The totality of the circumstances known by Deputy Bailey provided probable cause for the search of the vehicle and the backpack found therein.
State v. Fritz
2020 – Ohio – 5231
On Monday June 4, 2018 Deputy Robert Bailey, a canine handler, testified that around 12:00 p.m., he was stationed on State Route 32 near the McKeever Pike intersection in Clermont County, Ohio when he observed a silver SUV traveling eastbound commit a marked lanes violation by crossing over the fog line. As the SUV passed by him, Deputy Bailey noticed that the driver and front seat passenger were very rigid and were pushing themselves back in their seats, as if to conceal themselves. The driver’s hands were fixed at a ten and two o’clock position on the steering wheel. Based on his twenty-one years of experience as a law enforcement officer, Deputy Bailey found the driver’s and passenger’s behavior suspicious. The deputy continued to observe the SUV and witnessed it completely cross over the white fog line on two more occasions. The deputy pulled behind the SUV and, when the vehicle stopped at a red light, he ran the vehicle’s registration. The vehicle was registered to an older gentleman, which further raised the deputy’s suspicion as the driver of the SUV appeared to be a younger individual.
Deputy Robert Bailey observed a traffic violation on the Silver SUV that was a rolling methamphetamine distributor. Ultimately Mr. Fritz’ freedom would be restricted for the next eight years.
Deputy Bailey initiated a traffic stop. As he approached the vehicle from the passenger side, the driver of the SUV called out the deputy’s first name. Deputy Bailey recognized the driver, Mr. Carey Storer, from his contacts with the community and from Mr. Storer’s prior arrest for illegal narcotics. Deputy Bailey testified that prior to the date of the traffic stop, he had received information that Mr. Storer was engaged in “some type of illegal narcotic distribution.”
In addition to Mr. Storer and the front seat passenger, Deputy Bailey noticed that there were three individuals sitting in the back seat of the SUV. Deputy Bailey testified that everyone in the SUV appeared to be very nervous – more nervous than what is typical for a traffic stop. The occupants avoided making eye contact with the deputy, had labored breathing, and had visible pulsating carotid arteries. When the deputy asked where the vehicle was coming from, there was a very long pause before Mr. Storer responded that they were coming from “East Fork.” The long pause, combined with the deputy’s observations of the occupants’ nervousness, led Deputy Bailey to believe the vehicle’s occupants wanted to conceal their travels and increased his suspicion that they were engaged in some type of criminal activity inside the SUV. The deputy had a gut feeling. See Officer Williams’ Gut Feeling was Scientifically Accurate But was it Legally Justified?; specifically Lessons Learned #2.
As he observed the backseat passengers, Deputy Bailey noticed that Mr. Kelly Fritz, who was sitting in the middle of the backseat, was clutching a black backpack between his legs. Deputy Bailey testified that his lack of knowledge about the bag’s contents and appellant’s nervousness caused him to be concerned for his safety, as it was possible the bag contained something that could be used to harm him. Mr. Storer informed Deputy Bailey that he was driving with a suspended license. Deputy Bailey explained that when an individual is driving without a valid license, his procedure is to see if another person in the vehicle has a valid license and can legally operate the vehicle. If not, then a third party needs to be called to drive the vehicle away or the vehicle needs to be towed. Deputy Bailey obtained the names and identification of the SUV’s occupants. When Mr. Fritz provided his name and information, Deputy Bailey recognized his name from prior drug-related reports.
Rather than returning to his patrol car to run the SUV’s occupants’ information, Deputy Bailey provided the information to his communications center so that it could do a records check. The deputy explained that he remained with SUV as he was alone on scene and wanted to keep an eye on the SUV’s occupants.
From dispatch, Deputy Bailey learned that Mr. Jamie Shouse, a backseat passenger, had a felony drug warrant for his arrest. Deputy Bailey secured Mr. Shouse as he remained seated in the SUV. As Mr. Shouse stood to exit the SUV from the rear passenger side door, an Altoids tin fell from Mr. Shouse’s lap onto the ground. When Deputy Bailey picked up the tin and shook it, he did not hear the rattling of mints inside. Instead, Deputy Bailey heard a “solid sound” inside the tin. Upon opening the tin, Deputy Bailey found a baggie containing a crystal substance, which he believed was methamphetamine. Deputy Bailey conducted a search incident to Mr. Shouse’s arrest and discovered Mr. Shouse had two cell phones on his person. Based on his training and experience, Deputy Bailey testified the discovery of two cell phones was indicative of drug trafficking. Deputy Bailey believed that additional contraband could be found inside the SUV as, in his experience, when one person in a vehicle has contraband, others in the same vehicle do as well.
Deputy Bailey explained that because he is a canine handler and his Canine, Mox, was in the back of his vehicle, he could not transport Mr. Shouse. He therefore called for another deputy to respond to the scene. While waiting, Deputy Bailey had Mr. Shouse sit on the ground while he watched the four people who remained in the SUV, all of whom continued to act very nervously and avoiding eye contact. After approximately ten minutes, Deputy Patton arrived on scene. Within a minute of Deputy Patton’s arrival, Mr. Shouse was secured in Patton’s patrol car, the Altoids tin was secured in Deputy Bailey’s vehicle, and Deputy Bailey had retrieved Canine Mox so that he could walk Mox around the silver SUV. Deputy Bailey testified that when he walked Mox around the silver SUV on June 6, 2018, Canine Mox’s behavior changed when he reached the rear passenger door. Mox increased his sniffing and assumed a different body posture before he gave a final trained response, or positive alert, by sitting and staring at the rear passenger door to indicate that a drug odor was emanating from that area. Deputy Bailey testified Mox’s change of behavior and his final trained response were consistent with the pair’s training, experience, and certification. Deputy Bailey denied giving any intentional or unintentional cues to Mox to indicate he wanted the canine to give a positive alert.
After Mox’s positive alert at the rear passenger door, Deputy Bailey placed Mox back in his patrol car. The deputy then returned to the silver SUV and had Mr. Fritz exit the backseat. Deputy Bailey conducted a pat down of Mr. Fritz to ensure his safety, and during the pat down, the deputy felt something with a granular, crunching sound in appellant’s pants pocket. Deputy Bailey, believing the substance could be methamphetamine, removed the substance and discovered a bag with three smaller baggies inside it. Inside each of the smaller baggies was a crystal substance. Deputy Bailey placed Mr. Fritz in handcuffs and sat him on the ground by the rear, passenger tire of the SUV. The door to the SUV remained open and the three remaining passengers in the vehicle remained seated inside the SUV.
After sitting appellant on the ground outside the SUV, Deputy Bailey retrieved the black backpack Mr. Fritz had previously been clutching between his legs. Upon opening the backpack, Deputy Bailey discovered a plastic gallon bag holding smaller baggies that contained a crystal substance as well as three Tupperware containers containing a crystal substance. Subsequent testing of the substances found on scene established that the crystal substances were, in fact, methamphetamine.
Mr. Fritz filed a Motion to Suppress which the trial court denied. He appealed to the Twelfth District Appellate court which held “The totality of the circumstances known by Deputy Bailey provided probable cause for the search of the vehicle and the backpack found therein.”.
Deputy Bailey put Kelly’s freedom on the Fritz by his professionalism of knowing how to establish Reasonable Suspicion and then Probable Cause out of his initial gut feeling.
Mr. Fritz was sentenced to eight years in prison.
Information for this article was obtained from State v. Fritz, 2020 – Ohio – 5231, Twelfth District Appellate Court. The Twelfth District issued this case on November 9, 2020. This decision is binding on all Twelfth District counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren. For the rest of the state this case is considered persuasive. Though law enforcement agencies in other counties do not have to follow the decision it is considered instructive.
- Deputy Robert Bailey observed a vehicle wherein the occupants were acting suspiciously which provided the deputy a gut feeling. He utilized a long-standing U.S. Supreme Court case, Whren v. United States, 517 U.S. 806, (1996), to utilize a traffic violation to stop the vehicle. I wrote about this case in Wh(r)en is it Lawful to Stop a Motor Vehicle? on July 3, 2020. As the deputy approached his suspicions were confirmed by the unusual behaviors of the occupants. Ultimately this led to Mr. Fritz’s conviction and eight years in prison. Well done Deputy Bailey!
- At the point that Deputy Bailey felt something granular in Mr. Fritz’s pocket probable cause was already established by Canine Mox as Mr. Fritz was in the vehicle during the alert. I do not believe that Deputy Bailey lawfully used the Plain Feel Doctrine to remove the methamphetamine from Mr. Fritz’s pocket. The Plain Feel Doctrine should be rarely if ever used. See What do Breast Implants and the Plain Feel Doctrine have in Common? – July 6, 2020.
- Most often law enforcement officers’ gut feelings are spot on as Deputy Bailey’s was here. Gut feelings, though often correct are not always lawful. Ensure that when you have a gut feeling there is legal justification to detain, search or arrest.
Does your agency train on vehicle searches?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!
Robert H. Meader Esq.