State v. Troutman , 2012 Ohio 407 ( 2012 )

[Cite as State v. Troutman, 2012-Ohio-407.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-11-17
v.
TORRECE D. TROUTMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 10-CR-495
Judgment Reversed and Cause Remanded
Date of Decision: February 6, 2012
APPEARANCES:
J. C. Ratliff, Jon L. Jensen, Jeff Ratliff and Ashley Lawson
for Appellant
Brent W. Yager for Appellee
Case No. 9-11-17
SHAW, J.
{¶1} Defendant-appellant, Torrece Troutman (“Troutman”), appeals the
April 14, 2011 judgment of the Common Pleas Court of Marion County, Ohio,
sentencing him to an aggregate sentence of seven months imprisonment for
possession of cocaine in violation of R.C. 2925.11(A), (C)(4), a fifth degree
felony, and possession of drugs in violation of R.C. 2925.11(A), (C)(2), a second
degree misdemeanor.
{¶2} The facts relevant to this appeal are as follows. Shortly before 1:00
a.m., on October 2, 2010, Trooper Tawana Long of the Ohio State Highway Patrol
witnessed Troutman drive his vehicle left of the center line on Delaware Avenue
in Marion, Ohio. Trooper Long then activated her cruiser camera and stopped
Troutman. Troutman stopped his vehicle in the parking lot of a Speedway gas
station, and Trooper Long approached him. As Trooper Long approached the
vehicle, Troutman handed his driver’s license to her. She informed Troutman of
the reason that he was stopped and asked for his registration and proof of
insurance. Troutman complied with her requests.
{¶3} While speaking with Troutman, the trooper asked if he had anything
illegal inside his vehicle, and he answered that he did not. He also questioned her
motive for asking this question, stating that “not every black man carries drugs and
guns.” Trooper Long told him that these were standard questions that she asks
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everyone, including “white people,” and told him to look at her skin because she
was also black.
{¶4} During this time, Trooper Long noticed that Troutman’s eyes
appeared to be bloodshot so she had him step out of the vehicle. Once Troutman
was outside of his vehicle, Trooper Long patted him down for weapons and
noticed that his pocket had a large bulge. When she asked what the bulge was,
Troutman responded that it was money. Trooper Long then had him remove the
money from his pocket. She asked him how much money he had, given the size of
the bulge, and Troutman answered that he had $3,000.00. Trooper Long also
asked him where he got this money. When he told her that he earned it from
working, she asked him where he worked, and Troutman answered that he
renovates houses.
{¶5} Trooper Long told Troutman to come with her so that she could
administer a test of his eyes to determine whether he was able to drive. She led
Troutman to the side of her patrol car and conducted a horizontal gaze nystagmus
test to ascertain whether he was under the influence of alcohol and an additional
nystagmus test to determine whether he was under the influence of marijuana.
These tests revealed no indicators of alcohol or drug impairment.
{¶6} Immediately after administering these tests, Trooper Long placed
Troutman in the rear seat of her patrol car and began checking his driver’s license
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information through a dispatcher. She also requested that a canine unit be sent to
her location. Trooper Long asked Troutman various questions about whether the
information on his license was accurate, e.g. his address, and he answered her.
The dispatcher advised Trooper Long that Troutman’s license was valid but that
he had a prior drug conviction. Trooper Long again questioned Troutman about
whether he had anything illegal in his vehicle. At this point, Troutman told her
that he did not have anything illegal and that she could search his vehicle, and she
advised him that she had a canine unit en route to search his vehicle.
{¶7} Shortly after this exchange, a back-up officer from the local police
department arrived. This officer began asking Trooper Long about Troutman and
advised her that he knew Troutman and that Troutman was a drug dealer. Over
the next several minutes, Trooper Long repeatedly opened the door to the cruiser
and questioned Troutman about whether he had anything illegal in his vehicle and
informed him that she was only asking because she had a canine unit on the way.
Troutman denied having anything illegal and again told the trooper that not all
black men carry guns and drugs. He also told her a few more times that she could
search his vehicle, including running the dog around the vehicle, and she stated
that she was waiting for the canine unit.
{¶8} While waiting for the canine unit to arrive, Trooper Long again asked
Troutman if he had anything illegal in his vehicle and also asked if he had
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anything in the lining of his jacket. He told her that he did not and asked her
whether she was going to write him a ticket. She again told him that she had
someone coming with a canine. At this point, Troutman asked if she would
proceed with writing him a ticket, and Trooper Long repeated that she was waiting
for the canine unit. Troutman then informed her that he did not understand why he
was being held in the back of the patrol car, revoked his consent for her to search
his vehicle, and asked if he could return to his vehicle, if he could get his
cigarettes from the vehicle, and if he could talk to his girlfriend on the phone
instead of sitting in the patrol car. Trooper Long did not permit Troutman to leave
the rear seat of her patrol car, and she shut the door of the patrol car.
{¶9} Soon thereafter, Trooper Long received a message from dispatch
regarding the canine unit’s location, and she opened the patrol car door to tell
Troutman that it would be just a few minutes. Once again, Troutman asked why
he was being detained because he did not understand Trooper Long’s actions once
she checked his license, which was valid, and learned that there were no warrants
for his arrest. He also advised her that he knew a little bit about the law and
questioned the legality of his detention. She told him that this was standard
procedure, that she did not need his permission for a dog sniff, and to “chill out”
for a few minutes and she would release him once the canine sniffed his vehicle.
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{¶10} At some point, she also asked him why he was nervous, “acting so
paranoid,” and had his hands balled. He told her that he was not nervous or
paranoid and that he simply had his hands positioned that way for no particular
reason. He then reminded her that he told her she could search his vehicle but that
he was refusing to give her permission to search it now because of how she was
acting towards him.
{¶11} A few minutes after this last exchange, the canine unit arrived. Eight
minutes after Troutman revoked his consent to search his vehicle, the police dog
began to sniff the exterior of Troutman’s vehicle. The dog alerted to the presence
of drugs in the vehicle, and a search was conducted, revealing what appeared to be
cocaine. After the vehicle was searched, Troutman was Mirandized, informed he
was under arrest, was removed from the patrol car, and searched. During the
search of Troutman’s person, Trooper Long looked in the back seat of the patrol
car where Troutman had been sitting and found a number of pills in the back seat.
Troutman denied they were his, and Trooper Long informed him that nothing was
in the back seat of her patrol car prior to Troutman being placed there.
{¶12} On October 14, 2010, Troutman was indicted for one count of
possession of cocaine, a felony of the fifth degree, and one count of possession of
drugs, a misdemeanor of the third degree. In addition, the indictment contained a
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forfeiture specification as to Count One for the $3,209.00 that was confiscated
from Troutman that night. Troutman entered pleas of not guilty on both counts.
{¶13} Counsel for Troutman filed a motion to suppress, which was heard
on December 13, 2010. The trial court took the matter under advisement and
subsequently overruled the motion on January 14, 2011. A supplemental
indictment was filed on March 16, 2011, which added one count of possession of
drugs, a misdemeanor of the second degree, and one count of tampering with
evidence, a felony of the third degree. Troutman also pled not guilty to these
additional counts.
{¶14} On March 29, 2011, Troutman withdrew his previously tendered
pleas of not guilty on the fifth degree felony count of possession of cocaine and
the second degree misdemeanor count of possession of drugs and entered pleas of
no contest to both of these counts. In exchange, the State dismissed the remaining
two counts and the forfeiture specification. Troutman was sentenced to an
aggregate term of seven months in prison on April 14, 2011, but his bond was
continued and his sentence stayed pending an appeal. This appeal followed, and
Troutman now asserts one assignment of error for our review.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION TO SUPPRESS THE EVIDENCE (1) WHEN THE
STOP OF APPELLANT WAS CLEARLY A PRETEXTUAL
STOP, (2) WHEN THE STOP EXCEEDED SCOPE AND
DURATION, AND (3) WHEN APPELLANT’S ARREST WAS
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NOT SUPPORTED BY REASONABLE SUSPICION OR
PROBABLE CAUSE JUSTIFYING SUPPRESSION OF THE
EVIDENCE AS FRUIT OF THE POISONOUS TREE.
