State v. Gomez, CT2018-0025

CourtUnited States Court of Appeals (Ohio)
Citation2019 Ohio 481,130 N.E.3d 1065
Docket NumberNo. CT2018-0025,CT2018-0025
Parties STATE of Ohio, Plaintiff-Appellee v. Hector GOMEZ, Defendant-Appellant
Decision Date11 February 2019

130 N.E.3d 1065
2019 Ohio 481

STATE of Ohio, Plaintiff-Appellee
Hector GOMEZ, Defendant-Appellant

No. CT2018-0025

Court of Appeals of Ohio, Fifth District, Muskingum County.

DATE OF JUDGMENT ENTRY: February 11, 2019


Gwin, P.J.

{¶1} Defendant-appellant Hector Gomez ["Gomez"] appeals his conviction and sentence from the Muskingum County Court of Common Pleas on drug-related charges.

Facts and Procedural History

{¶2} On April 9, 2017, the Muskingum County Grand Jury indicted Gomez 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. Gomez 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.

130 N.E.3d 1072

{¶3} On October 11, 2017, Gomez filed a Motion to Suppress Evidence. A suppression hearing was held on November 10, 2017.

{¶4} At the hearing, Detective Adam Hoskinson of the Licking County Sheriff's 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. T., November 10, 2017 at 15. Detective Hoskinson testified that he initiated a traffic stop of the vehicle, which was a silver Kia Sportage with Illinois plates that had been rented from Enterprise Rent-A-Car in the name of Amber Connor.

{¶5} 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" T., Nov. 10, 2017 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 pants1 . 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 Rember Moscoso2 . 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. Based upon his training and experience he was concerned that there could be a hidden compartment in the tire. Detective Hoskinson 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 of the tire. The tire was sent to the crime lab for further analysis. The trial court sustained defense counsel's objection to Detective Hoskinson's testimony about the results of the laboratory analysis of the tire. T., Nov. 10, 2017 at 47.

{¶6} Also in the vehicle, a traffic citation from Oklahoma City that had been issued in the name of Gomez was located. Buenrostro, who did not have a driver's license, was arrested on an outstanding ICE holder and the hidden compartment violation.

{¶7} 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.

{¶8} 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 Gomez and Moscoso had checked into room 324 on

130 N.E.3d 1073

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. Moscoso opened the door. Detective Kanavel identified himself and Detective Patrick and asked to talk to him. Moscoso, according to Detective Patrick, invited them into the room. When the Detectives entered the room, they saw Gomez also was in the room laying on the bed. Both Gomez and Moscoso provided California IDs. Moscoso asked if this had anything to with their friend Jose [Buenrostro]. The Detectives indicted that it did. Moscoso said that he knew Buenrostro had "a little bit of marijuana"; however, everybody has it because it is legal in California. T., Nov. 10, 2017 at 59. Moscoso said that the marijuana in the car was all that they had in their possession.

{¶9} 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. T., Nov. 10, 2017 at 59. Gomez pointed out clothing next to the door that he claimed belonged to him. T., Nov. 10, 2017 at 89; 103; 107. Approximately $ 15,000 in U.S. currency was located in a black bag that Moscoso later identified as his. Moscoso 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. T., Nov. 10, 2017 at 59-60. The Detective, however, knew that this was not correct because they had checked into the hotel on July 8, 2017. Moscoso also claimed that, in Akron, a woman named Amber met them and rented a car for them.

{¶10} 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.

{¶11} When Detective Romano arrived, he spoke with Moscoso 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 personal belongings and put it into bags so that they could get their $ 250.00 hotel deposit back and have their possessions 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 a black duffle bag full of methamphetamine under one of the beds where Moscoso had been sitting. Detective Romano testified, "Well, the flap wasn't completely opened because it's a flap tie, but it was opened enough that I could see through the inch opening that there was stuff in it, yes, sir." (T. November 10, 2017 at 119). Detective Romano testified that through his training and experience he believed that the bag contained a large amount of methamphetamine. (Id. ).

{¶12} The methamphetamine was in thirteen one-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

130 N.E.3d 1074

anything. Romano testified that in a cabinet behind a microwave, he found a Styrofoam coffee cup containing what looked like methamphetamine.

{¶13} 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."

{¶14} On November 28, 2017, Gomez filed a brief arguing in part that the hidden compartment statue was unconstitutional. Also on that date, Gomez entered a plea of no contest to possession of drugs and trafficking in drugs and the specifications.

{¶15} During the state's explanation of circumstances, the state noted, "Inside the tire was the residue of methamphetamine." T., Nov. 28, 2017 at 30. This fact is also part of Gomez's stipulation concerning the Hidden Compartment charge. T., Nov., 28, 2017 at 48-49. The state further noted,

The trunk compartment where the spare tire would have been located if it would have been properly stowed, they found a baggie that matched the characteristics of the baggie found of methamphetamine that were later located in Muskingum County, Ohio.

* * *

They discovered a traffic citation in the vehicle from Oklahoma

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