State v. Stevens , 2016 Ohio 5017 ( 2016 )

[Cite as State v. Stevens, 2016-Ohio-5017.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
: Case No. 15CA30
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
LARRY STEVENS, JR., :
:
Defendant-Appellant. : Released: 07/12/16
_____________________________________________________________
APPEARANCES:
Chase A. Mallory, Luftman, Heck & Associates LLP, Columbus, Ohio, for
Appellant.
Kevin A. Rings, Washington County Prosecuting Attorney, and Harrison L.
Crumrine, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶ 1} Larry Stevens, Jr. appeals his conviction for possession of drugs
in the Washington County Court of Common Pleas, which stemmed from a
traffic stop where marijuana was seized from the trunk of his vehicle.
Specifically, Appellant appeals the trial court’s denial of his motion to
suppress evidence, contending that the trial court erred in overruling his
motion to suppress. Because we find the trial court properly denied
Appellant's motion to suppress, we find no error and Appellant's sole
Washington App. No. 15CA30 2
assignment of error is overruled. Accordingly, the judgment of the trial
court is affirmed.
FACTS
{¶ 2} Appellant, Larry Stevens, Jr., was indicted on one count of
possession of drugs (marijuana), a fifth degree felony in violation of R.C.
2925.11(A) & (C)(3)(c) on December 18, 2014. This indictment stemmed
from a stop of Appellant’s vehicle for a window tint violation, which
ultimately resulted in law enforcement locating marijuana in Appellant’s
trunk. Appellant initially pled not guilty to the charge and filed a motion to
suppress all of the evidence obtained by what he characterized as an
unconstitutional detention and/or arrest.
{¶ 3} A suppression hearing was held on May 18, 2015, at which
Trooper Scott Bayless and Trooper Steven Roe testified. Their testimony
will be discussed more fully below. Additionally, Appellant stipulated to the
authenticity of the dash cam video from Trooper Bayless’ cruiser, and that
video was played during the hearing and admitted into evidence as an
exhibit. After hearing the testimony presented at the hearing and after
considering the written closing arguments of the parties, the trial court
issued a decision denying Appellant’s motion to suppress.
Washington App. No. 15CA30 3
{¶ 4} In the trial court’s journal entry which denied the motion, the
trial court found the following facts with respect to this matter:
“Defendant was southbound on I-77 in Washington County
September 26, 2014 at approximately 3:05 p.m. Bayless was
stationary at mile marker 17. It should be noted that Bayless
was a K-9 unit. Bayless observed Defendant’s vehicle noting
that the window tint appeared excessive. Defendant was
stopped without incident. Bayless approached the passenger
window, informed Defendant why he had been stopped, noted
that Defendant was overly nervous, fumbled obtaining license,
registration and insurance info, and kept rearranging items that
were already in perfect order in the auto. While Bayless was
checking Defendant’s documents he ordered a criminal records
check. Roe arrived within six (6) minutes with a window tint
meter confirming that the window was only allowing 26% light
transmission, well below the 50% allowed on Ohio licensed
vehicles. Roe testified that Defendant was shaking and
trembling exhibiting extreme nervousness considering the stop
was a tinted window violation.
Washington App. No. 15CA30 4
Bayless received information that Defendant had a prior
drug related conviction in Michigan from 2009. Based on
Defendant’s extreme nervousness and the prior conviction,
Bayless had Defendant step from his vehicle to do a K-9 check.
Bayless patted Defendant down testifying that Defendant was
still shaking and appeared even more nervous. Bayless gave
Defendant his Miranda Rights and upon inquiry and without
having to remove his K-9, Defendant admitted that he had
marijuana in the vehicle and told the officers where it was
located. The marijuana was located and Defendant placed
under arrest.”
Based upon these facts, the trial court found that Trooper Bayless had
probable cause for the initial stop, and reasonable articulable suspicion of
criminal activity thereafter based upon Appellant’s extreme nervousness to
the point of shaking combined with his prior drug-related conviction.
{¶ 5} Appellant subsequently changed his plea, and entered a no
contest plea to the charge contained in the indictment. The trial court found
Appellant guilty and sentenced him by order dated August 17, 2015. It is
from this final order that Appellant now brings his timely appeal, setting
forth one assignment of error for our review.
Washington App. No. 15CA30 5
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE.”
STANDARD OF REVIEW
{¶ 6} In his sole assignment of error, Appellant contends that the trial
court erred in overruling his motion to suppress evidence. Appellate review
of a motion to suppress presents a mixed question of law and fact. State v.
Gurley, 4th Dist. Scioto No. 14CA3646, 2015-Ohio-5361, ¶ 16; citing State
v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At
a suppression hearing, the trial court acts as the trier of fact and is in the best
position to resolve factual questions and evaluate witness credibility. Id.;
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Thus, when reviewing a ruling on a motion to suppress, we defer to the trial
court's findings of fact if they are supported by competent, credible
evidence. Gurley at ¶ 16; citing State v. Landrum, 137 Ohio App.3d 718,
722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting those facts as
true, we must independently determine whether the trial court reached the
correct legal conclusion in analyzing the facts of the case.” Id.; citing
Roberts at ¶ 100.
Washington App. No. 15CA30 6
LAW AND ANALYSIS
{¶ 7} “ ‘The Fourth Amendment to the United States Constitution and
the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches
and seizures.’ ” State v. Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014-
Ohio-716, ¶ 14; quoting State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-
5047, 981 N.E.2d 787, ¶ 15. “This constitutional guarantee is protected by
the exclusionary rule, which mandates the exclusion of the evidence
obtained from the unreasonable search and seizure at trial.” Id.; citing
Emerson at ¶ 15; see also State v. Lemaster, 4th Dist. Ross No. 11CA3236,
2012-Ohio-971, ¶ 8 (“If the government obtains evidence through actions
that violate an accused's Fourth Amendment rights, that evidence must be
excluded at trial.”).
{¶ 8} “An officer's temporary detention of an individual during a
traffic stop constitutes a seizure of a person within the meaning of the Fourth
Amendment * * *.” State v. Lewis, 4th Dist. Scioto No. 08CA3226, 2008-
Ohio-6691, ¶ 14; see also State v. Eatmon, 4th Dist. Scioto No. 12CA3498,
2013-Ohio-4812, ¶ 13 (quoting Lewis ). “To be constitutionally valid, the
detention must be reasonable under the circumstances.” Lewis at ¶ 14.
“While probable cause ‘is certainly a complete justification for a traffic
stop,’ it is not required.” Eatmon at ¶ 13; quoting State v. Mays, 119 Ohio
Washington App. No. 15CA30 7
St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. “So long as ‘an
officer's decision to stop a motorist for a criminal violation, including a
traffic violation, is prompted by a reasonable and articulable suspicion
considering all the circumstances, then the stop is constitutionally valid.’ ”
Id.; quoting Mays at ¶ 8. “Reasonable and articulable suspicion is a lower
standard than probable cause.” Id.; citing Mays at ¶ 23.
{¶ 9} A police officer may stop the driver of a vehicle after observing
a de minimis violation of traffic laws. State v. Debrossard, 4th Dist. Ross.
No. 13CA3395, 2015-Ohio-1054, ¶ 13; citing State v. Guseman, 4th Dist.
Athens No. 08CA15, 2009-Ohio-952, ¶ 20; citing State v. Bowie, 4th Dist.
Washington No. 01CA34, 2002-Ohio-3553, ¶ 8, 12, and 16; citing Whren v.
United States, 517 U.S. 806, 116 S.Ct. 1769 (1996). See also Dayton v.
Erickson, 76 Ohio St.3d 3, 655 N.E.2d 1091 (1996), syllabus. Further, the
Supreme Court of Ohio has clearly stated: “Where 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[.]” Dayton at paragraph one of the syllabus.
