State v. Stevens

[Cite as State v. Stevens, 2016-Ohio-5017.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY

STATE OF OHIO, :
: Case No. 15CA30
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
LARRY STEVENS, JR., :
:
Defendant-Appellant. : Released: 07/12/16
_____________________________________________________________
APPEARANCES:

Chase A. Mallory, Luftman, Heck & Associates LLP, Columbus, Ohio, for
Appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Harrison L.
Crumrine, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

{¶ 1} Larry Stevens, Jr. appeals his conviction for possession of drugs

in the Washington County Court of Common Pleas, which stemmed from a

traffic stop where marijuana was seized from the trunk of his vehicle.

Specifically, Appellant appeals the trial court’s denial of his motion to

suppress evidence, contending that the trial court erred in overruling his

motion to suppress. Because we find the trial court properly denied

Appellant's motion to suppress, we find no error and Appellant's sole
Washington App. No. 15CA30 2

assignment of error is overruled. Accordingly, the judgment of the trial

court is affirmed.

FACTS

{¶ 2} Appellant, Larry Stevens, Jr., was indicted on one count of

possession of drugs (marijuana), a fifth degree felony in violation of R.C.

2925.11(A) & (C)(3)(c) on December 18, 2014. This indictment stemmed

from a stop of Appellant’s vehicle for a window tint violation, which

ultimately resulted in law enforcement locating marijuana in Appellant’s

trunk. Appellant initially pled not guilty to the charge and filed a motion to

suppress all of the evidence obtained by what he characterized as an

unconstitutional detention and/or arrest.

{¶ 3} A suppression hearing was held on May 18, 2015, at which

Trooper Scott Bayless and Trooper Steven Roe testified. Their testimony

will be discussed more fully below. Additionally, Appellant stipulated to the

authenticity of the dash cam video from Trooper Bayless’ cruiser, and that

video was played during the hearing and admitted into evidence as an

exhibit. After hearing the testimony presented at the hearing and after

considering the written closing arguments of the parties, the trial court

issued a decision denying Appellant’s motion to suppress.
Washington App. No. 15CA30 3

{¶ 4} In the trial court’s journal entry which denied the motion, the

trial court found the following facts with respect to this matter:

“Defendant was southbound on I-77 in Washington County

September 26, 2014 at approximately 3:05 p.m. Bayless was

stationary at mile marker 17. It should be noted that Bayless

was a K-9 unit. Bayless observed Defendant’s vehicle noting

that the window tint appeared excessive. Defendant was

stopped without incident. Bayless approached the passenger

window, informed Defendant why he had been stopped, noted

that Defendant was overly nervous, fumbled obtaining license,

registration and insurance info, and kept rearranging items that

were already in perfect order in the auto. While Bayless was

checking Defendant’s documents he ordered a criminal records

check. Roe arrived within six (6) minutes with a window tint

meter confirming that the window was only allowing 26% light

transmission, well below the 50% allowed on Ohio licensed

vehicles. Roe testified that Defendant was shaking and

trembling exhibiting extreme nervousness considering the stop

was a tinted window violation.
Washington App. No. 15CA30 4

Bayless received information that Defendant had a prior

drug related conviction in Michigan from 2009. Based on

Defendant’s extreme nervousness and the prior conviction,

Bayless had Defendant step from his vehicle to do a K-9 check.

Bayless patted Defendant down testifying that Defendant was

still shaking and appeared even more nervous. Bayless gave

Defendant his Miranda Rights and upon inquiry and without

having to remove his K-9, Defendant admitted that he had

marijuana in the vehicle and told the officers where it was

located. The marijuana was located and Defendant placed

under arrest.”

Based upon these facts, the trial court found that Trooper Bayless had

probable cause for the initial stop, and reasonable articulable suspicion of

criminal activity thereafter based upon Appellant’s extreme nervousness to

the point of shaking combined with his prior drug-related conviction.

{¶ 5} Appellant subsequently changed his plea, and entered a no

contest plea to the charge contained in the indictment. The trial court found

Appellant guilty and sentenced him by order dated August 17, 2015. It is

from this final order that Appellant now brings his timely appeal, setting

forth one assignment of error for our review.
Washington App. No. 15CA30 5

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE.”

STANDARD OF REVIEW

{¶ 6} In his sole assignment of error, Appellant contends that the trial

court erred in overruling his motion to suppress evidence. Appellate review

of a motion to suppress presents a mixed question of law and fact. State v.

Gurley, 4th Dist. Scioto No. 14CA3646, 2015-Ohio-5361, ¶ 16; citing State

v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At

a suppression hearing, the trial court acts as the trier of fact and is in the best

position to resolve factual questions and evaluate witness credibility. Id.;

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Thus, when reviewing a ruling on a motion to suppress, we defer to the trial

court's findings of fact if they are supported by competent, credible

evidence. Gurley at ¶ 16; citing State v. Landrum, 137 Ohio App.3d 718,

722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting those facts as

true, we must independently determine whether the trial court reached the

correct legal conclusion in analyzing the facts of the case.” Id.; citing

Roberts at ¶ 100.
Washington App. No. 15CA30 6

LAW AND 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. Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014-

Ohio-716, ¶ 14; 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 the exclusion of the evidence

obtained from the unreasonable search and seizure at trial.” Id.; citing

Emerson at ¶ 15; 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
Washington App. No. 15CA30 7

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.

{¶ 9} A police officer may stop the driver of a vehicle after observing

a de minimis violation of traffic laws. State v. Debrossard, 4th Dist. Ross.

No. 13CA3395, 2015-Ohio-1054, ¶ 13; citing 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. Further, the

Supreme Court of Ohio has clearly stated: “Where 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 at paragraph one of the syllabus.
Washington App. No. 15CA30 8

INITIAL STOP

{¶ 10} Here, Appellant’s vehicle was initially stopped by Trooper

Bayless, who was a canine handler, for excessive window tint. The record

indicates that Trooper Roe stopped to assist Trooper Bayless and checked

the window tint of Appellant's vehicle at Trooper Bayless' request, while

Bayless was waiting in his cruiser for a response from dispatch.1 The record

indicates that Trooper Roe checked Appellant’s window tint and determined

that it only permitted 26% light transmittance. Trooper Roe advised

Appellant of the result of the test and that 50% was the required light

transmittance. Importantly, Appellant does not argue that the stop of his

vehicle was unlawful. Thus, there is no issue regarding whether Trooper

Bayless had a reasonable and articulable suspicion and probable cause to

stop Appellant’s vehicle. As such, we turn our attention to whether the

duration of the stop was unlawful.

CANINE SNIFF AND DURATION OF STOP

{¶ 11} Appellant contends that Troopers Bayless and Roe had

completed all the necessary tasks to effectuate the purpose of the initial stop,

and then prolonged the stop to pursue a drug investigation without

reasonable suspicion to do so. However, based upon our review of the

1
The record indicates Trooper Bayless had a newly issued cruiser which was not equipped with a window
tint meter. Thus, he asked Trooper Roe to assist him in that regard.
Washington App. No. 15CA30 9

record and the following case law, and despite defense counsel's artful

questioning of Trooper Bayless at the suppression hearing, we conclude that

the purpose of the initial stop had not been concluded at the time a decision

was made to deploy the canine. Further, assuming arguendo that the mission

and purpose of the initial stop had been concluded at the time it was decided

that the canine should be deployed, we believe, under these facts, the

troopers had reasonable suspicion to prolong the stop for further

investigation.

{¶ 12} 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.” Debrossard at ¶ 16;

quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319 (1983); see

also State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th

Dist.1995) and State v. Hughes, 4th Dist. Ross No. 97CA2309, 1998 WL

363850. The rule set forth in Royer is designed to prevent law enforcement

officers from conducting “fishing expeditions” for evidence of a crime. See

generally Gonyou; Sagamore Hills v. Eller, 9th Dist. Summit No. 18495,

1997 WL 760693 (Nov. 5, 1997); see also Fairborn v. Orrick, 49 Ohio

App.3d 94, 95, 550 N.E.2d 488 (2nd Dist.1988), (stating that “the mere fact

that a police officer has an articulable and reasonable suspicion sufficient to
Washington App. No. 15CA30 10

stop a motor vehicle does not give that police officer ‘open season’ to

investigate matters not reasonably within the scope of his suspicion”).

