[Cite as State v. Curry, 2022-Ohio-627.]

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: March 4, 2022 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, 

Assistant Prosecuting Attorney, for Plaintiff-Appellant, 

Bryan R. Perkins, for Defendant-Appellee. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellant, 

 vs. 

ANDRE CURRY, 

 Defendant-Appellee. 

: 

: 

: 

: 

: 

APPEAL NO. C-210274 

TRIAL NO. B-2005513 

 

 O P I N I O N.

 
OHIO FIRST DISTRICT COURT OF APPEALS

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WINKLER, Judge. 

{¶1} Andre Curry was indicted on one count of having weapons while 

under a disability after the police located a firearm in the trunk of his vehicle during 

a traffic stop. Curry moved to suppress the firearm obtained during the warrantless 

search of the trunk, and the trial court granted that motion after a suppression 

hearing. The state of Ohio now appeals, claiming in one assignment of error that the 

trial court erred in granting the motion to suppress. 

{¶2} The state maintains the search of the trunk was justified under the 

automobile exception to the warrant requirement. The investigating officer testified 

to several key facts that demonstrate probable cause, including detecting the odor of 

raw marijuana emanating from the trunk before the search, and the trial court 

expressly found the officer credible. Curry characterizes the credibility finding as 

“obscure” and unsupported by the record. We accept the credibility finding by the 

trial court and conclude the trial court misapplied the law governing the automobile 

exception because the facts demonstrate the officer had probable cause to search the 

trunk. Consequently, we reverse. 

I. Background Facts and Procedure 

{¶3} Curry moved to suppress the firearm on the ground that the search of 

his trunk was performed without a warrant. At the suppression hearing, Cincinnati 

Police Officer Aubrey Pitts acknowledged the absence of a warrant, but indicated he 

believed based on certain facts he observed and his training that the trunk contained 

raw marijuana and therefore an immediate search was justified. 

{¶4} Officer Pitts testified that he was patrolling the area of Gilbert Avenue 

and Beecher Street as a member of the police department’s gun task force in the early 
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evening of October 19, 2020. On that date, he had been a police officer for over five 

years, patrolling on shifts for most of his tenure. He specified his training from 

which he learned to distinguish the odor of burnt marijuana from raw marijuana and 

to detect marijuana in vehicles. 

{¶5} According to Officer Pitts, he stopped the 2019 Honda Civic driven by 

Curry due to illegal “heavy window tint” that prevented him from seeing the 

occupants inside the vehicle. Officer Pitts approached the “slow-to-stop” vehicle and 

ordered Curry and the occupants out of the vehicle due to furtive movements 

observed by another officer at the scene. The occupants were handcuffed and placed 

in the back of his cruiser. The officer testified that at the same time he smelled the 

odor of raw marijuana emanating from the passenger compartment along with the 

scent of burnt marijuana. Additionally, the officer stated he detected the odor of raw 

marijuana emanating from the unopened trunk of Curry’s vehicle. 

{¶6} Inside the passenger compartment, Officer Pitts found a small 

amount of raw marijuana, more on the passenger’s side than on the driver’s side. He 

then searched the trunk of the vehicle. There, he found no marijuana, but located 

the firearm that led to Curry’s indictment for having weapons while under a 

disability. 

{¶7} Curry testified at the suppression hearing, and that testimony 

provided a perspective that differed from the officer’s perceptions. Curry said he 

could not smell any marijuana that day in the passenger compartment or emanating 

from the trunk, the quantity of drugs was too insignificant to be detected, based on 

his experience with the substance, and no raw marijuana had ever been placed in the 

trunk of his vehicle. 
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{¶8} During closing arguments at the hearing, defense counsel argued the 

exclusionary rule required suppression of the firearm. Characterizing as incredible 

the officer’s testimony about smelling marijuana from a closed trunk that contained 

no marijuana, defense counsel asserted the state failed to present any credible facts 

to justify the warrantless search of the trunk based on the automobile exception. 

Although the state relied solely on the automobile exception to justify the warrantless 

search, defense counsel refuted the application of the other exceptions to the warrant 

requirement, concluding that police could not search the trunk, an area where Curry 

could not “reach.” 

{¶9} To refute defense counsel’s impossibility argument, the assistant 

prosecutor directed the trial court to a decision from this court recognizing probable 

cause based on police officers’ credible testimony that they perceived the odor of raw 

marijuana emanating from a trunk. See State v. Howard, 1st Dist. Hamilton Nos. C070174 and C-070175, 2008-Ohio-2706, ¶ 11. 

{¶10} After entertaining argument on Curry’s motion, the trial court took the 

matter under advisement for a few weeks and then granted the motion to suppress. 

In its oral comments explaining the basis of its decision, the court made the 

following findings: 

The defendant was stopped for tinted windows. After entering the 

defendant’s vehicle, the passenger was found to have a nominal 

amount of marijuana. The officer testified that his intent was to cite 

only the defendant for the tinted windows, a minor misdemeanor, and 

give a warning to the passenger. The search of the defendant’s trunk 

was then done without consent and extensively due to a small amount 
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of marijuana. A firearm was discovered in the trunk. The Court finds 

that all of the testimony was credible. 

{¶11} The trial court additionally indicated that “the issue is the search of the 

trunk and the fact that it was beyond the scope of the stop.” The court referred to 

three cases. First, a federal case involving what “scope” means in the context of 

consent to search. United States v. Elliott, 107 F.3d 810 (10th Cir.1997). Second, an 

Ohio Supreme Court decision holding that the scent of burnt marijuana coming from 

the passenger compartment of a defendant’s vehicle did not, standing alone, 

establish probable cause for a warrantless search of a trunk. State v. Farris, 109 

Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985. Finally, a recent decision from 

this court concluding that the scent of burning marijuana, standing alone, did not 

support a warrantless search of a trunk. State v. Ulmer, 1st Dist. Hamilton Nos. C190304, C-190305 and C-190306, 2020-Ohio-4689. 

II. Analysis 

A. Decision on Motion to Suppress and Appellate Review 

{¶12} An appellate court’s review of a motion to suppress presents a mixed 

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 

797 N.E.2d 71, ¶ 8. “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.” Id. Where a motion to suppress 

involves factual issues, the trial court “shall” state its essential findings on the record. 

Crim.R. 12(F). 

{¶13} We must accept the trial court’s findings of fact if they are supported 

by competent and credible evidence. Burnside at ¶ 8. “Accepting these facts as true, 
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[we] must then independently determine, without deference to the conclusion of the 

trial court, whether the facts satisfy the applicable legal standard.” Id. 
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B. Scope of Motion to Suppress 

{¶14} “To suppress evidence obtained pursuant to a warrantless search or 

seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) 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.” City of Xenia 

v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), paragraph one of the syllabus. 

The notice requirement involves “the specific legal and factual grounds upon which 

the validity of the search and seizure is challenged.” Id. at 219. 

{¶15} Generally, a defendant waives for purposes of appeal grounds for 

suppression that are not articulated in the motion to suppress and memorandum of 

support, unless they are articulated later without objection by the state and with 

permission of the court. See generally id. at 221; State v. Lattimore, 1st Dist. 

Hamilton No. C-100675, 2011-Ohio-2863, ¶ 7-9; Moreover, where a defendant 

concedes an issue in the lower court, the invited-error doctrine precludes revival of 

the abandoned argument on appeal. Ulmer, 1st Dist. Hamilton Nos. C-190304, C190305 and C-190306, 2020-Ohio-4689, at ¶ 15. 

{¶16} We mention these procedural rules because on appeal Curry presents 

legal and factual grounds to support suppression of the firearm, including the 

lawfulness of the stop, that he did not present in his written motion or memorandum 

in support. In that motion, Curry sought suppression of the evidence seized from his 

trunk because the “search of the trunk” was performed under circumstances that did 

not fall under any of the recognized exceptions for a “warrantless search”: “[t]here 

was no consent given to search the trunk of the vehicle, the contents of the trunk 

were not in plain view * * *, there were no exigent circumstances that would allow a 
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search for the safety of the officers to extend to a trunk of the vehicle that is not 

accessible from inside the vehicle * * * nor was there a crime in progress, that would 

justify the warrantless search of the trunk of the vehicle,” “regardless of any 

suspicion the officers may have had at the time.” 

{¶17} Further, at the suppression hearing, the assistant prosecutor objected 

to defense counsel’s attempt to extend the specified legal and factual grounds 

asserted in Curry’s written motion. The trial court sustained the objection. Finally, 

Curry effectively conceded the lawfulness of the stop, telling the court at the 

conclusion of the hearing that “since the [window tinting] law has been changed * * * 

it’s basically [the officer’s] opinion whether they can see into the vehicle or not.” On 

this record, we conclude Curry waived these new arguments, including the 

lawfulness of the stop, for purposes of appeal. 

{¶18} Accordingly, we limit our discussion to the legal and factual grounds 

presented in the motion to suppress—whether the search of Curry’s vehicle during a 

lawful detention fit into a recognized exception to the warrant requirement and was 

thus reasonable under the Fourth Amendment to the United States Constitution and 

Article 1, Section 14, of the Ohio Constitution. 

C. Automobile Exception 

{¶19} Warrantless searches are per se unreasonable without prior approval 

of a judge or magistrate, subject to a few well-established exceptions. See Katz v. 

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Ulmer, 1st 

Dist. Hamilton Nos. C-190304, C-190305 and C-190306, 2020-Ohio-4689, at ¶ 13. 

The state maintains the search was constitutionally reasonable based on the 

“automobile exception” to the warrant requirement. See United States v. Ross, 456 
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U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Moore, 90 Ohio St.3d 

47, 51, 734 N.E.2d 804 (2000). 

{¶20} The “automobile exception” applies to searches of “validly stopped 

motor vehicles” that are supported by an officer’s “probable cause to believe that 

[the] vehicle contains contraband.” Moore at 51. Probable cause must be based 

upon objective facts that would justify the issuance of a warrant by a magistrate. 

Ross at 809; Moore at 49. “[T]he scope of the search is limited by the object of the 

search and the places that may conceal the contraband.” Ulmer, 1st Dist. Hamilton 

Nos. C-190304, C-190305 and C-190306, at ¶ 13, citing Howard, 1st Dist. Hamilton 

Nos. C-070174 and C-070175, 2008-Ohio-2706, ¶ 11. 

{¶21} Probable cause to search a vehicle may be based on odors. See Moore

at syllabus (“The smell of marijuana, alone, by a person qualified to recognize the 

odor is sufficient to establish probable cause to search a motor vehicle pursuant to 

the automobile exception to the warrant requirement.”), quoted in State v. Vega, 154 

Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262, ¶ 15. The scope of the search 

based on that odor is circumscribed, as “[a] trunk and a passenger compartment of 

an automobile are subject to different standards of probable cause to conduct 

searches.” Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, at ¶ 51. To 

search a trunk, an officer must observe more than just an odor of burnt marijuana in 

the passenger compartment. See Farris at ¶ 52, cited in Ulmer at ¶ 17. 

{¶22} Curry agrees that under the case law governing the search of trunks 

based on the scent of raw marijuana, the objective facts presented through Officer 

Pitts’s testimony, if believed, are sufficient to support a finding that raw marijuana 

would be found in the trunk. See State v. Gartrell, 3d Dist. Marion No. 9-14-02, 

2014-Ohio-5203, ¶ 58; Howard, 1st Dist. Hamilton Nos. C-070174 and C-070175, 
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2008-Ohio-2706, at ¶ 11. Officer Pitts detected the odor of raw marijuana emanating 

specifically from the trunk, he smelled marijuana in the passenger compartment but 

recovered just a small quantity of marijuana, and he had training and experience in 

identifying the scent of raw marijuana. 

{¶23} The parties disagree as to whether the trial court accepted the 

officer’s testimony. The state takes the position that the trial court expressly found 

the officer credible, but committed error when the court failed to properly 

distinguish the facts of this case from Farris and Ulmer. Curry argues the state’s 

argument is based on a faulty premise that trial court accepted Officer Pitts’s 

testimony about detecting the scent of raw marijuana emanating from trunk. 