Washington App. No. 15CA30 8
INITIAL STOP
{¶ 10} Here, Appellant’s vehicle was initially stopped by Trooper
Bayless, who was a canine handler, for excessive window tint. The record
indicates that Trooper Roe stopped to assist Trooper Bayless and checked
the window tint of Appellant's vehicle at Trooper Bayless' request, while
Bayless was waiting in his cruiser for a response from dispatch.1 The record
indicates that Trooper Roe checked Appellant’s window tint and determined
that it only permitted 26% light transmittance. Trooper Roe advised
Appellant of the result of the test and that 50% was the required light
transmittance. Importantly, Appellant does not argue that the stop of his
vehicle was unlawful. Thus, there is no issue regarding whether Trooper
Bayless had a reasonable and articulable suspicion and probable cause to
stop Appellant’s vehicle. As such, we turn our attention to whether the
duration of the stop was unlawful.
CANINE SNIFF AND DURATION OF STOP
{¶ 11} Appellant contends that Troopers Bayless and Roe had
completed all the necessary tasks to effectuate the purpose of the initial stop,
and then prolonged the stop to pursue a drug investigation without
reasonable suspicion to do so. However, based upon our review of the
1
The record indicates Trooper Bayless had a newly issued cruiser which was not equipped with a window
tint meter. Thus, he asked Trooper Roe to assist him in that regard.
Washington App. No. 15CA30 9
record and the following case law, and despite defense counsel's artful
questioning of Trooper Bayless at the suppression hearing, we conclude that
the purpose of the initial stop had not been concluded at the time a decision
was made to deploy the canine. Further, assuming arguendo that the mission
and purpose of the initial stop had been concluded at the time it was decided
that the canine should be deployed, we believe, under these facts, the
troopers had reasonable suspicion to prolong the stop for further
investigation.
{¶ 12} The 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.” Debrossard at ¶ 16;
quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319 (1983); see
also State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th
Dist.1995) and State v. Hughes, 4th Dist. Ross No. 97CA2309, 1998 WL
363850. The rule set forth in Royer is designed to prevent law enforcement
officers from conducting “fishing expeditions” for evidence of a crime. See
generally Gonyou; Sagamore Hills v. Eller, 9th Dist. Summit No. 18495,
1997 WL 760693 (Nov. 5, 1997); see also Fairborn v. Orrick, 49 Ohio
App.3d 94, 95, 550 N.E.2d 488 (2nd Dist.1988), (stating that “the mere fact
that a police officer has an articulable and reasonable suspicion sufficient to
Washington App. No. 15CA30 10
stop a motor vehicle does not give that police officer ‘open season’ to
investigate matters not reasonably within the scope of his suspicion”).
{¶ 13} Generally, “[w]hen a law enforcement officer stops a vehicle
for a traffic violation, the 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.” State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-Ohio-
4909, ¶ 36; citing State v. Carlson, 102 Ohio App.3d 585, 598, 657 N.E.2d
591 (9th Dist.1995); see also Rodriguez v. United States, -- U.S. --, 135
S.Ct. 1609, 1615 (2015) (ordinary inquiries incident to a traffic stop include
“checking the driver's license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's registration and
proof of insurance”). “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.” Id.; citing State v. Cook, 65
Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992) (fifteen-minute detention
was reasonable); United States v. Sharp, 470 U.S. 675, 105 S.Ct. 1568(1985), (twenty-minute detention was reasonable).
Washington App. No. 15CA30 11
{¶ 14} A lawfully detained vehicle may be subjected to a canine
check of the vehicle's exterior even without the presence of a reasonable
suspicion of drug-related activity. State v. Rusnak, 120 Ohio App.3d 24, 28,
696 N.E.2d 633 (6th Dist.1997). Both Ohio courts and the United States
Supreme Court have determined that “the exterior sniff by a trained
narcotics dog to detect the odor of drugs is not a search within the meaning
of the Fourth Amendment to the Constitution.” State v. Jones, 4th Dist.
