State v. Thobe

2023 Ohio 1431

• Court: Ohio Court of Appeals
• Decided: May 1, 2023
• Docket: 2-22-25
• Status: Published

Opinion

[Cite as State v. Thobe, 2023-Ohio-1431.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-22-25

v.

AARON L. THOBE, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2022-CR-92

Judgment Affirmed

Date of Decision: May 1, 2023

APPEARANCES:

Nick A. Catania for Appellant

Benjamin R. Elder for Appellee Case No. 2-22-25

WALDICK, J.

{¶1} Defendant-appellant, Aaron Thobe (“Thobe”), brings this appeal from

the November 9, 2022 judgment of the Auglaize County Common Pleas Court

sentencing him to an indefinite prison term of 8 to 12 years after Thobe pled no

contest to, and was convicted of, Possession of Methamphetamine. On appeal,

Thobe argues that the trial court erred by denying his suppression motion. For the

reasons that follow, we affirm the judgment of the trial court.

Background

{¶2} On June 11, 2022, Thobe’s Dodge truck was stopped for having an

excessively loud muffler and a license plate that was not visible from 50 feet. While

the officer who stopped Thobe was finishing writing warnings for the infractions, a

drug-sniffing dog alerted on Thobe’s truck. As a result, the truck was searched and

over 100 grams of methamphetamine were located in a hidden compartment.

{¶3} Thobe was subsequently indicted for Possession of Methamphetamine

in violation of R.C. 2925.11(A), a second degree felony, Trafficking in

Methamphetamine in violation of R.C. 2925.03(A)(2), a second degree felony, and

Hidden Compartment with Drugs in violation of R.C. 2923.241(C), a second degree

felony. He pled not guilty to the charges.

{¶4} On July 22, 2022, Thobe filed a suppression motion arguing, inter alia,

that the police did not have reasonable suspicion to stop his vehicle, that the police

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delayed the stop unconstitutionally in order to provide time for the drug-sniffing

dog to arrive, and that the drug-sniffing dog was not reliable in this instance. The

trial court held a hearing on the matter and on September 21, 2022, the trial court

filed a written entry overruling Thobe’s suppression motion.

{¶5} On November 9, 2022, Thobe entered into a negotiated plea agreement

wherein he agreed to plead no contest to Possession of Methamphetamine in

violation of R.C. 2925.11(A), a second degree felony. In exchange, the State agreed

to dismiss the remaining counts of the indictment. However, the State indicated it

would be recommending a maximum prison term at sentencing.

{¶6} After determining that Thobe was entering a knowing, intelligent, and

voluntary plea, the trial court accepted Thobe’s plea and found him guilty. The two

other counts against Thobe were dismissed. The case proceeded directly to

sentencing, with the trial court imposing a maximum indefinite prison term of 8 to

12 years. Thobe now appeals his judgment entry of sentence, asserting the following

assignment of error for our review.

Assignment of Error The trial court erred in denying the defendant-appellant’s motion to suppress on the grounds that the defendant-appellant was held and the stop was unduly delayed absent any further reasonable suspicion in order to conduct a free air sniff from a K9 in violation of the defendant’s rights under the Fourth and Fourteenth Amendment, to the United States Constitution and Article 1, Section 14 of the Ohio Constitution.

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{¶7} In his assignment of error, Thobe argues that the trial court erred by

denying his suppression motion. More specifically, he argues that the officer who

stopped his vehicle unconstitutionally prolonged the stop in order to allow the K-9

officer to arrive with the drug-sniffing dog.

Standard of Review

{¶8} “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, ¶ 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.;

State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion

to suppress,“an appellate court must accept the trial court’s findings of fact if they

are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v.

Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo, and we must independently

determine whether the facts satisfy the applicable legal standard. Id., citing State v.

McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

Evidence Presented at Suppression Hearing

{¶9} Patrolman Jacob Little of the St. Mary’s Police Department testified

that on June 11, 2022, he was conducting surveillance on Thobe’s residence.

Patrolman Little indicated that his department had received information that

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narcotics were being used and/or sold at the residence. In fact, another law

enforcement agency had recently arrested an individual who claimed that he had

been selling a substantial amount of methamphetamine to Thobe.

{¶10} Further, Thobe’s vehicle had recently been stopped and searched by

the Mercer County Drug Task Force, and during that search, officers located

“multiple hidden compartments that [Thobe] had manufactured, and electric power

drill batteries that he had hollowed out.” (Aug. 31, 2022, Tr. at 13). No drugs were

found during the earlier search by the Mercer County Drug Task Force.

{¶11} Patrolman Little testified that shortly after 10 p.m. on June 11, 2022,

Thobe left his residence in a blue Dodge truck followed by two other known drug

users in a separate vehicle. Patrolman Little decided to follow Thobe and indicated

it was his plan to stop Thobe’s vehicle, but he wanted to observe two traffic

violations before he initiated a traffic stop. Patrolman Little testified that he liked to

have two violations before stopping a vehicle because he had “been burnt before.”

(Id. at 41).

{¶12} As he followed Thobe, Patrolman Little indicated that he could not see

Thobe’s license plate light within 50 feet, and he observed that the muffler on

Thobe’s vehicle could be heard over a block away. Based on these infractions,

Patrolman Little initiated a traffic stop of Thobe’s vehicle at approximately 10:18

p.m. The traffic stop was recorded on Patrolman Little’s body camera.

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{¶13} While Patrolman Little was in the process of coming to a stop, he

radioed dispatch and requested the assistance of a K-9 officer from New Bremen.

Patrolman Little then promptly got out of his vehicle and approached Thobe’s truck.

As he approached, Thobe’s loud muffler could be heard on the body camera

recording.

{¶14} Patrolman Little made contact with Thobe, and told Thobe the reason

why he was stopped. Thobe stated that he was aware of his loud muffler, that he

was in the process of taking care of it, and that he had actually already been cited

for the loud muffler recently.

{¶15} Patrolman Little then requested Thobe’s identification and his

insurance card. The next several minutes of the traffic stop consisted of Thobe

looking for his paperwork while he conversed with Patrolman Little. Thobe told

Patrolman Little that he was operating under driving privileges and that he had

paperwork for his privileges as well. Thobe explained that he had been convicted of

an OVI in Auglaize County and that there was an “interlock” device in his vehicle.

{¶16} Thobe handed Patrolman Little a paper that referenced his driving

privileges while he looked for his other documents. Patrolman Little read the paper

and stated that it was sufficient to establish Thobe’s driving privileges, even if it

was not the official paper that Thobe was searching for. Thobe then took a few

moments to pull up his insurance on an app on his phone. Patrolman Little

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acknowledged the proof of insurance, then went back to his car and opened a pad

and started writing a warning for the loud muffler. At this point, less than six

minutes had elapsed since Patrolman Little put his vehicle in park for the traffic

stop.

{¶17} While Patrolman Little was working on the written warning, he

checked the license plate for Thobe’s truck and the plate came back to a 2006 black

Mercedes sedan. Another officer was on the scene speaking with Thobe, so

Patrolman Little radioed the other officer and told him to ask Thobe about the plate

discrepancy. Patrolman Little then continued writing the written warning for just

over a minute until he got out of his vehicle to assist the other officer who was

speaking with Thobe. When Patrolman Little got back to Thobe’s truck, the other

officer on the scene was flipping through Thobe’s paperwork for his black Mercedes

sedan, which was another vehicle Thobe owned. The officers asked Thobe for his

truck registration and he produced that paperwork.

{¶18} Patrolman Little asked the other officer to run the VIN on the Dodge

truck while he finished writing the written warnings. Patrolman Little got back to

his vehicle approximately 10 minutes after he parked it behind Thobe’s truck and

continued writing the written warnings.

{¶19} Patrolman Little finished his first written warning approximately 12

minutes after parking behind Thobe. He then began writing his second written

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warning, and before that written warning for the license plate light was complete,

the K-9 officer from New Bremen arrived on scene and conducted the free-air sniff

of Thobe’s vehicle. The dog alerted on the driver’s side-door just over 17 minutes

after Patrolman Little parked his vehicle behind Thobe, and approximately 4

minutes after Thobe’s VIN was checked. Thobe’s vehicle was subsequently

searched and over 100 grams of methamphetamine were located in a hidden

compartment.

Analysis

{¶20} Thobe sought suppression of the methamphetamine, arguing that

Patrolman Little unconstitutionally prolonged the stop to allow time for the K-9

officer to arrive at the scene.1 The trial court overruled Thobe’s motion, finding the

officer’s testimony credible in that: “The officer did indeed have probable cause to

stop for each of the two violations. He was within his rights to issue two citations

or two warnings. The time he took to complete those written warnings was

reasonable.” (Doc. No. 53).

{¶21} While the trial court noted the potential for constitutional abuses by

officers, it determined that there was no constitutional violation here. The trial court

concluded that the “negligible time involved of less than 17 minutes from stop to

sniff while the written warnings were still being written” was reasonable. (Id.)

1 For a discussion of Fourth Amendment legal authority as it pertains to open-air sniffs of a vehicle, see State v. Haley, 3d Dist. Marion No. 9-22-04, 2022-Ohio-2188, ¶ 7-11.

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{¶22} Thobe challenges the trial court’s determination on appeal, arguing

that Patrolman Little extended the stop by stalling in completing the written

warnings. In support of his argument, Thobe cites Rodriguez v. United States, 575

U.S. 348, 350-351, 125 S.Ct. 1609 (2015), wherein the Supreme Court of the United

States held:

[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. A seizure justified only by a police- observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.

Rodriguez at 350-351 (alterations and quotations omitted).

{¶23} Thobe argues that under Rodriguez, the Eighth District Court of

Appeals has found that an officer impermissibly delayed a traffic stop by stalling

before he wrote a citation in order to provide time for a K-9 officer to arrive, even

though only 9 minutes elapsed between the traffic stop and the dog sniff. See State

v. Harris, 8th Dist. Cuyahoga No. 109997, 2021-Ohio-3200. He contends that the

17 minutes here would fall far outside of that window, and that we should find

Harris persuasive.

{¶24} Contrary to Thobe’s argument, Harris is readily distinguishable on its

face because the officer in that case admitted to delaying writing a citation to allow

time for the drug-sniffing dog to arrive. Harris at ¶ 11, 25. Thus the officer in Harris

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was not consistently working on the purposes of the stop. By contrast, in this case,

at all times Patrolman Little was working on the purpose of the stop.

{¶25} In fact, the recording of the incident actually shows that Patrolman

Little took actions to expedite the stop, which further distinguishes Harris. For

example, when Patrolman Little learned that Thobe’s plate was showing that the

vehicle should have been a 2006 black Mercedes sedan, Patrolman Little radioed

the other officer on the scene and told him to ask Thobe about the registration/plate

issue so he could continue writing the written warnings. In addition, at a later point,

Patrolman Little asked the other officer on scene to check the VIN on the Dodge

truck while Patrolman Little worked to finish written warnings. Thus there was no

delay akin to Harris.

{¶26} Moreover, it is important to emphasize that under Rodriguez, “The

critical question is not whether the dog sniff occurs before or after the officer issues

a ticket, but whether conducting the sniff adds time to the stop.” Rodriguez at

syllabus. There is no indication in this case that time was added to the stop. See State

v. Lawler, 3d Dist. Marion No. 14-19-25, 2020-Ohio-849, ¶ 4 (affirming

suppression where, inter alia, a traffic stop was prolonged by law enforcement

officer “wait[ing] in his patrol vehicle for approximately 25 minutes until the canine

unit arrived on scene.”). At each stage of Patrolman Little’s interaction with Thobe,

he learned information that reasonably required further investigation such as

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Thobe’s driving privileges and his license plate issue. “Beyond determining whether

to issue a traffic ticket, an officer’s mission during a traffic stop typically includes

checking the driver’s license, determining whether there are outstanding warrants

against the driver, and inspecting the automobile’s registration and proof of

insurance.” Rodriguez at 349.

{¶27} After reviewing the record and the applicable legal authority, we do

not find that the trial court erred by denying Thobe’s suppression motion. The trial

court’s factual findings were supported by the record and after a de novo review of

the trial court’s legal determinations, we find no error. Therefore, Thobe’s

assignment of error is overruled.

Conclusion

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

assigned and argued, we affirm the judgment of the Auglaize County Common Pleas

Court.

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr

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