[Cite as State v. Isles, 2020-Ohio-3061.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2019 CA 00121
CHOYCE ISLES

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2019 CR 00168(A)


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         May 21, 2020



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 AARON KOVALCHIK
PROSECUTING ATTORNEY                            116 Cleveland Avenue NW
KATHLEEN O. TATARSKY                            808 Courtyard Centre
ASSISTANT PROSECUTOR                            Canton, Ohio 44702
110 Central Plazsa South, Suite 510
Canton, Ohio 44702
Stark County, Case No. 2019 CA 00121                                                          2


Wise, J.

       {¶1}   This matter is before the Court upon an appeal filed by Appellant Choyce

Isles from the Stark County Court of Common Pleas concerning his conviction for one

count of possession of cocaine and one count of illegal use or possession of drug

paraphernalia. Mr. Isles challenges the trial court’s denial of his Motion to Suppress.

                  FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       {¶2}   On January 15, 2019, Ohio Highway Patrol Trooper, Matthew Magistri, was

on duty patrolling Interstate 77. (Supp.T. at 8) He ran the temporary license plate tag on

a 2004 silver Taurus and the tag came back registered to a 2000 red four-door Honda.

(Id. at 10) The tag had expired in 2017. (Id.) Trooper Magistri initiated a stop of the vehicle.

(Id. at 11). He observed a female driver and Mr. Isles as a passenger. (Id. at 11-12)

       {¶3}   Trooper Magistri testified, at the suppression hearing, Mr. Isles would not

look at him and he appeared nervous when he told Trooper Magistri he did not have

identification. (Id. at 12-13) The driver of the vehicle also did not have identification. (Id.

at 14) The driver gave Trooper Magistri a false social security number and Mr. Isles gave

a correct social security number. (Id. at 18) The driver eventually provided her correct

social security number and Trooper Magistri learned there was a warrant for her arrest.

(Id. at 19) Neither the driver nor Mr. Isles could identify the owner of the Taurus. (Id.) At

that point, Trooper Magistri decided to tow the Taurus. (Id.)

       {¶4}   Trooper Magistri ordered the driver to exit the vehicle. (Id. at 14) He patted

her down, handcuffed her, read Miranda warnings, and secured her in the backseat of his

cruiser. (Id.) Trooper Magistri next removed Mr. Isles from the vehicle. He patted down

Mr. Isles, handcuffed him, read Miranda warnings, and also secured him in the back of
Stark County, Case No. 2019 CA 00121                                                       3


the cruiser. (Id. at 14-15) Trooper Magistri secured the driver and Mr. Isles in the back of

his cruiser so he could further investigate. (Id. at 16) Trooper Magistri did not allow the

driver and Mr. Isles to stand outside on the interstate due to the cold weather and his

concern about them running into the lanes of traffic traveling on the interstate. (Id. at 52)

       {¶5}    Thereafter, Trooper Magistri requested a K-9 unit to perform a drug “plain

air sniff.” (Id. at 17) Approximately nine minutes after the initial stop, K-9 Diesel arrived

with Canton Police Officer Trey Schilling. (Id. at 22) K-9 Diesel walked around the outside

of the Taurus and alerted to drugs in multiple places on the vehicle. (Id. at 22-23) Based

on these alerts, Trooper Magistri radioed dispatch for back up for a probable cause

search. (Id. at 23-24) Trooper Magistri began the search of the Taurus and described

what he found:

               So once the dog alerted and I walked up * * * there was white powder

       all over, like little white chunks and powder all over the driver’s seat like

       where the person would actually be sitting on the seat, and then on the

       floorboard area, a little bit in the center console area, and then also on the

       passenger area. So there was the same white powdery substance and

       looks like rock substance was on both sides, the passenger and the driver’s

       seat.

       {¶6}    (Id. at 24)

       {¶7}    After completing the search of the Taurus, Trooper Magistri decided to

arrest both the driver and Mr. Isles for possession of cocaine. (Id. at 26) Trooper Magistri

thought there may be more drugs and he separated the driver and Mr. Isles. (Id. at 25)

Thereafter, the driver told Trooper Magistri Mr. Isles had a large amount of crack cocaine
Stark County, Case No. 2019 CA 00121                                                      4


in his sock and boot. (Id. at 26) The driver said she was the pusher and Mr. Isles was the

drug dealer. (Id.) Trooper Magistri searched Mr. Isles and found drugs on his person. (Id.)

       {¶8}   The Stark County Grand Jury indicted Mr. Isles on one count of possession

of cocaine, a violation of R.C. 2925.11(A)(C)(4)(a), a felony of the fifth degree, and one

count of illegal use or possession of drug paraphernalia, a violation of R.C. 2925.11(C)(1),

a misdemeanor of the fourth degree. Mr. Isles entered a not guilty plea and subsequently

counsel filed a Motion to Suppress on May 9, 2019, claiming the stop of the Taurus and

subsequent arrest and search of Mr. Isles’s person violated his constitutional rights.

       {¶9}   The trial court conducted a hearing on the suppression motion on May 21,

2019. The trial court issued a Judgment Entry on July 9, 2019, denying Mr. Isles’s motion.

On June 26, 2019, Mr. Isles entered a no contest plea. The trial court judge found him

guilty and sentenced him to three years of community control. The trial court subsequently

modified the sentence to include intensive supervision via a Judgment Entry filed on July

8, 2019.

                                   ASSIGNMENT OF ERROR

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

THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1 SECTION 14 OF THE OHIO CONSTITUTION WERE VIOLATED WHEN

THE TRIAL COURT OVERRULED THE MOTION TO SUPPRESS.”
Stark County, Case No. 2019 CA 00121                                                        5


                                            ANALYSIS

        {¶11} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). The trial court assumes the role of trier of fact during a

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

witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). If a

trial court’s findings of fact are supported by competent, credible evidence a reviewing

court must accept them. (Citation omitted.) State v. Medcalf, 111 Ohio App.3d 142, 145,

675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court’s

conclusion, whether the trial court’s decision satisfies the applicable legal standard.

(Citations omitted.) State v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th

Dist.1993), overruled on other grounds, 4th Dist. Pickaway No. 04CA25, 2005-Ohio-3492,

¶ 16.

        {¶12} Three methods exist to challenge a trial court’s ruling on a motion to

suppress. First, appellant may challenge the trial court’s findings of fact. State v. Fanning,

1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Second, appellant may argue the trial court

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

appellate court can reverse the trial court for committing an error of law. Williams at 41.

Third, appellant may argue the trial court incorrectly decided the ultimate issue raised in

the motion to suppress. When addressing the third type of challenge, an appellate court

must independently determine, without deference to the trial court’s conclusion, whether
Stark County, Case No. 2019 CA 00121                                                         6


the facts meet the appropriate legal standard in the given case. (Citation omitted.) State

v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).

       {¶13} Here, Mr. Isles challenges the trial court’s decision as to the ultimate issue

raised in his Motion to Suppress. He maintains his constitutional rights were violated

because there was no articulable belief that he was armed and/or dangerous or was

engaged in criminal activity when Trooper Magistri ordered him out of the vehicle. In

support of this argument, Mr. Isles points out he gave Trooper Magistri his correct social

security number so his identity could be confirmed. Further, testimony at the suppression

hearing proved he was not armed and dangerous. Finally, Mr. Isles claims testimony also

established he was not involved with criminal activity when he was ordered out of the

vehicle.

       {¶14} Based on Mr. Isles’s challenge we must independently determine whether

the facts of the case warranted Mr. Isles’s continued detention once Trooper Magistri

verified his identity and confirmed he was not armed. Mr. Isles maintains at that point, he

should have been permitted to leave the scene. We disagree.

       {¶15} Initially, we note Mr. Isles does not challenge the stop of the vehicle, but

rather his continued detention. However, a passenger may be detained just as the driver.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the U.S.

Supreme Court held that once a vehicle is lawfully stopped, the driver may be ordered to

exit the vehicle without violating the Fourth Amendment. Id. at 111, fn. 6. The

government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis”

additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle.” Id.

at 110-111. In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997),
Stark County, Case No. 2019 CA 00121                                                      7


the U.S. Supreme Court extended the Mimms rule to passengers based on the same

legitimate and weighty interest of officer safety. Id. at 414.

