Case Information
*1
[Cite as
State v. White
,
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100624
STATE OF OHIO
PLAINTIFF-APPELLEE vs.
HARVEST L. WHITE
DEFENDANT-APPELLANT JUDGMENT:
AFFIRMED Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case No. CR-13-572783
BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 25, 2014 *2 ATTORNEYS FOR APPELLANT
Ronald L. Frey
Eric C. Nemecek
Friedman & Frey, L.L.C.
1304 West 6th Street
Cleveland, OH 44113
Kristina W. Supler
McCarthy, Lebit, Crystal, Liffman Co.
101 Prospect Ave., W.
Suite 1800
Cleveland, OH 44115-1088
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary McGrath
Anthony Miranda
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} While on patrol with his K-9 in Cleveland’s Fifth District on a March night, a K-9 officer pulled over defendant-appellant Harvest White’s vehicle for lacking a license plate. During the traffic stop, the K-9 scratched at the rear of the vehicle and, eventually, a bag of 43 grams of heroin was discovered in White’s boot. On appeal, White argues the trial court erred in denying his motion to suppress, claiming he was unlawfully detained and arrested. Applying the Fourth Amendment case law to the sequence of events that unfolded on that night, we conclude the trial court properly denied the motion to suppress and affirm White’s conviction of drug offenses.
Evidence Presented at the Suppression Hearing {¶2} Trooper McGill of the State Highway Patrol had been a K-9 officer for seven months. He testified at the suppression hearing. The state also showed a video that captured the traffic stop. Our review of the trooper’s testimony and the video of the traffic stop revealed the following. Trooper McGill and his dog, Edo, had been trained in a six-week program.
They had spent over 200 hours training for both detection of narcotics and searching of buildings and areas. The dog engaged in drug detection work at least five times each week. On the night of March 22, 2013, McGill and his dog were working on a
“shield detail” for the city of Cleveland in partnership with the Cleveland police *4 department, in the city’s Fifth District. This is an area from St. Clair to Superior from East 55th to East 105th Street. At around 8:30 p.m., McGill made a traffic stop of a vehicle at Superior and East 72nd. The vehicle was missing a front license plate and its back license plate was not illuminated, both in violation of traffic law. Trooper McGill approached the vehicle and explained to the driver, Harvest
White, that his vehicle was stopped because it did not have a front license plate and the back license was not illuminated. White stated he would fix the license plates. McGill asked White for his driver’s license, the vehicle registration paper, and proof of insurance. White’s hand was shaking “uncontrollably” when he handed McGill his license. He was also sweating profusely. White stated the vehicle was registered to him, yet the registration document showed the vehicle was registered to another individual. Because of the discrepancy, McGill advised White that he needed to run his license plate. He also told White he would issue only a warning, not a citation, for the traffic violation, because White had stated he would fix the license plates. McGill then asked White to exit the vehicle and come to the police vehicle while he ran the license plate. White exited the vehicle and walked toward the police vehicle. McGill
asked White if he could pat him down for contraband. White consented. McGill did not find any contraband, but felt a bulge of cash in his pockets. He asked White how much money he had. White said about $4,500 dollars. The money was later determined to be $12,600. White explained the money was from a property investment *5 and he did not want to leave the money at the business. McGill asked White to sit in the back of the patrol vehicle while he ran the license number. McGill explained to White that safety forces were conducting a program in the area for illegal drugs and weapons. He asked White if he had any contraband with him. White answered no. McGill asked if he could have his K-9 sniff the exterior of White’s vehicle. White consented. McGill then walked his dog around the vehicle. The K-9 search occurred within eight minutes of the traffic stop. The K-9 scratched the left rear passenger door, indicating it had detected
the presence of narcotic odor. After the detection of the presence of narcotic odor, McGill then learned over his patrol radio that White had a positive criminal history for drug-related offenses. Because of the canine indication, coupled with White’s criminal history, a
large amount of currency on White’s person, and his nervous behavior, McGill decided to search White’s vehicle. By that time, another trooper, Trooper Shell, was also on the scene. They used a tool kit to search the interior of the vehicle. Trooper Shell discovered marijuana residue around the driver’s seat. He also found in a digital scale with sticky white residue inside a gym bag in the rear seat of the vehicle. Based on his training and experience, Trooper McGill believed the white residue to be crack or crack cocaine. Also, in his experience, a digital scale inside a vehicle typically led to discovery of marijuana and other illegal drugs. Trooper McGill therefore decided to search White’s person. He found a bag in White’s right boot. Inside the bag was 43 *6 grams of heroin. White was arrested and subsequently charged with drug trafficking, drug possession, and possessing criminal tools.
{¶9} The trial court denied White’s motion to suppress evidence. White then entered a plea of no contest. At the sentencing hearing, the court recited White’s long history of criminal convictions. It noted that White had a drug trafficking conviction in 2005 and had served a six-year prison term for his conviction. The instant incident occurred while he was on postrelease control within a year of his release from prison in May 2012.
