[Cite as State v. Harwell, 2014-Ohio-4176.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2013-11-104

                                                    :          OPINION
    - vs -                                                      9/22/2014
                                                    :

EDWARD HARWELL,                                     :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 12CR28482



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Stephan D. Madden, 810 Sycamore Street, Fifth Floor, Cincinnati, Ohio 45202, for
defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Edward Harwell, appeals from his convictions for

trafficking in cocaine and possession of cocaine following his plea of no contest in the

Warren County Court of Common Pleas. Harwell argues the trial court erred in overruling his

motion to suppress evidence obtained from an illegal search and seizure. For the reasons

set forth below, we overrule Harwell's arguments and affirm his convictions.
                                                                     Warren CA2013-11-104

       {¶ 2} Around 9:50 p.m. on July 18, 2012, Lieutenant Matt Hamilton and two fellow

Ohio State Highway Patrol troopers were transporting suspects along Kings Mill Road near

Interstate 71 (I-71) in Warren County, Ohio, when the troopers pulled their three marked

cruisers into a gas station to get gas. Hamilton pulled his cruiser up to a gas pump behind a

white Buick Rendezvous SUV (SUV) with New York license plates. When Hamilton pulled

up, he saw a man, who was later identified as Harwell, standing beside the SUV's driver's

side door with a "shocked" look on his face. As Hamilton pumped his gas and talked with his

fellow troopers, he noticed a second man, later identified as Darryl Watkins, climb into the

SUV's passenger seat. Hamilton finished fueling his vehicle and was preparing to leave the

gas station when a disheveled and foul smelling Harwell approached him and expressed an

interest in becoming a state trooper. Harwell told Hamilton he was getting a degree in

criminal justice and asked if the Highway Patrol was hiring.

       {¶ 3} As he had done in the past for individuals who had expressed an interest in

becoming a state trooper, Hamilton informed Harwell of the requirements for becoming a

trooper and described the application process. Hamilton stated the Highway Patrol was

understaffed and looking for additional people. Hamilton asked Harwell if he wanted to

provide his identification so that the Highway Patrol could add Harwell to its list of potential

applicants who would later be contacted by a recruiter, which was the customary way in

which applicants were contacted for employment opportunities. Harwell voluntarily handed

over his license and Hamilton gave the information to his post's dispatcher. In the process of

relaying the information to the dispatcher, Hamilton noticed that Harwell had a New York

driver's license. Hamilton asked Harwell what he was doing in Ohio, and Harwell responded

that he was in the area helping out his uncle who owned a trucking company and had

recently had a stroke. Harwell got increasingly nervous as he talked with Hamilton and was

unable to tell Hamilton the name of his uncle's trucking company or where the company was

                                              -2-
                                                                   Warren CA2013-11-104

located.

      {¶ 4} While Hamilton was talking with Harwell, dispatch, on its own initiative and

without a request from Hamilton, ran Harwell's driver's license and found that Harwell's

license had been revoked. This information was conveyed to Hamilton. When Hamilton

asked Harwell about his license, Harwell indicated that his license "should have been taken

care of" and that he had driving privileges from New York.

      {¶ 5} Because Hamilton had first observed Watkins enter the passenger side of the

SUV, he believed Harwell had been driving the vehicle. Hamilton noticed that during his

conversation with Harwell, Watkins had moved over into the driver's seat. Hamilton wanted

to make sure that Watkins had a valid driver's license before the SUV pulled away from the

gas station, so he approached the SUV to talk to Watkins. Hamilton asked Watkins for his

license and asked what had brought Watkins to Ohio. Watkins told Hamilton that he and

Harwell were just driving through Ohio on their way back from Atlanta, Georgia, where they

had just dropped off his grandfather. As Watkins' story did not match Harwell's story,

Hamilton became suspicious and he started to pay closer attention to the interior of the SUV.

Hamilton noticed that the SUV did not contain any luggage, there were a number of air

fresheners scattered about the vehicle, the dashboard had tape-mark residue on it near the

steering wheel, and the vehicle was littered with several fast-food bags.

      {¶ 6} After hearing Watkins' and Harwell's conflicting stories, being informed of the

route they were traveling, observing the tape marks on the dashboard, seeing the air

fresheners in the SUV, and noticing the absence of luggage, Hamilton became suspicious

that Watkins and Harwell were engaged in criminal activity. Specifically, Hamilton suspected

Harwell and Watkins were involved in the trafficking of narcotics as the two men were

traveling along I-71, a known corridor for the shipment of contraband from the south to the

east coast. As a result of his suspicions, Hamilton asked Watkins to exit the SUV and to
                                             -3-
                                                                     Warren CA2013-11-104

stand with another trooper.

        {¶ 7} Hamilton reapproached Harwell, read him his Miranda rights, and began

questioning Harwell about the conflicting story he had received from Watkins. Harwell

attempted to change his story so that it would match Watkins' version. Harwell then

acknowledged he had provided a conflicting story and stated he "should probably just stop

talking."

        {¶ 8} Thereafter, at 9:59 p.m., Hamilton contacted his post's dispatch and requested

a canine unit. At 10:06 p.m., Hamilton was informed there were no Highway Patrol canine

units on duty and the Warren County Sheriff's Office did not have a canine unit available.

Hamilton was not satisfied with simply releasing Watkins and Harwell, so he requested that

his dispatch try to find another canine unit or call one of the Highway Patrol's canine units on

to duty. Dispatch responded that the West Chester Police Department had a canine unit

available, and as of 10:17, p.m., Officer Scott Lovett and his canine partner, Rex, were in

route to the scene. While waiting for Lovett to arrive, Hamilton had his dispatch run a

criminal history on Watkins. Dispatch reported that Watkins had a lengthy criminal history,

including convictions for possessing and trafficking in drugs.

        {¶ 9} Lovett arrived at the gas station at 10:37 p.m. He conducted an open air sniff

of the SUV with Rex, a German Shepherd trained to recognize narcotics such as cocaine,

heroin, methamphetamine, and marijuana. Rex was walked around the SUV twice, and both

times Rex alerted on the driver's side door seam and on the passenger's side door seam and

door handle. Once Rex alerted, the troopers conducted a search of the vehicle and found 85

grams of cocaine inside a natural cavity behind the vehicle's interior molding in the rear cargo

area.

        {¶ 10} Following the troopers discovery of the cocaine, Watkins and Harwell were

arrested. Harwell was indicted on one count of possession of cocaine in violation of R.C.
                                              -4-
                                                                     Warren CA2013-11-104

2925.11(A) and one count of trafficking in cocaine in violation of R.C. 2925.03(A)(2), both

felonies of the first degree as the amount of cocaine involved equaled or exceeded 27 grams

but was less than 100 grams. On September 20, 2012, Harwell filed a motion to suppress

evidence relating to his arrest on the grounds that such evidence was seized in violation of

his constitutional rights. Specifically, Harwell contended that he was detained without

reasonable articulable suspicion of criminal wrongdoing and the detainment lasted an

extraordinary and unreasonably long period of time. A hearing on Harwell's motion to

suppress was held on October 5, 2012 and November 1, 2012. At this time the state

introduced evidence and testimony from Hamilton and Lovett. Harwell did not call any

witnesses.

       {¶ 11} On November 5, 2012, the trial court issued a decision denying Harwell's

motion to suppress. The trial court found that Harwell's initial interaction with Hamilton was

consensual and was brought about by Harwell's act of approaching Hamilton to discuss

employment as a state trooper. During the course of Hamilton's consensual encounters with

Harwell and Watkins, Hamilton was given conflicting information regarding the men's

presence in Ohio. The court determined that these conflicting stories, Hamilton's training and

experience that I-71 is frequently used to transport illegal contraband, and his observations of

the "appearance of the * * * vehicle, including food wrappers in the car, out of state license

plates, the disheveled appearance of [Harwell and Watkins], * * * tape on the dash and

interior, multiple air fresheners throughout the vehicle, and no indication of luggage," were

specific and articulable facts leading to Hamilton's reasonable suspicion of criminal

wrongdoing. The court held that Hamilton was justified in detaining Harwell and that the

"length of the detention was not unreasonable under the circumstances" as Hamilton "acted

deliberately and did not unduly delay" in seeking a canine unit to conduct an open air sniff of

the SUV. The court then concluded that once the narcotics detection dog alerted on the

                                              -5-
                                                                       Warren CA2013-11-104

SUV, the officers had probable cause to search the vehicle.