{¶15} Initially, we note that appellate review of a decision on a motion to
suppress evidence presents a mixed question of law and fact. State v. Bressler, 3d
Dist. No. 15-05-13, 2006-Ohio-611. At a suppression hearing, the trial court
assumes the role of trier of fact and is in the best position to resolve factual
questions and evaluate the credibility of witnesses. State v. Carter, 72 Ohio St.3d
545, 552, 651 N.E.2d 965 (1995). When reviewing a trial court’s decision on a
motion to suppress, an appellate court must uphold the trial court’s findings of fact
if they are supported by competent, credible evidence. State v. Dunlap, 73 Ohio
St.3d 308, 314, 652 N.E.2d 988 (1995). We must defer to “the trial court’s
findings of fact and rely on its ability to evaluate the credibility of the witnesses,”
and then independently review whether the trial court applied the correct legal
standard. State v. Anderson, 100 Ohio App.3d 688, 691, 654 N.E.2d 1034 (4th
Dist. 1995).
{¶16} The United States Supreme Court has previously held that “[t]he
Fourth Amendment [of the United States Constitution] provides that ‘the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated * * *.’ This inestimable
right of personal security belongs as much to the citizen on the streets of our cities
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as to the homeowner closeted in his study to dispose of his secret affairs.”
(Emphasis added.) Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). Similar protection exists pursuant to Section 14, Article I of the Ohio
Constitution. See State v. Wilson, 3d Dist. No. 5-07-47, 2008-Ohio-2742, ¶ 16.
When evidence is obtained as a result of an unlawful search and seizure, it must be
suppressed. Id., citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d
1081(1961).
{¶17} Troutman first asserts that the trial court erred by failing to suppress
the evidence obtained during the search of his vehicle because Trooper Long had
neither reasonable articulable suspicion of criminal activity or probable cause to
believe a traffic violation occurred. More specifically, he maintains that the trial
court erred in finding Trooper Long’s testimony that she witnessed Troutman
cross over the center line prior to activating her cruiser camera credible.
{¶18} The Ohio Supreme Court has held that “[w]here a police officer stops
a vehicle based on probable cause that a traffic violation has occurred or was
occurring, the stop is not unreasonable under the Fourth Amendment to the United
States Constitution even if the officer had some ulterior motive for making the
stop * * *.” City of Dayton v. Erickson, 76 Ohio St.3d 3, syllabus, 665 N.E.2d
1091 (1996), following United States v. Ferguson, 8 F.3d 385 (6th Cir. 1993).
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{¶19} Trooper Long testified that she witnessed Troutman travel left of the
center line, a violation R.C. 4511.33, that she began following him, and that she
activated her cruiser camera after witnessing this violation. As noted, a stop is not
unreasonable when it is based upon probable cause that a traffic violation has
occurred. Although the recording does not show this violation, this does not
negate Trooper Long’s testimony that she witnessed a traffic violation prior to
activating her cruiser camera. The trial court was well within its discretion to
believe her testimony that a traffic violation occurred before the recording was
begun and to find that Trooper Long had probable cause to stop Troutman based
on this violation, regardless of whether Trooper Long also had some ulterior
motive for making the stop. Thus, we find Troutman’s assertion to the contrary to
be without merit.
{¶20} Troutman next contends that the length of the stop exceeded the
scope and duration necessary to investigate and to cite him for the traffic violation.
In response, the State maintains that the length of the stop did not exceed the
amount of time Trooper Long routinely required to conduct a traffic stop and to
issue a citation. The State further asserts that even if the duration of the stop
exceeded the duration and scope of the initial reason for the stop, i.e. the traffic
violation, Trooper Long had a reasonable articulable suspicion that Troutman was
engaged in criminal activity that would justify his continued detention.
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{¶21} The United States Supreme Court has held that “a seizure that is
lawful at its inception can violate the Fourth Amendment if its manner of
execution unreasonably infringes interests protected by the Constitution.” Illinois
v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), citing
United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85(1984). For instance, “a seizure that is justified solely by the interest in issuing a *
* * ticket to the driver can become unlawful if it is prolonged beyond the time
reasonably required to complete that mission.” Caballes, supra.{¶22} More specifically, when conducting a stop of a motor vehicle for a
traffic violation, an “officer may detain an automobile for a time sufficient to
investigate the reasonable, articulable suspicion for which the vehicle was initially
stopped.” State v. Smith, 117 Ohio App.3d 278, 285, 690 N.E.2d 567 (1st Dist.
