State v. Alexander-Lindsey ( 2016 )

[Cite as State v. Alexander-Lindsey, 2016-Ohio-3033.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
: Case No. 15CA11
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
TEGAN C. ALEXANDER- :
LINDSEY, :
Defendant-Appellant. : Released: 05/11/16
_____________________________________________________________
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey
M. Smith, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶ 1} Tegan C. Alexander-Lindsey appeals the court’s denial of her
motion to suppress evidence in the Lawrence County Court of Common
Pleas. On appeal, Ms. Alexander-Lindsey asserts her right to be free from
unreasonable searches and seizures, pursuant to the Fourth and Fourteenth
Amendments of the United States Constitution, was violated when she was
stopped in Lawrence County, Ohio, in October 2014. Thus, the trial court
erred when it overruled her motion to suppress evidence discovered when
she was stopped and detained. Upon review, we find no merit to Appellant’s
Lawrence App. No. 15CA11 2
argument. The trial court did not err. Accordingly, we overrule Appellant’s
sole assignment of error and affirm the judgment of the trial court.
FACTS
{¶ 2} On December 16, 2014, Appellant was indicted on five counts:
(1) aggravated trafficking in drugs, R.C. 2925.03(A)(2)(C)(1)(d), a felony of
the second degree; (2) possession of drugs, R.C. 2925.11(A)(C)(1)(c), a
felony of the second degree; (3) tampering with evidence, R.C.
2921.12(A)(1)(B), a felony of the third degree; (4) furnishing false
information to an officer issuing a traffic ticket, R.C. 4513.361(B) a
misdemeanor of the first degree; and (5) possession of marijuana, R.C.
2925.11(A)(C0(3)(a), a minor misdemeanor. The indictment arose from
events which occurred on or about October 30, 2014, when Appellant made
contact with Trooper Drew Kuehne of the Ohio State Highway Patrol. On
that date, Trooper Kuehne initiated a lawful traffic stop for a marked lanes
violation on U.S. Route 52 in Lawrence County, Ohio. During the stop and
detention, troopers confiscated 363 oxycodone pills and 2 grams of
marijuana.
{¶ 3} Appellant was arraigned on December 17, 2014. The parties
engaged in discovery. On February 19, 2015, Appellant filed a motion to
suppress evidence. On February 25, 2015, the trial court heard the motion.
Lawrence App. No. 15CA11 3
The State presented Trooper Kuehne’s testimony and a video recording of
the stop.
{¶ 4} At the suppression hearing, Trooper Kuehne testified he had
been employed as a trooper for just less than 2 years. He was assigned to the
criminal patrol unit and worked as a K-9 handler of “Rocky.” The purpose
of the unit is drug interdiction. Trooper Kuehne testified as to his training
and certification with Rocky. Trooper Kuehne’s additional relevant
testimony will be set forth below. A summary of the events captured on the
video will also be set forth.
{¶ 5} After hearing the arguments of counsel, the trial court overruled
Appellant’s motion by entry dated February 27, 2015. On April 22, 2015,
Appellant entered no contest pleas to all counts of the indictment. She was
sentenced to a term of imprisonment. The judgment from which she appeals
was entered on May 1, 2015. The appeal was timely filed.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT VIOLATED THE DEFENDANT-
APPELLANT’S CONSTITUTIONAL RIGHT TO BE FREE
FROM UNREASONABLE SEARCHES AND SEIZURES IN
VIOLATION OF THE DEFENDANT-APPELLANT’S
FOURTH AND FOURTEENTH AMENDMENT RIGHTS AS
GUARANTEED IN THE UNITED STATES
CONSTITUTION.”
A. STANDARD OF REVIEW
Lawrence App. No. 15CA11 4
{¶ 6} Our review of a trial court's decision on a motion to suppress
presents a mixed question of law and fact. State v. Gurley, 4th Dist. Scioto
No. 14CA3646, 2015-Ohio-5361, ¶ 16. See State v. Roberts, 110 Ohio St.3d
71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 100, citing State v. Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. When
considering a motion to suppress, the trial court acts as the trier of fact and is
in the best position to resolve factual questions and evaluate witness
credibility. Id. Accordingly, we defer to the trial court's findings of fact if
they are supported by competent, credible evidence. State v. Landrum, 137
Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist. 2000). Accepting those
facts as true, we must independently determine whether the trial court
reached the correct legal conclusion in analyzing the facts of the case.
Roberts at ¶ 100, citing Burnside at ¶ 8.
B. LEGAL 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. Crocker, 2015-Ohio-2528, 38 N.E.3d 369, ¶ 61,
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 exclusion of the evidence obtained from the
Lawrence App. No. 15CA11 5
unreasonable search and seizure at trial.” Id.; 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
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. “ ‘To conduct an
investigatory stop, the officer must be able to point to specific and
articulable facts which, taken together with rational inferences derived from
Lawrence App. No. 15CA11 6
those facts, give rise to a reasonable suspicion that the individual is engaged
or about to be engaged in criminal activity.’ ” Id., quoting State v. Kilbarger,
4th Dist. Hocking No. 11CA23, 2012-Ohio-1521, ¶ 15. “The propriety of an
investigative stop by a police officer must be viewed in light of the totality
of the surrounding circumstances.” Id., quoting State v. Freeman, 64 Ohio
St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.
The Initial Traffic Stop
{¶ 9} Since Appellant challenges each “step” of her detention and
subsequent search and seizure, we begin our analysis with Trooper Kuehne’s
stop. At the suppression hearing, Trooper Kuehne testified on October 30,
2014, he was on patrol in a marked cruiser and in uniform when he came in
contact with Appellant. He identified her for the record. Trooper Kuehne
was traveling eastbound on U.S. 52, in the left lane, when he noticed
Appellant’s vehicle cross the yellow line on the left side of the road near
mile post 8. As they continued east, Appellant changed lanes across the
white line on the right side of the road. Trooper Kuehne ran the license plate
and was advised the car was registered to someone from Michigan.
{¶ 10} Trooper Kuehne initiated a traffic stop near mile post 11. He
had a video camera in his patrol car that was recording the traffic stop;
Lawrence App. No. 15CA11 7
however, the camera wasn’t activated in time to catch the initial violation.1
At this point, a CD of the recording of the traffic stop was offered as State’s
Exhibit 1, and accepted into evidence without objection. The video shows
the car was pulled over about 2 minutes after the video began.
{¶ 11} At the time Trooper Kuehne initiated the stop of Appellant’s
vehicle, he had observed a marked lanes violation. State v. Debrossard, 4th
Dist. Ross No. 13CA3395, 2015-Ohio-1054, ¶ 13. A police officer may stop
the driver of a vehicle after observing a de minimis violation of traffic laws.
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. A marked-lanes traffic violation suffices. See, Crocker,
supra, at ¶ 6; State v. Harlow, 4th Dist. Washington No. 13CA29, 2014-
Ohio-864, ¶ 14; R.C. 4511.33. Although the initial violation was not
captured on the dashboard video camera recording, the trial court was free to
believe Trooper Kuehne’s testimony. His testimony, combined with the
video recording, demonstrated his reasonable articulable suspicion that
1
The trooper testified when he flips on the lights to activate the camera, the recording device backs up a
certain interval of time. After the lights are activated, his belt microphone and a microphone inside the
patrol car activate.
Lawrence App. No. 15CA11 8
Appellant committed a traffic violation. Therefore, the trial court found, as
do we, that the traffic stop was constitutionally valid.
The Scope and Duration of the Stop
{¶ 12} Appellant’s counsel argued that the continuation of the stop
itself and the extended search was racial profiling. He argued the video
shows the trooper saying at approximately 11 minutes and 20 seconds into
the stop, “I’m concerned because you all are coming down here from
Detroit.” Counsel argued that was the real reason Trooper Kuehne expanded
the stop into a detention and search.2
{¶ 13} “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.’ ” Crocker, supra, at 63,
quoting State v. Jones, 4th Dist. Washington No. 03CA61, 2004-Ohio-7280,
2004 WL 3090198, ¶ 22. “ ‘When 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. Houston, 4th Dist. Scioto No. 12CA3472, 2013-
2
Counsel brought up an argument, not in his motion, that the officers held Appellant for an extended
period time, which caused her to urinate and in doing so, incriminate herself by pushing the drugs outside
of her body. Counsel does not assert this position on appeal.
Lawrence App. No. 15CA11 9
Ohio-686, 2013 WL 772800, ¶ 25, quoting State v. Aguirre, 4th Dist. Gallia
No. 03CA5, 2003-Ohio-4909, at ¶ 36, citing State v. Carlson, 102 Ohio
App.3d 585, 598, 657 N.E.2d 591 (9th Dist. 1995). “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.” Aguirre at ¶ 36, citing State v. Cook, 65 Ohio St.3d 516, 521-
522, 605 N.E.2d 70 (1992); United States v. Sharpe, 470 U.S. 675, 105 S.Ct.
1568, (1985).
{¶ 14} Officers can order a driver and a passenger to exit the vehicle,
even absent any additional suspicion of a criminal violation. State v. Forest,
146 Ohio Misc.1, 2008-Ohio-1547, 884 N.E. 2d 1147 (C.P.), ¶ 8, citing
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977); Maryland v.
Wilson, 519 U.S. 408, 117 S.Ct. 882, (1997). Appellant contends that once
she was stopped and ordered to exit the vehicle, Trooper Kuehne lacked the
requisite suspicion to justify a pat-down for weapons. Appellant argues the
trooper’s testimony that Appellant and her passenger were “making [him]
nervous” did not justify a search for weapons. Appellant argues the
movement of her hands could have been for a noncriminal purpose and the
Lawrence App. No. 15CA11 10
form-fitting yoga pants she was wearing would have revealed an obvious
weapon.
{¶ 15} Trooper Kuehne’s suppression hearing testimony was that
when he approached the passenger’s side of the vehicle, he observed two
females in the front seat. He advised Appellant, the driver, of the traffic
violation. Immediately he noticed both women were very nervous. He
noticed the Appellant’s heart beating from the pulse in the front of her
chest/neck area. It appeared she was breathing heavy. Neither woman made
eye contact with him.
{¶ 16} Trooper Kuehne asked for the license and registration. When
Appellant handed them to him, he noticed her right hand was shaking. Her
voice trembled. Trooper Kuehne had difficulty ascertaining the ownership
of the vehicle.
{¶ 17} As Trooper Kuehne spoke to Appellant, it appeared her left
hand was moving around the crotch area of her pants. Appellant was
wearing a large jacket or throw, a shirt, and tights or yoga pants. Her
clothing was dark. He shined his light to see what it was she was moving
around the front of her pants, but he couldn’t really see.
{¶ 18} Trooper Kuehne testified he was immediately concerned
because the passenger appeared nervous, which is not something he
Lawrence App. No. 15CA11 11
normally encounters on a routine traffic stop. Both women were from
Michigan. Trooper Kuehne requested Appellant to step out of the vehicle.
{¶ 19} The video demonstrates that when Trooper Kuehne is talking
with the women on the passenger side of the car, about 2.5 minutes into the
conversation, he tells her he is going to have her step out of the car. He then
goes around to the other side. Trooper Kuehne testified he came around to
the driver’s side and opened her door. When he did he noticed her right
hand was moving toward the front of her pants and around her waistband
area.
{¶ 20} The video also shows Appellant trailed behind him and
testified he turned around and allowed her to step in front of him. He then
noticed her left hand was moving towards the front of her body. He asked
what she was reaching for and she said “Nothing.” He then said “I think you
are reaching for something in your pants.” Appellant then advised she was
on her menstrual cycle. Trooper Kuehne testified he didn’t think that was a
valid answer for reaching in her pants during a traffic stop. At this point, the
trooper became concerned for officer safety and requested permission from
Appellant to perform a pat-down search for weapons. We begin by
analyzing whether, at that point, Trooper Kuehne had reasonable suspicion
Lawrence App. No. 15CA11 12
that Appellant was armed and dangerous, in order to justify a Terry pat-
down for weapons.
{¶ 21} Even if a defendant is constitutionally required to step from a
vehicle, law enforcement is not thereby authorized to perform a pat-down
search. State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993); State v.
Vineyard, 2nd Dist. Montgomery No. 22266, 2008-Ohio-204, ¶ 13. In Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, (1968), the United States Supreme Court
recognized that a police officer may make a limited search in order to protect
himself and the public. “ ‘When an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others,’ he may conduct a
limited protected search for concealed weapons. * * * The purpose of this
limited search is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence, and thus the frisk for
weapons might be equally necessary and reasonable, whether or not carrying
a concealed weapon violated any applicable * * * law. So long as the officer
is entitled to make a forcible stop, and has reason to believe that the suspect
is armed and dangerous, he may conduct a weapons search limited in scope
to this protective purpose.” Adams v. Williams, 407 U.S. 143, 145-146, 92
S.Ct. 1921, (1972), quoting Terry, 392 U.S. at 24, 30, 88 S.Ct. 1868.
Lawrence App. No. 15CA11 13
{¶ 22} Similarly, the Supreme Court of Ohio has pointed out that
“ ‘[a] search for weapons in the absence of probable cause to arrest,
however, must, like any other search, be strictly circumscribed by the
exigencies which justify its initiation. * * * Thus, it must be limited to that
which is necessary for the discovery of weapons which might be used to
harm the officer or others nearby * * *.’ ” Forest, supra, at ¶ 11, quoting
State v. Evans, 67 Ohio St.3d at 414, 618 N.E.2d 162, quoting Terry, 392
U.S. at 25-26, 88 S.Ct. 1868. This appellate court has previously recognized
that “ ‘police officers face an inordinate risk when they approach an
automobile during a traffic stop.’ ” State v. Hansard, 4th Dist. Scioto No.
07CA3177, 2008-Ohio-3349, ¶ 26; citing State v. Williams, 94 Ohio App.3d
538, 541 N.E.2d 239 (8th Dist. 1994). Moreover, Ohio courts have long
recognized that persons who engage in illegal drug activities are often armed
with a weapon. Hansard, supra, citing Evans, supra, at 413. “[T]he right to
frisk is virtually automatic when individuals are suspected of committing a
crime, like drug trafficking, for which they are likely to be armed.” Id.;
citing State v. Williams, 51 Ohio St.3d 58, 554 N.E.2d 108 (1990) and
United States v. Ceballos (E.D.N.Y.1989), 719 F.Supp. 119, 126 (“The
nature of narcotics trafficking today reasonably warrants the conclusion that
a suspected dealer may be armed and dangerous.”).
Lawrence App. No. 15CA11 14
{¶ 23} Trooper Kuehne testified when he initially approached the
vehicle, both women were “nervous.” Trooper Kuehne admitted when he
pulls people over for a traffic stop, they are slightly nervous. While “[some]
degree of nervousness during interactions with police officers is not
uncommon, * * * nervousness can be a factor to weigh in determining
reasonable suspicion.” State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670,
¶ 17, quoting State v. Jennings, 2013-Ohio-2736, 993 N.E.2d 858, ¶ 13.
Trooper Kuehne further testified he could see the pulse in Appellant’s neck
and that she was breathing heavily. We view these as additional facts
supporting the broad statement that she was nervous. Trooper Kuehne’s
interaction with Appellant at this point was in the vehicle and was not
captured on the video.
{¶ 24} Trooper Kuehne also testified to Appellant’s “furtive”
movements while she was still in the vehicle, hands along the waistband of
her pants and moving her left hand along her crotch area. He acknowledged
that he shined the light on her but could not see anything, due to her dark-
colored clothing. Again, these movements were not captured on the video.
When Appellant exited the vehicle, Trooper Kuehne testified it took her a
long time to get out and when she did, she turned her body away from him
and kept tugging at her pants. Trooper Kuehne told Appellant she was
Lawrence App. No. 15CA11 15
actually making him nervous. A defendant’s movements, such as furtive
gestures, can be considered in analyzing whether a police officer had
reasonable suspicion. Simmons, supra, citing State v. Bobo, 37 Ohio St.3d
177, 524 N.E.2d 488, 489. While a furtive gesture, standing alone, does not
create probable cause for a search, reliance on such a clandestine gesture
when other facts indicating a reasonable suspicion of criminal activity are
also present is sufficient for a Terry stop. Id. Simmons, supra.{¶ 25} Then, Trooper Kuehne testified at the side of the vehicle, he
asked Appellant if she had a weapon and she responded “No.” He asked if
he could pat her down to make sure she had no weapons and she refused.
Appellant advised she thought he needed a female to do a pat-down search.
During this time, Appellant was still acting nervous. She also kept trying to
turn so he could not see the front of her body. He testified he asked her to
stop turning away and stop reaching in her pants.
{¶ 26} Based on the above, we find Trooper Kuehne had reasonable
suspicion that Appellant was armed, justifying a pat-down search for
weapons. Trooper Kuehne is assigned to the drug interdiction unit and had
other factors to consider. Appellant was unable to give him clear
information as to the ownership of the vehicle when she was initially
questioned. Trooper Kuehne’s testimony is that while she was still inside
Lawrence App. No. 15CA11 16
the car, her hands were moving along her waistband and along the crotch
area. The fact that he specified the crotch area has significance in that we
have seen various cases wherein a female drug mule concealed drugs in the
vagina.3 And, although her pants were tight-fitting yoga pants, their dark
color could obscure the outline or bulge of a weapon. He testified he was
unable to see all of her dark pants.
{¶ 27} Furthermore, Trooper Kuehne advised the passenger, later in
the video, that they were traveling on a major drug route between Detroit
and Huntington, West Virginia. It has been held that “[t]he reputation of an
area for criminal activity is an articulable fact upon which a police officer
may legitimately rely * * *.” Simmons, supra, at ¶ 17, quoting Bobo, supra.
As referenced above in Hansard, when individuals are suspected of drug
trafficking, they are likely to be armed.
{¶ 28} Given the previously recognized correlation between weapons
and drug activity, given Trooper Kuehne’s knowledge of the highway as
being a major drug route, and given his observations while interacting with
Appellant both inside and outside of the vehicle, we find under the totality of
the circumstances that Trooper Kuehne had reasonable suspicion that
3
A drug “mule” is a driver, courier, or middle person who transports drugs for another. See State v.
Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 31; State v. Rodriguez, 6th Dist. Wood No.
WD-08-013, 2009-Ohio-4280, at ¶ 21; State v. Gurley, 4th Dist. Scioto No. 14CA3646, 2015-Ohio-5361, --
N.E.-- (Dec. 17, 2015), ¶ 3; State v. Barry, 2015-Ohio-5499, - -N.E.3d - - (Dec. 30, 2015), ¶ 5; State v.
Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 53.
Lawrence App. No. 15CA11 17
Appellant was likely to be armed. The relatively brief interaction captured
on the video causes this to be a close question. This is not a case where
there are additional indicators such as the odor of marijuana emanating from
the vehicle, the presence of multiple cell phones, or the overwhelming scent
of air fresheners. However, we decline to second-guess Trooper Kuehne’s
testimony as to Appellant’s actions not recorded on video. We find Trooper
Kuehne was justified in requesting a limited Terry pat-down during the brief
time period of interaction with Appellant, for the purpose of discovering
weapons and officer safety.4
Continued Detention
{¶ 29} Appellant next argues if the search was justified on the basis
of Trooper Kuehne’s alleged nervousness, the search of Appellant’s clothing
and seizure of drugs was unlawful because the officers unreasonably
prolonged her detention and exceeded the scope of a protective frisk. “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. Shook, 4th Dist. Pike No.
13CA841, 2014-Ohio-3403, at ¶ 29, quoting State v. Rose, 4th Dist.
4
Officers do not have to request consent to perform a Terry pat-down, although the case law reveals that
many times, they do in fact make the request.
Lawrence App. No. 15CA11 18
Highland No. 06CA5, 2006-Ohio-5292, ¶ 17, citing State v. Robinette, 80
Ohio St.3d 234, 240, 685 N.E.2d 762 (1997).
{¶ 30} Trooper Kuehne testified he asked Appellant to move to the
front of the vehicle and again asked if he could conduct a pat-down search.
Again she refused. He still observed all the nervous behaviors. At this
point, Trooper Mark Dunn arrived, contacted dispatch, and asked for
criminal history on the women. Trooper Kuehne inquired as to the purpose
of the women’s travel.
{¶ 31} Appellant advised she was coming from Detroit on her way to
Charleston, West Virginia, to stay with her uncle. She advised her brother
was incarcerated somewhere in the area and she was going to try to get
information about his situation. At this point the troopers switched places
and Trooper Kuehne spoke to the passenger.
{¶ 32} Appellant’s passenger was Marcia Monday. Monday advised
they were coming from Detroit to stay with Appellant’s uncle for the
weekend. She only said she was “hanging out” and “along for the ride.”
Her explanation for the purpose of their trip did not include anything about
Lawrence App. No. 15CA11 19
Appellant’s brother. Trooper Kuehne pointed out that the women were
traveling on a “major drug route.”5
{¶ 33} “In determining whether a detention is reasonable, the court
must look at the totality of the circumstances.” Debrossard, supra, at ¶ 21,
quoting, 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, ¶ 23; United States v. Arvizu, 534 U.S. 266,
273, 122 S.Ct. 744 (2014). 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.
690, 699, 116 S.Ct. 1657 (1996).
{¶ 34} 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
5
Trooper Kuehne testified both women were Mirandized before they were questioned. The video
recording is difficult to hear while the trooper is speaking with Ms. Monday. Our review indicates
Appellant had been Mirandized prior to questioning about the trip.
Lawrence App. No. 15CA11 20
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.”
***
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.’ ” Shook, supra, Rose at ¶ 17, quoting
Robinette at 241.
Moreover, “[r]ecognizing that ‘detention, not questioning, is the evil’ at
issue, * * * so long as the traffic stop is valid, ‘any questioning 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.’ ” Shook, supra, at ¶ 30, quoting 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).
{¶ 35} In our view, the totality of the circumstances supports Trooper
Kuehne’s continued questioning and detention of Appellant. Both women,
especially Appellant, demonstrated extreme nervousness. Appellant, in
particular, made furtive movements inside and outside of the vehicle. She
was unable to explain the ownership of the vehicle. Continued questioning
of the women elicited inconsistent stories regarding the purpose of their trip
Lawrence App. No. 15CA11 21
from Detroit to West Virginia. Trooper Kuehne, assigned to the drug
interdiction unit, held experience and training which allowed him to make
inference and deductions from the cumulative information available to him.
He recognized the women were traveling a major drug route. Based on our
review of the video and Trooper Kuehne’s suppression testimony, we find
Appellant’s continued to detention for questioning was lawful.
The Canine Walkaround and Sniff
{¶ 36} Appellant argues Trooper Kuehne prolonged the traffic stop in
order to deploy the canine unit. 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. Forest, supra, at
¶ 18; 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
WL 3090198, ¶ 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.
During a continued, lawful detention of a vehicle, as discussed above,
Lawrence App. No. 15CA11 22
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. Forest, supra, at ¶ 22; See 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 effectuate the original purpose of the stop.” Id. See also,
United States v. Place, 462 U.S. 696, 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).
{¶ 37} After obtaining conflicting information from the women,
Trooper Kuehne testified he ordered Appellant back inside her car and
deployed his K-9, Rocky, to sniff the vehicle. Trooper Kuehne’s testimony
and the video recording reveals that on the bottom door seam of the front
passenger door, Rocky’s behavior changed. He alerted, consistent with
recognition of the presence of narcotics.
Lawrence App. No. 15CA11 23
{¶ 38} Trooper Kuehne is a canine handler. Rocky was with him in
his cruiser. There was no delay in conveying the dog to the location.
Trooper Kuehne deployed the dog immediately after receiving, in addition to
all the other suspicious behaviors and factors previously discussed,
conflicting information regarding the purpose of the trip. The video reveals
that within a few seconds Rocky alerted on the passenger side of the vehicle.
{¶ 39} Again, based on our review of the video camera recording and
Trooper Kuehne’s testimony, we find Appellant’s detention was not
prolonged. Trooper Kuehne deployed Rocky approximately 22 minutes into
the stop, after the women gave inconsistent stories. We find Appellant’s
vehicle was lawfully detained at the time Trooper Kuehne deployed the
canine.
The Search
{¶ 40} Appellant asserts the seizure of the drugs here was not
justified under the “plain-feel” doctrine. Appellant argues the officers
manipulated the bulge and unlawfully extended to pat-down beyond the
scope of a permissible search for weapons. We disagree.
{¶ 41} Trooper Kuehne testified Rocky quickly alerted to the
presence of drugs and, after securing him, Trooper Kuehne asked Appellant
to again step out of the vehicle and have a seat in his patrol car. He advised
Lawrence App. No. 15CA11 24
her he would have to conduct a pat-down search because of the connection
between drugs and weapons. He told her how to stand, with her hands
straight out to the side. Every time he tried to start the pat-down, Appellant
would bring her hands down as if guarding. Then Appellant became frantic
and advised she was scared and “peeing herself.” Trooper Kuehne and
Appellant walked to open the trunk of her car to get a towel. While at the
trunk, Trooper Kuehne was startled by Appellant and thereafter advised he
needed to begin the pat-down search. The video supports the trooper’s
testimony.
{¶ 42} Trooper Kuehne testified when he began to perform the pat-
down, Appellant moved her hands again to the front of her pants. Trooper
Kuehne grabbed her wrists and tried to handcuff her while she moved
towards the guardrail. He testified her other hand was still inside her pants.
Trooper Dunn assisted Trooper Kuehne and Appellant resisted. The
troopers took Appellant to the ground to handcuff her and stood her up
again. The video demonstrates scuffling with Appellant which took place, at
times, completely off camera.
{¶ 43} The video recording reveals, and Trooper Kuehne testified,
that Trooper Dunn said he could “see something” in the back of Appellant’s
pants. Trooper Kuehne testified it was a large bulge in the back of her pants
Lawrence App. No. 15CA11 25
which appeared to be pills in packaging material. At first Appellant denied
having anything. Trooper Kuehne requested she remove the bulge. Trooper
Kuehne testified Appellant reached into her pants for an unreasonable
amount of time and he realized she wasn’t removing anything. He grabbed
her wrist and pulled her hand out. Again, although some of the conversation
is heard on the video camera, it is difficult to see what is occurring. Trooper
Kuehne testified Appellant had long fingernails. Eventually she pulled out a
broken latex condom. Immediately blue pills, oxycodone, were scattered on
the ground.
{¶ 44} Trooper Kuehne testified by this time, other troopers had
arrived. He called the patrol post, advised a female officer of the situation,
and Appellant and her passenger were eventually transported to the local
post where a female assisted with obtaining the contraband. Ultimately 348
blue oxycodone tablets and 15 green oxycodone tablets were confiscated,
along with a baggie of marijuana, approximately 2 grams, which the
passenger had in her bra.
{¶ 45} Although Terry limits the scope of the search to weapons, the
discovery of other contraband during a lawful Terry search will not
necessarily preclude its admissibility. In Minnesota v. Dickerson, 508 U.S.
366, 113 S.Ct. 2130 (1993), the United States Supreme Court adopted the
Lawrence App. No. 15CA11 26
“plain feel” doctrine as an extension of the “plain view” doctrine. The
Supreme Court stated: “If a police officer lawfully pats down a suspect's
outer clothing and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect's privacy
beyond that already authorized by the officer's search for weapons; if the
object is contraband, its warrantless seizure would be justified by the same
practical considerations that inhere (sic) in the plain view context.” Id. at
375376. If the illegal nature of the suspicious object is not immediately
apparent, police are not permitted to continue touching, feeling or
manipulating the object to identify its nature. Id.
{¶ 46} In the case sub judice, the video recording demonstrates that
Appellant did begin to urinate, as testified to by Trooper Kuehne.
Thereafter, as he started to handcuff Appellant, she was not cooperating and
matters escalated into a struggle. Apparently the bulge in Appellant’s pants
loosened or moved after she urinated. When the officer stood her up after
the struggle, the bulge was apparent. The video recording demonstrates that
Trooper Kuehne repeatedly told her to remove the bulge and that she agreed
to. However, Trooper Kuehne suspected she was attempting to tamper or
damage the evidence in the bulge. It does not appear that the troopers
touched or manipulated the bulge when they first viewed it. However,
Lawrence App. No. 15CA11 27
Trooper Kuehne testified he grabbed her wrist when it appeared she was
trying to tamper with the evidence. At that point, Appellant caused the pills
to fall to the ground.
{¶ 47} Trooper Kuehne did not actually perform a pat-down which
led to confiscation of the pills. Appellant, while being placed in handcuffs,
caused the object to come into the troopers’ view. Trooper Kuehne testified
the bulge appeared to be pills in packaging material. The object was
immediately apparent and we find its warrantless seizure was justified as
being in plain view.
{¶ 48} For the foregoing reasons, we find the trial court did not err
when it overruled Appellant’s motion to suppress. As such, we find no merit
to Appellant’s sole assignment of error which is hereby overruled. We
affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Lawrence App. No. 15CA11 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 Lawrence 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 in Judgment Only.
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.