Thus, we reject Mr. Harper’s argument that the way the troopers conducted the search resulted in three separate searches, each of which required its own separate reasonable suspicion or probable cause.
State v. Harper
2022 – Ohio – 4357
Fourth District Appellate Court
Scioto County, Ohio
Undated
This matter stems from a traffic stop on U.S. Route 23 in Scioto County, Ohio on the evening of Tuesday January 14, 2020. The record reflects that Ohio State Highway Patrol Trooper Anthony Day was traveling southbound near mile post #14 when he witnessed a white van in the right lane “travel across the white fog line [on] two occasions by at least a half tire width.” Trooper Day initiated a stop of the vehicle where he encountered the driver, Jelani Harper, and Bryan Allen, who was a passenger in the car. The trooper initially noted that the license plate on the van didn’t match the information in the system. The plate matched a Toyota, rather than the Dodge minivan that Mr. Harper was driving. Additionally, the two men gave what the trooper considered to be suspicious information, claiming that they were traveling to West Virginia for what one called “masonry” work and the other called “missionary” work. Perhaps the missionary work involved masonry repair?
Co-conspirators Mr. Harper and Mr. Allen were stopped on State Route 23 in Southern Ohio near mile post #14. A vehicle search resulted in the discovery of a black package that contained eleven different baggies with a total of approximately 1000 pills that were later determined to be oxycodone. Mr. Harper was, charged, convicted and sentenced. He claimed that the search of his vehicle was unlawful, the Fourth District Appellate Court had to determine if the troopers actions were lawful.
Trooper Day questioned why neither of them appeared to be dressed for that type of work and had no luggage or extra clothing in the van. Additionally, the record reveals that Mr. Allen had no identification with him, which the trooper found suspicious considering the two men claimed they were driving to West Virginia to find work.
Because Mr. Allen lacked identification, dispatch was not immediately able to confirm his information. During this time, Trooper Nick Lewis arrived as back- up. While waiting on information regarding Mr. Allen from dispatch, Trooper Day made the decision to walk his canine around the vehicle. After the canine alerted on the driver’s side back door area of the van, both Mr. Harper and Mr. Allen were read their Miranda rights and placed in the back of Lewis’s cruiser so that the troopers could search the van.
The record reflects that the subsequent search of the van took just under three hours and was started and stopped three times. The troopers initially searched the interior of the van while Mr. Harper and Mr. Allen waited in the back seat of the cruiser. While in the cruiser, the men were being video and audio recorded as they watched the search take place. When the troopers failed to locate drugs hidden in the interior of the van during the initial part of the search, they removed the men from the cruiser, had them get back into their van, and the troopers then reviewed the video and audio footage from inside the cruiser. The troopers repeated this pattern twice: placing the men in the cruiser, searching the van, removing the men from the cruiser, reviewing video footage, and then resuming the search.
Based upon statements and body movements of the men, they then resumed their search of the van to areas that seemed to be of interest to the men based upon their conversation in the back of the cruiser. Finally, the troopers located a black package that contained eleven different baggies with a total of approximately 1000 pills that were later determined to be oxycodone. The package was hidden behind an interior panel located on the rear passenger side of the van near the wheel well.
As a result, both men were placed under arrest. Mr. Harper was subsequently indicted on February 12, 2020, on one count of aggravated trafficking in drugs in violation of O.R.C. §2925.03(A)(2) and (C)(1)(e), a first-degree felony;
One count of aggravated possession of drugs in violation of O.R.C. §2925.11(A) and (C)(1)(d), a first-degree felony;
One count of possessing criminal tools in violation of O.R.C. §2923.24(A) and (C), a fifth-degree felony and;
One count of conspiracy in violation of O.R.C. §2923.01(A)(1) and (J)(2), a second-degree felony.
Mr. Harper pled not guilty to the charges and the matter proceeded through the discovery process.
Mr. Harper filed a motion to suppress on May 4, 2020, asking that all evidence that was obtained as a result of the arrest, search, and seizure be suppressed. The motion argued that after the troopers initially searched the vehicle and found nothing, they illegally prolonged the search and wrongfully and illegally detained him while they then conducted two additional searches of his vehicle. Mr. Harper argued that after the troopers completed the initial search of his vehicle without discovering drugs or other contraband, they lacked reasonable suspicion to further detain him and continue searching. Mr. Harper also challenged the troopers’ practice of moving the men back and forth from the cruiser to their van while they reviewed the audio and video recordings from the cruiser. Mr. Harper argued that the practice “was a ruse, and thereby a further illegal detention, to gain information of whether there was contraband in the vehicle.”