1996). However, the duration of the stop “is limited to ‘effectuate the purpose for
which the initial stop was made.’” Id., quoting State v. Venham, 96 Ohio App.3d
649, 655, 645 N.E.2d 831 (4th Dist. 1994), citing United States v. Brignoni-Ponce,
422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Chatton, 11 Ohio
St.3d 59, 63, 463 N.E.2d 1237 (1994). “Thus, when detaining a motorist for a
traffic violation, an officer may delay the motorist for a time period sufficient to
issue a ticket or a warning.” Smith, 117 Ohio App.3d at 285, 690 N.E.2d 567,
citing State v. Keathley, 55 Ohio App.3d 130, 562 N.E.2d 932 (2d Dist. 1998).
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This time period also includes the period of time sufficient to run a computer
check on the driver’s license, registration, and vehicle plates. See Delaware v.
Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “‘In
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.’” State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865
N.E.2d 1282, ¶ 12, quoting State v. Carlso, 102 Ohio App.3d 585, 598-99, 657
N.E.2d 591 (9th Dist. 1995).
{¶23} In addition, a lawfully detained vehicle may be subjected to a canine
sniff of the vehicle’s exterior even without the presence of a reasonable suspicion
of drug-related activity. Caballes, supra, at 409, 125 S.Ct. 834; State v.
Chambers, 3d Dist. No. 5-10-29, 2011-Ohio-1305. While a dog sniff of a vehicle
is constitutionally permissible when conducted during a lawful seizure of a person,
if a dog sniff of a vehicle occurs during an unreasonably prolonged traffic stop
where the driver is unlawfully detained, such results will be suppressed. See
Caballes, supra, at 409, 125 S.Ct. 834.
{¶24} The detention of a stopped driver may continue beyond the time
frame necessary to conduct the stop for purposes of the traffic violation when
“additional facts are encountered that give rise to a reasonable, articulable
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suspicion [of criminal activity] beyond that which prompted the initial stop [.]”
Smith, supra, at 285, 690 N.E.2d 567, citing State v. Myers, 63 Ohio App.3d 765,
771, 580 N.E.2d 61 (1990); Venham , supra, at 655, 645 N.E.2d 831. Reasonable
articulable suspicion exists when there are “‘specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant the
intrusion.’” State v. Stephenson, 3d Dist. No. 14-04-08, 2004-Ohio-5102, ¶ 16,
quoting State v. Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988).
{¶25} In forming reasonable articulable suspicion, law enforcement officers
may “draw on their own experience and specialized training to make inferences
from and deductions about the cumulative information available to them that
‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266,
273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449
U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus, determining
whether the officer’s actions were justified depends upon the totality of the
circumstances, which must “be viewed through the eyes of the reasonable and
prudent police officer on the scene who must react to the events as they unfold.”
State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991) (citations
omitted).
{¶26} The touchstone of any Fourth Amendment analysis
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“is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal
security,’” Mimms, 434 U.S., at 108–109, 98 S.Ct. at 332 (quoting
Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878–1879, 20
L.Ed.2d 889 (1968)), and that reasonableness “depends ‘on a
balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law
officers,’” Mimms, 434 U.S. at 109, 98 S.Ct. at 332 (quoting
United States v. Brignoni -Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574,
2579, 45 L.Ed.2d 607 (1975)).
Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).
When trying to prove an exception to the Fourth Amendment’s warrant
requirement exists, the State bears the burden of proof in order to survive a motion
to suppress. State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1252 (1978).
{¶27} Here, as we previously discussed, Troutman was lawfully detained
for a traffic violation. Upon first approaching Troutman’s vehicle, Trooper Long
began speaking to him about the reason for the stop and asking for the documents
necessary for the investigation of the stop. During this initial contact, Trooper
Long noticed that Troutman’s eyes appeared to be bloodshot. Concerned that he
was under the influence of drugs or alcohol, Trooper Long had him exit the
vehicle so that she could administer the HGN test.
{¶28} Prior to administering the test, she patted him down for weapons and
noticed that his front pockets had large bulges. When she asked what was in his
pockets, he replied that it was money, totaling approximately $3,000.00.
