State v. Newman

[Cite as State v. Newman, 2021-Ohio-119.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
KYLIE NEWMAN : Case No. 2020 CA 0018
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2019-CR-0389

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 19, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP MICHAEL E. STEPANIK
Prosecuting Attorney ALISSA R. BARBOSKY
Richland County, Ohio 520 Broadway Avenue, 1st Floor
Lorain, Ohio 44052
By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2020 CA 0018 2

Baldwin, J.

{¶1} Defendant-appellant Kylie Newman appeals from the denial by the Richland

County Court of Common Pleas of her Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 10, 2019, the Richland County Grand Jury indicted appellant on

one count of trafficking in cocaine in violation of R.C. 2925.03(A)(2) and (C)(4)(g), a felony

of the first degree, one count of possession of cocaine in violation of R.C. 2925.11(A) and

(C)(4)(f), a felony of the first degree, one count of aggravated funding of drug trafficking

in violation of R.C. 2925.05(A)(3) and (C)(1), a felony of the first degree, and one count

of operating a vehicle with a hidden compartment used to transport a controlled substance

in violation of R.C. 2923.241(C) and (F), a felony of the second degree. The indictment

also contained three forfeiture specifications and a major drug offender specification. At

her arraignment on May 28, 2019, appellant entered a plea of not guilty to the charges.

{¶3} On September 25, 2019, appellant filed a Motion to Suppress. A hearing on

such motion commenced on October 22, 2019.

{¶4} At the hearing, Trooper Colt Browne of the Ohio State Highway Patrol

testified that he was working on February 6, 2019 and was in uniform in a marked cruiser.

His cruiser was positioned on U.S. 30. Trooper Browne testified that he had been

contacted by his supervisor that a vehicle believed to be transporting drugs was traveling

northbound on I-71 from U.S. 30. He testified that he was given a description of the

vehicle, the license plate number and the identity of the occupants and “that it was a group

that we had made contact with before,…” Transcript at 33. He was also told that there
Richland County, Case No. 2020 CA 0018 3

may be drugs in the vehicle and that the vehicle was traveling from Texas to Ohio. He

testified that he was instructed to pull over the vehicle if he found probable cause to do

so.

{¶5} Trooper Browne was eventually notified over the radio that the vehicle had

just entered Richland County and was approaching his position. After making a visual

estimate that the vehicle was exceeding the speed limit, the Trooper used his laser a

series of times to check its speed. The laser indicated that the vehicle was traveling 60,

54, and then 50 miles an hour. Trooper Browne testified that he noticed the nose of the

vehicle dip as it rapidly decelerated down to 50 miles per hour. The posted speed limit

was 55 miles per hour. The Trooper testified that he began to tail the vehicle. He testified

that he was able to catch up with the vehicle a couple of miles down the road. Trooper

Browne testified that he pulled alongside the vehicle and observed that the driver and

right front passenger were rigid in their seats and that while they appeared to be talking

to each other, they were not making eye contact. He testified that they “were straight

ahead.” Transcript at 54. The Trooper then initiated a traffic stop for speeding.

{¶6} The vehicle then pulled over on the berm of U.S. 30. He testified that

appellant, the driver, began frantically searching for her driver’s license in her purse.

Appellant eventually turned over a valid drivers’ license. However, she handed over

invalid insurance information. Trooper Browne then asked appellant if she had updated

insurance and she did not but said that she might be able to find updated insurance

information in her phone. She began looking into her phone for the insurance information.

{¶7} While appellant was looking though her phone, German Zuniga, a

passenger, asked if the Trooper was involved in a previous traffic stop with him on
Richland County, Case No. 2020 CA 0018 4

December of 2018 and the Trooper responded affirmatively. Trooper Browne’s sergeant

had told him that it was the same group.

{¶8} After appellant handed the Trooper an outdated insurance card, he asked

her if she had a more updated card. He asked appellant to exit the vehicle to try to get

her to show her insurance and to continue with his check and so that he would have an

easier time talking to her. Appellant then exited her vehicle but stopped and tied her shoe

while still in the road. Appellant wanted the Trooper to look up her insurance company

and call them through Google. Because it is the driver’s duty to provide the insurance,

Trooper Browne told appellant to keep trying to find the insurance in her emails.

{¶9} Trooper Browne asked appellant where they were coming from and

appellant indicated Houston. She told him that they had been visiting Zuniga’s relative

who had throat cancer but was unable to identify the hospital that he was in. Appellant

told him that they were headed home to Lorain, but they were headed in the opposite

direction. At the 8 minute and 43 second mark into the stop, Trooper Browne advised

appellant of her rights but did not take her into custody. Appellant, at that point, had not

given him her insurance information. Appellant told the Trooper that she did not want to

sit in the back of his car and her let her stand outside. Trooper Browne testified that

German Zuniga, the passenger, told him that they were going to Lorain but once he

realized that they were traveling in the wrong direction, said that they were going

somewhere to get outfits for his daughters.

{¶10} Trooper Browne testified that based on his past interaction with appellant

and Zuniga, they appeared more nervous than previously. Appellant had yet to produce

any current proof of insurance at the 14 minute 16 second mark. Due to their
Richland County, Case No. 2020 CA 0018 5

nervousness, Trooper Browne decided to walk his canine Atos around the vehicle. At

fifteen minutes into the traffic stop. Trooper Browne performed a free air search around

the vehicle with Atos. He testified that he went to the Ohio State Highway Patrol K9

school. Trooper Browne and Atos have received multiple training certifications from the

Ohio Attorney General Peace Officer Training Commission. Trooper Browne testified that

they had continual maintenance training that was a minimum of 16 hours a month.

{¶11} During the second pass of the free air sniff, Atos breathed in the vehicle’s

exhaust fumes and disengaged with the vehicle. Atos was not very interested in sniffing

around the vehicle the second time. Trooper Browne agreed that Atos’ capability of

smelling was at least temporarily compromised and his interest and engagement were

also temporarily compromised due to the vehicle exhaust fumes. During his third walk

around the vehicle, Atos reengaged and showed positive body language by wagging his

tail and canting his head back to the vehicle. During his fourth walk, Atos gave his final

indication by attempting to lie down in the areas directly under the vehicle on the driver’s

side.

{¶12} Based on the positive indications from Atos, Trooper Brown conducted a

search of the vehicle. He testified that substances were found in the toolbox in the bed of

the truck and the false bottom on the toolbox on the driver’s side near where Atos had

been indicated. When he opened the tool box, “[i]t looked completely off because the

depth was off.” Transcript at 150. Ten packages of cocaine were found in the secret

compartment. Appellant and the other occupants of the vehicle were then arrested.

{¶13} On cross-examination, Trooper Browne testified that in December of 2018,

he had stopped a vehicle in Amherst, Ohio and that appellant was a passenger in the
Richland County, Case No. 2020 CA 0018 6

same. He testified that the vehicle was stopped based upon a tip. While the K9 alerted

to the presence of drugs in the vehicle, no illegal narcotics were found during a search of

the vehicle.

{¶14} Sergeant Rich Barrett testified as an expert in K9 training and law

enforcement K9 training in drug detection for the State of Ohio. He has over twelve years

of experience in being a K9 officer and training approximately two hundred K9 teams.

Sergeant Barrett testified that it was his expert opinion that Trooper Browne and Atos

were an effective team and that the Trooper did not force Atos into a final indication. He

testified that K9s with the Ohio State Highway Patrol are trained to detect the source of

odors and that due to the poor construction of the secret department in the toolbox, it

would not prevent the dot of the narcotics from leaking out. He further testified that while

usually K9s are trained to make one and a half to two passes of a vehicle , Atos was

taken around appellant’s vehicle more than twice because of the extenuating

circumstances of his encounter with the vehicle’s’ exhaust. Sergeant Barrett opined that

Atos did alert and subsequently indicate to the odor of narcotics emanating from the

vehicle. His Expert Opinion Report was admitted as an exhibit.

{¶15} At the suppression hearing, appellant called Andre Falco Jimenez as an

expert in K9 training. He testified that his business had a history of training dogs for police

work and that he had been in the business of training K9s for approximately 20 years. He

was recognized as an expert in K9 training, including scent detection. He testified that a

K9 cannot find the source of narcotic odor. Jimenez is the author of a publication titled

“Big Income Expertise How Even You Can Be an Expert on Anything and Profit From It.”
Richland County, Case No. 2020 CA 0018 7

{¶16} On or about December 12, 2019, the trial court denied appellant’s Motion

to Suppress. On December 13, 2019, appellant entered a plea of no contest to the

charges and was found guilty. Pursuant to a Sentencing Entry filed on January 9 2020,

appellant was sentenced to an aggregate prison term of eleven years.

{¶17} Appellant now raises the following assignments of error on appeal:

{¶18} “I. APPELLANT’S RIGHTS UNDER THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE U.S. CONSTITUTIONS WERE VIOLATED WHEN THE

ARRESTING OFFICER UNREASONABLY PROLONGED THE TRAFFIC STOP IN

ORDER TO ALLOW A DRUG-SNIFFING DOG TO SNIFF APPELLANT’S VEHICLE.”

{¶19} “II. APPELLANT’S RIGHTS UNDER ARTICLE I, SECTION 14 OF THE

OHIO CONSTITUTION WERE VIOLATED WHEN THE ARRESTING OFFICER

UNREASONABLY PROLONGED THE TRAFFIC STOP IN ORDER TO ALLOW A

DRUG-SNIFFING DOG TO SNIFF APPELLANT’S VEHICLE.”

{¶20} “III. THE STATE OF OHIO FAILED TO PRODUCE SUFFICIENT

EVIDENCE THAT K-9 ATOS PERFORMS RELIABLY IN DETECTING DRUGS IN

VIOLATION OF FLORIDA V. HARRIS, 568 U.S. 237(2013).”

{¶21} “IV. THE STATE OF OHIO’S FAILURE TO MAINTAIN RECORDS OF K-9

PERFORMANCES, PARTICULARLY WHERE THERE ARE KNOWN ERRORS IN THE

FILED, VIOLATES DUE PROCESS AND IS VIOLATIVE OF BRADY V. MARYLAND.”

{¶22} “V. THE TRIAL COURT ERRED IN DETERMINING THAT K-9 ATOS

ALERTED TO THE VEHICLE BEING OPERATED BY MS. NEWMAN.”
Richland County, Case No. 2020 CA 0018 8

I, II, III, IV, V

{¶23} Appellant, in her five assignments of error, challenges the trial court’s denial

of her Motion to Suppress.

{¶24} Appellate review of a trial court's decision to deny

a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). 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, 75 Ohio St.3d 148,

154, 1996-Ohio-134, 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.

Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). 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, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th

Dist.1993), overruled on other grounds.

{¶25} 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, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue 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 Williams,
Richland County, Case No. 2020 CA 0018 9

supra. 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, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

{¶26} When ruling on a motion to suppress, the trial court assumes the role of trier

of fact and is in the best position to resolve questions of fact and to evaluate the credibility

of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

{¶27} Appellant argues that the Trooper unreasonably prolonged the traffic stop

in order to allow a drug-detecting dog to sniff her vehicle and, in doing so, violated her

rights under the Fourth and Fourteenth Amendments to the U.S. Constitution and Article

I, Section 10 and Section 14 of the Ohio Constitution.

{¶28} “’ [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, 55

Ohio App.3d 130, 131, 562 N.E.2d 932 (2nd Dist. Miami 1988). “This measure includes

the period of time sufficient to run a computer check on the driver's license, registration,

and vehicle plates.” Id., citing State v. Bolden, 12th Dist. Preble No. CA2003-03-007,

2004-Ohio-184, ¶ 17, citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59

L.Ed.2d 660(1979). Additionally, “ ‘[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
Richland County, Case No. 2020 CA 0018 10

the investigation.’ ” Id., quoting State v. Carlson, 102 Ohio App.3d 585, 598-599, 657

N.E.2d 591(9th Dist. Medina 1995), citing State v. Cook, 65 Ohio St.3d 516, 521-522, 605

N.E.2d 70 (1992), and United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d

605 (1985).

{¶29} “[A]n investigative detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103

S.Ct. 1319, 75 L.Ed.2d 229 (1983). Indeed, “[t]he lawfulness of the initial stop will not

support a fishing expedition for evidence of crime.” State v. Gonyou, 108 Ohio App.3d

369, 372, 670 N.E.2d 1040 (6th Dist.1995). Still, “the detention of a stopped driver may

continue beyond the [normal time] frame when additional facts are encountered to give

rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted

the initial stop.” State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E.2d 1282,

¶ 15.

{¶30} The trial court found, and we agree, that Trooper Browne did not

unreasonably prolong the stop. There was testimony that he was still in the process of

conducting the traffic stop when he walked his K9 around appellant’s vehicle. Appellant

was still in the process of looking for proof of insurance. Approximately thirteen minutes

had passed between the stop and the K9 sniff and appellant was still attempting to locate

current proof of insurance. As noted by the trial court, Trooper Browne testified that he

was going to give appellant a warning for her speeding as long as she was able to provide

proof of insurance. We note that in State v. Guinto, 5th District Ashland Nos. 12-COA-

031 and 12-COA-032, 2013-Ohio-2180, this Court held that a thirty-one (31) minute delay

from the time of the stop until the time of the drug dog hit was attributable to the necessity
Richland County, Case No. 2020 CA 0018 11

that the appellant produce valid proof of insurance and that there was no violation of the

appellant’s Fourth Amendment rights. In the case sub judice the delay was attributable

to the necessity that appellant provide valid proof of insurance.

{¶31} Appellant also argues that the State of Ohio failed to produce sufficient

proof that K9 Atos performs reliably in detecting drugs in violation of Florida v. Harris, 568

U.S. 237, 133 S.Ct. 1050 (2013). Appellant notes that at the suppression hearing,

Sergeant Barrett of the Ohio State Highway Patrol testified that the Patrol no longer kept

records of a K9 unit’s performance in the field. Appellant argues that this violated due

process and is violative of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194.

{¶32} In Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050 (2012), the U.S.

Supreme Court addressed how a court should evaluate probable cause based on an alert

from a drug detection dog when the defendant has challenged the dog's

reliability. Id. at 1053. The court rejected Florida's rigid test that required the state in every

case to present exhaustive evidence of reliability in favor of a more flexible, common-

sense approach that examines the dog's training. Id. In so doing, the court held

that “evidence of a dog's satisfactory performance in a certification or training program

can itself provide sufficient reason to trust his alert.” Id. at 1057. However, the court noted

that a defendant “must have an opportunity to challenge such evidence of a dog's

reliability, whether by cross-examining the testifying officer or by introducing his own fact

or expert witnesses.” Id. Regarding the reliability of a canine search, the United States

Supreme Court has held that “[i]f a bona fide organization has certified a dog after testing

his reliability in a controlled setting, a court can presume (subject to any conflicting
Richland County, Case No. 2020 CA 0018 12

evidence offered) that the dog's alert provides probable cause to

search.” Florida v. Harris, 568 U.S. 237, 246-247, 113 S.Ct. 1050 (2013).

{¶33} In State v. Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d

1180, ¶ 55 (6th Dist.), the court stated that “proof of the fact that a drug dog is properly

trained and certified is the only evidence material to a determination that a particular dog

is reliable. Proof that a drug dog is properly trained and certified may be established by

means of testimony or through documentary proof.” The court, in Nguyen, noted that a

“new trend in some federal courts stresses that when the state demonstrates that the

drug dog is trained and certified, it negates any need to establish the reliability of the

challenged canine.” Id at paragraph 35.

