[Cite as State v. Ellis, 2015-Ohio-472.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO

        Plaintiff-Appellee

-vs-

CHARLES ELLIS II

        Defendant-Appellant


JUDGES:                                             Case No. 14-CA-66
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.                           OPINION


CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, Case No. 13CR416


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          February 5, 2015


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


KENNETH W. OSWALT                               ROBERT E. CALESARIC
Licking County Prosecutor                       35 South Park Place, Suite 150
                                                Newark, Ohio 43055
By: Bryan R. Moore
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Hoffman, J.


       {¶1}   Defendant-appellant Charles Ellis II appeals the May 1, 2014 Judgment

Entry of the Licking County Court of Common Pleas overruling his motion to suppress

evidence. Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 28, 2012, Appellant was a passenger in a vehicle stopped by

Trooper Jerrold March of the Ohio State Highway Patrol. Trooper March testified he

stopped the vehicle for failure to have a front license plate at 8:24 a.m. in an area where

a music festival was taking place, known for high drug activity.

       {¶3}   Trooper March testified upon initiation of the stop he noticed both

occupants of the vehicle made furtive movements towards the center of the vehicle.

Upon approaching the vehicle, Trooper March also noticed both occupants were visibly

nervous. Trooper March testified other officers were in the area, and the other officers

responded as backup, including a K-9 patrol.

       {¶4}   After questioning the driver, Trooper March asked the driver to exit the

vehicle, placing him in the cruiser.      He read the driver his Miranda rights, and

ascertained from the driver he had used drugs at the concert and used his entire supply.

The driver stated he was unsure whether Appellant had drugs on his person or not.

       {¶5}   Trooper March went back to the vehicle to talk to Appellant. Appellant

was also read his Miranda rights. Appellant revealed a backpack in the backseat of the

vehicle, containing marijuana. The backpack contained marijuana, which lead to the
discovery of a large amount of cocaine in the vehicle. Additionally, a small amount of

cocaine was found on Appellant’s person.

        {¶6}   Trooper March had not completed the initial purpose of the stop regarding

the lack of a front license plate on the vehicle prior to discovery of the drugs.

        {¶7}   Appellant filed a motion to suppress the evidence.            The trial court

conducted a hearing on the motion to suppress on March 18, 2014. The trial court

denied the motion via Judgment Entry of May 1, 2014.

        {¶8}   Appellant entered a plea of no contest to the charges. The trial court

imposed a sentence of four and one half years in prison.

        {¶9}   Appellant appeals, assigning as error:

        {¶10} "I. THE PROSECUTING ATTORNEY SHOULD BE PRECLUDED BY THE

TRIAL     COURT      FROM      USING      EVIDENCE       THAT      WAS     OBTAINED       IN

CONTRADICTION OF STATE V. ROBINETTE IN THAT THE OFFICER UNLAWFULLY

EXTENDED THE TRAFFIC STOP TO CONDUCT AN INTERROGATION OF

APPELLANT-DEFENDANT."

        {¶11} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 485 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court

failed to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. State v.
Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings

of fact are not against the manifest weight of the evidence and it has properly identified

the law to be applied, an appellant may argue the trial court has incorrectly decided the

ultimate or final issue raised in the motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court's conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 116 S.Ct. 1657, 1663 (1996), “... as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal.”

       {¶12} Here, Appellant argues Trooper March impermissibly expanded the scope

of the admittedly valid traffic stop and improperly continued the detainment of Appellant

for further questioning about drugs without articulable facts to do so.

       {¶13} Appellant relies on State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762

(1997), in which the Ohio Supreme Court held,

              When a police officer's objective justification to continue detention

       of a person stopped for a traffic violation for the purpose of searching the

       person's vehicle is not related to the purpose of the original stop, and

       when that continued detention is not based on any articulable facts giving

       rise to a suspicion of some illegal activity justifying an extension of the

       detention, the continued detention to conduct a search constitutes an

       illegal seizure.

Id. at paragraph one of the syllabus.
        {¶14} However, the detention of a stopped driver may continue beyond this time

frame when additional facts are encountered that give rise to a reasonable, articulable

suspicion of criminal activity beyond that which prompted the initial stop. State v.

Coniglio, 185 Ohio App.3d 157, 923 N.E.2d 646, 2009–Ohio–6087, ¶ 11.

        {¶15} In State v. Jordan, 5th Dist. CT2003-0029, 2005-Ohio-6064, this Court

held,

              The Fourth Amendment to the United States Constitution and

        Section 14, Article I, Ohio Constitution, prohibit the government from

        conducting unreasonable searches and seizures of persons or their

        property. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889;

        State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271.

              Appellant herein first challenges his trial counsel's decision not to

        challenge the propriety of the underlying traffic stop. A reviewing court,

        when determining whether a stop of a motor vehicle was proper, must

        consider the totality of the circumstances. State v. Anderson (1995), 100

        Ohio App.3d 688, 692, 654 N.E.2d 1034. To justify an investigatory

        detention, a law enforcement officer must “demonstrate specific and

        articulable facts which, when considered with the rational inferences

        therefrom, would, in light of the totality of the circumstances, justify a

        reasonable suspicion that the individual who is stopped is involved in

        illegal activity.” State v. Correa (1995), 108 Ohio App.3d 362, 366, 670

        N.E.2d 1035. See also, Terry, supra. When determining whether or not an

        investigative traffic stop is supported by a reasonable, articulable
      suspicion of criminal activity, the stop must be viewed in light of the totality

      of circumstances surrounding the stop. State v. Bobo (1988), 37 Ohio

      St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus.

             In the case sub judice, trial counsel was faced with a fact pattern

      wherein Trooper Warner had effectuated the stop of Mitchell's vehicle

      upon noting a missing license plate (see R.C. 4503.21(A)), the lack of a

      seat belt utilized for the driver (see R.C. 4513.263), and visible damage

      and smoke about the front of the vehicle. “ * * * [W]here an officer has an

      articulable reasonable suspicion or probable cause to stop a motorist for

      any criminal violation, including a minor traffic violation, the stop is

      constitutionally valid * * * .” State v. Weimaster (Dec. 21, 1999), Richland

      App.No. 99CA36 (citations omitted). Under the circumstances of this case,

      there was reasonable suspicion of illegal driving, and we are unpersuaded

      that trial counsel's decision not to pursue a suppression motion as to the

      traffic stop fell below an objective standard of reasonable representation.

      {¶16} Here, Trooper March noticed the occupants of the vehicle making furtive

movements upon the initiation of the stop. Further, upon approaching the vehicle, he

observed both occupants were unreasonably nervous. Trooper March removed the

driver of the vehicle, read him his Miranda rights, and upon questioning him, learned he

had been using drugs and Appellant may have drugs on his person. Upon Mirandizing

Appellant and questioning him, Appellant admitted he had marijuana in the vehicle in his

backpack, which lead to the discovery of cocaine. Accordingly, under the totality of the

circumstances herein, we find Trooper March had reasonable suspicion to detain the
occupants of the vehicle to investigate further criminal activity. As that investigation

progressed, additional information gathered lead to probable cause to arrest Appellant.

      {¶17} The trial court did not err in overruling the motion to suppress.

      {¶18} The May 1, 2014 Judgment Entry of the Licking County Court of Common

Pleas denying Appellant's motion to suppress is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur
