State v. Sunkle

2022 Ohio 2442

• Court: Ohio Court of Appeals
• Decided: July 14, 2022
• Docket: 2021 CA 00092
• Status: Published

Opinion

[Cite as State v. Sunkle, 2022-Ohio-2442.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Earle E. Wise, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : MELISSA SUNKLE, : Case No. 2021 CA 00092 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 21-CR-00225

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 14, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT N. ABDALLA WILLIAM T. CRAMER Assistant Prosecuting Attorney 470 Olde Worthington Road, Suite 200 20 S. Second Street Westerville, Ohio 43082 Newark, Ohio 43055 Licking County, Case No. 2021 CA 00092 2

Baldwin, J.

STATEMENT OF THE CASE AND THE FACTS

{¶1} The Licking County Grand Jury returned a four-count indictment against

Appellant Melissa A. Sunkle. Count One charged Aggravated Trafficking in

Methamphetamine a violation of R.C. § 2925.03(A)(2),(C)(l)(d), and a felony of the

second degree. Count Two charged Aggravated Possession of Methamphetamine a

violation of R.C. § 2925.11(A),(C)(l)(c), and a felony of the second degree. Count Three

charged Trafficking in Fentanyl-Related Compound in violation of R.C.

§ 2925.03(A)(2),(C)(9)(d), a felony of the third degree. Count Four charged Possession

of Fentanyl-Related Compound in violation of R.C. § 2925.11(A),(C)(l l)(c ), a felony of

the third degree.

{¶2} The Indictment also contained a Forfeiture Specification of $1,134.00 in

U.S. Currency. Sunkle appeared for arraignment on May 4, 2021 and entered a plea of

Not Guilty to all four charges.

{¶3} Sunkle moved to suppress evidence on July 1, 2021, alleging that “no traffic

violation in fact occurred that would justify the intrusion into Ms. Sunkle's life,” that the

officer “expanded the encounter into a drug investigation” and “went too far,” and that the

canine did not actually “alert” to anything. The trial court conducted a hearing on the

matter at which the state presented the testimony of Detective Michael Wingate and

Detective Sergeant Adam Hoskinson.

{¶4} Detective Wingate and Detective Sergeant Hoskinson were on duty

April 15, 2021. Hoskinson was working a drug interdiction with his K-9, Buckeye, at a local

hotel where Hoskinson found that Sunkle was staying. The Central Ohio Drug Licking County, Case No. 2021 CA 00092 3

Enforcement Task Force (CODE) had received information that Sunkle was bringing

fentanyl and methamphetamine to the area, making her a person of interest for the Task

Force. Hoskinson witnessed Sunkle leave the hotel with a male, enter a silver SUV and

proceed west on Locust street and turn south on Fourth Street. Hoskinson followed and

witnessed Sunkle move from a left turn lane to a through lane without signaling, a violation

of Ohio traffic law. He radioed Wingate and relayed the nature of the offense and a

description of the vehicle, including the license plate.

{¶5} Wingate found the vehicle and stopped it at 10:32:47 according to the clock

in the cruiser video. Sunkle provided her driver’s license, but her passenger refused to

identify himself. Wingate noticed that the passenger was visibly nervous, shaking and

looking down while clutching a backpack that was between his feet. Wingate asked the

passenger to step out of the vehicle and escorted him to his cruiser. Hoskinson and

Detective Woodyard arrived at the scene and the time was 10:35:57.

{¶6} Hoskinson and Woodyard approached Sunkle and asked her to move her

vehicle off the road, and noticed that her breathing was shallow and that she appeared

overly nervous for being stopped for a traffic violation. Hoskinson moved to the passenger

and requested that he provide identification and the passenger again refused. Hoskinson

believed that Detective Conley may be able to identify the passenger, so Conley was

called to the scene.

{¶7} At 10:39:44 Hoskinson conducted a free air sniff with his canine, Buckeye,

after Sunkle was removed from the vehicle. After Buckeye signaled that he detected

narcotics in the vehicle, Hoskinson requested and received Sunkle’s permission to search

the vehicle. Licking County, Case No. 2021 CA 00092 4

{¶8} After the hearing the trial court denied the motion, finding that:

* * the lane violation constitutes sufficient probable cause to stop the vehicle

and issue a traffic citation. Further, that any initial delay in the process was

due to the passenger in the vehicle refusing to provide any identification,

and in any event, the K-9 alert appears to have been done seven minutes

after the initial stop. The Court also notes that in general drivers may be

removed from the vehicle for the purposes of writing citations. Accordingly,

the Court finds the defendant's motion to be not well taken and is

DENIED.(Suppression Entry, p. 2).

{¶9} Sunkle withdrew her not-guilty plea and entered a plea of no contest to all

charges. The State presented a narrative of the facts supporting the indictment:

On April 15, 2021, Licking County Sheriff's Office Detective Wingate

wearing the uniform of the day and operating a marked cruiser equipped

with overhead lights effectuated a traffic stop on a silver Toyota RAV 4 for

failing to utilize a turn signal at the intersection of Fourth and West Church

Street in Newark, Licking County, Ohio. The driver was identified as

Defendant, Melissa Sunkle, and the front seat passenger refused to provide

any identification. The Defendant was under a license suspension. The

Defendant advised police that she had multiple amounts of varying drugs in

her hotel room that she picked for purposes of selling. A subsequent search

warrant for the hotel room discovered large quantities of methamphetamine,

a Schedule II controlled substance, approximate amount being 50 grams.

Additionally, other drugs, including fentanyl, were located. The Central Ohio Licking County, Case No. 2021 CA 00092 5

Regional Crime Lab tested the substances and determined them to be

45.972 grams of methamphetamine and 8.33 grams of fentanyl-related

compound. (October 19,2021 Hearing Transcript ("Plea Tr."), p. 10).

{¶10} The trial court asked Appellant whether she agreed with the facts set forth

by the State, and Appellant affirmed that she did. (Plea Tr. p. 11).

{¶11} The trial court accepted the plea and determined that counts one and two

merged and that counts three and four merged. The state elected to proceed on counts

one and three. The trial court sentenced Sunkle to an aggregate sentence of four and

one-half to six years in prison and ordered a forfeiture of $1,134.00.

{¶12} Sunkle has filed an appeal and submitted one assignment of error:

{¶13} “I. APPELLANT'S RIGHTS UNDER THE FEDERAL AND STATE

CONSTITUTIONS TO BE FREE OF UNREASONABLE SEARCH AND SEIZURE WERE

VIOLATED BY THE UNJUSTIFIABLE DELAY OF A TRAFFIC STOP FOR A CANINE

SNIFF.”

STANDARD OF REVIEW

{¶14} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

The trial court is the finder of fact in evaluating a motion to suppress; therefore, it is in the

best position to resolve factual questions and evaluate the credibility of witnesses. Id. The

trial court's findings of fact must be accepted by an appellate court if they are supported

by competent, credible evidence. Id. “Accepting facts as true, the appellate court must

then independently determine, without deference to the conclusion of the trial court, Licking County, Case No. 2021 CA 00092 6

whether the facts satisfy the applicable legal standard.” Id. That is, the appellate court will

review the application of the legal standard to the facts de novo. Id.

{¶15} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. State v. Goins, 5th Dist. Morgan No. 05-8, 2006-Ohio-74, ¶ 10. First,

an appellant may challenge the trial court's finding of fact. Id. Second, an appellant may

argue the trial court failed to apply the appropriate test or correct law to the findings of

fact. Id. Finally, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. Id. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case. State

v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist. 1994).

{¶16} Sunkle does not dispute the facts and instead contends that the trial court

incorrectly decided the ultimate issue raised in the motion to suppress, so we review this

case to determine whether the facts meet the appropriate legal standard.

ANALYSIS

{¶17} Sunkle’s assignment of error focuses upon the use of the canine at the

traffic stop, concluding that “[b]ecause no work was being done on the traffic violation

while Buckeye was checking the vehicle, the canine sniff necessarily added time to the

traffic stop and must be independently justified.” (Appellant’s Brief, p. 8). Sunkle is inviting

this court to construe the applicable precedent, including cases cited in her brief, to

require that all activity conducted at a traffic stop must be directed toward a goal of

completing that stop and that any action not directed toward that end, including a free air

sniff by a canine already at the scene, is an impermissible extension of the traffic stop Licking County, Case No. 2021 CA 00092 7

regardless of the amount of time that expires between the initiation of the stop and the

discovery of evidence of narcotics. We have reviewed the relevant caselaw and find no

support for Sunkle’s interpretation.

{¶18} The relevant caselaw focuses upon the time necessary to complete the

mission of issuing a traffic ticket or a warning and “[a] seizure that is justified solely by the

interest in issuing a warning ticket to the driver can become unlawful if it is prolonged

beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543

U.S. 405, 407, 125 S.Ct. 834, 837, 160 L.Ed.2d 842. The officer may inquire into matters

unrelated to the traffic stop, “so long as those inquiries do not measurably extend the

duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100–101, 125 S.Ct. 1465, 161

L.Ed.2d 299 (2005).” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 788, 172

L.Ed.2d 694. “An officer, in other words, may conduct certain unrelated checks during an

otherwise lawful traffic stop. But * * * he may not do so in a way that prolongs the stop,

absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Rodriguez v. United States, 575 U.S. 348, 354–55, 135 S.Ct. 1609, 1614–15, 191 L.Ed.2d

492.

{¶19} And we have recently held that “the pertinent question is not whether the

dog sniff occurs before or after the officer issues or could have issued the initial ticket, but

whether the dog sniff adds time to the stop. State v. Perkins, 5th Dist. Richland

No. 19CA38, 2019-Ohio-4328, appeal not allowed, 158 Ohio St.3d 1410, 2020-Ohio-518,

139 N.E.3d 926.” State v. Lewis, 5th Dist. Knox No. 20CA000013, 2021-Ohio-1360, ¶ 22

appeal allowed, 164 Ohio St.3d 1403, 2021-Ohio-2742, 172 N.E.3d 161, ¶ 22 and appeal

dismissed as improvidently allowed, 2022-Ohio-1570. Licking County, Case No. 2021 CA 00092 8

{¶20} In the case before us, the officer testified that a traffic stop can be completed

in twenty-five minutes, if there are no interruptions. While the reluctance of the passenger

to provide his identification might be considered an interruption in the orderly completion

of the traffic stop, we need not consider that issue because the time between the stop

and the canine alert was brief. The record shows that the canine sniff occurred within

approximately seven minutes of the initial stop, so the seizure was not prolonged beyond

the time reasonably required to complete the mission of issuing a traffic citation. And

once the dog alerted to the presence of narcotics in the vehicle, the officers had probable

cause to search the vehicle. Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-1103,

862 N.E.2d 810, ¶ 26. And, after the canine alert, Sunkle consented to the search of the

vehicle and has conceded that she “advised police that she had multiple amounts of

varying drugs in her hotel room that she picked for purposes of selling.” The officers

obtained a warrant to search the hotel room and discovered the narcotics that supported

the charges filed against Sunkle.

{¶21} We find that the canine sniff did not impermissible extend the time for the

traffic stop and deny Sunkle’s first assignment of error. Licking County, Case No. 2021 CA 00092 9

{¶22} The decision of the Licking County Court of Common Pleas is affirmed.

By: Baldwin, J.

Wise, Earle, P.J. and

Delaney, J. concur.