Washington No. 03CA61, 2004-Ohio-7280, ¶ 24; United States v. Place,
462 U.S. 696, 103 S.Ct. 2637 (1983). Thus, a canine check of a vehicle may
be conducted during the time period necessary to effectuate the original
purpose of the stop. Jones, at ¶ 24.
{¶ 15} During a continued, lawful detention of a vehicle, as discussed
above, officers are not required to have a reasonable, articulable suspicion of
criminal activity in order to call in a canine unit to conduct a canine sniff on
the vehicle. See, e.g., State v. Feerer, 12th Dist. Warren No. CA2008-05-
064, 2008-Ohio-6766, ¶ 10. “Because the ‘exterior sniff by a trained
narcotics dog is not a search within the meaning of the Fourth Amendment
to the Constitution,’ a canine sniff of a vehicle may be conducted even
without the presence of such reasonable, articulable suspicion of criminal
activity so long as it is conducted during the time period necessary to
Washington App. No. 15CA30 12
effectuate the original purpose of the stop.” Id. See also United States v.
Place, supra. “A drug sniffing dog used to detect the presence of illegal
drugs in a lawfully detained vehicle does not violate a reasonable
expectation of privacy and is not a search under the Ohio Constitution.”
State v. Waldroup, 100 Ohio App.3d 508, 514, 654 N.E.2d 390 (12th
Dist.1995).
{¶ 16} Further, “[a]n officer may expand the scope of the stop and
may continue to detain the vehicle without running afoul of the Fourth
Amendment if the officer discovers further facts which give rise to a
reasonable suspicion that additional criminal activity is afoot.” State v. Rose,
4th Dist. Highland No. 06CA5, 2006-Ohio-5292, ¶ 17; citing State v.
Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). The Robinette
court explained, at paragraph one of the syllabus:
“When a police officer's objective justification to continue
detention of a person * * * is not related to the purpose of the
original stop, and when that continued detention is not based on
any articulable facts giving rise to a suspicion of some illegal
activity justifying an extension of the detention, the continued
detention to conduct a search constitutes an illegal seizure.”
Washington App. No. 15CA30 13
{¶ 17} Conversely, “if a law enforcement officer, during a valid
investigative stop, ascertains ‘reasonably articulable facts giving rise to a
suspicion of criminal activity, the officer may then further detain and
implement a more in-depth investigation of the individual.’ ” Rose at ¶ 17;
quoting Robinette at 241.
{¶ 18} However, the United States Supreme Court in Rodriguez v.
United States, supra, recently held that while a police officer “may conduct
certain unrelated checks during an otherwise lawful traffic stop * * * he may
not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” Id. at 1615.
Accordingly, the Court concluded that police officers may not extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to
conduct a dog sniff. Id. at 1614-1617. (Emphasis added).
{¶ 19} Finally, “In determining whether a detention is reasonable, the
court must look at the totality of the circumstances.” State v. Matteucci, 11th
Dist. Lake No. 2001-L-205, 2003-Ohio-702, ¶ 30. The totality of the
circumstances approach “allows officers to 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.’ ” State v. Ulmer, 4th Dist. Scioto No. 09CA3283, 2010-Ohio-695,
Washington App. No. 15CA30 14
¶ 23; United States v. Arvizu, 534 U.S. at 273. Thus, when an appellate
court reviews a police officer's reasonable suspicion determination, “the
court must give ‘due weight’ to factual inferences drawn by resident judges
and local law enforcement officers.” Ulmer at ¶ 23; Ornelas v. United
States, 517 U.S. at 699.
{¶ 20} As indicated above, based upon our review of the record and
the foregoing case law, and despite defense counsel's artful questioning of
Trooper Bayless at the suppression hearing, we conclude that the purpose of
the initial stop had not been concluded at the time Trooper Bayless decided
to conduct a canine sniff of the vehicle. Initially, it should be noted that
Trooper Bayless, the trooper who initiated the traffic stop, is a canine
handler and had his canine in the vehicle with him. Appellant's vehicle was
stopped at approximately 3:06 p.m. Trooper Bayless obtained Appellant's
information and returned to his cruiser to check the information at 3:08 p.m.
Trooper Bayless noted Appellant's extreme nervousness and rearranging of
items in the dash at that time.
{¶ 21} Trooper Roe then arrived and Trooper Bayless requested that
he check the window tint at 3:09 p.m. Trooper Roe returned to Trooper
Bayless' cruiser at 3:12 p.m. and reported the window tint violation,
Appellant's nervousness and hand wringing, very strong air freshener, and
Washington App. No. 15CA30 15
also conveyed that he encountered what he thought was a slight hint of
"weed," but commented the air freshener was "so strong." At 3:13 p.m.
dispatch reported to Trooper Bayless that Appellant had a prior drug
conviction. At that time, and before Trooper Bayless had even begun
writing a citation or written warning to Appellant, Trooper Bayless decided
to conduct a canine sniff. Thus, Trooper Bayless decided to conduct the
sniff only seven minutes after Appellant was initially stopped, and before he
had given Appellant a citation or warning.2 Moreover, Trooper Bayless was
a canine handler and had his canine in his cruiser. Thus, there would have
been no delay in waiting for a canine unit to arrive.
{¶ 22} The testimony during the suppression hearing indicated that
the troopers removed Appellant from the vehicle, per their usual procedure,
to prepare to conduct the canine sniff of the vehicle, and conducted a pat-
down for weapons with Appellant's consent.3 Appellant was also
Mirandized at that time. Trooper Bayless then inquired whether there would
be anything of interest to the canine in the vehicle to which Appellant
responded in the affirmative, stating there was marijuana in the vehicle.
Appellant made this statement at 3:17 p.m., just eleven minutes after the
2
Trooper Bayless testified that he had intended to only issue a warning.
3
Trooper Bayless testified that it was his customary practice to remove drivers from their vehicles prior to
conducting a canine sniff, because of safety concerns. He further explained that his canine was a "handler
protection dog" which could possibly strike if he saw movement inside the vehicle while performing a
sniff.
Washington App. No. 15CA30 16
initial stop. Based upon Appellant's statement, the troopers searched the
vehicle without ever deploying the canine and eventually located marijuana
in Appellant's trunk.
{¶ 23} Appellant contends that “[i]n the present case, the drug
investigation could have been completed within the bounds of the Fourth
Amendment.” Appellant explains, for example, that in Caballes, “two
different officers were present.” 4 Appellant goes on to discuss that in
Caballes “[w]hile one was diligently pursuing the purpose of the initial stop,
the other officer conducted a K9 sniff.” Appellant argues that “[c]onducting
the stop in this fashion did not add time to the stop.” Appellant then goes on
to argue that here, the troopers “were finished with their tasks related to the
purpose of the stop and then subsequently began their drug investigation.”
{¶ 24} We initially address Appellant’s argument that the stop could
have been completed without violating the Fourth Amendment if one officer
had been conducting the canine sniff while another officer was pursuing the
purpose of the initial stop. First, and importantly, Trooper Bayless was the
stopping officer and also the canine handler. Thus, he could not complete
two tasks at the same time. Although Trooper Roe arrived to assist with the
window tint investigation, he was not a canine handler and could not
4
Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834 (2005).
Washington App. No. 15CA30 17
conduct the canine sniff while Trooper Bayless continued to communicate
with dispatch to verify Appellant’s information. Second, the record
indicates that the stop was conducted and investigated in a diligent manner
by Trooper Bayless. He methodically checked Appellant’s information,
contacted dispatch, requested assistance from Trooper Roe, followed up with
Trooper Roe and dispatch, and then determined to walk his dog around the
vehicle all within eight minutes of the initial stop, and before issuing a
citation or warning to Appellant. This Court cannot see how Trooper
Bayless, who had the responsibility to investigate the initial reason for the
stop and also was the canine handler, could have conducted the stop in a
more efficient manner. Further, if a canine handler can never deploy his
canine without it being considered an impermissible “prolonging” of the
stop, then it is unclear when a canine handler can ever be the officer to
initiate a stop and also utilize his canine, absent reasonable suspicion to do
so. Thus, we cannot conclude that the facts presently before us run afoul of
the Fourth Amendment or Rodriguez, supra, which essentially held that
police officers may not extend an otherwise-completed traffic stop, absent
reasonable suspicion, in order to conduct a dog sniff.
{¶ 25} We next address Appellant’s argument that the troopers “were
finished with their tasks related to the purpose of the stop and then
Washington App. No. 15CA30 18
subsequently began their drug investigation.” Appellant relies on the
following exchange that occurred with Trooper Bayless during the
suppression hearing to support his argument:
“Q. * * * So then you would agree with me then, that at that
point, when you decided that you were going to pull him out of
the vehicle, you stopped pursuing the initial stop?
A. Right.
Q. Okay. And then this became a drug investigation?
A. Correct.”
There is, however, a problem with Appellant’s argument as well as this line
of questioning. Contrary to Appellant’s argument, the record, and
specifically dash cam video, reveals that the stop was not “otherwise-
completed” at the time the decision was made to deploy the canine, as no
warning had been issued yet. Although Trooper Bayless testified that he had
made up his mind to issue a warning, that warning had not been issued either
in verbal or written form at the time he decided to conduct the canine sniff.
Thus, the initial stop had not been concluded.
{¶ 26} In Rodriguez, the officer, who had a canine present with him
at the time of the stop, had completed the traffic stop, including issuing a
written warning for the traffic violation before deciding to conduct a canine
Washington App. No. 15CA30 19
sniff of the vehicle. Because the driver refused to allow the sniff, the officer
detained the driver until back-up arrived and then conducted the sniff. This
scenario is different from the scenario presently before us where Trooper
Bayless had not issued a citation or warning yet. As set forth above, police
officers may not extend an otherwise-completed traffic stop, absent
reasonable suspicion, in order to conduct a dog sniff. Id. at 1614-1617.
Once again, this stop was not “otherwise-completed.”
{¶ 27} Yet, the Rodriguez court went on to state that the critical
question is not whether the dog sniff occurs before or after the officer issues
a ticket, but whether conducting the sniff prolongs, or adds time to, the stop.
Rodriguez at 1616. Ohio Courts have held that Rodriguez has no bearing
when the canine sniff is conducted during the time period necessary to
effectuate the original purpose of the traffic stop and prior to completion of a
written citation. State v. Reece, 1st Dist. Hamilton No. C-140635, 2015-
Ohio-3638, ¶ 25 (sniff conducted prior to issuance of citation); State v.
Davis, 9th Dist. Lorain No. 14CA010639, 2015-Ohio-4218, ¶ 16 (sniff
conducted prior to background check completed or traffic citation issued);
State v. Mote, 3rd Dist. Mercer No. 10-15-05, 2015-Ohio-3715, ¶ 21 (driver
not detained longer than the time period sufficient to issue a ticket). Further,
and as set forth above, such a strict application of Rodriguez would prevent
Washington App. No. 15CA30 20
an officer who was both the stopping/investigating officer and also a canine
handler from ever deploying his canine without it being considered an
impermissible “prolonging” of the stop, absent reasonable suspicion to do
so.
{¶ 28} Further, even if the mission and purpose of the initial stop had
been concluded at the time Trooper Bayless decided to conduct a canine
sniff of Appellant's vehicle, we believe, under these facts, the troopers had
reasonable suspicion to prolong the stop and expand the scope of the
investigation. We reach this conclusion in light of the information contained
in the record, primarily the dash cam video which was entered into evidence
and was before the trial court for review and consideration. Taking the
contents of the video and the troopers' testimony together, we find the
troopers possessed reasonable suspicion to expand the investigation and
deploy the canine. Specifically, we believe the following factors provided
the troopers with reasonable suspicion to prolong the detention and expand
the scope of the investigation: 1) Appellant's extreme nervousness, which
included shaking hands, trembling, hand wringing, and repeated rearranging
of items in the dash that did not need rearranging; 2) the report from
dispatch that Appellant had a prior criminal history that included a drug
conviction; 3) statements heard on the dash cam video by Trooper Roe that
Washington App. No. 15CA30 21
he encountered a slight odor of marijuana that was overpowered by very
strong air freshener as he was checking Appellant's passenger side window;
and 4) the fact that Appellant’s windows had excessive window tint, which
would have made it difficult to see inside the vehicle.
{¶ 29} Despite Appellant's argument that nervousness is to be
expected during a stop of a vehicle and that that factor, in and of itself,
indicates essentially nothing, we note that nervousness is commonly one of
the factors cited when determining whether reasonable suspicion exists to
expand the investigation during a traffic stop. State v. Robinson, 4th Dist.
Lawrence No. 14CA24, 2016-Ohio-905; State v. Shook, 4th Dist. Pike No.
13CA841, 2014-Ohio-3403. And, the evidence before us indicates
Appellant seemed to be extremely nervous, especially, as Trooper Bayless
indicated, for only a window tint violation stop. Appellant's nervous
behavior included shaking hands, trembling, hand wringing and repeated
rearranging of items in the vehicle, which according to Trooper Bayless did
not need rearranging, as the vehicle was neat as a pin. Appellant's behavior
continued after he was informed the officers were simply investigating
whether his window tint was too dark.
{¶ 30} With regard to Appellant's argument that his history of a prior
drug conviction is not a factor to be considered when determining whether
Washington App. No. 15CA30 22
reasonable suspicion exists, we note this Court has previously affirmed
reliance on such a factor in determining whether reasonable suspicion exists.
State v. Shook, supra, ¶ 5 (LEADS criminal history check revealed history
of drug and weapons charges). Further, unusually strong air freshener is
often considered a red flag. State v. Eggleston, 11th Dist. Trumbull No.
2014-T-0068, 2015-Ohio-958 (reversing conviction but also noting the
presence of air freshener is an "indicia of potential drug activity.").
Additionally, the Supreme Court of Ohio has considered air
freshener/deodorizer and tinted windows both to be factors leading to
reasonable suspicion of criminal activity during a traffic stop. State v.
Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 19.
Further, as noted in Batchili, "[t]he “reasonable and articulable suspicion”
analysis is based on the collection of factors, not on the individual factors
themselves." Id. at ¶ 19.
{¶ 31} Thus, even though there may be innocent explanations for
each of the factors separately, taken as a whole, we believe Troopers Bayless
and Roe could reasonably conclude they had reasonable suspicion of
criminal activity. Trooper Bayless testified to this belief during the
suppression hearing. As indicated above, the totality of the circumstances
approach “allows officers to draw on their own experience and specialized
Washington App. No. 15CA30 23
training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’ ”
State v. Ulmer, supra, at ¶ 23; United States v. Arvizu, supra, at 273. Thus,
when an appellate court reviews a police officer's reasonable suspicion
determination, “the court must give ‘due weight’ to factual inferences drawn
by resident judges and local law enforcement officers.” Ulmer, supra, at
¶ 23; Ornelas v. United States, supra, at 699.
{¶ 32} Thus, in summary, we conclude that the initial purpose or
mission of the stop had not been concluded at the time the decision was
made to deploy the canine for a sniff of the vehicle, and as such, no
reasonable suspicion was needed to conduct the sniff. Further, even if the
initial mission was concluded despite the fact that Trooper Bayless had not
yet issued Appellant a warning or citation, looking at the collection of
factors as a whole that the troopers were confronted with during the stop and
considering the totality of the circumstances, we conclude Troopers Bayless
and Roe had reasonable suspicion to expand the scope of their investigation
and any prolonging of the stop that occurred in order to attempt to conduct
the canine sniff, which ultimately was not needed, was justified.
