Can a Traffic Stop be Extended for a Canine if the Suspect is Nervous and the ‘Account of Her Travels’ Did Not Make Sense?

[W]e conclude the police officer failed to articulate specific facts to support a reasonable suspicion justifying his prolonging the traffic stop for the purpose of a canine sniff of Ms. Byrd’s vehicle.

State v. Byrd

2022 – Ohio – 4635

Eighth District Appellate Court

Cuyahoga County, Ohio

December 22, 2022

The Eighth District Officer, who made the traffic stop, testified at the hearing, and his testimony was accompanied by a dash-cam video that recorded the entirety of the traffic stop. The officer testified that he had been a state trooper with the Ohio State Highway Patrol for five years before joining the North Olmsted Police Department two weeks before the hearing, and he had handled over 2,000 traffic stops as a state trooper.

On December 17, 2020, shortly before 11:05 a.m., while The Eighth District Officer’s patrol vehicle was stationary and he was observing traffic on I-71 near the Bagley Road exit in the city of Middleburg Heights, Ms. Tyra Byrd’s vehicle traveled northbound on the highway passing his patrol vehicle. Ms. Byrd’s vehicle drew his attention because Ms. Byrd was hugging the steering wheel, which, according to The Eighth District Officer, was an indication that the driver was nervous while driving past a police vehicle. The Eighth District Officer proceeded to drive behind Ms. Byrd’s vehicle. As he followed the vehicle, Ms. Byrd hit the brakes and made a lane change to exit the highway on the Bagley Road exit. The Eighth District Officer testified that, as the vehicle exited the highway, he observed the vehicle drive across the solid white line on the right-hand side of the road — known as the fog line. At that point, The Eighth District Officer decided to initiate a traffic stop.

After both vehicles traveled off the highway and drove a short distance, The Eighth District Officer turned on his lights and made the traffic stop at 11:05 a.m. He made contact with Ms. Byrd on the driver’s side door. He advised her of his observation of the marked lanes violation and asked for her driver’s license and insurance information. Ms. Byrd provided her license, a vehicle rental agreement, and insurance information for the vehicle. The Eighth District Officer asked her where she was traveling from. She replied that she came from “the mall” and was going to an Aldi store off the exit. Because Ms. Byrd was traveling on I-71 north from the Strongsville area, he asked her if she was traveling from the Strongsville mall, and she stated that she came from the Great Northern Mall in North Olmsted. The officer was surprised by the answer because the Great Northern Mall is located in North Olmsted on the west side of Cleveland and she was traveling north on I-71. The officer repeated his question, and Ms. Byrd again stated she was traveling from North Olmsted to go to Aldi.

The Eighth District Officer stopped Ms. Byrd at this exit at I-71 and Bagley Road as she explained she was traveling to the Aldi’s Store.

The Eighth District Officer then returned to his patrol vehicle to verify Ms. Byrd’s license and check to see if she had an outstanding warrant. He learned the license was valid at 11:09 a.m. The officer acknowledged that the traffic violation investigation was complete around 11:10 a.m. He testified, however, that based on his past experience as a state highway trooper, the driver’s nervousness and what he considered to be incongruous answers to his innocuous inquiry regarding her travel “were criminal indicators for me to suspect there’s something more than just the simple traffic stop for the marked lanes violation going on with this traffic stop.” The officer testified that, as he sat in his vehicle, he went over the account the driver provided about her travels and decided it did not make sense to him.

The officer then returned to Ms. Byrd’s vehicle and asked her again where she was traveling from. She again stated she was traveling from the Great Northern Mall and traveling to an Aldi store off the exit. She also added she went to a Speedway in North Royalton to get a special drink. The officer again found her answer implausible in light of the geographical location of the various places she mentioned. The officer also found Ms. Byrd to be talking fast, another sign of nervousness to him.

The Eighth District Officer then asked Ms. Byrd to exit her vehicle and come to his patrol vehicle. Ms. Byrd had a fanny pack on her person. Before she was placed in the backseat of the patrol vehicle, the officer asked her if she had a weapon on her person. She answered “no.” The officer then asked her if he could pat her down for weapons, to which she consented. After the pat-down, The Eighth District Officer asked Ms. Byrd to place her fanny pack on the hood of his vehicle before entering his cruiser. He said to her that “as long as you check out, I’m going to probably just write you a warning.”. The fanny pack was then returned to Ms. Byrd’s vehicle by The Eighth District Officer.

The Eighth District Officer testified he placed Ms. Byrd inside the patrol vehicle so he could talk to her further and determine whether she was nervous about getting a traffic ticket or if she was nervous for something else unrelated to the traffic violation. After Ms. Byrd was placed in the backseat of the patrol vehicle, he asked her again about her travels. She stated that she came from North Olmsted and then went to North Royalton — which is east of Strongsville — to go to a Speedway gas station for a specialty drink and she was heading to Aldi. She tried to show the officer that she had googled Speedway gas station on her phone. This was also odd to The Eighth District Officer because he knew there is a Speedway gas station in North Olmsted, and she could have gone there instead of the Speedway gas station in North Royalton. Her travel from Great Northern to Strongsville and then North Royalton and Aldi in the Berea – Middleburg Heights area did not make sense to him. It was suspicious to him because she appeared to add more details to her story of where she was traveling. He testified that in his experience as an officer, the nervousness and an account of her travels that did not “add up” were “criminal indicators.” The transcript reflects the following testimony:

Q: In your experience as an officer that kind of story not adding up and nervousness, what, if anything, is that indicative of?

A: [They are] criminal indicators and, also, that there’s something else going on with the traffic stop. Maybe guns, drugs or warrant or if you’re suspended. So I already checked off that she wasn’t suspended, that she doesn’t have a warrant. So I have the other two, basically, criminal stuff that’s involved.

Q. And you said those other two were guns and drugs? A. Guns – guns or drugs.

At 11:12 a.m., while Ms. Byrd was in the backseat of the patrol vehicle, The Eighth District Officer called for a canine unit to respond to the scene. While the officer waited for the arrival of the canine, he talked to Ms. Byrd about the offense of marked lanes violation, and they also conversed about her rental car. The officer testified he was writing out a warning ticket around this time but had not finished writing it when the canine arrived.

At 11:18 a.m., a canine officer accompanied by a dog from the Middleburg Heights canine unit arrived at the scene. The dog walked around the vehicle and then “alerted on the vehicle.” The Eighth District Officer read Ms. Byrd her Miranda rights and advised Ms. Byrd he would be searching her vehicle due to the canine’s alert. When The Eighth District Officer asked Ms. Byrd if there was a gun or drugs in her vehicle, Ms. Byrd disclosed that a gun was in her vehicle. The Eighth District Officer searched the vehicle and found a loaded handgun inside Ms. Byrd’s fanny pack. Ms. Byrd explained she carried the gun for protection. At the end of the traffic stop, the officer issued Ms. Byrd a warning ticket for the marked lanes violation and advised her that weapons charges would be filed.

The parties agreed that the dash-cam video indicated the traffic stop occurred at 11:05 a.m.; the officer learned the driver’s license was valid at 11:09 a.m.; the traffic investigation was concluded at 11:10 a.m.; the canine unit was called at 11:12 a.m.; and the canine arrived at 11:18 a.m. The officer acknowledged that, after 11:10 a.m., he went beyond the traffic violation matter.

The defense argued that there was no valid reason for the traffic stop and, furthermore, the traffic stop was extended to wait for a canine to arrive at the scene without a reasonable suspicion of criminal activity. Regarding the traffic stop, the trial court found the officer had probable cause to stop Ms. Byrd’s vehicle for a marked lanes violation. As to her claim of the unlawfully prolonged detention, the trial court found the detention beyond the investigation of the traffic violation was justified based on the totality of the circumstances.

After the trial court denied Ms. Byrd’s motion to suppress, she pleaded no contest to the charges of improperly handling firearms in a motor vehicle and carrying concealed weapons, both fourth-degree felonies. The court sentenced her to 18 months of community-control sanctions for her offenses. Ms. Byrd now appeals, raising a single assignment of error and arguing the trial court erred in denying her motion to suppress.

Validity of the Traffic Stop

O.R.C. §4511.33 defines the offense of marked lanes violation. The instant case involves a fog line, the single solid white line on the right-hand edge of a roadway. The Supreme Court of Ohio recently clarified that the statute prohibits crossing, but not touching, of a fog line. State v. Turner, 2020- Ohio-6773. Ms. Byrd argues the traffic stop was invalid because her tires touched but did not cross the fog line.

