Officer #1 acted unreasonably and without diligence by stalling for two minutes without processing the traffic stop to allow for the canine unit to arrive.

 

Two weeks earlier the SAME COURT held:

The record shows that the canine sniff occurred within approximately seven minutes of the initial stop, so the seizure was not prolonged beyond the time reasonably required to complete the mission of issuing a traffic citation.  State v. Sunkle, 2022 – Ohio – 2442

 

State v. Wood

2022 – Ohio – 2548

Fifth District Appellate Court

Licking County, Ohio

July 25, 2022

On Thursday December 10, 2020, Officer #1 received information from another detective that a driver in a Dodge Avenger failed to use a turn signal and made an improper lane change while driving in Newark, Ohio. Officer #1 initiated a traffic stop at 12:58 p.m. Officer #1 identified Ms. Taylor Wood as the driver of the Dodge Avenger. Officer #1 asked Ms. Wood and passenger, Ms. Lynsay Lewis, for identification and proof of insurance. Officer #1 returned to his cruiser with the documents and contacted Officer #2, a canine officer.

At 1:02 p.m. Officer #1 returned to Ms. Wood’s vehicle to ask for consent to search the car. Ms. Wood denied consent. Officer #1 then walked away from Ms. Wood’s vehicle at 1:03 p.m. to stand next to his cruiser to wait for Officer #2. About two minutes later Officer #2 and his dog arrived. Officer #2’s dog then alerted him of a positive sniff.

Officer #1 and another officer searched the vehicle retrieving 25.959 grams of fentanyl, 23.167 grams of methamphetamine, and $2,319 in cash. Officer #1 also testified he never issued Ms. Wood a traffic citation and could not recall if he issued a written warning. Officer #1 said the only steps he remembered taking were opening up his warning book and laying it on the seat of his cruiser.

On May 20, 2021, Ms. Wood was indicted on one count of Possession of Fentanyl-Related Compound in violation of R.C. §2925.11(A) & (C)(11)(e), one count of Trafficking in Fentanyl-Related Compound in violation of R.C. §2925.11(A)(2) & (C)(9)(f), one count of Aggravated Possession of Methamphetamine in violation of R.C. §2925.11(A) & (C)(1)(c), and one count of Aggravated Trafficking in Methamphetamine in violation of R.C. §2925.11(A)(2) & (C)(1)(d).

On July 12, 2021 Ms. Wood filed a Motion to Suppress all evidence stating that Officer #1 violated his Fourth Amendment rights because the four minutes the officer waited for the canine to arrive was unreasonable.

On October 19, 2021, the trial court granted Ms. Wood’s Motion to Suppress.

Analysis

State v. Curry, 95 Ohio App.3d 93, 96, 641, N.E.2d 1172 (8th Dist.1994).  When a police officer’s objective justification to continue detention of a person stopped for a traffic violation for the purpose of searching the person’s vehicle is not related to the purpose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention, the continued detention to conduct a search constitutes an illegal seizure. State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762, 767 (1997).

An officer may briefly extend a traffic stop to inquire about the presence of illegal drugs or weapons. However, the officer must ascertain reasonably articulable facts giving rise to a suspicion of criminal activity while inquiring to justifying a more in – depth investigation. Therefore, “[T]he critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket … but whether conducting the sniff  ‘prolongs’ – i.e. adds time to- ‘the stop’Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

In other words, a motorist may be detained beyond the time frame necessary to conduct the stop for the purposes of the traffic violation when “[A]dditional facts are encountered that give rise to a reasonable, articulable suspicion [of criminal activity] beyond that which prompted the initial stop[.]State v. Smith, 117 Ohio App.3d 278, 285, 690 N.E.2d 567 (1st Dist.1996) citing State v. Myers, 63 Ohio App.3d 765, 771, 580 N.E.2d 61 (2nd Dist.1990).

The United States Supreme Court held an officer may not prolong a traffic stop to perform a drug sniff if the “[O]verall duration of the stop remains reasonable in relation to the duration of other stops involving similar circumstances.” Rodriguez at 1616. However, reasonableness depends on what the police actually do and how they do it.

In State v. Hall, 2nd Dist. No. 2016-CA-13, 2017-Ohio-2682, 90 N.E.3d 276, officers confirmed the defendant’s identification, then did nothing to process the traffic stop while awaiting the canine unit to arrive. The Second District Court of Appeals found that the officer did nothing for eight minutes to process the traffic stop, and that the officer’s inaction was not reasonable or diligent. The officer unreasonably prolonged the stop, and the evidence was properly suppressed.

Similarly, in the case sub judice, Officer #1 testified after initiating the traffic stop at 12:58 p.m. he returned to his cruiser to confirm license and registration. While at his cruiser he requested a canine unit and then took out his warning book and set it on the seat of his cruiser. He then returned to Ms. Wood’s vehicle and requested consent to search at 1:02 p.m. Ms. Wood denied his request. Officer #1, after discussing the search with Ms. Wood, walked away from Ms. Wood’s car and waited for two minutes, doing nothing, for the canine unit to arrive. He did not issue a traffic citation and did not recall issuing a warning to Ms. Wood.

Therefore, similarly, to Hall, Officer #1 acted unreasonably and without diligence by stalling for two minutes without processing the traffic stop to allow for the canine unit to arrive. Waiting for the canine unit to arrive and conduct a sniff indisputably added time to the stop. Therefore, Officer #1 unreasonably prolonged the stop, and the trial court properly suppressed the evidence.

Holding

Appellant sole Assignment of Error is overruled.  For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is hereby affirmed.

Information for this article was obtained from State v. Wood, 2022 – Ohio – 2548.

This case was issued by the Fifth District Appellate Court and is only binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Two weeks before this case was decided, the SAME COURT decided a very similar case with an opposite conclusion! The other case; State v. Sunkle, 2022 – Ohio – 2442.  I wrote about that case in an article – Was Ms. Sunkle Sunk When Canine Buckeye Alerted on her Fentanyl?.  In that case, the officers delayed searching the car for seven minutes while waiting for a canine to respond.  During that seven-minute delay the officer at the scene did not ‘work’ towards completion of the traffic stop.  Based on this non-activity, Ms. Sunkle appealed.  The Fifth District Appellate Court utilized the testimony of an officer who stated under oath that a typical traffic stop can be completed in approximately twenty-five minutes without interruptions.  Since the officer had to wait seven minutes for the canine and seven minutes is less than twenty-five minutes, the delay was not unreasonable.  Then two weeks later, in this case, the Fifth District Appellate Court held that the officer waited TWO MINUTES without doing anything and that it was unreasonable!  Both cases were decided unanimously and one of three judges on each case was the SAME judge – Judge Patricia Delaney.
  2. How should law enforcement, most especially in the Fifth District, apply these two contrasting holdings? If an officer is waiting for a canine to respond to the scene of a traffic stop, the officer should diligently ‘work’ towards completing the traffic stop by running LEADS checks, warrants checks, writing a warning, writing a ticket, or similar investigative steps.  All appellate courts have upheld that law enforcement may not delay a traffic stop to wait for a canine.  In the Sunkle case the court reasonably used the twenty-five-minute standard as a foundation for ‘delaying’ a traffic stop.  However, now the Fifth District Court goes full speed astern and provides confusion to law enforcement, attorneys, trial judges and the community as what the court believes to be reasonable.
  3. Since the same court held differently on very similar fact patterns, there is a chance that an appeal to the Supreme Court of Ohio may be accepted for litigation. This would provide clarity to the constitutional stop-watch that the Fifth District Appellate Court has created substantial ambiguity.

Does your agency train on Canine Stops?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.