[Cite as State v. Jessee, 2011-Ohio-5025.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24073

vs.                                               :    T.C. CASE NO. 09CR3201/1

MATTHEW JESSEE                                     :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                        . . . . . . . . .

                                             O P I N I O N

                Rendered on the 30th day of September, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros.
Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422

        Attorneys for Plaintiff-Appellee

P.J. Conboy, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber
Heights, OH 45424
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} On September 28, 2009, at 6:44 p.m., Dayton police

officer Dan Zwiesler observed a vehicle driven by Defendant Matthew

Jessee make an abrupt right hand turn from Hoover Avenue onto

Westwood Avenue.              Defendant failed to signal his intention to turn
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prior to making the turn.       Officer Zwiesler immediately initiated

a traffic stop of Defendant’s vehicle for failing to signal the

turn.

     {¶ 2} When Officer Zwiesler approached the vehicle, Defendant

was rolling down his window.         The first thing Officer Zwiesler

noticed was the overpowering smell of raw marijuana in the vehicle.

 From   his   experience   as    a   Dayton   police   officer,   Zwiesler

recognized the odor because he has smelled the odor of raw marijuana

over one thousand times.

     {¶ 3} As a result of smelling the odor of raw marijuana coming

from Defendant’s vehicle, Officer Zwiesler decided to search the

vehicle’s passenger compartment.         After Defendant and his three

passengers were removed from the              vehicle, Officer Zwiesler

discovered a clear, gallon-size freezer bag half full of marijuana

underneath the front edge of the driver’s seat.

     {¶ 4} Defendant was indicted on one count of possession of

marijuana, between two hundred and one thousand grams, a fifth

degree felony in violation of R.C. 2925.11(A).           Defendant filed

a motion to suppress evidence and his statements to police.            The

trial court overruled the motion following a hearing.             Defendant

entered a plea of no contest to the charge and was found guilty.

 The trial court sentenced Defendant to five years of community

control sanctions.
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     {¶ 5} Defendant   timely   appealed      to    this   court   from   his

conviction and sentence.     Defendant’s appellate counsel filed an

Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.

1396, 19 L.Ed.2d 493, stating that he could find no meritorious

issues for appellate review.         We notified Defendant of his

appellate counsel’s representations and afforded him ample time

to file a pro se brief.      None has been received.          This case is

now before us for our independent review of the record.               Penson

v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.

     {¶ 6} Defendant’s   appellate        counsel    has   identified     one

possible issue for appeal: that the trial court erred in overruling

 Defendant’s motion to suppress evidence.

     {¶ 7} With respect to the stop and search of Defendant’s

vehicle, Defendant’s failure to properly signal his turn, which

Officer Zwiesler witnessed, constitutes a traffic violation and

 provides sufficient probable cause for the stop.                  Dayton v.

Erickson, 76 Ohio St.3d 3, 1996-Ohio-431.           The stop of Defendant’s

vehicle was therefore lawful.

     {¶ 8} When Officer Zwiesler approached the driver’s window,

which   Defendant   rolled   down,   he    immediately     recognized     the

overpowering odor of raw marijuana coming from the vehicle from

his prior experience as a police officer.

     {¶ 9} In State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10, the
                                                                     4

Ohio Supreme Court held:

      {¶ 10} “The smell of marijuana, alone, by a person qualified

to recognize the odor, is sufficient to establish probable cause

to conduct a search.”    Syllabus.

      {¶ 11} Defendant’s vehicle was properly searched pursuant to

the   automobile   exception   to   the   warrant   requirement.   Id.

Defendant’s Fourth Amendment rights were not violated.

      {¶ 12} With respect to Defendant’s statements, both times that

Defendant was questioned by police, once by Officer Zwiesler and

once by Detective Baker, this record shows that Defendant was first

read his Miranda rights, that he indicated each time that he

understood his rights, that he knowingly and voluntarily waived

his rights and agreed to speak with police, and that his statements

were voluntary.    Defendant’s Fifth, Sixth and Fourteenth Amendment

rights were not violated.   This assignment of error lacks arguable

merit.

      {¶ 13} In addition to reviewing the possible issues for appeal

raised by Defendant’s appellate counsel, we have conducted an

independent review of the trial court’s proceedings and have found

no error having arguable merit.      Accordingly, Defendant’s appeal

is without merit and the judgment of the trial court will be

affirmed.
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DONOVAN, J., And HALL, J., concur.

Copies mailed to:

Carley J. Ingram, Esq.
P.J. Conboy, II, Esq.
Matthew P. Jessee
Hon. Mary Katherine Huffman
