Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Case No.
Plaintiff-Appellee D. MICHEAL HADDOX Prosecuting Attorney By:
GERALD V. ANDERSON II Assistant Prosecuting Attorney.
Defendant-Appellant JAMES A. ANZELMO Anzelmo Law.
W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E.
Defendant-appellant Rember Moscoso appeals his conviction and
sentence from the Muskingum County Court of Common Pleas on
drug-related charges. Plaintiff-appellee is the State of
OF THE FACTS AND CASE
On April 9, 2017, the Muskingum County Grand Jury indicted
appellant on one count of possession of drugs
(methamphetamines) in violation of R.C. 2925.11(A), a felony
of the first degree. The count was accompanied by forfeiture
and major drug offender specifications. Appellant also was
indicted on one count of trafficking in drugs
(methamphetamines) in violation of R.C. 2925.03(A)(2), a
felony of the first degree, with major drug offender and
forfeiture specifications and one count of fabrication of a
vehicle with a hidden compartment in violation of R.C.
2923.241(C), a felony of the second degree. Because appellant
was determined to be indigent, the trial court appointed
counsel to represent him. At his arraignment on August 16,
2017, appellant entered a plea of not guilty to the charges.
On October 11, 2017, appellant filed a Motion to Suppress
Evidence, seeking to suppress "any and all evidence
obtained in the course of, as a result of, and subsequent to,
the arrest of Defendant and the search of his hotel
room…" Appellant argued, in part, that the search
of his hotel room was improper due to lack of consent and/or
lack of a search warrant. Appellee filed a response to the
Motion to Suppress on October 24, 2017. A suppression hearing
was held on November 10, 2017.
At the hearing, Detective Adam Hoskinson of the Licking
County Sheriffs Office testified that he was assigned to the
Central Ohio Drug Enforcement ("CODE") Task Force.
He testified that on July 11, 2017, he was in a marked
cruiser when he noticed a vehicle following too close to a
gasoline tanker truck in front of it. He testified that the
vehicle later changed lanes but did not "signal for at
least 100 feet" before it did so. Transcript of November
10, 2017 hearing at 15. Detective Hoskinson testified that he
initiated a traffic stop of the vehicle which was a silver
Kia Sportage with Illinois plates which had been rented from
Enterprise Rent-A-Car in the name of Amber Connor. The
following testimony was adduced when he was asked if the
registration came back with anything of note to him:
A: …[T]he Illinois plate, it came back as a rental
vehicle. Rental vehicles have stickers, they are like bar
codes on them usually in several places. Typically either the
front window, the side passenger window, or on the rear
window. I did not see any of these stickers on the vehicle,
so that raised a lot of suspicions to me like why is that;
and with my training and education, it tells me that a lot of
the times the drug traffickers, drug couriers will remove
those stickers to make it appear that somebody actually is
private ownership of the vehicle to blend in with traffic.
Q: Okay. Through your training and experience, do drug
couriers oftentimes use rental vehicles?
A: Yes, they like to use rental cars, one, because of the
seizure clause, if they get caught. Two, they are dependable
cars, you know, they would rather drive a 2016, 2017 car over
2005 or 2010 because they are newer and more dependable, and
they blend in better.
Transcript of November 10, 2017 hearing at 16.
After he pulled the vehicle over and approached the
passenger's side, Detective Hoskinson immediately smelled
an "odor, abundant amount of raw marijuana coming from
inside the vehicle" Transcript of November 10, 2017
hearing at 16-17. He testified that he could observe
marijuana flakes throughout the center console area of the
vehicle. The driver of the vehicle, Jose DeJesus Barragan
Buenrostro, consented to a search of the same and of his
person and had flakes of marijuana on his shirt and pants.
The Detective located three hotel key cards to the Quality
Inn in Zanesville, Ohio on Buenrostro's person. A search
of the vehicle yielded a Quality Inn hotel receipt for room
324 in the hotel which was in Zanesville, Ohio. The name on
the receipt was appellant Rember Moscoso. A large bag with
two or three ounces of suspected marijuana was found in the
center console. When he opened up the rear cargo area of the
Kia, Detective Hoskinson located a spare tire sitting on the
carpeted area and noticed that the lug pattern on the spare
tire was for four lugs when the tires on the vehicle had five
lugs. Because he was concerned that there could be a hidden
compartment in the tire, he examined the tire and saw that
there was a rectangular cut with a flap sticking up on the
tire. He testified that this was a common way of transporting
illegal narcotics or contraband. There was nothing inside the
compartment, but a residue of methamphetamine was later found
inside the tire. Also in the vehicle, a traffic citation from
Oklahoma City that had been issued in the name of Hector
Gomez was located. Buenrostro, who did not
have a driver's license, was arrested on an outstanding
ICE holder and the hidden compartment violation.
Detective Hoskinson then contacted Detective Mike Patrick
with the Zanesville Police Department who is also a Detective
with the Zanesville/Muskingum County Drug Unit to follow up
with the hotel because he thought that there might be drugs
in the hotel room. Detective Todd Kanavel of the Muskingum
County Sheriff's Office who is also an agent with CODE,
testified that he followed up with the hotel at the direction
of Detective Patrick. He testified that the hotel manager
told him that appellant had checked into room 324 on July 8,
2017 but had transferred to room 210 on July 11, 2017 to save
money. Detective Kanavel and Detective Patrick then went to
room 210 at approximately 3:30 p.m. on July 11, 2017 and
knocked on the door. They could hear at least one male voice
inside the room talking. Detective Kanavel identified himself
and Detective Patrick to appellant and asked to talk to him.
Appellant, according to Detective Patrick, invited them into
the room. When the Detectives entered the room, they saw
Hector Gomez also was in the room laying on the bed. Both
Gomez and appellant provided California IDs. Appellant
already knew about Buenrostro's arrest and asked if this
had anything to with their friend Jose, who had been arrested
with the marijuana. The Detectives indicted that it did and
appellant said that the marijuana in the car was all that
they had, Detective Kanavel testified that both men, when
asked indicated that they did not have any drugs or guns in
the room and when he asked them individually if they could
check through the room for guns and drugs they consented.
Approximately $15, 000 in U.S. currency was located in a
black bag that appellant later identified as his. Appellant
stated that the money was used to pay MMA (mixed martial
arts) fighters. The two men told Detective Kanavel that they
had flown from California into Akron on July 10, 2017 looking
for MMA fighters. The Detective, however, knew that this was
a lie because they had checked into the hotel on July
8th. Appellant also claimed that, in Akron, a
woman named Amber met them and rented a car for them.
Detective Kanavel testified that the amount of money found
concerned him, so he contacted Detective Romano of the Newark
Police Department who was with CODE. He then told the two men
that Detective Romano wanted to talk to them and they said
that it would not be a problem. Neither man objected to the
Detectives remaining in the room while waiting the 30 to 45
minutes that it would take for Detective Romano to arrive
from Newark. When Detective Romano arrived, he spoke with
appellant and Gomez individually. The two gave conflicting
stories about how and when they traveled to Ohio. Both men
were then arrested for further investigation into the
marijuana that was located in the car. When they were asked
if they wanted the Detectives to clear out all of their stuff
and put it into bags so that they could get their $250.00
hotel deposit back and have the stuff transported to Licking
County along with them, where further investigation was to be
conducted, the two men agreed and the Detectives started
gathering their belongings. As they were gathering up the
belongings, Detective Romano found an unzipped black duffle
bag full of methamphetamine under one of the beds that
appellant had been sitting on. The methamphetamine was in 13
gallon-size zip lock bags. When asked, he testified that the
men never revoked his permission to be in the room or their
consent for him to search for anything. Romano testified that
in a cabinet behind a microwave, he found a styrofoam coffee
cup containing what looked like methamphetamine.
The trial court, as memorialized in a Journal Entry filed on
November 16, 2017, denied the Motion to Suppress, holding, in
part, that the occupants of the hotel room gave consent to
search the room and that no coercive tactics were used and
"no claims of false authority made."
Thereafter, on November 28, 2017, appellant entered a plea of
no contest to possession of drugs and trafficking in drugs
and the specifications and the trial court found appellant
guilty. The charge of fabrication of a vehicle with a hidden
compartment was tried to the bench. No testimony was taken,
but rather the parties stipulated to the facts. The parties
stipulated that Detective Hoskinson stopped Jose Barragan
Buenrostro on July 11, 2017 for a traffic violation and found
an altered tire in the cargo section of the vehicle driven by
him. They stipulated that the spare tire located in the
vehicle did not match the lug pattern on the vehicle and that
there was "a purposeful cut …in the outside of
the discovered tire giving access to its interior. ..Inside
the cut tire was methamphetamine residue". Transcript
from November 28, 2017 at 48. The parties also stipulated
that the Detectives discovered a plastic baggie containing
marijuana in the center console of the vehicle and that a
baggie was found stowed in the trunk compartment where the
spare tire normally would have been. There was a stipulation
that "Detectives Hoskinson, Romano, Kanavel, and Patrick
would testify that this baggie would match the type
characteristics of the baggies of methamphetamine later
discovered in Zanesville and for which the defendants have
already pled no contest." Transcript from November 28,
2017 at 49. The parties also stipulated that the phone found
on Barragan contained videos containing recorded
conversations between Barragan and appellant and Gomez about
methamphetamine. The trial court found appellant guilty of
the fabrication of a vehicle with a hidden compartment
Appellant on January 29, 2018, filed a Motion to Waive
Mandatory Fine due to indigency. Pursuant to an Entry filed
on January 31, 2018, the trial court ordered that for
purposes of sentencing, Counts One and Two would merge and
appellant would be sentenced under Count Two, and sentenced
appellant to a mandatory term of eleven years and imposed
mandatory fine of $10, 000.00 and a to stated prison term of
four years on Count Three. The trial court ordered that the
prison sentences be served consecutively with each other for
an aggregate prison sentence of 15 years. The trial court
also ordered appellant to pay all court costs.
Appellant now raises the following assignments of error on
I. THE TRIAL COURT ERRED BY DENYING MOSCOSCO' S MOTION TO
SUPPRESS EVIDENCE THAT POLICE OBTAINED IN VIOLATION OF HIS
RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED
BY THE FOURTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.
II. MOSCOSCO' S CONVICTION FOR FABRICATION OF A VEHICLE
WITH A HIDDEN COMPARTMENT IS BASED ON INSUFFICIENT EVIDENCE
IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTIONS 1 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT UNLAWFULLY ORDERED MOSCOSO TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE
PROCESS GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITES STATES CONSTITUTION.
IV. THE TRIAL OUR ABUSED ITS DISCRETION BY ORDERING MOSCOSCO
TO PAY A FINE, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER
THE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND SECTION 16, ARTICLE 1 OF THE OHIO
V. THE TRIAL COURT ERRED BY ORDERING MOSCOSO TO PAY COSTS, IN
VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 16 ARTICLE I OF THE OHIO CONSTITUTION.
Appellant, in his first assignment of error, argues that the
trial court erred in denying his Motion to Suppress. We
There are three methods of challenging 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 (4th
Dist.1991). 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 (8th Dist.
1994); State v. Claytor, 85 Ohio App.3d 623, 620
N.E.2d 906 (4th Dist. 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." When ruling on a motion to
suppress, the trial court assumes the role of trier of fact
and is in the best position to resolve questions of fact and
to evaluate the credibility of witnesses. See State v.
Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652
N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20,
437 N.E.2d 583 (1982).
Appellant argues that his consent was not voluntary but was
submission to police authority and that Romano's search
exceeded the consent. Because appellant challenges the trial
court's decision regarding the ultimate issue raised in
his motion to suppress; we must independently determine
whether the facts meet the appropriate legal standard.
It is well-established a defendant waives his or her Fourth
Amendment protection by consenting to a warrantless search.
State v. Barnes, 25 Ohio St.3d 203, 208, 495 N.E.2d
922 (1986), citing Davis v. United States, 328 U.S.
582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), Schneckloth v.
Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973), "The standard of proof to show a waiver of
Fourth Amendment rights is less strict than that required to
demonstrate a waiver of Fifth or Sixth Amendment rights. It
need not be shown that there has been a knowing and
intelligent waiver. Rather, the court must examine the
totality of the circumstances to determine the voluntariness
of consent." Barnes, supra, at 208-209, citing
Schneckloth, supra, and United States v.
Mendenhal, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497
"Voluntary consent, determined under the totality of the
circumstances, may validate an otherwise illegal detention
and search." State v. Robinette, 80 Ohio St.3d
234, 241, 1997 Ohio 343, 685 N.E.2d 762, citing Davis v.
United States, supra, at 593-594. Important factors in
determining the voluntariness of consent are: (1) The
voluntariness of the defendant's custodial status; (2)
The presence of coercive police procedures; (3) The extent
and level of the defendant's cooperation with the police;
(4) The defendant's awareness of his right to refuse to
consent; (5) The defendant's education and intelligence;
and (6) The defendant's belief that no incriminating
evidence will be found. State v. Hall, Tuscarawas
App. Nos.2000AP030025, 2000AP030026, unreported, 2000 WL
1862650 #3 (Dec. 14, 2000), citing State v. Webb,
2nd Dist. No. 17676, 2000 WL 84658 unreported (Jan. 28,
Any search beyond the permitted intrusion would not be based
on a voluntary relinquishment of the right to be free from
warrantless searches. See State v. Mack , 118 Ohio
App.3d 516, 519, 693 N.E.2d 821 (1997), appeal not allowed
(1997), 79 Ohio St.3d 1418, 680 N .E.2d 156. And if an
individual may limit the scope of his consent to search, he
may revoke that consent entirely. See, e.g., United
States v. Drayton, 536 U.S. at 207, 122 S.Ct. 2105, 153
L.Ed.2d 242; Painter v. Robertson (C.A.6, 1999), 185
F.3d 557, 567. Of course, an item properly seized prior to
the withdrawal of consent is not subject to suppression under
the Fourth Amendment. State v. Riggins,
1st Dist. No. C0306262, 2004-Ohio-4247.
The prevailing rule among Ohio courts is that consent to a
search may be limited in time, duration, area, and intensity,
or may revoked at any time, even after the search has begun.
See Lakewood v. Smith,1 Ohio St.2d 128, 130, 205
N.E.2d 388 (1965); State v. Crawford, 151 Ohio
App.3d 784, 2003-Ohio-902, 786 N.E.2d 83 (2d Dist.);
State v. Mack, 118 Ohio App.3d at 519, 693 N.E.2d
821 (6th Dist.); State v. Rojas (1997), 92 ...