[Cite as State v. Lynn, 2018-Ohio-3335.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




 STATE OF OHIO,                                   :

        Plaintiff-Appellee,                       :       CASE NOS. CA2017-08-129
                                                                    CA2017-08-132
                                                  :
     - vs -                                                         OPINION
                                                  :                  8/20/2018

 DAVID D. LYNN,                                   :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2016-11-1667



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for plaintiff-appellee

Neal D. Schuett, 12 East Warren Street, Lebanon, OH 45036, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, David D. Lynn, appeals from the decision of the Butler

County Court of Common Pleas denying his motion to suppress. For the reasons outlined

below, we affirm.

                                     Facts and Procedural History

        {¶ 2} On December 20, 2016, the Butler County Grand Jury returned a multi-count

indictment charging Lynn with several felony drug offenses, including trafficking in cocaine,
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aggravated trafficking in drugs, and trafficking in drugs. According to the bill of particulars,

the charges arose after officers with the Fairfield Police Department discovered crack

cocaine and heroin in the trunk of the vehicle Lynn was driving during the early morning

hours of November 1, 2016. It is undisputed that Lynn's brother, Dwight, was a passenger

in the vehicle at the time the traffic stop was initiated. Lynn pled not guilty to all charges.

       {¶ 3} On January 30, 2017, Lynn filed a motion to suppress, a motion Lynn

thereafter supplemented with an additional filing on February 24, 2017. As part of his

motion, Lynn argued the officers' warrantless search of the vehicle's trunk was not

supported by probable cause. In support, Lynn relied on the Ohio Supreme Court's decision

in State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, a case in which the Ohio Supreme

Court reversed a trial court's decision granting appellant's motion to suppress upon finding

the law enforcement officer who conducted the search of the trunk of appellant's vehicle

"had probable cause to search the trunk of [appellant's] vehicle based solely on the odor of

burnt marijuana coming from inside the car." Id. at ¶ 6. In so holding, the Ohio Supreme

Court determined that "[t]he 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." Id. at ¶ 52.

                                      Suppression Hearing

       {¶ 4} On March 14, 2017, the trial court held a hearing on Lynn's motion to

suppress.    At this hearing, Officer Brian Carnes, the lone witness to testify at the

suppression hearing, testified he conducted a traffic stop on the vehicle Lynn was driving

after he noticed the vehicle did not have a front license plate and had "extremely" dark tinted

windows. There is no dispute that failing to display a front license plate is illegal in the state

of Ohio. There is also no dispute that it is illegal in the state of Ohio for a vehicle to have

"extremely" dark tinted windows as those observed by Officer Carnes.

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       {¶ 5} Following the traffic stop, Officer Carnes approached the vehicle to speak with

the vehicle's two occupants, Lynn and Dwight. Once there, Officer Carnes detected an

"extremely overwhelming odor of raw marijuana coming from inside the vehicle." According

to Officer Carnes, he immediately recognized the odor as raw marijuana based on his

training and experience as a law enforcement officer.

       {¶ 6} Upon speaking with Lynn and Dwight, who appeared "extremely nervous,"

Officer Carnes checked the brothers' information through dispatch, a check of which

revealed Dwight had an active warrant for his arrest and "caution for possessing a firearm."

Shortly thereafter, Officer Poole arrived on the scene to provide backup for Officer Carnes.

Once Officer Poole arrived on the scene, Lynn and Dwight were removed from the vehicle,

checked for weapons, handcuffed, and placed in the back of Officers Carnes' and Poole's

police cruisers.

       {¶ 7} After Lynn and Dwight were secured, the officers began searching the

vehicle's passenger compartment. When asked why they conducted such a search, Officer

Carnes testified "[b]ecause the odor of marijuana coming from inside the vehicle." It is

undisputed the search of the vehicle's glove compartment led to the discovery of a white

paper sack holding a Ziploc bag containing a small amount of raw marijuana and a large

orange pill bottle containing numerous pills of ecstasy.

       {¶ 8} Upon locating the raw marijuana and ecstasy in the vehicle's glove

compartment, Officer Hauer, who had since arrived on the scene to provide backup to

Officers Carnes and Poole, began searching the vehicle's trunk. It is undisputed the search

of the vehicle's trunk led to the discovery of crack cocaine and heroin in a Ziploc bag inside

a Crown Royal bag located within a backpack hidden behind a speaker box.

       {¶ 9} Upon discovering the crack cocaine and heroin, Officer Carnes placed both

Lynn and Dwight under arrest. Lynn thereafter admitted to Officer Carnes that "anything

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and everything in the car, it was his." Concluding, when asked why a search of the vehicle's

trunk was conducted, Officer Carnes testified the search was "[b]ased on the odor coming

from inside the vehicle and what I found in the glove box. * * * There could have been

more back there I don't know."

       {¶ 10} After hearing arguments from both parties, the trial court issued its decision

from the bench denying Lynn's motion to suppress. In so holding, the trial court stated, in

pertinent part, the following:

              Here's where I'm coming down. We can't say that the Farris rule
              only applies when you suspect the driver. It doesn't apply if the
              real guy you suspect mostly is the passenger. I don't think we
              can do that. The exception is the exception. It's the vehicle. It's
              not a personal type of thing, it's the vehicle analysis. Is there
              likely contraband in the trunk if we find it in the passenger
              compartment. That's the heart of the exception that is still valid
              here. Even though our fact scenario is an odd one and an
              interesting one and a strange one. But with that, that's my
              analysis. * * * [T]he automobile exception is still valid; and, it's
              not overborne by the burnt marijuana smell set forth in Farris.
              Based upon that analysis, the motion is denied.

The trial court thereafter issued a written entry confirming the same.

                                     Plea and Sentence

       {¶ 11} On July 20, 2017, Lynn agreed to plead no contest to single counts of

trafficking in cocaine, aggravated trafficking in drugs, and trafficking in drugs in exchange

for the remaining charges being dismissed. After conducting the necessary Crim.R. 11 plea

colloquy, the trial court accepted Lynn's no contest plea and found Lynn guilty as charged.

The trial court then sentenced Lynn to serve a mandatory term of seven years in prison,

ordered Lynn to pay a mandatory $7,500 fine, and notified Lynn that he would be subject

to a mandatory three-year postrelease control term upon his release from prison.

                                           Appeal

       {¶ 12} Lynn now appeals from the trial court's decision denying his motion to


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suppress, raising the following single assignment of error for review.

        {¶ 13} THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE WHEN IT

DENIED HIS MOTION TO SUPPRESS.

        {¶ 14} In his single assignment of error, Lynn argues the trial court erred by denying

his motion to suppress. In support, Lynn argues the officers lacked probable cause to

conduct a warrantless search of the vehicle's trunk. We disagree.

                                    Standard of Review

        {¶ 15} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-

4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position

to weigh the evidence to resolve factual questions and evaluate witness credibility. State

v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore, when

reviewing the denial of a motion to suppress, this court is bound to accept the trial court's

findings of fact if they are supported by competent, credible evidence. State v. Durham,

12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14.               "An appellate court,

however, independently reviews the trial court's legal conclusions based on those facts and

determines, without deference to the trial court's decision, whether as a matter of law, the

facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023, 2007-Ohio-3353, ¶ 12.

                                   Automobile Exception

        {¶ 16} Searches and seizures conducted without a warrant are per se unreasonable

unless the search and seizure falls within one of the few specifically established and well

delineated exceptions. State v. Fisher, 10th Dist. Franklin No. 10AP-746, 2011-Ohio-2488,

¶ 17.    One such exception is the so-called "automobile exception" to the warrant

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requirement. State v. Young, 12th Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶

34. Under the automobile exception, law enforcement officers may search a motor vehicle

without a warrant if the officers have probable cause to believe the vehicle contains

contraband. State v. Battle, 10th Dist. Franklin No. 10AP-1132, 2011-Ohio-6661, ¶ 33.

Probable cause in these instances is "a belief reasonably arising out of circumstances

known to the seizing officer, that an automobile or other vehicle contains that which by law

is subject to seizure and destruction." State v. Popp, 12th Dist. Butler No. CA2010-05-128,

2011-Ohio-791, ¶ 27, quoting State v. Kessler, 53 Ohio St.2d 204, 208 (1978). The

determination of probable cause is fact-dependent and turns on what the officers knew at

the time they conducted the search. Battle at ¶ 34, citing Bowling Green v. Godwin, 110

Ohio St.3d 58, 2006-Ohio-3563, ¶ 14.

       {¶ 17} As noted by the United States Supreme Court in United States v. Ross, 456

U.S. 798, 825, 102 S.Ct. 2157 (1982), "[i]f probable cause justifies the search of a lawfully

stopped vehicle, it justifies the search of every part of the vehicle and its contents that may

conceal the object of the search." Although not explicit, the Ohio Supreme Court held the

same in State v. Moore, 90 Ohio St.3d 47, 51 (2000), stating that "[o]nce 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." However, the Ohio Supreme Court in Farris limited

its holding in Moore upon finding "[t]his court did not extend the search of the vehicle to the

trunk in [Moore], and we decline to do so here." Farris, 2006-Ohio-3255 at ¶ 50; see also

State v. Murrell, 94 Ohio St.3d 489 (2000), syllabus ("[w]hen a police officer has made a

lawful custodial arrest of the occupant of an automobile, the officer may, as a

contemporaneous incident of that arrest, search the passenger compartment of that

automobile"). This is because, as the Ohio Supreme Court thereafter stated, "[a] trunk and

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a passenger compartment of an automobile are subject to different standards of probable

cause to conduct searches." Id., 2006-Ohio-3255 at ¶ 52.

                                           Analysis

       {¶ 18} Relying on the Ohio Supreme Court's decision in Farris, Lynn argues the trial

court erred by denying his motion to suppress because the officers lacked probable cause

to conduct a warrantless search of the vehicle's trunk. Again, as the Ohio Supreme Court

in Farris held, "[t]he 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." Id., 2006-Ohio-3255 at ¶ 52. "This proposition is established by the common

sense observation that an odor of burning marijuana would not create an inference that

burning marijuana was located in a trunk." (Emphasis sic.) State v. Gonzales, 6th Dist.

Wood No. WD-07-060, 2009-Ohio-168, ¶ 22. However, just as the trial court found in this

case, Lynn's reliance on Farris is misplaced as the facts in that case are readily

distinguishable from the case at bar.

       {¶ 19} Unlike in Farris, the officers in this case did not rely on the odor of burnt

marijuana emanating from the vehicle's passenger compartment, standing alone, to justify

their search of the vehicle's trunk. In fact, the officers in this case did not rely on the odor

of burnt marijuana at all. Rather, upon detecting an "extremely overwhelming" odor of raw

marijuana originating from the vehicle, the officers conducted a search of the vehicle's

passenger compartment. This search uncovered a white paper sack holding a Ziploc bag

containing a small amount of raw marijuana and a large orange pill bottle containing

numerous pills of ecstasy located in the vehicle's glove compartment. Based on the case

law outlined above, including the limited holding in Farris, the discovery of these two illegal

substances within the vehicle's glove compartment provided the officers with probable

cause to extend their search to the vehicle's trunk where they discovered crack cocaine and

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heroin, both of which Lynn admitted belonged to him. Therefore, unlike in Farris, because

the officers in this case did not rely on the odor of burnt marijuana emanating from the

vehicle's passenger compartment to justify their warrantless search of the vehicle's trunk,

the trial court correctly determined that the Ohio Supreme Court's decision in Farris was

inapplicable to the case at bar.

       {¶ 20} The odor of raw marijuana provides different probable cause than the odor of

burnt marijuana. Gonzales, 2009-Ohio-168 at ¶ 22. "The odor of raw marijuana – especially

an overwhelming odor of raw marijuana – creates probable cause to believe that a large

quantity of raw marijuana will be found." Id. Under such circumstances, "[a]n officer may

rationally conclude that a large quantity of raw marijuana would be located in a vehicle's

trunk." Id., citing United States v. Ashby, 864 F.2d 690 (10th Cir.1988); and United States

v. Bowman, 487 F.2d 1229 (10th Cir.1973). "'[W]here 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."

State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 58, quoting State v. Price,

6th Dist. Sandusky No. S-11-037, 2013-Ohio-130, ¶ 16. That is exactly what occurred here.

"[T]he Ohio Constitution, like the United States Constitution, does not prohibit warrantless

searches of an automobile trunk after law enforcement has found contraband in the

passenger compartment." State v. Jones, 9th Dist. Lorain No. 12CA010270, 2013-Ohio-

2375, ¶ 20; see, e.g., State v. Greenwood, 2d Dist. Montgomery No. 19820, 2004-Ohio-

2737, ¶ 11 (law enforcement officer's observation of marijuana on a vehicle's passenger

seat and floorboard provided probable cause to "search the entire vehicle, including the

trunk and its contents"). Lynn's argument to the contrary lacks merit.

                                        Conclusion

       {¶ 21} In light of the foregoing, finding no error in the trial court's decision denying

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Lynn's motion to suppress, Lynn's single assignment of error is overruled.

      {¶ 22} Judgment affirmed.


      PIPER and M. POWELL, JJ., concur.




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