
drugs were determined to be legal.”)
{¶44} In 2022, when Rodriguez was stopped and ultimately arrested for
possession of drugs, recreational cannabis was still illegal in Ohio; while licensed sales
of medical cannabis began in 2019.
{¶45} Thus, Moore and Tillman remain good law.
{¶46} Deputy Justice testified at the suppression hearing that he is trained in
identifying the odor of raw marijuana and has dealt with raw marijuana on many occasions
in his experience as a law enforcement officer. Accordingly, the Moore standard was
met.
{¶47} Rodriguez does not complain that Deputy Justice could not remove the
vehicle’s occupants or request further identification. During a legitimate traffic stop, a
Perry County, Case No. 24 CA 00001 12
request for identification from a driver and any passengers, followed by a computer check
of that information does not constitute an unreasonable search and seizure, so long as
the traffic stop is not extended in duration beyond the time reasonably necessary to
effectuate its purpose. “Typically, such inquiries involve checking the driver’s license,
determining whether there are outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance.” Rodriguez v. United States, 575 U.S.
348, 355 (2015).
{¶48} “The detention of a stopped driver may continue beyond [the normal] time
frame when additional facts are encountered that give rise to a reasonable, articulable
suspicion of criminal activity beyond that which prompted the initial stop.” State v. Isles,
2020-Ohio-3061, ¶ 19, quoting State v. Batchili,
2007-Ohio-2204, ¶ 15.
{¶49} The detection of raw marijuana was not the only reason the deputies had to
prolong the stop and provide probable cause to search the vehicle. When Rodriguez was
asked to step out of the vehicle, he threw what appeared to be a plastic bag of white pills
in the berm of the highway which he admitted were Percocet. Thus, the totality of the
circumstances provided more evidence than the odor of raw marijuana alone that
Rodriquez was engaged in criminal activity. “The propriety of an investigative stop by a
police officer must be viewed in light of the totality of the surrounding circumstances.”
State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the syllabus.
{¶50} Appellant’s second assignment of error is overruled.
Perry County, Case No. 24 CA 00001 13
CONCLUSION
{¶51} The trial court did not err when it denied appellant’s motion to suppress. We
overrule the two assignments of error and affirm the trial court’s judgment.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/kt 1223
