State v. Whitman

922 N.E.2d 293, 184 Ohio App. 3d 733
CourtOhio Court of Appeals
DecidedOctober 22, 2009
DocketNo. 09-CA-03
StatusPublished
Cited by14 cases

This text of 922 N.E.2d 293 (State v. Whitman) 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. Whitman, 922 N.E.2d 293, 184 Ohio App. 3d 733 (Ohio Ct. App. 2009).

Opinions

Gwin, Judge.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals the March 19, 2009 judgment entry of the Holmes County Municipal Court granting defendant-appellee Scott E. Whitman’s motion to suppress evidence.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On December 20, 2008, at 1:11 a.m., Deputy Tim Stryker observed appellee’s car drift left of center twice. Deputy Stryker initiated a traffic stop. He then approached appellee’s vehicle and informed him of the reason for the stop, at which time appellee informed him that the reason he had crossed over the line was that he was “looking at the radio.” As Deputy Stryker was talking to appellee, he detected an odor of alcohol coming from inside the car. Appellee was asked to exit the vehicle. Because appellee is underage, Deputy Stryker did not ask him to perform any field sobriety tests; rather, appellee was given a portable breath test. Appellee was permitted to return to his vehicle when the portable breath test and the passenger’s admission to having consumed alcohol dispelled the officer’s suspicion. The deputy asked appellee whether he had any drugs in the vehicle. After appellee responded that he did not, Deputy Stryker advised appellee that he was going to conduct a walk-around of appellee’s car with the deputy’s drug-detecting canine partner. The dog alerted to the passenger side of the vehicle. While conducting a search of the vehicle’s interior in response to the dog’s alert, Deputy Stryker found an empty pack of cigarettes that contained marijuana “roaches” on the driver’s side of the vehicle. Appellee told the officer, “I forgot those were in there.”

{¶ 3} Appellee was charged with possession of marijuana, a minor misdemean- or, in violation of R.C. 2925.11. He filed a motion to suppress on February 4, 2009.

{¶ 4} The trial court conducted an evidentiary hearing on appellee’s motion on February 24, 2009. On March 19, 2009, the court granted appellee’s motion to suppress. On March 25, 2009, the state filed its certification pursuant to Crim.R. 12(J).

[737]*737{¶ 5} The state timely appeals, asserting a single assignment of error:

{¶ 6} “I. Deputy Stryker did not lack authority to conduct a search of appellee’s vehicle.”

{¶ 7} There are three methods of challenging on appeal a trial court’s ruling on a motion to suppress. First, an appellant may challenge the trial court’s findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether those findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597 N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. Second, an appellant may argue that the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, assuming that the trial court’s findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue that the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. 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 (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 620 N.E.2d 906; Guysinger. As the United States Supreme Court held in Ornelas v. United States, (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911, “as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.”

{¶ 8} The parties agree that appellant was lawfully stopped. The question is whether the lawful detention for the traffic infractions became an unlawful detention when the officer decided to use his narcotics-detection dog to sniff around the exterior of the appellee’s vehicle. See State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, at ¶ 8; State v. Woodson, Stark App. No. 2007-CA-00151, 2008-Ohio-670, 2008 WL 442569, at ¶ 19.

{¶ 9} 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. See 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; State v. Carlson (1995), 102 Ohio App.3d 585, 594, 657 N.E.2d 591; United States v. Seals (C.A.5, 1993), 987 F.2d 1102, 1106. The officer needs no suspicion or cause to “run the dog around” the stopped vehicle if he does it contemporaneous[738]*738ly with the legitimate activities associated with the traffic violation. See Caballes, 543 U.S. at 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (upholding constitutionality of dog sniff conducted by an officer — “[w]hile [a second officer] was in the process of writing a warning ticket, [the second officer] walked his dog around [Caballes’s]' car” — and stating that the use of the dog during Caballes’s traffic stop “[did] not implicate legitimate privacy interests” because “the dog sniff was performed on the exterior of [Caballes’s] car while he was lawfully seized for a traffic violation”). (Emphasis added.)

{¶ 10} Further, if a trained narcotics dog alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband. United States v. Reed (C.A.6, 1998), 141 F.3d 644, quoting United States v. Berry (C.A.6, 1996), 90 F.3d 148, 153; accord United States v. Hill (C.A.6, 1999), 195 F.3d 258, 273; United States v. Diaz (C.A.6, 1994), 25 F.3d 392, 394; State v. French (1995), 104 Ohio App.3d 740, 663 N.E.2d 367.

{¶ 11} “ ‘[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, 865 N.E.2d 1282, 2007-Ohio-2204, at ¶ 12, quoting State v. Keathley (1988), 55 Ohio App.3d 130, 131, 562 N.E.2d 932.

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Cite This Page — Counsel Stack

Bluebook (online)
922 N.E.2d 293, 184 Ohio App. 3d 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitman-ohioctapp-2009.