[Cite as State v. Hollins, 2011-Ohio-5588.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 5-10-41

        v.

KENNETH HOLLINS,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2009 CR 257

                                       Judgment Affirmed

                            Date of Decision: October 31, 2011




APPEARANCES:

        Dennis C. Belli for Appellant

        Mark C. Miller and Drew A. Wortman for Appellee
Case No. 5-10-41



ROGERS, P.J.

       {¶1} Defendant-Appellant, Kenneth Hollins, appeals the judgment of the

Court of Common Pleas of Hancock County sentencing him to a nine-year prison

term. On appeal, Kenneth contends that the trial court erred in denying his motion

to suppress, and that he received ineffective assistance of counsel. Based on the

following, we affirm the judgment of the trial court.

       {¶2} In December 2009, the Hancock County Grand Jury indicted Kenneth

on a single count of possession of a controlled substance, heroin, in violation of

R.C. 2925.11(A), with the specification that Kenneth is a major drug offender

pursuant to R.C. 2941.1410, a felony of the first degree. The indictment arose

from the discovery of heroin in a vehicle initially stopped for speeding.

       {¶3} Later that month, Kenneth entered a plea of not guilty to the sole

count in the indictment.

       {¶4} In March and April 2010, Kenneth filed a motion to suppress and

supplemental brief in support of his motion to suppress, respectively. Kenneth

argued, in pertinent part, that the officer, without reasonable articulable suspicion

of criminal activity, prolonged the traffic stop beyond the time reasonably

necessary to effectuate the initial purpose of the traffic stop, i.e., issuance of a

warning or citation for speeding. As a result, Kenneth argued that any evidence

obtained outside the time which was reasonably necessary to issue a warning or

                                         -2-
Case No. 5-10-41



citation for speeding must be suppressed as the discovery of such evidence

occurred as a result of an unlawful seizure.

       {¶5} In August 2010, the matter proceeded to a suppression hearing during

which the following evidence and testimony was adduced.

       {¶6} Trooper Jacob Fletcher testified that he is employed by the Ohio State

Highway Patrol (“OSHP”) and has been stationed at the Hancock County OSHP

post for eight years. On December 12, 2009, at approximately 3:45 p.m., Trooper

Fletcher was sitting stationary on Interstate 75 in the southbound rest area, near

mile marker 153, monitoring traffic. Around this time Trooper Fletcher caught

sight of a vehicle traveling southbound, at what he perceived to be a speed greater

than the posted limit. To verify the vehicle’s speed Trooper Fletcher employed a

laser, which indicated that the vehicle was traveling seventy-four (74) miles per

hour. A second laser reading, taken shortly after the first reading, indicated that

the vehicle had decelerated to fifty-nine (59) miles per hour. Trooper Fletcher left

his position and caught up to the vehicle. Prior to initiating the traffic stop,

Trooper Fletcher pulled alongside the vehicle and witnessed the driver driving

with both hands on the wheel and looking straight forward, a behavior Trooper

Fletcher considered to be a criminal indicator.      Thereafter, Trooper Fletcher

initiated a traffic stop of the vehicle at approximately 3:47 p.m. Judgment Entry,

p. 3. Upon initiating the traffic stop Trooper Fletcher ran the vehicle’s license

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Case No. 5-10-41



plate and discovered that the vehicle was a rental and that it had not been reported

stolen.

          {¶7} Trooper Fletcher continued that upon approaching the driver’s door he

informed the driver, who was later identified as Darrell Hollins, that he was being

stopped for speeding. Trooper Fletcher asked Darrell for his driver’s license, the

vehicle’s registration, and proof of insurance.      Darrell produced his driver’s

license and a rental agreement. At this time, Trooper Fletcher noticed three to four

cell phones and power cords lying in the vehicle’s center console, which he

considered to be a criminal indicator as there were only two individuals in the

vehicle.     Upon receiving Darrell’s driver’s license and the rental agreement,

Trooper Fletcher asked Darrell if he would step out of the vehicle, to which

Darrell agreed. Trooper Fletcher explained that he customarily asks the driver to

step out of the vehicle during traffic stops when passengers are present so he can

discuss the violation with the driver without passenger involvement. Upon exiting

the vehicle, Trooper Fletcher asked Darrell whether he had any weapons or

contraband on his person, to which Darrell responded in the negative. Trooper

Fletcher then asked Darrell if he would have a seat in the front passenger seat of

the patrol car, and whether he would consent to a search of his person for weapons

before he sat in the patrol car. Darrell consented to both requests.



                                          -4-
Case No. 5-10-41



       {¶8} Trooper Fletcher continued that upon entering the patrol car he

informed Darrell about his speed and asked whether he had any questions.