       {¶16} Further, as explained by the Court in Brendlin v. California, 551 U.S. 249,

127 S.Ct. 2400, 168 L.E.2d 132 (2007), a passenger is seized just as a driver the moment

a car stopped by the police comes to a halt on the side of the road. Id. at 263. A

passenger’s motivation to use violence during the stop to prevent apprehension for a

crime graver than a traffic violation is just as great as that of the driver. Wilson at 414.

Further, because the “passengers are already stopped by virtue of the stop of the vehicle,

* * * the additional intrusion upon them is minimal.” Id. at 409.

       {¶17} Also, an officer is permitted to request identification from a passenger in a

vehicle that is lawfully stopped for a traffic violation without violating the Fourth

Amendment. (Citations omitted.) State v. Roseberry, 5th Dist. Licking No. 2009-CA-78,

2010-Ohio-1112, ¶ 21. “Interrogation relating to one’s identity or a request for

identification by the police does not, by itself, constitute a Fourth Amendment seizure.”

(Citations omitted.) Id. Rather, requesting identification from a passenger is merely

“routine questioning” that is “but a minimal intrusion.” (Citations omitted.) Id.

       {¶18} Here, we find no Fourth Amendment violation occurred with Mr. Isles’s

continued detention. “The temporary seizure of driver and passengers ordinarily

continues, and remains reasonable, for the duration of the stop. Normally, the stop ends

when the police have no further need to control the scene, and inform the driver and

passengers they are free to leave. (Citation omitted.) See id at ¶ 23. Further, an officer’s

inquiries into matters unrelated to the reason for the stop does not convert the encounter
Stark County, Case No. 2019 CA 00121                                                       8


into something other than a lawful seizure as long as the inquiries do not measurably

extend the duration of the stop. (Citations omitted.) Roseberry at ¶ 23.

       {¶19} Further, “ ‘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 * * *”

(Citation omitted.) State v. Batchili, 113 Ohio St.3d 403, 865 N.E.2d 1282, 2007-Ohio-

2204, ¶ 15. Finally, we note that a canine walk-around of a vehicle that occurs during a

lawful stop and does not extend beyond the period necessary to effectuate the stop and

issue a citation does not violate an individual’s constitutional rights. Roseberry at ¶ 17,

citing Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

Importantly, “if a trained narcotics dog alerts to the odor of drugs from a lawfully detained

vehicle, an officer has probable cause to search the vehicle for contraband.” (Citations

omitted.) State v. Whitman, 184 Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 293, ¶

10 (5th Dist.).

       {¶20} Applying the above case law to the testimony elicited at the suppression

hearing, we conclude Mr. Isles’s constitutional rights were not violated by his continued

detention after Trooper Magistri verified his identity and confirmed he was unarmed. At

that point, Trooper Magistri had requested a canine search. (Supp.T. at 17) Diesel and

his handler from the Canton City Police Department arrived on the scene within nine

minutes of the initial stop. (Id. at 22) The request for the search did not extend the stop

beyond what was necessary to issue a citation.

       {¶21} Even after Trooper Magistri confirmed Mr. Isles’s identity and the fact that

he was not armed, Trooper Magistri was still investigating as part of the initial stop. As he
Stark County, Case No. 2019 CA 00121                                                        9


testified to at the suppression hearing, he could not confirm the driver’s identity due to the

fake social security number she provided. (Id. at 18) Further, Trooper Magistri had

decided to tow the vehicle because neither the driver nor Mr. Isles could identify its owner.

(Id. at 19) Thus, despite the confirmation of Mr. Isle’s identity and the fact that he was

unarmed, it was the driver’s and Mr. Isles’s conduct that caused the investigation to be

extended. Further, once Diesel arrived on the scene and alerted to drugs in the vehicle,

Trooper Magistri had reasonable, articulable suspicion to further extend Mr. Isles’s

detention and search the vehicle for drugs. This testimony supports the conclusion the

trial court did not err when it denied Mr. Isles’s Motion to Suppress.

       {¶22} Mr. Isles’s sole assignment of error is overruled.

       {¶23} For the foregoing reasons, the judgment of the Common Pleas Court, Stark

County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.




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