[Cite as State v. Taylor, 2016-Ohio-7745.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NO. 2016-A-0022
        - vs -                                  :

RODNEY P. TAYLOR, JR.,                          :

                 Defendant-Appellee.            :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00522.

Judgment: Reversed and remanded.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellant).

Joseph A. Pfundstein, P.O. Box 46449, Cleveland, OH            44139 (For Defendant-
Appellee).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, the state of Ohio, appeals the judgment of the Ashtabula

County Court of Common Pleas granting the motion to suppress filed by appellee,

Rodney P. Taylor, Jr. Appellee did not file an appellate brief. At issue is whether the

trial court erred in suppressing the heroin appellee hid in a police cruiser while he was

being detained. For the reasons that follow, we reverse and remand.
       {¶2}   On October 20, 2015, appellee was charged in a two-count indictment

with possession of heroin, a felony of the first degree; and tampering with evidence, a

felony of the third degree. Appellee pled not guilty and subsequently filed a motion to

suppress evidence.

       {¶3}   At the suppression hearing, Ohio State Highway Patrol Trooper Brandon

Miller testified that on September 10, 2015, at about 4:50 p.m., he was observing

eastbound traffic on I-90 when he saw appellee following a car too closely. Trooper

Miller pulled onto the highway and saw appellee was still following that vehicle too

closely. Trooper Miller stopped appellee for this traffic violation.

       {¶4}   After appellee pulled over, Trooper Miller approached him. Trooper Miller

immediately smelled the odor of raw marijuana emanating from appellee’s car and

asked appellee for his driver’s license. Appellee handed the trooper car rental papers

and said the car was rented by his girlfriend.        As Trooper Miller went through the

papers, he saw marijuana debris between the pages.

       {¶5}   Trooper Miller told appellee he smelled marijuana and saw pieces of

marijuana in his papers and said he was going to search his car. He asked appellee to

exit his car; brought appellee to his cruiser; frisked him, with negative results; and then

secured appellee in the back of his cruiser.

       {¶6}   Trooper Miller called for backup. Trooper Semanski arrived within minutes

and assisted Trooper Miller in searching appellee’s car, with negative results.       The

search was completed 24 minutes after appellee was stopped.

       {¶7}   After appellee’s car was searched, the troopers moved appellee from

Trooper Miller’s cruiser to Trooper Semanski’s cruiser so Trooper Miller could fill out a




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citation/warning as he reviewed the video of appellee taken while he was seated in the

back of his cruiser. While watching the video, Trooper Miller saw appellee “moving

around a lot.” Trooper Miller testified:

       {¶8}   He was manipulating in his butt area quite a bit, with his butt off the
              seat for a longer period of time. Not like he was itching anything. *
              * * [H]is hands were down there by his butt, he was like making
              wincing noises. Like almost in pain, maybe. And then at which
              point he pulled his hands out after doing that for awhile * * *.

       {¶9}   Meanwhile, Trooper Miller had asked Trooper Dennison to respond

because Trooper Semanski had to leave for road duty.            When Trooper Dennison

advised he was en route, Trooper Miller told him to continue coming because “it was

clear from [his] observations that [appellee] had something concealed.” Shortly after

Trooper Dennison’s arrival, the troopers moved appellee to Trooper Dennison’s car so

Trooper Semanski could leave.

       {¶10} Trooper Miller said that, based on his training, experience, and review of

the video, he was “confident” appellee had concealed something so he decided he

needed to have a body cavity search performed on him. As a result, Trooper Miller

called the Lieutenant on duty to obtain a body cavity search warrant for appellee.

Trooper Miller talked to the Lieutenant for quite awhile, explaining what had taken place.

The Lieutenant said that he did not want to proceed with a body cavity warrant for

marijuana. Instead, he said that since appellee was on parole, appellee was subject to

being searched by his parole officer so he, i.e., Trooper Miller, should call his parole

officer to have him search appellee. Trooper Miller then called appellee’s parole officer,

but he said he could not respond because he was too far away. As a result, Trooper

Miller issued a warning for following too closely and released appellee at 5:40 p.m. He




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had been held an additional 24 minutes after the troopers completed the search of

appellee’s car.

       {¶11} Trooper Benjamin Dennison testified that when he arrived on scene,

appellee was detained in the back of Trooper Semanski’s cruiser. Shortly thereafter,

Trooper Semanski had to leave for road duty so appellee was placed in Trooper

Dennison’s car. After Trooper Miller released appellee, Trooper Dennison performed a

brief sweep of the back of his cruiser where appellee had been sitting, with negative

results.

       {¶12} As Trooper Dennison was driving away from the scene, he felt something

was not right. He pulled over and watched the video of the back seat area of his cruiser

taken while appellee was sitting there. Trooper Dennison saw appellee going down his

pants. He then saw one of appellee’s arms go underneath the metal divider in his

cruiser that separates the front seat from the back.

       {¶13} Trooper Dennison then called Trooper Miller and told him what he had

seen on the video and told him to find appellee’s car. Trooper Miller told Trooper

Dennison to search his cruiser for contraband. Trooper Dennison then pulled into the

nearest driveway, which was a church. He got out of his cruiser and moved his seat

forward to check the area under the metal divider where he saw appellee reaching.

Trooper Dennison found a baggie containing what he believed to be a packet of heroin

tucked under the metal divider. He then called Trooper Miller and told him he found

felony amounts of narcotics in his cruiser.

       {¶14} Shortly thereafter, Trooper Miller stopped appellee the second time and

arrested him for possession of narcotics and tampering with evidence.           Trooper




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Dennison then responded to the scene and field-tested the contents of the baggie,

which tested positive for heroin.

       {¶15} The trial court found that appellee’s initial stop and the search of his

vehicle were authorized, but suppressed the heroin on the ground that the troopers

unreasonably prolonged the stop beyond its original purpose, as extended by the

search of appellee’s car, by detaining him for the additional 24 minutes after the search

of his vehicle was completed. The court found appellee’s detention after the vehicle

search was completed was unlawful and, therefore, his “abandonment” of the heroin

during that time was not voluntary.

       {¶16} The state appeals the trial court’s ruling, asserting the following for its sole

assignment of error:

       {¶17} “The trial court erred in granting appellee’s motion to suppress.”

       {¶18} Appellate review of a trial court's ruling on a motion to suppress evidence

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

Ohio-5372, ¶8. During a hearing on a motion to suppress evidence, the trial court acts

as the trier of fact and, as such, is authorized to resolve factual questions and assess

the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). An appellate

court reviewing a ruling on a motion to suppress is bound to accept the trial court’s

findings of fact where they are supported by competent, credible evidence. State v.

Guysinger, 86 Ohio App.3d 592, 594 (4th Dist.1993). Accepting these facts as true, the

appellate court reviews de novo whether the facts meet the applicable legal standard

without deference to the trial court’s conclusion. State v. Djisheff, 11th Dist. Trumbull

No. 2005-T-0001, 2006-Ohio-6201, ¶19.




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       {¶19} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1 (1968).

Generally, “[f]or a search or seizure to be reasonable under the Fourth Amendment, it

must be based on probable cause and executed pursuant to a warrant.” State v. Moore,

90 Ohio St.3d 47, 49 (2000). However, as this court has previously noted, “there are

several exceptions to the warrant requirement.” State v. Mitchell, 11th Dist. Lake No.

2004-L-071, 2005-Ohio-3896, ¶17. An investigative stop, or Terry stop, is a common

exception to the Fourth Amendment warrant requirement. Terry, supra. Pursuant to

Terry, officers may briefly stop and detain an individual, without an arrest warrant and

without probable cause, in order to investigate a reasonable and articulable suspicion of

criminal activity. Id. “‘The 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, quoting State v. Freeman, 64 Ohio St.2d 291 (1980), syllabus, and State v. Bobo,

37 Ohio St.3d 177, 179 (1988).

       {¶20} The state obviously does not take exception to the trial court’s finding that

Trooper Miller was authorized to stop appellee for following a vehicle too closely in

violation of R.C. 4511.34. An officer's observation of any traffic law violation constitutes

sufficient grounds to stop the vehicle observed violating the law. Dayton v. Erickson, 76

Ohio St.3d 3, 11-12 (1996). In Erickson, the Supreme Court of Ohio held that a traffic

stop based on probable cause is not unreasonable, and an officer who makes a traffic

stop based on probable cause acts in an objectively reasonable manner. Id. at 11.




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Further, the Court held that where a police officer stops a vehicle based on probable

cause that a traffic violation has occurred, the stop is not unreasonable under the Fourth

Amendment even if the officer had some ulterior motive for making the stop, such as a

suspicion that the violator was engaging in more serious criminal activity. Id.

       {¶21} Further, this court has held that where an officer witnessed a violation of

R.C. 4511.34, following too closely, he had probable cause to stop the defendant and

cite him. State v. Graham, 11th Dist. Portage No. 2005-P-0096, 2006 Ohio App. LEXIS

4128, *8 (Aug. 11, 2006).

       {¶22} Where a stop is based on a reasonable suspicion that a motorist has

committed a traffic violation, an officer may delay the motorist for a time period sufficient

to issue a citation or a warning. State v. Eggleston, 11th Dist. Trumbull No. 2014-T-

0068, 2015-Ohio-958, ¶21. For example, this delay may include the period of time

sufficient to run a computer check on the driver’s license, registration, and vehicle

plates. Id. Further, in determining whether an officer completed these tasks within a

reasonable period 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. The circumstances must be “‘viewed through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.’” State v. Colby, 11th Dist. Portage No. 2002-P-0061, 2004-Ohio-343, ¶21,

quoting State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). Further, if the circumstances

surrounding a stop produce a reasonable suspicion of some other illegal activity, the

officer may detain the motorist for as long as that new articulable and reasonable




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suspicion continues. State v. Jones, 8th Dist. Cuyahoga No. 100300, 2014-Ohio-2763,

¶21.

       {¶23} Likewise, the state does not challenge the trial court’s finding that the

troopers were authorized to search appellee’s car.        Upon approaching appellee’s

vehicle, Trooper Miller detected the odor of marijuana coming from it. Further, when the

trooper asked to see appellee’s driver’s license, appellee gave him rental papers for the

car, which contained marijuana debris. In Moore, supra, the Ohio Supreme Court held,

“the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient

to establish probable cause to search a motor vehicle, pursuant to the automobile

exception to the warrant requirement.” Id. at 48.

       {¶24} However, the state challenges the trial court’s finding that the 24 minutes

appellee was detained after the search of his car was completed unreasonably

prolonged the stop, as a result of which his continued detention was unlawful and his

abandonment of the heroin was not voluntary. In support of this finding, the trial court

relied on the Eighth District’s decision in State v. Taylor, 8th Dist. Cuyahoga No. 94853,

2011-Ohio-1554. In Taylor, the detective stopped an SUV for impeding traffic. The

detective removed the driver and Taylor, who was in the front passenger seat. The

detective handcuffed the driver, but was unable to handcuff Taylor because he did not

have an additional pair of handcuffs. He placed both women in the back of his cruiser,

but neither was arrested. He did not pat down either woman, but instead called for a

female officer to respond to the scene for that purpose. He said that neither female

appeared to have a weapon, but he noticed that Taylor had a bulge in her shirt. The

driver and Taylor were detained for 30 minutes until the female officer arrived to pat




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down the women.      When the detective removed the two suspects from the police car,

he noticed there was no longer a bulge in Taylor’s shirt. Upon inspection of the rear

seat, he found a baggie containing suspected crack cocaine hidden where Taylor had

been sitting. The trial court denied Taylor’s motion to suppress, but the Eighth District

reversed.

      {¶25} The appellate court in Taylor held that, while the detective said he asked

for a female officer to come to the scene to pat the women down for weapons, the facts

showed he detained them for the female officer to search them. The court said this

conclusion was supported by the fact that the detective did not suspect that Taylor or

the driver had a weapon and he put Taylor in the back of the cruiser without handcuffing

her. Id. at ¶25. The court stated that since the female officer was, in effect, called to

conduct a search of Taylor, not to perform a pat-down for weapons, a search would

have to be supported by probable cause. Id. at ¶28. The court held that Taylor’s

detention to effectuate a search was unlawful and, thus, her abandonment of the crack

cocaine was not voluntary, making the drugs subject to suppression. Id. at ¶31.

      {¶26} The Eighth District in Taylor held that when evidence left by a defendant is

discovered in a police cruiser after a legal arrest or detention, the evidence was

voluntarily abandoned. Id. at ¶29, citing United States v. Maryland, 479 F.2d 566, 568

(5th Cir.1973); United States v. Wai-Keung, 845 F. Supp. 1548, 1559 (S.D.Fla.1994).

However, when evidence is left in a cruiser after an illegal arrest or detention, it cannot

be voluntarily abandoned, but, rather, is a response to unlawful police conduct. Id.,

citing Maryland, supra; Lawrence v. Henderson, 478 F.2d 705, 708 (5th Cir.1973). The

Eighth District in Taylor held that once the detective determined that she did not have a




                                            9
weapon, a purported pat-down could not be used to justify a search of her person. Id.

at ¶33. Thus, the court held there was no reasonable suspicion of criminal activity

justifying her detention, much less one that lasted 30 minutes. Id.

      {¶27} However, Taylor is factually distinguishable and thus inapposite here.

Therefore, the trial court, in concluding that appellee did not voluntarily abandon the

heroin, improperly applied Taylor.     While the detective in Taylor had no legitimate

grounds to detain her, in the present case, the troopers had authority to stop appellee

and to search his car. Further, Trooper Miller was authorized to detain appellee while

he prepared and issued a citation or warning to him. Eggleston, supra; Colby, supra.

While preparing the citation/warning, Trooper Miller viewed the video and nothing in the

record shows Trooper Miller took more time than necessary to watch it.              Thus,

appellee’s detention for that period of time was objectively reasonable. This accounted

for part of the additional 24 minutes after the vehicle search, during which the court

found appellee was unlawfully detained.

      {¶28} Further, Trooper Miller’s viewing of the video gave him reasonable

suspicion/probable cause to believe appellant was committing other illegal activity, i.e.,

that appellee was concealing contraband on/in his person. See State v. Wesley, 5th

Dist. Stark No. 1999CA00226, 2000 Ohio App. LEXIS 1280, *10-*11 (Mar. 27, 2000).

After viewing the video, Trooper Miller said he was “confident” appellee had concealed

something so the trooper decided to obtain a body cavity search warrant.            Thus,

Trooper Miller was authorized to detain appellee as long as necessary to obtain the

warrant. It is undisputed that Trooper Miller spent the balance of the additional 24

minutes attempting to do this by talking to his Lieutenant and appellee’s parole officer.




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Appellee’s detention for this period was thus likewise objectively reasonable.        As a

result, the entire additional 24 minutes during which appellee was detained was

accounted for and his detention during this period was reasonable.

       {¶29} In view of the foregoing, the trial court erred in finding that Trooper Miller

“acknowledges that he had no basis to conduct a warrantless search [of appellee].” As

noted, Trooper Miller had probable cause to search appellee, but understood he needed

a body cavity search warrant to gain access to the private area in question. Contrary to

the trial court’s finding, the fact that Trooper Miller’s efforts to obtain the warrant were

ultimately unsuccessful – due to circumstances beyond his control – is irrelevant to the

analysis.

       {¶30} Further, while the trial court implied Trooper Miller did not diligently

conduct his investigation while preparing the citation/warning and consulting with the

other officials, there is no evidence in the record supporting such finding. The court’s

finding was thus not supported by competent, credible evidence and we are not bound

to accept it. In fact, in light of everything Trooper Miller accomplished in that additional

24 minutes, it is difficult to imagine how his investigation could have been more

diligently pursued.

       {¶31} We therefore hold that appellee’s continued detention for 24 minutes after

the search of his vehicle was completed was justified by the circumstances as they

unfolded, making appellee’s abandonment or disposal of the heroin in Trooper

Dennison’s cruiser voluntary and not subject to suppression.

       {¶32} Moreover, appellee’s subsequent arrest was supported by probable

cause. Trooper Dennison testified that, shortly after appellee left the scene, he watched




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the video of appellee taken while he was in the back seat of his cruiser. He saw

appellee going down his pants and then reach underneath the metal divider, apparently

attempting to hide contraband. Trooper Dennison then searched that area of his cruiser

and found the baggie with suspected narcotics.        This information provided Trooper

Dennison with probable cause to believe that appellee had been in possession of

narcotics and had attempted to conceal them. Trooper Miller testified that five minutes

after appellant was released, Trooper Dennison called and told him he found felony

amounts of drugs. Thereafter, Trooper Miller arrested appellee.

      {¶33} The state’s assignment of error has merit and is therefore sustained.

      {¶34} For the reasons stated in this opinion, it is the order and judgment of this

court that the judgment of the Ashtabula County Court of Common Pleas is reversed,

and this matter is remanded to the trial court for further proceedings consistent with this

opinion.



DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.




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