State v. Small ( 2018 )

[Cite as State v. Small, 2018-Ohio-3943.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 17AP-551
(C.P.C. No. 17CR-802)
v. :
(REGULAR CALENDAR)
Ejuan Small, :
Defendant-Appellee. :
D E C I S I O N
Rendered on September 27, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellant. Argued: Seth L. Gilbert.
On brief: Lisa M. Tome, for appellee. Argued: Lisa M.
Tome.
APPEAL from the Franklin County Court of Common Pleas
BROWN, P.J.
{¶ 1} This is an appeal by plaintiff-appellant, State of Ohio, from a judgment of
the Franklin County Court of Common Pleas granting a motion to suppress filed by
defendant-appellee, Ejuan Small.
{¶ 2} On February 8, 2017, appellee was indicted on one count of carrying a
concealed weapon, in violation of R.C. 2923.12, one count of improperly handling a
firearm in a motor vehicle, in violation of R.C. 2923.16, and one count of having a weapon
while under disability, in violation of R.C. 2923.13. On February 15, 2017, appellee
entered a plea of not guilty. On April 5, 2017, appellee filed a motion to suppress. On
April 18, 2017, the state filed a memorandum contra the motion to suppress.
No. 17AP-551 2
{¶ 3} On July 24, 2017, the trial court conducted a hearing on the motion to
suppress. During the hearing, the state presented the testimony of Columbus Police
Officers Mark Wolf and Jerry Ward, while appellee presented the testimony of Shana
Thomas.
{¶ 4} On the evening of January 28, 2017, Officer Wolf was in a patrol car
traveling north on Saint Clair Avenue when he observed a vehicle merge into the left turn
lane before turning onto East Second Avenue. Officer Wolf testified the driver "failed to
signal into the turn lane, and then as she did turn onto Second Avenue, she didn't
signal 100 feet within her turn." (Tr. at 25.)
{¶ 5} Officer Wolf initiated a traffic stop at 10:53 p.m., and the stop was recorded
on the cruiser's video camera. The officer exited his cruiser and approached the driver's
side of the vehicle. Officer Wolf observed two individuals inside the vehicle, a female
driver, later identified as Thomas, and a male passenger, appellee.
{¶ 6} Officer Wolf testified the driver "appeared to be nervous." (Tr. at 13.)
Approximately one minute after the stop, as Officer Wolf was speaking with the driver,
Columbus Police Officers Josh Buck and Ward arrived at the scene. Officer Ward testified
that, after receiving Officer Wolf's location on a police dispatch, he and Officer Buck
stopped to assist Officer Wolf because "it's a known high-crime area." (Tr. at 33.) Officers
Ward and Buck approached the passenger side of the vehicle as Officer Wolf was talking
with the driver.
{¶ 7} Officer Wolf handed Officer Ward identification information to perform a
warrant check. Officer Ward returned to his patrol wagon and ran a "LEADS and warrant
check" on the driver. (Tr. at 35.) The officer also performed a check of the passenger
based on an identification card. As a result of the LEADS check, Officer Ward discovered
the driver had no outstanding warrants. Officer Ward also learned that the passenger,
appellee, "had been charged with a gun and had a robbery case before too." (Tr. at 37.)
{¶ 8} Officer Wolf informed Officer Ward that he was "going to issue the driver a
ticket for the * * * traffic violation." (Tr. at 37.) Officer Ward then handed Officer Wolf
the identification information. As Officer Wolf began writing the citation, Officer Ward
returned to the vehicle and spoke with the driver. Officer Ward noted that the occupants
were "still visibly nervous." (Tr. at 41.) Officer Ward asked the driver "where they were
No. 17AP-551 3
going, and she told me that she was going home on Sunbury Road. And I explained to her
* * * this is the opposite direction from there." (Tr. at 42.)
{¶ 9} Officer Ward then "asked her * * * if there were any weapons in the vehicle,
and she stated, no. But when she said that, she took * * * a deep gulp and swallowed and
then she said no." (Tr. at 42.) The officer, aware of appellee's "previous history," then
asked appellee "if he was done carrying guns, * * * and he said he hadn't been carrying a
gun since the last time he was arrested." (Tr. at 42.) Appellee was "visibly nervous." (Tr.
at 42.)