A hearing was held on the motion to suppress where the State presented testimony from Trooper Day. Five different videos from both Tr. Day’s and Tr. Lewis’s cruisers were played and admitted into evidence during the hearing. Trooper Day testified regarding the fog line violation that led to the initial stop, the alert of the canine, as well as the process used to obtain clues from Mr. Harper and Mr. Allen to assist in the search of the van. Trooper Day testified that upon reviewing the video, he was able to hear Mr. Allen ask Mr. Harper “if they found it,” to which Mr. Harper replied “no but they’re close.” The trial court noted that it could not hear that on the video. The trial court ultimately denied the motion to suppress on August 4, 2020, and the matter proceeded.
Mr. Harper subsequently filed a supplemental motion to suppress on May 11, 2021. The supplemental motion challenged the initial stop of the vehicle in light of a new case released by the Supreme Court of Ohio addressing whether a fog line violation constitutes reasonable, articulable suspicion to initiate a traffic stop. See: Who was Right? M.C. Hammer or the Supreme Court of Ohio for a full analysis of State v. Turner.
A second suppression hearing was held on August 6, 2021. Mr. Harper argued the initial stop was based on Trooper Day’s “uncorroborated observation that Mr. Mr. Harper’s tires had crossed one half tire width onto the fog line at the side of southbound Route 23” and that “the Ohio Supreme Court [had] recently determined that the facts relied on by Trooper Day to make a stop are not a violation of the motor vehicle code.” In his motion, Mr. Harper maintained that he only drove “onto” the fog line and that he did not cross it, and thus, that he did not violate R.C. 4511.33 in light of the recent Supreme Court holding. A second suppression hearing was held where Trooper Day once again testified. The trial court ultimately found, based upon its review of the video and testimony by Trooper Day, that the tire crossed the outside portion of the line and that a violation occurred. Thus, the trial court denied the supplemental motion to suppress.
Thereafter, Mr. Harper entered into a plea agreement whereby he agreed to plead no contest to all four of the charges contained in the indictment. A sentencing hearing was held on August 20, 2021, and the trial court issued a judgment entry of sentence on September 16, 2021. In total, Mr. Harper was sentenced to a mandatory minimum prison term of 9 years to an indefinite maximum prison term of up to 14 years. It is from this final order that Mr. Harper now brings his timely appeal, setting forth two assignments of error for our review.
Appeal
In his second assignment of error, Mr. Harper contends that the trial court erred in finding the search of the vehicle, which resulted in the discovery of contraband, was the result of a legal and proper detention considering the totality of the circumstances. Mr. Harper argues that the initial search of the van was based upon the probable cause afforded to the troopers as a result of the canine alert, but that once the initial search of the van was concluded without finding any contraband, “there was no constitutional basis to further detain him or search the vehicle again and that subsequent searches of the vehicle were the result of an illegally prolonged detention.” Mr. Harper challenges the troopers’ search methods, specifically the practice of transferring defendants from car to car while reviewing the in-car cruiser cam footage to discover clues about where contraband might be concealed. Further, rather than describing the search at issue as one long search, Mr. Harper argues that the troopers actually conducted three separate searches of the van, having probable cause to conduct only the first search. Mr. Harper argues that the alleged second and third searches were only based upon the troopers’ hunch that there was contraband in the vehicle, rather than reasonable, articulable suspicion, or probable cause.
The State responds by arguing that law enforcement had probable cause to search Mr. Harper’s van in light of the canine alert and that the search was conducted pursuant to the automobile exception, which is an exception to the warrant requirement. The State argues that once the canine alerted on the vehicle, the traffic stop shifted “to an illegal narcotic investigation and duration [was] no longer an issue.” The State further argues that the searches that were conducted were simply a continuation of the initial search, not multiple different searches requiring separate probable cause.
Initial Stop
A police officer may stop the driver of a vehicle after observing a de minimis violation of traffic laws. Whren v. United States, 517 U.S. 806, (1996). See also Wh(r)en is it lawful to stop a vehicle?.
In light of our disposition of Mr. Harper’s first assignment of error, we are proceeding under the premise that the stop of Mr. Harper’s vehicle was constitutionally valid based upon Trooper Day’s observation of a de minimis traffic violation, i.e., specifically twice driving across the fog line in violation of O.R.C. §4511.33(A)(1), as well as the recent decision by the Supreme Court of Ohio in State v. Turner, supra. Thus, we turn our attention to the subsequent investigative detention that ensued after the initial stop.
Canine Sniff and Duration of Stop
Generally, “[W]hen a law enforcement officer stops a vehicle for a traffic violation, the officer may detain the motorist for a period of time sufficient to issue the motorist a citation and to perform routine procedures such as a computer check on the motorist’s driver’s license, registration and vehicle plates.” Rodriguez v. United States, 575 U.S. 348, (2015) (ordinary inquiries incident to a traffic stop include “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance”). “ ‘In 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.’ ” Aguirre at ¶ 36, quoting Carlson at 598, in turn citing State v. Cook, 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992) (fifteen-minute detention was reasonable). See also United States v. Sharp, 470 U.S. 675, 105 S.Ct. 1568 (1985) (twenty-minute detention was reasonable).
Additionally, once a driver has been lawfully stopped, an officer may order the driver to get out of the vehicle without any additional justification. Pennsylvania v. Mimms, 434 U.S. 106, 111, (1977). However, “the officer must ‘carefully tailor’ the scope of the stop ‘to its underlying justification,’ and the stop must ‘last no longer than is necessary to effectuate the purpose of the stop.’ ” Florida v. Royer, 460 U.S. 491, 500, (1983). “An officer may lawfully expand the scope of the stop and may lawfully continue to detain the individual if the officer discovers further facts which give rise to a reasonable suspicion that additional criminal activity is afoot.” Marcinko at ¶ 26, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and State v. Robinette, 80 Ohio St.3d 234, 241 685 N.E.2d 762 (1997).
Further, a lawfully detained vehicle may be subjected to a canine check of the vehicle’s exterior even without the presence of a reasonable suspicion of drug-related activity. See State v. Dukes, 4th Dist. Scioto Nos. 16CA3745, 16CA3760, 2017-Ohio-7204, ¶ 23, citing State v. Rusnak, 120 Ohio App.3d 24, 28, 696 N.E.2d 633 (6th Dist.1997). “Both Ohio courts and the United States Supreme Court have determined that ‘the exterior sniff by a trained narcotics dog to detect the odor of drugs is not a search within the meaning of the Fourth Amendment to the Constitution.’ ” United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983). Thus, a canine check of a vehicle may be conducted during the time period necessary to effectuate the original purpose of the stop.
This Court has observed that during the lawful detention of a vehicle, “officers are not required to have a reasonable, articulable suspicion of criminal activity in order to call in a canine unit to conduct a canine sniff on the vehicle.” State v. Feerer, 12th Dist. Warren 2008- Ohio-6766. “Because the ‘exterior sniff by a trained narcotics dog is not a search within the meaning of the Fourth Amendment to the Constitution,’ a canine sniff of a vehicle may be conducted even without the presence of such reasonable, articulable suspicion of criminal activity so long as it is conducted during the time period necessary to effectuate the original purpose of the stop.” Id. See also United States v. Place, supra. “A drug sniffing dog used to detect the presence of illegal drugs in a lawfully detained vehicle does not violate a reasonable expectation of privacy and is not a search under the Ohio Constitution.” State v. Waldroup, 100 Ohio App.3d 508, 514, (12th Dist. 1995).
Further, “[A]n officer may expand the scope of the stop and may continue to detain the vehicle without running afoul of the Fourth Amendment if the officer discovers further facts which give rise to a reasonable suspicion that additional criminal activity is afoot.” State v. Robinette, supra, at 240. The Robinette court explained at paragraph one of the syllabus: “When a police officer’s objective justification to continue detention of a person … 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.”
Conversely, “[I]f a law enforcement officer, during a valid investigative stop, ascertains ‘reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may then further detain and implement a more in-depth investigation of the individual.’ ” Robinette at 241.
However, the United States Supreme Court in Rodriguez v. United States, supra, has held that while a police officer “[M]ay conduct certain unrelated checks during an otherwise lawful traffic stop … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez at 1615. Accordingly, the Court concluded that police officers may not extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. Id. at 1614-1617.
