[Cite as State v. Buenrostro, 2019-Ohio-694.]


                                        COURT OF APPEALS
                                    MUSKINGUM 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. CT2018-0034
 JOSE BARRAGAN BUENROSTRO

        Defendant – Appellant                   O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Muskingum County
                                                Court of Common Pleas, Case No.
                                                CR2017-0273



 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        February 25, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 D. MICHAEL HADDOX                              ROBERT E. CALESARIC
 27 North Fifth Street, Suite 201               35 South Park Place, Suite 150
 P.O. Box 189                                   Newark, Ohio 43055
 Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0034                                                       2

Hoffman, J.
       {¶1}   Defendant-appellant Jose Barragan Buenrostro appeals his convictions and

sentence entered by the Muskingum County Court of Common Pleas, on one count of

possession of drugs, one count of trafficking in drugs, and one count of fabrication of a

vehicle with a hidden compartment, after the trial court found him guilty following its

acceptance of his no contest plea. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On August 23, 2017, the Muskingum County Grand Jury indicted Appellant

on one count of possession of drugs, in violation of R.C. 2925.11, with major drug offender

and forfeiture specifications, a felony of the first degree; one count of trafficking in drugs,

in violation of R.C. 2923.03, with major drug offender and forfeiture specifications, a felony

of the first degree; and one count of fabrication of a vehicle with hidden compartment, in

violation of R.C. 2923.241, a felony of the second degree. Appellant entered a plea of

not guilty to the charges at his arraignment on August 23, 2017.

       {¶3}   Appellant and his co-defendants, Rember Moscoso and Hector Gomez,

filed motions to suppress. Following a hearing on November 10, 2017, the trial court

denied Moscoso and Gomez's motions to suppress.

       {¶4}   The trial court conducted a hearing on Appellant's motion to suppress on

April 5, 2018. The following evidence was adduced at the hearing:

       {¶5}   On July 11, 2017, Detective Adam Hoskinson with the Central Ohio Drug

Enforcement Task Force (CODE) testified he was in a marked cruiser working and

viewing westbound traffic on Interstate 70 in Licking County when he observed a silver

Kia Sportage with Illinois license plates following too close to a tanker truck in front of it.

Det. Hoskinson ran the plates and learned the Kia Sportage was a rental vehicle. The
Muskingum County, Case No. CT2018-0034                                                     3


detective noted the barcode sticker normally found on rental vehicles was missing from

the rear window. Det. Hoskinson explained drug traffickers will remove the barcode

stickers so the rented vehicle "blends" with traffic. As he continued to follow the vehicle,

the driver, later identified as Appellant, changed lanes without signaling for at least 100

feet before doing so. Detective Hoskinson activated his overhead lights and initiated a

traffic stop of the vehicle.

       {¶6}    Det. Hoskinson approached the passenger's side of the vehicle and made

contact with Appellant. He immediately detected the odor of raw marijuana emanating

from the interior of the vehicle. He observed marijuana flakes throughout the vehicle as

well as on Appellant's lap. Appellant advised Det. Hoskinson he did not have a driver's

license, but provided the detective with a Mexican passport. Det. Hoskinson asked

Appellant for the rental car agreement, which revealed the Kia had been rented from

Enterprise Rent-A-Car in the name of Amber Connor.

       {¶7}    Appellant consented to a search of his person and the vehicle. Det.

Hoskinson located three hotel key cards from a Quality Inn, a vape pen, and

approximately $500.00, on Appellant's person. In the center console of the vehicle, Det.

Hoskinson discovered a large plastic bag containing two or three ounces of marijuana.

Thereafter, the detective advised Appellant of his Miranda rights.          Det. Hoskinson

continued his search of the vehicle. In the rear cargo area, Det. Hoskinson found a spare

tire sitting on the carpeted area. He noticed the lug pattern of the spare tire did not match

the lug pattern on the tires on the Kia. Det. Hoskinson examined the spare tire and found

a three sided rectangular cut in the sidewall which created a flap. Det. Hoskinson

explained tires are commonly used to transport narcotics or contraband. Although the
Muskingum County, Case No. CT2018-0034                                                   4


tire compartment was empty, a residue found therein was subsequently determined to be

methamphetamine. On the front passenger seat, the detective located a recent receipt

from the Zanesville, Ohio Quality Inn in the name of Rember Moscoso. Det. Hoskinson

also found a traffic violation citation from Oklahoma, in the name of Hector Gomez.

Appellant confirmed he was staying at the Quality Inn.

       {¶8}   Det. Hoskinson placed Appellant under arrest through a Homeland Security

holder as well as the hidden compartment violation. The detective contacted Det. Mike

Patrick of the Zanesville Police Department, who is also assigned to CODE, to conduct a

follow up at the Quality Inn relative to Moscoso and Gomez. Det. Patrick along with Det.

Todd Kanavel of the Muskingum County Sheriff's Office, also an agent with CODE,

responded to the Quality Inn and spoke to the hotel manager. The detectives learned

Moscoso checked into room 324 on July 8, 2017, but transferred to room 210 that

morning, to save money.

       {¶9}   Detectives Kanavel and Patrick proceeded to room 210 to conduct a knock

and talk. Moscoso answered the door. After identifying himself and Det. Patrick, Det.

Kanavel asked Moscoso if he had time to speak with them. After agreeing, Moscoso

invited them into the room and asked if the matter had to do with Appellant. The detectives

answered it did.   Moscoso stated the marijuana in the car was all they had. Moscoso

explained they worked as endorsers for mixed martial arts fighters. When Det. Kanavel

asked Moscoso and Gomez if there were any drugs or weapons in the room, they denied

the presence of either. When Det. Kanavel asked if they could search the hotel room,

Moscoso and Gomez both gave their consent.

       {¶10} In the bag Moscoso indicated belonged to him, Det. Kanavel found a plastic
Muskingum County, Case No. CT2018-0034                                                 5


shopping bag containing approximately $15,000 in U.S. currency.            Det. Kanavel

contacted CODE agent Det. George Romano with the Newark Police Department, who

was investigating Appellant. Det. Romano advised he was on route to the Quality Inn to

speak with Moscoso and Gomez. Det. Kanavel informed Moscoso and Gomez Det.

Romano wanted to speak with them and Moscoso and Gomez agreed to wait for him.

The detectives remained in the hotel room without objection from Moscoso and Gomez

for approximately one half hour while they waited for Det. Romano to arrive from Newark.

      {¶11} When Det. Romano arrived, he spoke with Moscoso and Gomez

individually. The two men gave conflicting stories about how and when they traveled to

Ohio. Det. Romano spoke with the hotel manager, who informed him the men had paid

in cash for the room and their $250 deposit would be returned if the room passed

inspection. The detectives spoke with the Licking County Prosecutor, who indicated

Moscoso and Gomez should be placed under arrest and be transported to Licking County

for further investigation. Det. Kanaval advised Moscoso and Gomez they were under

arrest, and asked if they wanted the detectives to pack up their possessions so the

$250.00 room deposit would be refunded. The two men agreed.

      {¶12} As the detectives gathered the men’s belongings, Det. Romano discovered

a black duffle bag full of methamphetamine under one of the beds. The

methamphetamine was packaged in 13 gallon-size zip lock bags. Det. Romano also

found a styrofoam coffee cup behind a microwave, which contained what appeared to be

methamphetamine.

      {¶13} Via Judgment Entry filed April 16, 2018, the trial court denied Appellant's

motion to suppress. Appellant appeared before the trial court on April 17, 2018, withdrew
Muskingum County, Case No. CT2018-0034                                                   6


his former pleas of not guilty, and entered pleas of no contest to the possession of drugs

and trafficking in drugs counts. The charge of fabrication of a vehicle with a hidden

compartment was tried to the court on stipulated facts. The trial court found Appellant

guilty of all three charges and sentenced him to an aggregate term of imprisonment of

eleven years.

       {¶14} It is from his convictions and sentence Appellant appeals, raising as his sole

assignment of error:



                TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT

       DENIED APPELLANT'S MOTION TO SUPPRESS PURSUANT TO

       APPELLANT'S FOURTH AMENDMENT RIGHT TO BE FREE FROM

       UNREASONABLE SEARCH AND SEIZURE.



                                      Standard of Review

       {¶15} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,

675 N.E.2d 1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court's
Muskingum County, Case No. CT2018-0034                                                      7

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other

grounds.

       {¶16} 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 findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (1993). Second, an

appellant may argue the trial court failed to apply the appropriate test or correct law to the

findings of fact. In that case, an appellate court can reverse the trial court for committing

an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993). Finally,

assuming the trial court's findings of fact are not against the manifest weight of the

evidence and it has properly identified the law to be applied, an appellant may argue the

trial court has incorrectly decided the ultimate or final issue raised in the motion to

suppress. When reviewing this 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 any given case. State v. Curry, 95 Ohio App.3d 93, 641

N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);

Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”
Muskingum County, Case No. CT2018-0034                                                         8


       {¶17} Appellant challenges the trial court's denial of his motion to suppress on two

grounds. First, Appellant argues Det. Hoskinson did not have reasonable suspicion to

stop Appellant's vehicle. Next, Appellant maintains the detectives did not have consent

to conduct the search of the hotel room and his black bag. We shall address each in turn.

                                      A. The Traffic Stop

       {¶18} Before a law enforcement officer may stop a vehicle, the officer must have

a reasonable suspicion, based upon specific and articulable facts, an occupant is or has

been engaged in criminal activity. State v. Logan, 5th Dist. Richland No. 07-CA-56, 2008-

Ohio-2969, ¶ 15, quoting State v. Gedeon (1992), 81 Ohio App.3d 617, 618, 611 N.E.2d

972. Reasonable suspicion constitutes something less than probable cause. State v.

Carlson (1995), 102 Ohio App.3d 585, 590, 657 N.E.2d 591. The propriety of an

investigative stop must be viewed in light of the totality of the circumstances. State v.

Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus. In a

situation where the officer has observed a traffic violation, the stop is constitutionally valid.

Dayton v. Erickson (1996), 76 Ohio St.3d 3, 9, 665 N.E.2d 1091. Accordingly, “if an

officer's decision to stop a motorist for a criminal violation, including a traffic violation, is

prompted by a reasonable and articulable suspicion considering all the circumstances,

then the stop is constitutionally valid.” State v. Mays, 119 Ohio St.3d 406, 894 N.E.2d

1204, 2008-Ohio-4539, ¶ 8.

       {¶19} Appellant submits, once Det. Hoskinson determined Appellant had not

violated any law, the detective had no further authority to detain him. In support of his

position, Appellant relies on the Third District Court of Appeals decision in State v.

Cromes, 3rd Dist. No. 17-06-07, 2006-Ohio-6924.           The Cromes Court determined an
Muskingum County, Case No. CT2018-0034                                                      9


officer was justified in initiating a traffic stop under R.C. 4503.21 based upon his inability

to read the defendant's rear license plate while following the vehicle. However, the Court

held, after the officer found the plate readable from a distance of approximately ten feet

and could see the license plate had not been intentionally obscured, the officer no longer

maintained a reasonable suspicion the defendant violated R.C. 4503.21, and was not

justified in further detaining the defendant and demanding the production of his driver's

license.

       {¶20} We find Cromes to be factually distinguishable from the instant action.

Here, Det. Hoskinson testified he initiated a traffic stop after he observed two violations,

to wit: following too closely and failure to signal for more than 100 feet prior to changing

lanes. Assuming, arguendo, as Appellant argues, Det. Hoskinson conceded during his

cross examination Appellant used his signal for more than 100 feet prior to changing

lanes, such does not establish the detective lacked probable cause at the time of the stop.

See, e.g. Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d

698, at ¶ 14. (“[T]he existence of probable cause [or reasonable suspicion] depends on

whether an objectively reasonable police officer would believe that [the driver]'s conduct

* * * constituted a traffic violation, based on the totality of the circumstances known to the

officer at the time of the stop.” Id. at ¶ 16). While, in hindsight, the video of the incident

showed the lane change signal charge was invalid, such does not automatically mean

Det. Hoskinson’s visual estimate of distance at the time did not provide a reasonable

basis for the traffic stop.

       {¶21} Appellant further asserts, "there was no established standard and there was

not even any rule of thumb presented at the hearing as to why or how [Det. Hoskinson]
Muskingum County, Case No. CT2018-0034                                                     10


established that the Kia was following too closely." Brief of Appellant at 12. Appellant

adds the detective "just subjectively thought the vehicle was too [sic] following too close

and he did not take in all the circumstances." Id. At the suppression hearing, Det.

Hoskinson testified a reasonable and prudent driver would not follow the tanker truck as

closely as Appellant was following the tanker truck. Tr. of Suppression Hearing at 49.

This provides a sufficient basis for the traffic stop independent of the lane change signal

charge.

       {¶22} Appellant contends Det. Hoskinson merely wanted to find a basis to stop

Appellant and "he didn't care about any traffic violation other than to find some way to

stop it." Brief of Appellant at 11. A traffic stop is valid under the Fourth Amendment if the

stop is based on an observed traffic violation or if the police officer has a reasonable,

articulable suspicion a traffic or equipment violation has occurred or is occurring. City of

Dayton v. Erickson, 76 Ohio St.3d 3, 11 (1996). It is irrelevant the officer may have had

other subjective motives for stopping the vehicle. Id.

       {¶23} We find Det. Hoskinson had a reasonable, articulable suspicion two traffic

violations had occurred; therefore, the stop was valid. The trial court did not err in denying

Appellant's motion to suppress based upon the validity of the traffic stop.

