[Cite as State v. Neyhard, 2022-Ohio-1098.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY STATE OF OHIO, CASE NO. 2021-A-0005
Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas
RICKIE L. NEYHARD, Trial Court No. 2020 CR 00136 Defendant-Appellant.
OPINION
Decided: March 31, 2022 Judgment: Reversed and remanded
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Phillip L. Heasley, Ashtabula County Public Defender, Inc., 4817 State Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Rickie Neyhard, appeals the October 30, 2020 and January 25,
2021 judgments of the Ashtabula County Court of Common Pleas overruling his motion
to suppress and sentencing him to two years of intensive community control, respectively.
For the reasons set forth herein, the judgments are reversed and remanded.
{¶2} On the evening of February 22, 2020, Patrolman Daric Wise was monitoring
an area suspected of drug activity when he saw a truck leaving a suspected drug house.
Patrolman Wise followed the vehicle and noted it had an excessively loud exhaust and
rolled through a stop sign. Accordingly, he initiated a traffic stop. The driver of the vehicle was identified as Mr. Neyhard, who was borrowing the truck from a friend. Patrolman
Wise called for backup and asked Mr. Neyhard if he had any illegal items in the vehicle,
advising he had a K-9 partner with him that would be conducting a “free air sniff.”
{¶3} When backup arrived a few minutes later, Patrolman Wise had his K-9
partner conduct the sniff of the air outside the vehicle. The dog alerted. Mr. Neyhard was
asked to step out of the vehicle and the officers conducted a search of his vehicle. The
search revealed two suspected marijuana cigarettes and a loaded pistol in a soft pistol
holder underneath a hat and an empty backpack on the passenger’s seat. Mr. Neyhard
was cited for the failure to stop and loud exhaust and was informed that the prosecutor
would be bringing charges related to the weapon.
{¶4} Mr. Neyhard was subsequently indicted on one count of Improperly
Handling Firearms in a Motor Vehicle, in violation of R.C. 2923.16(B)(I), a felony of the
fourth degree. Mr. Neyhard moved to suppress the evidence surrounding the weapon as
obtained from an illegal search. The court denied his motion following a suppression
hearing. Mr. Neyhard ultimately pleaded no contest and the court sentenced him to two
years of intensive community control subject to several conditions. Mr. Neyhard now
appeals, assigning one error for our review, which states:
{¶5} The trial court erred in overruling appellant’s suppression motion.
{¶6} “An appellate court’s review of a decision on a motion to suppress involves
issues of both law and fact.” State v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068,
2015-Ohio-958, ¶18. As such, the appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Jones, 11th Dist.
Ashtabula No. 2001-A-0041, 2002-Ohio-6569, ¶16, citing State v. Guysinger, 86 Ohio
Case No. 2021-A-0005 App.3d 592, 594 (4th Dist.1993). “Accepting these findings of facts as true, a reviewing
court must independently determine as a matter of law, without deference to the trial
court’s conclusion, whether they meet the appropriate legal standard.” Jones, supra,
citing State v. Curry, 95 Ohio App.3d 93, 96 (8th Dist.1994).
{¶7} In the case at bar, it is undisputed that Patrolman Wise was justified in
making the traffic initial stop and that after the patrolman’s dog alerted, he had probable
cause to search the vehicle. The issue Mr. Neyhard challenges on appeal is whether the
officer was legally allowed to prolong the stop to conduct a free-air sniff.
{¶8} “The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures.” State v. Croff, 11th Dist. Trumbull
No. 2017-T-0005, 2017-Ohio-8629, ¶22, citing Terry v. Ohio, 392 U.S. 1 (1968). “A traffic
stop by law enforcement is a seizure that must comply with the Fourth Amendment’s
reasonableness requirement.” Croff, supra, at ¶24. “‘While the Fourth Amendment * * *
does not explicitly state that the violation of its provisions against unlawful search and
seizure will result in suppression of the evidence obtained as a result of the violation, the
U.S. Supreme Court held that the exclusion of evidence is an essential part of the Fourth
Amendment.’” Eggleston, supra, at ¶17, quoting State v. Casey, 12th Dist. Warren No.
CA2013-10-090, 2014-Ohio-2586, ¶29.
{¶9} “Where 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 * * * 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, 76 Ohio St.3d 3 (1996), at syllabus. “If a vehicle has been lawfully
Case No. 2021-A-0005 detained, the exterior sniff by a trained narcotics dog to detect the presence of illegal
drugs does not constitute a search because it does not violate a reasonable expectation
of privacy. State v. Mateucci, 11th Dist. Lake No. 2001-L-205, 2003-Ohio-702, ¶34.
{¶10} Nevertheless, in general, an investigative stop may last no longer than
necessary to accomplish the initial goal of the stop. Rodriguez v. United States, 575 U.S.
348, 354 (2015) (“Authority for the seizure * * * ends when tasks tied to the traffic infraction
are—or reasonably should have been—completed.”). The length of time for which an
officer may delay a motorist stopped for a traffic violation is the period of time sufficient to
issue a ticket or warning, including time to run a check on the driver’s license, determine
whether the driver has any outstanding warrants, and confirm the vehicle’s registration
and driver’s proof of insurance. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204,
¶12; see also Rodriguez, supra, at 355. “[A] police stop exceeding the time needed to
handle the matter for which the stop was made violates the Constitution’s shield against
unreasonable seizures.” Rodriguez, supra, at 350. “Once it is determined that a delay
occurred for the sole purpose of conducting a K-9 ‘sniff,’ the question is not whether the
delay was undue, but whether the delay was supported by a reasonable, articulable
suspicion of drug activity.” Eggleston, supra, at ¶28. Mr. Neyhard maintains that there
was no suspicion of drug activity on the part of appellant other than driving in a high-crime
drug area, and thus the stop was illegally prolonged to conduct a K-9 sniff. We agree.
{¶11} The trial court determined that the search and seizure was not illegal
because the time between the stop and the free air sniff was about 10 minutes, a
reasonable amount of time, and therefore Mr. Neyhard’s detention was not unlawfully
prolonged. However, the trial court’s determination incorrectly focused on the
Case No. 2021-A-0005 reasonableness of the length of time between the initial stop and the canine alert. “‘An
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[Cite as State v. Neyhard, 2022-Ohio-1098.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY STATE OF OHIO, CASE NO. 2021-A-0005
Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas
RICKIE L. NEYHARD, Trial Court No. 2020 CR 00136 Defendant-Appellant.
OPINION
Decided: March 31, 2022 Judgment: Reversed and remanded
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Phillip L. Heasley, Ashtabula County Public Defender, Inc., 4817 State Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Rickie Neyhard, appeals the October 30, 2020 and January 25,
2021 judgments of the Ashtabula County Court of Common Pleas overruling his motion
to suppress and sentencing him to two years of intensive community control, respectively.
For the reasons set forth herein, the judgments are reversed and remanded.
{¶2} On the evening of February 22, 2020, Patrolman Daric Wise was monitoring
an area suspected of drug activity when he saw a truck leaving a suspected drug house.
Patrolman Wise followed the vehicle and noted it had an excessively loud exhaust and
rolled through a stop sign. Accordingly, he initiated a traffic stop. The driver of the vehicle was identified as Mr. Neyhard, who was borrowing the truck from a friend. Patrolman
Wise called for backup and asked Mr. Neyhard if he had any illegal items in the vehicle,
advising he had a K-9 partner with him that would be conducting a “free air sniff.”
{¶3} When backup arrived a few minutes later, Patrolman Wise had his K-9
partner conduct the sniff of the air outside the vehicle. The dog alerted. Mr. Neyhard was
asked to step out of the vehicle and the officers conducted a search of his vehicle. The
search revealed two suspected marijuana cigarettes and a loaded pistol in a soft pistol
holder underneath a hat and an empty backpack on the passenger’s seat. Mr. Neyhard
was cited for the failure to stop and loud exhaust and was informed that the prosecutor
would be bringing charges related to the weapon.
{¶4} Mr. Neyhard was subsequently indicted on one count of Improperly
Handling Firearms in a Motor Vehicle, in violation of R.C. 2923.16(B)(I), a felony of the
fourth degree. Mr. Neyhard moved to suppress the evidence surrounding the weapon as
obtained from an illegal search. The court denied his motion following a suppression
hearing. Mr. Neyhard ultimately pleaded no contest and the court sentenced him to two
years of intensive community control subject to several conditions. Mr. Neyhard now
appeals, assigning one error for our review, which states:
{¶5} The trial court erred in overruling appellant’s suppression motion.
{¶6} “An appellate court’s review of a decision on a motion to suppress involves
issues of both law and fact.” State v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068,
2015-Ohio-958, ¶18. As such, the appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Jones, 11th Dist.
Ashtabula No. 2001-A-0041, 2002-Ohio-6569, ¶16, citing State v. Guysinger, 86 Ohio
Case No. 2021-A-0005 App.3d 592, 594 (4th Dist.1993). “Accepting these findings of facts as true, a reviewing
court must independently determine as a matter of law, without deference to the trial
court’s conclusion, whether they meet the appropriate legal standard.” Jones, supra,
citing State v. Curry, 95 Ohio App.3d 93, 96 (8th Dist.1994).
{¶7} In the case at bar, it is undisputed that Patrolman Wise was justified in
making the traffic initial stop and that after the patrolman’s dog alerted, he had probable
cause to search the vehicle. The issue Mr. Neyhard challenges on appeal is whether the
officer was legally allowed to prolong the stop to conduct a free-air sniff.
