[Cite as State v. Polk, 2011-Ohio-4598.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                              :      JUDGES:
                                           :      Hon. Sheila G. Farmer, P.J.
    Plaintiff - Appellee                   :      Hon. John W. Wise, J.
                                           :      Hon. Julie A. Edwards, J.
-vs-                                       :
                                           :
TYRIN POLK                                 :      Case No. 11CAA010006
                                           :
    Defendant - Appellant                  :      OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Court of Common Pleas,
                                               Case No. 10CRI060309



JUDGMENT:                                      Affirmed




DATE OF JUDGMENT:                               September 12, 2011




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GREGORY A. TAPOCSI                             W. MARTIN MIDIAN
140 North Sandusky Street                      133 East Livingstone Avenue
3rd Floor                                      Columbus, OH 43215
Delaware, OH 43015
Delaware County, Case No. 11CAA010006                                                2

Farmer, P.J.

      {¶1}     On March 9, 2010, Ohio State Highway Patrol Trooper Darrell Dowler

observed appellant, Tyrin Polk, following another vehicle too closely and cross over the

white fog line. Trooper Dowler effectuated a traffic stop. Following an investigation,

marijuana was discovered in appellant's vehicle.

      {¶2}     On June 4, 2010, the Delaware County Grand Jury indicted appellant on

one count of trafficking in marijuana in violation of R.C. 2925.03 and one count of

possession of marijuana in violation of R.C. 2925.11.

      {¶3}     On July 19, 2010, appellant filed a motion to suppress, challenging the

stop and claiming it was unconstitutionally too long. Hearings were held on August 4,

and September 24, 2010. By judgment entry filed September 30, 2010, the trial court

denied the motion.

      {¶4}     A jury trial commenced on November 9, 2010. The jury found appellant

guilty as charged. By judgment entry of sentence filed December 29, 2010, the trial

court merged the two counts and sentenced appellant to a term of sixteen months in

prison.

      {¶5}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶6}     "THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE

TAKEN IN AN UNLAWFUL SEIZURE. THE DECISION VIOLATED TYRIN POLK'S

RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
Delaware County, Case No. 11CAA010006                                                   3


UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO

CONSTITUTION."

                                             I

      {¶7}     Appellant claims the trial court erred in denying his motion to suppress.

We disagree.

      {¶8}     There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence.        State v. Fanning

(1982), 1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger

(1993), 86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact.       In that case, an

appellate court can reverse the trial court for committing an error of law.       State v.

Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact

are not against the manifest weight of the evidence and it has properly identified the law

to be applied, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case.

State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623;

Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116

S.Ct. 1657, 1663, "…as a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal."
Delaware County, Case No. 11CAA010006                                                     4


       {¶9}   Although appellant concedes Trooper Dowler had reasons to stop him, he

argues his thirteen minute detention until a canine unit arrived and alerted was not

based on any specific and articulable facts of criminal activity.

       {¶10} In Terry v. Ohio (1968), 392 U.S. 1, 22, the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior

even though there is no probable cause to make an arrest." However, for the propriety

of a brief investigatory stop pursuant to Terry, the police officer involved "must be able

to point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory

stop "must be viewed in the light of the totality of the surrounding circumstances"

presented to the police officer. State v. Freeman (1980), 64 Ohio St.2d 291, paragraph

one of the syllabus.

       {¶11} An investigative detention "must be temporary and last no longer than is

necessary to effectuate the purpose of the stop. Similarly, the investigative methods

employed should be the least intrusive means reasonably available to verify or dispel

the officer's suspicion in a short period of time." Florida v. Royer (1983), 460 U.S. 491,

500. "The lawfulness of the initial stop will not support a 'fishing expedition' for evidence

of crime."    State v. Smotherman (July 29, 1994), Wood App. No. 93WD082."                As

explained by our brethren from the Sixth District in State v. Gonyou (1995), 108 Ohio

App.3d 369, 372:

       {¶12} "Various activities, including following a script, prolonging a traffic stop in

order to 'fish' for evidence, separating an individual from his car and engaging in 'casual
Delaware County, Case No. 11CAA010006                                                      5


conversation' in order to observe 'body language' and 'nervousness,' have been

deemed (depending on the overall facts of the case) to be manipulative practices which

are beyond the scope of 'the fulfillment of the purpose for which the stop was made.'

State v. Correa (1995), 108 Ohio App.3d 362, 368, 670 N.E.2d 1035, 1039; see, also,

State v. Smotherman, supra."

       {¶13} "However, if circumstances attending an otherwise proper stop should

give rise to a reasonable suspicion of some other illegal activity, different from the

suspected illegal activity that triggered the stop, then the vehicle and the driver may be

detained for as long as that new articulable and reasonable suspicion continues, even if

the officer is satisfied that the suspicion that justified the stop initially has dissipated."

State v. Myers (1990), 63 Ohio App.3d 765, 771.

       {¶14} In its judgment entry filed September 30, 2010, the trial court denied

appellant's motion to suppress, finding the following:

       {¶15} "The duration of the stop from the time of stop until the arrival of the K-9

unit was 13 minutes.      This is not an unreasonable period of time and there is no

evidence the length of stop was prolonged in any significant manner. Therefore no

constitutional violation occurred such that the results of the search should be

suppressed."

       {¶16} The trial court's conclusion on the thirteen minute stop was based on the

following findings:

       {¶17} "The officer testified that he saw that both the driver and the passenger

were nervous. The passenger's hands were shaking. He noted air freshener aroma in

the car. Once he ran the license, he talked with the driver in the cruiser and then the
Delaware County, Case No. 11CAA010006                                                      6


passenger who remained in the car. They gave inconsistent stories about where they

were going and how long they would be staying."

         {¶18} No one contests these facts, but appellant argues they were insufficient to

serve as the basis for the prolonged detention. In support of his argument, appellant

cites the case of State v. Robinette, 80 Ohio St.3d 234, 1997-Ohio-343, paragraph one

of the syllabus, wherein the Supreme Court of Ohio held the following:

         {¶19} "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 that continued detention is not

based on any articulable facts giving rise to a suspicion of some illegal activity justifying

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

an illegal seizure.***"

         {¶20} Ten years later in State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204,

paragraph two of the syllabus, the Supreme Court of Ohio held, "[t]he '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."    In the Batchili case, the stop at issue lasted eight minutes and twenty-five

seconds until the canine unit arrived and alerted. There was no indication that the stop

was delayed for the arrival of the canine unit, as the officer was awaiting word on the

computer check of the driver's license, registration, and license plate:

         {¶21} "There simply is no evidence to suggest that Batchili's detention for the

traffic violation was of sufficient length to make it constitutionally dubious. A traffic stop

is not unconstitutionally prolonged when permissible background checks have been
Delaware County, Case No. 11CAA010006                                                 7


diligently undertaken and not yet completed at the time a drug dog alerts on the vehicle.

There is no showing that the detention was delayed so that the dog could conduct its

search, and therefore, there was no constitutional violation.

       {¶22} "Moreover, assuming the detention was actually prolonged by the request

for a dog search, 'the 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.

State v. Myers (1990), 63 Ohio App.3d 765, 771 [580 N.E.2d 61]; State v. Venham

[1994], 96 Ohio App.3d [649,] 655 [645 N.E.2d 831].' Howard, 2006-Ohio-5656, 2006

WL 3059799, at ¶16." Batchili at ¶14-15.

       {¶23} Some of the factors enumerated in Batchili which were deemed to be

sufficient for a prolonged stop were similar to those sub judice (nervous interaction,

conflicting statements, shaking hands, smell of deodorizer).     When Trooper Dowler

initiated the stop of appellant, he noticed appellant was overly nervous, his hands were

shaking, and there were air fresheners in the vehicle along with air freshener spray. T.

at 19. The passenger was also extremely nervous and his hands were shaking. Id.

Trooper Dowler asked appellant to exit the vehicle, patted him down for weapons, and

placed him in the rear of the cruiser. T. at 21. Appellant informed Trooper Dowler that

he had a pocket knife on his person which Trooper Dowler secured.           Id. Trooper

Dowler testified that he often has a driver come to the cruiser, especially "when I feel

that there's something else that needs attention. Like in this example, the front seat

passenger being overly nervous and the driver being overly nervous." T. at 20.
Delaware County, Case No. 11CAA010006                                                  8


       {¶24} Once inside the cruiser, Trooper Dowler ran appellant's license which

could take between seven to ten minutes. T. at 22-23. Trooper Dowler asked appellant

where he was going and appellant responded they were going to Akron to visit a friend

and would be returning that same day. T. at 23-24. While he was awaiting word on

appellant's license, Trooper Dowler went to obtain the passenger's information. T. at

23. The passenger was still nervous and told Trooper Dowler they were going to Akron

for a funeral and were going to spend the night. T. at 23-24. This alerted the trooper

because there were no overnight bags in the vehicle for an overnight stay as mentioned

by the passenger, and the story did not match appellant's. Id. Thereafter, Trooper

Dowler called for the canine unit. T. at 24.

       {¶25} As in Batchili, circumstances were presented in this case that led Trooper

Dowler to suspect drug activity. Although each fact taken separately is not evidence of

drug activity, the resulting effect of the cumulative facts substantiates reasonable

suspicion of criminal activity. The use of air fresheners to cover the smell of marijuana,

coupled with extreme and visible nervousness of the vehicle's occupants, as well as the

conflicting stories, were collectively sufficient to establish reasonable suspicion.

       {¶26} Upon review, we find the trial court did not err in denying the motion to

suppress.

       {¶27} The sole assignment of error is denied.
Delaware County, Case No. 11CAA010006                                         9


      {¶28} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                        _s/ Sheila G. Farmer_________________



                                        _s/ John W. Wise__________________



                                        _s/ Julie A. Edwards__________________

                                                     JUDGES



SGF/sg823
[Cite as State v. Polk, 2011-Ohio-4598.]


                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
TYRIN POLK                                     :
                                               :
        Defendant-Appellant                     :      CASE NO. 11CAA010006




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                               _s/ Sheila G. Farmer_________________



                                               _s/ John W. Wise__________________



                                               _s/ Julie A. Edwards__________________

                                                           JUDGES
