State v. Chambers

2011 Ohio 1305

Opinion

[Cite as State v. Chambers, 2011-Ohio-1305.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-10-29

PLAINTIFF-APPELLEE,

v.

ISHMIAL K. CHAMBERS, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2009-CR-0217

Judgment Affirmed

Date of Decision: March 21, 2011

APPEARANCES:

Scott B. Johnson for Appellant

Alex K. Treece for Appellee Case No. 5-10-29

PRESTON, J.

{¶1} Defendant-appellant, Ishmial K. Chambers (hereinafter “Chambers”),

appeals the Hancock County Court of Common Pleas’ decision overruling his

motion to suppress evidence seized as the result of a traffic stop. We affirm.

{¶2} On October 19, 2009, Trooper Kurt Beidelschies of the Ohio State

Highway Patrol stopped Chambers on southbound U.S. Interstate 75 (“I-75”)

following a probable violation of R.C. 4511.33. (June 2, 2010 Tr. at 8-12). A

canine from the Hancock County Sheriff’s Office alerted on Chambers’ vehicle,

and a subsequent search of the vehicle’s trunk revealed several bags of marijuana

and a baseball-sized bag of cocaine. (Id. at 17-18).

{¶3} On October 20, 2009, the Hancock County Grand Jury indicted

Chambers on one count of possession of cocaine in violation of R.C. 2925.11(A).

(Doc. No. 1). On October 28, 2009, Chambers pled not guilty and was released on

bond. (Doc. No. 5). A pretrial was scheduled for November 6, 2009. (Id.).

{¶4} On November 6, 2009, the case was continued to allow Chambers

time to file a motion to suppress evidence seized as a result of the traffic stop.

(Doc. No. 10). On December 1, 2009, Chambers filed his motion to suppress

alleging that: (1) there was no probable cause, nor clear articulable facts to stop his

vehicle; (2) there was no probable cause, nor clear articulable facts to justify his

continued detention beyond the time necessary to issue a minor traffic citation; (3)

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there was no factual basis to justify his continued detention while a canine unit

was summoned; and (4) there was no probable cause for the search of his vehicle.

(Doc. No. 12).

{¶5} On June 2, 2010, the trial court held a hearing on the motion and,

afterwards, took the matter under advisement. (Doc. No. 49). On July 16, 2010,

the trial court held a hearing to announce its decision on the motion. (Doc. No.

61). The trial court overruled Chambers’ motion to suppress at the hearing, and

filed its decision noting the same on July 23, 2010. (Id.).

{¶6} On September 13, 2010, Chambers withdrew his previously tendered

plea of not guilty and entered a plea of no contest to the indictment. (Doc. No. 70).

Thereafter, the trial court found Chambers guilty and sentenced him to five (5)

years of incarceration. (Doc. No. 72).

{¶7} On October 1, 2010, Chambers filed a notice of appeal. (Doc. No. 95).

Chambers now appeals raising one assignment of error for our review.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO A DE MINIMUS TRAFFIC STOP WHERE THERE WAS NO PRIOR OR CONCURRENT EVIDENCE OF CRIMINAL ACTIVITY.

{¶8} In his first assignment of error, Chambers argues that the fact he

slowed his vehicle to fifty-seven miles per hour (57 M.P.H.) in a sixty-five mile-

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per-hour (65 M.P.H.) zone and that he was a person of color did not provide

Trooper Beidelschies with probable cause to stop his vehicle. Additionally,

Chambers argues that Trooper Beidelschies did not have further indicia of

criminal activity to justify his further expansion of the traffic stop, i.e. to request

canine assistance.

{¶9} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of

trier of fact and, as such, is in the best position to evaluate the evidence and the

credibility of witnesses. Id., citing State v. Mills (1992), 62 Ohio St.3d 357, 366,

582 N.E.2d 972.

{¶10} When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside, 2003-Ohio-5372, at ¶8. With respect to the trial

court’s conclusions of law, however, our standard of review is de novo, and we

must decide whether the facts satisfy the applicable legal standard. State v.

McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.

{¶11} Trooper Kurt Beidelschies of the Ohio State Highway Patrol, Findlay

Post 32, testified that he was parked in a marked cruiser facing southbound I-75

traffic while working from 11:00 p.m. to 7:00 a.m. on October 19, 2009. (June 2,

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2009 Tr. at 8-10). Trooper Beidelschies testified that he observed Chambers

rapidly slow down to fifty-seven miles per hour (57 M.P.H.) while passing his

parked cruiser traveling southbound on I-75, even though no other traffic was

around Chambers’ vehicle at the time. (Id. at 10). Trooper Beidelschies testified

that he pulled out behind Chambers’ vehicle and observed Chambers driving

extremely close (within a tire’s width) to the solid white edge line. (Id.). Trooper

Beidelschies further testified that Chambers drifted over the white edge line twice

by a tire’s width each time, so he initiated a traffic stop for a marked lanes

violation. (Id. at 10-11).

{¶12} Trooper Beidelschies approached Chambers’ vehicle, informed him

of the reason for the stop, and requested Chambers’ driver’s license, registration,

and proof of insurance. (Id.). Chambers provided Trooper Beidelschies his

license, but produced several rental agreements for the car instead of the

registration. (Id. at 12). Some of the rental agreements had Chambers’ name on

them and others did not, so Trooper Beidelschies requested that Chambers have a

seat in the front of his cruiser to sort through the paperwork. (Id. at 12-13).

Among the several agreements Chambers provided, Trooper Beidelschies located

a rental agreement from Hertz rental service in Patricia Board’s name that listed

Chambers as an additional driver. (Id. at 13). Trooper Beidelschies contacted

dispatch in order to verify the rental agreement. (Id.). Trooper Beidelschies

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testified that Chambers informed him that he had left Owensboro, Kentucky that

day to drive to Detroit, Michigan to drop off his nephew at his grandmother’s

house, and that he was returning to Owensboro, Kentucky. (Id. at 14). Chambers

also told Trooper Beidelschies that he rented the car to drive from Kentucky to

Michigan to drop off his nephew because his car was broken down and had been

overheating. (Id.). Trooper Beidelschies testified that he found this “confusing”

given that the rental agreement covered several days (Oct. 16-20), and Chambers

had expressed to him how extremely expensive it was to rent vehicles. (Id.).

Trooper Beidelschies also testified that he was “confused” why the car was rented

by individuals associated with Chambers long before October 16, 2009. (Id. at 15).

{¶13} Trooper Beidelschies testified that he ran a LEADS check on

Chambers’ driver’s license, and that it can take longer to process an out-of-state

license, such as Chambers’ Kentucky driver’s license. (Id.). Trooper Beidelschies

further testified that he talked with Travar Board, Chambers’ step-son and a

passenger in the vehicle, about their travel. (Id. at 12, 14, 16). Board told Trooper

Beidelschies that he had been in Michigan for about a week for a funeral, and that

his aunt had driven him from Kentucky to Michigan. (Id. at 16). Board told

Trooper Beidelschies that he did not know how Chambers arrived in Michigan.

(Id.). Trooper Beidelschies testified that Board’s story conflicted with Chambers’

story, because Chambers indicated that Board accompanied him from Kentucky to

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Michigan to drop off his nephew. (Id.). Trooper Beidelschies also testified that

Chambers appeared nervous when he was talking with him in the cruiser, and that

Board was even more nervous than Chambers. (Id.). When Board reached his

hand out to retrieve his driver’s license, his hand was visibly shaking and his voice

was shaky, according to Trooper Beidelschies. (Id.). After discovering the two

conflicting stories and witnessing this nervous behavior, Trooper Beidelschies

contacted the Hancock County Sheriff’s Office and requested canine assistance.

(Id. at 17).

{¶14} Deputy Smith and canine, Becky, arrived approximately five (5)

minutes later and alerted on Chambers’ vehicle. (Id. at 17-18). At that point in

time, Trooper Beidelschies explained to Chambers and Board that they were under

investigative detention and placed them in the back seat of his cruiser. (Id. at 18).

Trooper Beidelschies testified that they located numerous bags of marijuana and a

baseball-sized bag of cocaine in a bag of dirty clothes in the vehicle’s trunk. (Id.).

At that time, Trooper Beidelschies returned to his cruiser and informed Chambers

and Board of their Miranda rights, and asked the two of them about the drugs.

(Id.). At first, both men denied knowledge of the drugs, but Chambers later

admitted that the drugs belonged to him, and he did not want his step-son, Board,

to get into trouble for what he had inside the vehicle. (Id.). Trooper Beidelschies

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testified that it took approximately fifteen (15) minutes from the time he stopped

Chambers’ vehicle until the canine alerted. (Id. at 19).

{¶15} On cross-examination, Trooper Beidelschies testified that his cruiser

was facing west so he could see southbound traffic, and he had his spotlight

illuminating the roadway. (Id. at 19-20). Trooper Beidelschies testified that the

purpose of using the spotlight was to determine the number of occupants in the

vehicle for officer safety. (Id. at 20). He further testified that the use of the

spotlight was a standard operating procedure. (Id. at 25). Trooper Beidelschies

could not recall how many leasing companies were on the agreements that

Chambers provided, nor could he recall the number of lease agreements that

Chambers provided. (Id. at 20-21). Trooper Beidelschies also could not recall

whether Chambers’ driving status came back valid prior or subsequent to his call

for canine assistance. (Id. at 21). He did not copy all of the lease agreements but

only the valid lease agreement, which he identified and which was marked as

defendant’s exhibit A. (Id. at 22, 25, 40). Trooper Beidelschies testified that

Chambers’ speed was not the reason for the stop, but that Chambers’ rapid

deceleration was an indication of possible impairment, which is why he decided to

follow Chambers. (Id. at 26, 27). Trooper Beidelschies testified that he did not

witness Chambers’ vehicle weaving from side to side, fishtailing, or driving

erratically, nor did he smell an odor of alcoholic beverage upon Chambers or

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witness any signs of impairment during the stop. (Id. at 27). Trooper Beidelschies

testified that he followed Chambers for approximately two (2) miles and witnessed

Chambers drift over the white edge line by a tire’s width twice. (Id. at 28). He

further testified that he did not observe any drugs or drug paraphernalia in plain

sight in the vehicle when he shined his light into Chambers’ vehicle. (Id. at 29-30).

Trooper Beidelschies testified that the video recording system for his cruiser was

not working that evening. (Id. at 32). When asked whether dispatch informed him

that the rental agreement from Hertz was valid prior to him calling for canine

assistance, Trooper Beidelschies testified, “[p]erhaps, but I doubt it, because

typically * * * there is a delay between the time our dispatch calls Hertz and Hertz

is able to pull up the information.” (Id. at 35).

{¶16} On re-direct examination, Trooper Beidelschies testified that he

initiates between ten to fifteen (10-15) traffic stops each work night, each

averaging between fifteen to twenty (15-20) minutes in duration. (Id. at 38).

Trooper Beidelschies testified that, generally, numerous rental agreements,

multiple occupants, nervous behavior by occupants of a vehicle, and conflicting

stories all can prolong the duration of a traffic stop. (Id. at 38-39).

{¶17} Hancock County Sheriff’s Deputy Fred Smith testified that he was

working on October 19, 2009 with his canine, Becky, who is trained and certified

for detection of marijuana, cocaine, methamphetamine, heroin, and their

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derivatives. (Id. at 41-43). Deputy Smith testified that canine assistance was

requested for southbound I-75 at mile marker 155. (Id. at 43-44). Deputy Smith

testified that he arrived at the scene six (6) minutes after receiving the dispatch.

(Id. at 44). He testified that his canine, Becky, indicated on the passenger side rear

door of Chambers’ vehicle before Becky even made it around the entire vehicle.

(Id. at 44-45). Deputy Smith further testified that Trooper Beidelschies discovered

marijuana and cocaine in the trunk of Chambers’ vehicle during the search. (Id. at

45). On cross-examination, Deputy Smith testified that he has been a dog handler

since 2001, and he was certified with Becky in 2005. (Id. at 46). Deputy Smith

testified that there have been “very few” times when Becky has falsely indicated,

only when a distraction odor with his scent or somebody’s scent that Becky would

be familiar with was used. (Id. at 47-48). On re-direct, Deputy Smith testified that

he received the call for canine assistance at 2:02 a.m. and arrived on scene at 2:08

a.m. (Id. at 49).

{¶18} We now turn to Chambers’ arguments. Chambers first argues that

the fact he slowed his vehicle to fifty-seven miles per hour (57 M.P.H.) in a sixty-

five mile-per-hour (65 M.P.H.) zone did not provide Trooper Beidelschies with

probable cause to stop his vehicle.

{¶19} In order to constitutionally stop a vehicle, an officer must, at a

minimum, have either: (1) a reasonable suspicion, supported by specific and

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articulable facts, that criminal behavior has occurred, is occurring, or is imminent;

or (2) a reasonable suspicion, supported by specific and articulable facts, that the

vehicle should be stopped in the interests of public safety. State v. Moore, 3d Dist.

No. 9-07-60, 2008-Ohio-2407, ¶10, citing State v. Andrews, 3d Dist. No. 2-07-30,

2008-Ohio-625, ¶8, citing State v. Chatton (1984), 11 Ohio St.3d 59, 61, 463

N.E.2d 1237, certiorari denied by 469 U.S. 856, 105 S.Ct. 182, 83 L.Ed.2d 116;

State v. Purtee, 3d Dist. No. 8-04-10, 2006-Ohio-6337, ¶9, citing State v. Norman

(1999), 136 Ohio App.3d 46, 53-54, 735 N.E.2d 453.

{¶20} An officer’s “reasonable suspicion” is determined based on the

totality of the circumstances. Moore, 2008-Ohio-2407, at ¶11, citing Andrews,

2008-Ohio-625, at ¶8, citing State v. Terry (1998), 130 Ohio App.3d 253, 257, 719

N.E.2d 1046, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271. ‘“Specific and articulable facts’ that will justify an investigatory stop by

way of reasonable suspicion include: (1) location; (2) the officer’s experience,

training or knowledge; (3) the suspect’s conduct or appearance; and (4) the

surrounding circumstances.” Purtee, 2006-Ohio-6337, at ¶9, citing State v.

Gaylord, 9th Dist. No. 22406, 2005-Ohio-2138, ¶9, citing State v. Bobo (1988), 37

Ohio St.3d 177, 178-79, 524 N.E.2d 489.

{¶21} Trooper Beidelschies testified that he began to follow Chambers after

he noticed Chambers decelerate very rapidly as Chambers approached his parked

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cruiser, because he was concerned that Chambers was driving impaired. (June 2,

2010 Tr. at 26-27). Trooper Beidelschies further testified that he did not stop

Chambers because of his speed, but because Chambers crossed over the white

edge line twice. (Id. at 10-11). “[A] traffic stop is constitutionally valid when a

law-enforcement officer witnesses a motorist drift over the [right white edge line]

in violation of R.C. 4511.33, even without further evidence of erratic or unsafe

driving.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,

¶25. See, also, State v. Burwell, 3d Dist. No. 12-09-06, 2010-Ohio-1087, ¶11;

State v. Anthony, 3d Dist. No. 13-09-26, 2009-Ohio-6717, ¶¶12-14. After

witnessing Chambers cross over the white edge line, Trooper Beidelschies had

probable cause, and thus a reasonable articulable suspicion, that Chambers

violated R.C. 4511.33; and therefore, the stop was constitutionally valid. Mays at

¶¶21, 24; Burwell at ¶11; Anthony at ¶13

{¶22} Chambers also argues that the fact that he was a person of color did

not provide Trooper Beidelschies with probable cause to initiate the traffic stop.

Although we generally agree with Chambers’ proposition of law, the trial court, as

trier of fact, specifically found that the record lacked sufficient evidence that

Chambers’ race played a role in initiating the traffic stop. (July 16, 2010 Tr. at 18-

19). Additionally, even if this Court were to assume that Trooper Beidelschies

initiated the traffic stop based upon Chambers’ race, that fact does not affect the

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reasonableness of the stop for Fourth Amendment purposes. As the Ohio Supreme

Court has noted, “[w]here a police officer stops a vehicle based on probable cause

that a traffic violation has occurred or was occurring, the stop is not unreasonable

under the Fourth Amendment to the United States Constitution even if the officer

had some ulterior motive for making the stop[.]” Dayton v. Erickson (1996), 76

Ohio St.3d 3, 665 N.E.2d 1091, syllabus. See, also, Whren v. U.S. (1996), 517

U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (“We of course agree with

petitioners that the Constitution prohibits selective enforcement of the law based

on considerations such as race. But the constitutional basis for objecting to

intentionally discriminatory application of laws is the Equal Protection Clause, not

the Fourth Amendment. Subjective intentions play no role in ordinary, probable-

cause Fourth Amendment analysis.”); U.S. v. Bullock (C.A. 4, 1996), 94 F.3d 896,

899 (law enforcement’s alleged racial motivation for traffic stop is irrelevant to the

legitimacy of the stop under Fourth Amendment); U.S. v. Navarro-Camacho (C.A.

6, 1999), 186 F.3d 701, 705 (same); U.S. v. Robinson (C.A. 7, 2003), 314 F.3d

905, 907 (same); U.S. v. Gomez Serena (C.A. 8, 2004), 368 F.3d 1037, 1041

(same); U.S. v. Adkins (C.A. 10, 2001), 1 Fed. Appx. 850 (same); State v. Harden,

2nd Dist. No. 19880, 2004-Ohio-664, ¶11 (same). Since Trooper Beidelschies had

probable cause to conclude that Chambers violated R.C. 4511.33, the traffic stop

was reasonable, and Trooper Beidelschies’ ulterior motives, if any, are irrelevant.

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Furthermore, even if Chambers’ race motivated Trooper Beidelschies to initiate

the traffic stop, suppression of the evidence seized during the traffic stop is not an

available remedy. U.S. v. Nichols (C.A. 6, 2008), 512 F.3d 789, 794, overruled on

other grounds by U.S. v. Buford (C.A. 6, 2011), ___ F.3d ___, 2011 WL 447048.

See, also, U.S. v. Chavez (C.A. 5, 2002), 281 F.3d 479, 486-87 (suppression of

evidence is not an available remedy for violations of Fifth or Fourteenth

Amendments). For these reasons, we must reject Chambers’ argument that the

trial court erred by overruling his motion to suppress based upon alleged racial

profiling.

{¶23} Finally, Chambers argues that Trooper Beidelschies did not have

further indicia of criminal activity to justify his further expansion of the traffic

stop, i.e. to request canine assistance.

{¶24} “‘[W]hen detaining a motorist for a traffic violation, an officer may

delay a motorist for a time period sufficient to issue a ticket or a warning.’” State

v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶12, quoting

State v. Keathley (1988), 55 Ohio App.3d 130, 131, 562 N.E.2d 932. See, also,

State v. Whitman, 184 Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 293, ¶11.

“This measure includes the period of time sufficient to run a computer check on

the driver’s license, registration, and vehicle plates.” Batchili at ¶12, citing State v.

Bolden, 12th Dist. No. CA2003-03-007, 2004-Ohio-184, ¶17, citing Delaware v.