         {¶ 12} After the trial court denied his motion to suppress, Harwell entered a plea of no

contest to the charges of possessing and trafficking in cocaine. Harwell was sentenced to

three years in prison.

         {¶ 13} Harwell timely appealed his conviction, raising the following assignment of

error:

         {¶ 14} THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT HELD THAT

THE CONTINUED DETENTION OF APPELLANT WAS NOT UNREASONABLE.

         {¶ 15} In his sole assignment of error, Harwell contends the trial court erred in denying

his motion to suppress since the evidence presented at the motion-to-suppress hearing

demonstrated he was detained on the basis of a "hunch" rather than on reasonable

articulable suspicion that he was engaged in criminal activity. Harwell further contends that

the "drug dog hit was invalidly obtained" as it occurred after an "unreasonable continued

detention."

         {¶ 16} Appellate review of a trial court's denial of a motion to suppress presents a

mixed question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023,

2007-Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to

resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the

denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings

of fact if they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler

No. CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.

         {¶ 17} The Fourth Amendment to the United States Constitution and Section 14,
                                                -6-
                                                                     Warren CA2013-11-104

Article I of the Ohio Constitution protect individuals from unreasonable governmental

searches and seizures. State v. Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-

2586, ¶ 18; State v. Thomas, 12th Dist. Warren No. CA2012-10-096, 2013-Ohio-3411, ¶ 19.

"Generally, a 'seizure' occurs when a police officer, by means of physical force or show of

authority, has restrained an individual's liberty in some way." State v. Smith, 12th Dist.

Warren No. CA89-10-055, 1990 WL 116971, *1 (Aug. 13, 1990), citing Terry v. Ohio, 392

U.S. 1, 19, 88 S.Ct. 1868 (1968). "[O]fficers may briefly stop and detain an individual, without

an arrest warrant and without probable cause, in order to investigate a reasonable articulable

suspicion of criminal activity." State v. Potter, 12th Dist. Butler No. CA2006-07-166, 2007-

Ohio-4216, ¶ 12, citing Terry at 19-21. "To justify a particular intrusion, the officer must

demonstrate 'specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.'" State v. Batchili, 113 Ohio St.3d 403, 2007-

Ohio-2204, ¶ 11, quoting Terry at 21. Accordingly, "[t]he propriety of an investigative stop by

a police officer must be viewed in light of the totality of the surrounding circumstances" as

"viewed through the eyes of a reasonable and cautious police officer on the scene, guided by

his experience and training." State v. LeClair, 12th Dist. Clinton No. CA2005-11-027, 2006-

Ohio-4958, ¶ 9, citing State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the

syllabus.

       {¶ 18} Not every contact between a law enforcement officer and a citizen, however,

implicates the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382

(1991); State v. Simmons, 12th Dist. No. CA2012-11-229, 2013-Ohio-5088, ¶ 14. "An

encounter which does not involve physical force or a show of authority is a consensual

encounter that does not trigger Fourth Amendment scrutiny; therefore, an officer does not

need reasonable suspicion merely to approach an individual in order to make reasonable

inquires of him." Potter, 2007-Ohio-4216 at ¶ 13, citing Hamilton v. Stewart, 12th Dist. Butler
                                              -7-
                                                                     Warren CA2013-11-104

No. CA2000-07-148, 2001 WL 208838, *2 (Mar. 5, 2001). "'Encounters are consensual

where the police merely approach a person in a public place, engage the person in

conversation, request information, and the person is free not to answer and walk away.'"

Potter at ¶ 13, quoting State v. Taylor, 106 Ohio App.3d 741, 747 (2d Dist.1995).

       {¶ 19} In the present case, Harwell's initial interaction with Hamilton resulted from a

consensual encounter that occurred only after Harwell voluntarily approached Hamilton to

express an interest in becoming a state trooper. Harwell then proceeded to voluntarily

provide his name and state identification so that he could be added to a list of potential job

applicants. During this process Hamilton asked Harwell what he was doing "down this way"

and his reason for being in Ohio. Hamilton's inquiry into Harwell's travel did not change the

encounter from a consensual one into an investigative stop as it was reasonable for Hamilton

to inquire what Harwell, a New York resident, was doing in Ohio. See Simmons, 2013-Ohio-

5088 at ¶ 15; Potter at ¶ 13. There is no indication that Hamilton used force, exercised his

authority as a police officer, or impeded Harwell's travel while asking about Harwell's

presence in Ohio.

       {¶ 20} The encounter between Harwell and Hamilton remained consensual even after

Hamilton was advised by dispatch that Harwell's driver license had been revoked. The fact

that dispatch, on its own initiative and without a request from Hamilton, chose to run Harwell's

license did not change the encounter into an investigative stop. Furthermore, the fact that

Hamilton approached Watkins, asked to see his license, and asked him what brought him to

Ohio did not change the encounter into an investigatory stop.             The encounter was

consensual as Hamilton merely approached Watkins in a public place, engaged him in

conversation, requested information, and Watkins was free not to answer and walk away.

See Potter at ¶ 13.

       {¶ 21} It was during his consensual encounter with Watkins that Hamilton began to
                                              -8-
                                                                      Warren CA2013-11-104

suspect criminal activity. The two men had provided inconsistent statements about their

reasons for traveling in Ohio, thereby raising Hamilton's suspicions. Hamilton observed that

the SUV did not contain any luggage, had tape-mark residue on the dashboard, had

numerous air fresheners throughout its interior, and was littered with several fast-food bags.

Furthermore, the route the two men were traveling, from the south back to the east coast,

also raised Hamilton's suspicions as Hamilton knew from his prior experiences and training

that I-71 was a major drug corridor often used to transfer contraband from the south to the

east. These facts and observations, taken together with rational inferences from such facts,

warranted detainment of Harwell and the SUV for further investigation. See Batchili, 2007-

Ohio-2204 at ¶ 11; State v. Kilgore, 12th Dist. Butler No. CA98-09-201, 1999 WL 452235, *3

(June 28, 1999).

       {¶ 22} We further find that the length of the detainment was reasonable under the

circumstances. As we have previously held, in determining whether a detention is too long in

duration to be justified as an investigative stop, a court must consider "whether the police

diligently pursued a means of investigation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the defendant." State v. Howard, 12th

Dist. Preble Nos. CA2006-02-002 and CA2006-02-003, 2006-Ohio-5656, ¶ 22, quoting

United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568 (1985). "A court making this

assessment should take care to consider whether the police are acting in a swiftly developing

situation, and in such cases the court should not indulge in unrealistic second-guessing."

Sharpe at 686.

       {¶ 23} Here, the record reflects that Harwell was detained for nearly 40 minutes while

law enforcement awaited the arrival of the canine unit. Hamilton testified that he became

concerned that Harwell was engaged in criminal activity within ten minutes of his arrival at the

gas station, and by 9:59 p.m., he had contacted his dispatch to request a canine unit be sent
                                               -9-
                                                                      Warren CA2013-11-104

to the scene to conduct an exterior sniff of the SUV. At 10:06 p.m., Hamilton was advised

there were no Highway Patrol or Warren County canine units available. Hamilton asked his

dispatch to try to find another canine unit in the area, and was informed that the West

Chester Police Department had a canine unit available. Lovett testified that by 10:10 p.m.,

he had been authorized by his superiors to respond to the scene. Lovett arrived at the scene

at 10:37 p.m., and promptly conducted an open air sniff of the SUV with Rex. While the

delay in the canine unit's arrival was considerable, it was reasonable under the

circumstances as the record demonstrates that law enforcement acted diligently and

deliberately in pursing their investigation and there was no indication that a canine unit could

have arrived at the scene any earlier. See State v. French, 104 Ohio App.3d 740, 748 (12th

Dist.1995).

       {¶ 24} Finally, we find that once Rex alerted to the presence of narcotics on both the

driver's side and passenger's side of the SUV, law enforcement had probable cause to

search the vehicle for contraband. Howard, 2006-Ohio-5656 at ¶ 17.

       {¶ 25} Based upon the foregoing, we find no error in the trial court's denial of Harwell's

motion to suppress. Hamilton's initial encounter with Harwell was consensual and Harwell's

subsequent detainment was supported by reasonable articulable suspicion of criminal

activity. Moreover, the length of detainment was reasonable under the circumstances as law

enforcement acted deliberately and diligently in obtaining a canine unit to conduct an open

air sniff test of the SUV. Finally, the search of the vehicle and seizure of evidence was

supported by probable cause once the narcotics dog alerted to the contraband. Harwell's

sole assignment of error is, therefore, overruled.

       {¶ 26} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.


                                              - 10 -
