[Cite as State v. Hope, 2019-Ohio-3719.]

                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           PREBLE COUNTY



STATE OF OHIO,                                  :

       Appellee,                                :      CASE NO. CA2018-12-018

                                                :              OPINION
   - vs -                                                       9/16/2019
                                                :

TAURION K. HOPE,                                :

       Appellant.                               :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                            Case No. 18CR12587


Martin P. Votel, Preble County Prosecuting Attorney, Gractia S. Manning, 101 East Main
Street, Courthouse, First Floor, Eaton, Ohio 45320, for appellee

Gump Law Offices, Nicole Rutter-Hirth, 2541 Shiloh Springs Road, Dayton, Ohio 45426, for
appellant


        PIPER, J.

        {¶ 1} Appellant, Taurion Hope, appeals a decision of the Preble County Court of

Common Pleas denying his motion to suppress in part and the sentence imposed by the trial

court after he pled no contest to receiving stolen property.

        {¶ 2} A trooper on patrol observed a speeding vehicle and measured the vehicle's

speed as it increased from 76 m.p.h. to 78 m.p.h. After initiating a traffic stop, the trooper

approached the car and immediately smelled the odor of raw marijuana emanating from the

vehicle once the passenger rolled down the window. The trooper then removed the driver,
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later identified as Hope, and administered a field sobriety test to determine if Hope was

impaired. While Hope did not show signs of significant impairment, the trooper performed a

search of Hope's person and vehicle once backup arrived. The troopers found marijuana

debris, as well as multiple credit cards in the vehicle and on Hope's person.

        {¶ 3} After an investigation determined that some of the credit cards were stolen,

Hope was indicted for receiving stolen property. Hope filed a motion to suppress, which was

sustained in part and overruled in part.1 Hope pled no contest to the charge, the trial court

found him guilty, and sentenced Hope to nine months in prison. Hope now appeals the trial

court's denial of his motion to suppress in part and his sentence, raising the following

assignments of error.

        {¶ 4} Assignment of Error No. 1:

        {¶ 5} MR. HOPE'S FOURTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE

OFFICER STOPPED AND DETAINED HIM FOR TWENTY MINUTES TO ISSUE A

WARNING FOR SPEEDING AND PROCEEDED TO SEARCH THE VEHICLE ABSENT

REASONABLE, ARTICULABLE SUSPICION OF ADDITIONAL CRIMINAL ACTIVITY.

        {¶ 6} Hope argues in his first assignment of error that the trial court erred in denying

his motion to suppress in part.

        {¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15.

When considering a motion to suppress, the trial court, as the trier of fact, is in the best

position to weigh the evidence to resolve factual questions and evaluate witness credibility.

State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore,

when reviewing the denial of a motion to suppress, this court is bound to accept the trial


1. The trial court suppressed statements Hope made to troopers before he was given his Miranda rights and that
ruling is not implicated in this appeal.
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court's findings of fact if they are supported by competent, credible evidence. State v.

Durham, 12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14. "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." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023, 2007-Ohio-3353, ¶ 12.

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

from unreasonable governmental searches and seizures. United States v. Hensley, 469 U.S.

221, 105 S.Ct. 675 (1985). Where a police officer stops a vehicle based on probable cause

that a traffic violation has occurred or was occurring, the stop is reasonable under the Fourth

Amendment to the United States Constitution. State v. Graham, 12th Dist. Warren No.

CA2008-07-095, 2009-Ohio-2814.

       {¶ 9} When a law enforcement officer initiates a valid traffic stop, the officer may

detain the motorist for the time sufficient to issue the motorist a citation and to perform

routine procedures such as a computer check on the motorist's license, registration, and

vehicle plates. State v. Vang, 12th Dist. Madison No. CA2018-06-017, 2019-Ohio-195, ¶ 17-

19. The continued detention remains legal if based on "articulable facts giving rise to a

suspicion of some illegal activity justifying an extension of the detention." State v. Robinette,

80 Ohio St.3d 234, 240 (1997).

       {¶ 10} If the circumstances give rise to a reasonable suspicion of additional illegal

activity, different than that which triggered the initial stop, then the officer may detain the

driver for so long as the newly-discovered reasonable and articulable suspicion exists. State

v. Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586. The existence of

reasonable and articulable suspicion is determined by evaluating the totality of the

circumstances "through the eyes of the reasonable and prudent police officer on the scene
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who must react to events as they unfold." State v. Popp, 12th Dist. Butler No. CA2010-05-

128, 2011-Ohio-791, ¶ 13.

       {¶ 11} Further, the automobile exception to the warrant requirement of the Fourth

Amendment provides that law enforcement officers may search a motor vehicle without a

warrant if the officers have probable cause to believe the vehicle contains contraband. State

v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-Ohio-3335.

Probable cause in these instances is "a belief reasonably arising out of circumstances known

to the seizing officer, that an automobile or other vehicle contains that which by law is subject

to seizure and destruction." Popp at ¶ 27. The determination of probable cause is fact-

dependent and turns on what the officers knew at the time they conducted the search.

Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563.

       {¶ 12} During the motion to suppress hearing, the trooper testified that he observed

the speeding vehicle and tracked its speed as high as 78 m.p.h., which was in excess of the

posted speed limit. As such, there is no dispute that the traffic stop was valid at its inception

given the trooper's observation of the traffic violation.

       {¶ 13} When the trooper approached Hope's vehicle, he smelled the odor of raw

marijuana when the passenger rolled down the window. The trooper administered a field

sobriety test to determine whether Hope was impaired. While the test indicated that Hope

was not "appreciably impaired," there was a sign of recent marijuana usage. The trooper

also testified that when he asked to look into Hope's mouth, he observed that Hope's tongue

had a green "haze" on it and that Hope's taste buds were raised. In the trooper's experience,

the green haze and raised taste buds were indicative of recent marijuana use.

       {¶ 14} The trooper testified that when he asked how long it had been since Hope

ingested marijuana, Hope stated "a few days ago." Believing Hope's answer was untruthful,

the trooper administered Hope his Miranda rights and continued to question him. The
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trooper testified that Hope would not provide answers when asked about his passenger and

that he "fumble[d]" his words during their exchange.

       {¶ 15} The trooper testified that given the smell of raw marijuana, the results of the

field sobriety test, Hope's raised taste buds, as well as the green haze on Hope's tongue, he

decided nine minutes after the traffic stop began to search the vehicle. The trooper then

called for backup support, and upon their arrival, the search began 20 minutes after the stop

was initiated.

       {¶ 16} During the search, troopers located marijuana debris and credit cards in

multiple locations throughout the vehicle. The troopers also located 13 additional credit

cards on Hope's person. While some of the cards legitimately belonged to Hope, the

troopers were able to determine that several were stolen.

       {¶ 17} These facts indicate that the trooper had reasonable suspicion that drug activity

was afoot given the odor of marijuana and the indicators of Hope's recent use. The trooper

detained Hope only long enough to investigate first the traffic violation, and then the possible

drug activity. While the trooper decided within nine minutes to search the vehicle, he had to

wait an additional 11 minutes for backup to arrive. This delay was not an unreasonable

detention given that the trooper did nothing to unnecessarily create or expand the delay, and

instead, waited until other troopers were present to ensure his safety and assist in the

search. As such, we find that the stop was valid at its inception and that it remained valid as

the trooper investigated the possible criminal activity. Hope's first assignment of error is,

therefore, overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} MR. HOPE'S SENTENCE WAS UNCONSTITUTIONAL AND UNLAWFUL

BECAUSE A PRISON TERM WAS NOT PERMITTED NOR REQUIRED FOR A FELONY OF

THE FIFTH DEGREE.
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       {¶ 20} Hope argues in his second assignment of error that his sentence was unlawful.

       {¶ 21} R.C. 2953.08(G)(2) provides the standard of review for felony sentences. State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2), an

appellate court may modify or vacate a felony sentence only if the appellate court "clearly

and convincingly finds that the sentence is (1) contrary to law and/or (2) unsupported by the

record." State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971, ¶ 1. An appellate court

will not find a sentence clearly and convincingly contrary to law where the trial court considers

the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly imposes postrelease control, and sentences the defendant within the permissible

statutory range. State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8.

       {¶ 22} After review, we find Hope's sentence contrary to law because the record does

not indicate that the trial court considered the principles and purposes of sentencing or the

relevant sentencing factors before sentencing Hope.

       {¶ 23} During the sentencing hearing, the trial court stated only that it had received

and reviewed a presentence report, the state's sentencing memorandum, as well as defense

counsel's statements at the start of the sentencing hearing. However, there is no other

indication made during the sentencing hearing that the trial court considered the requisite

statutory factors. Nor did the trial court's sentencing entry state that it had considered both

R.C. 2929.11 and R.C. 2929.12, as it must before it imposes sentence. Thus, we find that

Hope's sentence is contrary to law and sustain his second assignment of error.

       {¶ 24} Judgment affirmed in part, reversed in part, and the matter is remanded for the

limited purpose of resentencing.


       RINGLAND, P.J., and M. POWELL, J., concur.




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