State v. Wade , 2017 Ohio 1319 ( 2017 )

[Cite as State v. Wade, 2017-Ohio-1319.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-16-23
PLAINTIFF-APPELLEE,
v.
RICHARD M. WADE, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 15-CR-0229
Judgment Affirmed
Date of Decision: April 10, 2017
APPEARANCES:
Kenneth J. Rexford for Appellant
Angela M. Boes for Appellee
Case No. 13-16-23
WILLAMOWKSI, J.
{¶1} Defendant-appellant Richard M. Wade, Jr. (“Wade”) brings this appeal
from the judgment of the Court of Common Pleas of Seneca County finding him
guilty of trafficking in drugs and possession of counterfeit controlled substances.
On appeal Wade challenges the denial of his motion to suppress. For the reasons
set forth below, the judgment is affirmed.
{¶2} On October 23, 2015, Officer Nathan Elliott (“Elliott”) observed a
silver car parked on the cul de sac in front of a home from which it was suspected
that drug trafficking was occurring. February 18, 2016, Tr. 13. He had received
information that a person by the name of “Rich” was supplying drugs to dealers in
Fostoria. Id. at 13. He then observed a black male walking from the vicinity of the
home and Elliott suspected that “some type of transaction had taken place.” Id. at
14. When the vehicle subsequently passed Elliott’s location, he noted that the “front
windows were tinted and in such a manner that you couldn’t see anybody.” Id.
Elliott then began following the vehicle. Id. The driver of the vehicle
activated their left turn signal to turn south on Union Street.
Once they arrived at the stop sign, they came to a complete stop.
They then activated their right turn signal and proceeded
northbound onto Union Street.
Id. Elliott then activated his overhead lights and began a traffic stop at
approximately 4:05 p.m. Id. at 14-15. K-9 assistance was requested due to the
suspected drug activity. Id. at 15.
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{¶3} Upon approaching the vehicle, Elliott learned that the driver was
Brenda Hoose (“Hoose”) and the passenger identified himself as Rich. Id. Elliott
suspected that this was the person about whom the confidential informants had
previously told the drug task force. Id. at 15-16. The passenger later gave his full
name as Richard Wade Jr. Id. at 16. Elliott informed Hoose that he had stopped the
vehicle due to the turn signal change and for the window tint. Id. Hoose told the
officer that she had turned right instead of left because of a train to the left. Id.
Elliott noted that Wade appeared nervous and was very fidgety. Id. at 17.
{¶4} While Elliott was running Hoose’s information to verify that her license
was valid and to issue the citation, Officer Brandon Bell (“Bell”) arrived with his
canine, Ricky, and walked Ricky around the exterior of the vehicle. Id. at 18. Bell
arrived within one minute of the stop being initiated. Id. at 19. Elliott was still
waiting on dispatch to return the results of his inquiries on identity and the vehicle
at that time. Id. at 20. Checking the identity of the driver and the passengers was
standard procedure. Id.
{¶5} During the time Elliott was waiting for dispatch to provide him with the
verification of identity, Ricky alerted to “the presence of narcotic odors inside or
around the vehicle.” Id. Both Hoose and Wade were asked to exit the vehicle and
Elliott conducted a pat down frisk on Wade for the purpose of officer safety. Id.
Elliott testified to the search as follows.
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When I was conducting the Terry pat on Mr. Wade, I started on
the right side. And as I started on the left side, as I was coming
up the inside of his leg, I felt an item. My hand hit the item,
actually, and made a crunching sound. And then grabbed that
item and it was obvious at that time that it was an item that was
inconsistent with any type of human anatomy. Then placed [sic]
Mr. Wade in restraints and he advised me that I could take the
item out. At that time I shook his pants until the item fell out of
his pants and I observed that [sic] what appeared to be a large bag
of prescription pills. It was in a clear plastic baggie.
Id. at 20-21. The pills were later identified as 230 Percocets and 30 Xanax. Id. at
21-22. When asked, Wade admitted that he did not have a prescription for them.