{¶ 13} Generally, “[w]hen 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. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-Ohio-

4909, ¶ 36; citing State v. Carlson, 102 Ohio App.3d 585, 598, 657 N.E.2d

591 (9th Dist.1995); see also Rodriguez v. United States, -- U.S. --, 135

S.Ct. 1609, 1615 (2015) (ordinary inquiries incident to a traffic stop include

“checking the driver's license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile's registration and

proof of insurance”). “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.” Id.; citing State v. Cook, 65

Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992) (fifteen-minute detention

was reasonable); United States v. Sharp, 470 U.S. 675, 105 S.Ct. 1568

(1985), (twenty-minute detention was reasonable).
Washington App. No. 15CA30 11

{¶ 14} 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. 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-Ohio-7280, ¶ 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.

{¶ 15} During a continued, lawful detention of a vehicle, as discussed

above, 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. See, e.g., 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
Washington App. No. 15CA30 12

effectuate the original purpose of the stop.” Id. See also United States v.

Place, 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).

{¶ 16} Further, “[a]n 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. Rose,

4th Dist. Highland No. 06CA5, 2006-Ohio-5292, ¶ 17; citing State v.

Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). 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

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.”
Washington App. No. 15CA30 13

{¶ 17} 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.’ ” Rose at ¶ 17;

quoting Robinette at 241.

{¶ 18} However, the United States Supreme Court in Rodriguez v.

United States, supra, recently held that while a police officer “may conduct

certain unrelated checks during an otherwise lawful traffic stop * * * he may

not do so in a way that prolongs the stop, absent the reasonable suspicion

ordinarily demanded to justify detaining an individual.” Id. at 1615.

Accordingly, the Court concluded that police officers may not extend an

otherwise-completed traffic stop, absent reasonable suspicion, in order to

conduct a dog sniff. Id. at 1614-1617. (Emphasis added).

{¶ 19} Finally, “In determining whether a detention is reasonable, the

court must look at the totality of the circumstances.” 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,
Washington App. No. 15CA30 14

¶ 23; United States v. Arvizu, 534 U.S. at 273. 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. at 699.

{¶ 20} As indicated above, based upon our review of the record and

the foregoing case law, and despite defense counsel's artful questioning of

Trooper Bayless at the suppression hearing, we conclude that the purpose of

the initial stop had not been concluded at the time Trooper Bayless decided

to conduct a canine sniff of the vehicle. Initially, it should be noted that

Trooper Bayless, the trooper who initiated the traffic stop, is a canine

handler and had his canine in the vehicle with him. Appellant's vehicle was

stopped at approximately 3:06 p.m. Trooper Bayless obtained Appellant's

information and returned to his cruiser to check the information at 3:08 p.m.

Trooper Bayless noted Appellant's extreme nervousness and rearranging of

items in the dash at that time.

{¶ 21} Trooper Roe then arrived and Trooper Bayless requested that

he check the window tint at 3:09 p.m. Trooper Roe returned to Trooper

Bayless' cruiser at 3:12 p.m. and reported the window tint violation,

Appellant's nervousness and hand wringing, very strong air freshener, and
Washington App. No. 15CA30 15

also conveyed that he encountered what he thought was a slight hint of

"weed," but commented the air freshener was "so strong." At 3:13 p.m.

dispatch reported to Trooper Bayless that Appellant had a prior drug

conviction. At that time, and before Trooper Bayless had even begun

writing a citation or written warning to Appellant, Trooper Bayless decided

to conduct a canine sniff. Thus, Trooper Bayless decided to conduct the

sniff only seven minutes after Appellant was initially stopped, and before he

had given Appellant a citation or warning.2 Moreover, Trooper Bayless was

a canine handler and had his canine in his cruiser. Thus, there would have

been no delay in waiting for a canine unit to arrive.

{¶ 22} The testimony during the suppression hearing indicated that

the troopers removed Appellant from the vehicle, per their usual procedure,

to prepare to conduct the canine sniff of the vehicle, and conducted a pat-

down for weapons with Appellant's consent.3 Appellant was also

Mirandized at that time. Trooper Bayless then inquired whether there would

be anything of interest to the canine in the vehicle to which Appellant

responded in the affirmative, stating there was marijuana in the vehicle.

Appellant made this statement at 3:17 p.m., just eleven minutes after the

2
Trooper Bayless testified that he had intended to only issue a warning.
3
Trooper Bayless testified that it was his customary practice to remove drivers from their vehicles prior to
conducting a canine sniff, because of safety concerns. He further explained that his canine was a "handler
protection dog" which could possibly strike if he saw movement inside the vehicle while performing a
sniff.
Washington App. No. 15CA30 16

initial stop. Based upon Appellant's statement, the troopers searched the

vehicle without ever deploying the canine and eventually located marijuana

in Appellant's trunk.

