[Cite as State v. Haynes, 2011-Ohio-5020.]




           IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 2011CA10

vs.                                               :    T.C. CASE NO. 2010CR218

BENNY E. HAYNES, JR.                               :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                Rendered on the 30th day of September, 2011.

                                       . . . . . . . . .

Nick A. Selvaggio, Pros. Attorney; Richard Houghton, Asst. Pros.
Attorney, Atty. Reg. No. 0082796, 200 N. Main Street, Urbana, OH
 43078
     Attorneys for Plaintiff-Appellee

Darrell L. Heckman, Atty. Reg. No. 0002389, One Monument Square,
Suite 200, Urbana, OH 43078
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant,             Benny       Haynes,     Jr.,   appeals   from   his

conviction and sentence for possession of heroin.

        {¶ 2} Defendant was indicted on one count of trafficking in

heroin, between one and five grams, in the vicinity of a school
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or juvenile, R.C. 2925.03(A)(2), (C)(6)(c), and one count of

possession of heroin, between one and five grams, R.C. 2925.11(A),

(C)(6)(c).   Defendant filed a motion to suppress the evidence,

arguing that police impermissibly extended the duration of his

traffic stop while waiting for a drug sniffing dog to be brought

to the scene.   The trial court overruled Defendant’s motion to

suppress, finding that police had sufficient reasonable suspicion

of criminal drug activity to justify prolonging the traffic stop

beyond the time normally required to complete a traffic stop and

issue a citation.

     {¶ 3} Defendant was found not guilty of trafficking in heroin

but guilty of possessing heroin, following a jury trial.   The trial

court sentenced Defendant to three years of community control

sanctions, a two hundred dollar fine, and a one year driver’s

license suspension.

     {¶ 4} Defendant timely appealed to this court, challenging

only the trial court’s decision overruling his motion to suppress

the evidence.

     ASSIGNMENT OF ERROR

     {¶ 5} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS EVIDENCE.”

     {¶ 6} When considering a motion to suppress, the trial court

assumes the role of the trier of facts and is therefore in the
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best position to resolve factual questions and evaluate the

credibility of the witnesses.     State v. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665.    Consequently, an appellate court must accept

the trial court’s findings of fact if they are supported by

competent, credible evidence.    Id.   Accepting those facts as true,

the appellate court must then independently determine, without

deference to the trial court’s conclusion, whether those facts

satisfy the applicable legal standard.      Id.

     {¶ 7} The facts in this case are, for the most part, contained

within the following stipulation that the parties entered into

and the trial court admitted at the suppression hearing:

     {¶ 8} “1.    On July 22, 2010 at approximately 6:04 p.m.,

Defendant Benny E. Haynes, Jr. (“Haynes”) drove a 1999 Chevrolet

Prizm bearing Ohio registration EAQ2697 into Goshen Park in

Mechanicsburg, Ohio.

     {¶ 9} “2.    The passenger in the vehicle driven by Haynes was

Joshua Phillips.

     {¶ 10} “3.   On July 22, 2010 at approximately 6:04 p.m.,

Sergeant Eck of the Mechanicsburg Police Department drove his

police cruiser into the upper-area of Goshen Park, on an unrelated

assignment.

     {¶ 11} “4.   On July 22, 2010 at approximately 6:04 p.m.,

Sergeant Eck observed the vehicle driven by Haynes traveling
                                                                    4

through Goshen Park.

     {¶ 12} “5.    After initial observation of Haynes’s vehicle,

Sergeant Eck observed Haynes’s vehicle travel around the back of

Goshen Park.

     {¶ 13} “6.    The posted speed limit within Goshen Park is ten

(10) miles per hour.

     {¶ 14} “7.    Sergeant Eck visually observed Haynes’s vehicle

as it was traveling around the back driveway of Goshen Park, and

believed it was exceeding the posted speed limit.

     {¶ 15} “8.    Sergeant Eck then initiated a traffic stop of

Haynes’s vehicle.

     {¶ 16} “9.    Sergeant Eck, upon exiting his police cruiser and

approaching Haynes’s vehicle on foot, visually identified the

driver of the 1999 Chevrolet Prizm as Benny E. Haynes, Jr., and

the front-seat passenger as Joshua Phillips.

