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Date: 06-07-2021

Case Style:


Case Number: 9-20-27

Judge: Stephen R. Shaw


Plaintiff's Attorney: Michael D. Swartz

Defendant's Attorney:

Criminal Defense Lawyer Directory


Lima, OH - Criminal defense attorney represented Jahmoni Alvaranga with a OVI charge.

{¶2} On February 11, 2020, Trooper Bice of the Ohio State Highway Patrol
filed a complaint against Alvaranga alleging that he committed the offense of OVI,
in violation of R.C. 4511.19(A)(1)(a). Upon arraignment, Alvaranga entered a plea
of not guilty to the charge.
{¶3} On April 6, 2020, Alvaranga filed a motion to suppress evidence from
being introduced by the State at trial based upon his contention that Trooper Bice’s
traffic stop of his vehicle was not supported by reasonable, articulable suspicion or
probable cause.
{¶4} On June 18, 2020, the trial court conducted a hearing on Alvaranga’s
suppression motion. The parties stipulated at the hearing that the traffic stop of
Alvaranga’s vehicle occurred at 12:57p.m. in Marion County on February 9, 2020;
that Trooper Bice was in uniform and driving a marked vehicle when he effectuated Case No. 9-20-27
the stop; and that Trooper Bice was sufficiently trained in the enforcement of Ohio’s
Uniform Traffic Laws.
{¶5} The State presented the testimony of Trooper Bice, who recalled
receiving information from dispatch, on the date and time in question, advising him
that a caller was on the line reporting a silver Nissan with North Carolina license
plates driving recklessly on northbound U.S. 23. According to Trooper Bice, the
caller was following the vehicle in question and relaying information while on the
line with dispatch. The caller informed dispatch that the vehicle was not
maintaining a constant speed and weaving within the lane of travel. The caller also
gave an approximate location of the vehicle’s location as it travelled on the highway.
Trooper Bice stated that dispatch never disclosed to him the caller’s identity or any
other information about the caller.
{¶6} Trooper Bice testified that as he crossed a bridge over U.S. 23 and
approached the on-ramp to the interstate he spotted Alvaranga’s vehicle, which
matched the description given by the caller. He estimated that four to five minutes
passed between the time dispatch initially contacted him and when he located
Alvaranga’s vehicle. Approximately forty-five seconds after observing
Alvaranga’s vehicle, Trooper Bice approached the vehicle while it was traveling in
the right lane of the two lanes of northbound travel. 1 Trooper Bice pulled his cruiser

The record indicates that this particular part of U.S. 23 had two lanes of northbound travel and two lanes of
southbound travel. Case No. 9-20-27
directly behind Alvaranga’s vehicle and began to follow it at an estimated speed of
60 to 64 miles per hour. Trooper Bice recalled that the traffic was light and the
stretch of highway was surrounded by farmland, with no houses located nearby. He
explained that the caller was still on the line with dispatch at this time. Trooper
Bice stated that even though he noticed the same driving behavior as the caller had
described he did not observe any traffic or equipment violations while following
Alvaranga’s vehicle.
{¶7} However, after following Alvaranga’s vehicle for an extended period
of time Trooper Bice detected a strong odor of raw marijuana. Trooper Bice
explained that Alvaranga’s vehicle was the only vehicle in front of him when he
first noticed the odor and that no other vehicles were in close proximity at the time.
Trooper Bice testified that the smell lingered for a sustained period of time and did
not dissipate when other cars eventually passed.2
He further explained that he could
detect the odor through the vents of his vehicle even though the windows were
{¶8} Trooper Bice also observed that the passenger side window of
Alvaranga’s vehicle was opened approximately one-and-a-half to two inches. He
explained that based on his training, he was aware that people who smoke marijuana

Trooper Bice stated at the suppression hearing that the caller had also reported to dispatch that an odor of
marijuana was emanating from the vehicle in question, but that information was not relayed to Trooper Bice
until after he stopped Alvaranga’s vehicle. Case No. 9-20-27
in vehicles open the windows in this manner to vent the car. Trooper Bice
ascertained that the raw marijuana odor was emanating from Alvaranga’s vehicle
and effectuated a traffic stop. Specifically, Trooper Bice testified that he decided to
stop Alvaranga’s vehicle based upon the dispatch call and the odor of raw
marijuana. However, he also testified that he would have conducted a stop of the
vehicle based upon the raw marijuana odor alone.
{¶9} According to the impaired driver report, Trooper Bice observed
Alvaranga to have red/bloodshot and glassy eyes. Alvaranga also unsuccessfully
performed a series of roadside sobriety tests. Trooper Bice concluded that
Alvaranga was impaired and arrested him for OVI. Upon arrest, Trooper Bice found
marijuana on Alvaranga’s person.
{¶10} On July 28, 2020, the trial court issued a judgment entry overruling
the motion to suppress finding that Trooper Bice obtained the requisite reasonable,
articulable suspicion to conclude that Alvaranga was driving while impaired based
upon the call to dispatch, the smell of raw marijuana, and the totality of the
circumstances. Accordingly, the trial court determined that Trooper Bice’s decision
to initiate the traffic stop was constitutionally valid.
{¶11} On August 5, 2020, the trial court issued a judgment entry journalizing
Alvaranga’s withdrawal of his previously tendered not guilty plea and his entry of
a plea of no contest, with a stipulated finding of guilty to the OVI charge. The trial Case No. 9-20-27
court accepted Alvaranga’s plea and sentenced him to 90 days in jail with 85
suspended, imposed a one-year suspension of his operator’s license, placed him on
two-years of reporting probation, and assessed a fine and costs.
{¶12} It is from this judgment entry that Alvaranga now appeals, asserting
the following assignment of error.
{¶13} In his sole assignment of error, Alvaranga argues that the trial court
erred in finding that Trooper Bice had reasonable, articulable suspicion to conduct
a traffic stop of his vehicle. Specifically, Alvaranga contends that the information
relayed to dispatch from the anonymous caller was unreliable and therefore did not
provide a sufficient basis to support the traffic stop. Alvaranga also challenges the
credibility of Trooper Bice’s testimony regarding his detection of raw marijuana
odor emanating from Alvaranga’s vehicle.
Standard of Review
{¶14} “Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court assumes the
role of trier of fact and is therefore in the best position to resolve factual questions
and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8. “Consequently, an appellate court must accept the trial Case No. 9-20-27
court’s findings of fact if they are supported by competent, credible evidence.” Id.
“Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.” Id.
Legal Authority
{¶15} The investigatory stop of an automobile is a seizure for purposes of
the Fourth Amendment and consequently must be based on a law enforcement
officer’s reasonable suspicion “that a motorist has committed, is committing, or is
about to commit a crime.” State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-
Ohio-1419, ¶ 24, quoting State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7.
In justifying the stop, the officer “must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant the intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968); State
v. Bobo, 37 Ohio St.3d 177, 178 (1988).
{¶16} Whether a police officer had “an objective and particularized
suspicion that criminal activity was afoot must be based on the entire picture—a
totality of the surrounding circumstances.” State v. Andrews, 57 Ohio St.3d 86, 87
(1991), citing United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690 (1981).
“[The] circumstances are to be viewed through the eyes of the reasonable and
prudent police officer on the scene who must react to events as they unfold.” Id. at Case No. 9-20-27
87-88. “A court reviewing the officer’s actions must give due weight to his
experience and training and view the evidence as it would be understood by those
in law enforcement.” Id. at 88.
{¶17} Further, when a radio dispatch to law enforcement is based on
information provided by an informant’s tip, “the determination of reasonable
suspicion will be limited to an examination of the weight of reliability due that tip.
The appropriate analysis, then, is whether the tip itself has sufficient indicia of
reliability to justifying the investigative stop.” Maumee v. Weisner, 87 Ohio St.3d
295, 299. Relevant factors in this determination include “the informant’s veracity,
reliability, and basis of knowledge.” Id. In making this determination, courts
consider whether the informant can be classified as an anonymous tipster, a known
confidential informant, or an identified citizen informant. Id. at 300. As a general
rule, “an identified citizen informant may be highly reliable and, therefore, a strong
showing as to the other indicia of reliability may be unnecessary * * *.” Id.
{¶18} This is not to say that an anonymous informant is patently unreliable.
Rather, the assessment of the reliability is again dependent upon the totality of the
circumstances, not a single factor in the case. See Navarette v. California, 572 U.S.
393, 397, 134 S.Ct. 1683 (2014), quoting Alabama v. White, 496 U.S. 325, 327, 110
S.Ct. 2412 (1990) (stating that “under appropriate circumstances, an anonymous tip Case No. 9-20-27
can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to
make [an] investigatory stop.’ ”).
{¶19} Contrary to Alvaranga’s arguments on appeal, the record in the case
sub judice demonstrates that the events leading up to Trooper Bice’s traffic stop of
Alvaranga’s vehicle were not precipitated by a single anonymous tip. At the outset
we note that although Trooper Bice testified that dispatch did not relay the identity
of the caller to him there is nothing in the record to suggest that the caller’s identity
was never ascertained or that the caller remained anonymous. According to Trooper
Bice’s testimony the caller relayed their observations of Alvaranga’s driving as they
were following Alvaranga’s vehicle on the highway. See Weisner, 87 Ohio St.3d at
302; see also Navarette, 572 U.S. at 399 (suggesting that “the caller reported the
incident soon after she was run off the road. That sort of contemporaneous report
has long been treated as especially reliable.”). The record further indicates that the
caller continued stay on the line with dispatch as Trooper Bice approached
Alvaranga’s vehicle on U.S. 23, confirming to dispatch that Trooper Bice had
located the vehicle in question. See Weisner, 87 Ohio St.3d at 302; Navarette, 572
U.S. at 397. Moreover, there are no allegations that the caller was motivated by
anything other than concern for the safety of the driver and others on the road. See Case No. 9-20-27
Weisner at 302. Therefore, this case involves more than just a conclusory tip of
suspected criminal activity as Alvaranga contends.
{¶20} This notwithstanding, this Court does not need to consider whether the
call alone was sufficient to provide Trooper Bice with reasonable suspicion to
justify stopping Alvaranga’s vehicle because Trooper Bice also observed
Alvaranga’s suspicious driving and detected an odor of raw marijuana emanating
from Alvaranga’s vehicle. Generally, “ ‘[t]he 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.’ ” State v. Robinson, 12th Dist.
Madison No. CA2019-04-009, 2019-Ohio-5370, ¶ 23, quoting State v. Gonzales,
6th Dist. Wood No. WD-07-060, 2009-Ohio-168, ¶ 22; see also State v. Moore, 90
Ohio St.3d 47 (2000), paragraph one of the syllabus (“The smell of marijuana, alone,
by a person qualified to recognize the odor, is sufficient to establish probable cause
to conduct a search.”).
{¶21} On appeal, Alvaranga does not challenge whether Trooper Bice is
qualified to recognize the odor of raw marijuana. Rather, it appears that Alvaranga
is challenging the trial court’s determination that Trooper’s Bice offered credible
testimony regarding his detection of raw marijuana. However, at a suppression
hearing, the trial court assumes the role of trier of fact and, as such, is in the best
position to evaluate the evidence and the credibility of witnesses. See State v. Case No. 9-20-27
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When reviewing a ruling on
a motion to suppress, “an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence.” Id. at ¶ 8, citing State
v. Fanning, 1 Ohio St.3d 19 (1982).
{¶22} On appeal, Alvaranga has failed to point to any portion of the record
to demonstrate that the trial court erred in finding Trooper Bice credible.
Throughout his testimony, Trooper Bice consistently stated when he detected the
odor of raw marijuana and was explicit in the details of his determination that the
odor was emanating from Alvaranga’s vehicle. Specifically, Trooper Bice testified
that he followed directly behind Alvaranga’s vehicle for four to six miles when he
detected an odor of raw marijuana. Trooper Bice recalled that Alvaranga’s vehicle
was the only vehicle in front of him when he first noticed the odor and that no other
vehicles were in close proximity at the time, and that the smell did not dissipate
when other cars passed. It was within the province of the trial court, as the finder
of fact, to believe all or none of Trooper Bice’s testimony in this regard. Moreover,
with no evidence in the record to the contrary, we conclude the trial court’s
determination that Trooper Bice offered credible testimony is supported by
competent, credible evidence in the record, and therefore we must accept the trial
court’s finding of fact. Case No. 9-20-27
{¶23} For the foregoing reasons, we conclude that under the totality of the
circumstances there was sufficient evidence to cause a prudent person to believe
that Alvaranga was driving while impaired. Therefore, the trial court did not err
when it determined that Trooper Bice obtained reasonable, articulable suspicion to
conduct a traffic stop of Alvaranga’s vehicle.

Outcome: Accordingly, the assignment of error is overruled and the judgment
and sentence of the Marion Municipal Court is affirmed.

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