[Cite as State v. Lewis, 2012-Ohio-5114.]


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

STATE OF OHIO                                        C.A. No.      12CA010146

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
YMARI LEWIS                                          COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   09CR077566

                                  DECISION AND JOURNAL ENTRY

Dated: November 5, 2012



        BELFANCE, Judge.

        {¶1}     Defendant-Appellant Ymari Lewis appeals from the denial of his motion to

suppress in the Lorain County Court of Common Pleas. For the reasons set forth below, we

reverse.

                                                I.

        {¶2}     The facts pertaining to the instant matter were previously recited in State v.

Davenport, 9th Dist. No. 11CA010136, 2012-Ohio-4427.

        On January 12, 2009, around 1 p.m. in the afternoon, Byron Foxx, a trooper with
        the Ohio State Highway Patrol, stopped a vehicle with a California license plate
        for following too closely behind a tractor trailer. [The driver of the vehicle was
        Mr. Lewis, and the passenger was Devon Davenport.] The car was rented to Mr.
        Davenport’s girlfriend, who was not present at the stop, but * * * [Mr.] Lewis,
        was identified on the rental agreement as an additional driver. * * * Mr. Lewis
        told Trooper Fox that they were driving to Buffalo, New York. Trooper Foxx
        called a K–9 unit to walk around the vehicle and began running Mr. Lewis’ and
        Mr. Davenport’s New York driver’s licenses. Trooper Foxx conducted computer
        checks and determined that neither Mr. Lewis nor Mr. Davenport had outstanding
        warrants. He did not write a citation but instead issued a warning for the
        violation. When Trooper Richard Menges arrived on the scene, the Defendants
                                                2


        were each placed in the back of one of the cruisers. Trooper Menges then walked
        K–9 Johnny around the vehicle. The dog alerted on the left, rear-door seam and a
        block of marijuana was found in the trunk of the vehicle.

Id. at ¶ 2.

        {¶3}   Mr. Lewis was indicted on February 18, 2009, for one count of possession of

drugs in violation of R.C. 2925.11(A), a felony of the third degree, and one count of possession

of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree.

Mr. Lewis filed an initial motion to suppress, which was subsequently supplemented after the

State requested a more specific statement. In his motion, Mr. Lewis asserted that the trooper

lacked probable cause to stop the vehicle, that the trooper lacked reasonable articulable suspicion

to detain the vehicle while waiting for the K-9 to arrive, that the State bears the burden of

establishing that the K-9 was properly trained, and that Mr. Lewis was unlawfully interrogated

by the trooper at the scene. The State filed a motion in opposition and the matter proceeded to a

combined hearing on both Mr. Lewis’ and Mr. Davenport’s motion to suppress. The trial court

denied the motion, concluding on the record that it found Trooper Foxx’s testimony concerning

the purpose of the stop to be credible and thereby concluding that Trooper Foxx had probable

cause to stop the vehicle, that the dog sniff occurred subsequent to when the purpose of the stop

should have been completed, and that Trooper Foxx had reasonable suspicion to prolong the stop

to allow time to conduct the dog sniff of the vehicle. Mr. Lewis thereafter entered a no-contest

plea and was sentenced to a total of three years of community control. Mr. Lewis filed a motion

for a delayed appeal, which was granted. He raises a single assignment of error for our review.
                                                 3


                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED TO THE DETRIMENT OF LEWIS BY FINDING
       THAT THE OFFICERS IN THE CASE AT BAR HAD ESTABLISHED
       PROBABLE CAUSE THAT A CRIME HAD BEEN COMMITTED AND
       THEREFORE THAT THE OFFICERS WERE JUSTIFIED IN PROLONGING
       THE DETENTION OF LEWIS WHILE A DRUG INTERDICTION DOG
       ARRIVED AT THE SCENE.

       {¶4}    Mr. Lewis asserts that the trial court erred in concluding that the troopers were

justified in prolonging the stop and waiting for the K-9 to arrive. We agree.

       {¶5}    While Mr. Lewis is mistaken that the troopers needed probable cause to prolong

the stop, we nonetheless agree that his argument has merit. See Davenport, 2012-Ohio-4427, at

¶ 6. As we stated in Davenport,

       [T]he detention of a stopped driver may continue beyond [the normal] time frame
       when additional facts are encountered that give rise to a reasonable, articulable
       suspicion of criminal activity beyond that which prompted the initial stop. Such
       analysis encompasses the totality of the circumstances and th[us] a court may not
       evaluate in isolation each articulated reason for the stop. The reasonable and
       articulable suspicion analysis is based on the collection of factors, not on the
       individual factors themselves. Reasonable suspicion requires that an officer be
       able to point to specific and articulable facts which, taken together with rational
       inferences from those facts, reasonably warrant [the] intrusion. However, [a]n
       officer’s reliance on a mere hunch is insufficient to justify a stop, or to expand the
       scope of a traffic stop.

(Internal quotations and citations omitted.) Id. This Court previously examined whether the

troopers in the instant matter had reasonable suspicion to prolong the stop of this vehicle while

waiting for the K-9 to arrive in Davenport. The analysis set forth in Davenport is equally

applicable to this matter. See id. at ¶ 7-9. In the instant matter, we likewise conclude that the

troopers lacked reasonable suspicion to prolong the stop. As we summarized in Davenport:

       [T]he constellation of factors present in this case does not create a reasonable
       suspicion that Mr. [Lewis] was engaged, or about to be engaged, in criminal
       activity. Instead, this situation seems far from atypical or unusual. Often people
                                                  4


        rent cars when traveling. Further, it is not uncommon for people traveling under a
        tight deadline to have a messy vehicle, particularly when the people are running
        late. The inclusion of the facts that the car was from California, that the person
        who rented the car was not present, and that the Defendants said they were late for
        a court date, while perhaps not common, does not tip the scales, particularly in
        light of the fact that the additional driver on the rental agreement was the driver of
        the vehicle at the time of the stop.

Id. at ¶ 10.

        {¶6}   Accordingly, because the troopers lacked reasonable suspicion to prolong the

stop, the trial court erred in failing to grant Mr. Lewis’ motion to suppress. We sustain Mr.

Lewis’ assignment of error and remand the matter for proceedings consistent with this opinion.

                                                 III.

        {¶7}   In light of the foregoing, we sustain Mr. Lewis’ assignment of error, reverse the

decision of the Lorain County Court of Common Pleas, and remand the matter for proceedings

consistent with this opinion.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




        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
                                                5


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.

       Costs taxed to Appellee.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



MOORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

KENNETH N. ORTNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
