STATE OF OHIO, Appellee, - vs - TAURION K. HOPE, Appellant.
CASE NO. CA2018-12-018
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
9/16/2019
[Cite as State v. Hope, 2019-Ohio-3719.]
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 18CR12587
Gump Law Offices, Nicole Rutter-Hirth, 2541 Shiloh Springs Road, Dayton, Ohio 45426, for appellant
PIPER, J.
{¶ 1} Appellant, Taurion Hope, appeals a decision of the Preble County Court of Common Pleas denying his motion to suppress in part and the sentence imposed by the trial court after he pled no contest to receiving stolen property.
{¶ 2} A trooper on patrol observed a speeding vehicle and measured the vehicle‘s speed as it increased from 76 m.p.h. to 78 m.p.h. After initiating a traffic stop, the trooper approached the car and immediately smelled the odor of raw marijuana emanating from the vehicle once the passenger rolled down the window. The trooper then removed the driver,
{¶ 3} After an investigation determined that some of the credit cards were stolen, Hope was indicted for receiving stolen property. Hope filed a motion to suppress, which was sustained in part and overruled in part.1 Hope pled no contest to the charge, the trial court found him guilty, and sentenced Hope to nine months in prison. Hope now appeals the trial court‘s denial of his motion to suppress in part and his sentence, raising the following assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} MR. HOPE‘S FOURTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE OFFICER STOPPED AND DETAINED HIM FOR TWENTY MINUTES TO ISSUE A WARNING FOR SPEEDING AND PROCEEDED TO SEARCH THE VEHICLE ABSENT REASONABLE, ARTICULABLE SUSPICION OF ADDITIONAL CRIMINAL ACTIVITY.
{¶ 6} Hope argues in his first assignment of error that the trial court erred in denying his motion to suppress in part.
{¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence to resolve factual questions and evaluate witness credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore, when reviewing the denial of a motion to suppress, this court is bound to accept the trial
{¶ 8} The
{¶ 9} When a law enforcement officer initiates a valid traffic stop, the officer may detain the motorist for the time sufficient to issue the motorist a citation and to perform routine procedures such as a computer check on the motorist‘s license, registration, and vehicle plates. State v. Vang, 12th Dist. Madison No. CA2018-06-017, 2019-Ohio-195, ¶ 17-19. The continued detention remains legal if based on “articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention.” State v. Robinette, 80 Ohio St.3d 234, 240 (1997).
{¶ 10} If the circumstances give rise to a reasonable suspicion of additional illegal activity, different than that which triggered the initial stop, then the officer may detain the driver for so long as the newly-discovered reasonable and articulable suspicion exists. State v. Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586. The existence of reasonable and articulable suspicion is determined by evaluating the totality of the circumstances “through the eyes of the reasonable and prudent police officer on the scene
{¶ 11} Further, the automobile exception to the warrant requirement of the
{¶ 12} During the motion to suppress hearing, the trooper testified that he observed the speeding vehicle and tracked its speed as high as 78 m.p.h., which was in excess of the posted speed limit. As such, there is no dispute that the traffic stop was valid at its inception given the trooper‘s observation of the traffic violation.
{¶ 13} When the trooper approached Hope‘s vehicle, he smelled the odor of raw marijuana when the passenger rolled down the window. The trooper administered a field sobriety test to determine whether Hope was impaired. While the test indicated that Hope was not “appreciably impaired,” there was a sign of recent marijuana usage. The trooper also testified that when he asked to look into Hope‘s mouth, he observed that Hope‘s tongue had a green “haze” on it and that Hope‘s taste buds were raised. In the trooper‘s experience, the green haze and raised taste buds were indicative of recent marijuana use.
{¶ 14} The trooper testified that when he asked how long it had been since Hope ingested marijuana, Hope stated “a few days ago.” Believing Hope‘s answer was untruthful, the trooper administered Hope his Miranda rights and continued to question him. The
{¶ 15} The trooper testified that given the smell of raw marijuana, the results of the field sobriety test, Hope‘s raised taste buds, as well as the green haze on Hope‘s tongue, he decided nine minutes after the traffic stop began to search the vehicle. The trooper then called for backup support, and upon their arrival, the search began 20 minutes after the stop was initiated.
{¶ 16} During the search, troopers located marijuana debris and credit cards in multiple locations throughout the vehicle. The troopers also located 13 additional credit cards on Hope‘s person. While some of the cards legitimately belonged to Hope, the troopers were able to determine that several were stolen.
{¶ 17} These facts indicate that the trooper had reasonable suspicion that drug activity was afoot given the odor of marijuana and the indicators of Hope‘s recent use. The trooper detained Hope only long enough to investigate first the traffic violation, and then the possible drug activity. While the trooper decided within nine minutes to search the vehicle, he had to wait an additional 11 minutes for backup to arrive. This delay was not an unreasonable detention given that the trooper did nothing to unnecessarily create or expand the delay, and instead, waited until other troopers were present to ensure his safety and assist in the search. As such, we find that the stop was valid at its inception and that it remained valid as the trooper investigated the possible criminal activity. Hope‘s first assignment of error is, therefore, overruled.
{¶ 18} Assignment of Error No. 2:
{¶ 19} MR. HOPE‘S SENTENCE WAS UNCONSTITUTIONAL AND UNLAWFUL BECAUSE A PRISON TERM WAS NOT PERMITTED NOR REQUIRED FOR A FELONY OF THE FIFTH DEGREE.
{¶ 21}
{¶ 22} After review, we find Hope‘s sentence contrary to law because the record does not indicate that the trial court considered the principles and purposes of sentencing or the relevant sentencing factors before sentencing Hope.
{¶ 23} During the sentencing hearing, the trial court stated only that it had received and reviewed a presentence report, the state‘s sentencing memorandum, as well as defense counsel‘s statements at the start of the sentencing hearing. However, there is no other indication made during the sentencing hearing that the trial court considered the requisite statutory factors. Nor did the trial court‘s sentencing entry state that it had considered both
{¶ 24} Judgment affirmed in part, reversed in part, and the matter is remanded for the limited purpose of resentencing.
RINGLAND, P.J., and M. POWELL, J., concur.