{¶24} In support of his position, Curry notes the lower court found “all the 

testimony was credible” and two witnesses presented conflicting perspectives. Curry 

further points out the trial court ultimately ruled that suppression was appropriate 

after weighing the evidence. Curry contends the trial court simply disbelieved the 

officer and concluded the officer lacked a lawful basis to extend the scope of the stop 

without the detection of the scent of marijuana from the trunk. 

{¶25} We are not persuaded by Curry’s position. The state sought to justify 

the warrantless search based on the exception for probable-cause-based searches of 

automobiles. The state relied on objective facts presented through Officer Pitts’s 

testimony, including the key fact concerning the odor of marijuana emanating from 

the trunk. As previously mentioned, Crim.R. 12(F) requires the court when 

adjudicating a motion to suppress to “state its essential findings on the record.” 

Here, the trial court granted the motion to suppress but never stated it found the 

officer’s testimony incredible, an “essential finding” for suppression based on the 
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governing law and facts at issue in this case. Instead, the trial court made an express 

finding of credibility. 

{¶26} Relatedly, we are unable say the finding of credibility is not supported 

by competent and credible evidence. A trained officer’s testimony concerning the 

detection of the odor of marijuana from a closed trunk is not inherently incredible. 

See, e.g., Howard, 1st Dist. Hamilton Nos. C-070174 and C-070175, 2008-Ohio2706. 

{¶27} We are troubled by the absence of marijuana in the trunk, but realize 

there could have been a lingering scent of marijuana. The trial court was in the best 

position to judge the officer’s credibility. Thus, we defer to the trial court’s 

acceptance of Officer Pitts’s testimony, which adequately conveyed his experience 

and training with the substance. 

{¶28} Finally, we conclude Curry’s concerns about the conflicting 

testimony—his versus the officer’s—are unwarranted. In our view, the trial court 

directed the credibility comment to the officer’s testimony, but then misapplied the 

law concerning the automobile exception to the warrant requirement. That 

exception allows a probable-caused based search of a trunk during the lawful 

detention of a motorist, even when that probable cause is based primarily on the 

odor of raw marijuana emanating from the trunk and is unrelated to the basis for the 

traffic stop. 

{¶29} Given the circumstances of this case, we hold the trial court erred by 

suppressing the firearm recovered from the trunk of Curry’s vehicle. Accordingly, we 

sustain the state’s single assignment of error. 

III. Conclusion 
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{¶30} The judgment of the trial court is reversed, and this cause is remanded 

for further proceedings consistent with this decision and the law. 

Judgment reversed and cause remanded. 

MYERS, P.J., concurs. 

BERGERON, J., dissents. 

BERGERON, J., dissenting. 

{¶31} I agree with the majority that, if the officer actually smelled raw 

marijuana wafting from the trunk, that would provide probable cause to search 

pursuant to the automobile exception. Our disagreement stems from how we read 

the trial court’s decision. The majority indicates that “the trial court expressly found 

the officer credible,” which provides its rationale for concluding that the trial court 

committed legal error. Majority opinion at ¶ 2. That, however, is not the case. The 

trial court, summarizing the testimony, noted only: “The Court finds that all of the 

testimony was credible.” It is significant that the officer and Mr. Curry both testified 

(painting diametrically opposed pictures of what happened), so the trial judge could 

not believe both sets of testimony. A more complete examination of what unfolded 

below convinces me that the trial court did not find the officer’s testimony credible, 

and therefore I respectfully dissent. 

{¶32} It is well-established that appellate courts must accept the factual 

findings of a trial court in evaluating a suppression motion when they are supported 

by competent, credible evidence. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-

Ohio-201, 96 N.E.3d 262, ¶ 14 (“Appellate review of a ruling on a motion to suppress 

presents a mixed question of law and fact * * * [a]n appellate court must accept the 

trial court’s findings of fact if they are supported by competent, credible evidence.”); 

see State ex rel. Portage Lakes Edn. Assn. v. State Emp. Relations Bd., 95 Ohio St.3d 
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533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 39 (“The issue of probable cause in 

criminal proceedings is essentially one of fact.”). And if we harbor doubt as to how to 

understand the trial court’s conclusion, we must interpret it in a manner consistent 

with the judgment. See State v. Bennett, 1st Dist. Hamilton No. C-190181, 2020-

Ohio-652, ¶ 12 (“[W]hen evidence is susceptible to more than one construction, a 

reviewing court must give it the interpretation that is consistent with the 

judgment.”); Karches v. City of Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 

(1988) (“[I]f the evidence is susceptible of more than one construction, we must give 

it that interpretation which is consistent with the verdict and judgment, most 

favorable to sustaining the trial court’s verdict and judgment.”). 

{¶33} With the benefit of that perspective, I see several reasons why the trial 

court might not have found the officer’s testimony about a smell of raw marijuana in 

the empty trunk plausible. The officer testified that he smelled raw marijuana 

emanating from the cab and the trunk of the car before observing anything. He then 

saw raw marijuana “shakes” on the passenger side, but in such a trivial amount that 

it could not legally provide a basis for arrest. At some point, the officer claims to 

have seen marijuana shakes on Mr. Curry’s side of the car as well, though again, in 

such a meager amount that it could not be collected as evidence. On redirect, the 

officer testified that he also smelled burnt marijuana (albeit not “burning 

marijuana”). The nasal detection of raw marijuana allegedly sealed in the trunk 

seems to be a pretty remarkable observation since no marijuana (raw, burnt, or 

otherwise) turned up. The majority appropriately admits some concern about the 

smell of nonexistent raw marijuana, but posits that “there could have been a 

lingering scent of marijuana” in the trunk. Majority opinion at ¶ 27. Of course, the 

officer never testified to that, and I don’t think we should be bolstering testimony on 
OHIO FIRST DISTRICT COURT OF APPEALS

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appeal—particularly going out of our way like this to reject the trial court’s 

conclusions. 

{¶34} Second, the officer insinuated that Mr. Curry attempted to flee by 

testifying that another unit “deployed Stop Sticks to stop the car because it continued 

to roll * * * [i]f any vehicle attempts to flee us, Stop Sticks are deployed so we don’t 

have a high-speed pursuit.” When pressed by defense counsel (and reminded that 

body-camera video captured the incident), the officer acknowledged that stop sticks 

were not placed directly in front of the car until after the vehicle had stopped and Mr. 

Curry was handcuffed. The testimony about the stop sticks is punctuated by 

inconsistencies, yet the officer relied on Mr. Curry’s alleged “slow[ness] to stop” as 

the originating reason to suspect the vehicle contained contraband. Although the 

officer witnessed no furtive movements from any of the occupants of the vehicle, he 

claimed that another officer on scene did. Conveniently, that officer did not testify at 

the hearing and the testifying officer provided no details on the nature of this 

“movement” that apparently justified removing the occupants from the vehicle and 

handcuffing them. 

{¶35} Third, the officer insisted that no legal standard governed window-tint 

violations, which stands at odds with existing law. R.C. 4513.241(A) provides that 

the director of public safety “shall adopt rules governing the use of tinted glass * * * 

that prevent a person of normal vision looking into the motor vehicle from seeing or 

identifying persons or objects inside the motor vehicle.” And we find those 

governing rules in the Ohio Administrative Code. Ohio Adm.Code 4501-41-03(A)(2) 

(tinting on windshield must have a “light transmittance of not less than seventy per 

cent plus or minus three per cent”); Ohio Adm.Code 4501-41-03(A)(3) (tinting on 

side windows must have a “light transmittance of not less than fifty per cent plus or 
OHIO FIRST DISTRICT COURT OF APPEALS

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minus three per cent”). In fact, if no standard existed, it would allow any officer to 

pull over any car based on window tint, thus throwing open a wide door to pretextual 

stops. 

{¶36} The trial court thus confronted (a) smells of burnt and raw marijuana 

without any physical evidence of such; (b) a potential exaggeration about the car 

seeking to flee (or at least inconsistencies on that score); (c) vagueness on the nature 

of any movement in the vehicle, and no first-hand account of it; and (d) a stop for a 

window-tint violation when the officer never actually substantiated the grounds for 

the stop because he did not believe any legal standard applied. In light of that, it’s 

not difficult to see why the smell testimony might raise concerns. Regardless, our job 

is to “neither weigh the evidence nor judge the credibility of witnesses.” State v. 

Woods, 2018-Ohio-3379, 117 N.E.3d 1017, ¶ 19 (5th Dist.). We defer to the trial court 

because “the trial court has had the opportunity to observe the witness’ demeanor, 

gestures, and voice inflections that cannot be conveyed to us through the written 

record.” State v. Whitfield, 1st Dist. Hamilton No. C-190591, 2020-Ohio-2929, ¶ 12. 

Inferences to be drawn from the evidence present factual questions within the 

province of the trial court, and “[a] reviewing court can not usurp the function of the 

triers of fact by substituting its judgment for theirs.” Simon v. Lake Geauga Printing 

Co., 69 Ohio St.2d 41, 45, 430 N.E.2d 468 (1982); Seasons Coal Co. v. City of 

Cleveland, 10 Ohio St.3d 77, 81, 461 N.E. 2d 1273 (1984) (“A reviewing court should 

not reverse a decision simply because it holds a different opinion concerning the 

credibility of the witnesses and evidence submitted before the trial court.”). 

{¶37} To support its opinion, the majority determines that the trial court 

really meant to find the officer’s testimony fully credible. I’m afraid I just can’t 

divine that from the transcript. After all, the trial court explained that the search 
OHIO FIRST DISTRICT COURT OF APPEALS

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resulted “extensively due to a small amount of marijuana”—not from the smell of raw 

marijuana in the trunk. Given the state’s focus on the smell throughout the hearing, 

that comment alone suggests the trial court, with the benefit of observing the 

testimony described above, discounted the smell of raw marijuana in the trunk as the 

basis for probable cause. From that springboard, the trial court proceeded to cite 

three cases supporting its decision to suppress the evidence. United States v. Elliot, 

107 F.3d 810 (10th Cir.1997) (granting motion to suppress where officer exceeded 

scope of consent); State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 

985 (holding that light odor of burnt marijuana does not establish probable cause for 

warrantless search of the trunk); State v. Ulmer, 1st Dist. Hamilton Nos. C-190304, 

C-190305 and C-190306, 2020-Ohio-4689 (reversing conviction where the officer 

did not have probable cause to search the trunk). The citation of these cases further 

supports the trial court’s rejection of the state’s theory for probable cause. 

{¶38} In Ulmer, for instance, officers stopped the defendant in a parking lot 

on suspicion of trespassing. At the hearing on the motion to suppress, one officer 

testified that he searched the trunk because he could smell a very strong odor of 

marijuana coming from Mr. Ulmer, the immediate vicinity, and the vehicle. We 

disagreed with the state’s theory of probable cause, explaining that the odor of 

burning marijuana could not support the search of the vehicle’s trunk (because 

burning marijuana would be unlikely to be found in the trunk). We specifically 

contrasted that situation with a scenario in which an officer testified “that he smelled 

raw marijuana or that he was trained to detect the odor of raw marijuana.” Ulmer at 

¶ 19. This case provides the exact scenario contemplated by Ulmer, so if the trial 

court believed the officer’s testimony about the smell of raw marijuana (as the 
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majority concludes), the court would have used that as a fairly obvious reason to 

distinguish Ulmer. But that’s not what the trial court did. 

{¶39} Similarly, in Farris, the smell of burning marijuana could not be 

wielded to justify a search of the trunk. “The odor of burnt marijuana in the 

passenger compartment of a vehicle does not, standing alone, establish probable 

cause for a warrantless search of the trunk of the vehicle. No other factors justifying 

a search beyond the passenger compartment were present in this case. The officer 

detected only a light odor of marijuana, and the troopers found no other contraband 

within the passenger compartment.” Farris at ¶ 52. Again, if the trial court reached 

the conclusion that the majority envisions, it would have readily distinguished this 

result rather than follow it. 

{¶40} Admittedly, the trial court could have been clearer in setting forth its 

credibility findings. But the majority’s conclusions simply can’t be squared with my 

reading of the trial court’s decision. And the record amply supports trial court’s 

decision to disbelieve the testimony about the odor of raw marijuana in the trunk. I 

accordingly respectfully dissent and would affirm the trial court’s judgment. 

Please note: 

 The court has recorded its own entry this date.