Finally, “[I]n determining whether a detention is reasonable, the court must look at the totality of the circumstances.” State v. Matteucci, 11th Dist. Lake No. 2001-L-205, 2003-Ohio-702, ¶ 30. The totality of the circumstances approach “[A]llows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, (2002), quoting United States v. Cortez, 449 U.S. 411, 418, (1981). However, as explained above, in the absence of reasonable suspicion, a canine sniff cannot serve to extend an otherwise completed traffic stop. With respect to the duration of the stop, it has been noted that a timeframe of approximately 15 minutes should be sufficient, on average, to complete the necessary checks and be ready to issue a traffic citation. See Dukes at ¶ 30, citing State v. White, 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202, ¶ 22, and State v. Brown, 183 Ohio App.3d 337, 2009-Ohio-3804, 91 N.E.2d 1138, ¶ 23 (6th Dist.). But see State v. Alexander-Lindsey, supra, (approving the deployment of K-9 twenty-two minutes into the stop).
Here, as set forth above, Trooper Day’s initial information-gathering encounter with Mr. Harper and Mr. Allen was slowed down due to the fact that the license plate on the Dodge van the men were driving was registered to a Toyota. Additionally, the trooper testified that the information he was given by the men regarding their destination and purpose was suspicious in that one of the men claimed they were driving to West Virginia to seek “masonry” work while the other stated they were looking for “missionary” work. The trooper clarified that it was masonry work they were seeking, but noted that they were not dressed for that type of work and had no luggage or change of clothes with them in their van. Further, Mr. Allen had no identification with him, which Trooper Day testified was unusual considering he was going to West Virginia to find work.
While Trooper Day was still waiting on the information he requested from dispatch regarding the occupants of the car, which took longer than necessary because Mr. Allen had no identification and the initial report from dispatch stated there was no information on him on file, he decided to walk his dog around the vehicle. Because Trooper Day was still awaiting the requested information, he had not begun to issue either a verbal or written warning or citation at the time the canine sniff was conducted. Further, at the time the trooper’s dog alerted on the vehicle, only 14 minutes had elapsed from the time of the initial stop. Thus, the canine sniff did not impermissibly extend the traffic stop here.
The Automobile Exception
Canine Alerts and Probable Cause
Finally, under the “automobile exception” to the warrant requirement, police officers may perform a warrantless search of a vehicle so long as they have probable cause to believe the vehicle contains contraband or evidence of a crime. See State v. Robinson, 4th Dist. Lawrence No. 14CA24, 2016-Ohio-905, ¶ 26, citing State v. Chaffins, 4th Dist. Scioto No. 13CA3559, 2014-Ohio-1969, ¶ 18, and State v. Williams, 4th Dist. Highland No. 12CA7, 2013-Ohio-594, ¶ 25. “ ‘Moreover, if a trained narcotics dog “alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband.” ’ ” Robinson at ¶ 26, quoting State v. Cahill, 3d Dist. Shelby No. 17- 01-19, 2002-Ohio-4459, ¶ 22, in turn quoting State v. French, 104 Ohio App.3d 740, 749, 663 N.E.2d 367 (12th Dist. 1995). See also Williams, supra, at ¶ 25, quoting State v. Johnson, 6th Dist. Lucas No. L-06-1035, 2007-Ohio-3961, ¶ 9, in turn quoting State v. Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 22 (6th Dist.) (“ ‘ “when a [drug] dog alerts to the presence of drugs, it gives law enforcement probable cause to search the entire vehicle” ’ ”).
Here, Trooper Day testified that the canine alerted to the presence or scent of illegal substances in the vehicle. Therefore, the law enforcement officers had probable cause to conduct a warrantless search of Mr. Harper’s vehicle for contraband. This probable cause extended to the entire vehicle and there was no time limit in conducting the search. For example, in State v. Williams, supra, this Court found that officers were permitted to stop a search in order to take the vehicle to an impound lot where they could resume their search under better and safer conditions without obtaining a warrant to do so, based upon the reasoning that the same probable cause that existed at the time of the initial search still existed at the impound lot. Williams at ¶ 26-27.
Thus, we reject Mr. Harper’s argument that the way the troopers conducted the search resulted in three separate searches, each of which required its own separate reasonable suspicion or probable cause. Trooper Day testified at length regarding the normal process he employs when searching a vehicle, including the many tools at his disposal such as review of the in-car cruiser cam footage. The trial court found that only one search took place and we conclude this finding by the trial court is supported by competent, credible evidence. Moreover, in addition to our reasoning set forth in Williams, supra, this Court has previously determined that once a trained drug dog alerts to the odor of drugs, police have probable cause to search the entire vehicle for drugs and may continue to search even if the passenger compartment contains no drugs. State v. Baum, 4th Dist. Ross No. 99CA2489, 2000 WL 126678, *3, citing State v. Calhoun, 9th Dist. Lorain No. 94CA5824, 1995 WL 255929 (May 3, 1995). See also State v. White, supra, at ¶ 23 and State v. Gurley, supra, at ¶ 28. Therefore, the canine’s positive indication on the vehicle provided the troopers with probable cause to search the entire vehicle.
Because neither the initial traffic stop, investigatory detention, nor search of Mr. Harper’s vehicle violated the Fourth Amendment, we conclude that the trial court did not err in overruling his motions to suppress evidence. Accordingly, Mr. Harper’s second assignment of error is overruled.
Furthermore, having found no merit to either of Mr. Allen’s assignments of error, the judgment of the trial court is affirmed.
Information for this article was obtained from State v. Harper, 2022 – Ohio – 4357.
This case was issued by the Fourth District Appellate Court and is binding in the following Ohio Counties: Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington.
Lessons Learned:
- Mr. Jelani Harper’s first attack on the investigation originated on the traffic stop. Did he simply touch the fog line or did he cross it? Why is this such an issue? Because on December 22, 2020, the Supreme Court of Ohio wrestled with this question in another case that began with the Ohio State Highway Patrol in Southwest, Ohio. In that case Mr. Ryan Turner simply touched the fog line and did not cross it, the court held that it was not a violation and negated the traffic stop as the Supreme Court of Ohio held “Because Turner did not cross the single solid white longitudinal line – the fog line – and driving on it or touching it is not prohibited under R.C. 4511.33(A)(1), no violation occurred.”. In this case Mr. Harper actually crossed the fog line so he violated the statute and the traffic stop by Trooper Anthony Day was lawful.
- The next challenge by Mr. Harper was more substantive. Both Trooper Day and Trooper Nick Lewis removed and returned Mr. Harper and his co-conspirator Mr. Bryan Allen to the vehicle three times, searching it each time. Because Trooper Lewis’ canine alerted and provided probable cause to search the vehicle, how many times can law enforcement search a vehicle after probable cause is established? As I have often trained, the Fourth Amendment has no time clock. Of course there are exceptions such as the knock and announcement rule, the Fresh Pursuit Doctrine and others, but generally the Fourth Amendment does not have a time clock. Ultimately on the third search a hidden compartment was discovered behind an interior panel located on the rear passenger side of the van near the wheel well. Therein a black package that contained eleven different baggies with a total of approximately 1000 pills that were later determined to be oxycodone. Consequently, the question; did the canine sniff probable cause become stale? Harper’s legal counsel nor the Fourth District Appellate Court applied the Stale Probable Cause Doctrine. This doctrine is instructive to frame the position the troopers were in, when they could not find the contraband after the canine had alerted. At what point does probable cause become stale? Probable cause will become stale when law enforcement obtains additional, intervening information that diminishes the probable cause that had been previously established. In this case, there was no intervening information that dispelled the probable cause that originated by the canine alert, therefore the probable cause did not become stale. For more on the Stale Probable Cause Doctrine see Eight Days After Probable Cause is Established does a Law Enforcement Officer Need an Arrest Warrant Before a Warrantless Arrest is Effected?.
- Can law enforcement dismantle portions of a vehicle during a probable cause search? Yes, so long as it is reasonable. For more on removing vehicle parts see “Can a Hidden Compartment be considered “Reasonably Accessible” for Purposes of a Vehicle Inventory?.
- Both Trooper Anthony Day, Trooper Nick Lewis and his unnamed canine should all be commended for the Fourth Amendment symphony that occurred roadside on Tuesday January 14, 2020. Well done team!
Does your agency train on Vehicle Searches?
Contact me at https://www.objectivelyreasonable.com/contact/
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!