[Cite as State v. Wright,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230456 TRIAL NO. B-2202732 Plaintiff-Appellee, :

vs. : O P I N I O N. TRAVIS WRIGHT, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 8, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Presiding Judge.

{¶1} A drug dog sniffed and alerted outside of defendant-appellant Travis

Wright’s car. The dog was trained to detect, among other things, marijuana. But it was

not trained to distinguish between medical marijuana, hemp products, and illegal

marijuana. Wright moved to suppress drugs found in his car, arguing that the search

of the car following the dog’s alert violated his rights under the Fourth and Fourteenth

Amendments to the United States Constitution. Wright asserted that because the dog

could not distinguish between illegal and legal marijuana, the police lacked probable

cause to search his vehicle. The trial court denied the motion and Wright entered a no-

contest plea. Wright now appeals.

{¶2} We hold that the dog’s alert, combined with the other circumstances

known to the police at the time of the search, established probable cause and

supported the search of Wright’s vehicle.

I. Facts and Procedure

A. The Stop, Sniff, and Search of Wright’s Car

{¶3} In June 2022, Deputy Jeremy Beckwith was conducting surveillance on

those who came and went from a hotel known for use by drug traffickers. Beckwith

saw an individual, later identified as Wright, arrive in a vehicle and enter the hotel,

empty handed. Ten to 15 minutes later, Wright exited from the hotel carrying a

suitcase.

{¶4} Wright caught Beckwith’s attention because Wright was “what we call

head on a swivel, looking left, looking right, kind of suspicious about his

surroundings.” Beckwith testified that this behavior, combined with Wright’s entering

the hotel empty-handed and leaving with a suitcase, made the situation especially odd.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Wright placed the suitcase in the trunk of his vehicle and drove off. Beckwith radioed

other officers in the area about Wright’s behavior and a description of the car.

{¶5} Deputy Steven VonHertsenberg was in the area in a marked police

cruiser and heard Beckwith’s call over the radio. VonHertsenberg located Wright’s

vehicle and began tailing him. After VonHertsenberg started the tail, Wright began

driving in an evasive manner, making several left turns, and quickly speeding up.

Wright committed a marked-lanes violation for which VonHertsenberg initiated a

traffic stop. When VonHertsenberg turned on his cruiser’s overhead lights, Wright’s

vehicle did not stop immediately and continued for 100 feet into a cul-de-sac at the

end of the street before stopping. As VonHertsenberg approached Wright’s vehicle,

Wright’s window was only down about an inch, which concerned VonHertsenberg

because it is easier to hear and to ensure safety when a window is down. The officer

ordered Wright out of the car, but Wright did not comply. Instead, Wright argued with

VonHertsenberg for more than a minute, continuing to refuse to exit from his vehicle.

Once VonHertsenberg threatened to break Wright’s window, Wright exited from his

car.

{¶6} Fewer than two minutes after VonHertsenberg stopped Wright,

Sergeant Anthony Lange arrived with Kylo, a certified drug-detection dog. Kylo is

trained to detect and alert to the odor of marijuana, cocaine, heroin, and

methamphetamine. But Kylo is unable to distinguish between medical marijuana,

hemp products, and illegal forms of marijuana because all three products come from

variations of the same plant, cannabis. Kylo alerts in the same manner for all

substances he is trained to detect. Lange testified that while Kylo has never alerted to

what turned out to be medical marijuana, Kylo has alerted to hemp.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶7} Lange brought Kylo to Wright’s vehicle, gave Kylo a command to search,

and Kylo alerted at the driver’s-side door of Wright’s car. Lange searched Wright’s

vehicle with VonHertsenberg and found 19 pounds of marijuana in the suitcase in the

trunk of the vehicle.

{¶8} The state charged Wright with one count of trafficking in marijuana in

violation of R.C. 2925.03(A)(2) and one count of possession of marijuana in violation

of R.C. 2925.11(A).

B. Cannabis law in June 20221

{¶9} In 2016, Ohio legalized medical marijuana, codified in R.C. Chapter

3796. It is now legal under Ohio law for those holding a medical-marijuana card to

possess a 90-day supply of medical marijuana. R.C. 3796.22. Medical marijuana is

“marijuana that is cultivated, processed, dispensed, tested, possessed, or used for a

medical purpose.” R.C. 3796.01(A)(2).2 It remains illegal under federal law to possess

marijuana. 21 U.S.C. 844(a); 21 U.S.C. 812; 21 C.F.R. 1308.11(d).

{¶10} In 2019, Ohio legalized the possession of hemp, a low-THC variation of

cannabis.3 In 2018, Congress passed the Agriculture Improvement Act, which

1 This incident occurred before Ohio’s November 2023 election in which Ohioans voted to legalize

recreational marijuana. We do not consider what affect that change in the law might have on our analysis. 2 “Marijuana” means “marihuana” as defined under R.C. Chapter 3719 (Controlled Substances):

all parts of a plant of the genus cannabis, whether growing or not; the seeds of a plant of that type; the resin extracted from a part of a plant of that type; and every compound, manufacture, salt, derivative, mixture, or preparation of a plant of that type or of its seeds or resin * * * “Marihuana” does not include “hemp” or a “hemp product” as those terms are defined in section 928.01 of the Revised Code. 3 R.C. 928.01(C) defines hemp as the “plant Cannabis sativa L. and any part of that plant, including

the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.” 4 OHIO FIRST DISTRICT COURT OF APPEALS

removed hemp from the list of federally-controlled substances.4 Accordingly, cannabis

meeting the definition of “hemp” is legal under both Ohio and federal law.

{¶11} The difference between medical marijuana and illegal marijuana under

Ohio law is that medical marijuana is “produced, cultivated, processed, dispensed,

tested, possessed, or used for a medical purpose.” And the difference between

“marijuana” and “hemp” under Ohio and federal law is the level of THC present in the

cannabis plant.

II. Law and Analysis

A. First Assignment of Error: Was the sniff a search?

{¶12} In his first assignment of error, Wright argues that, because Kylo could

alert to both legal and illegal cannabis products, his sniff was a search under the Fourth

Amendment. Therefore, he asserts, police were required to have probable cause before

they could use a drug-detecting dog. The state responds that Wright waived this issue

by not raising it before the trial court.

{¶13} Generally, a party may not raise an argument on appeal that was not

argued before the trial court. State v. Wintermeyer,

, 2019-Ohio-

5156,

, ¶ 10. When filing a motion to suppress evidence, a defendant

must “ ‘raise the grounds upon which the validity of the search or seizure is challenged

in such a manner as to give the prosecutor notice of the basis for the challenge.’ ” State

v. Billings, 1st Dist. Hamilton Nos. C-200245 and C-200246,

,

quoting City of Xenia v. Wallace,

,

(1988).

Therefore, when a defendant fails to present an argument at a suppression hearing,

that argument is waived.

.

4 Ohio’s definition of “hemp” mirrors the federal definition. 7 U.S.C. 1639o(1).

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} A trial court granting a motion to suppress on a basis not raised by the

defendant’s motion commits reversible error because the state must be provided an

opportunity to present evidence and arguments to oppose the defendant’s motion.

Billings at ¶ 17, citing State v. Skeens, 5th Dist. Tuscarawas No. 2017 AP 11 0030, 2018-

Ohio-1610, ¶ 20.

{¶15} Wright did not argue that Kylo’s sniff constituted a search under the

Fourth Amendment before the trial court. Instead, Wright’s motion and argument at

the suppression hearing asserted that Kylo’s alert did not establish probable cause.

Given that Wright did not raise this argument below, he has waived it on appeal. We

overrule Wright’s first assignment of error.

B. Second Assignment of Error: Was there probable cause?5

{¶13} In his second assignment of error, Wright argues that Kylo’s alert did

not establish probable cause to search Wright’s vehicle because Kylo’s training did not

allow him to differentiate between legal and illegal cannabis products. Wright argues

that, but for the alert, the officers would not have searched his vehicle, and therefore,

the existence of probable cause hinges on the reliability of the alert. The state argues

that Kylo’s alert established probable cause. Further, the state asserts that other

factors established probable cause to search Wright’s vehicle.

1. Standard of Review

{¶14} “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Thyot,

,

(1st Dist.). When

reviewing a trial court’s decision to suppress evidence, we “ ‘accept the trial court’s

5Though Wright’s motion raised challenges to the search under both the federal and Ohio Constitutions, Wright did not brief the Ohio constitutional issue on appeal. 6 OHIO FIRST DISTRICT COURT OF APPEALS

findings of fact as true’ ” if competent, credible evidence supports those findings. State

v. O’Neal, 1st Dist. Hamilton No. C-220541,

, quoting

. But we “ ‘independently determine whether the facts satisfy the applicable legal

standard.’ ”

quoting

.

2. Probable Cause

{¶15} The Fourth Amendment to the United States Constitution, applied to

the states through the Fourteenth Amendment, provides that “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” A warrantless search or seizure is

presumptively unreasonable—and unconstitutional—unless an exception to the

warrant requirement applies. State v. Moore,

,

(2000). The automobile exception to the warrant requirement permits an officer to

search a lawfully stopped vehicle if the officer has probable cause to believe that the

vehicle contains contraband. Id.; Collins v. Virginia,

,

,

(2018).

{¶16} “A police officer has probable cause to conduct a search when ‘the facts

available to [him] would “warrant a [person] of reasonable caution in the belief” ’ that

contraband or evidence of a crime is present.” Florida v. Harris,

,

,

(2013), quoting Texas v. Brown,

,

,

(1983), quoting Carroll v. United States,

,

,

(1925). Probable cause requires “a probability or substantial

chance of criminal activity, not an actual showing of such activity.” District of

Columbia v. Wesby,

,

,

(2018), quoting

Illinois v. Gates,

,

,

(1983), fn. 13. In

7 OHIO FIRST DISTRICT COURT OF APPEALS

determining whether probable cause existed at the time of a search or seizure, courts

look to the totality of the circumstances.

Further, the Supreme Court has warned

courts against developing “rigid rules, bright-line tests, and mechanistic inquiries;”

instead, courts should apply “a more flexible, all-things-considered approach” when

reviewing probable-cause determinations.

.

{¶17} Here, two lines of cases are relevant to our probable-cause analysis.

First, an alert from a trained drug-detection dog will ordinarily establish probable

cause to search a lawfully-detained vehicle. State v. Lopez,

,

,

(1st Dist.); State v. Gray,

,

(12th Dist.). The alert provides probable cause to search the entire

vehicle, including any packages or compartments that “ ‘may logically conceal the

object of the search.’ ” (Emphasis deleted.)

, quoting State v. Welch,

,

(1985).

{¶18} Second, an officer develops probable cause to search the passenger

compartment of a vehicle where the officer detects an odor that the officer is qualified

to identify, and that odor is “a distinctive odor that undoubtably identifies a forbidden

substance.” Moore,

,

, citing Johnson v. United

States,

,

,

(1948). In Moore, the Supreme Court

of Ohio held that “if the smell of marijuana, as detected by a person who is qualified to

recognize the odor, is the sole circumstance, this is sufficient to establish probable

cause. There need be no additional factors to corroborate the suspicion of the presence

of marijuana.”

. While Moore dealt with a human sniff rather than a dog sniff,

this rationale is applicable to dog sniffs to the extent that it discusses the formation of

probable cause based on the perception of the odor of contraband.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} Wright argues that Moore is no longer good law because it predates

Ohio’s legalization of medical marijuana and hemp products. He accordingly asks us

to depart from Moore and hold that an alert from a dog trained to detect marijuana

does not provide probable cause to search.

{¶20} Other courts have continued to apply both lines of cases following

Ohio’s legalization of medical marijuana and hemp products. State v. Withrow, 2022-

Ohio-2850,

, ¶ 19 (7th Dist.) (“The fact that illegal marijuana and legal

forms of hemp have the same odor is irrelevant so long as some forms of marijuana

remain illegal. Thus, Moore remains good law and any detection of the odor would

give probable cause to search.”); State v. Tillman,

,

(5th Dist.), quoting Withrow at ¶ 19 (same); State v. Johnson, 8th Dist. Cuyahoga

No. 111040,

(same); see United States v. Hayes, E.D.Tenn. No.

3:19-CR-73-TAV-HBG,

, 70-71 (Feb. 21, 2020) (“An alert

by a drug detection dog, trained to detect marijuana and other illegal narcotics, means

there is a fair probability, not an absolute guarantee, that one of the illegal narcotics,

which the dog is trained to detect, will be found in that location.”); United States v.

