State v. Skaggs , 2021 Ohio 2803 ( 2021 )

[Cite as State v. Skaggs, 2021-Ohio-2803.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
CASE NO. 3-20-13
PLAINTIFF-APPELLEE,
v.
ROBERT A. SKAGGS, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 19-CR-0487
Judgment Affirmed
Date of Decision: August 16, 2021
APPEARANCES:
Edwin M. Bibler for Appellant
Ryan M. Hoovler for Appellee
Case No. 3-20-13
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Robert Skaggs (“Skaggs”) brings this appeal from
the judgment of the Common Pleas Court of Crawford County denying his motion
to suppress. On appeal, Skaggs claims that 1) the stop exceeded the scope and
duration necessary to complete the traffic stop and 2) there was no reasonable,
articulable suspicion for continuing the stop. For the reasons set forth below, the
judgment is affirmed.
{¶2} On December 3, 2019, the Crawford County Grand Jury indicted
Skaggs on one count of Possession of Drugs in violation of R.C. 2925.11(C)(1)(a),
a felony of the fifth degree. Doc. 1. The indictment was based upon drugs found
during a traffic stop on November 12, 2019. Doc. 1. On March 25, 2020, Skaggs
filed a motion to suppress the evidence. Doc. 19. A hearing was held on the motion
on June 18, 2020 and the motion was eventually denied. Doc. 35.
{¶3} At the hearing, Captain Joseph Greathouse (“Greathouse”) testified as
follows. In 2016, the police received information that Skaggs may be bringing drugs
into the area and selling them when he came up to visit family. Tr. 14-17. On May
18, 2018, the police received a tip from an informant that Skaggs was selling drugs
at an address inside Bucyrus. Tr. 19. The informant reported that the drugs arrived
at the address via FedEx. Tr. 20. On July 16, 2019, the police received a letter
claiming that Skaggs was selling narcotics in the Bucyrus area. Tr. 22. Then on
July 21, 2019, the police received another tip that Skaggs, who lives in Tennessee,
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would sell drugs in Bucyrus when he was in town to visit his girlfriend and identified
the vehicle he was driving as a mint green Chrysler 300 with Tennessee tags. Tr.
22-23. The tip gave substantial information regarding the names of the people
involved in the trafficking, the methods used, and the ways the drugs are hidden
while being transported. Tr. 22-26. On October 11, 2019, the police received
another tip alleging that Skaggs was supplying drugs to a local dealer, drove a silver
Chrysler 300, kept the meth in a black bag and stayed at the Holiday Inn when in
town. Tr. 26-27. The police also had an informant claiming that his supplier
received his drugs from Skaggs. Tr. 27. Greathouse testified that based upon all of
this information, he was looking “to establish probable cause to obtain a GPS search
warrant for [Skaggs] car” when he saw an opportunity to stop Skaggs’ vehicle. Tr.
27-28. To get the information, Greathouse was going out in the evenings, locating
Skaggs, and watching him to see what he was doing. Tr. 28. Greathouse did this
three or four times in the month before the stop. Tr. 28. On November 8,
Greathouse observed what he suspected was a drug transaction when a person on a
motorcycle stopped outside of the residence of Skagg’s girlfriend, went inside for a
few minutes then left. Tr. 29. Approximately two weeks before the stop,
Greathouse observed Skaggs at a location where the target of a drug investigation
was also present. Tr. 30.
{¶4} Greathouse testified that on November 12, 2019, he was working in an
unmarked car checking “hot spots” for drug activity. Tr. 31. While at one location,
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he observed Skaggs driving his light green car with Tennessee tags. Tr. 31-32.
Skaggs went to a residence while leaving his car running, then returned a couple
minutes later. Tr. 32. Greathouse then contacted Officer Jason Pennington
(“Pennington”) and told him that he suspected Skaggs was involved in drug activity.
Tr. 32. This suspicion was because Skaggs “acted like he was in a hurry”. Tr. 33.
Greathouse watched Skaggs driving away and asked Pennington to follow him “in
an attempt to see if there’s any probable cause to initiate a stop.” Tr. 33. Both
Greathouse and Pennington lost sight of Skaggs, but found him approximately five
minutes later. Tr. 33. Greathouse then saw Skaggs stop at a stop sign, but he
stopped beyond the stop bar. Tr. 34. Skaggs then made a right turn that caused him
to travel left of center and appeared to be on his phone. Tr. 34. Greathouse then
contacted Pennington and advised him of the violations so he could be stopped. Tr.
34. At the time of contacting Pennington, the intent was to search the vehicle for
drugs. Tr. 34. The plan was to stop the vehicle and use a canine sniff to search the
vehicle. Tr. 35.
{¶5} On cross-examination, Greathouse admitted that none of the tips
received were related to November 2019. Tr. 53. Greathouse also admitted that the
home that he was observing on November 8, 2019, when he saw the motorcycle
come and go quickly belonged to a relative of Skaggs which could explain why he
was there. Tr. 54. As to the events of November 12, Greathouse saw Skaggs go to
a residence where he only stayed a couple of minutes, but did not see Skaggs carry
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anything in or out of the house. Tr. 55. The only thing suspicious was that he
appeared to be in a hurry. Tr. 55. The video of the stop showed that Skaggs was
stopped at approximately 8:15 pm. Tr. 56. The canine was requested at 8:20 pm.
Tr. 57. The officers stopped attempting to write the warning citation at 8:20 pm as
well. Tr. 61. The dog did not arrive until 8:38 pm. Tr. 61. Both sides stipulated
that since only the time elapsed mattered, not the actual times, they would use the
times shown on the police car’s video. Tr. 67-68.
{¶6} Pennington testified that Greathouse contacted him on November 12,
2019, and told him the traffic violations Greathouse had observed. Tr. 70-71.
Greathouse wanted him to conduct a traffic stop based upon a stop bar violation and
traveling left of center. Tr. 71. Pennington indicated that the vehicle was a Chrysler
with Tennessee plates and was in working condition. Tr. 71-72. Pennington
observed that Skaggs’ left arm was shaking and Skaggs stated that he may have
went left of center because he “wasn’t from the area” and that he was using the GPS
on his phone. Tr. 72. Pennington believed that Skaggs was lying because he was
from the area and that in his opinion, Skaggs was shaking because he was nervous.
Tr. 72. Pennington then asked permission from Skaggs to search the vehicle before
he returned to the patrol car to write the warning, but Skaggs said no. Tr. 73.
Pennington then returned to the patrol car and requested a canine and that it be
expedited. Tr. 74. Pennington then went back to the vehicle and had Skaggs exit
the vehicle so that he could conduct a pat down search for officer safety. Tr. 74.
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This concern, pursuant to a statement on the video by Pennington, was based upon
the shaking arm. No weapons were found on Skaggs, just some cash. Tr. 74.
Pennington testified that Skaggs, when questioned about the cash, indicated it was
for his rent in Tennessee. Tr. 74. Pennington indicated that this was a red flag
because Skaggs also told him he did not know exactly how much cash was there.
Tr. 75. In his experience people selling drugs frequently have large amounts of cash
on them. Tr. 75. After searching Skaggs, Pennington then went back to his patrol
car. Tr. 75. In the meantime, another officer in the patrol car wrote the written
warning for the violations. Tr. 76. Pennington testified that he then called dispatch
because he was unhappy that the canine had not arrived. Tr. 77. Dispatch informed
him that since the canine unit was off, they had not called him yet, so Pennington
called Deputy Chris Hulsmeyer (“Hulsmeyer”) to request his canine unit. Tr. 77-
78. Pennington then did nothing until Hulsmeyer arrived with the canine. Tr. 78.
Once the canine alerted to the presence of narcotics, Pennington conducted a search
of the vehicle where he found a small bag of methamphetamine. Tr. 78.
{¶7} On cross-examination Pennington admitted that he actually conducted
two pat down searches of Skaggs and did not remove anything from Skaggs’
pockets. Tr. 79. When Pennington felt the money he asked what it was and if he
could remove it. Tr. 80. After seeing it was money, Pennington put it back in
Skaggs’ pocket. Tr. 80. Skaggs told Pennington he was from Tennessee, the car
was registered in Tennessee, and Skaggs had a Tennessee driver’s license. Tr. 80.
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Pennington admitted that he knew Skaggs was a musician and had just played a
show in Bucyrus. Tr. 81. Pennington acknowledged that musicians are sometimes
paid in cash and that could be the source of the cash. Tr. 81. A review of the vehicle
tags showed that it was registered to Skaggs. Tr. 81. Skaggs’ license was valid and
there were no warrants for him. Tr. 82. Pennington then began writing the warning
citation. Tr. 82. Pennington admitted that he was frustrated that the canine was not
there yet. Tr. 82.