{¶ 23} Appellant contends that “[i]n the present case, the drug

investigation could have been completed within the bounds of the Fourth

Amendment.” Appellant explains, for example, that in Caballes, “two

different officers were present.” 4 Appellant goes on to discuss that in

Caballes “[w]hile one was diligently pursuing the purpose of the initial stop,

the other officer conducted a K9 sniff.” Appellant argues that “[c]onducting

the stop in this fashion did not add time to the stop.” Appellant then goes on

to argue that here, the troopers “were finished with their tasks related to the

purpose of the stop and then subsequently began their drug investigation.”

{¶ 24} We initially address Appellant’s argument that the stop could

have been completed without violating the Fourth Amendment if one officer

had been conducting the canine sniff while another officer was pursuing the

purpose of the initial stop. First, and importantly, Trooper Bayless was the

stopping officer and also the canine handler. Thus, he could not complete

two tasks at the same time. Although Trooper Roe arrived to assist with the

window tint investigation, he was not a canine handler and could not

4
Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834 (2005).
Washington App. No. 15CA30 17

conduct the canine sniff while Trooper Bayless continued to communicate

with dispatch to verify Appellant’s information. Second, the record

indicates that the stop was conducted and investigated in a diligent manner

by Trooper Bayless. He methodically checked Appellant’s information,

contacted dispatch, requested assistance from Trooper Roe, followed up with

Trooper Roe and dispatch, and then determined to walk his dog around the

vehicle all within eight minutes of the initial stop, and before issuing a

citation or warning to Appellant. This Court cannot see how Trooper

Bayless, who had the responsibility to investigate the initial reason for the

stop and also was the canine handler, could have conducted the stop in a

more efficient manner. Further, if a canine handler can never deploy his

canine without it being considered an impermissible “prolonging” of the

stop, then it is unclear when a canine handler can ever be the officer to

initiate a stop and also utilize his canine, absent reasonable suspicion to do

so. Thus, we cannot conclude that the facts presently before us run afoul of

the Fourth Amendment or Rodriguez, supra, which essentially held that

police officers may not extend an otherwise-completed traffic stop, absent

reasonable suspicion, in order to conduct a dog sniff.

{¶ 25} We next address Appellant’s argument that the troopers “were

finished with their tasks related to the purpose of the stop and then
Washington App. No. 15CA30 18

subsequently began their drug investigation.” Appellant relies on the

following exchange that occurred with Trooper Bayless during the

suppression hearing to support his argument:

“Q. * * * So then you would agree with me then, that at that

point, when you decided that you were going to pull him out of

the vehicle, you stopped pursuing the initial stop?

A. Right.

Q. Okay. And then this became a drug investigation?

A. Correct.”

There is, however, a problem with Appellant’s argument as well as this line

of questioning. Contrary to Appellant’s argument, the record, and

specifically dash cam video, reveals that the stop was not “otherwise-

completed” at the time the decision was made to deploy the canine, as no

warning had been issued yet. Although Trooper Bayless testified that he had

made up his mind to issue a warning, that warning had not been issued either

in verbal or written form at the time he decided to conduct the canine sniff.

Thus, the initial stop had not been concluded.

{¶ 26} In Rodriguez, the officer, who had a canine present with him

at the time of the stop, had completed the traffic stop, including issuing a

written warning for the traffic violation before deciding to conduct a canine
Washington App. No. 15CA30 19

sniff of the vehicle. Because the driver refused to allow the sniff, the officer

detained the driver until back-up arrived and then conducted the sniff. This

scenario is different from the scenario presently before us where Trooper

Bayless had not issued a citation or warning yet. As set forth above, police

officers may not extend an otherwise-completed traffic stop, absent

reasonable suspicion, in order to conduct a dog sniff. Id. at 1614-1617.

Once again, this stop was not “otherwise-completed.”

{¶ 27} Yet, the Rodriguez court went on to state that the critical

question is not whether the dog sniff occurs before or after the officer issues

a ticket, but whether conducting the sniff prolongs, or adds time to, the stop.

Rodriguez at 1616. Ohio Courts have held that Rodriguez has no bearing

when the canine sniff is conducted during the time period necessary to

effectuate the original purpose of the traffic stop and prior to completion of a

written citation. State v. Reece, 1st Dist. Hamilton No. C-140635, 2015-

Ohio-3638, ¶ 25 (sniff conducted prior to issuance of citation); State v.

Davis, 9th Dist. Lorain No. 14CA010639, 2015-Ohio-4218, ¶ 16 (sniff

conducted prior to background check completed or traffic citation issued);

State v. Mote, 3rd Dist. Mercer No. 10-15-05, 2015-Ohio-3715, ¶ 21 (driver

not detained longer than the time period sufficient to issue a ticket). Further,

and as set forth above, such a strict application of Rodriguez would prevent
Washington App. No. 15CA30 20

an officer who was both the stopping/investigating officer and also a canine

handler from ever deploying his canine without it being considered an

impermissible “prolonging” of the stop, absent reasonable suspicion to do

so.

{¶ 28} Further, even if the mission and purpose of the initial stop had

been concluded at the time Trooper Bayless decided to conduct a canine

sniff of Appellant's vehicle, we believe, under these facts, the troopers had

reasonable suspicion to prolong the stop and expand the scope of the

investigation. We reach this conclusion in light of the information contained

in the record, primarily the dash cam video which was entered into evidence

and was before the trial court for review and consideration. Taking the

contents of the video and the troopers' testimony together, we find the

troopers possessed reasonable suspicion to expand the investigation and

deploy the canine. Specifically, we believe the following factors provided

the troopers with reasonable suspicion to prolong the detention and expand

the scope of the investigation: 1) Appellant's extreme nervousness, which

included shaking hands, trembling, hand wringing, and repeated rearranging

of items in the dash that did not need rearranging; 2) the report from

dispatch that Appellant had a prior criminal history that included a drug

conviction; 3) statements heard on the dash cam video by Trooper Roe that
Washington App. No. 15CA30 21

he encountered a slight odor of marijuana that was overpowered by very

strong air freshener as he was checking Appellant's passenger side window;

and 4) the fact that Appellant’s windows had excessive window tint, which

would have made it difficult to see inside the vehicle.

{¶ 29} Despite Appellant's argument that nervousness is to be

expected during a stop of a vehicle and that that factor, in and of itself,

indicates essentially nothing, we note that nervousness is commonly one of

the factors cited when determining whether reasonable suspicion exists to

expand the investigation during a traffic stop. State v. Robinson, 4th Dist.

Lawrence No. 14CA24, 2016-Ohio-905; State v. Shook, 4th Dist. Pike No.

13CA841, 2014-Ohio-3403. And, the evidence before us indicates

Appellant seemed to be extremely nervous, especially, as Trooper Bayless

indicated, for only a window tint violation stop. Appellant's nervous

behavior included shaking hands, trembling, hand wringing and repeated

rearranging of items in the vehicle, which according to Trooper Bayless did

not need rearranging, as the vehicle was neat as a pin. Appellant's behavior

continued after he was informed the officers were simply investigating

whether his window tint was too dark.

{¶ 30} With regard to Appellant's argument that his history of a prior

drug conviction is not a factor to be considered when determining whether
Washington App. No. 15CA30 22

reasonable suspicion exists, we note this Court has previously affirmed

reliance on such a factor in determining whether reasonable suspicion exists.

State v. Shook, supra, ¶ 5 (LEADS criminal history check revealed history

of drug and weapons charges). Further, unusually strong air freshener is

often considered a red flag. State v. Eggleston, 11th Dist. Trumbull No.

2014-T-0068, 2015-Ohio-958 (reversing conviction but also noting the

presence of air freshener is an "indicia of potential drug activity.").

Additionally, the Supreme Court of Ohio has considered air

freshener/deodorizer and tinted windows both to be factors leading to

reasonable suspicion of criminal activity during a traffic stop. State v.

Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 19.

Further, as noted in Batchili, "[t]he “reasonable and articulable suspicion”

analysis is based on the collection of factors, not on the individual factors

themselves." Id. at ¶ 19.

{¶ 31} Thus, even though there may be innocent explanations for

each of the factors separately, taken as a whole, we believe Troopers Bayless

and Roe could reasonably conclude they had reasonable suspicion of

criminal activity. Trooper Bayless testified to this belief during the

suppression hearing. As indicated above, the totality of the circumstances

approach “allows officers to draw on their own experience and specialized
Washington App. No. 15CA30 23

training to make inferences from and deductions about the cumulative

information available to them that ‘might well elude an untrained person.’ ”

State v. Ulmer, supra, at ¶ 23; United States v. Arvizu, supra, at 273. 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, supra, at

¶ 23; Ornelas v. United States, supra, at 699.

{¶ 32} Thus, in summary, we conclude that the initial purpose or

mission of the stop had not been concluded at the time the decision was

made to deploy the canine for a sniff of the vehicle, and as such, no

reasonable suspicion was needed to conduct the sniff. Further, even if the

initial mission was concluded despite the fact that Trooper Bayless had not

yet issued Appellant a warning or citation, looking at the collection of

factors as a whole that the troopers were confronted with during the stop and

considering the totality of the circumstances, we conclude Troopers Bayless

and Roe had reasonable suspicion to expand the scope of their investigation

and any prolonging of the stop that occurred in order to attempt to conduct

the canine sniff, which ultimately was not needed, was justified.

{¶ 33} Moreover, “[r]ecognizing that ‘detention, not questioning, is

the evil’ at issue, * * * so long as the traffic stop is valid, ‘any questioning
Washington App. No. 15CA30 24

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.’ ” 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). Thus,

Appellant’s statement made pursuant to Trooper Bayless’ questioning during

the valid stop and detention, which was made only after Appellant had been

read his Miranda Rights, was valid and further provided the troopers with

probable cause to search Appellant’s vehicle. As such, we conclude that the

trial court did not err in denying Appellant’s motion to suppress.

Accordingly, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.
Washington App. No. 15CA30 25

Harsha, J., concurring:

{¶ 34} I concur in the judgment overruling Stevens’s assignment of

error. Nevertheless, I disagree with the conclusion of the majority that the

state troopers were not finished with their traffic stop at the time that

Trooper Bayless asked Stevens to exit the vehicle to conduct a K-9 search

and he Mirandized him. Trooper Bayless himself admitted that at that point,

they had stopped pursuing the initial stop for the tinted-windows offense and

had commenced a drug investigation.

{¶ 35} The principal opinion initially focuses upon the duration of the

initial stop as the means for limiting the scope of the Fourth Amendment

intrusion. In my view the duration of the initial stop, although relevant to

the Fourth Amendment inquiry, is not determinative of the issue here.

Rather, as the principal opinion ultimately concludes, our outcome is

determined by whether the troopers had observed additional articulable facts

justifying an expansion of the scope of the stop. “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. Rose, 4th Dist. Highland No. 06CA5, 2006–Ohio–5292, ¶ 17, citing
Washington App. No. 15CA30 26

State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997); see also

State v. Davis, 4th Dist. Athens No. 15CA26, 2016-Ohio-3539, ¶ 27.

{¶ 36} One of the facts the trooper relied upon in expanding the scope

of their stop was their knowledge of Stevens’s prior drug conviction. It is

important to note that a person’s past criminal history, standing alone, does

not provide the required level of suspicion to justify expanding the scope of

the initial intrusion from a traffic stop into a criminal investigation. See

Katz, Ohio Arrest, Search and Seizure, Section 18:11 (2016 Ed.), citing

State v. Whitman, 184 Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 293

(5th Dist.), quoting United States v. Sandoval, 29 F.3d 537, 542 (10th

Cir.1994) (“ ‘knowledge of a person's prior criminal involvement (to say

nothing of a mere arrest) is alone insufficient to give rise to the requisite

reasonable suspicion’ to justify a shift in investigatory intrusion from the

traffic stop to a firearms or drugs investigation”). But it is a factor that may

be considered in the analysis of the totality of the circumstances.

{¶ 37} Based upon the totality of the circumstances, the trial court did

not err in denying the suppression motion because the expansion of the

scope of Stevens’s detention was justified by additional facts—his extreme

nervousness, prior drug conviction, the strong odor of air freshener, and the

hint of the odor of marijuana masked by the air freshener—that gave rise to
Washington App. No. 15CA30 27

a reasonable suspicion that drug-related criminal activity was afoot.

Therefore, I concur in the judgment affirming the trial court’s judgment.
Washington App. No. 15CA30 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 Washington 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 with Concurring Opinion.

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.