[Cite as State v. Sealey, 2020-Ohio-987.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


 STATE OF OHIO,                                      :       OPINION

                    Plaintiff-Appellee,              :
                                                             CASE NO. 2019-L-128
          - vs -                                     :

 OKEMA A. SEALEY,                                    :

                    Defendant-Appellant.             :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR
 000945.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, OH 44077 (For Plaintiff-Appellee).

 Vanessa R. Clapp, Lake County Public Defender, and R. Tadd Pinkston, Assistant
 Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
 Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}       Appellant, Okema A. Sealey, appeals the July 15, 2019 judgment of the

Lake County Court of Common Pleas denying his motion to suppress. For the reasons

discussed herein, the judgment is affirmed.

        {¶2}       In the early morning hours of August 18, 2018, Officer Don Swindell noticed

a vehicle with excessive window tint drive by him in his police cruiser. He followed the
vehicle, driven by Mr. Sealey, into a nearby gas station, and then turned on his lights and

effectuated a stop.      When the officer approached, he immediately noticed the

overwhelming scent of air fresheners emanating from the vehicle and throughout the stop

Mr. Sealey was unusually and excessively nervous. Based on those factors, combined

with the fact that the area was known for its drug activity, the officer suspected Mr. Sealey

was involved in drug-activity activity, the officer called for a canine unit and requested a

criminal history report, which revealed that Mr. Sealey had a history of drug trafficking.

       {¶3}   Approximately 21 minutes into the stop, after only a few minor distractions,

Officer Swindell issued Mr. Sealey the warning. As he was explaining the warning, the

dog arrived and began its search. Upon alert from the canine, officers searched and

found marijuana in the vehicle and a baggie of cocaine on Mr. Sealey’s person.

       {¶4}   Mr. Sealey was indicted on one count of Possession of Cocaine, a felony of

the fifth degree, in violation of R.C. 2925.11, with a forfeiture specification pursuant to

R.C. 2941.1417 and R.C. 2981.04. Mr. Sealey filed a motion to suppress the evidence,

arguing the officer unlawfully prolonged the stop. A hearing was held, and the trial court

ultimately denied the motion. Mr. Sealey subsequently pleaded no contest to the charge,

and the court sentenced him to three years of community control sanctions. Mr. Sealey

now appeals the court’s denial of the motion to suppress, assigning one error for our

review:

       {¶5}   The trial court erred by denying the defendant-appellant’s motion to
              suppress in violation of his due process rights and rights against
              unreasonable search and seizure as guaranteed by the Fourth, Fifth,
              and Fourteenth Amendments to the United States Constitution and
              Sections 10 and 14 of the Ohio Constitution.

       {¶6}   “‘Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier


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

credibility of witnesses.’” State v. Freshwater, 11th Dist. Lake No. 2018-L-117, 2019-

Ohio-2968, ¶4, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.

“‘Consequently, an appellate court must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.             Accepting these facts as true,

the appellate court must then independently determine, without deference to the

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

legal standard.’” Burnside, supra, citing State v. Fanning, 1 Ohio St.3d 19 (1982).

       {¶7}   “[A] police officer ‘need not have a reasonable suspicion that a vehicle

contains contraband prior to summoning a canine drug unit’ for the duration of the time

needed to complete the initial traffic stop.” State v. Balanik, 11th Dist. Lake No. 2015-L-

112, 2016-Ohio-3511, ¶11, quoting State v. Wilkins, 2d Dist. Montgomery No. 20152,

2004-Ohio-3917. However, upon stopping a motorist for a traffic violation, an officer may

delay the driver for only the amount of time necessary to issue a ticket and to verify the

driver’s license, registration, and license plates. Balanik, supra. A motorist may only be

detained longer than necessary for the initial traffic stop “‘when additional facts are

encountered that give rise to a reasonable, articulable suspicion of criminal activity

beyond that which prompted the initial stop.’” Id. at ¶12, quoting State v. Batchili, 113

Ohio St.3d 403, 2007-Ohio-2204, ¶12-15. Moreover, “in order to delay a traffic stop for

the purpose of conducting a K–9 drug ‘sniff,’ the reasonable, articulable suspicion

required must be of drug activity.” (Emphasis sic.) State v. Eggleston, 11th Dist. Trumbull

No. 2014-T-0068, 2015-Ohio-958, ¶28.




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       {¶8}   “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.” Batchili, supra, at paragraph two of the

syllabus. “‘The relevant inquiry in determining whether reasonable suspicion exists is not

whether particular conduct is innocent or guilty, but the degree of suspicion that attaches

to particular types of non-criminal acts.’” Eggleston, supra, at ¶29, quoting State v. Floyd,

9th Dist. Summit No. 11CA010033, 2012-Ohio-990, ¶18.

       {¶9}   In the case at bar, the legality of the traffic stop is not in dispute, nor is

anything occurring after the arrival of the canine unit. Instead, Mr. Sealey argues that

Officer Swindell prolonged the traffic stop without reasonable, articulable suspicion in

order to await the arrival of the canine unit. The state argues that “[i]f the stop was

extended for the canine unit, it was only momentarily and it was after the officer’s

investigation included a sufficient amount of reasonable, articulable suspicion that the

vehicle contained drugs.” In its judgment entry denying Mr. Sealey’s motion to suppress,

the court did not expressly determine that the stop was prolonged, but did find that the

officer had reasonable, articulable suspicion that the vehicle contained drugs. We agree.

       {¶10} Considering the totality of the circumstances, the record supports a finding

that Officer Swindell had the reasonable, articulable suspicion of drug activity necessary

to prolong the traffic stop. Officer Swindell’s suspicions arose when he first encountered

Mr. Sealey. He testified that he immediately noticed the “excessive” scent of air

fresheners.   He testified that while he could not remember exactly how many air

fresheners were in the car, “the odor was excessive. I believe every vent in the front dash

had an air freshener * * *.” Additionally, Officer Swindell testified that Mr. Sealey was




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extremely and unusually nervous: he was not making eye contact, his eyes were darting,

he was breathing very heavily and rapidly, his carotid artery was visibly pulsing, and his

hands were visibly shaking. Moreover, Mr. Sealey’s nervousness did not wane upon

being informed that he was pulled over for an excessive-window-tint violation, a minor

misdemeanor related to a vehicle that was not his own, nor after being informed that he

was only being issued warning.

       {¶11} In an effort to argue that nervousness should not be considered, Mr. Sealey

likens his case to State v. Taylor, 138 Ohio App.3d 139 (2d Dist.2000). Taylor, however,

is distinguishable. In that case, the officer stopped a vehicle for speeding. The appellant

therein was the front seat passenger. Noting that the driver looked nervous, smelled of

alcohol, was sweating profusely, and his car had several air fresheners, the officer

performed a breath alcohol test but determined the driver was not legally impaired. When

the report on the driver’s license showed it was suspended, the driver was placed under

arrest. The pat-down incident to arrest revealed a small amount of marijuana on the

driver, so the officer called for a canine unit. Ultimately, the dog alerted to the trunk of the

vehicle, where officers discovered a large sum of cash. At that point, all three of the car’s

occupants, including the non-driver appellant, were arrested. As appellant was being

questioned, the officer noticed a packet of cocaine near his foot, and he was charged with

possession of cocaine. The Second District found that the officer did not have grounds

to detain the passenger appellant based upon the suspicious circumstances surrounding

the driver.

       {¶12} Moreover, as this Court noted in State v. Sherrod, 11th Dist. Lake No. 2009-

L-086, 2010-Ohio-1273, “Taylor was decided before the Ohio Supreme Court’s decision




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in Batchili and may have been decided differently in light of the later holding. The Taylor

court further acknowledged that it was not holding ‘that the circumstances in this case

can never congeal with other facts not present here to form a reasonable articulable

suspicion that criminal activity is occurring or about to occur.’” Sherrod, supra, at ¶24,

quoting Taylor, supra, at 149. Thus, we do not find Taylor applicable to the case at bar.

       {¶13} This Court has found that “[w]hile the unusual number of air fresheners,

nervousness, and inability to name one of his passengers may be understandable and/or

not criminal in themselves, they do constitute reasonable and articulable suspicion of

criminal activity, such as the possession of contraband.” Sherrod, supra, at ¶21. See

also State v. Henry, 11th Dist. Lake No. 2007-L-082, 2007-Ohio-6732. Here, instead of

being unable to name a passenger, the officer had additional suspicion because the area

was well known for its drug activity. In particular, Officer Swindell testified that “the gas

stations [in that particular area] are commonly used for drug transactions.” Viewing this

fact in the totality of the circumstances, considering Mr. Sealey’s continued and excessive

nervousness, his criminal history, and the excessive use of air fresheners, we find Officer

Swindell had reasonable, articulable suspicion of drug activity sufficient to prolong the

initial traffic stop to await the arrival of the canine unit. Accordingly, the trial court did not

err in denying Mr. Sealey’s motion to suppress.

       {¶14} In light of the foregoing, Mr. Sealey’s assignment of error is without merit.

       {¶15} The judgment of the Lake County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J.,

MATT LYNCH, J.,

concur.




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