[Cite as State v. Babineau, 2014-Ohio-3999.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           FAYETTE COUNTY




STATE OF OHIO,                                   :
                                                          CASE NO. CA2013-07-020
        Plaintiff-Appellee,                      :
                                                                 OPINION
                                                 :                9/15/2014
   - vs -
                                                 :

JAMES A. BABINEAU,                               :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                           Case No. 13CRI00087



Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., 110 East Court
Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Susan R. Wollscheid, P.O. Box 841, Washington, C.H., Ohio 43160, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, James Babineau, appeals from the decision of the

Fayette County Court of Common Pleas denying his motion to suppress. For the reasons

outlined below, we affirm.

        {¶ 2} A portion of the relevant facts of this case are identical to those found in State

v. McCullough, 12th Dist. Fayette No. CA2013-07-021, 2014-Ohio-1696, a case in which we

affirmed the trial court's decision overruling the motion to suppress filed by Babineau's co-
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defendant, Anndrea McCullough. As this court stated in McCullough:

            On the afternoon of April 20, 2013, Detective Larry McGarvey of
            the Fayette County Sheriff's Office received word from a
            confidential informant that James Babineau would be traveling to
            Dayton that day in order to pick up heroin and bring it back to
            Fayette County. Detective McGarvey had used the confidential
            informant intermittently since 2001 and had never known the
            confidential informant to provide false information. Detective
            McGarvey was also familiar with Babineau as he had dealings
            with him in the past and knew he was involved in drug trafficking.

            After receiving this information, Detective McGarvey drove his
            unmarked vehicle to Babineau's residence where he observed
            an unidentified male loading a flat screen television into a PT
            Cruiser parked outside Babineau's mobile home. Not seeing
            anything overly suspicious, Detective McGarvey contacted the
            confidential informant who informed him that Babineau was
            going to sell the television at a local pawn shop in order to raise
            the money necessary to purchase the heroin in Dayton.

            Detective McGarvey then drove to the pawn shop where the sale
            was to take place. Once there, Detective McGarvey observed
            the same unidentified male, as well as Babineau and Babineau's
            mother, exit the pawn shop and get into the PT Cruiser.
            Detective McGarvey then watched as the vehicle drove to a
            nearby grocery store. While at the grocery store, Detective
            McGarvey saw Babineau make contact with several individuals in
            a blue vehicle. Detective McGarvey, however, was unable to
            identify any of those individuals within the vehicle. Detective
            McGarvey then watched as Babineau got into the PT Cruiser;
            McGarvey then followed the PT Cruiser as it made its way back
            to Babineau's mobile home.

            Once he arrived back at Babineau's residence, Detective
            McGarvey again contacted the confidential informant who told
            him that Babineau needed $100 more to make the trip to Dayton
            to purchase the heroin. Detective McGarvey then offered to give
            the confidential informant $50 to give to Babineau. As Detective
            McGarvey testified:

            I sat in the area for a little while, I ended up contacting my source
            again and asked if I could meet with them and give them 50.00
            told them to make contact with Mr. Babineau and tell them they
            could come up with 50.00. I figured that way I could get them out
            of the trailer park and get to a place where I knew they would be
            and that I could actually observed from that point[.]

            After providing the confidential informant with the $50 to give to
            Babineau, the confidential informant contacted Detective
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McGarvey and told him of where the exchange was going to take
place. The confidential informant also told Detective McGarvey
that immediately after the money was exchanged, Babineau
would travel to Dayton to purchase the heroin.

Upon arriving at the exchange site, Detective McGarvey saw a
blue Monte Carlo pull up with Babineau in the passenger seat.
The vehicle was driven by a female later identified as
McCullough. Detective McGarvey testified he knew McCullough
was involved in drug trafficking with Babineau, but had never had
any direct contact with her. Detective McGarvey, however, was
not sure if the blue Monte Carlo was the same blue vehicle that
he had seen outside the grocery store earlier that day.

