State v. Sunkle , 2022 Ohio 2442 ( 2022 )

[Cite as State v. Sunkle, 2022-Ohio-2442.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
MELISSA SUNKLE, : Case No. 2021 CA 00092
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
21-CR-00225
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 14, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT N. ABDALLA WILLIAM T. CRAMER
Assistant Prosecuting Attorney 470 Olde Worthington Road, Suite 200
20 S. Second Street Westerville, Ohio 43082
Newark, Ohio 43055
Licking County, Case No. 2021 CA 00092 2
Baldwin, J.
STATEMENT OF THE CASE AND THE FACTS
{¶1} The Licking County Grand Jury returned a four-count indictment against
Appellant Melissa A. Sunkle. Count One charged Aggravated Trafficking in
Methamphetamine a violation of R.C. § 2925.03(A)(2),(C)(l)(d), and a felony of the
second degree. Count Two charged Aggravated Possession of Methamphetamine a
violation of R.C. § 2925.11(A),(C)(l)(c), and a felony of the second degree. Count Three
charged Trafficking in Fentanyl-Related Compound in violation of R.C.
§ 2925.03(A)(2),(C)(9)(d), a felony of the third degree. Count Four charged Possession
of Fentanyl-Related Compound in violation of R.C. § 2925.11(A),(C)(l l)(c ), a felony of
the third degree.
{¶2} The Indictment also contained a Forfeiture Specification of $1,134.00 in
U.S. Currency. Sunkle appeared for arraignment on May 4, 2021 and entered a plea of
Not Guilty to all four charges.
{¶3} Sunkle moved to suppress evidence on July 1, 2021, alleging that “no traffic
violation in fact occurred that would justify the intrusion into Ms. Sunkle's life,” that the
officer “expanded the encounter into a drug investigation” and “went too far,” and that the
canine did not actually “alert” to anything. The trial court conducted a hearing on the
matter at which the state presented the testimony of Detective Michael Wingate and
Detective Sergeant Adam Hoskinson.
{¶4} Detective Wingate and Detective Sergeant Hoskinson were on duty
April 15, 2021. Hoskinson was working a drug interdiction with his K-9, Buckeye, at a local
hotel where Hoskinson found that Sunkle was staying. The Central Ohio Drug
Licking County, Case No. 2021 CA 00092 3
Enforcement Task Force (CODE) had received information that Sunkle was bringing
fentanyl and methamphetamine to the area, making her a person of interest for the Task
Force. Hoskinson witnessed Sunkle leave the hotel with a male, enter a silver SUV and
proceed west on Locust street and turn south on Fourth Street. Hoskinson followed and
witnessed Sunkle move from a left turn lane to a through lane without signaling, a violation
of Ohio traffic law. He radioed Wingate and relayed the nature of the offense and a
description of the vehicle, including the license plate.
{¶5} Wingate found the vehicle and stopped it at 10:32:47 according to the clock
in the cruiser video. Sunkle provided her driver’s license, but her passenger refused to
identify himself. Wingate noticed that the passenger was visibly nervous, shaking and
looking down while clutching a backpack that was between his feet. Wingate asked the
passenger to step out of the vehicle and escorted him to his cruiser. Hoskinson and
Detective Woodyard arrived at the scene and the time was 10:35:57.
{¶6} Hoskinson and Woodyard approached Sunkle and asked her to move her
vehicle off the road, and noticed that her breathing was shallow and that she appeared
overly nervous for being stopped for a traffic violation. Hoskinson moved to the passenger
and requested that he provide identification and the passenger again refused. Hoskinson
believed that Detective Conley may be able to identify the passenger, so Conley was
called to the scene.
{¶7} At 10:39:44 Hoskinson conducted a free air sniff with his canine, Buckeye,
after Sunkle was removed from the vehicle. After Buckeye signaled that he detected
narcotics in the vehicle, Hoskinson requested and received Sunkle’s permission to search
the vehicle.
Licking County, Case No. 2021 CA 00092 4
{¶8} After the hearing the trial court denied the motion, finding that:
* * the lane violation constitutes sufficient probable cause to stop the vehicle
and issue a traffic citation. Further, that any initial delay in the process was
due to the passenger in the vehicle refusing to provide any identification,
and in any event, the K-9 alert appears to have been done seven minutes
after the initial stop. The Court also notes that in general drivers may be
removed from the vehicle for the purposes of writing citations. Accordingly,
the Court finds the defendant's motion to be not well taken and is
DENIED.(Suppression Entry, p. 2).
{¶9} Sunkle withdrew her not-guilty plea and entered a plea of no contest to all
charges. The State presented a narrative of the facts supporting the indictment:
On April 15, 2021, Licking County Sheriff's Office Detective Wingate
wearing the uniform of the day and operating a marked cruiser equipped
with overhead lights effectuated a traffic stop on a silver Toyota RAV 4 for
failing to utilize a turn signal at the intersection of Fourth and West Church
Street in Newark, Licking County, Ohio. The driver was identified as
Defendant, Melissa Sunkle, and the front seat passenger refused to provide
any identification. The Defendant was under a license suspension. The
Defendant advised police that she had multiple amounts of varying drugs in
her hotel room that she picked for purposes of selling. A subsequent search
warrant for the hotel room discovered large quantities of methamphetamine,
a Schedule II controlled substance, approximate amount being 50 grams.
Additionally, other drugs, including fentanyl, were located. The Central Ohio
Licking County, Case No. 2021 CA 00092 5
Regional Crime Lab tested the substances and determined them to be
45.972 grams of methamphetamine and 8.33 grams of fentanyl-related
compound. (October 19,2021 Hearing Transcript ("Plea Tr."), p. 10).
{¶10} The trial court asked Appellant whether she agreed with the facts set forth
by the State, and Appellant affirmed that she did. (Plea Tr. p. 11).
{¶11} The trial court accepted the plea and determined that counts one and two
merged and that counts three and four merged. The state elected to proceed on counts
one and three. The trial court sentenced Sunkle to an aggregate sentence of four and
one-half to six years in prison and ordered a forfeiture of $1,134.00.
{¶12} Sunkle has filed an appeal and submitted one assignment of error:
{¶13} “I. APPELLANT'S RIGHTS UNDER THE FEDERAL AND STATE
CONSTITUTIONS TO BE FREE OF UNREASONABLE SEARCH AND SEIZURE WERE
VIOLATED BY THE UNJUSTIFIABLE DELAY OF A TRAFFIC STOP FOR A CANINE
SNIFF.”
STANDARD OF REVIEW
{¶14} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
The trial court is the finder of fact in evaluating a motion to suppress; therefore, it is in the
best position to resolve factual questions and evaluate the credibility of witnesses. Id. The
trial court's findings of fact must be accepted by an appellate court if they are supported
by competent, credible evidence. Id. “Accepting facts as true, the appellate court must
then independently determine, without deference to the conclusion of the trial court,
Licking County, Case No. 2021 CA 00092 6
whether the facts satisfy the applicable legal standard.” Id. That is, the appellate court will
review the application of the legal standard to the facts de novo. Id.{¶15} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. State v. Goins, 5th Dist. Morgan No. 05-8, 2006-Ohio-74, ¶ 10. First,
an appellant may challenge the trial court's finding of fact. Id. Second, an appellant may
argue the trial court failed to apply the appropriate test or correct law to the findings of
fact. Id. Finally, an appellant may argue the trial court has incorrectly decided the ultimate
or final issue raised in the motion to suppress. Id. When reviewing this type of claim, an
appellate court must independently determine, without deference to the trial court's
conclusion, whether the facts meet the appropriate legal standard in any given case. State
v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist. 1994).
{¶16} Sunkle does not dispute the facts and instead contends that the trial court
incorrectly decided the ultimate issue raised in the motion to suppress, so we review this
case to determine whether the facts meet the appropriate legal standard.
ANALYSIS
{¶17} Sunkle’s assignment of error focuses upon the use of the canine at the
traffic stop, concluding that “[b]ecause no work was being done on the traffic violation
while Buckeye was checking the vehicle, the canine sniff necessarily added time to the
traffic stop and must be independently justified.” (Appellant’s Brief, p. 8). Sunkle is inviting
this court to construe the applicable precedent, including cases cited in her brief, to
require that all activity conducted at a traffic stop must be directed toward a goal of
completing that stop and that any action not directed toward that end, including a free air
sniff by a canine already at the scene, is an impermissible extension of the traffic stop
Licking County, Case No. 2021 CA 00092 7
regardless of the amount of time that expires between the initiation of the stop and the
discovery of evidence of narcotics. We have reviewed the relevant caselaw and find no
support for Sunkle’s interpretation.
{¶18} The relevant caselaw focuses upon the time necessary to complete the
mission of issuing a traffic ticket or a warning and “[a] seizure that is justified solely by the
interest in issuing a warning ticket to the driver can become unlawful if it is prolonged
beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543
U.S. 405, 407, 125 S.Ct. 834, 837, 160 L.Ed.2d 842. The officer may inquire into matters
unrelated to the traffic stop, “so long as those inquiries do not measurably extend the
duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100–101, 125 S.Ct. 1465, 161
L.Ed.2d 299 (2005).” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 788, 172
L.Ed.2d 694. “An officer, in other words, may conduct certain unrelated checks during an
otherwise lawful traffic stop. But * * * he may not do so in a way that prolongs the stop,
absent the reasonable suspicion ordinarily demanded to justify detaining an individual.
Rodriguez v. United States, 575 U.S. 348, 354–55, 135 S.Ct. 1609, 1614–15, 191 L.Ed.2d
492.
{¶19} And we have recently held that “the pertinent question is not whether the
dog sniff occurs before or after the officer issues or could have issued the initial ticket, but
whether the dog sniff adds time to the stop. State v. Perkins, 5th Dist. Richland
No. 19CA38, 2019-Ohio-4328, appeal not allowed, 158 Ohio St.3d 1410, 2020-Ohio-518,
139 N.E.3d 926.” State v. Lewis, 5th Dist. Knox No. 20CA000013, 2021-Ohio-1360, ¶ 22
appeal allowed, 164 Ohio St.3d 1403, 2021-Ohio-2742, 172 N.E.3d 161, ¶ 22 and appeal
dismissed as improvidently allowed, 2022-Ohio-1570.
Licking County, Case No. 2021 CA 00092 8
{¶20} In the case before us, the officer testified that a traffic stop can be completed
in twenty-five minutes, if there are no interruptions. While the reluctance of the passenger
to provide his identification might be considered an interruption in the orderly completion
of the traffic stop, we need not consider that issue because the time between the stop
and the canine alert was brief. The record shows that the canine sniff occurred within
approximately seven minutes of the initial stop, so the seizure was not prolonged beyond
the time reasonably required to complete the mission of issuing a traffic citation. And
once the dog alerted to the presence of narcotics in the vehicle, the officers had probable
cause to search the vehicle. Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-1103,
862 N.E.2d 810, ¶ 26. And, after the canine alert, Sunkle consented to the search of the
vehicle and has conceded that she “advised police that she had multiple amounts of
varying drugs in her hotel room that she picked for purposes of selling.” The officers
obtained a warrant to search the hotel room and discovered the narcotics that supported
the charges filed against Sunkle.
{¶21} We find that the canine sniff did not impermissible extend the time for the
traffic stop and deny Sunkle’s first assignment of error.
Licking County, Case No. 2021 CA 00092 9
{¶22} The decision of the Licking County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Delaney, J. concur.