Deluca, 10th Cir. No. 20-8075,

, 13 (Aug. 18, 2022)

(same).6

{¶21} In other jurisdictions where some forms of marijuana or hemp are legal,

courts have held that the smell of marijuana—or an alert from a dog trained to detect

marijuana—alone is insufficient to establish probable cause. See People v. McKnight,

,

(“At most, the alert could be ‘suggestive of criminality,’

6 This court has also recently repeated Moore’s holding, though the defendant in that case conceded

that Moore was good law in his briefing and Moore’s validity was therefore not before us. State v. Payne, 1st Dist. Hamilton No. C-230144,

. 9 OHIO FIRST DISTRICT COURT OF APPEALS

but not determinative on its own.”); Commonwealth v. Barr,

, 41

(Pa. 2021) (“Accordingly, the smell of marijuana alone cannot create probable cause to

justify a search under the state and federal constitutions.”); State v. Torgerson,

, 175 (Minn. 2023) (“the officers relied solely on the medium-strength odor

of marijuana when determining there was a fair probability that contraband or

evidence of a crime would be found in Torgerson’s vehicle—the very bright-line rule

for probable cause advanced by the State and which we have rejected.”); People v.

Stribling,

,

,

(“The smell

of burnt cannabis, alone, coupled with the defendant’s statement that someone (he did

not state that it was himself) had smoked in the vehicle ‘a long time ago,’ was not

enough for ‘a reasonable officer [to] conclude—considering all of the surrounding

circumstances, including the plausibility of the [innocent] explanation itself—that

there was a “substantial chance of criminal activity.” ’ ”); People v. Clark, Mich.Ct.App.

No. 345459, 2019 Mich.App. LEXIS 4303, 8 (July 30, 2019) (“Given that defendant

was able to produce a medical marijuana provider card, we are not convinced under

these circumstances that the ‘slight odor’ of marijuana would have been sufficient to

establish probable cause because, essentially, it would appear under the facts that

defendant lawfully possessed the marijuana.”); Lewis v. State,

,

(2020) (“law enforcement officers need probable cause to believe the arrestee is in

possession of a criminal amount of marijuana to conduct a lawful arrest. The odor of

marijuana alone does not indicate the quantity, if any, of marijuana in someone’s

possession.”).

{¶22} At the time of this stop, most forms of marijuana were illegal in Ohio.

While the legalization of medical marijuana and hemp products may have lowered the

10 OHIO FIRST DISTRICT COURT OF APPEALS

likelihood that Kylo was alerting to contraband, that likelihood was far from zero. See

Harris,

,

,

(“The question—similar to

every inquiry into probable cause—is whether all the facts surrounding a dog’s alert,

viewed through the lens of common sense, would make a reasonably prudent person

think that a search would reveal contraband or evidence of a crime. A sniff is up to

snuff when it meets that test.”).

{¶23} We hold that in determining whether police officers had probable cause

to search a vehicle, courts may consider a trained drug-detecting police dog’s sniff and

alert. Accord Moore

,

(“Defendant concedes that

the smell of marijuana is a relevant factor in a probable-cause analysis.”); People v.

Zuniga,

,

(“A possible innocent explanation or lawful

alternative may add a level of ambiguity to a fact’s probative value in a probable cause

determination, but it does not destroy the fact’s usefulness outright and require it to

be disregarded.”).

{¶24} We need not decide whether Kylo’s alert, standing alone, provided

probable cause to search. The officers relied on other factors to determine that they

had probable cause to believe they would find contraband in Wright’s vehicle. While

the change in the law after Moore may mean that the odor of cannabis no longer

“undoubtably” identifies a forbidden substance, the Fourth Amendment requires

consideration of the totality of the circumstances.

{¶25} Here, officers observed Wright enter a hotel known for drug trafficking

and exit carrying a suitcase while rapidly looking around at his surroundings. While

being tailed by a marked police cruiser, Wright began driving evasively. When stopped

by officers, Wright was immediately combative and refused several lawful orders to

11 OHIO FIRST DISTRICT COURT OF APPEALS

exit from his car. These factors, combined with Kylo’s alert, provided a sufficient

probability that Wright’s vehicle contained contraband, therefore establishing

probable cause to search his vehicle. We overrule Wright’s second assignment of error.

III. Conclusion

{¶26} For the foregoing reasons, we overrule Wright’s two assignments of

error and affirm the trial court’s judgment.

Judgment affirmed.

WINKLER and BERGERON, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

12