State v. Buenrostro ( 2019 )

[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