                             B. Search of Hotel Room and Black Bag

       {¶24} Appellant submits he had a reasonable expectation of privacy in the hotel

room and his luggage, never abandoned that right, and never consented to the search.

Appellant adds Moscoso and Gomez did not consent to the second search which

occurred after they were placed under arrest.

       {¶25} The Fourth Amendment to the United States Constitution protects
Muskingum County, Case No. CT2018-0034                                                   11


individuals against unreasonable searches and seizures. Without a search warrant, a

search is per se unreasonable unless it falls under a few established exceptions. State v.

Swetnam, 5th Dist. Licking No. 14–CA–57, 2015–Ohio–1003, ¶ 14, citing Katz v. United

States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The expectation of

privacy under the Fourth Amendment extends to hotel occupants. State v. Jones, 124

Ohio St.3d 1203, 2009–Ohio–6188, ¶ 13, citing Stoner v. California (1964), 376 U.S. 483,

486, 84 S.Ct. 889, 11 L.Ed.2d 856. An expectation of privacy applies to an occupant's

belongings as well. Id., citing Hoffa v. United States (1966), 385 U.S. 293, 301, 87 S.Ct.

408, 17 L.Ed.2d 374.

       {¶26} Once the defendant shows the search was warrantless, the burden shifts to

the state to show it was permissible under one of the exceptions. Swetman at 14 (Citation

omitted). Consent is one exception to the warrant requirement. Id. If an individual

voluntarily consents to a search, then no Fourth Amendment violation occurs. Id., citing

Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

“Consent to search can be ‘obtained, either from the individual whose property is

searched, or from a third party who possesses common authority over the premises'.”

State v. Portman, 2d Dist. No.2013–CA–68, 2014–Ohio–4343, ¶ 11, quoting Illinois v.

Rodriguez, 497 U.S. 177, 181 (1990). Police officers “may conduct a search without a

warrant so long as a third party who possesses common authority over the property

voluntarily consents to the search.” State v. Reynolds, 9th Dist. No. 19062 (Oct. 27, 1999),

citing United States v. Matlock, 415 U.S. 164 (1974). It has been noted, “‘[c]ommon

authority’ exists when two or more persons have joint access or control over the property,

each has the right to consent to permit inspection, and each has assumed the risk that
Muskingum County, Case No. CT2018-0034                                                12

any one of them might so consent.” Reynolds, quoting Matlock at 172.

      {¶27} We find the consent to search the hotel room was given by Moscoso and

Gomez. As third parties, Moscoso and Gomez had joint control over the hotel room with

Appellant; therefore, possessed common authority over the property and could voluntarily

consent to the search.   However, the question remains whether Moscoso and Gomez

ever revoked their initial consent, rendering unreasonable the search which resulted in

the discovery of the black duffle bag filled with methamphetamine.

      {¶28} After conducting the search, Det. Kanavel informed Moscoso and Gomez

Det. Romano wished to speak with them. He asked the men if he and Det. Patrick could

remain in the room while they waited for Det. Romano to arrive. Neither Moscoso nor

Gomez objected. When Det. Romano arrived, he individually interviewed Moscoso and

Gomez. While one was speaking with Det. Romano and Patrick, the other remained in

the hotel room with the other detectives. Moscoso and Gomez were advised they were

being placed under arrest. Det. Kanavel asked the two men if they wanted the detectives

to collect their belongings so they would not lose their $250.00 room deposit. The men

agreed.   While the detectives were gathering the men’s personal belongings, Det.

Romano discovered a black duffle bag containing a significant amount of

methamphetamine under one of the beds. Det. Romano also found a styrofoam coffee

cup containing what appeared to be methamphetamine.

      {¶29} Appellant argues Moscoso and Gomez did not consent to the second

search of the hotel room, which he explains occurred after they were placed under arrest.

We disagree. We find the detectives were engaged in one continuous encounter. One

or more detectives remained in the hotel room with either Moscoso or Gomez, or both
Muskingum County, Case No. CT2018-0034                                                 13


men. At no time did either Moscoso or Gomez revoke their consent or limit the scope of

the search. The original consent did not expire until the detectives relinquished control

by leaving the hotel premises. Accordingly, we find the trial court did not err in denying

Appellant's motion to suppress based upon the consent to search the hotel room and its

contents.

      {¶30} Appellant’s sole assignment of error is overruled.

      {¶31} The judgment of the Muskingum County Court of Common Pleas is

affirmed.




By: Hoffman, J.
Gwin, J. and
Wise, J. concur