Immediately thereafter, Trooper Fletcher began to conduct checks of Darrell’s

driver’s license and the vehicle’s information.   Darrell had a valid Michigan

driver’s license. Upon reviewing the rental agreement, however, Trooper Fletcher

noticed that Darrell’s name did not appear on the rental agreement. On re-direct,

Trooper Fletcher testified about the significance of the renter’s absence from a

rental vehicle.

       Q: [Defense counsel] questioned you with regards to not having
       any knowledge when you initially stopped this vehicle that was
       stolen, that it was wanted, that it was used in a crime, that’s
       correct, right?

       A:   Yes.

       Q: Did your opinion change with regards to the automobile
       that you had stopped once you saw the rental agreement, I
       believe it’s State’s Exhibit 1, and [the] only listed driver was not
       present?

       A:   Yes.

       Q: During your 8 years as a State Patrol Officer for the Ohio
       State Highway Patrol and numerous traffic stops you’ve made,
       have you ever encountered an individual that’s told you he’s had
       permission to drive a rental vehicle and you found that to be
       contrary to the evidence that you’ve later collected?

       A:   Yes.



                                       -5-
Case No. 5-10-41



Hearing Tr., pp. 68-69. Trooper Fletcher testified that the absence of the named

renter, or other authorized driver, from a rental vehicle was a “big” criminal

indicator. Id. at p. 68.

       {¶9} Trooper Fletcher, in an effort to determine why Darrell was driving a

vehicle rented under a third party’s name, asked Darrell several basic questions, to

wit: where were they coming from; where were they going; who rented the

vehicle; why did they have the vehicle. According to Trooper Fletcher, Darrell

stated that he and his brother, Kenneth, were driving from Detroit to Dayton to

pick up their cousin, Troy Kyles, who rented the vehicle. Darrell further stated

that he and Kenneth had traveled to Dayton with Kyles the previous night, and that

he and Kenneth returned to Detroit the same night because he had to work in the

morning. Trooper Fletcher testified that he found Darrell’s story to be suspect and

a criminal indicator. Specifically, Trooper Fletcher could not rationalize why an

individual would drive from Detroit to Dayton, return to Detroit the same day for

work, and return to Dayton the following day to pick up an acquaintance.

       {¶10} After Darrell explained his recent and current travel plans, Trooper

Fletcher asked Darrell whether he was listed as an additional driver. Darrell

responded that he should have been listed as an additional driver.          Darrell,

however, produced no documentation to substantiate his claim, nor did he explain

why he should have been listed as an additional driver.

                                        -6-
Case No. 5-10-41



       {¶11} After speaking with Darrell, Trooper Fletcher requested a canine

unit, which occurred at approximately 3:51 p.m. Judgment Entry, p. 3.

       {¶12} After requesting the canine unit, Trooper Fletcher returned to the

vehicle to speak with the vehicle’s passenger, Kenneth. Trooper Fletcher asked

Kenneth for identification, which Kenneth was unable to produce. Accordingly,

Trooper Fletcher took down Kenneth’s name and date of birth to verify his

identity. Trooper Fletcher also asked Kenneth about his and Darrell’s travel plans

and who rented the vehicle. According to Trooper Fletcher, Kenneth stated that he

and Kyles had traveled from Detroit to Dayton the previous night to party.

Kenneth further stated that Darrell did not accompany them to Dayton the

previous night, and that Kyles remained in Dayton while he returned to Detroit

that night. After speaking with Kenneth, Trooper Fletcher returned to his patrol

car.

       {¶13} Upon returning to his patrol car, Trooper Fletcher again asked

Darrell about his travel plans in an attempt to see whether his story would change.

Darrell’s explanation of his travel plans did not change. Trooper Fletcher testified

that the inconsistencies between Darrell and Kenneth’s stories were criminal

indicators.

       {¶14} Trooper Fletcher continued that due to a lack of documentation

demonstrating that Darrell was an authorized driver and pursuant to OSHP

                                        -7-
Case No. 5-10-41



operating procedure he began the process of contacting the vehicle’s owner, in this

case Avis Car Rental Company (“Avis”).                   To that end, Trooper Fletcher, at

approximately 3:59 p.m., requested his dispatcher, Tracy Koenig, to contact Avis

to determine whether anyone other than Kyles could operate the vehicle.

Judgment Entry, p. 3. At approximately 4:02 p.m., Koenig informed Trooper

Fletcher that there were no additional drivers associated with the rental agreement,

but that there may be a form attached to the rental agreement listing additional

drivers. Upon inspection of the rental agreement, State’s Exhibit 1, Trooper

Fletcher found no additional forms listing additional drivers, and relayed the same

to Koenig. At approximately 4:04 p.m., Koenig informed Trooper Fletcher that

neither Darrell nor Kenneth was permitted to drive the vehicle, and that Avis

wanted the vehicle to be detained. Judgment Entry, p. 4.1

        {¶15} At approximately 4:05 p.m., the canine unit arrived on scene and

conducted an exterior sniff of the vehicle. Id. The canine alerted to the driver side

of the vehicle. After the canine alerted to the vehicle, Kenneth was asked to exit

the vehicle and Trooper Fletcher conducted a search of his person, which revealed

a small plastic bag of “green leafy material.” Hearing Tr., p. 30. Thereafter,

Trooper Fletcher placed Kenneth in the back of his patrol car, and conducted a

thorough search of the rental vehicle. Trooper Fletcher searched the passenger
1
 Upon review of the video recording of the traffic stop, admitted as State’s Exhibit 3, Koenig informs
Trooper Fletcher that Avis wants the vehicle to be detained. See, also, Hearing Tr., p. 33.

                                                 -8-
Case No. 5-10-41



compartment first and discovered the presence of a blunt in the ashtray. Trooper

Fletcher then proceeded to search the vehicle’s rear hatch compartment, or trunk,

where he discovered a plastic bag containing approximately 250 grams of

suspected heroin.

       {¶16} Trooper Fletcher continued that he issued Darrell a warning for his

speed. Trooper Fletcher testified that if the driver is the owner of the car and the

driver’s license matches the registration, issuance of a warning for a speeding

violation takes approximately 8-10 minutes. Where, however, the owner of the

vehicle is not present then issuance of a warning for a speeding violation can vary

greatly in time.

       {¶17} Tracy Koenig testified that she is employed by the OSHP as a

dispatcher and has held that position for fourteen years. Koenig testified that she

entered the information associated with the dispatch report, or CAD log, offered as

State’s Exhibit Two. Koenig testified that Trooper Fletcher requested her to call

Avis and inquire whether any other individuals, besides Kyles, were authorized to

operate the rental vehicle. Accordingly, Koenig contacted Avis at 3:59 p.m. and

spoke with an Avis representative, whom she identified as Fred, I.D. number

10387. Particularly, Koenig entered the following entry at 4:04 p.m.: “PX to Avis

checking status of rental & auth[orized] drivers. Troy Kyles is the renter and no

additional drivers are listed. If no form attached to rental agreement then no one

                                        -9-
Case No. 5-10-41



was adde[d] later.” State’s Exhibit 2, p. 1. Koenig further testified that the Avis

representative with whom she spoke advised her to detain the vehicle.

       {¶18} After Koenig’s testimony the State rested.

       {¶19} The defense called Fred Nehmeh as their first witness. Nehmeh

testified that he is employed with Avis in Detroit. Nehmeh testified that Avis

offers corporate accounts to its business customers. One of the attributes of a

corporate account is that employees may drive the rental vehicle if their use of the

vehicle is incidental to the business and the Corporate AWD number is printed on

the rental agreement. See State’s Exhibit C; Judgment Entry, p. 6.

       {¶20} Nehmeh continued that he was employed with Avis on December 12,

2009. During his shift he received a phone call from the OSHP inquiring who

may operate the rental vehicle stopped by Trooper Fletcher. Nehmeh testified:

       A: First I asked her for the car number, or the license plate
       number, which I got from them. I pulled up the contract and
       they asked me what’s the name on the contract. So I told them it
       was Troy Kyles. He’s the one that rented the car. Then they
       asked me (sic) anybody else listed as additional driver. I’m like,
       there’s nobody listed here, but in our policy coworker and
       spouses automatically drive the car. That’s the Avis corporate
       policy.

Hearing Tr., p. 109.

       {¶21} On cross-examination Nehmeh testified that he did not inform the

OSHP officer whether the account was a personal or corporate account. Nehmeh


                                       -10-
Case No. 5-10-41



testified that, typically, additional drivers would appear under the renter’s name, in

this case Kyles’ name. On re-direct, Nehmeh testified that he did not make any

statements to the OSHP dispatcher about detaining or releasing the vehicle.

       {¶22} Troy Kyles testified that he rented the vehicle in question on

December 11, 2009, and drove from Detroit to Dayton on that same day with

Darrell and Kenneth. Kyles testified that he gave Darrell permission to drive the

rental vehicle back to Detroit on the night of December 11, 2009, because Darrell

had to work the following morning. Kyles further testified that Darrell was going

to return to Dayton the following day to pick him up and return to Detroit.

       {¶23} Shortly after the suppression hearing the trial court filed its judgment

entry. Based on the evidence and testimony adduced during the hearing the trial

court made the following findings of fact:

       On Dec[ember] 12, 2009 at 3:47 pm, Defendant Hollins was a
       passenger in a vehicle stopped for speeding near milepost 153 on
       Interstate 75 in Hancock County. Trooper Fletcher checked the
       vehicle’s speed by lazer (sic) and found it to be traveling at
       seventy-four (74) mph in a sixty-five (65) mph zone. During the
       course of this stop, Trooper Fletcher asked for the driver’s
       license and registration. The driver was identified as Darrell
       Hollins. The driver gave Trooper Fletcher a valid Michigan
       driver’s license and a rental agreement. The rental agreement
       did not list the driver as a permissible driver and listed only
       Troy Kyles as a permissible driver. Trooper Fletcher then asked
       Darrell Hollins to exit the vehicle. Upon exiting the vehicle, the
       driver consented to being frisked. No contraband was found on
       the person of Darrell Hollins and he was placed in Trooper


                                        -11-
Case No. 5-10-41



      Fletcher’s vehicle while the defendant remained in the rental
      car.

      Trooper Fletcher then asked Darrell Hollins about his travel
      destination. Darrell Hollins responded that he was driving from
      Detroit to Dayton with his brother, the defendant Kenneth
      Hollins, to pick up his cousin, and that he had been in Dayton
      the night before. Trooper Fletcher then requested that a canine
      unit report to the site of the traffic stop and that the post
      dispatcher contact the Avis car rental company to determine if a
      non-listed driver was permitted to operate the vehicle. It is
      unclear which of those two actions took place first. However, the
      CAD Log, State’s Exhibit 2, (which only keeps a record of when
      the Dispatcher types the Officer’s actions into the computer –
      not when the actions actually occurred,) lists the request for a
      canine unit at 3:51 pm and the request for clarification from
      Avis at 3:59 pm.

      Trooper Fletcher then returned to the stopped vehicle to
      question the defendant Kenneth Hollins. When asked his travel
      destination, defendant replied that he was traveling to pick up
      his cousin but that the driver had not been in Dayton the night
      before. Trooper Fletcher then returned to his cruiser to verify
      the driver’s statements that he had been in Dayton the night
      before. The driver again said he was in Dayton the previous
      night.

      At 4:04 pm, according to the CAD Log, Trooper Fletcher was
      informed that neither the driver nor the defendant was
      permitted to drive the vehicle under the Avis rental agreement.
      (Again, the CAD Log only represents when the dispatcher
      logged the occurrence in the computer, not the actual time it
      occurred.) According to the CAD Log, the canine unit arrived
      on scene no later than 4:05 pm – 18 minutes into the traffic stop.

      The canine then was walked around the motor vehicle and
      alerted on the stopped vehicle while defendant was still in the
      passenger seat. Defendant was then ordered out of the vehicle
      and a plastic bag of green, leafy substance was found on his

                                     -12-
Case No. 5-10-41



      person. In a subsequent search of the vehicle, Trooper Fletcher
      found a plastic bag containing what appeared to be heroin, in
      the trunk of the rental car.

      ***

      During the traffic stop at hand, Trooper Fletcher was given a
      rental agreement that did not list the driver as being allowed to
      operate the vehicle. Also, there was no attachment or addendum
      on the agreement indicating the driver was permitted to operate
      the vehicle. In addition, the patrol post dispatcher had given
      Trooper Fletcher no indication that Avis Car Rental had verified
      that the driver was permitted to drive the rental vehicle. As
      such, Trooper Fletcher was being “reasonable and diligent” by
      investigating whether the driver was allowed to be operating the
      vehicle. The CAD Log shows Trooper Fletcher requested
      dispatch to contact the rental car agency no later than 3:59 pm.
      Furthermore, no later than 4:04 pm, Trooper Fletcher was told
      that the driver was not permitted to drive the rental vehicle.
      Trooper Fletcher also testified that, while stops to issue a
      warning involving the owner of the car take eight to ten minutes,
      stops where the vehicle owner is not present vary greatly in
      length. Trooper Fletcher further testified that, throughout the
      stop, he was conducting checks of the defendant’s driver’s
      license and identity in addition to waiting to see if the driver was
      permitted to drive the rental vehicle.

      ***

      Defendant, through counsel, contends that an Avis
      representative told the dispatcher that co-workers are permitted
      to drive a vehicle rented under a corporate policy. Defendant
      also contends that he and the driver were employees of the
      corporation under which the car was rented. Regardless of
      Avis’ actual policy, there is no evidence that such information
      was passed along to Trooper Fletcher.              Furthermore,
      Defendant’s Exhibit C, an e-mail from an Avis representative,
      explains that for employees to drive a rental car under a
      corporate account, the “corporate AWD number” must be

                                     -13-
Case No. 5-10-41



       printed on the rental agreement. Troy Kyles’ AWD number,
       identified on Defendant’s Exhibit D as “Z391037,” is nowhere to
       be found on the rental agreement. There is also no evidence that
       the rental agreement can be identified as under a corporate
       policy, as it only listed the name “Troy Kyles” as a driver, not a
       corporation.

