State v. Jones , 2019 Ohio 3704 ( 2019 )

[Cite as State v. Jones, 2019-Ohio-3704.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-18-063
Appellee Trial Court No. 2017CR0195
v.
Darnell Antonio Jones, Jr. DECISION AND JUDGMENT
Appellant Decided: September 13, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
*****
ZMUDA, J.
{¶ 1} This matter is before the court on appeal from a September 5, 2017 order of
the Wood County Court of Common Pleas, denying appellant’s motion to suppress
evidence obtained following a traffic stop. The case proceeded to a jury trial, where
appellant was found guilty of one count contained of money laundering, a felony of the
third degree, and one count of possession of criminal tools, a felony of the fifth degree,
both with forfeiture specifications. Finding no error, we affirm the judgment of the trial
court.
I. Facts and Procedural Background
{¶ 2} Appellant, Darnell Jones Jr., appeals the trial court’s judgment denying his
motion to suppress evidence, asserting that the trial court erred in refusing to suppress the
evidence discovered through an unconstitutional search of his vehicle, and that he was
denied due process and the effective assistance of counsel as guaranteed by the state and
federal constitutions.
{¶ 3} In the early morning hours of March 21, 2017, Lieutenant Scott Wyckhouse
of the Ohio State Highway patrol observed a red, Chevy Tahoe traveling northbound on
I-75 near mile-marker 197 in northern Wood County. Wyckhouse visually estimated the
speed of the vehicle as well above the 65 mph speed limit, estimating a speed of 80 mph.
Wyckhouse testified that the vehicle was initially in the left lane, but after passing him, it
moved to the center lane. After a short interval, the vehicle moved back to the left lane
and Wyckhouse gave pursuit. After a mile or two, Wyckhouse made a traffic stop for the
speeding offense and activated his blue emergency lights. Appellant stopped his vehicle
just over the county line, in Lucas County, Ohio.
{¶ 4} As Wyckhouse approached the vehicle, he was surprised to see a passenger
in the front passenger seat. The passenger, Trevon Lowman, had fully reclined his seat,
behind the “B pillar” of the vehicle. Appellant told Wyckhouse that he and his cousin
Tre were traveling from Tennessee to Michigan, in order to pick up a car for Tre.
2.
Although appellant identified Lowman as his cousin, he did not know his last name.
Both individuals identified themselves as Michigan residents. Appellant provided a
Michigan driver’s license to Wyckhouse, and Lowman produced a Michigan
identification card that was broken in half. Wyckhouse noted several cell phones in plain
sight, as well as numerous air fresheners, candy wrappers, an open energy drink, and
enough clutter to make the car appear “lived in.” Appellant also had a Doberman puppy
between the two center seats.
{¶ 5} Wyckhouse then approached the driver’s side of the vehicle and asked
appellant to exit the vehicle. When appellant exited the driver’s seat, Wyckhouse
performed a pat down for weapons with appellant’s consent. Wyckhouse’s pat down
revealed two wads of cash totaling approximately $1,500 in one pocket and $2,000 in the
other. Wyckhouse did not confiscate the money at this point, and placed appellant in the
front seat of the patrol car.
{¶ 6} At 2:15:26, Wyckhouse called in appellant’s driver’s license information to
dispatch, part of the usual process in a traffic stop, to confirm the identity of the person
stopped. Wyckhouse also requested a “78,” a computerized criminal check, believing
possible criminal activity based on his observations. Additionally, Wyckhouse called in
Lowman’s information to dispatch. Because of the presence of criminal indicators,
Wyckhouse called for a drug detection canine unit at 2:16:53 to sniff for the odor of
illegal narcotics.
3.
{¶ 7} At 2:18:35, Sgt. Nathan Henn arrived on scene to provide assistance, and
Henn conducted a pat down of passenger Lowman and separated him from appellant.
Shortly thereafter, U.S. Border Patrol Agent Mike Lalonde and his canine officer, Misty,
arrived on scene with Trooper Ann Malone.
{¶ 8} On the date of the traffic stop, Misty was certified to detect controlled
substances, including marijuana, cocaine, methamphetamine, heroin, and ecstasy, and
had additional certification to detect concealed humans. Misty was not certified as a
currency detection canine. Misty alerted to appellant’s vehicle, with neither appellant nor
his passenger inside. Lalonde testified that an alert is a change in the canine’s body
posture or respiration. A subsequent search of the vehicle revealed a backpack under the
Doberman containing almost $30,000 in cash, a black Pelican case1 with large magnets
attached, and 6 cell phones.
{¶ 9} The items seized were taken to the patrol post in Bowling Green, and after
obtaining a search warrant for the phones, troopers were able to search one of the phones
belonging to Lowman, and found photos of Lowman with large amounts of money.
Trooper Ryan Stewart and his canine officer, Osso, also conducted a controlled sniff of
the cash seized while at the post. Osso is certified to detect drugs, including marijuana,
cocaine, methamphetamine, heroin, and any of their derivatives.2
1
The case was identified through testimony, at the suppression hearing and at trial, as an
object commonly used in drug trafficking.
2
Appellant does not challenge this second canine sniff by Osso in the present appeal.
4.
{¶ 10} Appellant was indicted on April 20, 2017 in a two count direct indictment
charging him with Count 1: possessing criminal tools with a specification, in violation of
R.C. 2923.24(A)(C), a felony of the fifth degree, and Count 2: money laundering with a
specification, in violation of R.C. 1315.55(A)(C)(C), a felony of the third degree.
Appellant filed a motion to suppress on August 10, 2017, seeking to suppress all evidence
obtained as a result of the traffic stop of appellant’s vehicle by the Ohio State Highway
Patrol on March 21, 2017.
{¶ 11} In his motion to suppress, appellant challenged the basis for the traffic stop,
arguing that Wyckhouse did not have probable cause to initiate a traffic stop because he
did not use his radar gun to specifically detect the speed of appellant’s vehicle. The trial
court noted Wyckhouse’s testimony, that he in fact paced the vehicle at 67 mph in a 60
mph zone, and found this testimony was credible.
{¶ 12} In support of the drug sniff, the state presented Misty’s valid canine
detection certification, and appellant presented no evidence to refute this training and
certification. The trial court denied the motion, finding probable cause for both the initial
stop and subsequent search of the vehicle based on the alert of Misty.
{¶ 13} The matter proceeded to a two-day jury trial commencing January 25,
2017. The jury found appellant guilty of both counts contained in the indictment, and the
trial court sentenced him to four years of community control with conditions. The trial
court, furthermore, ordered $33,091 in cash forfeited. From this conviction, appellant
filed a timely appeal.
5.
{¶ 14} Appellant asserts the following assignments of error:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY DENYING HIS MOTION TO SUPPRESS.
II. APPELLANT WAS DENIED DUE PROCESS AND THE
EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE
STATE AND FEDERAL CONSTITUTIONS.
II. Analysis
{¶ 15} Appellant’s assignments of error each challenge the reliability of the canine
officer’s alert, considering its dual training and certification. In his first assignment of
error, appellant argues the trial court committed plain error in not inquiring into the issue
of dual certification as a factor in determining reliability. Based on the dual certification,
appellant argues that the trial court should have granted the motion to suppress.
{¶ 16} Our review of a trial court’s denial of a motion to suppress presents mixed
questions 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., citing State v. Mills, 62 Ohio St.3d 357, 366,
582 N.E.2d 972 (1992). An appellate court defers to a trial court’s factual findings made
with respect to its ruling on a motion to suppress where the findings are supported by
competent, credible evidence. Id.; State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d
1030 (1996). “[T]he appellate court must then independently determine, without
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deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th
Dist.1997).
{¶ 17} “The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures.” (Citation omitted.) State v. Brown, 183 Ohio
App.3d 337, 916 N.E.2d 1138, 2009-Ohio-3804, ¶ 9 (6th Dist.). Search of a motor
vehicle following an investigative stop, however, is an exception to the Fourth
Amendment warrant requirement, where the search is justified by “articulable suspicion
of some other criminal activity[.]” State v. Bordieri, 6th Dist. Lucas No. L-04-1321,
2005-Ohio-4727, ¶ 20; see also U.S. v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982).
{¶ 18} The use of a drug dog to sniff the exterior of a vehicle, lawfully detained, is
not a search within the meaning of the Fourth Amendment. Bordieri at ¶ 22. Thus, law
enforcement officials do not need reasonable suspicion of drug related activity in order to
subject a lawfully detained vehicle to a drug dog sniff. Id. “[W]hen a [drug] dog alerts to
the presence of drugs, it gives law enforcement probable cause to search the entire
vehicle.” State v. Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶
22 (6th Dist.).
{¶ 19} Appellant challenges the trial court’s denial of his motion to suppress as
plain error. Appellant argues that, because Misty had dual certification, trained to alert
and indicate the presence of concealed humans as well as illicit drugs, Misty most likely
alerted to the residual human scent of appellant and his passenger, rather than any non-
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existent drugs. Therefore, appellant argues, the trial court could not have relied upon
Misty’s alert as reliable, and the subsequent search of the vehicle was without probable
cause. Because trial counsel did not object to the dog sniff in seeking suppression,
appellant argues that the trial court committed plain error in not inquiring further into
Misty’s reliability based on the dual certification, before finding Misty’s alert reliable.
Appellant fails to support his argument with any legal authority, however, and the
evidence in the record supported the trial court’s determination of reliability and probable
cause.
{¶ 20} Appellant raised no challenge to the canine sniff at the suppression hearing.
Because trial counsel did not object to Misty’s certification, we review the issue of
Misty’s reliability for plain error. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
873 N.E.2d 306, ¶ 15 (typically plain error review occurs “if a party forfeits an objection
in the trial court.”); State v. Riggins, 2017-Ohio-80, 80 N.E.3d 1156, ¶ 6 (9th Dist.) (plain
error standard applies where defendant “did not object”).
{¶ 21} “Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). A finding of plain
error is three-fold, requiring (1) an error or deviation from law, (2) that the error is plain,
or an obvious defect in the proceedings, and (3) that the error affected “substantial
rights,” altering the outcome of the trial. Payne at ¶ 16, citing State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002). The burden is on the party asserting plain error to
demonstrate such error. Id. at ¶ 17, citing State v. Jester, 32 Ohio St.3d 147, 150, 512
N.E.2d 962 (1987).
8.
{¶ 22} In order for this court to overturn the lower court’s decision regarding its
denial of appellant’s motion to suppress, we must find the trial court committed plain
error based on a deviation from the law that is plain or obvious, and that altered the
outcome of the trial. Here, appellant fails to demonstrate any deviation by the trial court
from the law governing reliability of a drug sniff.
{¶ 23} In Florida v. Harris, 568 U.S. 237, 245, 133 S.Ct. 1050, 185 L.Ed.2d 61(2013), the United States Supreme Court held that “evidence of a dog’s satisfactory
performance in a certification or training program can itself provide sufficient reason to
trust his alert[,]” based on the following reasoning:
If a dog on patrol fails to alert to a car containing drugs, the mistake
usually will go undetected because the officer will not initiate a search.
Field data thus may not capture a dog’s false negatives. Conversely (and
more relevant here), if the dog alerts to a car in which the officer finds no
narcotics, the dog may not have made a mistake at all. The dog may have
detected substances that were too well hidden or present in quantities too
small for the officer to locate. Or the dog may have smelled the residual
odor of drugs previously in the vehicle or on the driver’s person. Field data
thus may markedly overstate a dog’s real false positives. By contrast, those
inaccuracies--in either direction--do not taint records of a dog’s
performance in standard training and certification settings. There, the
designers of an assessment know where drugs are hidden and where they
are not--and so where a dog should alert and where he should not. The
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better measure of a dog’s reliability thus comes away from the field, in
controlled testing environments. For that reason, evidence of a dog’s
satisfactory performance in a certification or training program can itself
provide sufficient reason to trust his alert.
Harris at 245–46.
{¶ 24} Prior to the ruling in Harris, we reached a similar conclusion in State v.
Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 55 (6th Dist.),
where we stated “proof of the fact that a drug dog is properly trained and certified is the
only evidence material to a determination that a particular dog is reliable. Proof that a
drug dog is properly trained and certified may be established by means of testimony or
through documentary proof.” (Citations omitted.) In this case, the trial court had both
testimony and the certification documents in evidence, demonstrating Misty’s training
and certification for both concealed humans and drugs.
{¶ 25} Appellant concedes that Misty was “properly certified and reliable for the
purposes stated in her certification.” Misty’s certification record, moreover, was properly
introduced as evidence at the suppression hearing. The record, therefore, contradicts
appellant’s claim of plain error, as “the fact that a drug dog is properly trained and
certified is the only evidence material to a determination that a particular dog is reliable.”
Nguyen at ¶ 55 (citations omitted.).
{¶ 26} Despite proper certification, however, appellant argues that the dual
certification of Misty required the trial court to conduct additional inquiry into Misty’s
ability to differentiate between target odors, and specifically, Misty’s “unsuitability as a
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drug detection dog in the context of traffic stops[.]” In support, appellant relies on
United States v. Summers, 153 F.Supp.3d 1261 (S.D.Cal.2015). In relying on Summers,
appellant mischaracterizes that decision as disqualifying a dual-purpose canine for use in
drug interdiction, but dual certification was not a determinative issue in that case.
{¶ 27} In Summers, the court focused on whether the dog’s training was sufficient,
and whether the dog had actually alerted to the presence of an illegal odor. Id. at 1268.
At hearing, the defendant presented an expert witness who refuted the reliability of the
canine officer’s certification. Id. “Defendant’s expert testified that the records did not
include necessary deployment records, and that the records did not adequately indicate
the source and quantity of narcotics used.” Id. at 1265. The expert also testified that,
what officers construed as an alert was nothing more than interest, with no alert behavior
seen in the video of the stop. Id.
{¶ 28} As to the additional training in detecting concealed humans, the expert was
critical of using the canine officer while occupants remained inside their vehicle. Id. The
training records, moreover, did not demonstrate any training or performance in that
specific situation. Id. at 1261. Contrary to appellant’s argument, dual certification did not
provide the basis to suppress the evidence obtained from a search of the vehicle. Instead,
the court found the officers lacked probable cause to search the trunk of the vehicle
because of deficiencies in the certification records, and because of the lack of any alerting
behavior exhibited by the dog. Summers at 1269.
{¶ 29} In this case, the trial court considered evidence of Misty’s training and
certification, and viewed the video of the stop. Furthermore, unlike the circumstances in
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Summers, troopers removed appellant and his passenger from the vehicle prior to the
sniff, and Misty alerted to the vehicle containing a large amount of currency and
materials used in the drug trade, consistent with her training in detecting drugs.3 The law
clearly provides that Misty’s certification was sufficient to demonstrate her reliability in
alerting to the presence of drugs.4 Appellant, furthermore, points to no deficiencies in
Misty’s certification, relying instead on a broad theory that dual certification nullifies all
certification. We find no basis to impose a duty on the trial court to refute this liability in
the absence of any evidence to the contrary. Accordingly, appellant’s first assignment of
error, arguing plain error, is found not well-taken.
{¶ 30} In his second assignment of error, appellant argues that his trial counsel’s
failure to challenge the certification denied him his right to effective assistance of
counsel. The right to effective assistance of counsel is guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution, as well as the Ohio
Constitution, Article I, Section 10.
3
We have previously noted testimony indicating canine officers can detect drug residue
on currency associated with those in the drug trade. See e.g. State v. Washington, 6th
Dist. Ottawa No. 2014-Ohio-1008 (describing the training and performance of dogs in
trained in detecting drug residue on currency, with a dog alerting to drug residue on
currency “just about every time.”).
4
Our consideration of a drug dog’s alert to currency as an indication the presence of a
drug or drug residue is limited to the challenge to probable cause. As appellant has not
challenged the use of a separate canine officer, Osso, to demonstrate the presence of
narcotics on the currency for use as evidence, we need not address this separate issue.
12.
{¶ 31} To prevail on a claim of ineffective assistance of counsel, appellant must
demonstrate that his trial counsel’s conduct “fell below an objective standard of
reasonableness,” based on “prevailing professional norms.” State v. Belton, 149 Ohio
St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 132, quoting Strickland v. Washington, 466
U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant must also demonstrate
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Belton at ¶ 132, quoting Strickland at 694. In
considering these factors, trial counsel is entitled to a strong presumption that their
conduct “falls within the wide range of reasonable professional assistance.” Id., quoting
Strickland at 689.
{¶ 32} In arguing his trial counsel was constitutionally ineffective,
appellant relies on the premise that a canine officer certified to detect “concealed
humans” has no ability to ignore either visible humans or residual human scent in
visible areas of a vehicle. Therefore, appellant contends, any vehicle that once
contained a human would result in an alert by a dual- certified canine officer, and
trial counsel was ineffective by failing to assert this challenge. Once again,
however, appellant cites to no authority that might lend support to his premise.
Appellee, in response, argues that even if trial counsel had challenged Misty’s dual
training and certification, such challenge would have been met with evidence,
including expert testimony, demonstrating no merit in appellant’s theory.
{¶ 33} Courts have found dual-certified canine officers to be reliable, with
no concern for human scent confusion. In United States v. Lopez, S.D. Cal. No.
13.
16CR1585-JLS, 2017 WL 2547302 (June 13, 2017), the Southern District of
California considered whether visible human scent might affect the reliability of a
drug sniff, where the dog is trained to detect both concealed humans and drugs.
Based on expert testimony provided by a member of the Customs and Border
Control (CBP) canine program, outlining the training and performance testing of
the dogs, the court found the canine officer had the ability to differentiate between
concealed humans and visible humans in the search area. Lopez at *4.
{¶ 34} As argued by appellee, similar expert testimony could have been
proffered in the present case to refute appellant’s theory of unreliability based on
dual-certification. Appellant acknowledged that Misty received dual training as
part of the CBP program described in Lopez. Appellant also failed to cite any
authority in support of his theory that human scent confusion could taint a drug
sniff, rendering the drug sniff unreliable for purposes of probable cause. At best,
appellant references testimony of an expert, skeptical of a dog’s ability to
differentiate scents, upon which the trial court did not base its finding that police
proceeded without probable cause. See Summers, 153 F.Supp.3d at 1269 (reversal
based on the lack of any alert behavior by the dog, not based on unreliability of the
dog).
{¶ 35} In asserting ineffective assistance of counsel, appellant must demonstrate
that trial counsel’s performance was deficient, and that, but for the deficient performance,
the result would have been different. However, the legal challenge, that appellant argues
his counsel failed to assert at the suppression hearing, appears to consist of a new theory
14.
not previously pursued under Ohio law. Appellant, furthermore, presents no authority to
demonstrate his theory would have proven successful in challenging the reliability of the
drug sniff in this case. Most significantly, appellant does not clearly argue Misty’s alert
was a “false positive,” opting instead to introduce confusion without any challenge to the
ultimate finding that drug residue tainted the currency seized by law enforcement.
Considering the record and applicable law, we find it is not ineffective assistance to
decline to raise meritless argument or present untested legal theories. State v. McNeill,
83 Ohio St.3d 438, 449, 700 N.E.2d 596 (1998). Accordingly, we find appellant’s second
assignment of error not well-taken.
III. Conclusion
{¶ 36} Upon due consideration, we find appellant’s assignments of error not well-
taken, and affirm the judgment of the Wood County Court of Common Pleas, denying
appellant’s motion to suppress. Appellant is ordered to pay the costs of this appeal under
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
15.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
16.