Considering the totality of the circumstances, the record supports a finding that Officer Swindell had the reasonable, articulable suspicion of drug activity necessary to prolong the traffic stop.
State v. Sealey
2020 – Ohio – 987
Eleventh District Appellate Court
Lake County, Ohio
On Saturday August 18, 2018, Mentor Police Officer Don Swindell noticed a vehicle with excessive window tint drive by him in his police cruiser. He followed the vehicle, driven by Mr. Okema Sealey, into a nearby gas station, and then turned on his beacons and conducted a traffic stop. When Officer Swindell approached, he immediately noticed the overwhelming scent of air fresheners emanating from the vehicle. Throughout the stop Mr. Sealey was unusually and excessively nervous. Officer Swindell testified that Mr. Sealey was extremely and unusually nervous: he was not making eye contact, his eyes were darting, he was breathing very heavily and rapidly, his carotid artery was visibly pulsing, and his hands were visibly shaking. Moreover, Mr. Sealey’s nervousness did not wane upon being informed that he was pulled over for an excessive-window-tint violation, a minor misdemeanor related to a vehicle that was not his own, nor after being informed that he was only being issued warning.
Based on those factors, combined with the fact that the area was known for its drug activity, the Officer Swindell suspected Mr. Sealey was involved in drug-activity activity. Officer Swindell called for a canine unit and requested a criminal history report, which revealed that Mr. Sealey had a history of drug trafficking. The criminal history report did not include that Mr. Sealey was an air freshener distributor.
Approximately twenty-one minutes into the stop, after only a few minor distractions, Officer Swindell issued Mr. Sealey the warning. As he was explaining the warning, the police canine arrived. Upon alert from the canine, officers searched and found marijuana in the vehicle and a baggie of cocaine on Mr. Sealey’s person.
Mr. Sealey was indicted on one count of Possession of Cocaine, a felony of the fifth degree, in violation of R.C. 2925.11, with a forfeiture specification pursuant to R.C. 2941.1417 and R.C. 2981.04. Mr. Sealey filed a motion to suppress the evidence, arguing the officer unlawfully prolonged the stop. A hearing was held, and the trial court ultimately denied the motion. Mr. Sealey subsequently pleaded no contest to the charge, and the court sentenced him to three years of community control sanctions. Mr. Sealey now appeals the court’s denial of the motion to suppress, assigning one error for our review:
The trial court erred by denying the defendant-appellant’s motion to suppress in violation of his due process rights and rights against unreasonable search and seizure as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 14 of the Ohio Constitution.
Mr. Sealey argues that Officer Swindell prolonged the traffic stop without reasonable, articulable suspicion in order to await the arrival of the canine unit. The state argues that “[I]f the stop was extended for the canine unit, it was only momentarily and it was after the officer’s investigation included a sufficient amount of reasonable, articulable suspicion that the vehicle contained drugs.” The state’s argument was essentially that the air freshener aroma was actually Reasonable Suspicion.
Considering the totality of the circumstances, the record supports a finding that Officer Swindell had the reasonable, articulable suspicion of drug activity necessary to prolong the traffic stop. Officer Swindell’s suspicions arose when he first encountered Mr. Sealey. He testified that he immediately noticed the “excessive” scent of air fresheners. He testified that while he could not remember exactly how many air fresheners were in the car, “[T]he odor was excessive. I believe every vent in the front dash had an air freshener.”
- Officer Swindell identified, evaluated and documented the behavior of Mr. Sealey which rose to the level of Reasonable Suspicion. The evaluation began on first approach with the distinct, pungent smell of air fresheners, this combined with Mr. Sealey’s nervousness and his criminal history were strong indicators of a drug courier or drug salesman. Based on the totality of the circumstances he determined that delaying the traffic stop for the arrival of a police canine was reasonable. On the next traffic stop where the suspect provides indicators that something is different each officer should document the behaviors of the vehicle occupants. In this case Mr. Sealey was the sole occupant but the behavior of all of the occupants is even more critical when more than one person is in a vehicle.
- The stop of Mr. Sealey highlights how one officer can utilize a minor misdemeanor traffic equipment violation and develop that into a felony criminal investigation. Officer Swindell did not go too fast in his analysis or search. He properly waited for the canine and did not immediately extract Mr. Sealey to search the vehicle. Though Officer Swindell had many indicators, collectively they may not have risen to probable cause prior to the canine alert. Consequently, Officer Swindell’s patience was instrumental in the success of this case. All officers know that reading about a twenty-minute delay is much different than sitting in a cruiser wondering how much longer another officer will take to arrive. Sometimes waiting for back up can often be as slow as the BMV.
Does your agency train on Canine Searches?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!
Robert H. Meader Esq.