Judgment Entry, pp. 3-6. Based on these findings the trial court concluded that

Trooper Fletcher’s “investigation during the traffic stop was reasonable and

diligent,” and that the “extension of the traffic stop had not been unconstitutionally

prolonged at the time of the canine sweep.” Id. at p. 7. Accordingly, the trial

court denied Kenneth’s motion to suppress.

       {¶24} In September 2010, the State dismissed the sole specification.

Thereafter, Kenneth entered a plea of no contest to the sole count in the

indictment, which the trial court accepted and entered a finding of guilt.

       {¶25} In December 2010, the matter proceeded to sentencing. The trial

court sentenced Kenneth to a nine-year prison term on the sole count.

       {¶26} It is from this judgment that Kenneth appeals, presenting the

following assignments of error for our review.

                            Assignment of Error No. I

       THE COURT OF COMMON PLEAS COMMITTED
       REVERSIBLE ERROR WHEN IT DENIED DEFENDANT-
       APPELLANT’S MOTION TO SUPPRESS A QUANTITY OF
       HEROIN THAT WAS SEIZED BY THE HIGHWAY PATROL
       DURING A WARRANTLESS SEARCH OF THE LOCKED
       TRUNK OF A VEHICLE IN WHICH HE WAS A

                                        -14-
Case No. 5-10-41



      PASSENGER, IN VIOLATION OF HIS RIGHTS UNDER THE
      UNITED STATES CONSTITUTION AND ARTILE I, AND
      SECTION 14 OF THE OHIO CONSTITUTION.

                           Assignment of Error No. II

      DEFENSE COUNSEL’S FAILURE TO CHALLENGE THE
      HIGHWAY PATROL TROOPER’S EXTENSION OF THE
      SCOPE OF THE SEARCH FROM THE PASSENGER
      COMPARTMENT TO THE LOCKED TRUNK OF THE
      VEHICLE DEPRIVED DEFENDANT-APPELLANT OF HIS
      SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE
      EFFECTIVE ASSISTANCE OF COUNSEL.

                            Assignment of Error No. I

      {¶27} In his first assignment of error, Kenneth contends that the trial court

erred in denying his motion to suppress. Specifically, Kenneth contends that the

search of the rental vehicle was unconstitutional because it was the result of an

unconstitutionally prolonged detention, and that the canine alert on the passenger

compartment of the vehicle did not give Trooper Fletcher probable cause to search

the vehicle’s trunk. We disagree.

      {¶28} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence

presented. State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when

an appellate court reviews a trial court’s ruling on a motion to suppress, it must

                                       -15-
Case No. 5-10-41



accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-

3665, ¶100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate

court must then review the application of the law to the facts de novo. Roberts,

supra, citing Burnside, 2003-Ohio-5372, at ¶8.

       {¶29} Initially, we note that Kenneth does not challenge the original basis

for the traffic stop, i.e., the speeding violation. Rather, Kenneth, in his first

assignment of error, challenges the duration of the stop and the scope of the

search. Close review of Kenneth’s motion to suppress, however, reveals that he

did not challenge the scope of the search.        Rather, he only challenged the

constitutionality of the stop as it relates to its duration. Nevertheless, Kenneth

now challenges the scope of the search as though the matter was adjudicated

below. Because Kenneth did not raise the scope of the search below, a fact he

attributes to the ineffectiveness of trial counsel in his second assignment of error,

we will not address the same in his first assignment of error. Rather, we will

consider the matter in Kenneth’s second assignment of error. Accordingly, we

now consider whether the duration of the stop was unconstitutionally prolonged.

       {¶30} The stopping of a vehicle and the detention of its occupants is a

seizure within the meaning of the Fourth Amendment. State v. Johnson, 3d Dist.

No. 5-07-43, 2008-Ohio-1147, ¶16, citing Delaware v. Prouse (1979), 440 U.S.

                                        -16-
Case No. 5-10-41



648, 653, 99 S.Ct. 1391, 1396. Where the defendant challenges the duration of the

seizure, the government must present facts that justify its duration. State v. Hobbs,

9th Dist. No. 24764, 2010-Ohio-420, ¶11, citing Florida v. Royer (1983), 460 U.S.