{¶10} The court sentenced White to seven years for a merged count of drug trafficking and drug possession, and concurrent 11 months for possessing criminal tools. In addition, the court imposed a three- year term for his violation of the postrelease control, for a total of ten years. On appeal, White raises one assignment of error, claiming the trial court
erred in denying his motion to suppress the evidence. An appellate review of a motion to suppress presents a mixed question of
law and fact.
State v. Burnside
,
The Legality of the Traffic Stop and Subsequent Detention {¶13}
We begin our analysis with the basic premise that the Fourth Amendment to
the United States Constitution protects individuals from unreasonable searches and
seizures. In this case, a traffic stop over a missing license plate ended with a discovery
of 43 grams of heroin in the driver’s boot. In reviewing the police conduct in this case,
we are mindful that, as this court observed, “most of the cases involving searches
subsequent to traffic stops turn on minute differences in conduct often subject to varying
interpretations that lead to either supporting or rejecting the police conduct.”
Westlake
v. Gordon
, 8th Dist. Cuyahoga No. 100295,
White’s vehicle because it lacked a front license plate and had an unilluminated back
license plate. Both were in violation of the traffic law. It is well settled that a traffic
stop is lawful even if the traffic violations are minor, or “de minimis.”
See
,
e.g.
,
Strongsville v. Spoonamore
, 8th Dist. Cuyahoga No. 86948,
vehicle. Rather, he claims Trooper McGill unlawfully detained him beyond the scope of the traffic violation. “When conducting the stop of a motor vehicle for a traffic violation, an
officer may detain the vehicle for a time sufficient to investigate the reason for which the
vehicle was initially stopped.”
State v. Bennett
, 8th Dist. Cuyahoga No. 86962,
exit his vehicle because of the discrepancy between White’s assertion that he owned the
vehicle and the ownership information contained in the registration paper. At the
suppression hearing, McGill testified that he asked White to exit his vehicle for further
investigation because at that point he did not know who the registered owner of the
vehicle was. We note that as part of the scope of a traffic stop for a traffic violation,
“diligent inquiry as to the validity of a driver’s registration and license are viewed as
within the scope of the citation process.”
Duran
at ¶ 13, citing
State v. Batchili
, 113
Ohio St.3d 403,
{¶19}
We also note that McGill’s request for White to exit his vehicle while he ran
a check on the vehicle’s registration is permitted by a bright line rule given by the United
States Supreme Court in
Pennsylvania v. Mimms
,
garments, before asking him to sit at the back of police vehicle while he ran his license
plate. We observe that a limited pat down of the exterior clothing is permitted to ensure
officer safety.
See State v. Moore,
8th Dist. Cuyahoga No. 100401,
K-9 sniff the exterior of his vehicle. The courts have noted that “[e]ven without a
reasonable suspicion of drug-related activity, a lawfully detained vehicle may be
subjected to a canine check of the vehicle’s exterior.”
State v. Jones
, 8th Dist.
Cuyahoga No. 100300,
{¶22}
While a K-9 search was permitted after a traffic stop, we still must consider
whether the officer’s detention of White up to this moment is sufficiently limited in time.
A detention justified by issuing a ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that process. “[A]n officer
should, on average, have completed the necessary checks and be ready to issue a traffic
citation in approximately 15 minutes.”
State v. Brown
, 183 Ohio App.3d 337,
gave White the
Miranda
warnings and then searched his vehicle. Under the “automobile
exception,” the police may search an automobile without a warrant, as long as the police
have probable cause to believe the vehicle contains evidence of criminal activity. The
courts, including this court, have held that once a trained drug dog alerts to the odor of
drugs from a lawfully detained vehicle, as happened in the instant case, there is probable
cause to justify a warrantless search of the vehicle for contraband.
State v. Davis
, 8th
Dist. Cuyahoga No. 87964,
{¶24}
Finally, in determining whether a law enforcement officer possessed
probable cause to conduct a search of the defendant, we review the totality of the
circumstances known to the officer at the time of the search.
Beck v. Ohio
,
Reliability of Canine Indication On appeal, White also challenges the reliability of the trooper’s K-9. He claims the K-9’s reliability was not sufficiently established at the suppression hearing. In particular, he claims there was no detailed presentation of information regarding the accuracy of the dog’s alerts, the mechanism of the dog’s smell, or data regarding to the dog’s number of false alerts. He argues that, in order to establish probable cause for a search of the vehicle, the state must produce the dog’s training records. White does not cite to any case law authority for his claim. Rather, the
case law indicates the testimony of a K-9’s handler regarding the K-9’s training and
certification is sufficient to establish liability. “Proof of the fact that a drug dog is
*13
properly trained and certified is the only evidence material to a determination that a
particular dog is reliable.”
State v. Nguyen
,
{¶28} The assignment of error is without merit. The trial court properly denied the motion to suppress.
{¶29} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR