[Cite as State v. Fields, 2016-Ohio-3127.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015 CA 00182
CARLOS J. FIELDS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2015 CR 00647


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                          May 23, 2016



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 BRADLEY R. IAMS
PROSECUTING ATTORNEY                            301 Cleveland Avenue, NW
KRISTINE W. BEARD                               Canton, Ohio 44702
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015 CA 00182                                                     2

Wise, J.

       {¶1}   Defendant-Appellant Carlos Jermaine Fields appeals his conviction and

sentence on one count of possession of cocaine, entered in the Stark County Common

Pleas Court following a plea of no contest.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS

       {¶3}   On June 23, 2015, Appellant Carlos Jermaine Fields was indicted by the

Stark County Grand Jury on one count of possession of cocaine, in violation of R.C.

§2925.11(A)(c)(4)(c), a First Degree Felony.

       {¶4}   On July 17, 2015, Appellant appeared before the court for an arraignment

and entered a not guilty plea to the indictment.

       {¶5}   On August 4, 2015, Appellant filed a Motion to Suppress, asserting that the

law enforcement officer lacked sufficient training in marijuana odors to establish probable

cause to search Appellant's person.

       {¶6}   On August 6, 2015, the trial court conducted a hearing wherein the following

evidence was presented:

       {¶7}   On April 26, 2015, Ohio State Highway Patrol Trooper Justin Smith stopped

Appellant for speeding, traveling 48 miles per hour in a 35 mile per hour zone, and

equipment failure (a damaged headlight). As the Trooper approached the vehicle he

observed two occupants in the vehicle. The Trooper also observed Appellant in the

driver's seat quickly moving his right arm to shove something over to his left side. When

the Trooper reached the driver's side window, Appellant engaged in unusual behavior
Stark County, Case No. 2015 CA 00182                                                     3


yelling "don't shoot me." The Trooper immediately smelled a strong odor of marijuana. He

then asked Appellant to exit the vehicle and called for backup.

      {¶8}   The Trooper placed Appellant in the back seat of his cruiser as a safety

precaution and to determine if the marijuana odor was emanating from Appellant. After

placing Appellant in the back seat of his cruiser, Trooper Smith realized that Appellant

was sitting next to and had access to his coat, which he had left on the backseat. When

Trooper Smith reached in the vehicle to remove his coat, he again smelled a strong odor

of marijuana emanating from Appellant’s person. The Trooper then removed Appellant

from the vehicle to conduct a search of Appellant’s person.

      {¶9}   Prior to the search commencing, Appellant voluntarily handed Trooper

Smith a plastic baggie containing 4 grams of marijuana and admitted that he had been

smoking marijuana earlier that day.

      {¶10} Appellant was then handcuffed to continue the search for weapons and

contraband. During the search, the Trooper recovered $2,030.00 in United States

currency from Appellant's right front pocket and cocaine from Appellant's left coat pocket.

Appellant was placed under arrest for cocaine possession.

      {¶11} On September 10, 2015, the trial court issued findings of fact and

conclusions of law. Specifically, the trial court found that the Trooper had probable cause

to stop Appellant's vehicle and probable cause to search Appellant's person, thereby

overruling Appellant's motion to suppress.

      {¶12} On September 30, 2015, Appellant appeared and entered a No Contest

Plea to the indicted charge.
Stark County, Case No. 2015 CA 00182                                                    4


      {¶13} Appellant now appeals the trial court’s decision overruling Appellant's

suppression motion and raising the following error for review:

                                  ASSIGNMENT OF ERROR

      {¶14} “I. THERE WAS NO PROBABLE CAUSE TO SEARCH FIELDS BECAUSE

THE OFFICER LACKED THE TRAINING OR EXPERIENCE NECESSARY TO

IDENTIFY AND DETECT THE SMELL OF MARIJUANA.”

                                               I.

      {¶15} In his sole Assignment of Error, Appellant argues the trial court erroneously

denied his motion to suppress. We disagree.

      {¶16} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibits 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.

      {¶17} 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. 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.
Stark County, Case No. 2015 CA 00182                                                       5

Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. However, as the United States

Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”

       {¶18} 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.

       {¶19} 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.

       {¶20} Generally, “[f]or a search or seizure to be reasonable under the Fourth

Amendment, it must be based upon probable cause and executed pursuant to a warrant.”

State v. Moore, 90 Ohio St.3d 47, 49 (2000). However, “the smell of marijuana, alone, by

a person qualified to recognize the odor, is sufficient to establish probable cause to search

a motor vehicle, pursuant to the automobile exception to the warrant requirement. There

need not be other tangible evidence to justify a warrantless search of the vehicle.” Id. at

48. See also State v. Farris, 109 Ohio St.3d 519, 2006–Ohio–3255 (reaffirming that the

smell of marijuana in the passenger compartment of a vehicle establishes probable cause

for a warrantless search of the passenger compartment, but not of the trunk).
Stark County, Case No. 2015 CA 00182                                                     6


       {¶21} There is no requirement that law enforcement officers have specific training

or be an expert in order to identify the smell of marijuana. State v. Knox, 8th Dist.

Cuyahoga No. 98713, 2013–Ohio–1662, ¶ 15. “The ordinary training and experience of a

police officer may qualify an officer to identify marijuana and establish probable cause to

conduct a search if the officer establishes that he has had some experience identifying

marijuana in the past.” Id.

       {¶22} Appellant cites State v. Birdsong, 5th Dist. Stark No .2008 CA 00221, 2009–

Ohio–1859, for the proposition Trooper Smith lacked experience and training in

recognizing the smell of burnt marijuana and therefore lacked probable cause to search

Appellant.

       {¶23} In Birdsong, the court of appeals held that an officer is required under Moore

to “be trained and/or experienced in identifying and detecting the smell of marijuana.” Id.

at ¶16. The court then found, “[t]he State, in the instant action, did not present any

testimony as to [the patrolman's] qualifications, including his training and/or experience.

In the absence of such testimony, we find the officer's testimony about an odor of

marijuana, standing alone, was insufficient to establish probable cause to search

Appellant's vehicle.” (Emphasis added.) Id.

       {¶24} We find that Birdsong is inapplicable here. Unlike the case sub judice, there

was no testimony at all in Birdsong regarding the officer's qualifications. In cases where

no testimony is adduced regarding an officer's training, experience, or qualifications in

detecting and identifying the odor of marijuana, reviewing courts have held that

suppression is proper when the sole basis for arrest is the smell or presence of marijuana.

See State v. Bradley, 5th Dist. Richland No. 2003–CA–0040, 2003–Ohio–5914 (no
Stark County, Case No. 2015 CA 00182                                                      7

evidence presented at the suppression hearing); State v. Gaus, 4th Dist. Ross No.

00CA2546, 2001 WL 1913831 (Mar. 21, 2001) (Same). State v. Mansour, 12th Dist.

Warren No. 2015-06-051, 2016-Ohio-755.

       {¶25} In the case before us, during the suppression hearing, Trooper Smith

testified that he was a law enforcement officer with 16 years of experience, he was trained

at the Ohio State Highway Training Academy to recognize the odor of marijuana, and

during his career he has come into contact with marijuana over one hundred times.

       {¶26} Here, the trooper described the smell of marijuana coming from appellant's

vehicle as “strong” and then later detected a strong odor of marijuana coming from

Appellant’s person. Based on the trooper's testimony, the trial court found that the trooper

was qualified by reason of his training and experience to recognize the smell of marijuana.

       {¶27} Given his testimony, we find that Trooper Smith was qualified to recognize

the smell of marijuana. We further find that based upon the odor of marijuana coming

from Appellant’s person and the totality of the circumstances, Trooper Smith had probable

cause to search Appellant. See State v. Eiler, 5th Dist. Tuscarawas No.2015 AP 05 0023,

2016–Ohio–224, ¶ 32; State v. Ivery, 11th Dist. Lake No. 2011–L–081, 2012–Ohio–1270,

¶ 28; and State v. Rodriguez, 12th Dist. Butler No. CA2014–03–073, 2015–Ohio–571, ¶

19.
Stark County, Case No. 2015 CA 00182                                                8


      {¶28} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.



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