[Cite as State v. Ackerson, 2013-Ohio-4020.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2012CA00228
MICHAEL YOUNG ACKERSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR1162


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         September 16, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               AARON KOVALCHIK
PROSECUTING ATTORNEY,                          116 Cleveland Ave NW
STARK COUNTY, OHIO                             Suite 808
                                               Canton, Ohio 44702
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00228                                                        2

Hoffman, P.J.


       {¶1}   Defendant-appellant Michael Young Ackerson appeals his conviction for

possession of marijuana entered by the Stark County Court of Common Pleas. Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On July 28, 2012, Ohio State Highway Patrol Trooper Shaun Mollohan

and Lieutenant Les Marino of the Canton Police Department noticed a black Ford F150

with a yellow motorcycle on the back of the truck, which appeared to be exceeding the

posted speed limit.    Trooper Mollohan observed the truck make an improper lane

change within an intersection and then proceed to drive on a closed roadway.

       {¶3}   The officers initiated a traffic stop, asking Appellant for proof of ownership

of the motorcycle. Appellant responded he did not have proof of ownership of the

motorcycle, as he had recently purchased the motorcycle and title was to be mailed to

him. Trooper Mollohan stated he wished to run the motorcycle’s registration and VIN

number through the appropriate databases. He asked Appellant if he could search the

vehicle, and Appellant declined while using his key fob to lock the truck.

       {¶4}   Trooper Mollohan requested Lieutenant Marino provide K-9 assistance.

The K-9 subsequently alerted on the truck, where two suitcases were found in the cab

containing bales of marijuana weighing 50 lbs.

       {¶5}   Subsequently, Appellant was cited with driving on the left side of the

roadway. Appellant was also charged with one count of possession of marijuana, in

violation of R.C. 2925.11(A)(C)(3)(f), a felony of the second degree.
Stark County, Case No. 2012CA00228                                                       3


        {¶6}   On October 12, 2012, Appellant filed a motion to suppress. On October

17, 2012, the trial court conducted a hearing on Appellant's motion. The trial court

made the following findings on the record during the hearing:

        {¶7}   “The Court: It’s sometimes hard for individuals to understand the status of

the law right now and the fact is that once a law enforcement officer latches on to you in

terms of wanting to check you out, they can. Whether it’s a change of lane, not a

complete stop at a stop sign, rolling through it, 36 in a 35, whatever they can articulate,

some traffic problem, even though it’s a pretext to stop you, the courts have said that’s

okay.

        {¶8}   “And that’s what we have here. He’s admitted they were going to get you

one way or the other to stop and they did. And the stop therefore was legal.

        {¶9}   “Now we get to the point of the situation where oftentimes while they are

checking out the registration and for outstanding warrants they may or may not have the

driver step out. Once he steps out officer safety kicks in as a routine matter if they are

going to put somebody into their vehicle. But once they stop they - - at that point in time

they didn’t need probable cause for the dog. That was first there to do it, but they chose

not to use him at that time and delayed using him, which makes the case a little stickier,

if you will.   They have some questions with regard to the motor bike that’s being

transported. Whether or not one is required to have registration for that if it’s being

transported, they nevertheless had issues with regard to just verifying that.

        {¶10} “And what occurs here is that they are going to check that out. Now, they

are entitled to have a reasonable period of time to in essence check things out and what

this officer has is with his albeit limited experienced as a trooper, has done enough that
Stark County, Case No. 2012CA00228                                                            4


he differentiated the typical nervousness of a stopped traveler from your situation and

that raised his concern a little bit.

       {¶11} “But what really got him going is the fact that you weren’t about to let him

enter that vehicle. That raised further concerns and that added with checking out this

motorbike’s registration. And the limited period of time which totalled [sic] 15 minutes,

maybe ten minutes from the time that the registration for the driver had been found to

be valid, no outstanding warrants, was not an unreasonable period of time for that stop

to take place and the dog to arrive, the dog to - - which is not a search, but is allowed to

go around for the dog to hit which gives the probable cause to search the vehicle and

for those things that are in it that could be giving forth the basis for the hit by the K9 unit.

       {¶12} “For those reasons, the Court finds that the Defendant’s constitutional

rights were not violated, that the stop was proper, that the further search of the vehicle

which was occasioned by the probable cause which came from the dog hitting on the

contraband and that this took place within a reasonable period of time from the initial

stop in checking the license registration and further to make sure there was no [sic] a

stolen motorbike on the truck the motion to suppress is overruled.”

       {¶13} Tr. at 36-39.

       {¶14} Via Judgment Entry of October 18, 2012, the trial court overruled

Appellant's motion to suppress, incorporating its findings of fact stated on the record at

the suppression hearing.

       {¶15} On October 31, 2012, Appellant entered a plea of no contest, was found

guilty and sentenced accordingly.        The trial court stayed sentencing pending this

appeal.
Stark County, Case No. 2012CA00228                                                     5


      {¶16} Appellant now assigns as error:

      {¶17} “I. APPELLANT’S CONSTITUTIONAL RIGHTS AS GUARANTEED BY

THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1 SECTION 14 OF THE OHIO CONSTITUION [SIC] WERE VIOALTED [SIC]

WHEN THE TRIAL COURT FOUND HIS VEHCILE [SIC] WAS LEGALLY STOPPED.

      {¶18} “II. APPELLANT’S CONSTITUTIONAL RIGHTS AS GUARANTEED BY

THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1 SECTION 14 OF THE OHIO CONSTITUION [SIC] WERE VIOALTED [SIC]

WHEN THE TRIAL COURT OVERRULED THE MOTION THE SUPPRESS.”

                                           I. and II.

      {¶19} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

      {¶20} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 2003–Ohio–5372, 797

N.E.2d 71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995–Ohio–243, 652

N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly,

a reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law
Stark County, Case No. 2012CA00228                                                        6

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

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

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences

drawn from those facts by resident judges and local law enforcement officers.” Ornelas,

supra at 698, 116 S.Ct. at 1663.

       {¶21} A traffic stop is valid under the Fourth Amendment if the stop is based on

an observed traffic violation or if the police officer has a reasonable, articulable

suspicion a traffic or equipment violation has occurred or is occurring. City of Dayton v.

Erickson, (1996), 76 Ohio St.3d 3.      It is irrelevant the officer may have had other

subjective motives for stopping the vehicle. Id.

       {¶22} While Crim.R. 12(F) states the court shall state its essential factual

findings on the record, Appellant did not request the trial court make any additional

findings of fact. As set forth in the Statement of the Facts and Case, supra, the trial

court found the stop was pretextual. We agree. We also agree with Appellant the

citation for an improper lane change on a one-way street is insufficient to justify the

stop. However, the record also contains evidence Appellant was travelling above the

posted speed limit, traveled onto a closed roadway, and may have made an improper

turn in an intersection.1   As such, the record contains evidence which sufficiently




1
  We are uncertain whether this alleged violation is separate from the improper lane
change citation.
Stark County, Case No. 2012CA00228                                                     7


establishes a reasonable suspicion of a traffic violation justifying the stop herein;

supporting the trial court’s conclusion the stop was legal.

       {¶23} Appellant further maintains the length of detention during the investigatory

stop was longer than necessary. We disagree. When a motorist is lawfully detained

pursuant to a traffic stop, and when the purpose of the stop has yet to be fulfilled, the

Fourth Amendment is not violated when the officer employs a trained narcotics canine

to sniff the vehicle for drugs. State v. Jefferson, 5th App. No. 11CAA040033, 2012-

Ohio-148. A trial court evaluates the stop in light of the totality of the circumstances,

looking as to whether the officer conducted the investigation diligently and within a

reasonable length of time. Id.

       {¶24} Here, the entire encounter occurred in 15 minutes. The stop did not take

longer than necessary and the K9 did alert on the truck. The officers ran the VIN of the

motorcycle through LEADS and NCIC to verify ownership. Therefore, we find the length

of time was not unreasonable, as concluded by the trial court.

       {¶25} For the reasons set forth above, Appellant's conviction in the Stark County

Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur                            ___________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              ___________________________________
                                              HON. SHEILA G. FARMER


                                              ___________________________________
                                              HON. PATRICIA A. DELANEY
Stark County, Case No. 2012CA00228                                                     8


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MICHAEL YOUNG ACKERSON                     :
                                           :
       Defendant-Appellant                 :         Case No. 2012CA00228


       For the reasons stated in our accompanying Opinion, Appellant's conviction in

the Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. SHEILA G. FARMER


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY
