2005 Ohio 6041 | Ohio Ct. App. | 2005
{¶ 2} On May 3, 2004, Ohio State Highway Patrol Trooper Shaun Smart observed appellant's vehicle traveling eastbound on U.S. Interstate 70 followed by a semi tractor-trailer. As Trooper Smart observed the vehicle, appellant slowed to a rate of 55 m.p.h. in a 65 m.p.h. zone. He then made four lane changes, three without a turn signal, and closely followed the vehicle in front of him. Trooper Smart, a 13-year veteran specializing in criminal interdiction, grew suspicious. He called for backup to assist in stopping both appellant's vehicle and the semi truck. As Smart's cruiser approached appellant's van to run a license plate check, appellant abruptly exited the interstate, driving through a no-passing portion of the exit ramp. Trooper Smart then initiated the stop of appellant's vehicle.
{¶ 3} Neither appellant nor his passenger was able to produce an operator's license upon Smart's request. Appellant instead produced a rental agreement for the van. Smart noted that the van was rented under appellant's name in California at a one-day rate, restricted to the California area, and was already a day overdue at the time of the stop in Ohio. Upon questioning, appellant explained that he exited the interstate to go to a gas station, though Trooper Smart noted that appellant had nearly a full tank of gas. Appellant also said that he and his passenger were boyfriend and girlfriend, but changed his story after the passenger stated that they were just friends. Appellant's dubious responses as well as the details of the rental agreement immediately raised the suspicions of Smart, who sought to investigate further. However, about five minutes into the stop, Smart requested that appellant drive his van to the scene of the tractor-trailer stop a half mile away so that Smart could speak to the driver of the semi and ascertain whether he should personally handle that stop. Appellant agreed to the move.
{¶ 4} After deciding to allow the other officer to conduct the stop of the semi truck, Smart continued to question appellant and his passenger. Smart noted that both appellant and his passenger remained nervous throughout the stop. Smart also found their travel itineraries suspect. Appellant explained that he and his passenger had flown from two different states to two different airports in California. He rented a car and exchanged it for a van at the airport where he picked up his passenger because he claimed the first car was uncomfortable. He also alleged that he stayed in California for two days, which Smart deduced was not possible due to the timeframe in which appellant was stopped by him. Appellant claimed that he had flown to California to meet a boxing coach for whom appellant had no last name, contact information, or meeting arrangements. Also, although appellant insisted that he purchased a one-way airline ticket and rented a car so that he could "see the country," Smart observed that appellant had reserved no time for sightseeing. Taking all of these responses into consideration, Smart believed appellant was lying about the details of his trip.
{¶ 5} Because Trooper Smart suspected that there were drugs in appellant's van early in the stop and appellant's answers failed to dispel these suspicions, Smart called for a drug dog. The first dog arrived approximately 16 minutes into the stop. The dog twice failed to alert after sniffing around the exterior of the van. When Smart asked appellant if he could place the dog inside the van, appellant neither denied nor gave permission but instead accused Smart of racial profiling. Smart then decided to call a second dog because he was aware that the first dog had failed to alert on a vehicle noticeably carrying marijuana earlier that day. While waiting for the second dog, Smart continued his investigation and issued appellant a citation for following too closely. The second dog arrived approximately 63 minutes into the stop. This dog aggressively alerted along the right-hand side of the van. At this point, Smart felt that he had probable cause to search the van, and determined that a search would be more expeditious and less intrusive than pursuing a search warrant. Upon searching the van he found approximately 500 grams of cocaine in the rear jack compartment of the van. Smart then placed appellant under arrest.
{¶ 6} Appellant was charged with possession of cocaine in violation of R.C.
{¶ 7} Assignment of Error No. 1:
{¶ 8} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS."
{¶ 9} When reviewing a trial court's decision on a motion to suppress, a reviewing court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v.McNamara (1997),
{¶ 10} In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress evidence and raises three issues for our consideration: the illegality of the detention; inapplicability of the inevitable discovery doctrine; and exclusion of the evidence as fruit of the poisonous tree. Appellant does not contest the factual determinations of the trial court, and our review of the record confirms that the trial court's findings of fact are supported by competent, credible evidence. Rather, appellant essentially contends that, given those facts, the trial court erred in finding that Trooper Smart had a reasonable articulable suspicion of criminal activity justifying the extent of appellant's detention.
{¶ 11} We first note that there are two types of traffic stops, each requiring a different constitutional standard. State v. Moeller (Oct. 23, 2000), Butler App. No. CA99-07-128, at 4. The first is an investigative or "Terry" stop, which occurs where an officer has a reasonable suspicion based upon specific and articulable facts that an individual is or has been engaged in criminal activity. Terry v. Ohio
(1968),
{¶ 12} The second type of traffic stop, a typical noninvestigatory stop, occurs where an officer directly observes a traffic violation, giving rise to probable cause to stop the vehicle. Whren v. UnitedStates (1996),
{¶ 13} If during the scope of the initial stop an officer encounters additional specific and articulable facts which give rise to a reasonable suspicion of criminal activity beyond that which prompted the stop, the officer may detain the vehicle and driver for as long as the new articulable and reasonable suspicion continues. State v. Myers (1990),
{¶ 14} The period of detention between the arrival of the first and second drug dogs was also justified. See State v. Myers (1990),
{¶ 15} Due to the fact that the detention in this case was lawful, we need not determine the applicability or nonapplicability of the inevitable discovery doctrine, State v. Perkins (1985),
{¶ 16} Assignment of Error No. 2:
{¶ 17} "THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY APPOINTED ATTORNEY FEES AS PART OF HIS CRIMINAL SENTENCE."
{¶ 18} In his second assignment of error, appellant argues that R.C.
{¶ 19} R.C.
{¶ 20} In support of his argument for a separate civil judgment ordering payment of court-appointed attorney fees, appellant cites two Eighth District cases imposing this requirement. See State v. Crenshaw
(2001),
{¶ 21} We have not adopted this two-step process. Interpreting 2941.51(D), we have held that the trial court must only make an affirmative determination on the record that the accused has the ability to pay or may reasonably be expected to have the ability to pay. SeeState v. Dunaway, Butler App. No. CA2001-12-280, 2003-Ohio-1062, ¶ 39;State v. Cooper,
{¶ 22} In conclusion, the trial court did not err in denying appellant's motion to suppress because the detention was lawful and as such does not warrant exclusion of the evidence as fruit of the poisonous tree. Further, the trial court did not err in ordering appellant to pay his court-appointed attorney fees because the court made an affirmative determination on the record of appellant's ability to pay.
{¶ 23} Judgment affirmed.
Powell, P.J., and Bressler, J., concur.
