        [Cite as State v. Emmons, 2016-Ohio-5384.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




STATE OF OHIO,                                  :    APPEAL NO. C-150636
                                                     TRIAL NO. B-1501487
    Plaintiff-Appellant,                        :
                                                        O P I N I O N.
  vs.                                           :

DEBRA EMMONS,                                   :

    Defendant-Appellee.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 17, 2016



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS




DEWINE, Judge.

       {¶1}   This is an appeal by the state from a trial court’s decision suppressing

evidence of illegal drug possession obtained during a traffic stop. The trial court

found that a seven-minute traffic stop was unreasonably prolonged by the arresting

trooper’s questioning of the driver and passenger about matters unrelated to the

reason for the stop. We conclude that the officer’s questions did not convert the stop

into something other than a lawful seizure because the questions did not measurably

extend the duration of the stop. Moreover, we hold that even if the traffic stop had

been prolonged, reasonable suspicion under the totality of the circumstances

justified the ongoing detention. Therefore, we reverse the trial court’s judgment.

                         I. A Seven-Minute Traffic Stop

       {¶2}   Debra Emmons was arrested for illegal drug possession following a

traffic stop of a vehicle in which she was a passenger. The traffic stop—which lasted

seven minutes from the time of the stop until Ms. Emmons’s arrest—was captured on

video and introduced into evidence at Emmons’s motion-to-suppress hearing.

       {¶3}    State Trooper Kyle Doebrich pulled over a car driven by Hubert

Barrett for failing to stop at a marked stop line. Immediately after being stopped,

Mr. Barrett told the trooper he had a driver’s license but did not have it with him.

Ms. Emmons said that the car was hers and that she had identification. The trooper

then asked where they were from and where they were headed. He testified that

Emmons answered some of the questions he had directed to Barrett, and that both

seemed very nervous.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}   Next, the trooper asked Emmons for her identification. While she was

retrieving it, he quizzed Barrett about small wounds on the backs of his hands. Mr.

Barrett responded that his dog had caused them. The trooper testified that the

wounds did not look like they had come from a dog. He knew from his training and

experience that the wounds were track marks—that is, wounds caused by using a

hypodermic needle to inject drugs such as heroin or cocaine.

       {¶5}   The trooper instructed Barrett to get out of the car so he could verify

his personal information on the cruiser’s computer. Mr. Barrett volunteered that

there was an open capias for him. The trooper questioned Barrett about the capias,

and about where he and Emmons had been. He patted Barrett down and placed him

in the cruiser.   After running Barrett’s name and social security number in his

computer, he learned that Barrett’s driver’s license was valid and that he had

previous felony drug convictions. In response to questioning, Mr. Barrett stated that

the prior charges involved cocaine, but denied recent drug use or that his wounds

were drug related.

       {¶6}   As Trooper Doebrich continued to use his computer, he inquired into

Barrett’s relationship with Emmons, their activities that day, and their address. The

trooper noted that Barrett stammered in his responses and that some of his answers

made no sense and conflicted with statements made by Emmons.

       {¶7}   Trooper Doebrich had not yet written Barrett a citation when he left

the cruiser to speak to Emmons, who was still seated in her car. Noticing that she

was picking at the skin of her thumbs, he asked her why she was so nervous. He also

quizzed her about what appeared to be dried blood on her shirt sleeve, in the area

just inside her elbow. He knew from experience that the small amount of blood and




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                      OHIO FIRST DISTRICT COURT OF APPEALS



its location “over a large accessible vein [were] common with using a hypodermic

needle.” After she agreed to his request to pull up her sleeves, the trooper noticed

fresh track marks on her arms. Ms. Emmons admitted that she had injected heroin

about four days earlier. He asked if she had anything illegal on her and she said no.

He then asked if she minded showing him her purse. She handed it to him, and he

immediately found a needle and placed Emmons under arrest. A subsequent search

of Emmons’s car revealed a baggie of cocaine.

       {¶8}    Trooper Doebrich estimated that he had made hundreds of traffic

stops in his three years with the Ohio State Highway Patrol. He testified that a traffic

stop resulting in the issuance of a traffic citation ordinarily takes about seven to 12

minutes.

       {¶9}    The trial court issued a written decision three weeks after the

suppression hearing, granting the motion and suppressing the physical evidence

seized by the trooper. The trial court concluded that the trooper had no reasonable

articulable suspicion to ask Barnett to get out of the car, to ask questions unrelated to

the traffic violation, or to ask Emmons for identification. It reasoned that, by asking

“irrelevant” questions, the trooper had impermissibly prolonged the detention

beyond what was required for the traffic investigation. Finally, the court evaluated

the individual circumstances of the stop in isolation and determined that none of

them led to a reasonable suspicion of criminal activity beyond the traffic violation.

              II. The Motion to Suppress Was Improperly Granted

       {¶10} This appeal followed. In its sole assignment of error, the state asserts

that the trial court erred when it granted the motion to suppress.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} 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. We must accept the trial court’s factual findings if they are supported by

competent, credible evidence, but we review de novo the trial court’s application of

the law to those facts.    Id.   As a general matter, determinations of reasonable

suspicion and probable cause are reviewed de novo on appeal. Ornelas v. United

States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

           A. The Traffic Stop Was Not Unreasonably Prolonged

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

individuals against unreasonable governmental searches and seizures. A traffic stop

of a vehicle and the detention of its occupants, however brief, is a “seizure” for

Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391,

59 L.Ed.2d 660 (1979); Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769,

135 L.Ed.2d 89 (1996). The temporary seizure of a vehicle’s occupants in a traffic

stop ordinarily remains reasonable during the officer’s investigation into matters

related to the justification for the stop. Arizona v. Johnson, 555 U.S. 323, 333, 129

S.Ct. 781, 172 L.Ed.2d 694 (2009).

       {¶13} An officer’s traffic stop investigation involves more than making a

determination whether to issue a traffic citation or warning. Rodriguez v. United

States, ___ U.S. ___, 135 S.Ct. 1609, 1615, 191 L.Ed.2d 492 (2015). An officer

ordinarily must check the driver’s license, vehicle registration, and proof of

insurance and determine whether there are outstanding warrants against the driver.

Id.; Prouse at 659. See State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865

N.E.2d 1282, ¶ 12.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} Contrary to the trial court’s finding, it is well settled that once a vehicle

has been lawfully detained for a traffic violation, police officers may order the driver

to get out of the car without violating the Fourth Amendment’s proscriptions against

unreasonable searches and seizures. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98

S.Ct. 330, 54 L.Ed.2d 331 (1977). An officer may also ask the driver and passengers

about matters unrelated to the traffic stop itself, so long as those questions do not

measurably extend the duration of the stop. Rodriguez at 1615; Johnson at 333.

       {¶15} As the United States Supreme Court has repeatedly held, mere police

questioning does not constitute a seizure. Muehler v. Mena, 544 U.S. 93, 101, 125

S.Ct. 1465, 161 L.Ed.2d 299 (2005); Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct.

2382, 115 L.Ed.2d 389 (1991). “[E]ven when officers have no basis for suspecting a

particular individual, they may generally ask questions of that individual; ask to

examine the individual’s identification; and request consent to search his or her

luggage.” Muehler at 101, citing Bostick at 434-435. As long as a detention is not

prolonged by the questioning, there is no additional seizure within the meaning of

the Fourth Amendment. Id. For example, officers do not need reasonable suspicion

to ask a detained individual for her name, date and place of birth, or immigration

status. Id. In addition, a police officer may request identifying information from a

passenger in a vehicle stopped for a traffic violation without particularized suspicion

that the passenger poses a safety risk or is violating the law. United States v.

Alexander, 467 Fed.Appx. 355, 362 (6th Cir.2012); United States v. Fernandez, 600

F.3d 56 (1st Cir.2010); United States v. Soriano-Jarquin, 492 F.3d 495 (4th

Cir.2007).    See State v. Chagaris, 107 Ohio App.3d 551, 669 N.E.2d 92 (9th

Dist.1995).




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} A seizure justified solely by a traffic violation may become unlawful

only if it is prolonged beyond the time that is reasonably required for the issuance of

a citation for the violation. See Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834,

160 L.Ed.2d 842 (2005). In other words, a traffic stop that exceeds the time needed

to handle the matter for which the stop was made is an unlawful seizure. Rodriguez

at 1612. In assessing the reasonableness of a traffic stop, courts must examine the

totality of the circumstances to determine if the police diligently pursued the

investigation into the purpose for the stop. State v. Reece, 1st Dist. Hamilton No. C-

140635, 2015-Ohio-3638, ¶ 21, citing Rodriguez at 1614.

       {¶17} In this case, the traffic stop was not unreasonably prolonged beyond

the time required for the initial purpose of the stop. There is no dispute that the stop

for the stop-sign violation was lawful. Because the occupants of the car were lawfully

detained for the traffic violation, Trooper Doebrich did not need reasonable

suspicion of further criminal activity to ask for the driver’s license or to order the

driver from the car.     His request for the passenger’s identification added no

appreciable additional time to the detention. Confronted with a driver carrying no

license or identification, who admitted to an open arrest warrant, the trooper

diligently pursued his traffic investigation. The arrest of the passenger occurred well

within the seven-to-12-minute window for an ordinary traffic citation. Nothing in

the record suggests that the detention of Emmons “was of sufficient length to make it

constitutionally dubious.” See Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865

N.E.2d 1282, at ¶ 14. Therefore, we hold that the trial court erred by concluding that

the seven-minute traffic stop had been unlawfully prolonged.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                 B. Reasonable Suspicion of Criminal Activity

        {¶18} Moreover, the circumstances in this case would have warranted a

prolonged detention.     A traffic stop may be prolonged upon the discovery of

additional facts “that give rise to a reasonable, articulable suspicion of criminal

activity beyond that which prompted the initial stop.”       Batchili at ¶ 15.    “The

‘reasonable and articulable’ standard applied to a prolonged traffic stop encompasses

the totality of the circumstances, and a court may not evaluate in isolation each

articulated reason for the stop.” Id. at paragraph two of the syllabus, applying

United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). In

this case, the trial court considered in isolation multiple actions by the trooper and

concluded that none of them justified Trooper Doebrich’s suspicion of criminal

activity.   The court’s approach failed to take into account the totality of the

circumstances, which necessarily included the trooper’s “experience and specialized

training” that would allow him “to make inferences from and deductions about the

cumulative information available to [him] that ‘might well elude an untrained

person.’ ” Arvizu at 273, quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct.

690, 66 L.Ed.2d 621 (1981).

        {¶19} Trooper Doebrich had plenty of reasons to be suspicious. He was

confronted with two nervous individuals whose answers conflicted. The driver had

no license or identification and admitted to an open warrant for his arrest. He

stammered and lied about the origins of track marks on his hands, even while

acknowledging prior drug use. Ms. Emmons had what looked to be dried blood on

her sleeve and fresh track marks on her arm, and admitted to recent heroin use. Fair




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                      OHIO FIRST DISTRICT COURT OF APPEALS



to say, the detention of Emmons was supported by specific facts that gave rise to the

suspicion of ongoing drug activity.

                                   III. Conclusion

       {¶20} The trial court erred by finding that the traffic stop was unreasonably

prolonged beyond what was necessary to address the traffic violation and by finding

that Trooper Doebrich’s investigation constituted an impermissible extension of the

seizure. Furthermore, the court erred by failing to examine the reasonableness of the

trooper’s suspicion under the totality of the circumstances and by finding that the

trooper did not have reasonable suspicion “of anything beyond a traffic violation.”

Consequently, we sustain the sole assignment of error. We reverse the judgment of

the trial court and remand this matter for further proceedings consistent with law

and this opinion.

                                               Judgment reversed and cause remanded.


FISCHER, P.J., concurs.
HENDON, J., concurs separately.

HENDON, J., concurring separately.


       {¶21} While I have trouble accepting the trooper’s stated justification for

questioning the passenger, I am constrained to concur that there was no

constitutional deprivation.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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