[Cite as State v. Duran, 2012-Ohio-2114.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.     11CA009969

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JOSE L. DURAN                                          COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellee                                       CASE No.   09CR079222

                                 DECISION AND JOURNAL ENTRY

Dated: May 14, 2012



        BELFANCE, Presiding Judge.

        {¶ 1} The State appeals from the trial court’s granting of José Duran’s motion to

suppress. For the reasons set forth below, we reverse.

                                                  I.

        {¶ 2} Ohio State Highway Patrolman Richard Menges clocked Mr. Duran traveling in

excess of the speed limit.        Patrolman Menges, a K-9 officer, initiated a traffic stop.   He

approached Mr. Duran’s car and proceeded to engage him in conversation.

        {¶ 3} As Patrolman Menges conducted a background check on Mr. Duran, a second

Ohio State Highway Patrolman arrived at the scene and took over the duty of writing the warning

or citation. Patrolman Menges got Johnny, his narcotics dog, from the back of his cruiser. He

walked the dog up to the back of Mr. Duran’s car and then along the passenger side. The dog

alerted at the front passenger door. Patrolman Menges and the second officer searched the front
                                                2


and back seating areas of the car but did not find anything. They then went to the back of the car

and discovered a duffel bag containing 31 pounds of marijuana.

       {¶ 4} Mr. Duran moved to suppress the marijuana on the basis that Patrolman Menges

had impermissibly prolonged the traffic stop. In his motion, he also argued that the patrolman’s

questions violated Miranda, although this was not pursued at the suppression hearing. The trial

court rejected the argument that the duration of the stop was impermissibly extended. However,

it asked the parties to brief whether Patrolman Menges could search the trunk of Mr. Duran’s car

on the basis of the dog’s alert to the front passenger door under circumstances where the search

of the passenger compartment did not reveal any contraband. After the parties submitted their

briefs, the trial court, relying upon State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255,

determined that the dog’s alert only gave Patrolman Menges probable cause to search the

passenger compartment of Mr. Duran’s car.

       {¶ 5} The State has appealed, raising two assignments of error for review.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING DURAN’S MOTION TO
       SUPPRESS BY APPLYING AN UNWARRANTED EXTENSION OF STATE
       V. FARRIS, 109 OHIO ST.[3D] 519, 2006[-]OHIO[-]3255.

       {¶ 6} The State argues that the trial court improperly applied Farris to a search based

on an alert by a trained narcotics dog. According to the State, the dog’s alert to the passenger

compartment provided probable cause to search the trunk of Mr. Duran’s car, notwithstanding

the failure to find any contraband when searching the passenger compartment. Thus, the State

argues, the marijuana was discovered during the course of a legal search.
                                                 3


       {¶ 7} Generally, “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, ¶ 8. Thus, we defer to the trial

court’s findings of fact if they are supported by competent, credible evidence and review the trial

court’s application of the law to the facts de novo. State v. Metcalf, 9th Dist. No. 23600, 2007–

Ohio–4001, ¶ 6.

       {¶ 8} The trial court found that the dog alerted on the right front passenger door. This

finding is supported by the dash-cam video of the stop, which shows the dog alerting solely to

the front passenger portion of the vehicle. Relying on Farris, the court determined that the dog’s

alert did not give Patrolman Menges probable cause to search the back of Mr. Duran’s car under

circumstances where a search of the passenger compartment did not reveal any contraband.

Probable Cause

       {¶ 9} The Fourth Amendment to the United States Constitution provides, “The right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” “Section 14, Article I of the Ohio Constitution, nearly

identical to its federal counterpart, likewise prohibits unreasonable searches.” State v. Moore, 90

Ohio St.3d 47, 49 (2000). The Supreme Court of Ohio stated in Moore, that:

       [f]or a search or seizure to be reasonable under the Fourth Amendment, it must be
       based upon probable cause and executed pursuant to a warrant. This requires a
       two-step analysis. First, there must be probable cause. If probable cause exists,
       then a search warrant must be obtained unless an exception to the warrant
       requirement applies. If the state fails to satisfy either step, the evidence seized in
       the unreasonable search must be suppressed.

(Internal citations omitted.) Id.
                                                 4


       {¶ 10} Probable cause has been defined as “‘a reasonable ground for belief of guilt.’”

Id., quoting Carroll v. United States, 267 U.S. 132, 161 (1925). It means “more than bare

suspicion: Probable cause exists where ‘the facts and circumstances within their (the officers’)

knowledge and of which they had reasonably trustworthy information (are) sufficient in

themselves to warrant a [person] of reasonable caution in the belief that’ an offense has been or

is being committed.” Brinegar v. United States, 338 U.S. 160, 175-176 (1949), quoting Carroll

at 162. It “must be based upon objective facts that would justify the issuance of a warrant by a

magistrate.” Moore, 90 Ohio St.3d at 49.

Terry Stops

       {¶ 11} In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court of the United States

created a narrow exception to the requirement of probable cause prior to effecting a search or

seizure. In Terry, the Court determined that a police officer may momentarily stop and frisk a

person where, based on specific facts, the officer concludes that the person has committed a

crime or is about to commit a crime and may be armed and dangerous. Id. at 30. Since Terry, it

is well settled that “[a]n investigative stop does not violate the Fourth Amendment to the United

States Constitution if the police have reasonable suspicion that ‘the person stopped is, or is about

to be, engaged in criminal activity.’” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35,

quoting United States v. Cortez, 449 U.S. 411, 417 (1981); see also Terry at 16-19.

       {¶ 12} “The scope of the intrusion permitted will vary to some extent with the particular

facts and circumstances of each case[,]” Florida v. Royer, 460 U.S. 491, 500 (1983), and any

expansion of the scope must be based upon reasonable articulable suspicion. See Terry at 17-19.

In addition, “an investigative detention must * * * last no longer than is necessary to effectuate

the purpose of the stop.” Id. Furthermore, “the investigative methods employed should be the
                                                  5


least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short

period of time.” Id.; see also United States v. Brignoni-Ponce, 422 U.S. 873, 881-882 (1975).

       {¶ 13} A routine traffic stop is a relatively brief encounter that is analogous to a Terry

Stop. Berkemer v McCarty, 468 U.S. 420, 439 (1984); Knowles v Iowa, 525 U.S. 113, 117

(1998). Thus, it is appropriate to apply Terry principles to the scope and duration of the traffic

stop. As a result, where an officer stops a motorist initially based upon probable cause that he

has violated speeding laws, the officer must limit both the scope and duration of the stop to the

matter at hand, namely, writing the citation. Any expanded investigation unrelated to the traffic

violation must be based upon reasonable articulable suspicion. State v. Robinette, 80 Ohio St.3d

234 (1997), paragraph one of the syllabus (“When a police officer’s objective justification to

continue detention of a person stopped for a traffic violation for the purpose of searching the

person’s vehicle is not related to the purpose of the original stop, and when the continued

detention is not based on any articulable facts giving rise to suspicion of some illegal activity

justifying an extension of the detention, the continued detention to conduct a search constitutes

an illegal seizure.”). For example, an officer could observe items in plain view, which could

provide the basis upon which to expand the scope of the investigation and the duration of the

seizure. Generally, as part of the scope of a traffic stop for speeding for which a citation will be

given, diligent inquiry as to the validity of a driver’s registration and license are viewed as within

the scope of the citation process. See, e.g., State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-

2204, paragraph one of the syllabus.

Use of Narcotics-Detection Dog

       {¶ 14} In Illinois v Caballes, 543 U.S. 405 (2005), the United States Supreme Court

considered the use of a narcotics-detection dog during a traffic stop. It held that a dog sniff,
                                                  6


conducted during a concededly lawful traffic stop that reveals no information other than the

location of a substance that no individual has any right to possess, does not violate the Fourth

Amendment. Id. at 409. Caballes has been heavily criticized by Lafave. 4 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment, Section 9.3(b) (4th Ed.2011) (“[T]he

Caballes decision seems to be grounded in nothing other than the bald assertion that only such

conduct as itself constitutes a Fourth Amendment search can qualify as investigative activity

amounting to a scope violation under the Terry line of cases * * * [but] the Supreme Court’s

relevant prior decisions consistently point in the other direction.”); see also 4 LaFave at Section

9.3(f), citing State v. Wiegand, 645 N.W.2d 125, 136-137 (Minn.2002) (described by LaFave as

correctly analyzing the scope and duration of a traffic stop in the context of a dog sniff).

       {¶ 15} The Ohio Supreme Court has not analyzed Caballes, and thus it is unclear

whether it would view its holding as consistent with the Ohio Constitution. See, e.g., State v.

Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, ¶ 7 (finding Ohio Constitution, Article I, Section

14, provides greater protection than Fourth Amendment to United States Constitution against

warrantless arrest for minor misdemeanors). In other words, even where the stop is of limited

duration, it is unclear whether Ohio’s Constitution would require an officer to possess reasonable

articulable suspicion prior to expanding the scope of a traffic stop to the investigation of

potential possession of drugs. Nevertheless, in this case, Mr. Duran at no point challenged the

use of the narcotics dog.

Probable Cause to Search Passenger Compartment and Trunk

       {¶ 16} In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, the Supreme Court of

Ohio considered the distinction between probable cause to search a passenger compartment of a

vehicle and a trunk. In that case, an officer pulled the defendant over and, when he approached
                                                 7


the defendant’s car, detected the light odor of burnt marijuana. Id. at ¶ 1. He asked the

defendant to step out of the car, conducted a pat-down search of the defendant, took his car keys,

and asked him to get into his police cruiser. Id. at ¶ 2. The officer then proceeded to ask

questions about the smell of marijuana. Id. at ¶ 3. The defendant told the officer that his

housemates had been smoking marijuana. Id. When the officer told the defendant that he was

going to search the car and asked whether the defendant had any drugs or drug paraphernalia, the

defendant told the officer that a drug device was in his trunk. Id. The officer searched the

passenger compartment and did not find any contraband. Id. at ¶ 5. The officer then opened the

trunk where he found a closed opaque container containing a glass pipe and cigarette papers. Id.

       {¶ 17} The Ohio Supreme Court concluded that the defendant’s statements should be

suppressed as they were obtained in violation of his Miranda rights. Id. at ¶ 36. The Court then

turned to whether the officer, without the defendant’s statements, had probable cause to search

the defendant’s trunk. Id. at ¶ 50. The Court held that the officer did not have probable cause to

search the trunk, noting that “[a] trunk and a passenger compartment of an automobile are

subject to different standards of probable cause * * *.” Id. at ¶ 51. The court concluded that

“[t]he odor of burnt marijuana in the passenger compartment of a vehicle does not, standing

alone, establish probable cause for a warrantless search of the trunk of the vehicle.” Id. at ¶ 52.

Search of Mr. Duran’s Vehicle

       {¶ 18} In this case, the trial court relied upon Farris in concluding that the officer did not

have probable cause to continue his search of the vehicle. The court’s reliance upon Farris is

understandable, in light of the Farris court’s unqualified statement that a trunk and passenger

compartment are subject to different standards of probable cause. However, the precise question

of whether an officer has probable cause to search a trunk under circumstances where the search
                                                8


in the passenger compartment where a dog alerted reveals no contraband is not before us. In this

case, Mr. Duran’s small vehicle did not have a “trunk.” Rather, as revealed by the dash cam

video, the vehicle he drove had a single, continual compartment where storage space abutted the

rear passenger seat through which air could flow and into which a passenger could reach from

the back seat. The marijuana was discovered in the small storage area behind the rear seat.

       {¶ 19} As probable cause entails consideration of whether there is reasonably trustworthy

information to warrant a person of reasonable caution in the belief that an offense has been or is

being committed, see Brinegar, 338 U.S. at 175-176, the issue is whether the dog’s alert

provided reasonably trustworthy information such that a person of reasonable caution would

believe that there was contraband present. In this case, the State provided evidence that Johnny

was properly trained to detect narcotics and had passed the required training exams. The vehicle

was compact, there was no real division between the rear cargo space and the rest of the

passenger compartment, thus allowing air to flow throughout the vehicle, and there was no

evidence suggesting that Johnny’s sense of smell could not extend for the length of the vehicle.

Thus, under the circumstances presented in this case, we conclude that the dog alert provided

probable cause to search the interior compartment of the vehicle, including the space behind the

rear passenger seats. Accordingly, the marijuana should not have been suppressed.

       {¶ 20} In his responsive merit brief, Mr. Duran suggests that the trial court’s judgment

could be affirmed upon alternate grounds. However, this would require reversal of the trial court

as to some its factual and legal determinations. As there is no cross-assignment of error, the

alternative argument presented is not properly before us.

       {¶ 21} The State’s first assignment of error is sustained.
                                                 9


                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING DURAN’S MOTION TO
       SUPPRESS BASED, IN PART ON AN ISSUE RAISED BY THE TRIAL
       COURT SUA SPONTE.

       {¶ 22} In its second assignment of error, the State argues that the trial court improperly

requested that the parties brief a new issue for its consideration regarding Mr. Duran’s motion to

suppress. However, given our resolution of the State’s first assignment of error, this assignment

of error is moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶ 23} The State’s first assignment of error is sustained, and its second assignment of

error is moot. The judgment of the Lorain County Court of Common Pleas is reversed, and the

matter is remanded for proceedings consistent with this decision.

                                                                              Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                               10


       Costs taxed to Appellee.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT

WHITMORE, J.
CONCURS.

DICKINSON, J.
CONCURRING.

       {¶ 24} I concur in the majority’s judgment and all of its opinion except the refusal in

paragraph 20 to reach Mr. Duran’s alternative argument. The existence of Section 2505.22 of

the Ohio Revised Code causes confusion regarding when an appellate court may consider

alternative arguments for affirming a trial court’s judgment. The Ohio Supreme Court, however,

has written that “reviewing courts are not authorized to reverse a correct judgment on the basis

that some or all of the lower court’s reasons are erroneous.” State ex rel. Deiter v. McGuire, 119

Ohio St. 3d 384, 2008-Ohio-4536, ¶ 21 (quoting State ex rel. McGrath v. Ohio Adult Parole

Auth., 100 Ohio St. 3d 72, 2003-Ohio-5062, ¶ 8). Accordingly, I would not require a cross-

assignment of error before reaching an alternative argument for affirmance. In this case, the

dash-cam video establishes that Patrolman Menges did not improperly extend the stop in order to

conduct the dog sniff of Mr. Duran’s car. Accordingly, I would reject Mr. Duran’s argument that

he did on its merits.

APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellant.

PAUL GRIFFIN, Attorney at Law, for Appellee.

LAWRENCE JACKOWIAK, Attorney at Law, for Appellee.