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Troutman also had two cell phones. After having him remove the money from his
pockets and asking him where he had gotten such a large amount of cash, she then
proceeded to have him step to her patrol car to administer the HGN. After
administering the HGN, as well as a separate nystagmus test, Trooper Long
concluded that Troutman did not appear to be under the influence of any alcohol
and/or drugs.
{¶29} She then placed Troutman in the back seat of the patrol car and
proceeded to check his license and vehicle information. During this time, she also
asked him questions regarding whether the information on his license was current
and requested that a canine unit be sent to her location. This request for a canine
unit occurred approximately seven minutes into the stop.
{¶30} Throughout this time, Trooper Long asked Troutman numerous
times whether there was anything illegal in the car, if he had anything illegal on
his person, and whether he was “100% sure” about his answers. When asked by
Troutman why she repeatedly asked him these questions, she informed him that
she had requested a canine unit be sent to their location. At this point, Troutman
told her that she could search his vehicle.
{¶31} Within a few seconds of Troutman giving Trooper Long consent to
search the vehicle, a back-up officer arrived on scene. Trooper Long, who was
now out of her patrol car and had received the information she sought from
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dispatch regarding the validity of Troutman’s license and registration, began
speaking with the back-up officer about Troutman. This officer informed Trooper
Long that he recognized Troutman and that Troutman was a drug dealer.1
{¶32} For the next couple of minutes, Trooper Long repeatedly opened the
patrol car door and questioned Troutman about whether he was being honest with
her regarding whether he had anything illegal in his vehicle. Troutman again told
her that he had nothing illegal in the vehicle, repeated that not every black person
uses drugs, and told her, “Go ahead. Search my car.” She once again informed
him that she had a canine on the way, and Troutman replied, “You can run him
around. You can search it. * * * There’s nothing in there.” This last exchange
occurred approximately eleven and a half minutes into the stop.
{¶33} Twelve minutes and forty-seven seconds into the stop, after Trooper
Long repeatedly opened the patrol car door and questioned Troutman about
whether he had anything illegal in his vehicle, after Troutman had given her
consent to search the vehicle at least three times, and after Trooper Long had
received all the information she sought regarding Troutman’s license, vehicle
registration, and insurance, Troutman informed Trooper Long that she no longer
had his consent to search the vehicle. He then questioned her about why she was
keeping him in the back seat of the patrol car because she had checked his license
1
This officer did not testify at the suppression hearing, and there was no evidence presented to explain how
the officer knew this about Troutman.
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and vehicle information and discovered that he was valid and had no warrants.
Trooper Long then told him to “chill out for a minute,” and when he told her that
he did not want to be in the patrol car and asked if he could return to his vehicle,
she again told him to “chill out.”
{¶34} Nearly two minutes after Trooper Long told Troutman to “chill out,”
she again opened the car door and told him that the canine would be there in a
minute. Troutman asked her about having to stay in the patrol car, questioned his
continued detention, and asked if he could retrieve his cigarettes from the vehicle
but was told again to “chill out.” He again questioned why he was being detained
given the fact that he was not under the influence of alcohol or drugs and had a
valid license. He also told her that she did not have the right to search his car and
that he had given her permission to search his vehicle but she did not search his
vehicle and, instead, kept asking him questions. Trooper Long then closed the
door to the patrol car.
{¶35} Approximately three and a half minutes later, the canine arrived.
The canine officer asked Trooper Long for some information about the situation
before running the dog around the car. Twenty minutes and forty seconds after
Troutman was stopped by Trooper Long and nearly eight minutes after Troutman
revoked his consent to search his vehicle and was still in the locked patrol car, the
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canine began sniffing the exterior of Troutman’s vehicle and alerted to the odor of
drugs.
{¶36} Notably, throughout the time that Troutman was in the back of the
patrol car, including after Trooper Long had received the information regarding
Troutman’s license, registration, insurance, and lack of warrants and after
Troutman had repeatedly given Trooper Long consent to search his vehicle, she
never began to actually write the traffic ticket or to personally search his vehicle or
have the other officer search it. She simply waited around for the canine to arrive
and repeatedly questioned Troutman about whether he had anything illegal in his
vehicle or on his person. Under the totality of these circumstances, we cannot
conclude that Trooper Long diligently conducted her investigation into the reason
for the initial stop of the vehicle, i.e. the marked lanes violation.
{¶37} Nevertheless, the State maintains that the continued detention was
proper because Trooper Long encountered additional facts that gave rise to a
reasonable articulable suspicion of criminal activity beyond that which prompted
the initial stop. These facts are the time of night (12:47 a.m.) and that Troutman
had two cell phones, a large amount of money, was turning towards his vehicle
when Trooper Long was attempting to have him step over to her patrol car to
administer the HGN test, was argumentative, and had a prior drug conviction
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{¶38} In assessing whether a detention is too long in duration to be justified
as an investigative stop, the United States Supreme Court has held that a court
should
examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the
defendant. * * * A court making this assessment should take
care to consider whether the police are acting in a swiftly
developing situation, and in such cases the court should not
indulge in unrealistic second-guessing. * * * A creative judge
engaged in post hoc evaluation of police conduct can almost
always imagine some alternative means by which the objectives
of the police might have been accomplished. But “[t]he fact that
the protection of the public might, in the abstract, have been
accomplished by ‘less intrusive’ means does not, itself, render
the search unreasonable.” Cady v. Dombrowski, 413 U.S. 433,
447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973). The question is
not simply whether some other alternative was available, but
whether the police acted unreasonably in failing to recognize or
to pursue it.
United States v. Sharpe, 470 U.S. 675, 686-687, 105 S.Ct. 1568, 84 L.Ed.2d 605(1985) (internal citations omitted).
{¶39} Here, the trooper testified that in her eight years of experience, that
Troutman’s argumentativeness and turning towards his vehicle along with the
large amount of money and two cell phones, at such a late hour given his prior
drug conviction were indicative of criminal activity. The trial court found that
based upon the totality of these circumstances, Trooper Long had a reasonable
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articulable suspicion to continue this traffic stop beyond the normal amount of
time it took to for the traffic citation to be investigated and issue.
{¶40} While Trooper Long may very well have had a reasonable
articularble suspicion of criminal activity that would justify the continuation of the
traffic stop, the more important question is whether Trooper Long diligently
pursued a means of investigation that was likely to confirm or dispel her
suspicions quickly and whether she acted unreasonably in failing to recognize or
pursue an alternative means. Id.; see also, Batchili, supra, at ¶ 12.
{¶41} Unquestionably, Trooper Long was given permission by Troutman to
search his vehicle. He was locked in the back of her patrol car, yet she chose, for
reasons not articulated in the record, to not search it and wait for the canine. Even
after a back-up officer arrived and Troutman gave her permission to search his
vehicle once again, Trooper Long did not search his vehicle or have the other
officer do so. Further, during the four minutes that she had Troutman’s
permission to search, Trooper Long chose not to search the vehicle and to keep
Troutman locked in the patrol car and then repeatedly questioned him about what
was in his vehicle.
{¶42} Not only did Trooper Long fail to diligently pursue a means of
investigation that was likely to confirm or dispel her suspicions quickly, i.e.
searching the vehicle once Troutman consented, she acted unreasonably in failing
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to recognize or pursue this avenue. Indeed, the recording of this stop reveals that
this was not a swiftly developing situation that required on-the-spot decisions. To
the contrary, Trooper Long discussed the situation with the back-up officer,
chatted with that officer about other matters, and opened the door to the patrol car
to ask the same questions of Troutman and receive the same answers time and
time again, which clearly elevated Troutman’s argumentative attitude towards her
each time she repeated her questions.
{¶43} As previously noted, the touchstone of the Fourth Amendment
analysis in determining the reasonableness of a governmental invasion in a
citizen’s personal security is based on a balance between the public interest and
the individual’s right to personal security free from arbitrary interference by law
officers. To that end, we must find that Trooper Long acted unreasonably, both in
failing to complete the preparation of the ticket for the original purpose of the stop
and in doing little but waiting for the canine to arrive rather than searching the
vehicle after she was given consent to do so, when all the while Troutman was
being held in the back of a locked patrol car and repeatedly subjected to
questioning by Trooper Long.
{¶44} For all of these reasons, we find that the trial court erred in
overruling Troutman’s motion to suppress based upon the unreasonable duration
of the stop. The judgment of the Common Pleas Court of Marion County, Ohio, is
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Case No. 9-11-17
reversed and the cause remanded for further proceedings consistent with this
opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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