     {¶ 17} “10.    After asking for the occupant’s identifications,

but before any further questioning, Sergeant Eck called for a ‘drug

sniffing’ K-9 unit to start towards the location of the traffic

stop.

     {¶ 18} “11.    Sergeant Eck asked Haynes and Phillips what they

were doing at Goshen Park.

     {¶ 19} “12.    Sergeant Eck then asked Haynes whether Haynes was

at the Park to meet someone or play on the playground.
                                                                    5

     {¶ 20} “13. Sergeant Eck then asked Haynes whether there was

anything he needed to be concerned about in the vehicle, to which

Haynes replied ‘no.’

     {¶ 21} “14.   Sergeant Eck then asked Haynes and Phillips if

there were any drugs, illegal narcotics, guns, or knives inside

the vehicle, to which Haynes and Phillips replied ‘no.’

     {¶ 22} “15.   Sergeant Eck then notified Haynes that a K-9 unit

was en route, and that if narcotics were inside the vehicle, the

K-9 unit would find them.

     {¶ 23} “16.   Sergeant Eck then asked Haynes if he ever had

illegal narcotics inside the vehicle, to which Haynes first replied

‘no,’ but then stated that an individual named Brad Randolph had

once smoked marihuana in the vehicle, but that there were no drugs

or narcotics inside the vehicle.

     {¶ 24} “17.   Sergeant Eck’s suspicions were raised as a result

of Haynes’s and Phillips’s responses to the Sergeant’s questions.

     {¶ 25} “18.   On July 22, 2010, at approximately 6:33 p.m., and

twenty-nine (29) minutes after the initial traffic stop, Madison

County K-9 Deputy Nick Lisska arrived at the scene of the traffic

stop with K-9 unit ‘Dolph.’

     {¶ 26} “19.   Deputy Lisska and ‘Dolph’ performed a walk around

the exterior of Haynes’s vehicle.

     {¶ 27} “20.   ‘Dolph’ indicated the presence of narcotics inside
                                                                     6

the vehicle during the walk around.

     {¶ 28} “21.   Haynes and Phillips were then detained, frisked

for weapons, and placed in the back seat of Sergeant Eck’s patrol

cruiser.

     {¶ 29} “22.   A search of the vehicle’s interior ensued; on the

rear passenger-side floorboard was found a previously-opened green

bottle labeled ‘Spring Valley St. John’s Wort.’

     {¶ 30} “23.   Inside the green bottle labeled ‘Spring Valley

St. John’s Wort’ were thirty-one (31) capsules that had been filled

with heroin.

     {¶ 31} “24.   Haynes did not consent to the search of the

vehicle.

     {¶ 32} “25.   Sergeant Eck did not issue a traffic citation for

Haynes’s visually-observed violation of the Goshen Park speed

limit.

     {¶ 33} “26.   A traffic citation, had one been issued by Sergeant

Eck, would have been completed within fifteen (15) minutes or less.”

     {¶ 34} In addition to the above stipulation, the State presented

one witness at the suppression hearing, Mechanicsburg Police Chief

Samuel Faulkner.    Chief Faulkner testified that police considered

Defendant’s vehicle a vehicle of interest with respect to possible

drug activity based upon various incidents, including police seeing

that vehicle on June 28, 2010, at 230 Main Street in Mechanicsburg,
                                                                             7

a place where people live who are involved in drug activity, and

also police seeing that vehicle on July 21, 2010 in Pleasant View

Estates, another location where people live that have known drug

involvement.

       {¶ 35} Defendant concedes in his brief that the initial traffic

stop by Sergeant Eck for speeding was lawful.             Dayton v. Erickson,

76 Ohio St.3d 3, 1996-Ohio-431.               Defendant complains         that

Sergeant Eck impermissibly prolonged or extended the duration of

this traffic stop in order to allow a drug sniffing canine to be

brought to the scene, and that resulted in an unlawful seizure

that violated Defendant’s Fourth Amendment rights.                  Therefore,

the evidence seized by police as a result of that unlawful seizure

must be suppressed.

