State v. Chambers

[Cite as State v. Chambers, 2011-Ohio-1305.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO, CASE NO. 5-10-29
PLAINTIFF-APPELLEE,
v.
ISHMIAL K. CHAMBERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009-CR-0217
Judgment Affirmed
Date of Decision: March 21, 2011
APPEARANCES:
Scott B. Johnson for Appellant
Alex K. Treece for Appellee
Case No. 5-10-29
PRESTON, J.
{¶1} Defendant-appellant, Ishmial K. Chambers (hereinafter “Chambers”),
appeals the Hancock County Court of Common Pleas’ decision overruling his
motion to suppress evidence seized as the result of a traffic stop. We affirm.
{¶2} On October 19, 2009, Trooper Kurt Beidelschies of the Ohio State
Highway Patrol stopped Chambers on southbound U.S. Interstate 75 (“I-75”)
following a probable violation of R.C. 4511.33. (June 2, 2010 Tr. at 8-12). A
canine from the Hancock County Sheriff’s Office alerted on Chambers’ vehicle,
and a subsequent search of the vehicle’s trunk revealed several bags of marijuana
and a baseball-sized bag of cocaine. (Id. at 17-18).
{¶3} On October 20, 2009, the Hancock County Grand Jury indicted
Chambers on one count of possession of cocaine in violation of R.C. 2925.11(A).
(Doc. No. 1). On October 28, 2009, Chambers pled not guilty and was released on
bond. (Doc. No. 5). A pretrial was scheduled for November 6, 2009. (Id.).
{¶4} On November 6, 2009, the case was continued to allow Chambers
time to file a motion to suppress evidence seized as a result of the traffic stop.
(Doc. No. 10). On December 1, 2009, Chambers filed his motion to suppress
alleging that: (1) there was no probable cause, nor clear articulable facts to stop his
vehicle; (2) there was no probable cause, nor clear articulable facts to justify his
continued detention beyond the time necessary to issue a minor traffic citation; (3)
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there was no factual basis to justify his continued detention while a canine unit
was summoned; and (4) there was no probable cause for the search of his vehicle.
(Doc. No. 12).
{¶5} On June 2, 2010, the trial court held a hearing on the motion and,
afterwards, took the matter under advisement. (Doc. No. 49). On July 16, 2010,
the trial court held a hearing to announce its decision on the motion. (Doc. No.
61). The trial court overruled Chambers’ motion to suppress at the hearing, and
filed its decision noting the same on July 23, 2010. (Id.).
{¶6} On September 13, 2010, Chambers withdrew his previously tendered
plea of not guilty and entered a plea of no contest to the indictment. (Doc. No. 70).
Thereafter, the trial court found Chambers guilty and sentenced him to five (5)
years of incarceration. (Doc. No. 72).
{¶7} On October 1, 2010, Chambers filed a notice of appeal. (Doc. No. 95).
Chambers now appeals raising one assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
SEIZED PURSUANT TO A DE MINIMUS TRAFFIC STOP
WHERE THERE WAS NO PRIOR OR CONCURRENT
EVIDENCE OF CRIMINAL ACTIVITY.
{¶8} In his first assignment of error, Chambers argues that the fact he
slowed his vehicle to fifty-seven miles per hour (57 M.P.H.) in a sixty-five mile-
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per-hour (65 M.P.H.) zone and that he was a person of color did not provide
Trooper Beidelschies with probable cause to stop his vehicle. Additionally,
Chambers argues that Trooper Beidelschies did not have further indicia of
criminal activity to justify his further expansion of the traffic stop, i.e. to request
canine assistance.
{¶9} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of
trier of fact and, as such, is in the best position to evaluate the evidence and the
credibility of witnesses. Id., citing State v. Mills (1992), 62 Ohio St.3d 357, 366,
582 N.E.2d 972.
{¶10} When reviewing a ruling on a motion to suppress, deference is given
to the trial court’s findings of fact so long as they are supported by competent,
credible evidence. Burnside, 2003-Ohio-5372, at ¶8. With respect to the trial
court’s conclusions of law, however, our standard of review is de novo, and we
must decide whether the facts satisfy the applicable legal standard. State v.
McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
{¶11} Trooper Kurt Beidelschies of the Ohio State Highway Patrol, Findlay
Post 32, testified that he was parked in a marked cruiser facing southbound I-75
traffic while working from 11:00 p.m. to 7:00 a.m. on October 19, 2009. (June 2,
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2009 Tr. at 8-10). Trooper Beidelschies testified that he observed Chambers
rapidly slow down to fifty-seven miles per hour (57 M.P.H.) while passing his
parked cruiser traveling southbound on I-75, even though no other traffic was
around Chambers’ vehicle at the time. (Id. at 10). Trooper Beidelschies testified
that he pulled out behind Chambers’ vehicle and observed Chambers driving
extremely close (within a tire’s width) to the solid white edge line. (Id.). Trooper
Beidelschies further testified that Chambers drifted over the white edge line twice
by a tire’s width each time, so he initiated a traffic stop for a marked lanes
violation. (Id. at 10-11).
{¶12} Trooper Beidelschies approached Chambers’ vehicle, informed him
of the reason for the stop, and requested Chambers’ driver’s license, registration,
and proof of insurance. (Id.). Chambers provided Trooper Beidelschies his
license, but produced several rental agreements for the car instead of the
registration. (Id. at 12). Some of the rental agreements had Chambers’ name on
them and others did not, so Trooper Beidelschies requested that Chambers have a
seat in the front of his cruiser to sort through the paperwork. (Id. at 12-13).
Among the several agreements Chambers provided, Trooper Beidelschies located
a rental agreement from Hertz rental service in Patricia Board’s name that listed
Chambers as an additional driver. (Id. at 13). Trooper Beidelschies contacted
dispatch in order to verify the rental agreement. (Id.). Trooper Beidelschies
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testified that Chambers informed him that he had left Owensboro, Kentucky that
day to drive to Detroit, Michigan to drop off his nephew at his grandmother’s
house, and that he was returning to Owensboro, Kentucky. (Id. at 14). Chambers
also told Trooper Beidelschies that he rented the car to drive from Kentucky to
Michigan to drop off his nephew because his car was broken down and had been
overheating. (Id.). Trooper Beidelschies testified that he found this “confusing”
given that the rental agreement covered several days (Oct. 16-20), and Chambers
had expressed to him how extremely expensive it was to rent vehicles. (Id.).
Trooper Beidelschies also testified that he was “confused” why the car was rented
by individuals associated with Chambers long before October 16, 2009. (Id. at 15).
{¶13} Trooper Beidelschies testified that he ran a LEADS check on
Chambers’ driver’s license, and that it can take longer to process an out-of-state
license, such as Chambers’ Kentucky driver’s license. (Id.). Trooper Beidelschies
further testified that he talked with Travar Board, Chambers’ step-son and a
passenger in the vehicle, about their travel. (Id. at 12, 14, 16). Board told Trooper
Beidelschies that he had been in Michigan for about a week for a funeral, and that
his aunt had driven him from Kentucky to Michigan. (Id. at 16). Board told
Trooper Beidelschies that he did not know how Chambers arrived in Michigan.
(Id.). Trooper Beidelschies testified that Board’s story conflicted with Chambers’
story, because Chambers indicated that Board accompanied him from Kentucky to
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Michigan to drop off his nephew. (Id.). Trooper Beidelschies also testified that
Chambers appeared nervous when he was talking with him in the cruiser, and that
Board was even more nervous than Chambers. (Id.). When Board reached his
hand out to retrieve his driver’s license, his hand was visibly shaking and his voice
was shaky, according to Trooper Beidelschies. (Id.). After discovering the two
conflicting stories and witnessing this nervous behavior, Trooper Beidelschies
contacted the Hancock County Sheriff’s Office and requested canine assistance.
(Id. at 17).
{¶14} Deputy Smith and canine, Becky, arrived approximately five (5)
minutes later and alerted on Chambers’ vehicle. (Id. at 17-18). At that point in
time, Trooper Beidelschies explained to Chambers and Board that they were under
investigative detention and placed them in the back seat of his cruiser. (Id. at 18).
Trooper Beidelschies testified that they located numerous bags of marijuana and a
baseball-sized bag of cocaine in a bag of dirty clothes in the vehicle’s trunk. (Id.).
At that time, Trooper Beidelschies returned to his cruiser and informed Chambers
and Board of their Miranda rights, and asked the two of them about the drugs.
(Id.). At first, both men denied knowledge of the drugs, but Chambers later
admitted that the drugs belonged to him, and he did not want his step-son, Board,
to get into trouble for what he had inside the vehicle. (Id.). Trooper Beidelschies
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testified that it took approximately fifteen (15) minutes from the time he stopped
Chambers’ vehicle until the canine alerted. (Id. at 19).
{¶15} On cross-examination, Trooper Beidelschies testified that his cruiser
was facing west so he could see southbound traffic, and he had his spotlight
illuminating the roadway. (Id. at 19-20). Trooper Beidelschies testified that the
purpose of using the spotlight was to determine the number of occupants in the
vehicle for officer safety. (Id. at 20). He further testified that the use of the
spotlight was a standard operating procedure. (Id. at 25). Trooper Beidelschies
could not recall how many leasing companies were on the agreements that
Chambers provided, nor could he recall the number of lease agreements that
Chambers provided. (Id. at 20-21). Trooper Beidelschies also could not recall
whether Chambers’ driving status came back valid prior or subsequent to his call
for canine assistance. (Id. at 21). He did not copy all of the lease agreements but
only the valid lease agreement, which he identified and which was marked as
defendant’s exhibit A. (Id. at 22, 25, 40). Trooper Beidelschies testified that
Chambers’ speed was not the reason for the stop, but that Chambers’ rapid
deceleration was an indication of possible impairment, which is why he decided to
follow Chambers. (Id. at 26, 27). Trooper Beidelschies testified that he did not
witness Chambers’ vehicle weaving from side to side, fishtailing, or driving
erratically, nor did he smell an odor of alcoholic beverage upon Chambers or
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witness any signs of impairment during the stop. (Id. at 27). Trooper Beidelschies
testified that he followed Chambers for approximately two (2) miles and witnessed
Chambers drift over the white edge line by a tire’s width twice. (Id. at 28). He
further testified that he did not observe any drugs or drug paraphernalia in plain
sight in the vehicle when he shined his light into Chambers’ vehicle. (Id. at 29-30).
Trooper Beidelschies testified that the video recording system for his cruiser was
not working that evening. (Id. at 32). When asked whether dispatch informed him
that the rental agreement from Hertz was valid prior to him calling for canine
assistance, Trooper Beidelschies testified, “[p]erhaps, but I doubt it, because
typically * * * there is a delay between the time our dispatch calls Hertz and Hertz
is able to pull up the information.” (Id. at 35).
{¶16} On re-direct examination, Trooper Beidelschies testified that he
initiates between ten to fifteen (10-15) traffic stops each work night, each
averaging between fifteen to twenty (15-20) minutes in duration. (Id. at 38).
Trooper Beidelschies testified that, generally, numerous rental agreements,
multiple occupants, nervous behavior by occupants of a vehicle, and conflicting
stories all can prolong the duration of a traffic stop. (Id. at 38-39).
{¶17} Hancock County Sheriff’s Deputy Fred Smith testified that he was
working on October 19, 2009 with his canine, Becky, who is trained and certified
for detection of marijuana, cocaine, methamphetamine, heroin, and their
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derivatives. (Id. at 41-43). Deputy Smith testified that canine assistance was
requested for southbound I-75 at mile marker 155. (Id. at 43-44). Deputy Smith
testified that he arrived at the scene six (6) minutes after receiving the dispatch.
(Id. at 44). He testified that his canine, Becky, indicated on the passenger side rear
door of Chambers’ vehicle before Becky even made it around the entire vehicle.
(Id. at 44-45). Deputy Smith further testified that Trooper Beidelschies discovered
marijuana and cocaine in the trunk of Chambers’ vehicle during the search. (Id. at
45). On cross-examination, Deputy Smith testified that he has been a dog handler
since 2001, and he was certified with Becky in 2005. (Id. at 46). Deputy Smith
testified that there have been “very few” times when Becky has falsely indicated,
only when a distraction odor with his scent or somebody’s scent that Becky would
be familiar with was used. (Id. at 47-48). On re-direct, Deputy Smith testified that
he received the call for canine assistance at 2:02 a.m. and arrived on scene at 2:08
a.m. (Id. at 49).
{¶18} We now turn to Chambers’ arguments. Chambers first argues that
the fact he slowed his vehicle to fifty-seven miles per hour (57 M.P.H.) in a sixty-
five mile-per-hour (65 M.P.H.) zone did not provide Trooper Beidelschies with
probable cause to stop his vehicle.
{¶19} In order to constitutionally stop a vehicle, an officer must, at a
minimum, have either: (1) a reasonable suspicion, supported by specific and
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articulable facts, that criminal behavior has occurred, is occurring, or is imminent;
or (2) a reasonable suspicion, supported by specific and articulable facts, that the
vehicle should be stopped in the interests of public safety. State v. Moore, 3d Dist.
No. 9-07-60, 2008-Ohio-2407, ¶10, citing State v. Andrews, 3d Dist. No. 2-07-30,
2008-Ohio-625, ¶8, citing State v. Chatton (1984), 11 Ohio St.3d 59, 61, 463
N.E.2d 1237, certiorari denied by 469 U.S. 856, 105 S.Ct. 182, 83 L.Ed.2d 116;
State v. Purtee, 3d Dist. No. 8-04-10, 2006-Ohio-6337, ¶9, citing State v. Norman
(1999), 136 Ohio App.3d 46, 53-54, 735 N.E.2d 453.
{¶20} An officer’s “reasonable suspicion” is determined based on the
totality of the circumstances. Moore, 2008-Ohio-2407, at ¶11, citing Andrews,
2008-Ohio-625, at ¶8, citing State v. Terry (1998), 130 Ohio App.3d 253, 257, 719
N.E.2d 1046, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d
1271. ‘“Specific and articulable facts’ that will justify an investigatory stop by
way of reasonable suspicion include: (1) location; (2) the officer’s experience,
training or knowledge; (3) the suspect’s conduct or appearance; and (4) the
surrounding circumstances.” Purtee, 2006-Ohio-6337, at ¶9, citing State v.
Gaylord, 9th Dist. No. 22406, 2005-Ohio-2138, ¶9, citing State v. Bobo (1988), 37
Ohio St.3d 177, 178-79, 524 N.E.2d 489.
{¶21} Trooper Beidelschies testified that he began to follow Chambers after
he noticed Chambers decelerate very rapidly as Chambers approached his parked
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cruiser, because he was concerned that Chambers was driving impaired. (June 2,
2010 Tr. at 26-27). Trooper Beidelschies further testified that he did not stop
Chambers because of his speed, but because Chambers crossed over the white
edge line twice. (Id. at 10-11). “[A] traffic stop is constitutionally valid when a
law-enforcement officer witnesses a motorist drift over the [right white edge line]
in violation of R.C. 4511.33, even without further evidence of erratic or unsafe
driving.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,
¶25. See, also, State v. Burwell, 3d Dist. No. 12-09-06, 2010-Ohio-1087, ¶11;
State v. Anthony, 3d Dist. No. 13-09-26, 2009-Ohio-6717, ¶¶12-14. After
witnessing Chambers cross over the white edge line, Trooper Beidelschies had
probable cause, and thus a reasonable articulable suspicion, that Chambers
violated R.C. 4511.33; and therefore, the stop was constitutionally valid. Mays at
¶¶21, 24; Burwell at ¶11; Anthony at ¶13
{¶22} Chambers also argues that the fact that he was a person of color did
not provide Trooper Beidelschies with probable cause to initiate the traffic stop.
Although we generally agree with Chambers’ proposition of law, the trial court, as
trier of fact, specifically found that the record lacked sufficient evidence that
Chambers’ race played a role in initiating the traffic stop. (July 16, 2010 Tr. at 18-
19). Additionally, even if this Court were to assume that Trooper Beidelschies
initiated the traffic stop based upon Chambers’ race, that fact does not affect the
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reasonableness of the stop for Fourth Amendment purposes. As the Ohio Supreme
Court has noted, “[w]here a police officer stops a vehicle based on probable cause
that a traffic violation has occurred or was occurring, the stop is not unreasonable
under the Fourth Amendment to the United States Constitution even if the officer
had some ulterior motive for making the stop[.]” Dayton v. Erickson (1996), 76
Ohio St.3d 3, 665 N.E.2d 1091, syllabus. See, also, Whren v. U.S. (1996), 517
U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (“We of course agree with
petitioners that the Constitution prohibits selective enforcement of the law based
on considerations such as race. But the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection Clause, not
the Fourth Amendment. Subjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.”); U.S. v. Bullock (C.A. 4, 1996), 94 F.3d 896,
899 (law enforcement’s alleged racial motivation for traffic stop is irrelevant to the
legitimacy of the stop under Fourth Amendment); U.S. v. Navarro-Camacho (C.A.
6, 1999), 186 F.3d 701, 705 (same); U.S. v. Robinson (C.A. 7, 2003), 314 F.3d
905, 907 (same); U.S. v. Gomez Serena (C.A. 8, 2004), 368 F.3d 1037, 1041
(same); U.S. v. Adkins (C.A. 10, 2001), 1 Fed. Appx. 850 (same); State v. Harden,
2nd Dist. No. 19880, 2004-Ohio-664, ¶11 (same). Since Trooper Beidelschies had
probable cause to conclude that Chambers violated R.C. 4511.33, the traffic stop
was reasonable, and Trooper Beidelschies’ ulterior motives, if any, are irrelevant.
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Furthermore, even if Chambers’ race motivated Trooper Beidelschies to initiate
the traffic stop, suppression of the evidence seized during the traffic stop is not an
available remedy. U.S. v. Nichols (C.A. 6, 2008), 512 F.3d 789, 794, overruled on
other grounds by U.S. v. Buford (C.A. 6, 2011), ___ F.3d ___, 2011 WL 447048.
See, also, U.S. v. Chavez (C.A. 5, 2002), 281 F.3d 479, 486-87 (suppression of
evidence is not an available remedy for violations of Fifth or Fourteenth
Amendments). For these reasons, we must reject Chambers’ argument that the
trial court erred by overruling his motion to suppress based upon alleged racial
profiling.
{¶23} Finally, Chambers argues that Trooper Beidelschies did not have
further indicia of criminal activity to justify his further expansion of the traffic
stop, i.e. to request canine assistance.
{¶24} “‘[W]hen detaining a motorist for a traffic violation, an officer may
delay a motorist for a time period sufficient to issue a ticket or a warning.’” State
v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶12, quoting
State v. Keathley (1988), 55 Ohio App.3d 130, 131, 562 N.E.2d 932. See, also,
State v. Whitman, 184 Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 293, ¶11.
“This measure includes the period of time sufficient to run a computer check on
the driver’s license, registration, and vehicle plates.” Batchili at ¶12, citing State v.
Bolden, 12th Dist. No. CA2003-03-007, 2004-Ohio-184, ¶17, citing Delaware v.
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Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660. Further, “‘[i]n
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. Carlson (1995), 102 Ohio App.3d
585, 598-99, 657 N.E.2d 591, citing State v. Cook (1992), 65 Ohio St.3d 516, 521-
22, 605 N.E.2d 70, and U.S. v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84
L.Ed.2d 605.
{¶25} “The use of a drug-detection dog does not constitute a “search,” and
an officer is not required, prior to a dog sniff, to establish either probable cause or
a reasonable suspicion that drugs are concealed in a vehicle.” Whitman, 2009-
Ohio-5647, at ¶9, citing Illinois v. Caballes (2005), 543 U.S. 405, 409, 125 S.Ct.
834, 160 L.Ed.2d 842; United States v. Place (1983), 462 U.S. 696, 707, 103 S.Ct.
2637, 77 L.Ed.2d 110; Carlson, 102 Ohio App.3d at 594; United States v. Seals
(C.A.5, 1993), 987 F.2d 1102, 1106. A law enforcement officer needs no
suspicion or cause to “run the dog around” a stopped vehicle if he does it
contemporaneously with the legitimate activities associated with the traffic
violation. Whitman, 2009-Ohio-5647, at ¶9, citing Caballes, 543 U.S. at 409.
{¶26} The record herein demonstrates that Chambers’ vehicle was lawfully
detained based upon probable cause of a violation of R.C. 4511.33. The record
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herein further demonstrates that Trooper Beidelschies requested canine assistance
while he was verifying Chambers’ authorization to drive the rental vehicle from
the multiple Hertz rental agreements Chambers provided him and checking
Chambers’ driver’s license. Therefore, Trooper Beidelschies was permitted to run
the canine around the Chambers’ vehicle without any reasonable suspicion that
drugs were concealed in the vehicle, contrary to Chambers’ argument. Whitman,
2009-Ohio-5647, at ¶9, citations omitted. Furthermore, the record reflects that the
canine arrived on the scene five to six (5-6) minutes after Trooper Beidelschies
requested canine assistance, and the total duration from the initial traffic stop to
the canine alerting was fifteen (15) minutes. Although not specifically mentioned
by the trial court, the five-to-six-minute wait for the canine to arrive was not
unreasonable. See, e.g., State v. French, 9th Dist. No. 24252, 2009-Ohio-2342,
¶18 (10 minute wait was reasonable); State v. Ramirez, 9th Dist. No. 04CA0024-
M, 2004-Ohio-6541, ¶¶11-12 (26 minute wait was reasonable); State v. French
(1995), 104 Ohio App.3d 740, 748, 663 N.E.2d 367 (45 minute wait was
reasonable). The trial court did conclude that a fifteen-minute traffic stop was
reasonable in light of the multiple rental agreements Chambers presented and the
time needed to verify whether Chambers had a lawful right to operate the rented
motor vehicle at the time. (June 16, 2010 Tr. at 12). We agree with the trial court
that fifteen (15) minutes was not an unreasonable amount of time to detain
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Chambers for the traffic stop. In fact, Trooper Beidelschies testified that traffic
stops average between fifteen to twenty (15-20) minutes each. (June 2, 2009 Tr. at
38). See e.g. State v. Bordieri, 6th Dist. No. L-04-1321, 2005-Ohio-4727, ¶21,
citing State v. Cook (1992), 65 Ohio St.3d 516, 605 N.E.2d 70 (15 minutes
reasonable). See also, Sharpe, 470 U.S. at 687. (20 minute detention reasonable
when investigation was diligent and reasonable). For all these reasons, we must
reject Chambers’ argument that the trial court erred in overruling his motion to
suppress evidence because of an impermissible lengthy detention.
{¶27} Chambers’ assignment of error is, therefore, overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs.
ROGERS, P.J., concurs in Judgment Only.
/jnc
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