Id. at 22. Wade was then arrested for drug trafficking. Id. Elliott then further
searched Wade incident to his arrest and found $2,000 in small denomination bills
and four cell phones. Id. The drugs, cash, and phones were confiscated as evidence.
Id. Hoose was issued a citation and released. Id. at 24-25.
{¶6} On October 26, 2015, a complaint was filed in the municipal court
alleging that Wade had committed the offense of trafficking in drugs. Doc. 1. Wade
was bound over to the Seneca County Court of Common Pleas. Id. On December
9, 2015, the Seneca County Grand Jury indicted Wade on two counts: 1) Trafficking
in Drugs in violation of R.C. 2925.03(A)(2),(C)(2)(a), a felony of the fifth degree
and 2) Possession of Counterfeit Controlled Substances in violation of R.C.
2925.37(A),(G), a misdemeanor of the first degree. Doc. 5. Count One was based
upon his transporting Alprazolam and included a specification requesting forfeiture
of the cash and cell phones as being used in the commission of the offense. Id.
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Count Two alleged that Wade possessed counterfeit Oxycodone. Id. Wade was
arraigned on December 23, 2015, and entered pleas of not guilty to the charges in
the indictment. Counsel for Wade filed a motion to suppress claiming that the stop
was not justified, the detention was beyond the scope of the traffic stop, and the
warrantless search of the vehicle and Wade was not supported by probable cause.
Doc. 2. A second motion to suppress was filed on January 7, 2016. Doc. 20. This
motion alleged the same issues, but provided additional arguments. The State filed
its opposition to the motion to suppress on February 16, 2016. Doc. 23. Two
hearings were held on the motions: one on February 18, 2016, and the other on
March 24, 2016. On May 17, 2016, the trial court denied the motions to suppress.
Doc. 28.
{¶7} On August 9, 2016, Wade changed his plea to one of no contest to the
charges in the indictment, and he was found guilty by the trial court. Doc. 32 and
33. A sentencing hearing was held on September 29, 2016. Doc. 37. The trial court
imposed a prison term of 10 months on Count One and a jail term of 100 days for
Count Two, with the jail term to be served concurrent with the prison term. Id.
Wade filed a timely notice of appeal. Doc. 39. On appeal, Wade raises the
following assignments of error.
First Assignment of Error
The trial court erred in denying the defense motion for
suppression of the fruits of an unwarranted and unreasonable
stop of the vehicle in which [Wade] was a passenger.
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Second Assignment of Error
The trial court erred in not suppressing the fruits of an
unreasonable extension of the traffic stop to engage in a drug
investigation without probable cause.
Third Assignment of Error
The trial court erred by not suppressing the fruits of the search of
the vehicle in which [Wade] was a passenger because the canine
did not provide sufficient additional indicia to enable a conclusion
of probable cause.
{¶8} All of the assignment of errors arise from the denial of the motion to
suppress. “An appellate review of the trial court's decision on a motion to suppress
involves a mixed question of law and fact.” State v. Fittro, 3d Dist. Marion No. 9-
14-19, 2015-Ohio-1884, ¶ 11.
When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.
State v. Mills (1992), 62 Ohio St. 3d 357, 366, 582 N.E.2d 972.
Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible
evidence. State v. Fanning (1982), 1 Ohio St. 3d 19, 1 OBR 57, 437
N.E.2d 583. Accepting these facts as true, the appellate court
must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the
applicable legal standard. State v. McNamara (1997), 124 Ohio
App.3d 706, 707 N.E.2d 539.
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Reasonableness of the Stop
{¶9} In the first assignment of error, Wade claims that the traffic stop was
unreasonable. “When we review the constitutionality of a traffic stop, we ‘must
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view the stop in light of the totality of the surrounding circumstances' and determine
whether “specific, articulable facts” in support of the reasonable suspicion existed.
State v. Urdiales, 3d Dist. Henry No. 7-15-03, 2015-Ohio-3632, 38 N.E.3d 907, ¶
24 quoting State v. Dicke, 3d Dist. Auglaize No. 2-07-29, 2007-Ohio-6705, ¶ 13. If
an officer’s decision to stop a motorist for a traffic violation is based upon a
reasonable and articulable suspicion considering all the circumstances, then the stop
is constitutionally valid. State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 8. According to the testimony of Elliott, he stopped the vehicle for
improper use of its turn signal and for having the windows too heavily tinted.
February 18, 2016, Tr. 14. Ohio law requires that a turn signal be given
continuously for at least one hundred feet before turning. R.C. 4511.39(A). The
question of whether the facts in this action provides probable cause for the stop was
addressed by the Second District Court of Appeals in State v. Wooster, 2d Dist.
Montgomery No. 24855, 2012-Ohio-4439. In Wooster, the driver of the vehicle
approached an intersection with the left signal activated. Id. at ¶ 8. The driver, at
the last second, turned off the left signal, activated the right signal, and then turned
right. Id. The appellate court determined that “a driver does not satisfy [the
requirements of R.C. 4511.39(A)] by signaling an intention to turn left for nearly all
of the required one-hundred-foot distance before then making a right-hand turn.”
Id. at ¶ 9. Since the officer had observed a traffic violation, the appellate court held
that he had a lawful basis for the stop. Id. at ¶ 10.
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{¶10} Similarly, Elliott indicated in this case that he observed Hoose turn on
her left turn signal, reach the intersection, stop, turn off the left turn signal, activate
the right turn signal, and then proceed to turn right. These facts are nearly identical
to those in Wooster. We agree with the Second District Court of Appeals, at least
in part, and hold that these actions provide a basis for a lawful stop.
{¶11} Additionally, Elliott testified that he also stopped the vehicle due to
the excessive tint of the windows. February 18, 2016, Tr. 14. Elliott indicated
that the tint was so dark that he could not see inside the vehicle. Id. “A police
officer who, based upon his observations and experience, has a reasonable,
articulable suspicion that the windows on a motor vehicle are excessively tinted,
may stop the vehicle for purposes of issuing a citation for excessive window
tinting.” State v. Mackey, 2d Dist. Montgomery No. 22244, 2008-Ohio-3621, ¶ 11.
Since the evidence presented at the hearing indicated that the officer had reasonable
and articulable suspicion of criminal wrongdoing in that he, based upon his
observations and experience, believed the driver was in violation of two Ohio laws,
the stop was constitutionally valid. The first assignment of error is thus overruled.
Duration of the Stop
{¶12} In the second assignment of error, Wade claims that the stop was
delayed for the purpose of allowing the canine to circle the vehicle. The U.S.
Supreme Court has recently addressed the duration of a traffic stop when a “dog
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sniff” is being conducted. Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609,
191 L. Ed. 2d 492 (2015). The Court held as follows:
Absent reasonable suspicion, police extension of a traffic stop in
order to conduct a dog sniff violates the Constitution’s shield
against unreasonable seizures.
A traffic stop is more like a brief stop under Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, than an arrest, see, e.g.,
Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 172 L. Ed. 2d
694. Its tolerable duration is determined by the seizure’s
“mission,” which is to address the traffic violation that warranted
the stop, Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160
L. Ed. 2d 842 and attend to related safety concerns. Authority for
the seizure ends when tasks tied to the traffic infraction are – or
reasonably should have been – completed. The Fourth
Amendment may tolerate certain unrelated investigations that do
not lengthen the roadside detention, Johnson, 555 U.S. at 327-328,
129 S. Ct. 781 (questioning); Caballes, 543 U.S., at 406, 408, 125
S. Ct. 834 (dog sniff), but a traffic stop “become[s] unlawful if it is
prolonged beyond the time reasonably required to complete th[e]
mission” of issuing a warning ticket, id, at 407, 125 S. Ct. 834.
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. These checks serve the same
objective as enforcement of the traffic code: ensuring that
vehicles on the road are operated safely and responsibly. See
Delaware v. Prouse, 440 U.S. 648, 658-659, 99 S. Ct. 1391, 59
L. Ed. 2d 660. Lacking the same connection to roadway safety as
the ordinary inquiries, a dog sniff is not fairly characterized as
part of the officer’s traffic mission.
State v. Rodriguez, 575 U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015) at
syllabus.
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{¶13} In this case, Bell and Ricky arrived on the scene within one minute of
the initial stop and while Elliott was still gathering basic information from Hoose
and Wade to relay to dispatch as part of the initial traffic stop. February 18, 2016
Tr. 19, 51. The free air sniff of the exterior of the car was conducted while Elliott
was awaiting the results of his inquiries to dispatch. Id. at 20, 51. Ricky had only
spent 30 seconds walking around the vehicle before he alerted to the presence of
narcotics. March 24, 2016 Tr. 29. This occurred before the response from dispatch
was received. Id. at 20. From the time of the initial stop until Wade and Hoose
were removed from the vehicle for officer safety, three to five minutes had passed.
Id. at 51. Based upon the testimony before it, the trial court concluded that the stop
was not extended by the free air sniff conducted by Ricky. Doc. 28 at 3. We agree
with the trial court that there was no extension of the stop by allowing Ricky to walk
around the car. The testimony showed that this was done simultaneously with the
completion of the traffic mission. Thus, the second assignment of error is overruled.
Basis for Additional Search
{¶14} In the third assignment of error, Wade claims that the trial court should
have suppressed the results of the search because the alert of Ricky alone was
insufficient to provide probable cause for a search of the individuals. “The
touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500
U.S. 248, 250, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). “Reasonableness, in turn,
is measured in objective terms by examining the totality of the circumstances.”
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Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996).
Generally, a warrantless search is considered per se unreasonable unless certain
“specifically established and well delineated exceptions” exist. Urdiales, supra at
¶ 28 quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29
L. Ed. 2d 564 (1971). One of these exceptions is a pat down search for the purpose
of officer safety. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
{¶15} In this case, Elliott testified that he had information that drugs were
being sold at 307 South Wood Street by a black male known as “Tone”. Feb. 18,
2016 Tr. 12, 30. He also knew that the drugs were coming into Seneca County from
Wyandot County. Id. at 32. On October 23, 2015, Elliott saw the vehicle he later
stopped parked in front of the Wood Street house and a black male walking away
from it. Id. at 11-14. This drew his attention and he noted that the car windows
were so heavily tinted that he could not see who was inside the vehicle. Id. at 14.
He also knew that the vehicle was from Wyandot County. Id. at 58. Elliott then
started to follow the vehicle and observed the traffic violation. Id. at 14. Suspecting
that there might have been drug activity, Elliott proceeded with the stop and call for
a K-9 unit. Id. at 15. Elliott testified that Wade was acting very nervous. Id. at 17-
18. Then Ricky alerted on the car. At that time, Elliott and Bell had Wade and
Hoose exit the vehicle and Elliott conducted a pat down search of Wade for the
purpose of officer safety. Id. at 20. Elliott felt a wrapped package that made a
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crunching sound. Id. at 21. Wade then gave Elliott permission to remove the item.
Id. at 21. The retrieved item was the bag of pills. Id.
{¶16} Based upon the totality of the circumstances at that time, Elliott had
probable cause to suspect that criminal activity was occurring and to continue to
investigate. Contrary to the argument of Wade, the search was not based solely
upon the alert of the Ricky, but upon all of the information available to the officer
at the time. Once Elliott removed Wade from the vehicle, he was permitted to pat
down Wade for weapons. During this search, Elliott felt the baggie. Wade then
gave permission for Elliott to remove the baggie.1 The evidence before the trial
court does not indicate that either the continued investigation nor the warrantless
search of Wade was improper in any way. The trial court did not err in denying the
motion to suppress based upon the warrantless search. The third assignment of error
is overruled.
{¶17} Having found no error prejudicial to the appellant in the particulars
assigned or argued, the judgment of the Court of Common Pleas of Seneca County
is affirmed.
Judgment Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/hls
1
Although Wade denied at the March 24, 2016 hearing that he gave consent to the removal of the baggie,
Elliott testified that he had consented. February 18, 2016 Tr. at 21 and March 24, 2016 Tr. at 53.
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