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Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660. Further, “‘[i]n

determining if an officer completed these tasks within a reasonable length of time,

the court must evaluate the duration of the stop in light of the totality of the

circumstances and consider whether the officer diligently conducted the

investigation.’” Batchili at ¶12, quoting State v. Carlson (1995), 102 Ohio App.3d

585, 598-99, 657 N.E.2d 591, citing State v. Cook (1992), 65 Ohio St.3d 516, 521-

22, 605 N.E.2d 70, and U.S. v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84

L.Ed.2d 605.

{¶25} “The use of a drug-detection dog does not constitute a “search,” and

an officer is not required, prior to a dog sniff, to establish either probable cause or

a reasonable suspicion that drugs are concealed in a vehicle.” Whitman, 2009-

Ohio-5647, at ¶9, citing Illinois v. Caballes (2005), 543 U.S. 405, 409, 125 S.Ct.

834, 160 L.Ed.2d 842; United States v. Place (1983), 462 U.S. 696, 707, 103 S.Ct.

2637, 77 L.Ed.2d 110; Carlson, 102 Ohio App.3d at 594; United States v. Seals

(C.A.5, 1993), 987 F.2d 1102, 1106. A law enforcement officer needs no

suspicion or cause to “run the dog around” a stopped vehicle if he does it

contemporaneously with the legitimate activities associated with the traffic

violation. Whitman, 2009-Ohio-5647, at ¶9, citing Caballes, 543 U.S. at 409.

{¶26} The record herein demonstrates that Chambers’ vehicle was lawfully

detained based upon probable cause of a violation of R.C. 4511.33. The record

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herein further demonstrates that Trooper Beidelschies requested canine assistance

while he was verifying Chambers’ authorization to drive the rental vehicle from

the multiple Hertz rental agreements Chambers provided him and checking

Chambers’ driver’s license. Therefore, Trooper Beidelschies was permitted to run

the canine around the Chambers’ vehicle without any reasonable suspicion that

drugs were concealed in the vehicle, contrary to Chambers’ argument. Whitman,

2009-Ohio-5647, at ¶9, citations omitted. Furthermore, the record reflects that the

canine arrived on the scene five to six (5-6) minutes after Trooper Beidelschies

requested canine assistance, and the total duration from the initial traffic stop to

the canine alerting was fifteen (15) minutes. Although not specifically mentioned

by the trial court, the five-to-six-minute wait for the canine to arrive was not

unreasonable. See, e.g., State v. French, 9th Dist. No. 24252, 2009-Ohio-2342,

¶18 (10 minute wait was reasonable); State v. Ramirez, 9th Dist. No. 04CA0024-

M, 2004-Ohio-6541, ¶¶11-12 (26 minute wait was reasonable); State v. French

(1995), 104 Ohio App.3d 740, 748, 663 N.E.2d 367 (45 minute wait was

reasonable). The trial court did conclude that a fifteen-minute traffic stop was

reasonable in light of the multiple rental agreements Chambers presented and the

time needed to verify whether Chambers had a lawful right to operate the rented

motor vehicle at the time. (June 16, 2010 Tr. at 12). We agree with the trial court

that fifteen (15) minutes was not an unreasonable amount of time to detain

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Chambers for the traffic stop. In fact, Trooper Beidelschies testified that traffic

stops average between fifteen to twenty (15-20) minutes each. (June 2, 2009 Tr. at

38). See e.g. State v. Bordieri, 6th Dist. No. L-04-1321, 2005-Ohio-4727, ¶21,

citing State v. Cook (1992), 65 Ohio St.3d 516, 605 N.E.2d 70 (15 minutes

reasonable). See also, Sharpe, 470 U.S. at 687. (20 minute detention reasonable

when investigation was diligent and reasonable). For all these reasons, we must

reject Chambers’ argument that the trial court erred in overruling his motion to

suppress evidence because of an impermissible lengthy detention.

{¶27} Chambers’ assignment of error is, therefore, overruled.

{¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI, J., concurs.

ROGERS, P.J., concurs in Judgment Only.

/jnc

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