State v. Kelly

937 N.E.2d 149, 188 Ohio App. 3d 842
CourtOhio Court of Appeals
DecidedAugust 2, 2010
DocketNo. CA2009-10-252
StatusPublished
Cited by19 cases

This text of 937 N.E.2d 149 (State v. Kelly) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelly, 937 N.E.2d 149, 188 Ohio App. 3d 842 (Ohio Ct. App. 2010).

Opinion

Young, Presiding Judge.

{¶ 1} Defendant-appellant, Otis Kelly, appeals his conviction in the Butler County Court of Common Pleas for one count of possession of cocaine and the accompanying specification and forfeitures. We affirm the decision of the trial court.

{¶ 2} Detective Mike Hackney of the Butler County Sheriffs Office, Drug and Vice Investigations Unit, received information from several confidential informants that Sudinia Johnson had recently sold several kilos of cocaine and that he had arranged to pick up between seven and ten additional kilos for sale and distribution. Hackney and two other drug-enforcement agents performed a trash pull at Johnson’s home address, and also placed a global-positioning system (“GPS”) on Johnson’s van. As a result of the trash pull, Hackney found multiple receipts for gas purchases within the same day from stations in the Chicago area and Cincinnati.

{¶ 3} Hackney continually tracked the GPS, and on the Tuesday following the trash pull, the GPS indicated that Johnson was located at a shopping center near Chicago. Hackney made several attempts to contact Chicago law enforcement to verify Johnson’s location. A worker from the Butler County Sheriffs Office indicated that his brother, Rudy Medellin, lived in the Chicago area and was familiar with the shopping center at which Johnson was located. Hackney contacted Medellin, a retired immigration and customs enforcement officer, and asked him to confirm that Johnson’s van was in fact located at the shopping center in Chicago.

{¶ 4} Medellin located Johnson’s van at the exact location indicated on the GPS tracker and began relaying information to Hackney regarding two men inside the vehicle. Medellin continued his surveillance, and eventually followed the van to a [845]*845residence. Medellin saw the two men exit the van and enter the home and later saw one man exit the house carrying a box. The man, later identified as Johnson, got into the van and drove away. At the same time, the other man, later identified as Kelly, pulled out of the garage in a Ford Taurus that had Ohio plates. Medellin continued to follow Johnson’s van and the Ford until the vehicles reached the Butler County area.

{¶ 5} As Medellin followed the vehicles, Hackney communicated with law-enforcement officials along the route to coordinate efforts to make traffic stops on both vehicles. At some point, the two vehicles separated, and Medellin continued to follow Kelly, while the GPS continued to track Johnson’s van. Johnson was eventually pulled over, and police began to focus on Kelly. Hackney directed the officers to look for cause to perform a traffic stop on the Ford.

{¶ 6} Deputy Eric Betz with the Butler County Sheriffs Office was patrolling with his partner Deputy Milton Carpenter when they received a call from Hackney instructing them to watch for the Ford. Soon after Hackney’s call, Betz and Carpenter spotted a Ford matching the description given by Hackney and began following it. Within a short distance, Betz, the passenger in the police cruiser, observed Kelly following too closely to the SUV driving in front of the Ford. Betz and Carpenter then initiated a traffic stop.

{¶ 7} Carpenter approached the Ford on the driver’s side, as Betz approached the passenger’s side door. The deputies asked Kelly for his license and had him exit the car. According to Betz’s testimony at the hearing on the motion to suppress, before Kelly exited the car, he appeared very nervous and was “moving around in the vehicle.” When the deputies asked Kelly where he was coming from, he responded that he had been at his mother’s apartment complex. The deputies then placed Kelly in the back of their police cruiser.

{¶ 8} Approximately 30 seconds after the traffic stop, a state trooper and a Hamilton County canine unit arrived on the scene and walked drug-detecting dogs around the Ford. The state trooper’s dog indicated the presence of drugs at the rear bumper area of the car, and the Hamilton County dog indicated at the same position. Upon searching the trunk area, Hackney found a hidden compartment that contained seven kilos of cocaine.

{¶ 9} Kelly was indicted for one count of trafficking in cocaine with a major-drug-offender specification and three forfeiture specifications, and one count of possession of cocaine with the same four specifications. Kelly filed a motion to suppress, claiming that the traffic stop was unlawful, that the stop was unreasonably long, and that the warrantless search of the trunk was a constitutional violation. After a hearing, the trial court denied Kelly’s motion.

[846]*846{¶ 10} On the day trial was to begin, Kelly pleaded no contest to the charges and four accompanying specifications. The trial court found Kelly guilty, and the counts were merged for sentencing purposes into a single count of cocaine possession. The trial court sentenced Kelly to a mandatory ten-year prison sentence with a consecutive one-year term for the major-drug-offender specification. The trial court also imposed a $10,000 fine and ordered forfeiture of Kelly’s three vehicles. Kelly now appeals the decision of the trial court, raising the following assignment of error.

{¶ 11} “The trial court erred to the prejudice of appellant in denying his motion to suppress evidence.”

{¶ 12} In his assignment of error, Kelly argues that the trial court improperly denied his motion to suppress. This argument lacks merit.

{¶ 13} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, Preble App. No. CA2006-10-023, 2007-Ohio-3353, 2007 WL 1880207. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Oatis, Butler App. No. CA2005-03-074, 2005-Ohio-6038, 2005 WL 3031883. “An appellate court, however, independently reviews the trial court’s legal conclusions based on those facts and determines, without deference to the trial court’s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” Cochran at ¶ 12.

A. Traffic Stop

{¶ 14} Kelly first claims that the police lacked probable cause or a reasonable articulable suspicion that he had committed a traffic violation when they stopped him. Instead, Kelly asserts that the officers pulled him over on purely pretextual grounds, therefore violating his constitutional rights.

{¶ 15} The Fourth Amendment to the United States Constitution protects persons from unreasonable governmental searches and seizures. United States v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604. Regarding the legality of an traffic stop, “[wjhere 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, such as a suspicion that the violator was engaging in more nefarious criminal activity.” Dayton v. Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091, syllabus.

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Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 149, 188 Ohio App. 3d 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-ohioctapp-2010.