[T]he pertinent question is not whether the dog sniff occurs before or after the officer issues or could have issued the initial ticket, but whether the dog sniff adds time to the stop.
State v. Harvey
2022 – Ohio – 3111
Fifth District Appellate Court
Stark County, Ohio
September 2, 2022
On Sunday January 13, 2019, Trooper Jim Baker and his Canine Rexey were patrolling the area of Interstate 77, south of U.S. Route 30, in Stark County, Ohio. Trooper Baker was driving his marked patrol car. Trooper Baker was patrolling in tandem with Sergeant Timberlake, who was driving in a separate marked patrol car. At approximately 10:50 p.m., Trooper Baker initiated a traffic stop of a vehicle traveling northbound on I-77, north of U.S. Route 30, due to obscured registration tags on the license plate. Sergeant Timberlake was also on the scene.
The State presented Exhibit B at the hearing, which was Trooper Baker’s dash cam video from the January 13, 2019 stop. At time marker 4:53, Trooper Baker activated his lights and initiated the traffic stop. At time marker 5:44, the video showed the stopped vehicle and Trooper Baker approaching the vehicle on the passenger side. Trooper Baker testified that he observed four occupants in the vehicle: a female driver, a male passenger, one infant in a car seat, and one toddler in a car seat. He asked the driver for her license, proof of insurance, and vehicle registration. The driver only provided Trooper Baker her driver’s license and she was identified as Ms. Monique Varner. Her driver’s license showed her residence as Gahanna, Ohio, but in the video, Ms. Varner tells Trooper Baker that she has been living in Massillon since March. Ms. Varner did not have proof of insurance or the vehicle registration. The male passenger provided Trooper Baker his identification and he was identified as Sean Harvey.
After Trooper Baker received identification from Ms. Varner and Mr. Harvey, at minute marker 7:38, he asked Ms. Varner to step out of the vehicle so he could speak with her further. He wanted to show her the vehicle defect that was the reason for the stop. The officers had not initiated a background check at that time. Before he showed Ms. Varner the obscured tag, Trooper Baker asked her where she was coming from. Ms. Varner said she was coming from her house in Massillon. Trooper Baker determined that was odd because Ms. Varner’s vehicle passed him going northbound on I-77, about ten miles south of U.S. Route 30. If she was coming from Massillon, from where he saw her on I-77 North and where he stopped her on I-77 North, Trooper Baker determined she would have taken U.S. Route 30 east to I-77. Ms. Varner then she said she was coming from Mr. Varner’s cousin’s house. She could not tell Trooper Baker what Mr. Harvey’s cousin’s name was or where the cousin lived. In law enforcement parlance this is called a ‘clue’.
Trooper Baker asked Ms. Varner where she was heading. Ms. Varner said she was getting something to eat. He again determined her statement was odd because it was after 10:00 p.m. and there were young children in the vehicle. Trooper Baker testified that when he asked Ms. Varner questions, she paused before answering and it appeared to him that she was trying to think of an answer.
Based on the discrepancies in Ms. Varner’s stories, he placed Ms. Varner in the rear of his cruiser at minute marker 10:29. Trooper Baker went back to the stopped vehicle and asked Mr. Harvey where they were headed. Mr. Harvey said they had come from his cousin’s house in Massillon and Ms. Varner was driving him home. At minute marker 12:15, Trooper Baker asked Mr. Harvey to exit the vehicle because his statement contradicted Ms. Varner’s. Trooper Baker conducted a safety search on Mr. Varner and Mr. Harvey was seated in the back of Sergeant Timberlake’s cruiser.
Trooper Baker gave Sergeant Timberlake Ms. Varner and Mr. Varner’s information. As Sergeant Timberlake ran their information through LEADS, Trooper Baker got Rexey out of his patrol car to conduct a narcotic sniff on the exterior of the stopped vehicle. At minute marker 14:03, Trooper Baker and Rexey are seen at the rear of the vehicle. Rexey is trained to stop and sit when he smells the odor of narcotics, not the location of narcotics. At time marker 14:28, the dash cam video shows Rexey indicating on the passenger side of the vehicle by stopping and sitting. After Rexey indicated on the vehicle, Trooper Baker praised him, put him up, and went back to the stopped vehicle. Trooper Baker and Sergeant Timberlake got the children out of the car. The officers then performed a probable cause search of the vehicle.
The probable cause search revealed a female’s boot containing a bag of heroin located in the trunk of the stopped vehicle. Trooper Baker read both Ms. Varner and Mr. Harvey their Miranda rights. Ms. Varner said the boot belonged to her cousin, who left it in the vehicle from the night before. Mr. Harvey admitted knowledge of the heroin. State’s Exhibit B showed the length of time between Trooper Baker’s approach of the stopped vehicle to Rexey’s indication of the smell of narcotics was approximately 8.84 minutes.
On August 3, 2021, the trial court issued its judgment entry denying Mr. Harvey’s motion to suppress. The trial court found Trooper Baker had probable cause to stop the vehicle, the length of the traffic stop was reasonable, and Mr. Harvey’s statements after the administration of his Miranda rights were knowingly and voluntarily made.
Mr. Sean Harvey was indicted by the Stark County Grand Jury on two charges:
(1) Possession of a fentanyl-related compound, a first-degree felony in violation of O.R.C. § 2925.11(A)(C)(11)(E);
(2) Possession of heroin, a second-degree felony in violation of O.R.C. § 2925.11(A)(C)(6)(d).
Mr. Harvey entered a plea of not guilty to the charges.
We note that Mr. Harvey does not seek to show on appeal that the underlying traffic stop itself was improper. The trial court determined Trooper Baker had probable cause to stop the vehicle based on his observation that the registration tag was obscured. O.R.C. § 4503.21 requires that registration tags be displayed in plain view. Rather, the parties dispute whether the stop’s scope and duration expanded beyond that which was
necessary to effectuate the original purpose of the stop.
How Long Can a Law Enforcement Officer Detain a Motorist?
“[W]hen detaining a motorist for a traffic violation, an officer may delay a motorist for a time period sufficient to issue a ticket or warning.’” State v. Elliot, 2019 – Ohio – 4411.
The scope and duration of a routine traffic stop “must be carefully tailored to its underlying justification … and last no longer than is necessary to effectuate the purpose of the stop.” State v. Latona, 2011-Ohio-1253, quoting Florida v. Royer, 460 U.S. 491, (1983).
The measure of the time period includes the time sufficient to run a computer check of the driver’s license, registration, and vehicle plates. State v. Elliot, 2019-Ohio-4411. Additionally, “‘[I]n determining if an officer completed these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation.’” State v. Carlson, 102 Ohio App.3d 585, 598-599 (1995).
Utilization of a Law Enforcement Canine
The use of a drug-detection dog does not constitute a “search,” and an officer is not required, prior to a dog sniff, to establish either probable cause or a reasonable suspicion that drugs are concealed in a vehicle. Illinois v. Caballes, 543 U.S. 405, 409 (2005).
The officer needs no suspicion or cause to “[R]un the dog around” the stopped vehicle if he does it contemporaneously with the legitimate activities
associated with the traffic violation. See Caballes, 543 U.S. at 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (upholding constitutionality of dog sniff
conducted by an officer—“[W]hile [a second officer] was in the process of writing a warning ticket, [the second officer] walked his dog around[Caballes’s] car” — and stating that the use of the dog during Caballes’s traffic stop “[did] not implicate legitimate privacy interests” because “the dog sniff was performed on the exterior of [Caballes’s] car while he was lawfully seized for a traffic violation”).
In this case, the purpose of the traffic stop had yet to be fulfilled when Trooper Baker made the decision to walk his Canine Rexey around the exterior of the stopped vehicle. Trooper Baker, travelling with his Canine Rexey, initiated the traffic stop based on a traffic violation. Sergeant Timberlake stopped at the scene with Trooper Baker. When asked for her driver’s license, vehicle registration, and proof of insurance, Ms. Varner only provided Trooper Baker with her driver’s license. “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 (1979).
Trooper Baker asked Ms. Varner to exit the vehicle to show her the reason for the stop, the obscured registration tag. He asked Ms. Varner where she was coming from and where she travelling to. An officer may ask the driver about matters unrelated to the traffic stop itself, so long as those questions do not measurably extend the stop. State v. Bergk, 2022-Ohio-578.
“[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” Muehler v. Mena, 544 U.S. (2005).
Trooper Baker became suspicious that further criminal activity was afoot based on Ms. Varner’s answers to his questions and Mr. Harvey’s conflicting answers to the same questions. “An officer may not expand the investigative scope of the detention beyond that which is reasonably necessary to effectuate the purposes of the initial stop unless any new or expanded investigation is supported by a reasonable, articulable suspicion that some further criminal activity is afoot.” State v. Whitman, 2009 – Ohio-5647.
Trooper Baker then seated Ms. Varner in the rear of his patrol car, asked Mr. Harvey to exit the vehicle, and seated Mr. Varner in the rear of Sergeant Timberlake’s patrol car. Trooper Baker gave Sergeant Timberlake Ms. Varner and Mr. Harvey’s information to look up on LEADS. While Trooper Baker was waiting for Sergeant Timberlake’s computer check on the driver’s licenses, missing vehicle registration and proof of insurance, he walked Rexey around the exterior of the stopped vehicle. The entire process, from Trooper Baker’s approach of the vehicle to Rexey’s passive indication of narcotics, took approximately nine minutes.
We have held that “[T]he pertinent question is not whether the dog sniff occurs before or after the officer issues or could have issued the initial ticket, but whether the dog sniff adds time to the stop.”. State v. Perkins, 2019 – Ohio – 4328.
In this case, we do not find there is evidence to suggest that Mr. Harvey’s detention for the traffic violation was of sufficient length to make it constitutionally dubious.
There was no delay caused by calling for a narcotics-detection dog and waiting for its arrival because Rexey was already on the scene. Mr. Harvey was lawfully detained, and the purpose of the traffic stop had yet to be fulfilled, so there was no Fourth Amendment violation in Trooper Baker’s decision to walk Rexey around the stopped vehicle.
Information for this article was obtained from State. v. Harvey, 2022 – Ohio – 3111.
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.
- The Fifth District Appellate Court affirms the legal bright line that law enforcement may not extend a traffic stop for a canine sniff. The court does well to provide some of the many cases that provide the bright legal lines for law enforcement on canine traffic stops.
- THE most instructive excerpt is from State v. Perkins, 2019 – Ohio – 4328 as the Fifth District opined “[T]he pertinent question is not whether the dog sniff occurs before or after the officer issues or could have issued the initial ticket, but whether the dog sniff adds time to the stop.”.
- The court also provided instruction that there is no constitutional stopwatch … The scope and duration of a routine traffic stop “must be carefully tailored to its underlying justification … and last no longer than is necessary to effectuate the purpose of the stop.” State v. Latona, 2011-Ohio-1253, quoting Florida v. Royer, 460 U.S. 491, (1983).
- In this case both Tr. Baker and Sgt. Timberlake should be highly commended for their investigative prowess, tenacity and constitutional actions that led to a successful investigation and prosecution of Mr. Harvey. Though not mentioned in the court’s analysis, Tr. Baker and Sgt. Timberlake may have prevented a tragedy as two children were traveling in this rolling heroin den. Clearly Ms. Varner assisted the troopers by telling Tr. Baker that she was visiting her cousin but inexplicably could not remember what the cousin’s name was. Well done Trooper Baker and Sgt. Timberlake!
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