2005 Ohio 6001 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On January 29, 2003, appellant was stopped on the Ohio Turnpike by Trooper Stacey Arnold of the Ohio State Highway Patrol after Arnold observed appellant drift over the center line. After determining appellant had no criminal record or existing warrants, Trooper Arnold radioed for another officer to bring a canine to the scene to perform a "walk around." When the drug-sniffing dog alerted, Arnold and the other trooper searched the van, where they found boxes containing 144 videotapes and 95 DVDs, which they confiscated. On February 12, 2003, appellant was indicted on one count of theft in violation of R.C.
{¶ 3} Trooper Arnold testified that while watching eastbound traffic on the turnpike she observed appellant's van pass by and decided to follow. She stated that appellant did not commit a traffic offense as he drove past. She followed appellant briefly and observed him cross over the center line by less than the width of one tire, which would constitute a violation of the marked lanes section of R.C.
{¶ 4} Trooper Alejo Romero testified he responded to Arnold's request and walked his dog around appellant's van. He corroborated Arnold's testimony that they searched the van after the dog indicated.
{¶ 5} On October 14, 2003, the trial court denied appellant's motion to suppress evidence seized as a result of the stop. On January 12 and 13, 2004, the case was tried to a jury. Appellant was convicted of theft and receiving stolen property and acquitted of trademark counterfeiting and money laundering. The jury was unable to reach a verdict as to forgery and a mistrial was declared as to that count. The trial court later granted appellant's motion for a verdict of acquittal as to the theft conviction. On February 4, 2004, appellant was sentenced to six months incarceration and four years of community control on the receiving stolen property conviction. On May 17, 2004, the trial court issued a stay of sentence pending appeal.
{¶ 6} In his first assignment of error, appellant asserts Trooper Arnold did not have sufficient cause to prolong the traffic stop long enough for another trooper to respond with the drug dog and search the vehicle and that his continued detention constituted an illegal seizure. Appellant does not contest the initial traffic stop. Appellant argues that the arrival of the canine unit occurred well beyond the length of time it should have taken Trooper Arnold to write a traffic citation for a marked lane violation. Appellant notes that Trooper Arnold never wrote a trafficcitation. Appellant further argues that the troopers unreasonably prolonged the traffic stop and that once a reasonable period of time for issuing a traffic citation passed, an officer cannot continue the detention unless he has a reasonable, articulable suspicion of illegal activity sufficient to justify an extension of the detention.
{¶ 7} In examining a trial court's ruling on a motion to suppress, a reviewing court must keep in mind that weighing the evidence and determining the credibility of the witnesses are functions of the trier of fact. State v. DePew (1988),
{¶ 8} A police stop of a motor vehicle is a significant intrusion requiring justification as a "seizure" within the meaning of the Fourth Amendment and the Ohio Constitution. See State v. Heinrichs (1988),
{¶ 9} Once a police officer has made a legitimate and constitutional stop of a vehicle, the driver and the vehicle may be detained only for as long as the officer continues to have a reasonable suspicion that there has been a violation of the law. State v. Meyers (1990),
{¶ 10} "The mere fact that a police officer has an articulable and reasonable suspicion sufficient to stop a motor vehicle does not give that police officer `open season' to investigate matters not reasonably within the scope of his suspicion." Fairborn v. Orrick (1988),
{¶ 11} We stress that such an investigation must be justified by some objective manifestation that the person stopped is, "or is about to be, engaged in criminal activity." United States v. Cortez (1981),
{¶ 12} This court has repeatedly disapproved of law enforcement's practice of using the lawfulness of an initial stop to support a "fishing expedition" for evidence of crime. State v. Correa (1995),
{¶ 13} We must conclude in this case that Trooper Arnold lacked a reasonable, articulable suspicion sufficient to detain appellant and have a drug-detecting dog brought to the scene. Trooper Arnold testified that there were some "indicators" which caused her "concern" as she followed and then stopped appellant. The facts Trooper Arnold mentioned as causing her concern were that appellant did not pull over right away; he was not the owner of the car; at one point he said the van belonged to his cousin and at another said it belonged to a friend; the van had tinted rear windows; appellant's hands trembled and he did not make eye contact with her. Arnold also testified she thought it odd that appellant was traveling all the way from New York to Chicago for only two days. The relevant inquiry, however, is not whether the particular conduct is innocent or guilty, but rather the degree of suspicion that attaches to those particular non-criminal acts. United States v. Sokolow (1989),
{¶ 14} We find that the state did not present evidence of specific and articulable facts giving rise to a reasonable suspicion of criminal activity beyond that which prompted the stop. By the time the drug dog arrived on the scene, Trooper Arnold knew appellant had a valid license and there were no warrants issued on him. She also had confirmed that the vehicle was not stolen. Based on the trooper's testimony, the only remaining factors that might arguably have caused her concern were the van's tinted windows, appellant's nervous demeanor, his brief trip from New York to Chicago, appellant's conflicting responses as to who owned the vehicle, and the boxes covered with a blanket in the back of the van. None of those factors, when considered alone, would be sufficient to support a finding of reasonable suspicion. These days, tinted automobile windows are extremely common. Also, most people display some degree of nervousness when stopped by the police. Further, whether a two-day visit in Chicago after driving from New York is "extremely short," is a matter of personal opinion. The record reveals that appellant, whose native language is French, was provided with an interpreter at his court proceedings; it is possible that appellant's use of both the word "friend" and "cousin" to describe the owner of the vehicle when first asked by Trooper Arnold was a result of appellant's lack of fluency in the English language. Finally, there could be many legitimate reasons for transporting boxes covered with a blanket in the back of a cargo van.
{¶ 15} This court is also troubled by the fact that Trooper Arnold never cited appellant for the traffic offense which prompted the stop. Although she testified she returned to her cruiser to verify appellant's license and vehicle registration and write the citation, in the time between the initial stop and the arrival of Trooper Romero with his dog, no citation was written. Based on the testimony presented at the suppression hearing, we find that the troopers' "expanded investigation" went beyond the parameters warranted by the initial stop and was not supported by a reasonable, articulable suspicion of further criminal activity. As such, the search of appellant's vehicle was violative of the Fourth and Fourteenth Amendments to the Constitution of the United States and Article
{¶ 16} Based on our finding as to appellant's first assignment of error, his second and third assignments of error are rendered moot.
{¶ 17} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is reversed. This matter is remanded for further proceedings consistent with this decision and judgment entry. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Singer, P.J., Parish, J., concur.
Peter M. Handwork, J., dissents and writes separately
Dissenting Opinion
{¶ 18} I respectfully dissent. In my opinion, Trooper Arnold articulated multiple factors that caused her concern. In the trooper's words:
{¶ 19} "[W]hen I take into the totality of the circumstances surrounding the traffic stop, those indicators lead me to believe, again, that there may be some other type of criminal activity taking place."
{¶ 20} The majority explains away each of these factors noted with its own rationale of how each individual factor is unimportant. I prefer to give deference to the officer who observed each factor in concert with the totality of all other factors and exercised her professional judgment based upon her training and experience.
{¶ 21} The majority also expresses concern about the time involved between the stop and the canine alert, suggesting that an undue amount of time transpired. With regard to this issue, Trooper Arnold testified:
{¶ 22} "A. The reason I asked for [a walk around by the canine] is because I felt there was criminal activity taking place other than a routine traffic stop. Given the totality [of the circumstances] while I was up at the Ford I contacted Trooper Romero, asked him to respond to my location to utilize his canine while I ran the information from the driver from his drivers [sic] license
{¶ 23} "Q. So you never stopped the process of running information for purposes of writing and issuing a citation?"
{¶ 24} "A. No, I did not."
{¶ 25} This testimony suggest to me that no undue extension of time accrued between the trooper's seeking information to determine if a citation should issue and the walkaround by Trooper Romero and his canine. For these reasons, I believe that the judgment of the Lucas County Court of Common Pleas should be affirmed.