{¶8} “The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures.” State v. Croff, 11th Dist. Trumbull
No. 2017-T-0005, 2017-Ohio-8629, ¶22, citing Terry v. Ohio, 392 U.S. 1 (1968). “A traffic
stop by law enforcement is a seizure that must comply with the Fourth Amendment’s
reasonableness requirement.” Croff, supra, at ¶24. “‘While the Fourth Amendment * * *
does not explicitly state that the violation of its provisions against unlawful search and
seizure will result in suppression of the evidence obtained as a result of the violation, the
U.S. Supreme Court held that the exclusion of evidence is an essential part of the Fourth
Amendment.’” Eggleston, supra, at ¶17, quoting State v. Casey, 12th Dist. Warren No.
CA2013-10-090, 2014-Ohio-2586, ¶29.
{¶9} “Where 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 * * * 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, 76 Ohio St.3d 3 (1996), at syllabus. “If a vehicle has been lawfully
Case No. 2021-A-0005 detained, the exterior sniff by a trained narcotics dog to detect the presence of illegal
drugs does not constitute a search because it does not violate a reasonable expectation
of privacy. State v. Mateucci, 11th Dist. Lake No. 2001-L-205, 2003-Ohio-702, ¶34.
{¶10} Nevertheless, in general, an investigative stop may last no longer than
necessary to accomplish the initial goal of the stop. Rodriguez v. United States, 575 U.S.
348, 354 (2015) (“Authority for the seizure * * * ends when tasks tied to the traffic infraction
are—or reasonably should have been—completed.”). The length of time for which an
officer may delay a motorist stopped for a traffic violation is the period of time sufficient to
issue a ticket or warning, including time to run a check on the driver’s license, determine
whether the driver has any outstanding warrants, and confirm the vehicle’s registration
and driver’s proof of insurance. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204,
¶12; see also Rodriguez, supra, at 355. “[A] police stop exceeding the time needed to
handle the matter for which the stop was made violates the Constitution’s shield against
unreasonable seizures.” Rodriguez, supra, at 350. “Once it is determined that a delay
occurred for the sole purpose of conducting a K-9 ‘sniff,’ the question is not whether the
delay was undue, but whether the delay was supported by a reasonable, articulable
suspicion of drug activity.” Eggleston, supra, at ¶28. Mr. Neyhard maintains that there
was no suspicion of drug activity on the part of appellant other than driving in a high-crime
drug area, and thus the stop was illegally prolonged to conduct a K-9 sniff. We agree.
{¶11} The trial court determined that the search and seizure was not illegal
because the time between the stop and the free air sniff was about 10 minutes, a
reasonable amount of time, and therefore Mr. Neyhard’s detention was not unlawfully
prolonged. However, the trial court’s determination incorrectly focused on the
Case No. 2021-A-0005 reasonableness of the length of time between the initial stop and the canine alert. “‘An
investigative stop may last no longer than necessary to achieve the purpose of the stop.
* * * For example, where the stop is based upon a reasonable suspicion that a motorist
has committed a traffic violation, an officer may detain the motorist only long enough to
issue a warning or citation.’” Matteucci, supra, at ¶29, quoting State v. French, 104 Ohio
App.3d 740, 747 (12th Dist.1995). Regardless of how long the stop took altogether, the
question remains whether the stop was in fact prolonged by any measure of time to
conduct the free air sniff and if so, whether the officer had reasonable, articulable
suspicion to do so. Eggleston, supra, at ¶28.
{¶12} The record shows that Patrolman Wise stopped Mr. Neyhard at a few
seconds after 5:00 p.m. At 5:04 p.m., Patrolman Wise ran Mr. Neyhard’s license through
dispatch and called for backup, which arrived three minutes later. In denying the motion
to suppress, the trial court expressly noted “[t]he video of the stop shows that Wise spent
much of the time period from 5:00 to 5:07 PM waiting for dispatch to answer him.” In the
body camera video admitted into evidence, the Patrolman can be heard engaging in
casual conversation with Mr. Neyhard. The free air sniff began at 5:10. The video and
testimony do not affirmatively demonstrate that the officer was awaiting any information
from dispatch necessary to finishing the tasks reasonably related to the purpose of the
stop.
{¶13} Furthermore, no additional reasonable suspicion was developed until after
the free air search. According to Patrolman Wise’s testimony, Mr. Neyhard was not
nervous or uncooperative. There was no odor emanating from the vehicle detectable by
the Patrolman, nor excessive air fresheners. Nevertheless, Patrolman Wise delayed
Case No. 2021-A-0005 writing the citation for the sole purpose of waiting for backup before conducting the free
air sniff.
{¶14} We find that under the circumstances in this case, the officer unreasonably
prolonged the stop to await backup before conducting a free air sniff and did so without
the reasonable suspicion necessary to do so. Therefore, the evidence obtained as a
result of the search should have been suppressed. Mr. Neyhard’s sole assignment of
error has merit.
{¶15} In light of the foregoing, the judgments of the Ashtabula County Court of
Common Pleas are reversed and remanded for further proceedings consistent with this
opinion.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
Case No. 2021-A-0005