491, 500, 103 S.Ct. 1319. When one has been detained so that the police may

investigate a traffic violation, the police may detain the individual for the length of

time necessary to check the driver’s license, vehicle’s registration, and the

vehicle’s license plate. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204,

¶12. “In determining if an officer completed these tasks 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 conducted

the investigation.” Id., quoting State v. Carlson (1995), 102 Ohio App.3d 585,

598.

       {¶31} If, during the investigation of the events that gave rise to the initial

stop, the officer discovers additional facts from which it is reasonable to infer

additional criminal activity; the officer is permitted to lengthen the duration of the

stop to investigate such suspicions. State v. Williams, 9th Dist. No. 09CA009679,

2010-Ohio-3667, ¶15, citing Batchili, 2007-Ohio-2204, at ¶15; State v. Robinette,

80 Ohio St.3d 234, 241, 1997-Ohio-343.

       {¶32} In addition, “[t]he use of a drug-detection dog does not constitute a

‘search,’ and an officer is not required, prior to a dog sniff, to establish either

                                         -17-
Case No. 5-10-41



probable cause or a reasonable suspicion that drugs are concealed in a vehicle.”

State v. Chambers, 3d Dist. No. 5-10-29, 2011-Ohio-1305, ¶25, discretionary

appeal denied, 129 Ohio St.3d 1451, 2011-Ohio-4217, quoting State v. Whitman,

184 Ohio App.3d 733, 2009-Ohio-5647, ¶9, citing Illinois v. Caballes (2005), 543

U.S. 405, 409, 125 S.Ct. 834; United States v. Place (1983), 462 U.S. 696, 707,

103 S.Ct. 2637. Consequently, a law enforcement officer needs no suspicion to

request a canine sniff nor does the officer need suspicion to conduct an exterior

canine sniff of the vehicle as long as it is done contemporaneously with the

legitimate activities associated with the traffic violation. State v. Keller, 2d Dist.

No. 17896, 2000 WL 20873, *5; Carlson, 102 Ohio App.3d at 594; Chambers,

2011-Ohio-1305, at ¶25, citing Whitman, 2009-Ohio-5647, at ¶9, citing Caballes,

543 U.S. at 409.

               Investigation of Rental Agreement during Traffic Stop

       {¶33} Kenneth contends that Batchili’s holding concerning permissible

background checks performed during a stop for a traffic violation does not extend

to an investigation of a rental agreement. Specifically, Kenneth contends that an

officer acts outside the investigatory scope set forth in Batchili when he or she

makes or attempts to make contact with the vehicle’s registered owner to ascertain

whether the vehicle’s occupants are authorized to operate the vehicle in the

absence of the renter or listed driver. We disagree.

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Case No. 5-10-41



       {¶34} This Court and others have found that an officer, while conducting a

stop for a traffic violation, may, as part of his or her investigation, review a rental

agreement, if one exists, in addition to conducting background checks of the

driver’s license, vehicle registration, and license plate. In State v. Chambers, a

case factually similar to the present case, this Court found that the duration of the

stop was not unconstitutionally prolonged for the purpose of conducting an

exterior canine sniff of a rental vehicle because the sniff coincided with a pending

review of a rental agreement to verify whether the defendant was authorized to

operate the rental vehicle. Chambers, 2011-Ohio-1305, at ¶26; see, also, State v.

Bell, 12th Dist. No. CA2001-06-009, 2002-Ohio-561, *3, discretionary appeal

denied, 95 Ohio St.3d 1486, 2002-Ohio-2625.

       {¶35} Federal courts have also held that an officer, while conducting a stop

for a traffic violation, may review a rental agreement in addition to conducting

background checks of the driver’s license and the vehicle’s registration. U.S. v.

Kitchell (C.A.10, 2011), 653 F.3d 1206, 1218 (determining that examining the

rental agreement and inquiring why the driver was operating a vehicle leased to

another individual was reasonably related to the initial purpose of the stop); U.S. v.

Bell (C.A.6., 2009) 555 F.3d 535, 542, (determining that questioning the driver

whether he was authorized to operate the rental vehicle in the absence of the renter

was within the initial purpose of the stop); U.S. v. Bonilla (C.A.6, 2009), 357

                                         -19-
Case No. 5-10-41



Fed.Appx. 693, 696 (finding that requesting a driver’s license, registration, rental

papers, running a computer check thereon, and issuing a citation do not exceed the

scope of a traffic stop for a speeding violation), citing U.S. v. Hill (C.A.6, 1999),

195 F.3d 258, 269; U.S. v. Garrido-Santana (C.A.6, 2004), 360 F.3d 565, 572-73

(finding that the officer did not unconstitutionally prolong the stop for a traffic

violation to verify whether the driver could operate the vehicle, as the rental

agreement did not contain the driver’s name, and the driver’s signature on the

agreement was illegible); U.S. v. Brigham (C.A.5, 2004), 382 F.3d 500, 507-08

(finding no constitutional impediment to a law enforcement officer’s request to

examine a driver’s license, vehicle registration, or rental papers during a traffic

stop and to run a computer check thereon); see, also U.S. v. Roberts (S.D. Ohio

2005), 492 F.Supp.2d 771, 775; U.S. v. Randall (C.A. 6, 2003), 62 Fed.Appx. 96,

101.

       {¶36} In light of the foregoing, we find that the holding in Batchili should

not be read so narrowly as to preclude an officer from reviewing a rental

agreement during a stop for a traffic violation. Furthermore, we find that it is

neither necessary nor prudent to proscribe the exact degree to which an officer

may investigate irregularities or inconsistencies in a rental agreement. Rather, we

find that the reasonableness of an officer’s investigation of irregularities in a rental

agreement depends upon the totality of the circumstances surrounding the stop.

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Case No. 5-10-41



See Pennsylvania v. Mimms (1977), 434 U.S. 106, 108-09, 98 S.Ct. 330 (“The

touchstone of our analysis under the Fourth Amendment is always ‘the

reasonableness in all the circumstances of the particular governmental invasion of

a citizen’s personal security.’ ”), quoting Terry v. Ohio (1968), 392 U.S. 1, 19, 88

S.Ct. 1868.

                   Driver’s Presence in Patrol Car During Stop

       {¶37} Kenneth also contends that the stop, as it related to the traffic

violation, was complete the moment Darrell was asked to sit in the front seat of the

patrol car. Consequently, Kenneth contends, albeit indirectly, that his continued

seizure beyond the moment Darrell was asked to sit in the patrol car was

unconstitutional because the officer was prolonging the purpose of the stop for

reasons other than investigating the traffic violation and without reasonable

articulable suspicion of past or present criminal activity. We disagree.

       {¶38} The mere act of having the driver sit in the patrol car during a traffic

stop neither terminates nor abandons the initial purpose of the stop. An officer

may, during a routine traffic stop, have the driver sit in his or her patrol car. State

v. Lozada, 92 Ohio St.3d 74, 76, 2001-Ohio-149, citing Carlson, 102 Ohio App.3d

at 595-96; Bay Village v. Lewis, 8th Dist. No. 87416, 2006-Ohio-5933, ¶4.

Whether the driver’s presence in the patrol car unconstitutionally prolongs the stop

is dependent upon the purpose of having the driver in the patrol car, e.g., was the

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purpose to facilitate background checks and issuance of the citation or was it a

dilatory tactic. In determining the purpose of having the driver sit in the patrol car

the court must consider the totality of the circumstances.

                              Totality of the Circumstances

       {¶39} The     record     herein   demonstrates   that   the   stop   was   not

unconstitutionally prolonged for the purpose of conducting a canine sniff. Upon

stopping the vehicle, Trooper Fletcher immediately began to conduct a routine

traffic stop, asking Darrell for his driver’s license, the vehicle’s registration, and

proof of insurance. In return, Trooper Fletcher received Darrell’s driver’s license

and a rental agreement.

       {¶40} After receiving Darrell’s license and the rental agreement, Trooper

Fletcher asked Darrell to join him in the front seat of his patrol car, to which

Darrell consented.    Based on Trooper Fletcher’s testimony and independent

review of the video recording of the stop, Darrell’s presence in the patrol car

facilitated the investigation and issuance of the subsequent warning.

       {¶41} Upon entering the patrol car, Trooper Fletcher began checking

Darrell’s driver’s license and spoke with Darrell about his speed and travel plans.

During this time, Trooper Fletcher noticed that the rental agreement did not list

Darrell as the renter or an authorized driver. Due to this inconsistency it was

reasonable for Trooper Fletcher to conduct further investigation. Carlson, 102

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Ohio App.3d at 598 (determining that it was reasonable for a trooper to investigate

why the name and state listed on the vehicle’s registration were different from that

of defendant’s driver’s license). First, Trooper Fletcher endeavored to resolve the

matter via discourse with Darrell and Kenneth. Apparently unsatisfied with their

inconsistent explanations, Trooper Fletcher, pursuant to OSHP operating

procedure, requested dispatch to contact Avis to determine whether Darrell or

Kenneth were in lawful possession of the vehicle and authorized to operate the

same. In light of the facts known to Trooper Fletcher at the time of the request,

we find that Trooper Fletcher’s investigation was reasonable and not outside the

initial investigative scope of the stop. See Chambers, 2011-Ohio-1305, at ¶26;

Bell, 2002-Ohio-561, at *3. Several minutes later Trooper Fletcher was advised

that Avis wanted the vehicle to be detained, as neither Darrell nor Kenneth was

authorized to operate the vehicle.2

         {¶42} Once Trooper Fletcher was informed that Avis wanted the vehicle to

be detained, further detention of the vehicle and its occupants became

inconsequential in determining whether the duration of the stop was

unconstitutionally prolonged. The moment Trooper Fletcher was informed that


2
  Based on our reading of the transcript and the trial court’s judgment entry it appears as though the issue of
whether Nehmeh informed the OSHP to detain the rental vehicle became an issue of credibility, as
evidence was presented on the matter by both parties. Since a trial court is in the best position to resolve
issues of credibility, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, and there is competent,
credible evidence to support the trial court’s finding that Nehmeh informed the OSHP to detain the rental
vehicle, we will not disturb this finding on appeal.

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Case No. 5-10-41



Avis wanted the vehicle to be detained Darrell and Kenneth were no longer being

seized based solely on the initial traffic violation or Trooper Fletcher’s suspicions.

Rather, Darrell and Kenneth’s continued presence was the result of the owner’s

request to detain the vehicle, and as such their continued presence no longer

implicated the Fourth Amendment. Consequently, the fact that the canine unit

arrived one minute after Trooper Fletcher had completed his background checks of

Darrell’s license, the vehicle’s registration, and the rental agreement bears no

consequence    in   determining    whether     the   duration   of   the   stop   was

unconstitutionally prolonged.

       {¶43} Having considered the totality of the circumstances surrounding the

stop, we find that Trooper Fletcher did not prolong the detention any longer than

necessary to effectuate the initial purpose of the stop. Consequently, Kenneth was

not unconstitutionally seized at the moment the canine alerted to the vehicle,

which gave Trooper Fletcher probable cause to search the vehicle.

       {¶44} Accordingly, we overrule Kenneth’s first assignment of error.

                             Assignment of Error No. II

       {¶45} In his second assignment of error, Kenneth contends that he received

ineffective assistance of counsel. Specifically, Kenneth contends that trial counsel

failed to challenge Trooper Fletcher’s extension of his search from the passenger

compartment to the trunk. We disagree.

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       {¶46} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio

St.3d 136, paragraph two of syllabus.         To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different. Id., at paragraph three of syllabus.        “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.

       {¶47} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone

(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not

exist merely because counsel failed to recognize the factual or legal basis for a

claim, or failed to raise the claim despite recognizing it.” Id., quoting Smith v.

Murray (1986), 477 U.S. 527, 535, 106 S.Ct. 2661 (internal quotation omitted).

       {¶48} The United States Supreme Court has held that the “failure to file a

suppression motion does not constitute per se ineffective assistance of counsel.”

Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, cited in State

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Case No. 5-10-41



v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448. There must also be a

reasonable probability that the motion will be successful. State v. Ligon, 3d Dist.

No. 4-2000-25, 2001-Ohio-2231. Thus, this Court’s determination of whether

Kenneth’s trial counsel was ineffective relies upon whether there was a reasonable

probability that a motion to suppress would have been successful. State v. Pierce,

3d Dist. No. 11-09-05, 2010-Ohio-478, ¶34.

       {¶49} A motion challenging the scope of the search would not have been

successful, as Kenneth lacked standing to challenge the same.             It is well

established that a passenger of a vehicle does not have standing to challenge the

search of the vehicle and its contents absent some proprietary or possessory

interest in the vehicle and its contents. State v. Weis, 3d Dist. No. 10-06-22, 2007-

Ohio-2279, ¶¶21-24, citing Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421.

Here, Kenneth was a passenger in a rental vehicle that was rented by an absent

third party. The record herein is devoid of any evidence that Kenneth had a

proprietary or possessory interest in the vehicle, and Kenneth advances no

arguments establishing the same. Consequently, trial counsel was not ineffective,

as a motion challenging the scope of the search would have failed for lack of

standing. See State v. Stoddard, 3d Dist. No. 9-89-05, 1990 WL 72397, *2; State

v. Tibbetts, 92 Ohio St.3d 146, 165, 2001-Ohio-132 (denying defendant’s

ineffective assistance of counsel claim for failure to file suppression motion

                                        -26-
Case No. 5-10-41



concerning the scope of a vehicle search because the motion, had it been filed, was

“certain to fail” as defendant had no proprietary or possessory interest in the

vehicle or its contents).

       {¶50} Since we find no error in trial counsel’s failure to challenge the scope

of Trooper Fletcher’s search, we find no error in trial counsel’s performance.

       {¶51} Accordingly, we overrule Kenneth’s second assignment of error.

       {¶52} Having found no error prejudicial to Kenneth herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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