[Cite as State v. Quaker, 2020-Ohio-2887.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-19-33

        v.

BLAKE A. QUAKER,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2018 0138

                                      Judgment Affirmed

                              Date of Decision: May 11, 2020




APPEARANCES:

        Linda Gabriele for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-33


PRESTON, J.

       {¶1} Defendant-appellant, Blake A. Quaker (“Quaker”), appeals the May 10,

2019 judgment of sentence of the Allen County Court of Common Pleas. For the

reasons that follow, we affirm.

       {¶2} This case arises from a March 29, 2018 traffic stop of Quaker’s vehicle

on Interstate 75 in Allen County, Ohio. When approaching Quaker’s vehicle,

Trooper Bryan Holden (“Trooper Holden”), the law enforcement officer who

stopped the vehicle, detected the odor of burnt marijuana emanating from within the

vehicle. Thereafter, Trooper Holden asked Quaker to exit the vehicle and secured

him in the backseat of his patrol vehicle. When Trooper Holden opened the

passenger side door of the vehicle, he observed an open dominoes container

containing what Trooper Holden recognized as raw marijuana residue.             Law

enforcement officers conducted a search of the passenger compartment and trunk of

the vehicle. During the search of the trunk, law enforcement officers located a black

backpack.    Inside the backpack, law enforcement officers discovered a clear

vacuum-sealed bag wrapped in a t-shirt and duct tape containing what law

enforcement officers suspected to be opioids. The package was seized, and its

contents were later identified as fentanyl.

       {¶3} On May 17, 2018, the Allen County Grand Jury indicted Quaker on one

count of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(c),


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a second-degree felony. (Doc. No. 4). On May 25, 2018, Quaker appeared for

arraignment and pleaded not guilty to the charge in the indictment. (Doc. No. 11).

         {¶4} On August 21, 2018, Quaker filed a motion to suppress evidence. (Doc.

No. 27). In his motion, Quaker argued that the law enforcement officers exceeded

their authority by searching the trunk of the vehicle.1 (Id.). A hearing on Quaker’s

suppression motion was conducted on October 2, 2018. (Doc. No. 39). On October

5, 2018, the trial court denied Quaker’s motion to suppress evidence. (Id.).

         {¶5} On January 28, 2019, Quaker filed a “Motion for Leave to File Delayed

Motion to Suppress Stop Instanter.”2 (Doc. No. 72). On February 5, 2019, the trial

court granted Quaker’s motion to file the delayed suppression motion. (Doc. No.

75). The following day, Quaker filed additional authority regarding the motion to

suppress the stop. (Doc. No. 77). On February 11, 2019, the State filed its response

to Quaker’s motion to suppress the traffic stop. (Doc. No. 79). A hearing on

Quaker’s second suppression motion was held on February 14, 2019. (Doc. No.

86). On February 15, 2019, Quaker filed supplemental briefing in reply to the


1
  In the August 21, 2018 motion to suppress, Quaker also challenges the validity of the initial stop of his
vehicle by law enforcement. (See Doc. No. 27). However, at the hearing on October 2, 2018, Quaker’s trial
counsel conceded that Quaker was not challenging the initial stop of the vehicle. (Oct. 2, 2018 Tr. at 49-50).
(See Doc. No. 39).
2
  On January 28, 2019, Quaker also filed a “Motion for Leave to Filed Delayed Motion to Suppress Statement
Instanter,” in which he argued that certain statements he made during the encounter should be suppressed
because the Miranda warnings he received were incomplete. (Doc. No. 73). On February 5, 2019, the trial
court granted Quaker’s motion to file the delayed motion to suppress statements. (Doc. No. 75). On February
14, 2019, the trial court heard both suppression motions filed on January 28, 2019. (Doc. No. 86). On March
8, 2019, the trial court granted Quaker’s motion to suppress statements, in part. (Id.). Because Quaker does
not challenge the issues raised in his January 28, 2019 motion to suppress the statements, we will not further
address this motion.

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State’s response. (Doc. No. 82). On March 8, 2019, the trial court denied Quaker’s

motion to suppress the stop of the vehicle. (Doc. No. 86).

      {¶6} On March 28, 2019, Quaker, under a negotiated plea agreement,

withdrew his not guilty plea and entered a plea of no contest to the count in the

indictment.   (Doc. Nos. 89, 90).    In exchange, the State agreed to make no

sentencing recommendation. (Doc. No. 89). The trial court accepted Quaker’s no

contest plea, found him guilty, and ordered a presentence investigation. (Doc. No.

90). On May 10, 2019, the trial court sentenced Quaker to four years’ imprisonment.

(Doc. No. 94).

      {¶7} On June 4, 2019, Quaker filed a notice of appeal. (Doc. No. 99). He

raises three assignments of error for our review, which we will address together.

                           Assignment of Error No. I

      The trial court erred in overruling the defendant-appellant’s
      motion to suppress as law enforcement lacked reasonable
      suspicion to stop the defendant-appellant.

                           Assignment of Error No. II

      The trial court erred in overruling the defendant-appellant’s
      motion to suppress as law enforcement lacked probable cause to
      conduct a warrantless search of the defendant-appellant’s vehicle.

                          Assignment of Error No. III

      The trial court erred in overruling the defendant-appellant’s
      motion to suppress as law enforcement lacked probable cause to
      arrest the defendant-appellant.


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       {¶8} In his first assignment of error, Quaker argues the trial court erred by

denying his motion to suppress the stop of the vehicle because Trooper Holden did

not have reasonable and articulable suspicion that he was operating the motor

vehicle in violation of the law. (Appellant’s Brief at 12). Specifically, Quaker

argues that because Trooper Holden did not have probable cause to stop the vehicle

for a violation of R.C. 4511.34, which is commonly referred to as “following too

close,” the trial court erred by concluding that the stop of his vehicle was

constitutionally valid. (Id. at 12-15). In his second assignment of error, Quaker

argues that the trial court erred by denying his motion to suppress because law

enforcement lacked probable cause to conduct a warrantless search of his vehicle.

(Id. at 15). Specifically, Quaker contends that law enforcement did not have

probable cause to search the trunk of the vehicle because law enforcement did not

detect the odor of raw marijuana in the passenger compartment of the vehicle. (Id.

at 15-18). In his third assignment of error, Quaker argues that the trial court erred

in overruling his motion to suppress because law enforcement did not have probable

cause to arrest him. (Id. at 18-19).

       {¶9} The Fourth Amendment to the United States Constitution guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures * * *.” “‘The primary purpose of the

Fourth Amendment is to impose a standard of reasonableness upon the exercise of


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discretion by law enforcement officers in order to “safeguard the privacy and

security of individuals against arbitrary [governmental] invasions.”’” State v. Kerr,

3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, ¶ 12, quoting State v. Carlson, 102

Ohio App.3d 585, 592 (9th Dist.1995), quoting Delaware v. Prouse, 440 U.S. 648,

654, 99 S.Ct. 1391 (1979). “‘The Fourth Amendment does not proscribe all state-

initiated searches and seizures; it merely proscribes those which are unreasonable.’”

Id., quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801 (1991), citing

Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793 (1990). “Thus, ‘[t]he touchstone

of the Fourth Amendment is reasonableness.’” Id., quoting Jimeno at 250.

       {¶10} “Temporary detention of individuals during the stop of an automobile

by the police, even if only for a brief period and for a limited purpose, constitutes a

‘seizure’ of ‘persons’ within the meaning” of the Fourth Amendment. Whren v.

United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769 (1996), citing Prouse at 653,

99 S.Ct. 1391, United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074

(1976), and United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574

(1975). Accordingly, “[a]n automobile stop is * * * subject to the constitutional

imperative that it not be ‘unreasonable’ under the circumstances.” Id. at 810. An

automobile stop based on probable cause that a criminal violation, including a minor

traffic violation, has occurred or was occurring “is not unreasonable, and * * * an

officer who makes a traffic stop based on probable cause acts in an objectively


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reasonable manner.” Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996). In this

context, “[p]robable cause, ‘means less than evidence which would justify

condemnation,’ so that only the ‘probability, and not a prima facie showing of

criminal activity is the standard of probable cause.’” State v. Gonzales, 3d Dist.

Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18, quoting State v. George,

45 Ohio St.3d 325, 329 (1989).

       {¶11} Concerning the stop of Quaker’s vehicle, the trial court found, in

relevant part, as follows:

       At the hearing, [Trooper] Holden testified that he was in his patrol car

       in a stationary position in the median of I-75 when the defendant

       passed him in the far right southbound lane. The defendant at that

       time was approximately 1 ½ to 2 car lengths behind another vehicle.

       The road conditions were wet, as it was raining outside. The initial

       sighting of the defendant by the trooper is not visible on State’s

       Exhibit 1 as the recording begins 90 seconds before the trooper turned

       on his lights to actually initiate the traffic stop. However, the video

       does reveal the wet road condition, the fact it was raining, and the

       defendant behind another vehicle at a fairly short distance. The

       trooper also testified that he was able to pace the defendant’s speed at

       65-68 mph, that the posted speed limit in that area is 70 mph, and that


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       he has been trained that a vehicle should keep one car length of

       distance from another vehicle for every 10 miles of speed in ideal

       conditions in order to ensure adequate space and time to stop if

       necessary.

(Doc. No. 86).

       {¶12} We conclude that competent, credible evidence supports the trial

court’s findings with respect to the circumstances surrounding the stop of Quaker’s

vehicle. At the February 14, 2019 suppression hearing, Trooper Holden, a canine

handler and interdiction officer with the Ohio State Highway Patrol, testified that

on March 29, 2018, he was in his patrol vehicle sitting stationary in the median

crossover of Interstate 75 in Allen County, Ohio patrolling the two lanes of

southbound traffic when he observed two vehicles in the right-hand lane approach

his location. (Feb. 14, 2019 Tr. at 6-9). Trooper Holden testified that the vehicles

attracted his attention because the small passenger car was closely trailing the SUV

despite the fact that the left lane of traffic was “wide open” and clear of traffic. (Id.

at 9). Trooper Holden testified that when the small passenger vehicle passed his

location, the vehicle was trailing the SUV at a distance of approximately one and

one-half to two car lengths. (Id.).

       {¶13} Trooper Holden testified that shortly after the vehicles passed his

location, he began to pursue the small passenger vehicle. (Id. at 9-10). Trooper


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Holden stated that by the time he caught up to the small passenger vehicle, it had

increased the distance between it and the SUV in front of it to a distance of

approximately two to two and one-half car lengths. (Id. at 10). Trooper Holden

testified that the speed limit of the area is 70 miles per hour, and that although he

did not initially check the speed of the small passenger vehicle, he subsequently

paced the passenger vehicle and determined that it was traveling at a speed of

approximately 65 to 68 miles per hour. (Id. at 12). Trooper Holden testified that at

the time of his observations, it was raining, and he described the roads as “fairly

wet.” (Id. at 7-8). Trooper Holden stated that he initiated a traffic stop of the small

passenger vehicle for following the SUV too closely. (Id. at 10). He identified

Quaker as the driver and sole occupant of the small passenger vehicle. (Id. at 8-9).

       {¶14} Trooper Holden described a general guideline he uses to assist in

determining whether a vehicle is traveling too close to the vehicle in front of it. (Id.

at 16-18). According to Trooper Holden, under this guideline, for every ten miles

per hour that a vehicle is traveling, a vehicle should give itself one car length of

space between it and the vehicle in front of it. (Id. at 18). Trooper Holden stated

that the guideline is “based on pretty ideal conditions,” including a dry roadway.

(Id. at 19). According to Trooper Holden, rain increases stopping distance and can

increase reaction time. (Id.).




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       {¶15} Trooper Holden testified that his patrol vehicle is equipped with a

camera that was in working order on the day of the incident and identified State’s

Exhibit 1 as his patrol vehicle footage of the incident. (Id. at 13). (See State’s Ex.

1). Trooper Holden stated that the computer system saves and uploads the video

footage starting ninety seconds before he activates his overhead lights. (Feb. 14,

2019 Tr. at 13-14). He further testified that State’s Exhibit 1 did not include his

initial observation of the two vehicles because it occurred more than 90 seconds

before he activated his overhead lights to initiate the stop of Quaker’s vehicle. (Id.

at 14). (See State’s Ex. 1).

       {¶16} State’s Exhibit 1 begins as Trooper Holden’s vehicle is traveling

southbound on Interstate 75. (State’s Ex. 1). In the dashboard footage, two vehicles

are depicted traveling in the right lane of travel. (Id.). In the video recording, a

small gray vehicle is seen closely following a dark-colored SUV. (Id.). As the

recording continues, the small gray vehicle increases the distance between the

vehicle and the dark-colored SUV it is trailing. (Id.). In addition, the recording

reflects that in the time preceding the stop of the vehicle, it was raining and the

windshield wipers of Trooper Holden’s patrol vehicle were activated. (Id.).

       {¶17} Therefore, competent, credible evidence supports the trial court’s

factual findings concerning Trooper Holden’s stop of Quaker’s vehicle. See State

v. Craw, 3d Dist. Mercer No. 10-17-09, 2018-Ohio-1769, ¶ 36, citing State v.


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Thompson, 7th Dist. Jefferson Nos. 98 JE 28 and 98 JE 29, 2001 WL 69197, *5-6

(Jan. 24, 2001). Based on these findings, the trial court concluded that the stop of

Quaker’s vehicle was constitutionally permissible because Trooper Holden

provided “specific and articulable facts” to warrant the stop of Quaker’s vehicle for

a violation of R.C. 4511.34 and had probable cause to believe that Quaker

committed a traffic violation. (Doc. No. 86).

       {¶18} We conclude that the trial court did not err by holding that Trooper

Holden had probable cause to stop Quaker’s vehicle for a violation of R.C. 4511.34.

Since the required reasonable articulable suspicion standard is a lower standard than

that of probable cause, it is clear that Trooper Holden had a basis for initiating a

traffic stop of Quaker’s vehicle. See State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-

4539 ¶ 23.

       {¶19} R.C. 4511.34 provides in pertinent part:

       The operator of a motor vehicle, streetcar, or trackless trolley shall not

       follow another vehicle, streetcar, or trackless trolley more closely than

       is reasonable and prudent, having due regard for the speed of such

       vehicle, streetcar, or trackless trolley, and the traffic upon and the

       condition of the highway.

R.C. 4511.34(A). “Although R.C. 4511.34(A) does not provide a specific standard

for determining when a motorist is following another vehicle more closely than is


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reasonable and prudent, numerous courts have concluded that a motorist’s failure to

follow another vehicle at a distance greater than one car length for every ten miles

per hour the motorist’s vehicle is traveling may, in some circumstances, indicate

that the motorist is in violation of R.C. 4511.34.” State v. Holmes, 3d Dist. Allen

No. 1-18-52, 2019-Ohio-2485, ¶ 29, citing State v. Ward, 4th Dist. Washington No.

10CA30, 2011-Ohio-1261, ¶ 16-17, State v. Kelly, 188 Ohio App.3d 842, 2010-

Ohio-3560, ¶ 18-20 (12th Dist.), State v. Stokes, 10th Dist. Franklin No. 07AP-960,

2008-Ohio-5222, ¶ 24-25, State v. Meza, 6th Dist. Lucas No. L-03-1223, 2005-

Ohio-1221, ¶ 19, and United States v. Dukes, 257 Fed.Appx. 855, 858 (6th

Cir.2007). “However, regardless of this ‘car-length’ standard, ‘[a]s is clear, the

statute is couched in relative terms, and violations depend upon the circumstances

of a given case.’” Id., quoting State v. Mason-Cowan, 10th Dist. Franklin No.

11AP-261, 2012-Ohio-1074, ¶ 7, citing State v. Gonzalez, 43 Ohio App.3d 59, 62

(6th Dist.1987). “‘An officer’s direct observation that a vehicle is following another

vehicle too closely provides probable cause to initiate a lawful traffic stop.’” Id.,

quoting Kelly at ¶ 15, citing State v. Perry, 12th Dist. Preble No. CA2004-11-016,

2005-Ohio-6041, ¶ 12.

       {¶20} Here, the record supports the trial court’s findings that Trooper Holden

observed Quaker’s vehicle following the SUV vehicle at a distance of one and one-

half to two car lengths and that Quaker’s vehicle was traveling in excess of 65 miles


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per hour as it trailed the SUV. Given that Trooper Holden observed Quaker’s

vehicle following another vehicle at a close distance and at a high speed while it

was raining, Trooper Holden had enough information to determine that, when

considering the speed of Quaker’s vehicle and the condition of the highway, there

was a sufficiently high probability that Quaker was not following the vehicle at a

reasonable and prudent distance. Thus, because the stop of Quaker’s vehicle was

supported by probable cause, the trial court did not err by concluding that the stop

was constitutionally valid. See Holmes at ¶ 30 (holding that a law enforcement

officer had probable cause to initiate a traffic stop of the defendant’s vehicle for a

violation of R.C. 4511.34 where the vehicle maintained less than two car lengths’

distance behind a commercial vehicle during rainy weather conditions).

       {¶21} Nevertheless, Quaker argues that the trial court erred because Trooper

Holden’s testimony is inconsistent with State’s Exhibit 1. Specifically, Quaker

argues that State’s Exhibit 1 depicts the two relevant vehicles as they pass under an

overpass, and that based upon the time that elapsed between the two vehicles

reaching the overpass, his vehicle had to be traveling more than one and one-half to

two car lengths behind the SUV it was trailing. We disagree.

       {¶22} Trooper Holden testified that while sitting stationary in the median, he

initially observed Quaker traveling one and one-half to two car lengths behind an

SUV. Trooper Holden stated that he then pulled onto the highway and followed


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Quaker for some time before initiating the stop. Moreover, Trooper Holden testified

that the footage depicted in State’s Exhibit 1 began 90 seconds before he activated

his lights and initiated the stop of Quaker’s vehicle. He further clarified that the

initial violation was not depicted in State’s Exhibit 1 because it occurred more than

90 seconds prior to the time he activated his lights. Trooper Holden also testified

that Quaker eventually slowed down and increased the distance between his vehicle

and the vehicle in front of him. Thus, we do not find that Trooper Holden’s

testimony is inconsistent with State’s Exhibit 1.

       {¶23} Quaker also argues that Trooper Holden’s stop of Quaker’s vehicle

was improper because “most vehicles passing by the scene of the traffic stop and on

the other side of the highway maintained the same distance between vehicles, and

usually much less, than the clearance of [Quaker’s] vehicle.” (Appellant’s Brief at

14). We disagree. First, as detailed above, Trooper Holden testified that the initial

violation was not depicted in State’s Exhibit 1. Thus, we cannot compare the

distances maintained by traffic observed in State’s Exhibit 1 to Trooper Holden’s

initial observation of Quaker’s vehicle. Moreover, even if other vehicles depicted

in State’s Exhibit 1 were following too closely, that does not mean that Quaker was

not following too close or that probable cause did not exist to initiate a traffic stop

of Quaker’s vehicle.




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       {¶24} Having concluded that the trial court did not err by holding that

probable cause supported the stop of Quaker’s vehicle, we next determine whether

the trial court erred by holding that the warrantless search of Quaker’s vehicle was

constitutional.

       {¶25} Concerning the search of Quaker’s vehicle, the trial court found, in

relevant part, as follows:

       As the passenger car passed his location he noticed that the driver

       concealed his head and face behind the pillar of the vehicle between

       the front and back seat and never looked over at the officer. He also

       noticed that the left lane was free of traffic as the Defendant’s vehicle

       was following closely as set forth.

       Upon approaching what was found to be the Defendant’s vehicle and

       upon entering into a discussion with the driver he could smell the odor

       of burnt marijuana coming from the subject vehicle. Information was

       provided by the driver with respect to who had rented the agreement

       [sic] and the Trooper became aware of the fact that the rental

       agreement was expired and that the driver was not the renter.

       The Trooper asked Defendant to exit the vehicle and undertook a pat

       down of defendant for his own safety. The Trooper noticed two




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      comparatively large hard objects on the Defendant which turned out

      to be wads of cash in smaller bills.

      Inside the vehicle was a [dominoes] box that can clearly be seen in the

      Exhibits numbered 2 and 3. The [dominoes] box was stuffed near the

      bottom of the seat described at the base of the seat near a hard portion

      of the same. The Trooper saw raw marijuana residue inside the

      [dominoes] box. The Trooper advised the driver, Defendant herein,

      that he could smell the odor of burnt marijuana coming from inside

      the vehicle and that he would be [conducting] a probable cause search

      of the vehicle. A second Trooper, Trooper Stewart, arrived at the

      scene to assist in the probable cause of the search of the vehicle. The

      search of the trunk of the vehicle indicated that there was a backpack

      inside the trunk. The backpack contained t-shirts and a hard object

      which upon the Trooper’s procurement appeared to be a drug related

      substance based upon the way it was packaged and from its

      appearance. The Defendant was put under arrest.

(Doc. No. 39).

      {¶26} We conclude that competent, credible evidence supports the trial

court’s findings with respect to the circumstances surrounding the search of

Quaker’s vehicle. At the October 2, 2018 suppression hearing, Trooper Holden


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testified that after he initiated the stop of Quaker’s vehicle, he approached the

vehicle from the passenger-side door so that he was not exposed to the highway

traffic. (Oct. 2, 2018 Tr. at 9-10). Trooper Holden stated that upon making contact

with Quaker he immediately detected the odor of burnt marijuana emanating from

the inside passenger compartment. (Id. at 10). Upon request for his identification,

Quaker provided Trooper Holden his Tennessee driver’s license and a rental

agreement for the vehicle. (Id. at 11). Upon inspection of the rental agreement,

Trooper Holden noticed that the rental agreement was expired by one day. (Id. at

12). Additionally, Trooper Holden observed that Quaker was not the party named

on the rental agreement. (Id. at 11). Moreover, no additional drivers were named

on the rental agreement. (Id. at 12). Trooper Holden stated that Quaker explained

to him that the party to the rental agreement was his girlfriend, Marquita Webb

(“Webb”). (Id.). Trooper Holden testified that in his experience, an expired, third-

party rental agreement can be an indicator of criminal activity. (Id. at 12-14).

       {¶27} Trooper Holden asked Quaker to exit the rental vehicle and sit in the

backseat of his patrol vehicle, and he asked Quaker to bring his phone so that they

could call Webb regarding whether Quaker had her permission to drive the vehicle.

(Id. at 15-16). Trooper Holden testified that he then walked Quaker to the front of

the patrol vehicle and conducted a pat down. (Id. at 16). During the pat down, he

felt two “large wads” in Quaker’s front pants pockets that he suspected were wads


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of currency. (Id.). Trooper Holden testified that carrying large amounts of currency

can be an indicator of criminal activity. (Id.). Trooper Holden did not remove the

items from Quaker’s pockets at that time. (Id.).

       {¶28} Once Quaker was seated in Trooper Holden’s patrol vehicle, Trooper

Holden informed him that he was going to search the vehicle because he could smell

burnt marijuana coming from inside the vehicle. (Id. at 17). Trooper Holden

observed that Quaker’s passenger side window was rolled down, despite the fact

that it was raining. (Id. at 18). Trooper Holden informed Quaker that he was going

to roll up Quaker’s passenger window, and Quaker indicated that it was permissible

for Trooper Holden to do so. (Id. at 18-19). Thereafter, Trooper Holden opened the

passenger side door of Quaker’s car. (Id. at 19). Upon opening the door, he

immediately observed a dominoes case without a lid on it pushed against the base

of the passenger seat and the door. (Id. at 19-22). Trooper Holden observed raw

marijuana residue on top of the dominoes inside the case. (Id. at 22-23). In support

of his observation that the dominoes case contained raw marijuana residue or

“shake,” Trooper Holden testified that through his employment, he has observed

raw marijuana residue “too many [times] to count,” but “no less than five hundred

times.” (Id. at 23-24, 26). In fact, Trooper Holden keeps raw marijuana residue in

his patrol vehicle as a training aid for his canine, so he sees it “quite frequently.”

(Id. at 23).


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       {¶29} Once additional law enforcement officers arrived on the scene, they

conducted a probable cause search of the vehicle on the roadside. (Id. at 26).

Trooper Holden testified that, aside from the raw marijuana residue in the dominoes

case that he previously observed, he did not find additional contraband in the

passenger compartment of the vehicle. (Id.). While searching the trunk of the

vehicle, Trooper Holden located a black backpack. (Id.). When Trooper Holden

opened the backpack, he observed several brand new white t-shirts. (Id. at 27-28).

Trooper Holden squeezed the t-shirts and found a “hard object” inside one. (Id. at

28). When Trooper Holden looked inside, he discovered a vacuum sealed bag,

approximately the size of a baseball, wrapped in duct tape. (Id.). Trooper Holden

looked inside through the vacuum-sealed packaging, and observed a “chalk grey-

like substance” which, through his training and experience, he suspected to be

heroin. (Id.). The State also presented photos of the black backpack and its

contents. (Id. at 27-31). (See State’s Exs. 4-6).

       {¶30} After the law enforcement officers located the suspected contraband

in the backpack, they placed Quaker under arrest and transported him to their post.

(Oct. 2, 2018 Tr. at 31-32). Trooper Holden testified that a preliminary test was

performed on the substance at post, which came back with a presumptive positive

result for opiates. (Id. at 31). The crime lab subsequently conducted more thorough

testing on the substance and determined it was fentanyl. (Id.).


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       {¶31} In addition to Trooper Holden’s testimony, the State provided Trooper

Holden’s dashboard footage of the events. (Id. at 4). (See State’s Ex. 1). The

dashboard footage is consistent with Trooper Holden’s testimony of the events. (See

State’s Ex. 1).

       {¶32} Based on these findings, the trial court concluded that law enforcement

officers had probable cause to search the passenger compartment and trunk of

Quaker’s vehicle. (Doc. No. 39). Specifically, the trial court concluded that the

odor of burnt marijuana and visual finding of raw marijuana residue in the dominoes

case, “coupled with (1) the traffic violation, (2) the furtive motion of the defendant

in moving behind the center post, (3) the existence of an expired rental agreement,

(4) the wad of currency and (5) the rental agreement being in another name other

than the defendant constitute the [sic] sufficient probable cause for a search of the

entire vehicle.” (Id.).

       {¶33} We conclude that the trial court did not err by holding that law

enforcement had probable cause to conduct a warrantless search of the passenger

compartment and trunk of Quaker’s vehicle. “‘“Once a law enforcement officer has

probable cause to believe that a vehicle contains contraband, he or she may search

a validly stopped motor vehicle based upon the well-established automobile

exception to the warrant requirement.”’” State v. Gartrell, 3d Dist. Marion No. 9-

14-02, 2014-Ohio-5203, ¶ 57, quoting State v. Minyoung, 3d Dist. Van Wert No.


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15-11-11, 2012-Ohio-411, ¶ 25, quoting State v. Moore, 90 Ohio St.3d 47, 51

(2000). “‘“[T]he 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.”’” Id., quoting State v.

Runyon, 12th Dist. Clermont No. CA2010-05-032, 2011-Ohio-263, ¶ 14, quoting

Moore at 48. “‘“There need be no other tangible evidence to justify a warrantless

search of a vehicle.”’” Id., quoting Runyon at ¶ 14, quoting Moore at 48.

       {¶34} However, “‘[a] trunk and a passenger compartment of an automobile

are subject to different standards of probable cause to conduct searches.’” Id. at ¶

58, quoting State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 51. “‘The odor

of burnt marijuana in the passenger compartment of a vehicle does not, standing

alone, establish probable cause for a warrantless search of the trunk of the vehicle.’”

(Emphasis sic.) Id., quoting Farris at ¶ 52, citing United States v. Nielsen, 9 F.3d

1487 (10th Cir.1993). “‘However, where an officer detects a strong odor of raw

marijuana, but no large amount is found within the passenger compartment of the

vehicle, the officer has probable cause to search the trunk,’ including the trunk’s

contents.” (Emphasis sic.) Id., quoting State v. Price, 6th Dist. Sandusky No. S-

11-037, 2013-Ohio-130, ¶ 16, citing State v. Gonzales, 6th Dist. Wood No. WD-07-

060, 2009-Ohio-168 and United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157

(1982). “In addition, even the smell of burnt marijuana, if coupled with ‘other


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evidence’ of drug activity, such as large amounts of cash, can serve as probable

cause justifying a search of an automobile’s trunk.” (Emphasis sic.) Id., quoting

Price at ¶ 19 and State v. Franklin, 8th Dist. Cuyahoga No. 99806, 2014-Ohio-1422,

¶ 24.

        {¶35} Here, Quaker argues that “there was no action by [Quaker] that would

have created probable cause to allow the trooper to, without a warrant, search the

trunk of the vehicle.” (Appellant’s Brief at 16). In support of his position, Quaker

analogizes this case to State v. Farris, in which the Supreme Court of Ohio held

that, standing alone, the odor of burnt marijuana in the passenger compartment of a

vehicle does not establish probable cause for the warrantless search of the trunk of

the vehicle. Farris at ¶ 52. However, Quaker’s reliance on Farris is misplaced.

        {¶36} In Farris, after initiating a traffic stop of Farris’s vehicle for speeding,

the law enforcement officer detected “a light odor of burnt marijuana” emanating

from inside the vehicle. Id. at ¶ 1. Thereafter, law enforcement officers searched

the passenger compartment and trunk of Farris’s vehicle. Id. at ¶ 5. Although the

officers found no contraband in the passenger compartment of the vehicle, law

enforcement officers found drug paraphernalia in the vehicle’s trunk, and Farris was

subsequently charged with misdemeanor possession of drug paraphernalia. Id.

Farris filed a motion to suppress the drug paraphernalia seized from the search on

the basis that law enforcement officers did not have probable cause to search the


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trunk of the vehicle. Id. at ¶ 6. The trial court overruled Farris’s motion to suppress

and found that law enforcement officers had probable cause to search the trunk of

the vehicle based solely on the odor of burnt marijuana coming from the passenger

compartment. Id. The appellate court upheld the trial court’s decision with respect

to the search of the vehicle. Id. at ¶ 7. However, the Supreme Court of Ohio found

that aside from the odor of burnt marijuana in the vehicle, no other factors were

present to justify the search of the vehicle. Id. at ¶ 52. Accordingly, the Supreme

Court of Ohio reversed the appellate court’s decision with respect to the motion to

suppress the drug paraphernalia. Id. at ¶ 52-53.

       {¶37} In contrast to the search at issue in Farris, although Trooper Holden

did detect the odor of burnt marijuana emanating from the passenger compartment

of the vehicle, Trooper Holden also observed a number of additional indicators of

drug activity which, coupled with the smell of burnt marijuana, did provide law

enforcement officers with probable cause to conduct a search of the vehicle’s trunk.

In addition to the odor of burnt marijuana, Trooper Holden also observed marijuana

residue in the passenger compartment of the vehicle, he felt what he suspected to be

large wads of currency in Quaker’s pockets, and Quaker presented Trooper Holden

with an expired, third-party rental agreement for the vehicle. Thus, we find that law

enforcement officers did have probable cause to search both the passenger

compartment and trunk of the vehicle. See Gartrell, 2014-Ohio-5203, at ¶ 58.


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       {¶38} Accordingly, Quaker’s first and second assignments of error are

overruled.

       {¶39} In Quaker’s third assignment of error, he argues that the trial court

erred in overruling his motion to suppress because law enforcement officers lacked

probable cause to arrest him. Specifically, Quaker argues that the vacuum packed,

duct-taped item found in the backpack did not provide the officers with probable

cause to arrest him because it was not field tested until after his arrest.

       {¶40} However, we note that, in his motions to suppress or at the suppression

hearings, Quaker did not argue that law enforcement officers lacked probable cause

to arrest him. (See Doc. Nos. 27, 39, 72, 73, 86). In fact, the record is devoid of

any argument regarding the validity of his arrest. “‘It is well-settled law that issues

not raised in the trial court may not be raised for the first time on appeal because

such issues are deemed waived.’” State v. Born, 3d Dist. Hardin No. 6-17-13, 2018-

Ohio-350, ¶ 10, quoting State v. Barrett, 10th Dist. Franklin No. 11AP-375, 2011-

Ohio-4986, ¶ 13. Thus, because Quaker failed to raise the issue regarding his arrest

in the trial court, the matter is not properly before us on appeal.

       {¶41} Accordingly, Quaker’s third assignment of error is overruled.




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       {¶42} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW, P.J. and ZIMMERMAN, J., concur.

/jlr




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