{¶ 10} Officer Ward asked the driver "if we could check the car for * * * weapons,
and search the car," and Thomas responded by stating "she did not have any weapons on
her." (Tr. at 42-43.) Officer Ward then asked the driver whether appellee had any
weapons, and "she said, [t]here's no weapons in the vehicle. You can check the vehicle."
(Tr. at 43.) According to the officer "[s]he gave us consent." (Tr. at 45.)
{¶ 11} Officer Ward testified appellee "was trying to maintain eye contact with Ms.
Thomas as if he did not want her to give consent." (Tr. at 43-44.) At that point, Officer
Buck asked appellee to step out of the vehicle "and as soon as he stepped out of the vehicle
he was trying to maintain eye contact with Ms. Thomas." (Tr. at 45.) Officer Ward
testified that, based on his experience, "that was very odd, very nervous" behavior. (Tr. at
45.) Officer Ward "immediately told [his] partner, [h]andcuff him right now. Because I
didn't * * * know what he was about to do." (Tr. at 46.) As soon as Officer Buck "popped
his cuff case open [appellee] said, [o]kay. I have a gun in my front waistband." (Tr. at
46.) The officers then handcuffed appellee and removed the weapon from him.
{¶ 12} The officers recovered the weapon from appellee at 11:01 p.m., eight
minutes after Officer Wolf initiated the stop; Officer Wolf was still writing the citation at
the time of the arrest. After he completed writing the ticket, Officer Wolf handed the
ticket to the driver and she drove away. Appellee was placed under arrest for possession
of weapons and taken into custody.
{¶ 13} Thomas testified on behalf of appellee, and stated he was her boyfriend.
Thomas was nervous at the time of the stop because she "just didn't understand why we
were being pulled over." (Tr. at 66.) According to Thomas, "after they pulled us over and
took my information, they just kept saying I looked nervous and could they search my
No. 17AP-551 4
car." (Tr. at 66.) Thomas stated the officer repeatedly asked to search the vehicle.
Thomas testified: "I kept telling him no, but then * * * they went around to the side of my
boyfriend and asked him to get out of the car. And then he just went ahead and searched
the vehicle, but he didn't find anything in the vehicle." (Tr. at 68.) On cross-examination,
Thomas stated she only gave the officers consent to search the vehicle after appellee
exited the vehicle and the officers found the weapon on him.
{¶ 14} During the suppression hearing, counsel for appellee argued that "a traffic
ticket should have been issued" and the driver and appellee "should have been free to
leave at that point," but "[t]here was a continued unlawful detention." (Tr. at 82.)
Counsel further argued the officers "had no reasonable suspicion to ask to search the
vehicle," and they lacked "valid consent to ultimately search it." (Tr. at 82.) Counsel for
appellee also argued it was "highly questionable whether there was probable cause to
place [appellee] in handcuffs and he would have been under arrest at that point." (Tr. at
82.)
{¶ 15} Following the presentation of testimony, the trial court made findings on
the record. The trial court initially determined the officer "could articulate a good faith
reason for pulling the defendant over." (Tr. at 86.) The trial court further found that,
once Officers Ward and Buck were aware "there are no warrants," the driver had "a valid
driver's license," and the officers knew Officer Wolf was writing the citation, "[t]hat's
where it should have ended, but they continued to engage." (Tr. at 87.) The court
indicated it was "accepting the officer's story," but concluded it would grant the motion to
suppress. (Tr. at 89.) By entry filed July 27, 2017, the trial court granted appellee's
motion to suppress.
{¶ 16} The state, having filed an appeal of the trial court's ruling on the motion to
suppress, pursuant to Crim.R. 12(K), sets forth the following assignment of error for this
court's review:
The trial court committed reversible error by granting the
motion to suppress.
{¶ 17} On appeal, the state challenges the trial court's entry granting appellee's
motion to suppress. Specifically, the state argues the trial court erred in granting the
No. 17AP-551 5
motion based on a determination that police officers improperly "engaged" appellee while
performing their duties.
{¶ 18} Under Ohio law, " '[a]ppellate 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.' " (Internal citations omitted.) State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, ¶ 8. Accordingly, "an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence." Further,
" '[a]ccepting 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.{¶ 19} The Fourth Amendment to the United States Constitution affords
individuals protection from unreasonable searches and seizures. State v. Keith, 10th Dist.
No. 08AP-28, 2008-Ohio-6122, ¶ 12, citing State v. Kinney, 83 Ohio St.3d 85, 87 (1998);
Terry v. Ohio, 392 U.S. 1 (1968). A traffic stop by a law enforcement officer "implicates
the Fourth Amendment and must comply with the Fourth Amendment's general
reasonableness requirement." State v. Fasline, 7th Dist. No. 12 MA 221, 2014-Ohio-1470,
¶ 19. Further, " '[t]he scope and duration of a routine traffic stop "must be carefully
tailored to its underlying justification * * * and last no longer than is necessary to
effectuate the purpose of the stop." ' " State v. Phillips, 10th Dist. No. 14AP-79, 2014-
Ohio-5162, ¶ 18, quoting State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, ¶ 35,
quoting Florida v. Royer, 460 U.S. 491, 500 (1983).
{¶ 20} A law enforcement officer has "sufficient cause to conduct a traffic stop if
the officer witnesses a violation of a traffic law." Fasline at ¶ 19. When stopping a vehicle
for a traffic violation, a law enforcement officer "may detain the motorist for a period of
time sufficient to issue the motorist a citation and to perform routine procedures such as a
computer check on the motorist's driver's license, registration and vehicle plates."
Aguirre at ¶ 36, citing State v. Carlson, 102 Ohio App.3d 585, 598 (9th Dist.1995). Police
may also conduct ordinary inquires to determine whether outstanding warrants exist.
State v. Sweeten, 1st Dist. No. C-150583, 2016-Ohio-5828, ¶ 13. Further, " '[i]n
No. 17AP-551 6
determining if an officer completed these tasks within a reasonable length of time, the
court must evaluate the duration of the stop in light of the totality of the circumstances
and consider whether the officer diligently conducted the investigation.' " Aquirre at ¶ 36,
quoting Carlson at 598. Because addressing the traffic infraction "is the purpose of the
stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' " Rodriguez v.
United States, 135 S.Ct. 1609, 1614 (2015), quoting Royer at 500.
{¶ 21} In diligently pursuing the purpose of a traffic stop, police officers "also may
engage in other investigative techniques unrelated to the underlying traffic infraction or
the safety of the officers." United States v. Hill, 852 F.3d 377, 382 (4th Cir.2017), citing
Rodriguez at 1614-15. Such unrelated activity is permissible under the Fourth
Amendment "only as long as that activity does not prolong the roadside detention for the
traffic violation." Id. A police officer "may order the driver to get out of the car without
violating the Fourth Amendment's proscriptions against unreasonable searches and
seizures." State v. Emmons, 1st Dist. No. C-150636, 2016-Ohio-5384, ¶ 14. The officer
"may also ask the driver and passengers about matters unrelated to the traffic stop itself,
so long as those questions do not measurably extend the duration of the stop." Id., citing
Rodriguez at 1615. This is so "because such questions, absent a prolonged detention, do
not constitute a 'discrete Fourth Amendment event.' " United States v. Griffin, 696 F.3d
1354, 1362 (11th Cir.2012), quoting Muehler v. Mena, 544 U.S. 93, 101 (2005).
{¶ 22} In the present case, the trial court initially found Officer Wolf "could
articulate a good faith reason for pulling [Thomas] over for the traffic violation." (Tr. at
86.) Thus, the trial court found the evidence established a valid basis to initiate the traffic
stop, and that finding does not appear to be in dispute on appeal.
{¶ 23} The trial court further found that, at the time Officer Wolf was writing the
ticket, the other officers were aware "there [were] no warrants" and "there's a valid
driver's license." (Tr. at 87.) The trial court determined: "That's where it should have
ended, but they continued to engage." (Tr. at 87.) The trial court concluded it would
grant the motion to suppress because the officer "continued to ask after everything was
secured, continued to ask after he got the answer of no weapons." (Tr. at 89.)
