[Cite as State v. Makupson, 2011-Ohio-2185.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                  :

        Plaintiff-Appellee                     :   C.A. CASE NO. 24049

vs.                                            :   T.C. CASE NO. 09CR2380

ANDRE MAKUPSON                                 :   (Criminal Appeal from
                                                    Common Pleas Court)
        Defendant-Appellant                    :

                                      . . . . . . . . .

                                         O P I N I O N

                      Rendered on the 6th day of May, 2011.

                                      . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff,                    Asst.
Pros. Attorney, P.O. Box 972, Dayton, OH 45422
     Attorneys for Plaintiff-Appellee

Joe Cloud, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road,
Beavercreek, OH 45432
     Attorney for Plaintiff-Appellant


                                      . . . . . . . . .

BROGAN, J. (BY ASSIGNMENT):

        {¶ 1} Andre Makupson appeals from his conviction in the

Montgomery County Common Pleas Court of receiving stolen property

pursuant to his no contest plea.

        {¶ 2} The facts underlying this appeal are not in dispute and
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the trial court’s statement of the facts in resolving Makupson’s

suppression motion are reasonably supported by our view of the

evidence.   The trial court stated the facts leading to Makupson’s

arrest as follows:

     {¶ 3} “On July 21, 2009, Dayton Police Officer Eric Hamby was

on patrol, in a marked cruiser, wearing the uniform of the day.

 He observed a red truck turn left against a red light.      Also,

the red truck was missing its rear license plate.    Officer Hamby

initiated a traffic stop.   The truck had three occupants, a driver

(the Defendant), a passenger, and an occupant in the rear.   While

stopping the vehicle, Officer Hamby observed the passenger     and

rear seat occupant making furtive movements.   Hence, Hamby called

for backup.   The traffic stop occurred in front of the Central

State-Dayton Campus, where the Dayton Police Department has a

substation located.   Backup for Officer Hamby arrived within five

minutes of his request for assistance.

     {¶ 4} “When Officer Hamby walked to the truck, he observed

in the truck bed large, industrial type steel pipes.     Defendant

was the driver of the truck.   Defendant said and demonstrated to

Officer Hamby that Defendant had the truck’s rear license plate

in the vehicle, it simply was not attached to the rear of the

vehicle.

     {¶ 5} “The traffic stop occurred at 8:35 a.m.   Officer Hamby
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called Detective Jennifer Godsey five to seven minutes later to

investigate the pipes in the truck.     Officer Hamby testified that

the truck had been heading in the direction of A&B metal, a metal

recycling business located nearby, on the other side of the bridge,

on Washington Street.   He also stated that the area had problems

with metal thefts, though he had dealt primarily with metal thefts

from residential structures, not industrial/commercial property.

     {¶ 6} “The truck’s passengers had no identification, so

Officer Hamby had them exit the vehicle for further identification.

 Defendant remained in the truck.    Officer Hamby was in his cruiser

writing the traffic citations when Detective Godsey arrived.

Defendant was not under arrest at this point.   The scene was casual.

 The two passengers sat by a tree.      At one point, Defendant got

out of the truck and sat on the truck’s tailgate.

     {¶ 7} “Detective Godsey was assigned to the Dayton Police

Department’s metal theft unit.      She had been at A&B Metal working

when she was called to the scene of Officer Hamby’s traffic stop.

 Detective Godsey looked at the large, commercial grade type pipes

in Defendant’s truck.   The pipes had mud on them indicating that

they may have come from a work site.     The weight of the pipes was

appropriate for a commercial grade truck, not Defendant’s pickup

truck.

     {¶ 8} “Detective Godsey spoke with Defendant about the pipes
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to further investigate whether they were stolen contraband.

Detective Godsey was in plain clothes.        Defendant initially said

that the pipes came from a bridge repair in Eaton, but Defendant

could not identify the person giving him the pipes nor the location

of the bridge.    He also indicated that it was State of Ohio scrap,

and Detective Godsey knew from her work on the metal theft unit

that the State did not give away scrap, but instead recycled scrap

itself for the extra funds.      In this conversation with Detective

Godsey, Defendant eventually blurted out that he had taken the

pipes, without permission, from the bridge construction site near

the House of Bread, and that nobody else had been involved in taking

the pipes.     It had taken Detective Godsey five to seven minutes

to arrive on the scene, and she spoke with Defendant for another

ten to twelve minutes.

     {¶ 9} “Significantly, upon Defendant’s confession that he had

taken   the   pipes   without    permission   for   the   nearby   bridge

construction contract, probable cause arose to arrest Defendant

for possessing the contraband.      The open issue was the dollar value

of the pipes for determining if the theft was at a felony or

misdemeanor level.    Detective Godsey, however, drove to the bridge

construction site identified by Defendant and spoke with the

construction     manager   and    the   project     engineer.      Those

conversations confirmed that the pipes had been removed without
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permission from this bridge construction site.

     {¶ 10} “The project engineer, Mr. Sickman (phonetic) then went

to the scene of the traffic stop with invoices and purchase orders

which were used to confirm that the pipes came from the nearby

bridge construction project and that the value of the pipes exceeded

$500.00.   At that point, Defendant was informed that he was under

arrest for the pipes.         Defendant was arrested between 9:30 and

10:00 a.m.”

     {¶ 11} Makupson moved to suppress the evidence of the stolen

pipes as well as his confession.              He contended the evidence was

discovered by the police during a period of unlawful detention.

 In overruling the motion the trial court stated as follows:

     {¶ 12} “Here,     Officer      Hamby’s    observation         of   the    heavy

industrial pipes in Defendant’s truck bed, which was incongruent

with the scene in a number of ways (commercial grade pipes, non

commercial truck, truck occupants not in work uniforms, in vicinity

of A&B Metal, headed towards A&B Metal, with metal thefts being

a concern in the City of Dayton, for example), established

objectively   specific        and    articulable         grounds    for       further

investigation.       The traffic stop could be extended for that further

investigation.

     {¶ 13} “Here,     from   the    time     of   the    traffic       stop   until

Defendant’s non-custodial statements provided probable cause for
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arrest, 25 minutes to 31 minutes elapsed.   Defendant was not placed

under arrest, however, until the value of the pipes was confirmed,

resulting in further delay of approximately an additional hour.

     {¶ 14} “Under the unique circumstances presented here, the

Court finds that the police had a reasonable and articulable

suspicion of other criminal activity beyond the traffic stop.

The prolonged stop was justified for further investigation of the

circumstances.     Defendant gave statements indicating that he

possessed valuable property belonging to another.        The police

immediately took reasonable steps to verify Defendant’s statements

and determine more precisely the value of the stolen property.

That verification process took about an hour beyond Defendant’s

statements.      Thus, the Court finds that the officers acted

appropriately, the stop was not unduly nor unreasonably delayed,

and Defendant’s Motion to Suppress is OVERRULED.”

     {¶ 15} In two related assignments of error, Makupson argues

that the trial court erred as a matter of law and abused its

discretion in overruling his suppression motion.    Makupson argues

that Officer Hamby lacked reasonable suspicion to expand the

traffic stop to an investigation of whether the pipes in his truck

were stolen.   He contends that it is not unusual to transport raw

metal pipes in an open truck in the vicinity of a scrap metal yard.

     {¶ 16} For its part, the State argues that Officer Hamby did
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possess articulable suspicion that the pipes in Makupson’s truck

were stolen.    He notes that Hamby noted that the pipes were large,

heavy gauge, and appeared to be industrial pipe.           He explained

that this type of pipe usually comes from a factory or construction

site.   The State notes that Hamby explained that the pipes did

not   appear   to   be   residential   metal   typically   possessed   by

non-commercial scrappers.        Hamby also noted that Makupson’s

vehicle was headed in the direction of the A&B Metal Recycling

business.

      {¶ 17} The State also notes that shortly thereafter Detective

Godsey arrived at the scene of the stop and told Hamby that the

pipes were commercial grade industrial pipes.          The State notes

that Godsey spent two years with the specialized “metal theft”

unit of the Dayton Police Department.      Godsey told the trial court

she immediately became suspicious of Makupson’s conduct because

commercial pipes are usually transported in commercial grade

vehicles, not in the small pickup Makupson was driving.        She also

told the court that the dried mud on the pipes was consistent with

the pipes’ removal from a construction site.

      {¶ 18} We believe the State has the better of the arguments.

 Hamby properly stopped Makupson for the traffic violations.

Officer Hamby already had reasonable suspicion to believe Makupson

was transporting stolen industrial pipes.            In light of his
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suspicion,   it was reasonable for Hamby to call for the expertise

Officer Godsey could provide in the investigation.        The United

States Supreme Court has declined to impose a rigid time limitation

on Terry stops or to establish per se rules.      See United States

v. Sharpe, (1985), 470 U.S. 675.     In Sharpe, the Court held that

a twenty minute detention was not unreasonable where the police

diligently pursue a means of investigation that is likely to confirm

or dispel their suspicions quickly.      In State v. Cook, (1992),

65 Ohio St.3d 516, the Ohio Supreme Court held that fifteen minutes

was not too long where it elapsed while awaiting another officer

who could confirm whether the suspect was the person to be arrested.

     {¶ 19} The Supreme Court of Louisiana upheld a brief detention

of individuals suspected of stealing copper wire.      See State v.

Fauria, (La. 1981), 393 So.2d 688.   In that case, New Orleans Police

Officer Richard Dugas observed three defendants near a spool of

cable lying on the ground.    The officers observed that the three

men had a cable cutter and were transferring pieces of cable into

the rear of a pickup truck.   Recalling a complaint of a theft of

copper cable made earlier by the Harbor Police, Officer Dugas held

the men until a Harbor police officer could come to the scene and

verify whether the cable was similar to the cable reported stolen.

 A Harbor policeman responded to the scene shortly thereafter and

after identifying the stolen cable arrested the suspect.
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     {¶ 20} In the matter before us, the trial court found that 25-31

minutes elapsed between Hamby’s initial stop of Makupson’s truck

and the statement giving rise to probable cause for his arrest.

 Hamby did not approach Makupson’s truck until five minutes after

he stopped the vehicle so his backup officers could arrive on the

scene.   Hamby had probable cause to issue a traffic citation to

Makupson and this typically takes fifteen minutes.    Because Hamby

immediately became suspicious about the stolen property offense

he called the dispatcher to have Godsey come to the scene.     Hamby

testified she arrived within ten minutes after his call while he

was writing a number of traffic citations for Makupson.       Godsey

arrived at the scene and after Makupson admitted he had taken the

pipes without permission, she had probable cause to arrest him.

 Makupson’s admission was made during a period of lawful detention

and the pipes were likewise lawfully recovered and seized during

that lawful period.    The appellant’s assignments of error are

Overruled.

     {¶ 21} The judgment of the trial court is Affirmed.

FAIN, J. And HALL, J., concur.

(Hon. James A. Brogan, retired from the Second District Court of
Appeals, sitting by assignment of the Chief Justice of the Supreme
Court of Ohio.)



Copies mailed to:
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Laura M. Woodruff, Esq.
Joe Cloud, Esq.
Hon. Mary Lynn Wiseman
