STATE OF OHIO, PLAINTIFF-APPELLEE, v. ROBERT A. SKAGGS, DEFENDANT-APPELLANT.
CASE NO. 3-20-13
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
August 16, 2021
[Cite as State v. Skaggs, 2021-Ohio-2803.]
Judgment Affirmed
APPEARANCES:
Edwin M. Bibler for Appellant
Ryan M. Hoovler for Appellee
{1} Defendant-appellant Robert Skaggs (“Skaggs“) brings this appeal from the judgment of the Common Pleas Court of Crawford County denying his motion to suppress. On appeal, Skaggs claims that 1) the stop exceeded the scope and duration necessary to complete the traffic stop and 2) there was no reasonable, articulable suspicion for continuing the stop. For the reasons set forth below, the judgment is affirmed.
{2} On December 3, 2019, the Crawford County Grand Jury indicted Skaggs on one count of Possession of Drugs in violation of
{3} At the hearing, Captain Joseph Greathouse (“Greathouse“) testified as follows. In 2016, the police received information that Skaggs may be bringing drugs into the area and selling them when he came up to visit family. Tr. 14-17. On May 18, 2018, the police received a tip from an informant that Skaggs was selling drugs at an address inside Bucyrus. Tr. 19. The informant reported that the drugs arrived at the address via FedEx. Tr. 20. On July 16, 2019, the police received a letter claiming that Skaggs was selling narcotics in the Bucyrus area. Tr. 22. Then on July 21, 2019, the police received another tip that Skaggs, who lives in Tennessee,
{4} Greathouse testified that on November 12, 2019, he was working in an unmarked car checking “hot spots” for drug activity. Tr. 31. While at one location,
{5} On cross-examination, Greathouse admitted that none of the tips received were related to November 2019. Tr. 53. Greathouse also admitted that the home that he was observing on November 8, 2019, when he saw the motorcycle come and go quickly belonged to a relative of Skaggs which could explain why he was there. Tr. 54. As to the events of November 12, Greathouse saw Skaggs go to a residence where he only stayed a couple of minutes, but did not see Skaggs carry
{6} Pennington testified that Greathouse contacted him on November 12, 2019, and told him the traffic violations Greathouse had observed. Tr. 70-71. Greathouse wanted him to conduct a traffic stop based upon a stop bar violation and traveling left of center. Tr. 71. Pennington indicated that the vehicle was a Chrysler with Tennessee plates and was in working condition. Tr. 71-72. Pennington observed that Skaggs’ left arm was shaking and Skaggs stated that he may have went left of center because he “wasn‘t from the area” and that he was using the GPS on his phone. Tr. 72. Pennington believed that Skaggs was lying because he was from the area and that in his opinion, Skaggs was shaking because he was nervous. Tr. 72. Pennington then asked permission from Skaggs to search the vehicle before he returned to the patrol car to write the warning, but Skaggs said no. Tr. 73. Pennington then returned to the patrol car and requested a canine and that it be expedited. Tr. 74. Pennington then went back to the vehicle and had Skaggs exit the vehicle so that he could conduct a pat down search for officer safety. Tr. 74.
{7} On cross-examination Pennington admitted that he actually conducted two pat down searches of Skaggs and did not remove anything from Skaggs’ pockets. Tr. 79. When Pennington felt the money he asked what it was and if he could remove it. Tr. 80. After seeing it was money, Pennington put it back in Skaggs’ pocket. Tr. 80. Skaggs told Pennington he was from Tennessee, the car was registered in Tennessee, and Skaggs had a Tennessee driver‘s license. Tr. 80.
{8} Hulsmeyer testified that he is employed by the Crawford County Sheriff‘s Office as a canine handler. Tr. 88. On November 12, 2019, he was working with a qualified drug detection canine. Tr. 89. On that evening, he was not working, but received a request from the Bucyrus Police Department to go to the scene of a traffic stop. Tr. 90. Hulsmeyer indicated that they made one lap around the car clockwise and then turned to go around counterclockwise. Tr. 90. The canine alerted on the rear passenger door during the second lap of the vehicle. Tr. 91. After that Hulsmeyer returned the canine to his vehicle and observed the search until Pennington found what was suspected as methamphetamines. Tr. 91.
{9} On June 22, 2020, the trial court entered judgment denying the motion to suppress. Doc. 35. Skaggs later entered into a written plea of no contest to the indictment. Doc. 37. The trial court accepted the plea and sentenced Skaggs to five years of community control. Doc. 38. Skaggs filed a timely notice of appeal. Doc. 40. On appeal, Skaggs raises the following assignments of error.