{¶34} In order for a K9 alert to support a determination of probable cause, the

State must establish the dog's reliability by adducing evidence of the K9's training and

certification. State v. Lopez, 166 Ohio App.3d 337, 2006–Ohio–2091, 850 N.E.2d 781, ¶

25 (1st Dist.).

{¶35} In the present case, appellee presented both testimony and documentary

proof establishing that Atos was properly trained and certified as a narcotics-detection

canine. Pursuant to Nguyen, this evidence was sufficient to establish the canine’s

reliability. In the case sub judice, extensive training and certification records for Trooper

Browne and Atos were entered into evidence. This amounted to numerous pages of

training records. Trooper Browne testified in detail regarding the certification process.

There was testimony that the Trooper and Atos were certified by the Ohio Peace Officer

Training Commission on the date of the traffic stop. Moreover, Sergeant Barrett, as an

expert witness, reviewed four or five months’ worth of Atos’ records in announcing that
Richland County, Case No. 2020 CA 0018 13

he was reliable. Both officers were subject to cross-examination. We find that appellant’s

due process rights were not violated.

{¶36} Appellant, in her final assignment of error, contends that the trial court erred

in determining that K9 Atos alerted to the vehicle being operated by appellant. Appellant

argues that there was not competent credible evidence that the K9 alerted to the vehicle

and that greater weight of evidence militates towards a finding that Atos did not alert on

the vehicle.

{¶37} A reviewing court must defer to the trial court's factual findings

if competent, credible evidence exists to support those findings. State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1 (4th Dist. 1998).

{¶38} In the case sub judice, both Trooper Browne and Sergeant Barrett testified

that Atos alerted. In addition, the video of the stop was played for the trial court. The trial

court, in its Judgment Entry overruling the Motion to Suppress, stated, in relevant part, as

follows:

{¶39} “The court has considered Tpr. Browne and K9 Atos’s certifications and

training records. The court also has had the opportunity to review the in car video of the

free air sniff performed by Tpr. Browne and K9 Atos. The court believes that the video

speaks for itself. The court finds Tpr. Browne’s testimony to be credible and consistent

with what can be seen on video. Clearly, Atos is bothered by getting a face full of exhaust

fumes. The court find (sic) defense witness, Andy Jimenez, to be less than credible

when he testified that rather than the exhaust fumes, it was simply Atos’s displaying

avoidance behavior at the rear of the vehicle. The video says otherwise in the court’s

opinion.
Richland County, Case No. 2020 CA 0018 14

{¶40} “Defense witness Andy Jimenez, also says he did not see any independent

alert by Atos for the presence of narcotics on the video. It is the testimony of Mr. Jimenez

that everything Atos does with reference to the vehicle was simply the result of Tpr.

Browne pressuring Atos to do it. Again, the court finds Mr. Jimenez to lack credibility

regarding this assertion. The video shows what the court finds to be independent alerts

by Atos consistent with the testimony of Tpr. Browne. Tpr. Browne’s testimony is also

supported by not only the video itself but also by Sgt. Barrett’s testimony. The court, as

fact finder in this matter, finds Tpr. Browne’s and Sgt. Barrett’s testimony to be more

credible and more believable than Mr. Jimenez. The court further finds that the video

itself is more consistent with the testimony of Tpr. Browne and Sgt. Barrett then it is with

testimony of Mr. Jimenez.”

{¶41} Upon our independent review of the video of the traffic stop, we find that the

greater weight of evidence militates towards a finding that Atos alerted on the vehicle.

The video show Atos attempting to crawl under the truck on rear of the driver’s side.

{¶42} Based on the foregoing, we find that the trial court did not err in overruling

the Motion to Suppress. Appellant’s five assignments of error are overruled.
Richland County, Case No. 2020 CA 0018 15

{¶43} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Wise, J. and

Delaney, J. concur.