State v. ThomasState v. Thomas
Rendered on the 17th day of July , 2009.
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MELISSA M. FORD, Atty. Reg. No. 0084215, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ANDREW R. PRATT, Atty. Reg. No. 0063764, 18 East Water Street, Troy, Ohio 45373 Attorney for Defendant-Appellant
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on Notice of Appeal of David M. Thomas, filed July 11, 2008. On December 20, 2007, Thomas was indicted on one count of possession of less than one gram of heroin in violation of
{¶ 2} The events giving rise to this matter began at approximately 3:30 p.m. on October 4, 2007. Huber Heights Police Officer Aaron Harlow was on patrol near the intersection of Route 202 and Bufort Boulevard, an area of high-drug activity. Officer Harlow is a nine-year police veteran and a canine handler. Harlow’s dog, Sammy, was with him while he was on patrol that day. While stationed in a parking lot, Officer Harlow observed a white Ford Escort pull into the Glenburn Green apartment complex, very briefly park at one of the buildings, then exit the complex heading east on Bufort Boulevard. Officer Harlow initiated a traffic stop when he observed the vehicle turning left onto Route 202 without using a turn signal.
{¶ 3} Officer Harlow approached the passenger side of the vehicle and observed Thomas to be very nervous, “almost to the point he was shaking, and he was sweating profusely.” A passenger was also present. The passenger in the vehicle did not appear nervous, nor was he visibly sweating. Officer Harlow introduced himself, explained the purpose of the stop and requested identification from Thomas and the passenger, along with the vehicle registration and the prоof of insurance. Thomas did not have proof of insurance in the vehicle.
{¶ 4} While collecting Thomas’ documents, Officer Harlow inquired as to why Thomas had stopped at the apartment complex. Thomas responded that he stopped
{¶ 5} Officer Harlow began a computer check in his car and called dispatch to run independent computer checks in order to check databаses that were not available in his patrol car. He also called for backup. Thereafter, Officer Harlow began to write a written warning on the traffic violation. Within ten minutes, and prior to him finishing the written warning, a baсkup officer, Officer Wunderlich arrived. Officer Harlow handed the written warning to Officer Wunderlich to complete.
{¶ 6} Officer Harlow returned to Thomas’ vehicle and asked him to step out of the vehicle to answer sоme questions. Thomas complied. Officer Harlow asked for consent to pat-down the defendant in order to check for weapons. Thomas consented. While questioning Thomas, Officer Harlow observed that Thomas was more nervous than earlier in the traffic stop. He was shaking, sweating, running his hands through his hair, and could not stand still. While Officer Harlow was speaking with Thomas, dispatch called Officer Harlow with the results of Thomas’ criminal history. Dispatch indicated that Thomas had previously been charged with drug abuse and drug abuse instruments.
{¶ 7} Subsequently, Officer Harlow asked for consent to search Thomas’ vehicle. Thomas denied consent. Officer Harlow then deсided to use Sammy to perform an open air sniff of the vehicle. Because Sammy is an aggressive-indicating canine, Officer Harlow asked Thomas and the passenger in the vehicle to sit in Officer
{¶ 8} When Officer Harlow retrieved Sammy from his vehicle, about 13 minutes had elapsed since the initial traffic stop. Sammy walked around Thomas’ car sniffing for the presence of narcotics. Sammy alerted at the driver’s side door handle. After alerting, Officer Harlow searched the vehicle and found three capsules of heroin.
{¶ 9} Thomas’ sole assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION TO SUPPRESS.”
{¶ 11} Thomas argues on apрeal that the trial court erred in finding that Officer Harlow had reasonable suspicion of criminal activity to detain Thomas longer than the time necessary to issue a written warning for the traffic violation. Furthermore, Thоmas argues that the trial court erred in finding that the State met its burden of proof that the warrantless search was reasonable. Finally, Thomas argues that the trial court erred by finding that Officer Harlow’s search of Thomas’ car did not violate his Fourth Amendment rights because Officer Harlow observed no signs of impairment or furtive movements to justify the detainment.
{¶ 12} A trial court undertakes the position of the trier of fact in a motion to suppress evidence. State v. Retherford (1994), 93 Ohio App.3d 586, 592; State v. Mills (1992), 62 Ohio St.3d 357, 366. The trial court is in the best position to decide questions of fact and to determine the credibility of witnesses. Retherford, 93 Ohio App.3d at 592; State v. Clay (1972), 34 Ohio St.2d 250, 251. “Accordingly, in our review, we are bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently
{¶ 13} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. A traffic stop by a law enforcement officer must cоmply with the Fourth Amendment‘s reasonableness requirement. Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89. “The duration of a traffic stop may last no longer than is necessary to resolve the issue that led to the original stop, absent some specific and artiсulable facts that further detention was reasonable.” State v. Ramos (2003), 155 Ohio App.3d 396, 401, 2003-Ohio-6535 citing State v. Chatton (1984), 11 Ohio St.3d 59.
{¶ 14} When a law enforcement officer stops a vehicle for a traffic violation, the officer may detain the motorist for a period of time sufficiеnt to issue the motorist a citation and perform routine procedures such as a computer check on the motorist’s driver’s license, registration and vehicle plates. State v. Pryor, Montgomery App. No. 20800, 2005-Ohio-2770 at ¶ 15; Ramos, 155 Ohio App.3d at 401. In determining if an officer completed the tasks of a traffic stop 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 conductеd the investigation. State v. Batchili, 113 Ohio St.3d 403, 406, 2007-Ohio-2204.
{¶ 15} We have stated, “a police officer need not have a reasonable suspicion that a vehicle contains contraband prior to summoning a canine drug unit.” Ramos, 155 Ohio App.3d at 400. It is well established that the usе of a trained narcotics dog
{¶ 16} In overruling Thomas’ motion to suppress, the trial court found that Thomas was not unreasonably detained because the canine sniff began about thirteen minutes after the vehicle was stopped. The court concluded that the free-air sniff occurred within a reasonable length of time after the initial traffic stop. We agree.
{¶ 17} Our decision in State v. Pryor is illustrative. In Pryor, we held that a canine sniff that was initiated approximately twenty minutes after the initial traffic stop was not an unreasonably long detention. Pryor, Montgomery App. No. 20800 at ¶ 16. In Pryor, we stated that “[u]nlike the typical case where a motorist is detained while police await arrival of a K-9 unit, [Officer] Bemis’ dog, Kain, already was present.” Id. Like the officer in Pryor, the officer that made the stop, Officer Harlow, was a canine handler, and his dog was with him at the time of the stop.
{¶ 19} Additionally, the trial court found that even if the detention was extended beyond what was reasonably necessary to issue the written warning, Officer Harlow had sufficient reasоnable suspicion to detain Thomas until the canine sniff. However, since we have already determined that there was not an unreasonable detention, the determination of whether there was reasonablе suspicion is rendered moot. We have previously held that it is not necessary to determine whether the police had a reasonable, articulable suspicion of criminal activity other than a traffic violation that
{¶ 20} Accordingly, Thomas’ sole assignment of error is overruled, and the judgment of the trial court is affirmed.
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FAIN, J. and GRADY, J., concur.