[Cite as State v. Elliot, 2019-Ohio-4411.]


                                         COURT OF APPEALS
                                     GUERNSEY COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwinn, P.J.
        Plaintiff-Appellee                    :       Hon. Patricia A. Delaney, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
JOHNDRELL ELLIOT                              :       Case No. 18 CA 22
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas Case No. 17-CR-202




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     October 23, 2019




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JASON R. FARLEY                                       JAMES R. WILLIS
66704 Toland Drive                                    1144 Rockefeller Building
Cambridge, OH 43725                                   614 West Superior Avenue
                                                      Cleveland, OH 44113
Guernsey County, Case No. 18 CA 22                                                        2



Wise, Earle, J.

       {¶ 1} Defendant-appellant Johndrell Elliot appeals the March 20, 2018 decision

of the Guernsey County Court of Common Pleas which denied his motion to suppress.

Plaintiff-appellee is the State of Ohio.

                  STATEMENT OF FACTS AND PROCEDURAL HISTORY

       {¶ 2} On May 18, 2017, Ohio State Highway Patrol Trooper Brian Hawkins and

his canine officer were working routine patrol on Interstate 77. At 2:00 p.m, he spotted

appellant driving southbound in a vehicle which the trooper believed had illegal window

tint. Hawkins initiated a traffic stop and ran the plate on the vehicle which came back to a

female. He then approached the vehicle.

       {¶ 3} Hawkins found appellant driving the car. Appellant provided Hawkins his

operator's license and registration, but no proof of insurance. Appellant was very nervous

and visibly shaking. His passenger, Herve Johnson, appeared calm, but refused to make

eye contact with Hawkins.

       {¶ 4} Asked where they were coming from, appellant said "the house." Asked

where they were going, appellant looked to Johnson for an answer. Johnson replied

"casino" while continuing to stare forward at his phone and listen to music.

       {¶ 5} Hawkins advised appellant that he had pulled him over for a window tint

violation. Legal tint is 50 percent or higher. Appellant stated he believed his was 50

percent. Hawkins used a meter to check the tint which was actually 35.6 percent.

       {¶ 6} Hawkins returned to his cruiser and asked dispatch to check for warrants

and to check the criminal history of both men. Dispatch subsequently advised neither had
Guernsey County, Case No. 18 CA 22                                                       3


any active warrants, but both did have extensive criminal histories involving drug

offenses.

       {¶ 7} While Hawkins was reviewing the records of both men, Trooper Roe arrived

to back up Hawkins. Hawkins had begun to write a warning for appellant, but had not yet

completed it when he decided, based on his observations of the occupants of the vehicle

and information from dispatch, to walk his canine around appellant's vehicle. Both men

were asked to exit the vehicle while this took place. The canine alerted on the right front

door seam. During the subsequent search, a large amount of cocaine was located in the

engine compartment of the vehicle.

       {¶ 8} From stop to dog sniff, the stop took 16 minutes and 35 seconds.

       {¶ 9} On May 18, the Guernsey County Grand Jury returned an indictment

charging appellant with one count of possession of cocaine, a felony of the first degree.

This count contained a major drug offender specification. Appellant was further charged

with one count of trafficking in cocaine, a felony of the first degree.

       {¶ 10} Appellant filed a motion to suppress, and a hearing was held on the matter

on March 9, 2018. On May 1, 2018, the trial court issued its judgment entry denying

appellant's motion.

       {¶ 11} On August 3, 2018, appellant entered a plea of no contest to an amended

count of possession of cocaine, a felony of the first degree. The state dismissed the

balance of the indictment. The trial court accepted appellant's plea, convicted appellant,

and sentenced him to 4 years incarceration. Appellant's sentence was stayed, however,

pending the outcome of this appeal.

       {¶ 12} Appellant raises two assignments of error:
Guernsey County, Case No. 18 CA 22                                                      4




                                                I

      {¶ 13} "THE COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION

TO SUPPRESS EVIDENCE SEIZED IN THE WAKE OF THE OFFICERS' VIOLATION

OF HIS FOURTH, FIFTH AND FOURTEENTH AMENDMENT RIGHTS."

                                               II

      {¶ 14} "THE COURT ERRED WHEN IRRESPECTIVE OF ARIZONA V. GANT,

556 U.S. 332 (2008), THE OFFICERS SUBJECTED THIS VEHICLE TO A

WARRANTLESS SEARCH WHEN FOR ALL INTENTS AND PURPOSES HE WAS

ELSEWHERE"

      {¶ 15} We address appellant's assignments of error together. In his first

assignment of error appellant argues the traffic stop was illegally extended to permit the

canine sniff. In his second assignment of error, appellant argues that even assuming the

use of the canine was proper, troopers were required to obtain a warrant before searching

his vehicle. We disagree.

      {¶ 16} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



             "Appellate review of a motion to suppress presents a mixed question

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

             5372, 797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial
Guernsey County, Case No. 18 CA 22                                                        5


              court assumes the role of trier of fact and is therefore in the best

              position to resolve factual questions and evaluate the credibility of

              witnesses." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582

              N.E.2d 972 (1992). On appeal, we "must accept the trial court's

              findings of fact if they are supported by competent, credible

              evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437

              N.E.2d 583 (1982). Accepting those facts as true, we must then

              "independently determine as a matter of law, without deference to

              the conclusion of the trial court, whether the facts satisfy the

              applicable legal standard." Id.



