[Cite as State v. Eiler, 2016-Ohio-224.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2015 AP 05 0023
JOSHUA L. EILER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2014 CR 09 0224
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST MARK A. PERLAKY
ASSISTANT PROSECUTOR ASSISTANT PUBLIC DEFENDER
125 East High Avenue 163 North Broadway
New Philadelphia, Ohio 44663 New Philedelphia, Ohio 44663
Tuscarawas County, Case No. 2015 AP 05 0023 2
Wise, J.
{¶1} Appellant Joshua L. Eiler appeals his conviction on one count of aggravated
possession of drugs following a jury trial in the Tuscarawas County Common Pleas
Court.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 6, 2014, Trooper Mason Hale of the Ohio State Highway Patrol
observed a black Honda Civic traveling at what appeared to be in excess of the 55 mile
per hour speed limit on State Route 39 in Tuscarawas County. (Trial T. at 34). Trooper
Hale confirmed said speed with his moving radar and turned around to pursue the
vehicle. (Id.) Hale performed a traffic stop of the vehicle at mile post 25. (Trial T. at 56).
Upon approach, the driver of the Civic opened the door, as the window was not working,
and the driver, later identified as Appellant Joshua Eiler, agreed to provide his license
information to Trooper Hale.
{¶3} Trooper Hale then returned to his cruiser and had a conversation with
supervising officer Clinton Armstrong, who was with Hale in the cruiser. (Trial T. at 58).
During said conversation, Trooper Hale indicated that he believed he smelled the odor
of burnt marijuana corning from the driver's side of the vehicle, but that he was unable
to smell it when he brought himself closer to Appellant within the vehicle. (Supp. T. at
30, 34).
{¶4} Hale and Armstrong found that there was a warrant for Appellant's arrest,
but they had received an indication that Appellant was outside of the pick-up radius of
the warrant in question. (Supp. T. at 19-21).
Tuscarawas County, Case No. 2015 AP 05 0023 3
{¶5} Trooper Armstrong then approached the vehicle on the passenger side. He
indicated that he could not smell an odor of burnt marijuana coming from the passenger
side of the vehicle, and he specifically noted that the passenger had been smoking a
cigarette immediately prior to his approach of the vehicle. He testified that this caused
him to be unable to smell anything. (Supp. T. at 11).
{¶6} The Troopers then made a call to dispatch to see if there was any
information that may have suggested Appellant was a drug trafficker, and the dispatcher
advised that she had no such indications. (Supp. T. at 23).
{¶7} Later into the traffic stop, Trooper Armstrong approached the driver's side
of the vehicle and inquired as to whether Appellant had found his proof of financial
responsibility. After speaking with Appellant, Armstrong returned to his cruiser and stated
to Trooper Hale that he believed that he smelled burnt marijuana coming from the
vehicle. (Supp. T. at 12).
{¶8} Upon completing the drafting of the speeding ticket against Appellant,
Troopers Hale and Armstrong ordered both occupants out of the vehicle in order to
conduct a search based on what they believed was probable cause. (Supp. T. at 36).
During the search, Trooper Armstrong ordered the passenger to leave her purse in the
vehicle so that it could be searched. (Supp. T. at 26). Upon searching the passenger's
purse, a plastic bag with green plant material, a digital scale, and a blue/silver metal
smoking pipe, among other things, were found. (Id.) While in the Trooper's cruiser, both
Appellant and his passenger briefly discussed the Troopers' search, and Appellant
indicated that the Troopers "found everything." (Trial T. at 63).
Tuscarawas County, Case No. 2015 AP 05 0023 4
{¶9} Appellant was arrested and ultimately charged with Possession of Drug
Paraphernalia and Possession of Marijuana. After substance testing, Appellant was
indicted on one count of Aggravated Possession of a Controlled Substance, namely
XLR- 11.
{¶10} On December 9, 2015, Appellant filed a Motion to Suppress.
{¶11} On January 28, 2015, a hearing was held on Appellant’s motion to
suppress.
{¶12} By Judgment Entry dated February 23, 2015, the trial court overruled
Appellant's Motion to Suppress Evidence.
{¶13} A Jury Trial was held in this matter on April 9 and 10, 2015.
{¶14} After deliberating, the jury returned a verdict of Guilty on the sole count in
the indictment.
{¶15} The trial court sentenced Appellant to one (1) year of unsupervised
community control sanctions, seventy-five (75) hours of community service, payment of
the court costs, and to serve a six-month (6) suspension of his motor vehicle operator's
license. Said sentence was stayed pending the present appeal.
{¶16} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶17} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION
TO SUPPRESS EVIDENCE, AS THE TROOPERS DID NOT HAVE PROBABLE
CAUSE TO EITHER EXTEND THE TRAFFIC STOP OF APPELLANT'S VEHICLE OR
TO SEARCH EITHER APPELLANT'S VEHICLE OR HIS PASSENGER'S PURSE.
Tuscarawas County, Case No. 2015 AP 05 0023 5
{¶18} “II. THE JURY'S VERDICT OF GUILTY WAS BASED ON INSUFFICIENT
EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶19} In his First Assignment of Error, Appellant contends the trial court erred in
denying his motion to suppress. We disagree.
{¶20} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third type of claim, an appellate court must independently determine,
without deference to the trial court's conclusion, whether the facts meet the appropriate
legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR
57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141;
State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N .E.2d 1172; State v. Claytor (1993),
85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d
592, 621 N .E.2d 726.
{¶21} Here, Appellant contends that the trial court incorrectly decided the ultimate
or final issue raised in the Motion to Suppress.
{¶22} Trooper Hale stopped Appellant’s vehicle travelling over the posted speed
limit. Appellant has not challenged the initial stop of the vehicle.
Tuscarawas County, Case No. 2015 AP 05 0023 6
{¶23} Here, Appellant argued in his suppression motion that the officers lacked
reasonable suspicion to prolong the traffic stop nor probable cause to search the vehicle
and/or the passenger’s purse.
{¶24} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶25} The United States Supreme Court has held that “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
{¶26} When a law enforcement officer stops an individual for a minor traffic
offense, the officer may not generally expand the scope of the stop unless the officer
observes additional facts giving rise to a reasonable suspicion of other criminal activity.
State v. Latona, Richland App.No. 2010–CA–0072, 2011–Ohio–1253, ¶ 25, citing State
v. Guckert (Dec. 20, 2000), Washington App. No. 99CA49, 2000–Ohio–1958.
{¶27} Many state and federal courts have previously confronted this issue and
concluded that the detection of the odor of marijuana, alone, by an experienced law
enforcement officer is sufficient to establish probable cause to conduct a reasonable
search. See, e.g., People v. Kazmierczak (2000), 461 Mich. 411, 413, 605 N.W.2d 667,
668 (“the smell of marijuana alone by a person qualified to know the odor may establish
probable cause to search a motor vehicle”); Mendez v. People (Colo.1999), 986 P.2d
Tuscarawas County, Case No. 2015 AP 05 0023 7
275, 280 (“the smell of burning marijuana may give an officer probable cause to search
or arrest”); State v. Secrist (1999), 224 Wis.2d 201, 210, 589 N.W.2d 387, 391 (“The
unmistakable odor of marijuana coming from an automobile provides probable cause for
an officer to believe that the automobile contains evidence of a crime.”); Green v. State
(1998), 334 Ark. 484, 490, 978 S.W.2d 300, 303 (“the odor of marijuana emanating from
a particular bag located on a bus is sufficient to provide probable cause to conduct a
search of that bag”).
{¶28} The Ohio Supreme Court held in State v. Moore (2000), 90 Ohio St.3d 47,
if the smell of marijuana, as detected by a person who is qualified to recognize the odor,
is the sole circumstance, this is sufficient to establish probable cause. There need be no
additional factors to corroborate the suspicion of the presence of marijuana. Id.
{¶29} In the case sub judice, both Troopers Hale and Armstrong testified to
detecting the odor of marijuana coming from the vehicle. (Trial T. at 35-36, 57; Supp. T.
at 12). Both Troopers testified that they had received training through the Ohio State
Highway Patrol Academy on how to recognize the odor of marijuana. (Supp. T. at 7, 31).
Trooper Armstrong further testified he had experience in numerous traffic stops involving
marijuana. (Supp. T. at 7).
{¶30} The officers' observations in detecting an odor of marijuana coming from
inside the vehicle created probable cause to the search of the vehicle by the law
enforcement officers. Pursuant to U.S. v. Ross (1982), 456 U.S. 798, once probable
cause exists to search the vehicle, the entire vehicle may be searched.
Tuscarawas County, Case No. 2015 AP 05 0023 8
{¶31} A police officer with probable cause to search a vehicle may inspect a
passenger's belongings found in the car which are capable of concealing an object of
the search. Wyoming v. Houghten (1999), 526 U.S. 295.
{¶32} Upon review, we find the officers had probable cause to search the vehicle
based upon the odor of marijuana detected from inside the vehicle. Both officers testified
to their training and experience in detecting such odors. We find because the purse was
inside the vehicle at the time probable cause to search existed, the instruction to
Appellant not to remove her purse does not violate the Fourth Amendment. State v.
Abbuhl, 5th Dist. Tusc. County No. 11AP030014, 2011-Ohio-6550; See also, State v.
Mercier, (2008) 117 Ohio St.3d 1243, 2008–Ohio–1429;
{¶33} Accordingly, the officer's had probable cause to conduct the search of the
entire vehicle, including the passenger’s purse. The trial court correctly denied the
motion to suppress.
{¶34} Appellant’s First Assignment of Error is overruled.
II.
{¶35} In his Second Assignment of Error, Appellant argues that his conviction was
against the manifest weight and sufficiency of the evidence. We disagree.
{¶36} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–
Tuscarawas County, Case No. 2015 AP 05 0023 9
Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1983). Reversing a conviction as being against the manifest weight of the evidence
and ordering a new trial should be reserved for only the “exceptional case in which the
evidence weighs heavily against the conviction.” Id. The weighing of the evidence and
judging of the credibility of the witnesses is best left to the trier of fact.
{¶37} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶38} Appellant herein was charged and convicted of one count of aggravated
possession of drugs, in violation of R.C. §2925.11(A), which provides: “(A) No person
shall knowingly obtain, possess, or use a controlled substance or a controlled substance
… in Schedule I or II.”
{¶39} Appellant specifically argues that he was not in possession of the drugs
found in the passenger’s purse in his vehicle.
{¶40} R.C. §2925.01(K) defines possession as follows: “ ‘Possess' or ‘possession’
means having control over a thing or substance, but may not be inferred solely from
mere access to the thing or substance through ownership or occupation of the premises
upon which the thing or substance is found.”
{¶41} R.C. §2901.21 provides the requirements for criminal liability and provides
that possession is a “voluntary act if the possessor knowingly procured or received the
Tuscarawas County, Case No. 2015 AP 05 0023 10
thing possessed, or was aware of the possessor's control of the thing possessed for
sufficient time to have ended possession.” R.C. 2901.21(D)(1).
{¶42} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d
174, 176, 538 N.E.2d 98(1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d
787(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. To
establish constructive possession, the evidence must prove that the defendant was able
to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d
316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial
evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist.2000).
Circumstantial evidence that the defendant was located in very close proximity to the
contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86
Ohio App.3d 227, 235, 620 N.E.2d 242, 247–248 (8th Dist.1993); State v. Morales, 5th
Dist. Licking No. 2004 CA 68, 2005–Ohio–4714, ¶ 50; State v. Moses, 5th Dist. Stark
No. 2003CA00384, 2004–Ohio–4943,¶9. Ownership of the contraband need not be
established in order to find constructive possession. State v. Smith, 9th Dist. Summit No.
20885, 2002–Ohio–3034, ¶13, citing State v. Mann, 93 Ohio App.3d 301, 308, 638
N.E.2d 585 (8th Dist.1993). Furthermore, possession may be individual or joint. Wolery,
46 Ohio St.2d at 332, 348 N.E.2d 351. Multiple individuals may constructively possess a
particular item of contraband simultaneously. State v. Pitts, 4th Dist. Scioto No. 99 CA
2675, 2000–Ohio–1986. The Supreme Court has held that knowledge of illegal goods
on one's property is sufficient to show constructive possession. State v. Hankerson, 70
Ohio St.2d 87, 91, 434 N.E.2d 1362, 1365 (1982), certiorari denied, 459 U.S. 870, 103
S.Ct. 155, 74 L.Ed.2d 130 (1982).
Tuscarawas County, Case No. 2015 AP 05 0023 11
{¶43} As set forth above, testimony was presented at trial that the controlled
substance XLR-11 was found in the purse of Appellant’s passenger, Ashley Bates. The
same substance was also found in a device used to smoke the drug and a on a scale
located inside a lunch box found in the back seat of Appellant’s vehicle. Testimony was
presented that the lunch box also contained baggies. Additionally, when appellant was
placed in the trooper’s vehicle, he was overheard asking or telling Ms. Bates “they took
everything” and “I told them I don’t know what it is.”
{¶44} Based on the foregoing, we find that there was sufficient evidence that
appellant knew that the substance found in his car was XLR-11, knew that it was in his
car and allowed it, and therefore constructively possessed the drugs found in his vehicle.
We further find that the jury did not lose its way in convicting Appellant of the crime of
possession of drugs.
{¶45} Appellant’s Second Assignment of Error is overruled.
{¶46} For the foregoing reasons, the judgment of the Court of Common Pleas,
Tuscarawas County, Ohio is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 112
State v. Eiler
Combined Opinion