       {¶ 36} In   State    v.   Johnson,    Montgomery    App.   No.   20624,

2005-Ohio-1367, we stated:

       {¶ 37} “{¶ 18} The duration of a traffic stop may last no longer

than is necessary to resolve the issue that led to the stop and

issue a traffic citation, absent specific and articulable facts

that demonstrate a reasonable suspicion of criminal activity other

than   the   traffic       violation   and   therefore    justify    continued

detention. State v. Chatton (1984), 11 Ohio St.3d 59, 463 N.E.2d

1237; State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762,

1997–Ohio–343; State v. Ramos, 155 Ohio App.3d 396, 801 N.E.2d
                                                                  8

523, 2003–Ohio–6535. When a law enforcement officer stops a vehicle

for a traffic violation, the officer may detain the motorist for

a period of time sufficient to issue a traffic citation and perform

routine procedures such as a computer check on the motorist's

driver's license, registration and vehicle plates. Ramos, supra;

State v. Carlson (1995), 102 Ohio App.3d 585, 598–599, 657 N.E.2d

591. These investigative duties must be performed diligently. Id.

     {¶ 38} “{¶ 19} A canine sniff by a drug detection dog of the

exterior of a vehicle that is lawfully detained for a traffic stop

does not implicate Fourth Amendment rights. Illinois v. Caballes

(Jan. 24, 2005), 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d842; State

v. Ramos, supra; State v. Heard (March 7, 2003), Montgomery App.

No. 19323, 2003–Ohio–1047. Police are not required to have

reasonable suspicion that a vehicle contains drugs prior to

conducting a canine sniff of the vehicle during a traffic stop

so long as the duration of the traffic stop is not extended beyond

what is reasonably necessary to resolve the issue that led to the

stop and issue a traffic citation. Ramos, supra. If, however, the

duration of the traffic stop is extended in order to bring a drug

sniffing dog to the scene, police must have a reasonable suspicion

that the vehicle contains drugs in order to justify the continued

detention. Id.”

     {¶ 39} The trial court found, and we agree, that the duration
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of this traffic stop was extended beyond the time necessary to

complete a traffic citation in order to allow a drug sniffing canine

to be brought to the scene.     In that regard the parties stipulated

that a traffic citation would take fifteen minutes or less,

Stipulation 26, and that the drug sniffing canine arrived on the

scene   twenty-nine   minutes    after   the   initial   traffic   stop,

Stipulation 18.       Thus, the continued/prolonged detention of

Defendant was lawful only if Sergeant Eck had a reasonable suspicion

that Defendant’s vehicle contained drugs.        Johnson.

     {¶ 40} The trial court found, and the State argues, that

Sergeant Eck had a reasonable suspicion that Defendant was engaged

in illegal drug activity or had illegal drugs in his vehicle, which

justified continuing Defendant’s detention while waiting for a

drug sniffing dog to arrive, because: (1) Defendant and his vehicle

were matters of interest to law enforcement investigating possible

drug activity, (2) Defendant and his passenger exhibited nervous

behavior, (3) Defendant admitted that a person at some unspecified

time in the past had smoked marijuana in the vehicle but Defendant

stated that the vehicle did not contain any drugs, and (4) Sergeant

Eck’s suspicions were raised as a result of Defendant’s and his

passenger’s responses to Eck’s questions.

     {¶ 41} In State v. Maldonado (Sept. 24, 1993), Montgomery App.

No. 13530, this court observed:
                                                                  10

     {¶ 42} “Law enforcement officers are authorized to briefly

detain and question persons whom they reasonably suspect are

involved in criminal activity in order to investigate and resolve

those suspicions. Terry v. Ohio, supra. A suspicion is not

reasonable merely because the officer possessed it; it must also,

and necessarily, be one which a reasonable officer would maintain

in the circumstances involved. Id. In any later judicial review,

all the facts and circumstances before the officer must be given

their due weight, and deference must be given to the officer's

knowledge and experience when he or she acted on them. State v.

Freeman (1980), 64 Ohio St.2d 291. Nevertheless, the officer must

be able to articulate the grounds for the suspicion if it is later

challenged. The officer may not rely on mere good faith or

inarticulate hunches. U.S. v. Porter (8th Cir., 1987), 818 F.2d

679, cert. den. 484 U.S. 1006 (1984). He must be able to articulate

grounds from which a reasonable officer would infer that some

specific criminal misconduct was afoot. Id.

     {¶ 43} “*     *     *

     {¶ 44} “Since the decision of the Supreme Court in State v.

Bobo (1988), 37 Ohio St.3d 177, police officers have more frequently

cited the reputation of a vicinity as a ‘high crime area’ when

articulating their reasons for a Terry stop performed there. This

may reflect the greater law enforcement focus on street-level drug
                                                                 11

crime, which is usually subtle in its methods and often violent

in its consequences. However, those idiosyncracies do not diminish

the requirements of the Fourth Amendment or its interpretation

in Terry. The facts and circumstances before the officer must yet

reasonably suggest that some specific criminal misconduct is afoot.

That specificity requirement focuses on the criminal character

of the act, not on its setting. Acts that are essentially neutral

or ambiguous do not become specifically criminal in character

because they occur in a high crime area. Acts that are not

specifically criminal in character do not become criminal because

they are inapposite to their setting and, therefore, ‘suspicious.’

The setting can inform the officer's judgment, but it does not

make the act criminal. In order to detain an individual to

investigate for crime, some nexus between the individual and

specific criminal conduct must reasonably exist and must be

articulated by the officer.”

     {¶ 45} The first factor, that Defendant and his vehicle were

“matters of interest” to law enforcement investigating possible

drug activity, is based on the fact that, on several occasions

prior to this traffic stop, Defendant’s vehicle had been observed

by police at locations where people who are involved in drug

activity live, and Defendant had been seen in the company of people

who are involved in drug activity.     However, Defendant had no
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record or history of prior involvement with drugs, and not everyone

who sometimes associates with drug users uses drugs themselves.



     {¶ 46} Defendant’s presence at locations where drug activity

takes place, and his association with people who are involved with

that activity, while one factor to be considered in the totality

of the facts and circumstances, is not itself indicative of any

specific criminal activity on Defendant’s part. A matter of

interest, whatever that means, merely creates the basis for an

investigation.   It does not further permit a detention for purpose

of that investigation, absent reasonable and articulable suspicion

of specific criminal activity.      Id.   It is that element that

distinguishes a valid Terry stop from the “inchoate hunch” that

Terry rejects as justifying a search or seizure.

     {¶ 47} The second factor, that Defendant and his passenger

exhibited nervous behavior, is not particularly indicative of

criminal conduct, and is often an innocent but common reaction

to being stopped by police.   The degree of nervousness exhibited

by Defendant is unknown in this case.

     {¶ 48} The third factor, that Defendant stated that a person

at some unknown time in the past had smoked marijuana in the vehicle

but that the vehicle did not now contain any drugs, does not

demonstrate that Defendant, at the time of the traffic stop, was
                                                                  13

engaged in any illegal drug activity and, in any event, is too

stale to be of any value.

     {¶ 49} With respect to the final factor, that Sergeant Eck’s

suspicions were raised as a result of Defendant’s and his

passenger’s responses to Eck’s questions, we have examined the

questions Sergeant Eck asked, as reflected in this record,

concerning whether there were any drugs, guns, knives or anything

else in the vehicle Eck needed to be concerned about, as well as

Defendant’s and his passenger’s responses, and we find nothing

that reasonably would raise any suspicion that Defendant was then

engaging in illegal drug activity at that time.

     {¶ 50} The totality of the facts and circumstances is not

sufficient as a matter of law to give rise to a reasonable suspicion

that Defendant was engaged in some specific criminal misconduct,

in this instance drug activity.       Accordingly, the continued

detention of Defendant while waiting for a drug sniffing canine

to arrive on the scene constituted an unlawful seizure, and the

evidence police subsequently discovered in Defendant’s vehicle

as a result of that illegal seizure should have been suppressed

by the trial court.

     {¶ 51} Defendant’s assignment of error is sustained.       The

judgment of the trial court will be reversed and this matter

remanded to the trial court for further proceedings consistent
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with this opinion.

FAIN, J., And FROELICH, J., concur.

Copies mailed to:

Richard Houghton, Esq.
Darrell L. Heckman, Esq.
Hon. Roger B. Wilson