       {¶ 17} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

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

       {¶ 18} First, as to appellant's contention that a search warrant was required before

troopers could search his car, the use of a narcotics dog to detect the odor of drugs does

not constitute a “search” and an officer is not required, prior to a dog sniff, to establish

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

See Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005);

United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983);

State v. Carlson, 102 Ohio App.3d 585, 594, 657 N.E.2d 591 (9th Dist.1995); United

States v. Seals, 987 F.2d 1102, 1106 (5th Cir.1993).
Guernsey County, Case No. 18 CA 22                                                            6


       {¶ 19} Further, it is well established that the automobile exception to the warrant

requirement allows police to conduct a warrantless search of a vehicle if there is probable

cause to believe the vehicle contains contraband. State v. Ortiz, 5th Dist. Guernsey No.

00CA38, 2001WL520976 (May 11, 2001) citing State v. Mills, 62 Ohio St.3d 357, 367,

528 N.E.2d 972 (1992). When a narcotics dog alerts to the odor of drugs from a lawfully

detained vehicle, an officer has probable cause to search the vehicle for contraband. See

State v. Woodson, 5th Dist. Stark No. 2007-CA-00151, 2008-Ohio-670, ¶ 20.

       {¶ 20} The parties agree appellant's vehicle was lawfully stopped. Because

appellant's vehicle was lawfully detained when Trooper Hawkins' narcotics dog alerted to

the odor of drugs coming from appellant's car, we find no warrant was required prior to

Hawkins' search of appellant's car.

       {¶ 21} Next, as to appellant's argument that the traffic stop was illegally extended,

“ ‘when detaining a motorist for a traffic violation, an officer may delay a motorist for a

time period sufficient to issue a ticket or a warning.’ ” State v. Batchili, 113 Ohio St.3d

403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12, quoting State v. Keathley, 55 Ohio App.3d

130, 131, 562 N.E.2d 932 (2nd Dist. Miami 1988). “This measure includes the period of

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

plates.” Id., citing State v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184,

¶ 17, citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660(1979).

Additionally, “ ‘[i]n 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, 102 Ohio App.3d 585, 598-599, 657 N.E.2d 591(9th Dist.
Guernsey County, Case No. 18 CA 22                                                         7

Medina 1995), citing State v. Cook, 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992),

and United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). See

also State v. Whitman, 184 Ohio App.3d 740, 2009-Ohio-5647, 922 N.E.2d 293 (5th

Dist.Holmes); State v. Woodson, 5th Dist. Stark No.2007-CA-00151, 2008-Ohio-670, ¶

21.

       {¶ 22} In overruling appellant's motion to suppress, the trial court found our opinion

in State v. Whitman, 184 Ohio App.3d, 2009-Ohio-5647, 922 N.E.2d 293 (5th Dist.)

(Edwards dissenting), "on point." In that matter, as is the case here, the parties agreed

that the appellant was legally stopped for a traffic infraction. The question in Whitman was

identical to the question here - whether appellant's lawful detention became unlawful

when the Trooper decided to deploy his narcotics dog, which was already on the scene,

to sniff around the exterior of appellant's car. In Whitman we explained:



              * * * The officer needs no suspicion or cause to “run the dog around”

              the stopped vehicle if he does it contemporaneously with the

              legitimate activities associated with the traffic violation. See

              Caballes, 543 U.S. at 409, 125 S.Ct. 834, 160 L.Ed.2d 842

              (upholding constitutionality of dog sniff conducted by an officer-

              “[w]hile [a second officer] was in the process of writing a warning

              ticket, [the second officer] walked his dog around [Caballes's] car”-

              and stating that the use of the dog during Caballes's traffic stop “[did]

              not implicate legitimate privacy interests” because “the dog sniff was
Guernsey County, Case No. 18 CA 22                                                          8

                performed on the exterior of [Caballes's] car while he was lawfully

                seized for a traffic violation”). (Emphasis added.)



       {¶ 23} Here, the purpose of the traffic stop had yet to be fulfilled when Trooper

Hawkins made the decision to walk his canine around appellant's car. Hawkins testified

State Highway Patrol policy requires two troopers on the scene before he may deploy his

canine. He summonsed Roe to the scene before he began writing the warning ticket, and

while he was still reviewing information from dispatch. When Roe arrived, Hawkins had

just begun writing the warning ticket. He had not completed the same, nor delivered it to

appellant before he walked the dog around appellant's car. The entire process took a little

over 16 minutes. Hawkins testified a routine traffic stop takes 10-20 minutes to complete.

       {¶ 24} To support his argument that the traffic stop here was illegally extended,

appellant relies upon Rodriguez v. U.S., 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

Rodriguez, however, is factually distinguishable. In that matter, the officer had completed

the purpose for the traffic stop, and had issued Rodriguez a citation. Only then did the

officer request permission from Rodriguez to walk his dog around Rodriguez's vehicle.

When Rodriguez declined, the officer further detained Rodriguez, directed him to exit the

vehicle and stand in front of it until a second officer arrived on the scene. The dog sniff in

Rodriguez was not conducted contemporaneously with the legitimate activities of the

traffic stop.

       {¶ 25} We are not presented with the same fact pattern here. Because appellant

was lawfully detained, and the purpose of the traffic stop had not yet been fulfilled, we

find no Fourth Amendment violation in Hawkins' decision to walk his dog around
Guernsey County, Case No. 18 CA 22                                                  9

appellant's car. State v. Latona, 5th Dist. Richland App. No. 2010-CA-0072, 2011-Ohio-

1253, ¶ 25, citing State v. Guckert, 4th Dist. Washington App. No. 99CA49, 2000-Ohio-

1958 (Dec. 20, 2000).

      {¶ 26} Appellant's first and second assignments of error are overruled.

      {¶ 27} The judgment of the Guernsey County Court of Common Pleas is affirmed.


By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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