[O]nce the issue of the rental agreement and suspicious jewelry [were] dispelled, the Trooper had nothing other than a general, unspecified suspicion of the ‘potential of criminal activity’ and [Shaibi’s] nervous behavior.

State v. Shaibi

2021 – Ohio – 1352

Twelfth District Appellate Court

Warren County, Ohio

April 19, 2021

On October 23, 2019, Ohio State Highway Patrol Trooper Kyle Doebrich was in uniform in a marked police cruiser on I-71. At approximately, 12:10 p.m., as the trooper was sitting stationary near mile post 36 in Warren County, Ohio, he observed a U-Haul truck [complete with ‘Mom’s Attic’] driven by Mr. Sanad Shaibi traveling northbound. The trooper found the manner in which the truck decreased its speed as it approached his cruiser suspicious. Tr. Doebrich pulled his cruiser onto the highway and pursued the truck. As he was catching up to the truck, the trooper visually observed that the truck was exceeding the 70-m.p.h. speed limit. Tr. Doebrich paced the truck for approximately twenty seconds as the truck traveled 80 m.p.h. During this time, Tr. Doebrich also noticed that the truck was following another vehicle too closely. Based on these observations, at 12:13 p.m., Tr. Doebrich initiated a traffic stop of the vehicle.

Once the U-Haul truck pulled over, Tr. Doebrich gave his dispatch the truck’s Arizona license plate number before approaching the truck on its passenger side. Immediately upon approaching the truck, the trooper noted that Mr. Fadel Shaibi, who was sitting in the passenger seat, appeared nervous. Mr. Fadel Shaibi was breathing fast, his hands were shaking, and he would not make eye contact with the trooper. Trooper Doebrich testified that Mr. Fadel Shaibi’s behavior was “quite unusual to see out of a passenger in a motor vehicle.”.

The driver of the truck, Mr. Sanad Shaibi, was argumentative and denied that he was speeding. Tr. Doebrich testified it was uncommon to have a driver deny an infraction, and he stated that it was “a tool people use to thwart our ability to get themselves out of a citation or have contact with us.” While talking with Mr. Sanad Shaibi and Mr. Fadel Shaibi, the trooper observed a large bag of jewelry in a plastic shopping bag sitting in the cab of the truck. The trooper found the bag of jewelry “odd” and suspicious as it was possible it had been stolen since it was packaged in bulk and there did not appear to be receipts.

Tr. Doebrich asked for the men’s identification and to see the rental agreement for the U-Haul. In the trooper’s experience, U-Haul provides renters with a link to an electronic copy of the rental agreement. Mr. Fadel Shaibi was able to produce a New York driver’s license and claimed that he had rented the U-Haul, though he was unable to provide the trooper with a copy of the rental agreement at this time. Mr. Sanad Shaibi informed the trooper that he had a New York driver’s license, but he did not have the physical license on his person, explaining that he had left it in Cincinnati.

Tr. Doebrich had Mr. Sanad Shaibi exit the truck and after patting Mr. Sanad Shaibi down, placed him in the back of the cruiser. As Mr. Sanad Shaibi claimed to have a New York license, Tr. Doebrich was unable to confirm Mr. Sanad Shaibi’s identity on his cruiser’s computer and had to call in the information to an OSHP intel analyst. At 12:19 p.m., Mr. Sanad Shaibi provided Tr. Doebrich with his name, date of birth, and social security number. Mr. Sanad Shaibi appeared to be somewhat unsure of his social security number when he provided it, which the trooper found to be suspicious.

After obtaining Mr. Sanad Shaibi’s identifying information, the trooper questioned Mr. Sanad Shaibi about his and Mr. Fadel Shaibi’s travels and their final destination. Mr. Sanad Shaibi informed the trooper that he and Mr. Fadel Shaibi were cousins and were on their way to Buffalo, New York, after being in Cincinnati for business. As it would turn out the ‘business’ was drug trafficking but at this time both Shaibi’s were not interested in candor or transparency.  Mr. Sanad Shaibi told the trooper that his and Mr. Fadel Shaibi’s family operated a business that sold hair and beauty supplies. Evidently they sold narcotics too but once again the co-conspirators were anti-transparent.  They had one store in Cincinnati and a second store in Buffalo. Tr. Doebrich testified that both Buffalo and Cincinnati are “source cities,” which he explained are “[l]arge hubs, criminal and drug activity. Highways are a road commonly used to transport narcotics, currency, and contraband. Those are all significant locations.”

Tr. Doebrich questioned Mr. Sanad Shaibi about why Cincinnati was selected as a store location, and Mr. Sanad Shaibi “had hesitation and was unsure about the reason” before ultimately stating “something to the fact of it just seemed like a good place or something.” The trooper found it odd that Mr. Sanad Shaibi “had no real certain reason why they would have business in Cinci[nnati].” The trooper also found it odd and suspicious that Mr. Sanad Shaibi had “hesitation and pause in his voice” when identifying Mr. Fadel Shaibi and another cousin as the owners of the family business.

According to Tr. Doebrich, “[I]f he’s working for a company and it’s a family business, typically names of family members are fairly quick to respond to.” The trooper was also suspicious when Mr. Sanad Shaibi struggled to identify the address of where the Cincinnati store was located, even though Mr. Sanad Shaibi claimed to have just come from Cincinnati. When asked about the address, Sanad stated it was “Kemper.” When Tr. Doebrich asked if it was Kemper Road, Mr. Sanad Shaibi said “yes,” but was unable to confirm the exact address.

At 12:24 p.m., Tr. Doebrich contacted an OSHP intel analyst to obtain a record’s check on Mr. Sanad Shaibi and Mr. Fadel Shaibi. The trooper requested both a record check of the New York identifications and an El Paso Intelligence Center (“EPIC”) check for both men. Tr. Doebrich explained that an EPIC check is not something that he can obtain immediate results from as it “takes some time,” to obtain the information but he nonetheless felt, “based on the suspicious – the nervous behavior and the observations [he] made” that it was best to request the information as he had “suspicion that there is possible drug activity afoot.”.

Tr. Doebrich testified that he received a “quick response” from the intel analyst verifying Mr. Sanad Shaibi’s New York identification. By 12:28 p.m., both Mr. Sanad Shaibi and Mr. Fadel Shaibi’s identification had been verified. From 12:28 p.m. until 12:31 p.m., Tr. Doebrich continued speaking with Mr. Sanad Shabi, asking him additional questions about the Buffalo and Cincinnati beauty stores, his travels, and the contents of the U-Haul. During this time, Mr. Sanad Shaibi informed the officer that he and Mr. Fadel Shaibi were originally from Yemen, that he moved to the United States in 2003, and that he had recently returned from an overseas trip to Yemen. Mr. Sanad Shaibi stated that Mr. Fadel Shaibi had rented the U-Haul truck and that they were bringing back Ikea furniture they had bought for their homes in New York. Mr. Sanad Shaibi also clarified for the trooper that this was his first trip to Cincinnati.

At 12:32 p.m., Tr. Doebrich exited his cruiser and re-approached Mr. Fadel Shaibi in the rental truck, hoping to confirm the rental agreement for the U-Haul and he was “still waiting on some information” from the intel analyst about both occupants of the U-Haul. Specifically, Tr. Doebrich testified he was waiting on the results of the EPIC check and waiting to receive a photograph of Mr. Sanad Shaibi. Tr. Doebrich’s testimony about waiting on a photograph, however, conflicts with statements he made to the intel analyst. On the recording of the traffic stop, the analyst can be heard asking Tr. Doebrich whether he wanted a photograph of Mr. Sanad Shaibi and Tr. Doebrich responded, “No. I just need to see if you can just pull it up. I’ve got the soc[ial], name, and DOB.” In any event, Tr. Doebrich testified that at the time he concluded his initial phone call with the intel analyst, before re-approaching Mr. Fadel Shaibi in the U-Haul, he had all the information he needed to write Mr. Sanad Shaibi a traffic citation for speeding and following too closely.

Upon encountering Mr. Fadel Shaibi for the second time, Tr. Doebrich observed that Mr. Fadel Shaibi maintained his nervous behavior. He did not make eye contact, his hands were  shaking, and he was rapidly breathing – “all things consistent with an adrenaline rush based on fear.” The trooper found Mr. Fadel Shaibi’s behavior unusual, as Mr. Fadel Shaibi was a passenger and not the individual who had committed the traffic violations and therefore would not be issued a traffic citation. Mr. Fadel Shaibi was able to pull up an electronic copy of the U-Haul’s rental agreement and he provided the agreement to the trooper after exiting the U-Haul at the trooper’s request. Mr. Fadel Shaibi was not subjected to a pat down by the trooper after he exited the U-Haul.

While Mr. Fadel Shaibi was providing the rental agreement, Tr. Doebrich questioned Mr. Fadel Shaibi about the jewelry in the cab of the truck. Mr. Fadel Shaibi informed the trooper that the jewelry was for his business. Tr. Doebrich asked to view the jewelry. Mr. Fadel Shaibi handed the jewelry over and gave the trooper permission to open the bag. Mr. Fadel Shaibi told the trooper that he purchases the jewelry for a small fee, around $2.50 apiece, and sells the jewelry for between $5.00 and $6.00 apiece. Mr. Fadel Shaibi did not indicate if he used the same markup pricing model for the narcotics in the rear of the U-Haul truck.  Following Mr. Fadel Shaibi’s explanation and the trooper’s visual inspection of the jewelry, Tr. Doebrich indicated most of his suspicions regarding the jewelry were dispelled and the presence of the jewelry did not lead to a suspicion of drug activity.  A good question that may have been missed by the trooper was the unavailability of junk jewelry in Buffalo, New York as compared with Cincinnati, Ohio.  It seems a quite a long way to travel for a bag full of junk jewelry.  Though not unlawful, it is a far distance to travel, considering the U-Haul rental fee and gas, to get a bag of Cincinnati junk jewelry.

Despite having confirmed the men’s identities, that there was a rental agreement for the U-Haul truck, and the inexpensive nature of the jewelry in the truck, Tr. Doebrich continued to detain Mr. Fadel Shaibi. Tr. Doebrich questioned Mr. Fadel Shaibi about his business and travel plans, and Mr. Fadel Shaibi gave answers that were largely consistent with Mr. Sanad Shaibi.  Mr. Fadel Shaibi explained that he was originally from Yemen, that he operated beauty supply stores in Buffalo and Cincinnati, and that he and Mr. Sanad Shaibi were transporting IKEA furniture for their respective homes in the back of the U- Haul. Mr. Fade, Shaibi also indicated he was transporting “hair stuff.”

Tr. Doebrich felt that there was the “potential” that Mr. Fadel Shaibi and Mr. Sanad Shaibi were engaged in some criminal activity, though he had no idea what criminal activity had occurred. In my classes I discuss an officer’s gut feeling.  Here Tr. Doebrich had a gut feeling which would soon be confirmed.  At 12:35 p.m., or twenty-two minutes into the traffic stop, Tr. Doebrich asked Mr. Fadel Shaibi for permission to search the rear of the truck. Mr. Fadel Shaibi, who was not told he had the right to refuse the trooper’s request, produced a key to the padlock of the truck. For clarification, law enforcement does not have to explain that a person has right to refuse a consensual request.  At 12:36 p.m., while Mr. Sanad Shaibi remained secured in the back of the trooper’s cruiser, the back of the U-Haul is opened.

At this time, Tr. Roddy, a canine handler, arrived on scene. While standing outside the back of the opened U-Haul, Tr. Doebrich observed a large number of boxes arranged in a haphazard fashion. Some of the boxes were labeled “IKEA” and some of the boxes had shipping labels. Tr. Doebrich thought the load was irregular and somewhat suspicious as it was a “mixed load” and possibly a truck and Mr. Fadel Shaibi consented to the search of the bag. Inside the bag, Trooper Doebrich found Mr. Fadel Shaibi’s clothing and personal effects. The trooper also observed a plastic bag in the left rear corner of the truck, which appeared to contain papers, receipts, miscellaneous items and another plastic bag containing a green plant material that the trooper believed was contraband. Based on his training and experience, Tr. Doebrich believed the green plant material was “Khat,” a drug the trooper stated was “common” from a country such as Yemen. Tr. Doebrich questioned Mr. Fadel Shaibi about the green plant material, and he originally claimed it was tea before admitting it was Khat. At the time Tr. Doebrich searched the back of the U-Haul and discovered the Khat, he had not received the results of the EPIC check or obtained a photograph of Mr. Sanad Shaibi from the intel analyst.

After hearing the foregoing testimony, the trial court took the matter under advisement. The state filed a memorandum in opposition to Mr. Fadel Shaibi’s motion to suppress, arguing Tr. Doebrich had reasonable and articulable suspicion to stop and detain the occupants of the U-Haul and he had received consent to search the U-Haul. On July 7, 2020, the trial court issued a decision granting Shaibi’s motion to suppress, holding that “any and all evidence gained following the obtaining [of] the electronic copy of the rental agreement and the Defendant responds [sic] as to the nature of his business (approximately 12:35 on Exhibit 1) is hereby suppressed – including, but not limited to the suspected illegal drugs.” The court determined that the initial stop of the U-Haul was lawful as it was based on probable cause that traffic violations, specifically speeding and following too closely, had occurred. The court further found that the detention of Shaibi and Sanad to verify Sanad’s identity, to obtain a copy of the rental agreement, and to dispel concerns about the jewelry observed in the truck of the U-Haul were reasonable under the circumstances. However, “once the issue of the rental agreement and suspicious jewelry [were] dispelled, the Trooper had nothing other than a general, unspecified suspicion of the ‘potential of criminal activity’ and [Shaibi’s] nervous behavior” as a basis for prolonging the detention.

Information for this article was obtained from State v. Shaibi, 2021 – Ohio – 1352.

Lessons Learned:

  1. Trooper Kyle Doebrich had a gut hunch and the gut hunch was spot – on. Most legal cases begin when an officer has a gut hunch.  The stop and investigation of Khat – carrying Shaibi’s brothers was no different.  The court identified that the trooper had dispelled the reasonable suspicion prior to the canine alerting on the Khat.  At the time there was no more reasonable suspicion the detention of the Shaibi brothers became unlawful.
  1. The story about moving junk jewelry from Cincinnati to Buffalo was an obvious lie. Doebrich recognized it and knew something else was criminal.  Unfortunately, the closest canine was just outside of the constitutional time limit of reasonableness.  Law enforcement must be consistently aware of what legal block he is operating under.  This is very easy to understand in a sterile environment but much more difficult to apply in the field.
  1. For more on gut hunches see Officer Williams’ Gut Feeling was Scientifically Accurate But Was It Legally Justified?

Does your agency train on Reasonable Suspicion?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.