The trial court erred in denying [Skaggs‘] motion to suppress the evidence where the stop of [Skaggs‘] vehicle by officers of the Bucyrus Police Department and Crawford County Sheriff‘s Office exceeded the scope and duration necessary and there was no reasonable, articulable suspicion that drug activity was occurring on November 12, 2019.
Second Assignment of Error
The trial court erred in denying [Skaggs‘] motion to suppress the evidence where there was no reasonable, articulable suspicion that drug activity was occurring at the time of the stop of [Skaggs‘] vehicle on November 12, 2019.
{10} In both assignments of error, Skaggs claims that the trial court erred in denying his motion to suppress.
Under appellate review, motions to suppress present “mixed questions of law and fact.” State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 20 (3d Dist.).
“When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” (Citations omitted.)
State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
State v. Sullivan, 2017-Ohio-8937, ¶ 11, 102 N.E.3d 86 (3d Dist.).
{12} On appeal, this Court affirmed the judgment of the lower court. Id. at ¶ 48. When reviewing the issue, this Court held that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required” to issue a ticket. Id. at ¶ 13 quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).
““When an officer detains a motorist for a traffic violation, the stop should delay the motorist only for the amount of time necessary to issue a citation or warning.“” State v. Hall, 2d Dist. Darke, 2017-Ohio-2682, 90 N.E.3d 276, ¶ 8, quoting State v. Hill, 2d Dist. Montgomery No. 26345, 2016-Ohio-3087, ¶ 9, citing State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12; State v. Troutman, 3d Dist. Marion No. 9-11-17, 2012-Ohio-407, ¶ 22 (“[T]he duration of the stop “is limited to “effectuate the purpose for which the initial stop was made.” ” “), quoting State v. Smith, 117 Ohio App.3d 278, 285, 690 N.E.2d 567 (1st Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 655, 645 N.E.2d 831 (4th Dist.1994). ” “The reasonable stop time includes the amount of time it takes to conduct a computer check on the driver‘s license, registration, and vehicle plates.” ” Hall at ¶ 8, quoting Hill at ¶ 9; Rodriguez v. United States, 575 U.S. 348, 355, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015) (“[A]n officer‘s mission includes ‘ordinary inquiries incident to [the traffic] stop’ * * * [such as] checking the driver‘s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile‘s registration and proof of insurance.“), quoting Caballes at 408. ““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.“” Batchili at ¶ 12, quoting State v. Howard, 12th Dist. Preble Nos. CA2006-02-002 and CA2006-02-003, 2006-Ohio-5656, ¶ 15, quoting State v. Carlson, 102 Ohio App.3d 585, 598-599, 657 N.E.2d 591 (9th Dist.1995).
Lawler at ¶ 14. Lawler noted that a canine sniff is not a typical action taken in an ordinary stop because it does not have “the same close connection to roadway safety as the ordinary inquiries” and is not a part of an officer‘s traffic mission. Id. at ¶ 15 quoting Rodriguez, supra. An officer is permitted to conduct a canine sniff of a vehicle during a traffic stop without reasonable suspicion of additional illegal activity as long as it is completed before the traffic stop would normally end. Lawler at ¶ 15. However, if the stop is extended to conduct a canine sniff, the officer must have reasonable suspicion based upon additional facts to believe that the vehicle contains drugs in order to detain the driver for the extra time it takes for the canine to arrive. Id. at ¶ 16. See State v. Elliott, 7th Dist. Mahoning No. 11 MA 182, 2012-Ohio-3350, ¶ 23; Batchili, supra at ¶ 15 (holding that the stop may be extended beyond the normal time if additional facts are found during the stop to give rise to a reasonable, articulable suspicion of criminal activity). The analysis of whether there is reasonable and articulable suspicion is based upon the collection of factors, not on a single individual factor. Lawler at 16.
{13} When reviewing the factors presented by the officer in Lawler, the trial court noted that the stop was for a minor traffic offense, but that the trooper learned that the driver‘s license had been suspended and that the vehicle had been loaned to the defendant. Id. at ¶ 17. The trial court noted that the stop went on for approximately 28 minutes before the drug dog arrived on the scene. Id. This Court
{14} This Court held that although these actions and learning that the driver lacked a valid license would provide some justification for extending the stop, the extension was only permitted “for such time as would have been reasonably necessary to investigate these additional potential infractions.” Id. at ¶ 31. See United States v. Winters, 782 F.3d 289, 296 (6th Cir.2015) (holding the extension of a traffic stop based on new reasonable suspicion is limited in the scope and duration to what is reasonable). While the stop may be extended, the officer still is required to diligently pursue the investigation to either confirm or dispel the suspicions quickly.” Lawler at 31. After reviewing the record in Lawler, this Court held that the trooper did not diligently pursue his investigation because by his own admission, he did nothing addition to further the investigation, instead just waiting for the canine to arrive. Id. at ¶ 32. This Court determined that the canine sniff did not
{15} This Court then went on to discuss how the stop may still be prolonged as long as the law enforcement officer has a reasonable articulable suspicion that the vehicle contains drugs at that time. Id. at ¶ 36. Although we are to look at the factors as a whole when evaluating whether there was a reasonable and articulable suspicion of drug activities, “it is appropriate to assess the extent to which a given factor is [individually] indicative of criminal activity.” Id. at ¶ 37 citing United States v. Bowman, 884 F.3d 200 (4th Cir.2018) and United States v. Stepp, 680 F.3d 651 (6th Cir.2012). In Lawler, this court reviewed the factors and found that although the defendant and the driver may have shown odd behavior that indicated
{16} In this case, there is no question that the primary purpose of this stop was to obtain a canine sniff of the vehicle in order to search the vehicle for drugs. Greathouse testified that this was the purpose. Tr. 34. Pennington testified that after Skaggs denied his request to search the vehicle, he returned to the patrol car to call for the canine unit and to write the warning citation. Tr. 74. The undisputed evidence was that the warning citation was never issued and that Pennington and the other officer who was in his patrol car and writing the citation stopped writing it when they learned that the dog would be delayed. Pennington admitted that he was not proceeding with the investigation into the basis for the stop, which allegedly was Skaggs crossing the stop bar and using his phone while driving. Pennington was frustrated that the dog did not appear for approximately 23 minutes. Even the trial court conceded that if this had been a “routine traffic stop and not a drug investigation *** [t]he evidence would be excluded, because through probably nobody‘s real fault, the stop was extended longer than necessary.” Tr. 103. The trial court noted that this matter could have been concluded in 10-15 minutes at most. Tr. 104. Thus, it is clear that Skaggs was detained beyond the time reasonably required to complete the traffic-related investigation.
{18} The first element was the trial court‘s determination that Skaggs was being dishonest in his claim that he was on his phone using Mapquest. The trial court determined he was not honest because the trial court did not think a person who was originally from Bucyrus would need to use Mapquest in town. However, a review of the video shows that the officer asked Skaggs if he was texting, which Skaggs denied and said he was using Mapquest. The fact that one may not admit to texting while driving, which could result in an additional ticket, does not necessarily
{19} The second element was that this was a pretextual stop. All of the testimony was that the officers were looking for a reason to stop him so that they could search the car. This was based upon prior tips they had received that indicated Skaggs was dealing drugs. However, these tips were not for the relevant time period, but rather for past situations. The closest tip in time was from a month before the stop. Two weeks before the stop, Greathouse testified that he saw a motorcycle pull up to the home of Skaggs’ girlfriend, enter the house, and leave quickly, which he thought was indicative of drug activity. However, this was nothing more than supposition as the motorcycle was not stopped and no investigation was completed regarding that incident. Greathouse even admitted that the only involvement he personally knew of regarding Skaggs before the stop was that in the two weeks prior to the stop, Skaggs was seen entering a home frequented by one of Greathouse‘s targets. Tr. 29-30. Greathouse testified that on the day of the stop, he saw Skaggs go into a house that was owned by a relative of Skaggs. There was no testimony whether anyone else was home at the time or that anyone else came to the home while Skaggs was there. Greathouse testified that Skaggs
{20} The third factor was that Skaggs’ arm was shaking. Pennington stated on the video that the reason he conducted the pat down search was because of the shaky arm. Skaggs’ response was that it always shakes. Pennington testified that Skaggs’ told him it was shaking because it was cold from brushing snow off the front windshield. Pennington testified that he was suspicious of that explanation because the jacket was not wet.1 However, the trial court even noted that since it was only one arm that was shaking, it could be the result of nerve damage. Tr. 108. Merely having a shaky arm is not alone necessarily indicative that any criminal activity was occurring.
{21} The fourth factor the trial court noted was the cash in Skaggs’ pocket. The trial court acknowledged that the amount of cash was not suspicious. Tr. 111. However, the trial court noted that Skaggs “said it was for his rent and when he
{22} The trial court found that although the evidence in this case was not “overwhelming” that the officers had reasonable articulable suspicion, the trial court believed that the State had met its burden. Based upon that finding the trial court denied the motion to suppress. As discussed above, none of the individual factors taken alone would provide reasonable, articulable suspicion for delaying the traffic stop. However, when taken as a whole, they could be found to provide a reasonable, articulable suspicion. See State v. Batchili, supra at ¶ 17, (the totality of the circumstances must be evaluated to determine whether there is reasonable and articulable suspicion to prolong a traffic stop). The trial court made such a determination in this case after it made findings of fact based on the evidence before
{23} Having found no error in the particulars assigned and argued, the judgment of the Court of Common Pleas of Crawford County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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