{¶ 24} The state argues the trial court's determination that the Fourth Amendment
prohibited the officers from "engaging" with the driver and passenger while another
No. 17AP-551 7
officer wrote the citation, absent evidence that such inquiries extended the duration of the
stop, was incorrect. Upon review, we agree with the state that the critical issue is not
whether the officers made unrelated inquiries of the driver and passenger but, instead,
whether such inquiries unreasonably prolonged the stop. See Arizona v. Johnson, 555
U.S. 323, 325 (2009), citing Muehler at 100-01 ("An officer's inquiries into matters
unrelated to the justification for the traffic stop do not convert the encounter into
something other than a lawful seizure, so long as those inquiries do not measurably
extend the stop's duration."); Hill at 382 (in diligently pursuing the purpose of a traffic
stop, "an officer may question the occupants of a car on unrelated topics without
impermissibly expanding the scope of a traffic stop").
{¶ 25} A review of the evidence, including the testimony and the cruiser video
recording, indicates Officer Wolf initiated the stop at 10:53 p.m., at which time the officer
exited his cruiser and walked to the driver's side of the stopped vehicle to speak with the
driver. Approximately one minute later (22:54:16 on the cruiser's video recording),
Officers Ward and Buck arrived at the scene and stood near the passenger window. At
10:55 p.m., Officer Ward obtained the driver's license of Thomas, as well as an
identification card from appellee, to run a LEADS check. At 10:56 p.m., as Officer Ward
was performing the LEADS check, Officer Wolf walked over to inform Officer Ward that
he was going to issue a ticket for a traffic violation. At 10:58 p.m., as Officer Wolf began
writing the citation, Officer Ward returned to the vehicle and spoke with Thomas. At
11:01 p.m., the officers recovered the weapon from appellee.
{¶ 26} Thus, the record indicates that approximately eight minutes elapsed from
the time of the initial stop until the officers recovered the weapon. As noted by the state,
Officer Wolf had not completed writing the ticket when the weapon was recovered from
appellee's waistband. Here, accepting that Officer Ward's questions were unrelated to the
investigation, such questioning occurred while Officer Wolf was still writing the citation,
and the record does not support a finding that the inquiries by Officer Ward prolonged
the length of the stop "beyond the time required for the initial purpose of the stop."
Emmons at ¶ 17. See also Phillips at ¶ 21 (traffic stop not unduly prolonged by canine
sniff which occurred before officer completed writing citation and only 15 minutes after
traffic stop began, within normal time for processing and issuing traffic citation for
No. 17AP-551 8
malfunctioning license plate light); United States v. Garcia, 284 Fed.Appx. 791, 794 (11th
Cir.2008) ("Asking questions while still in the process of writing out a citation or awaiting
the response of a computer check * * * does not extend the duration or scope of a valid
initial seizure."); State v. Norvett, 9th Dist. No. 14CA0114-M, 2016-Ohio-3494, ¶ 18
(defendant not unlawfully detained at time dog sniff of vehicle occurred where officer
conducting dog sniff arrived before the officer who stopped defendant had starting writing
warning ticket, and less than ten minutes elapsed from the time of the traffic stop to the
point defendant was read his Miranda1 rights). Nor does the record in this case suggest
that Officer Wolf failed to act diligently during the stop. Here, viewing the evidence under
the totality of the circumstances, and given the amount of time (i.e., eight minutes) that
elapsed between the stop and discovery of the weapon, we agree with the state that the
trial court erred in granting the motion to suppress on the basis that the officers violated
the Fourth Amendment by impermissibly engaging with Thomas and appellee.
{¶ 27} We note the state concedes other issues raised by appellee in the motion to
suppress, and which the trial court did not address and/or reach in granting the motion,
remain to be resolved (i.e., including the issue of consent and/or the validity of placing
appellee in handcuffs at the time). As we are only addressing the issue that formed the
basis of the trial court's decision, and because the trial court did not resolve other issues
raised by appellee's motion to suppress, we conclude this matter must be remanded for
the court to address the remaining issues bearing on appellee's motion.
{¶ 28} Based on the foregoing, the state's single assignment of error is sustained,
the judgment of the Franklin County Court of Common Pleas is reversed, and this matter
is remanded to that court for further proceedings in accordance with law, consistent with
this decision.
Judgment reversed and cause remanded.
KLATT and BRUNNER, JJ., concur.
__________________
1 Miranda v. Arizona, 384 U.S. 436 (1996).