      [Cite as State v. Jones, 2019-Ohio-3704.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                    WOOD COUNTY


State of Ohio                                         Court of Appeals No. WD-18-063

      Appellee                                        Trial Court No. 2017CR0195

v.

Darnell Antonio Jones, Jr.                            DECISION AND JUDGMENT

      Appellant                                       Decided: September 13, 2019

                                                  *****

      Paul A. Dobson, Wood County Prosecuting Attorney, and
      David T. Harold, Assistant Prosecuting Attorney, for appellee.

      Jeffrey P. Nunnari, for appellant.

                                                  *****

      ZMUDA, J.

      {¶ 1} This matter is before the court on appeal from a September 5, 2017 order of

the Wood County Court of Common Pleas, denying appellant’s motion to suppress

evidence obtained following a traffic stop. The case proceeded to a jury trial, where

appellant was found guilty of one count contained of money laundering, a felony of the
third degree, and one count of possession of criminal tools, a felony of the fifth degree,

both with forfeiture specifications. Finding no error, we affirm the judgment of the trial

court.

                           I. Facts and Procedural Background

         {¶ 2} Appellant, Darnell Jones Jr., appeals the trial court’s judgment denying his

motion to suppress evidence, asserting that the trial court erred in refusing to suppress the

evidence discovered through an unconstitutional search of his vehicle, and that he was

denied due process and the effective assistance of counsel as guaranteed by the state and

federal constitutions.

         {¶ 3} In the early morning hours of March 21, 2017, Lieutenant Scott Wyckhouse

of the Ohio State Highway patrol observed a red, Chevy Tahoe traveling northbound on

I-75 near mile-marker 197 in northern Wood County. Wyckhouse visually estimated the

speed of the vehicle as well above the 65 mph speed limit, estimating a speed of 80 mph.

Wyckhouse testified that the vehicle was initially in the left lane, but after passing him, it

moved to the center lane. After a short interval, the vehicle moved back to the left lane

and Wyckhouse gave pursuit. After a mile or two, Wyckhouse made a traffic stop for the

speeding offense and activated his blue emergency lights. Appellant stopped his vehicle

just over the county line, in Lucas County, Ohio.

         {¶ 4} As Wyckhouse approached the vehicle, he was surprised to see a passenger

in the front passenger seat. The passenger, Trevon Lowman, had fully reclined his seat,

behind the “B pillar” of the vehicle. Appellant told Wyckhouse that he and his cousin

Tre were traveling from Tennessee to Michigan, in order to pick up a car for Tre.

2.
Although appellant identified Lowman as his cousin, he did not know his last name.

Both individuals identified themselves as Michigan residents. Appellant provided a

Michigan driver’s license to Wyckhouse, and Lowman produced a Michigan

identification card that was broken in half. Wyckhouse noted several cell phones in plain

sight, as well as numerous air fresheners, candy wrappers, an open energy drink, and

enough clutter to make the car appear “lived in.” Appellant also had a Doberman puppy

between the two center seats.

       {¶ 5} Wyckhouse then approached the driver’s side of the vehicle and asked

appellant to exit the vehicle. When appellant exited the driver’s seat, Wyckhouse

performed a pat down for weapons with appellant’s consent. Wyckhouse’s pat down

revealed two wads of cash totaling approximately $1,500 in one pocket and $2,000 in the

other. Wyckhouse did not confiscate the money at this point, and placed appellant in the

front seat of the patrol car.

       {¶ 6} At 2:15:26, Wyckhouse called in appellant’s driver’s license information to

dispatch, part of the usual process in a traffic stop, to confirm the identity of the person

stopped. Wyckhouse also requested a “78,” a computerized criminal check, believing

possible criminal activity based on his observations. Additionally, Wyckhouse called in

Lowman’s information to dispatch. Because of the presence of criminal indicators,

Wyckhouse called for a drug detection canine unit at 2:16:53 to sniff for the odor of

illegal narcotics.




3.
         {¶ 7} At 2:18:35, Sgt. Nathan Henn arrived on scene to provide assistance, and

Henn conducted a pat down of passenger Lowman and separated him from appellant.

Shortly thereafter, U.S. Border Patrol Agent Mike Lalonde and his canine officer, Misty,

arrived on scene with Trooper Ann Malone.

         {¶ 8} On the date of the traffic stop, Misty was certified to detect controlled

substances, including marijuana, cocaine, methamphetamine, heroin, and ecstasy, and

had additional certification to detect concealed humans. Misty was not certified as a

currency detection canine. Misty alerted to appellant’s vehicle, with neither appellant nor

his passenger inside. Lalonde testified that an alert is a change in the canine’s body

posture or respiration. A subsequent search of the vehicle revealed a backpack under the

Doberman containing almost $30,000 in cash, a black Pelican case1 with large magnets

attached, and 6 cell phones.

         {¶ 9} The items seized were taken to the patrol post in Bowling Green, and after

obtaining a search warrant for the phones, troopers were able to search one of the phones

belonging to Lowman, and found photos of Lowman with large amounts of money.

Trooper Ryan Stewart and his canine officer, Osso, also conducted a controlled sniff of

the cash seized while at the post. Osso is certified to detect drugs, including marijuana,

cocaine, methamphetamine, heroin, and any of their derivatives.2




1
 The case was identified through testimony, at the suppression hearing and at trial, as an
object commonly used in drug trafficking.
2
    Appellant does not challenge this second canine sniff by Osso in the present appeal.
4.
       {¶ 10} Appellant was indicted on April 20, 2017 in a two count direct indictment

charging him with Count 1: possessing criminal tools with a specification, in violation of

R.C. 2923.24(A)(C), a felony of the fifth degree, and Count 2: money laundering with a

specification, in violation of R.C. 1315.55(A)(C)(C), a felony of the third degree.

Appellant filed a motion to suppress on August 10, 2017, seeking to suppress all evidence

obtained as a result of the traffic stop of appellant’s vehicle by the Ohio State Highway

Patrol on March 21, 2017.

       {¶ 11} In his motion to suppress, appellant challenged the basis for the traffic stop,

arguing that Wyckhouse did not have probable cause to initiate a traffic stop because he

did not use his radar gun to specifically detect the speed of appellant’s vehicle. The trial

court noted Wyckhouse’s testimony, that he in fact paced the vehicle at 67 mph in a 60

mph zone, and found this testimony was credible.

       {¶ 12} In support of the drug sniff, the state presented Misty’s valid canine

detection certification, and appellant presented no evidence to refute this training and

certification. The trial court denied the motion, finding probable cause for both the initial

stop and subsequent search of the vehicle based on the alert of Misty.

       {¶ 13} The matter proceeded to a two-day jury trial commencing January 25,

2017. The jury found appellant guilty of both counts contained in the indictment, and the

trial court sentenced him to four years of community control with conditions. The trial

court, furthermore, ordered $33,091 in cash forfeited. From this conviction, appellant

filed a timely appeal.



5.
       {¶ 14} Appellant asserts the following assignments of error:

              I. THE TRIAL COURT ERRED TO THE PREJUDICE OF

       APPELLANT BY DENYING HIS MOTION TO SUPPRESS.



              II. APPELLANT WAS DENIED DUE PROCESS AND THE

       EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE

       STATE AND FEDERAL CONSTITUTIONS.

                                         II. Analysis

       {¶ 15} Appellant’s assignments of error each challenge the reliability of the canine

officer’s alert, considering its dual training and certification. In his first assignment of

error, appellant argues the trial court committed plain error in not inquiring into the issue

of dual certification as a factor in determining reliability. Based on the dual certification,

appellant argues that the trial court should have granted the motion to suppress.

       {¶ 16} Our review of a trial court’s denial of a motion to suppress presents mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. “When considering a motion to suppress, the trial 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). An appellate court defers to a trial court’s factual findings made

with respect to its ruling on a motion to suppress where the findings are supported by

competent, credible evidence. Id.; State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d

1030 (1996). “[T]he appellate court must then independently determine, without

6.
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th

Dist.1997).

       {¶ 17} “The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures.” (Citation omitted.) State v. Brown, 183 Ohio

App.3d 337, 916 N.E.2d 1138, 2009-Ohio-3804, ¶ 9 (6th Dist.). Search of a motor

vehicle following an investigative stop, however, is an exception to the Fourth

Amendment warrant requirement, where the search is justified by “articulable suspicion

of some other criminal activity[.]” State v. Bordieri, 6th Dist. Lucas No. L-04-1321,

2005-Ohio-4727, ¶ 20; see also U.S. v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 72

L.Ed.2d 572 (1982).

       {¶ 18} The use of a drug dog to sniff the exterior of a vehicle, lawfully detained, is

not a search within the meaning of the Fourth Amendment. Bordieri at ¶ 22. Thus, law

enforcement officials do not need reasonable suspicion of drug related activity in order to

subject a lawfully detained vehicle to a drug dog sniff. Id. “[W]hen a [drug] dog alerts to

the presence of drugs, it gives law enforcement probable cause to search the entire

vehicle.” State v. Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶

22 (6th Dist.).

       {¶ 19} Appellant challenges the trial court’s denial of his motion to suppress as

plain error. Appellant argues that, because Misty had dual certification, trained to alert

and indicate the presence of concealed humans as well as illicit drugs, Misty most likely

alerted to the residual human scent of appellant and his passenger, rather than any non-

7.
existent drugs. Therefore, appellant argues, the trial court could not have relied upon

Misty’s alert as reliable, and the subsequent search of the vehicle was without probable

cause. Because trial counsel did not object to the dog sniff in seeking suppression,

appellant argues that the trial court committed plain error in not inquiring further into

Misty’s reliability based on the dual certification, before finding Misty’s alert reliable.

Appellant fails to support his argument with any legal authority, however, and the

evidence in the record supported the trial court’s determination of reliability and probable

cause.

         {¶ 20} Appellant raised no challenge to the canine sniff at the suppression hearing.

Because trial counsel did not object to Misty’s certification, we review the issue of

Misty’s reliability for plain error. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

873 N.E.2d 306, ¶ 15 (typically plain error review occurs “if a party forfeits an objection

in the trial court.”); State v. Riggins, 2017-Ohio-80, 80 N.E.3d 1156, ¶ 6 (9th Dist.) (plain

error standard applies where defendant “did not object”).

         {¶ 21} “Plain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the court.” Crim.R. 52(B). A finding of plain

error is three-fold, requiring (1) an error or deviation from law, (2) that the error is plain,

or an obvious defect in the proceedings, and (3) that the error affected “substantial

rights,” altering the outcome of the trial. Payne at ¶ 16, citing State v. Barnes, 94 Ohio

St.3d 21, 27, 759 N.E.2d 1240 (2002). The burden is on the party asserting plain error to

demonstrate such error. Id. at ¶ 17, citing State v. Jester, 32 Ohio St.3d 147, 150, 512

N.E.2d 962 (1987).

8.
       {¶ 22} In order for this court to overturn the lower court’s decision regarding its

denial of appellant’s motion to suppress, we must find the trial court committed plain

error based on a deviation from the law that is plain or obvious, and that altered the

outcome of the trial. Here, appellant fails to demonstrate any deviation by the trial court

from the law governing reliability of a drug sniff.

       {¶ 23} In Florida v. Harris, 568 U.S. 237, 245, 133 S.Ct. 1050, 185 L.Ed.2d 61

(2013), the United States Supreme Court held that “evidence of a dog’s satisfactory

performance in a certification or training program can itself provide sufficient reason to

trust his alert[,]” based on the following reasoning:

              If a dog on patrol fails to alert to a car containing drugs, the mistake

       usually will go undetected because the officer will not initiate a search.

       Field data thus may not capture a dog’s false negatives. Conversely (and

       more relevant here), if the dog alerts to a car in which the officer finds no

       narcotics, the dog may not have made a mistake at all. The dog may have

       detected substances that were too well hidden or present in quantities too

       small for the officer to locate. Or the dog may have smelled the residual

       odor of drugs previously in the vehicle or on the driver’s person. Field data

       thus may markedly overstate a dog’s real false positives. By contrast, those

       inaccuracies--in either direction--do not taint records of a dog’s

       performance in standard training and certification settings. There, the

       designers of an assessment know where drugs are hidden and where they

       are not--and so where a dog should alert and where he should not. The

9.
       better measure of a dog’s reliability thus comes away from the field, in

       controlled testing environments. For that reason, evidence of a dog’s

       satisfactory performance in a certification or training program can itself

       provide sufficient reason to trust his alert.

Harris at 245–46.

       {¶ 24} Prior to the ruling in Harris, we reached a similar conclusion in State v.

Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 55 (6th Dist.),

where we stated “proof of the fact that a drug dog is properly trained and certified is the

only evidence material to a determination that a particular dog is reliable. Proof that a

drug dog is properly trained and certified may be established by means of testimony or

through documentary proof.” (Citations omitted.) In this case, the trial court had both

testimony and the certification documents in evidence, demonstrating Misty’s training

and certification for both concealed humans and drugs.

       {¶ 25} Appellant concedes that Misty was “properly certified and reliable for the

purposes stated in her certification.” Misty’s certification record, moreover, was properly

introduced as evidence at the suppression hearing. The record, therefore, contradicts

appellant’s claim of plain error, as “the fact that a drug dog is properly trained and

certified is the only evidence material to a determination that a particular dog is reliable.”

Nguyen at ¶ 55 (citations omitted.).

       {¶ 26} Despite proper certification, however, appellant argues that the dual

certification of Misty required the trial court to conduct additional inquiry into Misty’s

ability to differentiate between target odors, and specifically, Misty’s “unsuitability as a

10.
drug detection dog in the context of traffic stops[.]” In support, appellant relies on

United States v. Summers, 153 F.Supp.3d 1261 (S.D.Cal.2015). In relying on Summers,

appellant mischaracterizes that decision as disqualifying a dual-purpose canine for use in

drug interdiction, but dual certification was not a determinative issue in that case.

       {¶ 27} In Summers, the court focused on whether the dog’s training was sufficient,

and whether the dog had actually alerted to the presence of an illegal odor. Id. at 1268.

At hearing, the defendant presented an expert witness who refuted the reliability of the

canine officer’s certification. Id. “Defendant’s expert testified that the records did not

include necessary deployment records, and that the records did not adequately indicate

the source and quantity of narcotics used.” Id. at 1265. The expert also testified that,

what officers construed as an alert was nothing more than interest, with no alert behavior

seen in the video of the stop. Id.

       {¶ 28} As to the additional training in detecting concealed humans, the expert was

critical of using the canine officer while occupants remained inside their vehicle. Id. The

training records, moreover, did not demonstrate any training or performance in that

specific situation. Id. at 1261. Contrary to appellant’s argument, dual certification did not

provide the basis to suppress the evidence obtained from a search of the vehicle. Instead,

the court found the officers lacked probable cause to search the trunk of the vehicle

because of deficiencies in the certification records, and because of the lack of any alerting

behavior exhibited by the dog. Summers at 1269.

       {¶ 29} In this case, the trial court considered evidence of Misty’s training and

certification, and viewed the video of the stop. Furthermore, unlike the circumstances in

11.
Summers, troopers removed appellant and his passenger from the vehicle prior to the

sniff, and Misty alerted to the vehicle containing a large amount of currency and

materials used in the drug trade, consistent with her training in detecting drugs.3 The law

clearly provides that Misty’s certification was sufficient to demonstrate her reliability in

alerting to the presence of drugs.4 Appellant, furthermore, points to no deficiencies in

Misty’s certification, relying instead on a broad theory that dual certification nullifies all

certification. We find no basis to impose a duty on the trial court to refute this liability in

the absence of any evidence to the contrary. Accordingly, appellant’s first assignment of

error, arguing plain error, is found not well-taken.

       {¶ 30} In his second assignment of error, appellant argues that his trial counsel’s

failure to challenge the certification denied him his right to effective assistance of

counsel. The right to effective assistance of counsel is guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution, as well as the Ohio

Constitution, Article I, Section 10.




3
  We have previously noted testimony indicating canine officers can detect drug residue
on currency associated with those in the drug trade. See e.g. State v. Washington, 6th
Dist. Ottawa No. 2014-Ohio-1008 (describing the training and performance of dogs in
trained in detecting drug residue on currency, with a dog alerting to drug residue on
currency “just about every time.”).
4
 Our consideration of a drug dog’s alert to currency as an indication the presence of a
drug or drug residue is limited to the challenge to probable cause. As appellant has not
challenged the use of a separate canine officer, Osso, to demonstrate the presence of
narcotics on the currency for use as evidence, we need not address this separate issue.
12.
       {¶ 31} To prevail on a claim of ineffective assistance of counsel, appellant must

demonstrate that his trial counsel’s conduct “fell below an objective standard of

reasonableness,” based on “prevailing professional norms.” State v. Belton, 149 Ohio

St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 132, quoting Strickland v. Washington, 466

U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant must also demonstrate

“a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Belton at ¶ 132, quoting Strickland at 694. In

considering these factors, trial counsel is entitled to a strong presumption that their

conduct “falls within the wide range of reasonable professional assistance.” Id., quoting

Strickland at 689.

       {¶ 32} In arguing his trial counsel was constitutionally ineffective,

appellant relies on the premise that a canine officer certified to detect “concealed

humans” has no ability to ignore either visible humans or residual human scent in

visible areas of a vehicle. Therefore, appellant contends, any vehicle that once

contained a human would result in an alert by a dual- certified canine officer, and

trial counsel was ineffective by failing to assert this challenge. Once again,

however, appellant cites to no authority that might lend support to his premise.

Appellee, in response, argues that even if trial counsel had challenged Misty’s dual

training and certification, such challenge would have been met with evidence,

including expert testimony, demonstrating no merit in appellant’s theory.

       {¶ 33} Courts have found dual-certified canine officers to be reliable, with

no concern for human scent confusion. In United States v. Lopez, S.D. Cal. No.

13.
16CR1585-JLS, 2017 WL 2547302 (June 13, 2017), the Southern District of

California considered whether visible human scent might affect the reliability of a

drug sniff, where the dog is trained to detect both concealed humans and drugs.

Based on expert testimony provided by a member of the Customs and Border

Control (CBP) canine program, outlining the training and performance testing of

the dogs, the court found the canine officer had the ability to differentiate between

concealed humans and visible humans in the search area. Lopez at *4.

        {¶ 34} As argued by appellee, similar expert testimony could have been

proffered in the present case to refute appellant’s theory of unreliability based on

dual-certification. Appellant acknowledged that Misty received dual training as

part of the CBP program described in Lopez. Appellant also failed to cite any

authority in support of his theory that human scent confusion could taint a drug

sniff, rendering the drug sniff unreliable for purposes of probable cause. At best,

appellant references testimony of an expert, skeptical of a dog’s ability to

differentiate scents, upon which the trial court did not base its finding that police

proceeded without probable cause. See Summers, 153 F.Supp.3d at 1269 (reversal

based on the lack of any alert behavior by the dog, not based on unreliability of the

dog).

        {¶ 35} In asserting ineffective assistance of counsel, appellant must demonstrate

that trial counsel’s performance was deficient, and that, but for the deficient performance,

the result would have been different. However, the legal challenge, that appellant argues

his counsel failed to assert at the suppression hearing, appears to consist of a new theory

14.
not previously pursued under Ohio law. Appellant, furthermore, presents no authority to

demonstrate his theory would have proven successful in challenging the reliability of the

drug sniff in this case. Most significantly, appellant does not clearly argue Misty’s alert

was a “false positive,” opting instead to introduce confusion without any challenge to the

ultimate finding that drug residue tainted the currency seized by law enforcement.

Considering the record and applicable law, we find it is not ineffective assistance to

decline to raise meritless argument or present untested legal theories. State v. McNeill,

83 Ohio St.3d 438, 449, 700 N.E.2d 596 (1998). Accordingly, we find appellant’s second

assignment of error not well-taken.

                                      III. Conclusion

       {¶ 36} Upon due consideration, we find appellant’s assignments of error not well-

taken, and affirm the judgment of the Wood County Court of Common Pleas, denying

appellant’s motion to suppress. Appellant is ordered to pay the costs of this appeal under

App.R. 24.

                                                                       Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


15.
           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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