[Cite as State v. Latona, 2011-Ohio-1253.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
VINCENT LATONA : Case No. 2010-CA-0072
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richalnd County Court of
Common Pleas, Case No. 2009-CR-754H
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 16, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. RANDALL E. FRY
Prosecuting Attorney 10 West Newlon Place
Mansfield, OH 44902
By: BRENT N. ROBINSON
Assistant Prosecutor
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Latona, 2011-Ohio-1253.]
Delaney, J.
{¶1} Defendant-Appellant Vincent Latona appeals his conviction and sentence
by the Richland County Court of Common Pleas for Improperly Handling Firearms in a
Motor Vehicle, a fourth degree felony in violation of R.C. 2923.16(B). Plaintiff-Appellee
is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 12, 2009, the Richland County Grand Jury indicted Appellant
for one count of Improperly Handling Firearms in a Motor Vehicle, in violation of R.C.
2923.16(B).
{¶3} Appellant filed a motion to suppress on December 15, 2009. The matter
came on for hearing on February 24, 2010. The following facts were adduced at the
hearing.
{¶4} On April 9, 2009, Trooper Dave Norman was traveling northbound on
Interstate 71 in Richland County, Ohio. Trooper Norman is assigned to the canine unit
and his police dog was in his vehicle. (T. 4). Trooper Norman observed a 1977 Dodge
Van driving in the middle lane of the interstate at a slow rate of speed, approximately 54
miles per hour. (T. 4-5). The trooper followed the van and observed the vehicle drive
from the middle lane halfway into the right lane. (T. 5). At that point, Trooper Norman
activated his lights and conducted a traffic stop for marked lanes violation because
Trooper Norman was concerned that the driver of the van was falling asleep. Id. The
driver of the vehicle complied and pulled over to the berm. Trooper Norman parked
behind the vehicle.
Richland County, Case No. 2010-CA-0072 3
{¶5} Trooper Norman approached the vehicle and spoke to Appellant, the
driver of the vehicle. The van had a Colorado registration and Appellant told the officer
that he was driving from Colorado to Pennsylvania. Id. Appellant had a dog tied up in
the rear of the van. (T. 6). Trooper Norman asked Appellant to return to his patrol car
because the officer wanted to see how tired Appellant was and the officer was
concerned about the dog in the van. (T. 6).
{¶6} Before Appellant exited the vehicle from the passenger’s side, Appellant
locked the driver’s side door, removed the keys from the ignition, exited the vehicle, and
then locked the passenger door. (T. 5-6, 13). Trooper Norman asked Appellant why he
was locking the car and Appellant replied that he did not want anyone to steal it. Id.
The officer testified that in the 16 years he had been an officer, he had never seen
anyone lock the doors to a vehicle after they were stopped. (T. 13). Appellant also
seemed to the officer to be more nervous than he had observed an individual usually to
be when he conducted a traffic stop. (T. 7, 13-14). Appellant did not appear to the
officer to be under the influence of alcohol. (T. 13).
{¶7} When the officer got Appellant into his vehicle, Trooper Norman contacted
dispatch to call in Appellant’s license plate and driver’s license because the officer’s on-
board computers did not work in that area of the interstate. (T. 8). Trooper Norman
could not remember specifically at what time in the stop dispatch returned information
on Appellant, but dispatch told Trooper Norman that Appellant had a felony warrant out
of Pennsylvania, but Pennsylvania would not pick Appellant up in Ohio. (T. 7). During
the time that Trooper Norman was waiting for the information from dispatch, Trooper
Richland County, Case No. 2010-CA-0072 4
Norman decided to walk his dog around Appellant’s vehicle based on Appellant’s
nervousness and Appellant locking the vehicle. (T. 13).
{¶8} When Trooper Norman walked his dog to the passenger door of the van,
the dog passively indicated the odor of illegal narcotics. (T. 9). Trooper Norman
conducted a vehicle search. Id. While conducting the vehicle search, the officer saw
the butt of a gun in the area behind the driver’s seat. (T. 10). Trooper Norman pulled
the gun out and observed it was a loaded, black powder, muzzle-loading pistol. Id. It
had percussion caps on the outside. Id. The officer did not notice the weapon when he
initially approached Appellant because of the dog tied in the back of the vehicle. (T.
17).
{¶9} Trooper Norman called the Richland County prosecutor’s office to advise
them he had found a weapon. (T. 17). The prosecutor’s office recommended that the
officer seize the weapon and release Appellant pending the outcome of the test firing of
the weapon. Id.
{¶10} Appellant denied to Trooper Norman that the weapon was a firearm. (T.
18). Trooper Norman gave Appellant a written warning for the marked lanes violation
and released Appellant. Id.
{¶11} Trooper Norman testified that the length of the stop was five to six minutes
or ten to fifteen minutes. (T. 16).
{¶12} The weapon was test fired and it was determined to be a working firearm.
(T. 19).
{¶13} On March 22, 2010, the trial court denied Appellant’s motion to suppress.
Appellant pleaded no contest to the charge and was found guilty by the trial court. On
Richland County, Case No. 2010-CA-0072 5
May 13, 2010, the trial court sentenced Appellant to 12 months in prison but suspended
the prison sentence and placed Appellant on 18 months of community control sanctions.
{¶14} It is from this decision Appellant now appeals.
ASSIGNMENT OF ERROR
{¶15} Appellant raises one Assignment of Error:
{¶16} “I. THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT'S
PREJUDICE BY OVER-RULING THE DEFENDANT-APPELLANT'S MOTION TO
SURPRESS (SIC) PROPERLY AND TIMELY FILED IN THIS MATTER."
I.
{¶17} Appellant argues the trial court erred in denying Appellant’s motion to
suppress. We disagree.
{¶18} Appellate review of a trial court's decision to grant or deny a motion to
suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio
App.3d 328, 713 N.E.2d 1. During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d
1030. A reviewing court is bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d
142, 675 N.E.2d 1268. Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.
Richland County, Case No. 2010-CA-0072 6
{¶19} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.
Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; and State v. Klein (1991), 73 Ohio
App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that the trial court
failed to apply the appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the trial court for committing an error of law. See State v.
Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue
the trial court has incorrectly decided the ultimate or final issues raised in a motion to
suppress. When reviewing this type of claim, an appellate court must independently
determine, without deference to the trial court's conclusion, whether the facts meet the
appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d
623, 620 N.E.2d 906.
{¶20} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271. We first note that Appellant does not seek to show that the underlying
traffic stop itself was improper. Rather, the parties dispute whether the stop's scope
and duration expanded beyond that which was necessary to effectuate the original
purpose of the stop.
Richland County, Case No. 2010-CA-0072 7
{¶21} 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.” Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75
L.Ed.2d 229; see, also, State v. Gonyou (1995), 108 Ohio App.3d 369, 372, 670 N.E.2d
1040.
{¶22} Appellant relies upon the rule set forth in Royer to argue that law
enforcement officers are prevented from conducting “fishing expeditions” for evidence of
a crime. Gonyou, supra. In Gonyou, 108 Ohio App.3d at 372, 670 N.E.2d at 1042, the
court summarized the circumstances under which the continued detention may
constitute an illegal “fishing expedition”: “Various activities, including following a script,
prolonging a traffic stop in order to ‘fish’ for evidence, separating an individual from his
car and engaging in ‘casual conversation’ in order to observe ‘body language’ and
‘nervousness,’ have been deemed (depending on the overall facts of the case) to be
manipulative practices which are beyond the scope of * * * ‘ * * * the purpose for which
the stop was made.’ State v. Correa (1995), 108 Ohio App.3d 362, 670 N.E.2d 1035,
1039.”
{¶23} The scope of a routine traffic stop is generally limited, in certain instances
however, an officer may validly expand the scope of the stop. See United States v.