{¶8} Hulsmeyer testified that he is employed by the Crawford County
Sheriff’s Office as a canine handler. Tr. 88. On November 12, 2019, he was
working with a qualified drug detection canine. Tr. 89. On that evening, he was
not working, but received a request from the Bucyrus Police Department to go to
the scene of a traffic stop. Tr. 90. Hulsmeyer indicated that they made one lap
around the car clockwise and then turned to go around counterclockwise. Tr. 90.
The canine alerted on the rear passenger door during the second lap of the vehicle.
Tr. 91. After that Hulsmeyer returned the canine to his vehicle and observed the
search until Pennington found what was suspected as methamphetamines. Tr. 91.
{¶9} On June 22, 2020, the trial court entered judgment denying the motion
to suppress. Doc. 35. Skaggs later entered into a written plea of no contest to the
indictment. Doc. 37. The trial court accepted the plea and sentenced Skaggs to five
years of community control. Doc. 38. Skaggs filed a timely notice of appeal. Doc.
40. On appeal, Skaggs raises the following assignments of error.
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First Assignment of Error
The trial court erred in denying [Skaggs’] motion to suppress the
evidence where the stop of [Skaggs’] vehicle by officers of the
Bucyrus Police Department and Crawford County Sheriff’s
Office exceeded the scope and duration necessary and there was
no reasonable, articulable suspicion that drug activity was
occurring on November 12, 2019.
Second Assignment of Error
The trial court erred in denying [Skaggs’] motion to suppress the
evidence where there was no reasonable, articulable suspicion
that drug activity was occurring at the time of the stop of
[Skaggs’] vehicle on November 12, 2019.
{¶10} In both assignments of error, Skaggs claims that the trial court erred
in denying his motion to suppress.
Under appellate review, motions to suppress present “mixed
questions of law and fact.” State v. Yeaples, 180 Ohio App.3d 720,
2009-Ohio-184, 907 N.E.2d 333, ¶ 20 (3d Dist.).
“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.
Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible
evidence. Accepting these facts as true, the appellate court must
then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” (Citations omitted.)
State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d Dist.),
quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶ 8.
State v. Sullivan, 2017 -Ohio- 8937, ¶ 11, 102 N.E.3d 86 (3d Dist.).
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{¶11} Here, Skaggs does not dispute that the stop of the vehicle was valid.
The only issue is whether the stop was extended beyond a reasonable time. This
Court recently addressed the issue of stops extended for an unreasonable time to
allow time for a canine to arrive on the scene in State v. Lawler, 3d Dist. Union No.
14-19-25, 2020-Ohio-849, 152 N.E.3d 962. In Lawler, the defendant was driving
on US 33 near Marysville, Ohio, when a state trooper saw them and thought they
looked suspicious. Id. at ¶ 2. The trooper followed the vehicle and stopped it around
5:16 p.m. after the driver changed lanes without using the turn signal. Id. After
speaking with the driver and the passenger for a few minutes, the trooper learned
that neither of them were the registered owners of the vehicle. Id. at ¶ 3. The trooper
asked dispatch to contact the registered owner and also requested the presence of a
canine based upon the behavior of the vehicle’s occupants. Id. At 5:24 p.m.,
dispatch notified the trooper that the occupants were permitted to use the vehicle,
but the defendant was supposed to be the one driving. Id. at ¶ 4. The trooper also
learned that the driver had a suspended license. Id. The trooper did not continue to
process the traffic stop or return to the vehicle to speak with the occupants, but
instead chose to remain in his vehicle until the canine arrived at 5:49 p.m. Id. The
canine walked around the vehicle and alerted to the presence of drugs, which led to
the arrest of the defendant. Id. The defendant was subsequently indicted on several
felonies. Id. at ¶ 5. He eventually filed a motion to suppress alleging that the trooper
had unreasonably prolonged the traffic stop to await the arrival of the canine. Id. at
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¶ 6. The trial court agreed and the State filed a notice of appeal alleging that the
stop was not unreasonably prolonged. Id. at ¶ 7-8.
{¶12} On appeal, this Court affirmed the judgment of the lower court. Id. at
¶ 48. When reviewing the issue, this Court held that a traffic stop “can become
unlawful if it is prolonged beyond the time reasonably required” to issue a ticket.
Id. at ¶ 13 quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160
L.Ed.2d 842 (2005).
“‘When an officer detains a motorist for a traffic violation, the
stop should delay the motorist only for the amount of time
necessary to issue a citation or warning.’” State v. Hall, 2d Dist.
Darke, 2017-Ohio-2682, 90 N.E.3d 276, ¶ 8, quoting State v. Hill,
2d Dist. Montgomery No. 26345, 2016-Ohio-3087, ¶ 9, citing State
v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282,
¶ 12; State v. Troutman, 3d Dist. Marion No. 9-11-17, 2012-Ohio-
407, ¶ 22 (“[T]he duration of the stop ‘is limited to “effectuate the
purpose for which the initial stop was made.” ’ ”), quoting State
v. Smith, 117 Ohio App.3d 278, 285, 690 N.E.2d 567 (1st
Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 655, 645
N.E.2d 831 (4th Dist.1994). “ ‘The reasonable stop time includes
the amount of time it takes to conduct a computer check on the
driver's license, registration, and vehicle plates.’ ” Hall at ¶ 8,
quoting Hill at ¶ 9; Rodriguez v. United States, 575 U.S. 348, 355,
135 S.Ct. 1609, 191 L.Ed.2d 492 (2015) (“[A]n officer's mission
includes ‘ordinary inquiries incident to [the traffic] stop’ * * *
[such as] checking the driver's license, determining whether there
are outstanding warrants against the driver, and inspecting the
automobile's registration and proof of insurance.”),
quoting Caballes at 408. “‘“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.”’” Batchili at ¶ 12, quoting State v.
Howard, 12th Dist. Preble Nos. CA2006-02-002 and CA2006-02-
003, 2006-Ohio-5656, ¶ 15, quoting State v. Carlson, 102 Ohio
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App.3d 585, 598-599, 657 N.E.2d 591 (9th Dist.1995).
Lawler at ¶ 14. Lawler noted that a canine sniff is not a typical action taken in an
ordinary stop because it does not have “the same close connection to roadway safety
as the ordinary inquiries” and is not a part of an officer’s traffic mission. Id. at ¶ 15
quoting Rodriguez, supra. An officer is permitted to conduct a canine sniff of a
vehicle during a traffic stop without reasonable suspicion of additional illegal
activity as long as it is completed before the traffic stop would normally end. Lawler
at ¶ 15. However, if the stop is extended to conduct a canine sniff, the officer must
have reasonable suspicion based upon additional facts to believe that the vehicle
contains drugs in order to detain the driver for the extra time it takes for the canine
to arrive. Id. at ¶ 16. See State v. Elliott, 7th Dist. Mahoning No. 11 MA 182, 2012-
Ohio-3350, ¶ 23; Batchili, supra at ¶ 15 (holding that the stop may be extended
beyond the normal time if additional facts are found during the stop to give rise to
a reasonable, articulable suspicion of criminal activity). The analysis of whether
there is reasonable and articulable suspicion is based upon the collection of factors,
not on a single individual factor. Lawler at 16.
{¶13} When reviewing the factors presented by the officer in Lawler, the trial
court noted that the stop was for a minor traffic offense, but that the trooper learned
that the driver’s license had been suspended and that the vehicle had been loaned to
the defendant. Id. at ¶ 17. The trial court noted that the stop went on for
approximately 28 minutes before the drug dog arrived on the scene. Id. This Court
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noted in its review that the trooper had testified that the driver and defendant reacted
oddly to the stop by the driver throwing his head back against the seat and only
rolling the window down part way. Id. at ¶ 19. The trooper also indicated that the
driver and the defendant appeared to be lying to him about why they were using the
vehicle. Id. The trooper noted that both the driver and the defendant were “staring
straight ahead and sitting upright and rigid” Id. at ¶ 20. This behavior was why the
trooper called for the canine. Id. The State argued on appeal that based upon the
trooper’s testimony about the additional factors, the extension of the traffic stop was
permissible. Id. at ¶ 29. This Court disagreed. Id. at ¶ 30.
{¶14} This Court held that although these actions and learning that the driver
lacked a valid license would provide some justification for extending the stop, the
extension was only permitted “for such time as would have been reasonably
necessary to investigate these additional potential infractions.” Id. at ¶ 31. See
United States v. Winters, 782 F.3d 289, 296 (6th Cir.2015) (holding the extension of
a traffic stop based on new reasonable suspicion is limited in the scope and duration
to what is reasonable). While the stop may be extended, the officer still is required
to diligently pursue the investigation to either confirm or dispel the suspicions
quickly.” Lawler at ¶ 31. After reviewing the record in Lawler, this Court held that
the trooper did not diligently pursue his investigation because by his own admission,
he did nothing addition to further the investigation, instead just waiting for the
canine to arrive. Id. at ¶ 32. This Court determined that the canine sniff did not
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occur within the reasonable time necessary to complete a normal traffic citation. Id.
at ¶ 33 (trooper testified normal stop would ideally be 3-4 minutes). See In re
$75,000.00 U.S. Currency, 8th Dist. Cuyahoga, 2017-Ohio-9158 (the longest a
traffic stop should take is 15 minutes); State v. Eggleston, 11th Dist. Trumbull N.
2014-T-0068, 2015-Ohio-958, 29 N.E.3d 23 (typical traffic stop takes 8-10 minutes
when a citation is issued); and State v. Ramos, 155 Ohio App.3d 396, 2003-Ohio-
6535, 801 N.E.2d 523 (2d Dist.) (holding that even assuming that 30 minutes was
justified for a stop, the officer must still diligently be writing the citation and not
just waiting for the canine to arrive). Since the trooper was not diligently finishing
the traffic stop and his “primary motivation for extending the traffic stop may have
been to allow for an exterior sniff of the [vehicle]”, this Court held that he had
impermissibly extended the stop. Lawler at ¶ 35.
{¶15} This Court then went on to discuss how the stop may still be prolonged
as long as the law enforcement officer has a reasonable articulable suspicion that
the vehicle contains drugs at that time. Id. at ¶ 36. Although we are to look at the
factors as a whole when evaluating whether there was a reasonable and articulable
suspicion of drug activities, “it is appropriate to assess the extent to which a given
factor is [individually] indicative of criminal activity.” Id. at ¶ 37 citing United
States v. Bowman, 884 F.3d 200 (4th Cir.2018) and United States v. Stepp, 680 F.3d
651 (6th Cir.2012). In Lawler, this court reviewed the factors and found that
although the defendant and the driver may have shown odd behavior that indicated
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nervousness, there were no signs of heightened nervousness, no indication of bizarre
or implausible explanations for what they were doing, and nothing in sight that
would indicate criminal activity. Lawler, supra. This Court then affirmed the
judgment of the trial court granting the motion to suppress.
{¶16} In this case, there is no question that the primary purpose of this stop
was to obtain a canine sniff of the vehicle in order to search the vehicle for drugs.
Greathouse testified that this was the purpose. Tr. 34. Pennington testified that
after Skaggs denied his request to search the vehicle, he returned to the patrol car to
call for the canine unit and to write the warning citation. Tr. 74. The undisputed
evidence was that the warning citation was never issued and that Pennington and
the other officer who was in his patrol car and writing the citation stopped writing
it when they learned that the dog would be delayed. Pennington admitted that he
was not proceeding with the investigation into the basis for the stop, which allegedly
was Skaggs crossing the stop bar and using his phone while driving. Pennington
was frustrated that the dog did not appear for approximately 23 minutes. Even the
trial court conceded that if this had been a “routine traffic stop and not a drug
investigation * * * [t]he evidence would be excluded, because through probably
nobody’s real fault, the stop was extended longer than necessary.” Tr. 103. The
trial court noted that this matter could have been concluded in 10-15 minutes at
most. Tr. 104. Thus, it is clear that Skaggs was detained beyond the time reasonably
required to complete the traffic-related investigation.
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{¶17} Since the stop was extended past the permissible time, the question
then becomes whether the officer had a reasonable, articulable suspicion that the
vehicle contained drugs or that the occupant was engaged in a drug-related activity
at that time. Lawler at ¶ 36. This Court notes that the question is about the criminal
activity at that time, not just whether the officer has a reasonable, articulable
suspicion that the driver may be a criminal at some other time. See State v. Hawkins,
12th Dist. Fayette No. CA2017-07-013, 2018-Ohio-1983, ¶ 16 (traffic stop is
permissible if based upon reasonable, articulable suspicion that criminal activity is
imminent). As in Lawler, this court needs to look at the factors. There were 4
factors pointed out as the basis for the reasonable articulable suspicion: 1) lying
about using GPS when stopped as an explanation for being on his phone; 2) the fact
that this was a pretextual stop; 3) the shaky arm; and 4) the cash that Skaggs claimed
was for his rent. Like in Lawler, we will look at these factors individually to see
the extent it is indicative of criminal behavior at the time of the stop.
{¶18} The first element was the trial court’s determination that Skaggs was
being dishonest in his claim that he was on his phone using Mapquest. The trial
court determined he was not honest because the trial court did not think a person
who was originally from Bucyrus would need to use Mapquest in town. However,
a review of the video shows that the officer asked Skaggs if he was texting, which
Skaggs denied and said he was using Mapquest. The fact that one may not admit to
texting while driving, which could result in an additional ticket, does not necessarily
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indicate they are engaged in criminal activity at that time. Additionally, just because
a person may be familiar with an area does not mean that they may not need
directions to find a specific location. Familiarity does not equal knowing where
everything is located without help, thus the explanation was reasonable and standing
alone is not necessarily indicative that any criminal activity was occurring.
{¶19} The second element was that this was a pretextual stop. All of the
testimony was that the officers were looking for a reason to stop him so that they
could search the car. This was based upon prior tips they had received that indicated
Skaggs was dealing drugs. However, these tips were not for the relevant time
period, but rather for past situations. The closest tip in time was from a month
before the stop. Two weeks before the stop, Greathouse testified that he saw a
motorcycle pull up to the home of Skaggs’ girlfriend, enter the house, and leave
quickly, which he thought was indicative of drug activity. However, this was
nothing more than supposition as the motorcycle was not stopped and no
investigation was completed regarding that incident. Greathouse even admitted that
the only involvement he personally knew of regarding Skaggs before the stop was
that in the two weeks prior to the stop, Skaggs was seen entering a home frequented
by one of Greathouse’s targets. Tr. 29-30. Greathouse testified that on the day of
the stop, he saw Skaggs go into a house that was owned by a relative of Skaggs.
There was no testimony whether anyone else was home at the time or that anyone
else came to the home while Skaggs was there. Greathouse testified that Skaggs
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was not there for very long, but Greathouse admitted that he did not observe Skaggs
carrying anything in or out of the home. Greathouse’s explanation for suspecting
that Skaggs might have drugs in the car was that Skaggs appeared to be in a hurry.
Being in a hurry can describe many people on a daily basis. It alone is not
necessarily indicative of criminal activity. Even the trial court noted that before the
stop “there was nothing extra” to provide reasonable, articulable suspicion for
extending the stop. Tr. 108.
{¶20} The third factor was that Skaggs’ arm was shaking. Pennington stated
on the video that the reason he conducted the pat down search was because of the
shaky arm. Skaggs’ response was that it always shakes. Pennington testified that
Skaggs’ told him it was shaking because it was cold from brushing snow off the
front windshield. Pennington testified that he was suspicious of that explanation
because the jacket was not wet.1 However, the trial court even noted that since it
was only one arm that was shaking, it could be the result of nerve damage. Tr. 108.
Merely having a shaky arm is not alone necessarily indicative that any criminal
activity was occurring.
{¶21} The fourth factor the trial court noted was the cash in Skaggs’ pocket.
The trial court acknowledged that the amount of cash was not suspicious. Tr. 111.
However, the trial court noted that Skaggs “said it was for his rent and when he
1
A review of the video shows that Skaggs appeared to be wearing a leather coat. This would make it very
easy to brush the snow off before it melted on the surface and soaked into the coat leaving a wet spot.
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didn’t know what his rent was, that again I believe is suspicious.” Tr. 111. A review
of the video and the testimony of Pennington shows that Skaggs was never asked
what the amount of his rent was. Pennington testified that he asked Skaggs why he
had the money and Skaggs said it was to pay his rent. Tr. 74. Then Pennington
asked him how much money was there and Skaggs said he did not know. Tr. 75.
Although Pennington testified that in his experience people with an “abundancy of
cash” that don’t know how much they have are likely to be involved in drugs, the
trial court found the amount of cash to not be suspicious, so it would not qualify as
an “abundancy” of cash. The mere fact that a person does not know exactly how
much cash is in their pocket or wallet at a given time is not alone indicative of
criminal activity.
{¶22} The trial court found that although the evidence in this case was not
“overwhelming” that the officers had reasonable articulable suspicion, the trial court
believed that the State had met its burden. Based upon that finding the trial court
denied the motion to suppress. As discussed above, none of the individual factors
taken alone would provide reasonable, articulable suspicion for delaying the traffic
stop. However, when taken as a whole, they could be found to provide a reasonable,
articulable suspicion. See State v. Batchili, supra at ¶ 17, (the totality of the
circumstances must be evaluated to determine whether there is reasonable and
articulable suspicion to prolong a traffic stop). The trial court made such a
determination in this case after it made findings of fact based on the evidence before
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it. This Court is required to accept the findings made by the trial court and may not
reverse merely because we may have reached a different conclusion. Thus, we do
not find that the trial court erred in denying the motion to suppress. The assignments
of error are overruled.
{¶23} Having found no error in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Crawford County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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