Following this exchange, McCullough and Babineau drove the
blue Monte Carlo onto State Route 35 heading towards Dayton.
Detective McGarvey then followed McCullough and Babineau
into downtown Dayton when he lost sight of their vehicle after it
exited into an area known for high drug and criminal activity.
Unable to locate the car, Detective McGarvey exited the
downtown Dayton area and looped back around onto State
Route 35. He then stopped his unmarked vehicle near the
Bickett Road exit in hopes of spotting McCullough and Babineau
as they traveled back towards Fayette County.

After some time, Detective McGarvey spotted McCullough and
Babineau in the same blue Monte Carlo traveling towards
Fayette County on State Route 35. After locating the vehicle,
Detective McGarvey radioed ahead to Deputy Clint Sines and
Deputy Bruce Stolsenberg who were stationed on State Route
35 conducting road patrol. Detective McGarvey then began
following the blue Monte Carlo, which he testified was traveling at
speeds ranging between 65 to 85 m.p.h.

Once McCullough and Babineau crossed into Fayette County,
Deputy Stolsenberg clocked the blue Monte Carlo traveling at 67
m.p.h., two m.p.h. over the posted speed limit. Detective
McGarvey then instructed Deputy Stolsenberg to initiate a traffic
stop on the vehicle. As Detective McGarvey testified, "[t]hat with
the information we had and we had a 67 let's get them pulled
over."

After the car was stopped, McCullough and Babineau were
removed from the vehicle and placed in separate police cruisers
so that Deputy Sines could conduct a canine sniff of their vehicle.
They were also read their Miranda rights. Although the canine
alerted on the blue Monte Carlo, the subsequent search of the
vehicle did not uncover any narcotics. Deputy Sines then
conducted a canine sniff of the two police cruisers where
McCullough and Babineau were sitting. The canine alerted on
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               both cruisers. The canine also conducted a sniff on a third police
               cruiser that was empty, but it did not alert on the vehicle. It is
               undisputed that no narcotics were found in the two police
               cruisers either before or after the canine sniff of the cruisers was
               conducted. Following the search of the vehicles, McCullough
               and Babineau were taken to the Fayette County Sheriff's Office
               so that a search warrant could be obtained for their persons.

               Once they arrived at the sheriff's office, McCullough was taken to
               the jail, whereas Babineau was taken to the annex building.
               When asked why the two were separated, Detective McGarvey
               testified he did not want the two together and that McCullough
               was taken to the jail so that a female corrections officer could
               check her for weapons. As Detective McGarvey testified, "it
               becomes difficult with females when we don't have a female
               deputy available we can't do a proper pat down of them or any
               kind of search." In addition, Deputy Stolsenberg testified, "I am
               much more comfortable when I have the circumstances to take
               someone and to transport them into an office and let a female
               officer take care of a search [for weapons] if one is needed."

               Upon arriving at the jail, McCullough, although merely being held
               under an investigative detention, was ordered to change out of
               her street clothes and into proper jail attire. As she was
               changing out of her clothes, McCullough produced two baggies
               containing heroin that she had concealed on her body. It is
               undisputed that Detective McGarvey was actively typing out a
               search warrant for both McCullough and Babineau when
               McCullough turned over the drugs. According to Deputy
               Stolsenberg, this occurred approximately 30 minutes after
               McCullough was taken to the jail.

McCullough, 2014-Ohio-1696 at ¶ 2-12.

       {¶ 3} Once McCullough turned over the drugs, Babineau was placed under arrest for

complicity to commit possession of heroin. Babineau was then taken from the annex building

to the jail, where a search of his person uncovered a small baggie containing heroin.

       {¶ 4} As a result of this discovery, Babineau was subsequently indicted on charges of

complicity to commit possession of heroin, complicity to commit trafficking in heroin,

possession of heroin and illegal conveyance of weapons or prohibited items onto grounds of

a detention facility. Babineau then filed a motion to suppress, which, after holding a hearing

on the matter, the trial court denied in its entirety. In so holding, the trial court found the initial

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stop of the vehicle for which Babineau was a passenger was proper. The trial court also

found that there was "nothing unreasonable or unconstitutional about the search incident to

the lawful arrest of Mr. Babineau."

       {¶ 5} After the trial court denied his motion to suppress, Babineau agreed to enter a

plea of no contest to the above named charges. The trial court accepted Babineau's plea.

The trial court then merged the charges for purposes of sentencing, and, following the state's

election of charges, sentenced Babineau to a total aggregate mandatory six-year prison term.

Babineau now appeals from the trial court's decision denying his motion to suppress, raising

three assignments of error for review.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT PREJUDICIALLY ERRED BY FINDING DET. MCGARVEY

HAD AN ARTICULATE REASONABLE SUSPICION TO CONDUCT A STOP OF THE

VEHICLE THAT JAMES BABINEAU WAS RIDING.

       {¶ 8} In his first assignment of error, Babineau argues the trial court erred by denying

his motion to suppress by finding Detective McGarvey was justified in initially stopping the

vehicle driven by McCullough in which Babineau was a passenger. This court, however, has

already affirmed the trial court's decision regarding the initial stop of the vehicle. See

McCullough, 2014-Ohio-1696 at ¶ 18-20. Specifically, as this court held in McCullough:

              In this case, the record indicates the officers observed
              McCullough traveling on State Route 35 at a speed of 67 m.p.h.,
              two miles over the posted speed limit. Although de minimus, this
              traffic violation provided the officers with probable cause to
              initiate a traffic stop of McCullough's vehicle. As the officers had
              probable cause to stop McCullough for speeding, the initial stop
              of her vehicle was not unreasonable under the Fourth
              Amendment to the United States Constitution. This is true even
              though the officers may have had an ulterior motive for making
              the stop, such as their suspicion that McCullough and Babineau
              were engaged in more serious criminal drug activity.

(Internal citation omitted.) Id. at ¶ 20.

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       {¶ 9} Therefore, as this court has already determined that the initial stop of the

vehicle driven by McCullough was proper, Babineau's first assignment of error is overruled.

       {¶ 10} Assignment of Error No. 2:

       {¶ 11} THE TRIAL COURT PREJUDICIALLY ERRED BY FINDING DET. MCGARVEY

HAD PROBABLE CAUSE TO ARREST JAMES BABINEAU.

       {¶ 12} In his second assignment of error, Babineau argues the trial court erred by

denying his motion to suppress because he was "placed under arrest when the vehicle he

was riding in was stopped." It is well-established, however, that the stop of a motor vehicle,

even if for a limited purpose or a brief amount of time, merely constitutes a "seizure" of a

person under the Fourth Amendment, not an "arrest." State v. Layne, 12th Dist. Clermont

No. CA2009-07-043, 2010-Ohio-2308, ¶ 44, citing United States v. Martinez-Fuerte, 428 U.S.

543, 556-558, 96 S.Ct. 3074 (1976). An "arrest" and a "seizure" of a person are entirely two

different legal concepts. State v. Ramsey, 12th Dist. Warren No. 87-08-061, 1988 WL

102416, *3 (Sept. 30, 1988).

       {¶ 13} As the record reveals, neither Babineau nor McCullough were placed under

arrest until after they were transported to the sheriff's office and two baggies of heroin were

discovered on McCullough's person. Although Babineau claims otherwise, the fact that he

was read his Miranda rights, handcuffed, and placed into a police cruiser shortly after the

initial stop does not automatically escalate his investigative detention into that of an arrest.

See State v. Wilson, 3d Dist. Hancock No. 5-07-47, 2008-Ohio-2742, ¶ 22 (finding placement

in a police cruiser, handcuffing, and Mirandizing of appellant did not elevate an investigatory

detention into an arrest), citing State v. Pickett, 8th Dist. Cuyahoga No. 76295, 2000 WL

1060653 (Aug. 3, 2000); State v. Mays, 104 Ohio App.3d 241 (2d Dist.1995); and State v.

Broomfield, 2d Dist. Clark No. 95-CA-0103, 1996 WL 537478 (Sept. 13, 1996).


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                                                                    Fayette CA2013-07-020

       {¶ 14} Furthermore, based on the totality of the circumstances here, we find the

officers were justified in detaining Babineau until they could obtain a search warrant for his

person. As noted above, Detective McGarvey received information from a confidential

informant that Babineau was planning to travel to Dayton to pick up heroin and bring it back

to Fayette County. Based upon this information, Detective McGarvey followed Babineau for

a period of several hours before he met up with McCullough and drove to Dayton. Detective

McGarvey then watched as the pair exited the freeway into an area known for high drug and

criminal activity. Although he lost sight of their vehicle while in Dayton, Detective McGarvey

later spotted McCullough and Babineau traveling back towards Fayette County from Dayton

where they were pulled over for speeding.

       {¶ 15} After the traffic stop was initiated, a canine sniff was then conducted, wherein

the canine alerted to the presence of drugs in the Monte Carlo, as well as in the two police

cruisers in which McCullough and Babineau were seated. As we stated in McCullough:

              Once the canine alerted on the cruisers in which McCullough and
              Babineau were seated, the officers were provided with even
              further justification to support their reasonable and articulable
              suspicion that criminal activity was afoot. These facts also serve
              as a pertinent factor in the officers' probable cause inquiry in
              support of the search warrant for their persons.

Id., 2014-Ohio-1696 at 22. In fact, as this court explicitly found in reviewing this matter

previously, "the facts and circumstances of this case provides more than enough evidence to

support a probable cause finding to issue a search warrant." Id. at ¶ 33. Babineau's second

assignment of error is therefore overruled.

       {¶ 16} Assignment of Error No. 3:

       {¶ 17} THE TRIAL COURT PREJUDICIALLY ERRED BY OVERRULING JAMES

BABINEAU'S MOTION TO SUPPRESS BASED UPON A FINDING THAT HE LACKED

STANDING TO CHALLENGE THE SEARCH OF ANNDREA MCCULLOUGH WHEN THAT


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WAS NOT THE BASIS FOR HIS MOTION.

        {¶ 18} In his third assignment of error, Babineau argues the trial court erred by

denying his motion to suppress by finding he lacked standing to challenge the search of

McCullough's person. Specifically, Babineau argues the trial court "treated the motion as it

were based solely upon the illegal search of [McCullough] at the jail and dismissed it for lack

of standing." However, after a simple review of the record, we find that is simply not the

case.

        {¶ 19} In this case, after initially overruling the state's objection arguing Babineau had

no standing to challenge the search of McCullough after she was transported to jail, the trial

court stated:

                Counsel I am going to reverse my ruling I think on the motion on
                the objection lodged by the State was that Mr. Babineau has no
                standing to challenge the search legal or illegal of Ms.
                McCullough and I sustain that motion. This defendant has not
                (sic) standing to do that what effect any evidence that might be
                suppressed has in Mr. Babineau's case I guess I don't have to
                decide that at this point. But as far as standing he has no
                standing to object to her search.1

Thereafter, in reaching its decision denying Babineau's motion to suppress, the trial court

explicitly stated that it overruled Babineau's "motion in each and every particular." Therefore,

Babineau's claim that the trial court denied his motion to suppress based solely on its finding

he lacked standing to challenge the search of McCullough's person is simply not supported

by the record. Accordingly, Babineau's third assignment of error is overruled.

        {¶ 20} Judgment affirmed.


        HENDRICKSON, P.J., and M. POWELL, J., concur.




1. Although not at issue here, we note that the trial court correctly determined Babineau lacked standing to
challenge the search of McCullough's person. "The Fourth Amendment right to be free from unreasonable
searches and seizures cannot be vicariously asserted." State v. Smith, 117 Ohio App.3d 656, 667 (8th
Dist.1997), quoting State v. Steele, 2 Ohio App.3d 105, 107 (8th Dist.1981).
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