Brignoni-Ponce (1975), 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580-82, 45 L.Ed.2d 607.
The officer may expand the scope of the stop and may continue to detain the individual
if the officer possesses a reasonable suspicion, based upon articulable facts, that the
individual is engaged in criminal activity. See Terry v. Ohio (1968), 392 U.S. 1, 21, 88
Richland County, Case No. 2010-CA-0072 8
S.Ct. 1868, 20 L.Ed.2d 889. The court stated in State v. Robinette, (1997), 80 Ohio
St.3d 234, 685 N.E.2d 762, paragraph one of the syllabus:
{¶24} “When a police officer's objective justification to continue detention of a
person stopped for a traffic violation for the purpose of searching the person's vehicle is
not related to the purpose of the original stop, and when that continued detention is not
based on any articulable facts giving rise to a suspicion of some illegal activity justifying
an extension of the detention, the continued detention to conduct a search constitutes
an illegal seizure.”
{¶25} Thus, if a law enforcement officer, during a valid traffic 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.” Id.,
80 Ohio St.3d at 241, 685 N.E.2d at 768. “Consequently, when a law enforcement
officer stops an individual for a minor traffic offense, the officer may not generally
expand the scope of the stop unless the officer observes additional facts giving rise to a
reasonable suspicion of other criminal activity.” State v. Guckert (Dec. 20, 2000),
Washington App. No. 99CA49.
{¶26} Upon the record in this case, we find that Trooper Norman articulated
facts that gave rise to reasonable suspicion of other criminal activity. Appellant
appeared unusually nervous to the officer. When Appellant exited the vehicle, Appellant
removed the keys from the ignition and locked the driver’s and passenger’s doors.
When asked why he was locking the doors, Appellant responded that he was afraid
someone would steal his van. Trooper Norman testified that he had never experienced
anyone locking the doors to their vehicle during a traffic stop.
Richland County, Case No. 2010-CA-0072 9
{¶27} We also find that at the time Trooper Norman walked his dog around
Appellant’s vehicle, Trooper Norman had not fulfilled the purpose of the initial stop in
that Trooper Norman was waiting for the information to return from the dispatch and he
had not cited Appellant for the marked lanes violation. The United States Supreme
Court has stated that a dog sniff does not constitute a search. United States v. Place
(1982), 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110. Thus, because a dog sniff is not
a search, “an officer need not have formed a reasonable suspicion that drug-related
activity is occurring in order to request that a drug dog be brought to the scene or to
conduct a dog sniff of the vehicle.” Guckert, supra citing State v. Keller (Jan. 14, 2000),
Montgomery App. No. 17896. Thus, when a motorist is lawfully detained pursuant to a
traffic stop and when the purpose of the traffic stop has yet to be fulfilled, the Fourth
Amendment is not violated when the officer employs a trained narcotics canine to sniff
the vehicle for drugs. Guckert, supra.
{¶28} In this case, the police dog was at Trooper Norman’s immediate disposal
and while Trooper Norman waited for the information from dispatch, he walked his dog
around Appellant’s vehicle. This did not unreasonably prolong Appellant’s detention,
which the officer testified was at the maximum, fifteen minutes in length.
{¶29} Once the police dog indicated the presence of drugs in Appellant's lawfully
stopped vehicle, the officer possessed probable cause to search Appellant's vehicle.
State v. Cicora (July 31, 2000), Stark App. No. 2000CA00043.
{¶30} We find that the officer did not unreasonably detain Appellant during the
traffic stop and subsequent canine search. Accordingly, we find the trial court did not
err in overruling Appellant’s motion to suppress.
Richland County, Case No. 2010-CA-0072 10
{¶31} Appellant’s sole Assignment of Error is overruled.
{¶32} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
PAD:kgb
[Cite as State v. Latona, 2011-Ohio-1253.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
VINCENT LATONA :
:
Defendant-Appellant : Case No. 2010-CA-0072
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Richland County Court of Common Pleas is affirmed.
Costs to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER