138 Ohio App. 3d 139 | Ohio Ct. App. | 2000
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *141
The following facts were related to the trial court by Trooper Chris Coverstone of the Ohio Highway Patrol during the suppression hearing held on Taylor's motion. Coverstone was the only witness called by the state, and the defense called none. Coverstone testified that on May 6, 1998, at approximately 12:34 a.m., he was positioned at mile marker 78 on Interstate Highway 75 for the purpose of checking motorists' speeds with his laser instrument. At that time, he determined that a northbound Lexus automobile with Michigan plates was going seventy-two miles per hour where the posted limit is sixty-five. As he pursued the Lexus, he ran a check on its license plate to see if the car had been reported stolen; it was not, and he learned the car was registered to Glenda Jackson. Coverstone effected a traffic stop just north of Highway 36 in Piqua, Ohio.
Coverstone approached the car and asked the driver for his license and the car registration. He noticed that the car was littered with trash and strongly smelled of air freshener. As the three male occupants searched for the car registration, the glove box was opened, and Coverstone saw a bottle of air freshener in the compartment. In response to Coverstone's questioning about their destination, both the driver, Jesse Owens, and the front seat passenger, appellant herein Stephan Taylor, responded that they were headed for Detroit. The registration was nowhere to be found in the car, but the occupants explained that Glenda Jackson was Taylor's wife and that they had her permission to drive the car. Coverstone radioed in to dispatch and asked that someone there call Jackson to confirm what Taylor and Owens had said, and at 1:09a.m., dispatch reported back to Coverstone that the men were using Jackson's car with her permission.
Meanwhile, intending to cite Owens for speeding, Coverstone asked that he accompany him back to the patrol car, which Owens did. Coverstone noticed Owens became increasingly nervous after getting out of the Lexus, and that he had even begun to sweat even though the night was cool. In addition, Coverstone detected the odor of alcohol about Owens. After performing the horizontal gaze nystagmus and a breath alcohol tests, however, Coverstone determined that Owens was not illegally impaired. Nevertheless, he placed Owens in the back seat of his cruiser, and went about checking Owens' Michigan driver's license in preparation for completing a citation for speeding. The report on Owens' license, however, showed it had been suspended. Coverstone placed Owens under arrest for driving while under suspension and conducted a pat-down search of *143 Owens incident to his arrest, finding two grams of marijuana1 in one of his pockets.
At about that time, back up arrived on the scene and checks were run on the passengers' driver's licenses, not for their validity, but to see if either had any warrants outstanding, which neither did. Because Owens had displayed signs of nervousness and had been carrying marijuana in his pocket, Coverstone then requested criminal histories on all three men. The dispatcher reported back that Owens and Taylor had previous convictions for aggravated trafficking. Upon learning this, Coverstone requested that a canine unit be sent to the scene so the car could be checked for narcotics. Taylor and the other passenger were taken out of the Lexus, placed in "protective custody" in the back seats of the patrol cars, and advised that they were not under arrest. In the process, Coverstone noticed two bulges in Taylor's pockets, and when asked about them, Taylor answered that he had $1,500 cash in his pockets for traveling money.
The canine unit arrived at the scene at 1:52a.m., having traveled from Eaton in Preble County, Ohio, east through Montgomery County, then north to Piqua, Ohio, which is not far from the northern boundary of Miami County. At about that same time, Taylor and the other passenger were placed in the patrol cars. After Bilko the drug-sniffing dog alerted to the rear of the car, Coverstone began a search of the car by opening the trunk. Inside, he saw what he believed to be marijuana seeds on the carpet, a box of fabric softener sheets, and an uncertain number of the softener sheets spread out in the trunk. When he pulled back the carpeting in the trunk, Coverstone saw numerous bundles of cash later determined to be $16,300, most of which was made up of twenty-dollar bills. He immediately discontinued the search and advised his supervisor of what he had found.
Soon thereafter, Taylor, Owens, and the third man were read their Miranda rights and told again that they were being held in protective custody. All three indicated an understanding of their rights as explained to them, and none were handcuffed at that time. When Coverstone questioned Taylor about the cash in the car, Taylor provided the unlikely explanation that the money must have been in the trunk when he and his wife purchased the car.
After a tow truck was called to the scene, the vehicle was taken to the Piqua Patrol Post, and Taylor and the others were taken to the post in patrol cars. From 2:47a.m. until 3:30a.m., the car was thoroughly searched and photographed. No additional cash or drugs were found in the vehicle. The $16,300 *144
found in the trunk and the $1,555 found in Taylor's pockets were hidden in the post garage and the drug-sniffing dog located the money and alerted again. Later, Coverstone began questioning Taylor and noticed a small packet of what proved to be cocaine lying by Taylor's foot. As with the cash found in the car trunk, Taylor denied any knowledge of how the packet came to be in such close proximity to him. Nevertheless, he was arrested and charged with one count of possession of cocaine, or "drug abuse" as stated in the indictment, in violation of R.C. §
On March 17, 1999, Taylor filed a motion to suppress the evidence against him on the basis that his seizure at the hands of the troopers was without probable cause or a warrant, and was therefore illegal. A hearing on the motion was held on March 23, 1999. The trial court analogized the finding of drugs on one occupant of a vehicle to the "plain smell" exception to the
Taylor's sole assignment of error is set forth as follows:
It was "unreasonable," within the meaning of the
Fourth Amendment, for the officer to detain Appellant after the driver was arrested, when the officer: knew that Appellant had a valid driver's license, knew he had permission to drive the car, and when the indicia of drug transportation was minimal.
Taylor argues that he should have been permitted to continue on his way in his wife's vehicle after Owens was arrested for driving under suspension. He claims that at the time of Owens' arrest, the troopers knew he had a valid driver's license and that he was in possession of his wife's car with her permission. His argument misstates the facts, however.
A meticulous review of the record shows that Taylor and the other passenger were not asked for identification until after Owens' arrest and search. Thus, it is not clear that the troopers knew whether Taylor was validly licensed, although they had been informed by dispatch that he was in lawful possession of the vehicle by that time. The only question left for us to answer, therefore, is whether the troopers were justified in detaining Taylor from the time Owens was arrested to the time the narcotics-detecting dog arrived on the scene and alerted to the rear of the automobile. The State does not dispute that Taylor was detained at all times relevant to his appeal. *145
We note at the outset that the Ohio Supreme Court has interpreted the
A police officer may perform an investigatory stop without probable cause to arrest when the officer can "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion."Terry v. Ohio (1968),
Even a momentary detention, however, is untenable if it is without reasonable, objective grounds. State v. Retherford (1994),
93 Ohio App. 3d 586 ,595 , citing Florida v. Royer (1983),460 U.S. 491 ,497-98 . For instance, in State v. Chatton (1984),11 Ohio St. 3d 59 , the Ohio Supreme Court held that a police officer, who detained an individual for a suspected traffic violation, does not have authority to further detain that individual to determine the validity of his driver's license once the officer no longer has reason to suspect that individual is committing a traffic violation, absent some specific and articulable facts that detention was reasonable. Thus, "if a police officer has no reasonable and articulable suspicion that a motorist is unlicensed, a vehicle is unregistered, or that the vehicle or an occupant is otherwise subject to seizure for violation of the law, the officer cannot detain the driver in order to *146 check his operator's license." State v. Venham (1994),96 Ohio App. 3d 649 ,656 , citing Chatton, supra; Delaware v. Prouse (1979),440 U.S. 648 ; State v. Vance (1991),72 Ohio App. 3d 589 . See also Fairborn v. Orrick (1988),49 Ohio App. 3d 94 (holding that officer may not prolong traffic stop or extend scope of traffic stop to include checking the motorcycle operator's license where initial stop was made because of motorcycle passenger's failure to wear required eyewear and apparent intoxication). In this context, we see no principled reason to differentiate between a driver who is not or is no longer reasonably suspected of criminal activity and a passenger in a vehicle who was not the catalyst for the original stop and is not reasonably suspected of criminal activity. Finally, we observe that a trial court's application of these principles to a set of facts is reviewed de novo by an appellate court. See Ornelas v. United States (1996),517 U.S. 690 ,691 ; State v. Klosterman (1996),114 Ohio App. 3d 327 ,333 .
In the present case, Taylor does not claim to have been unreasonably detained during the time Coverstone was preparing to cite Owens. Instead, he argues that his continued detention after Owens was arrested and searched was a violation of his right to be free from unreasonable seizures because Coverstone had no reasonable articulable suspicion that Taylor was engaged or about to engage in criminal activity. We agree.
Coverstone candidly testified that the sole purpose of requesting Taylor's driver's license after Owens' arrest was to check for any outstanding warrants and, after that, run a criminal history check on Taylor. No evidence was presented that Coverstone suspected Taylor was unlicensed. In addition, Coverstone had already ascertained that the Lexus was properly registered and that Taylor and his friends were in lawful possession of the vehicle. Moreover, the evidence establishes that Coverstone had no intention of searching the vehicle or its passengers until after the focus of the stop shifted from Owens to Taylor and the other passenger. In fact, Coverstone testified that he routinely cited and released individuals found to be in possession of two grams of marijuana. In other words, absent a suspicion that other criminal activity was afoot, Coverstone would not normally search the automobile of someone who possessed two grams of marijuana. Under these circumstances, it is apparent that Coverstone's continued detention of Taylor was exclusively investigatory in nature and directed toward Taylor and the other passenger.2 Consequently, it must be justified by objective and reasonably articulable facts suggesting criminal activity on Taylor's *147 part.3 Thus, the question we must resolve is whether the presence of trash and a cellular phone in the car along with the fragrance of air freshener, Owens' nervousness, and the discovery of two grams, or seven one-hundredths of an ounce of marijuana in Owens' pocket justified Coverstone's suspicion that Taylor and his companions were involved in drug trafficking. These facts are easily divisible into two sets, the first consisting of those facts relating to the contents and condition of the car in which Taylor was riding, and the second consisting of those facts peculiar to Owens. We consider the second group of facts first.
We are not convinced that Owens' nervousness or his personal possession of a very small amount of marijuana reasonably suggests the three men were involved in drug trafficking. Owens knew he was in possession of the marijuana, and may also have been concerned about whether he could pass the sobriety tests conducted by Coverstone. Either or both of these facts would explain Owens' nervousness after being asked to step out of the vehicle he was driving. In addition, Coverstone testified that Taylor himself was at all times calm and did not appear to be nervous. Thus, Owens' nervousness contributes little toward a reasonable and articulable suspicion that he or his passengers were engaged in drug trafficking.
That Owens was found to be in possession of two grams of marijuana adds little to the mix as well, as it is hardly indicative of drug trafficking. In a recent case, we stated that drugs and paraphernalia found on the person of one occupant of a vehicle did not create a basis to suspect criminal activity on the part of another occupant. State v. Salyer (Apr. 10, 1998), Miami App. No. 97-CA-39, unreported. Similarly, under the circumstances of this case, we reject the notion that Taylor may come under suspicion of trafficking in drugs by his association with someone in possession of a minuscule amount of marijuana. See State v.Crosby (1991),
It is recalled that when Trooper Coverstone initially stopped and approached the vehicle, he noticed that the car looked "lived in" and smelled of air freshener. In addition, he saw a cellular phone in the car, and when one of the occupants opened the glove box looking for the registration, Coverstone saw a bottle of air freshener inside the compartment. We find these facts innocuous.
In a previous case, we found a driver's vague and less-than-definitive answers to the officer's questions, a hanging toggle switch, loose fast-food wrappers, an unconnected radar detector, and missing trim from the interior of a car insufficient to justify further detention of the driver after the purpose of the original traffic stop had been concluded. State v. Foster
(1993),
These may be articulable facts but they certainly do not provide reasonable grounds for conducting the search. If fast-food wrappers and a radar detector in a vehicle can justify a search of it, then we are all at risk.
* * *
A small set of individual facts, each one innocent in itself, does not necessarily add up to reasonable grounds for a search when taken together * * *.
Id. at 40-41. In the present case, much the same can be said of the facts that Coverstone testified led him to believe Taylor and the others were trafficking in drugs. In today's society, we can state with certainty that the presence of a cellular phone *149 in an automobile conveys nothing about the vehicle's occupants. People from all walks of life, from homemakers to executives, from construction workers to salesmen and women, from students to grandparents, use cellular technology for a variety of reasons, safety and convenience predominant among them. Gone are the days when possession of a cellular phone or pager might have contributed to a reasonable suspicion that criminal activity was afoot. Similarly, we discount the significance of the untidy condition of the vehicle interior as an indicator of drug trafficking. Paraphrasing Foster, supra, if a cellular phone in the unkempt passenger compartment of a vehicle constitutes reasonable articulable facts sufficient to justify an investigation of the occupants for drug trafficking, then we are all at risk.
This is true even in combination with the other facts Coverstone stated informed his suspicion of drug trafficking activity. As we recently stated, "[t]he circumstances [that would allow an officer to arrive at a reasonable suspicion that criminal activity is afoot] must connote criminal conduct, not necessarily to the exclusion of any other explanation[,] but in a way that makes a criminal purpose predominate as an explanation for what the officer sees." State v. Wagoner (Feb. 25, 2000), Montgomery App. No. 17878, unreported. At the time Trooper Coverstone decided to detain Taylor and the other passenger for further investigation, the facts available to Coverstone did not implicate criminal activity to such a degree that it was the predominant explanation for the situation. Consequently, based on the totality of circumstances known to Coverstone at that time, we conclude there was no reasonable articulable suspicion of separate illegal activity to warrant Taylor's continued detention.
That is not to say, however, that the circumstances in this case can never congeal with other facts not present here to form a reasonable articulable suspicion that criminal activity is occurring or about to occur. In State v. Wynter (Mar. 13, 1998), Miami App. No. 97-CA-36, unreported, for example, we found the trooper had developed a reasonable suspicion of criminal activity that justified detaining a motorist and her passenger based on the following facts: the vehicle's front license plate bolting was not standard; the car had dark windows and an after-market paint job on the late-model car; the driver's unusual driving mannerisms; furtive movements by the passenger; both driver and passenger were extremely nervous; the officer was dubious of the driver's story about her destination; the passenger gave a falsified social security card as her identification (which we note was requested by the officer shortly after the initial traffic stop rather than at the conclusion of the traffic stop, as in the present case); the car had no glove box or center compartment; the officer detected "an overabundance of air deodorizers"; a fuse box hung over the clutch; and the colors of the interior of the car, the dash, and the console did *150 not match. In addition, the court of appeals for Medina County found a defendant's continued detention was based on articulable facts giving rise to a suspicion of some separate illegal activity where the defendant passenger and another passenger were very quiet and abruptly answering questions put to them by the trooper; the driver had become more animated when asked about large sums of money, drugs, or weapons; the vehicle was traveling between two known source areas of drug trafficking; the vehicle had a "lived-in" look; and two of the occupants disclaimed ownership of the car, each saying the other was the owner. State v. Napier (May 27, 1998), Medina App. No. 2671-M, unreported. The court found the continued detention of the occupants for as long as it took the troopers to take an on-the-scene drug-sniffing dog from a cruiser and walk it around the suspect's car was justified. Id. When Trooper Coverstone decided to expand the scope and duration of the stop in the case before us, no facts capable of casting a shadow of criminality over Taylor were present. Consequently, Coverstone's continued detention of Taylor was in violation of Taylor's right to be free from unreasonable seizure guaranteed to him both by the United States Constitution and the Ohio Constitution.
The State makes two arguments not addressed above that are deserving of comment. First, it claims Trooper Coverstone's knowledge that Owens and Taylor had previously been convicted of drug trafficking came prior to Coverstone's decision to detain Taylor after Owens was arrested and searched. The record, however, does not accord with the State's sequence of events, and instead establishes that Coverstone decided to detain Taylor before Coverstone ran a warrants or criminal history check on Taylor. Since the fact of Taylor's criminal history was not available to Coverstone at the time he made the decision to continue Taylor's detention, it cannot now be used to justify the detention.
Second, the State argues that once Coverstone found the two grams of marijuana in Owens' pocket, he had probable cause to search the vehicle. Without more, the nature of the State's argument is unclear. Probable cause to search the vehicle, if indeed it existed, would not legitimize the illegal investigation of Taylor and the other passenger. As best we can tell, the State's assertion is meant to imply that even if the evidence were illegally seized, the doctrine of inevitable discovery would justify the trial court's decision denying Taylor's motion to suppress. We cannot agree.
The Ohio Supreme Court has held that "illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation." State v. Perkins (1985),
Initially, we observe that the doctrine of inevitable discovery requires the State to show the illegally seized evidencewould have been discovered in the course of a legal investigation. Here, all that can be said of the State's spare argument is that it claims the evidence could have been found if Coverstone had searched the car after finding a small amount of marijuana in the driver's possession. As such, the State's assertion is couched in terms of possibility rather than probability. The
Moreover, there is no evidence in the record tending to establish the Ohio Highway Patrol's routine procedures following any arrest, much less one under the circumstances present in this case. In addition, Trooper Coverstone never even intimated that he had intended to search the vehicle after finding Owens' marijuana. Instead, he pointedly stated that he relied upon the information he obtained from the illegal investigation of Taylor and the other passenger in deciding to call for a narcotics-detecting dog. Furthermore, Coverstone testified that his routine practice was to cite and release (not conduct a vehicle search, cite, and release) individuals found to be in possession of such small amounts of marijuana. Thus, on this record, there is no evidence that would allow a conclusion that Coverstone would have searched the vehicle and found the evidence in the trunk of the car based on the information available to him after the purpose for the original stop had been resolved. Moreover, the State produced no evidence of any leads possessed by the troopers at the time the illegal investigation of Taylor was initiated that would make discovery of the evidence in the trunk of the car inevitable, and no alternate line of investigation prior to the troopers' misconduct was existent, let alone being actively pursued. Consequently, we find the State's apparent suggestion that the antidote of inevitable discovery removes the taint from the illegally seized evidence unavailing. *152
See State v. Wilson (1994),
Because we have found the troopers illegally expanded both the scope and duration of the traffic stop to investigate the passengers and that the evidence seized as a result of the improper investigation would not have been inevitably discovered, we sustain Taylor's sole assignment of error. The trial court's judgment is reversed, and this cause is remanded for further proceedings consistent with this opinion.
GRADY, P.J. and GLASSER, J., concur.
(Hon. George M. Glasser sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
