[Cite as State v. Jessee, 2011-Ohio-5025.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24073
vs. : T.C. CASE NO. 09CR3201/1
MATTHEW JESSEE : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of September, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
P.J. Conboy, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber
Heights, OH 45424
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On September 28, 2009, at 6:44 p.m., Dayton police
officer Dan Zwiesler observed a vehicle driven by Defendant Matthew
Jessee make an abrupt right hand turn from Hoover Avenue onto
Westwood Avenue. Defendant failed to signal his intention to turn
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prior to making the turn. Officer Zwiesler immediately initiated
a traffic stop of Defendant’s vehicle for failing to signal the
turn.
{¶ 2} When Officer Zwiesler approached the vehicle, Defendant
was rolling down his window. The first thing Officer Zwiesler
noticed was the overpowering smell of raw marijuana in the vehicle.
From his experience as a Dayton police officer, Zwiesler
recognized the odor because he has smelled the odor of raw marijuana
over one thousand times.
{¶ 3} As a result of smelling the odor of raw marijuana coming
from Defendant’s vehicle, Officer Zwiesler decided to search the
vehicle’s passenger compartment. After Defendant and his three
passengers were removed from the vehicle, Officer Zwiesler
discovered a clear, gallon-size freezer bag half full of marijuana
underneath the front edge of the driver’s seat.
{¶ 4} Defendant was indicted on one count of possession of
marijuana, between two hundred and one thousand grams, a fifth
degree felony in violation of R.C. 2925.11(A). Defendant filed
a motion to suppress evidence and his statements to police. The
trial court overruled the motion following a hearing. Defendant
entered a plea of no contest to the charge and was found guilty.
The trial court sentenced Defendant to five years of community
control sanctions.
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{¶ 5} Defendant timely appealed to this court from his
conviction and sentence. Defendant’s appellate counsel filed an
Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 19 L.Ed.2d 493, stating that he could find no meritorious
issues for appellate review. We notified Defendant of his
appellate counsel’s representations and afforded him ample time
to file a pro se brief. None has been received. This case is
now before us for our independent review of the record. Penson
v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 6} Defendant’s appellate counsel has identified one
possible issue for appeal: that the trial court erred in overruling
Defendant’s motion to suppress evidence.
{¶ 7} With respect to the stop and search of Defendant’s
vehicle, Defendant’s failure to properly signal his turn, which
Officer Zwiesler witnessed, constitutes a traffic violation and
provides sufficient probable cause for the stop. Dayton v.
Erickson, 76 Ohio St.3d 3, 1996-Ohio-431. The stop of Defendant’s
vehicle was therefore lawful.
{¶ 8} When Officer Zwiesler approached the driver’s window,
which Defendant rolled down, he immediately recognized the
overpowering odor of raw marijuana coming from the vehicle from
his prior experience as a police officer.
{¶ 9} In State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10, the
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Ohio Supreme Court held:
{¶ 10} “The smell of marijuana, alone, by a person qualified
to recognize the odor, is sufficient to establish probable cause
to conduct a search.” Syllabus.
{¶ 11} Defendant’s vehicle was properly searched pursuant to
the automobile exception to the warrant requirement. Id.
Defendant’s Fourth Amendment rights were not violated.
{¶ 12} With respect to Defendant’s statements, both times that
Defendant was questioned by police, once by Officer Zwiesler and
once by Detective Baker, this record shows that Defendant was first
read his Miranda rights, that he indicated each time that he
understood his rights, that he knowingly and voluntarily waived
his rights and agreed to speak with police, and that his statements
were voluntary. Defendant’s Fifth, Sixth and Fourteenth Amendment
rights were not violated. This assignment of error lacks arguable
merit.
{¶ 13} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
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DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Carley J. Ingram, Esq.
P.J. Conboy, II, Esq.
Matthew P. Jessee
Hon. Mary Katherine Huffman