{¶ 33} Moreover, “[r]ecognizing that ‘detention, not questioning, is
the evil’ at issue, * * * so long as the traffic stop is valid, ‘any questioning
Washington App. No. 15CA30 24
which occurs during the detention, even if unrelated to the scope of the
detention, is valid so long as the questioning does not improperly extend the
duration of the detention.’ ” State v. Chagaris, 107 Ohio App.3d 551, 556-
557, 669 N.E.2d 92 (9th Dist.1995); quoting State v. Wright, 9th Dist.
Medina No. 2371-M, 1995 WL 404964, *3-4 (June 28, 1995). Thus,
Appellant’s statement made pursuant to Trooper Bayless’ questioning during
the valid stop and detention, which was made only after Appellant had been
read his Miranda Rights, was valid and further provided the troopers with
probable cause to search Appellant’s vehicle. As such, we conclude that the
trial court did not err in denying Appellant’s motion to suppress.
Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Washington App. No. 15CA30 25
Harsha, J., concurring:
{¶ 34} I concur in the judgment overruling Stevens’s assignment of
error. Nevertheless, I disagree with the conclusion of the majority that the
state troopers were not finished with their traffic stop at the time that
Trooper Bayless asked Stevens to exit the vehicle to conduct a K-9 search
and he Mirandized him. Trooper Bayless himself admitted that at that point,
they had stopped pursuing the initial stop for the tinted-windows offense and
had commenced a drug investigation.
{¶ 35} The principal opinion initially focuses upon the duration of the
initial stop as the means for limiting the scope of the Fourth Amendment
intrusion. In my view the duration of the initial stop, although relevant to
the Fourth Amendment inquiry, is not determinative of the issue here.
Rather, as the principal opinion ultimately concludes, our outcome is
determined by whether the troopers had observed additional articulable facts
justifying an expansion of the scope of the stop. “An officer may expand the
scope of the stop and may continue to detain the vehicle without running
afoul of the Fourth Amendment if the officer discovers further facts which
give rise to a reasonable suspicion that additional criminal activity is afoot.”
State v. Rose, 4th Dist. Highland No. 06CA5, 2006–Ohio–5292, ¶ 17, citing
Washington App. No. 15CA30 26
State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997); see also
State v. Davis, 4th Dist. Athens No. 15CA26, 2016-Ohio-3539, ¶ 27.
{¶ 36} One of the facts the trooper relied upon in expanding the scope
of their stop was their knowledge of Stevens’s prior drug conviction. It is
important to note that a person’s past criminal history, standing alone, does
not provide the required level of suspicion to justify expanding the scope of
the initial intrusion from a traffic stop into a criminal investigation. See
Katz, Ohio Arrest, Search and Seizure, Section 18:11 (2016 Ed.), citing
State v. Whitman, 184 Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 293(5th Dist.), quoting United States v. Sandoval, 29 F.3d 537, 542 (10th
Cir.1994) (“ ‘knowledge of a person's prior criminal involvement (to say
nothing of a mere arrest) is alone insufficient to give rise to the requisite
reasonable suspicion’ to justify a shift in investigatory intrusion from the
traffic stop to a firearms or drugs investigation”). But it is a factor that may
be considered in the analysis of the totality of the circumstances.
{¶ 37} Based upon the totality of the circumstances, the trial court did
not err in denying the suppression motion because the expansion of the
scope of Stevens’s detention was justified by additional facts—his extreme
nervousness, prior drug conviction, the strong odor of air freshener, and the
hint of the odor of marijuana masked by the air freshener—that gave rise to
Washington App. No. 15CA30 27
a reasonable suspicion that drug-related criminal activity was afoot.
Therefore, I concur in the judgment affirming the trial court’s judgment.
Washington App. No. 15CA30 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.