“[A] traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit a crime.” State v. Mays, 2008-Ohio-4539.

Here, Ms. Byrd’s operation of the vehicle was recorded in the patrol vehicle’s dash-cam video. The trial court found the video depicted the majority of a tire went over the fog line, and our own review of the video shows it captures a fleeting moment of the vehicle’s tire crossing the fog line. The pertinent question here, however, is not whether Ms. Byrd was guilty of the marked lanes violation but, rather, whether The Eighth District Officer had “probable cause to believe that a traffic violation has occurred.” Turner at ¶ 2. If so, the traffic stop was lawful. The trial court specifically found credible The Eighth District Officer’s testimony that he observed Ms. Byrd’s tire to have crossed the fog line into the berm. We are bound to accept the trial court’s finding of fact if it is supported by competent, credible evidence. The Eighth District Officer’s testimony coupled with the dash-cam video depicting Ms. Byrd’s tire momentarily crossing the fog line establishes that The Eighth District Officer had probable cause to believe a traffic violation had occurred, which justified his initiation of the traffic stop. We note that Ms. Byrd did not allege at trial nor argue on appeal that The Eighth District Officer was using the traffic violation as a pretext to investigate if she was engaging in any criminal activity. Therefore, we do not address that issue in this case.

Whether the Traffic Stop Was Unlawfully Prolonged

Ms. Byrd next argues the traffic stop was prolonged beyond the time necessary to complete the original purpose of the traffic stop, namely, to issue a traffic ticket or warning for the marked lanes violation. She argues the police officer had no reasonable suspicion to prolong the traffic stop for the purpose of waiting for the arrival of the canine after his investigation of the traffic matter had been completed. Having reviewed the pertinent case law authority, we agree.

Here, after the stop, The Eighth District Officer asked Ms. Byrd to provide her license and insurance information and he also asked her about her travels. When a police officer detains a motorist for a traffic violation, the officer may delay the motorist for a time period sufficient to issue a ticket or a warning and this measure includes the time sufficient to run a computer check on the driver’s license, registration, and vehicle plates. State v. Batchili, 2007-Ohio- 2204. An officer may also ask the driver about matters unrelated to the traffic stop itself, provided the questions do not measurably extend the stop. State v. Johns, 2019-Ohio-4269, citing Rodriguez v. United States, 575 U.S. 348, 354 (2015).

After the traffic investigation was completed, The Eighth District Officer extended the traffic stop because he found Ms. Byrd overly nervous and also found her account about her travels “not making sense.”

After Ms. Byrd was patted down and placed in the backseat of his patrol vehicle, The Eighth District Officer called for a canine unit to respond to the scene. As this court has also held, “[e]ven without a reasonable suspicion of drug-related activity, a lawfully detained vehicle may be subjected to a canine check of the vehicle’s exterior.” State v. Jones, 2014-Ohio-2763, Illinois v. Caballes, 543 U.S. 405, (2005) (an exterior dog sniff does not constitute a search within the meaning of the Fourth Amendment after a valid stop is initiated).

However, the detention of a stopped driver may continue beyond the normal time frame only when additional facts are encountered giving rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop.

In this case, the dash-cam video shows The Eighth District Officer handed a warning to Ms. Byrd at the end of the traffic stop, after the gun had been discovered in her vehicle. The evidence, however, is unclear as to the exact time the officer wrote the warning ticket for the marked lanes violation. Regardless, The Eighth District Officer acknowledged that the traffic violation investigation was completed at 11:10. He called for the canine unit at 11:12, and the canine unit arrived at 11:18 a.m.

Thus, the evidence reflects that the officer, after completing his traffic investigation, continued to detain Ms. Byrd to wait for the arrival of the canine unit. The Eighth District Officer testified that Ms. Byrd’s license was not suspended and there was no outstanding warrant for her and, therefore, what remained to be investigated was the possibility that there were drugs or guns in her vehicle. Several appellate districts have held that if “the duration of the traffic stop is extended in order to bring a drug sniffing dog to the scene, police must have a reasonable suspicion that the vehicle contains drugs in order to justify the continued detention.” State v. Kuralt, 2005-Ohio-4529, citing State v. Ramos, 2003-Ohio-6535.

The Eighth District Officer testified that his suspicion was based on Ms. Byrd’s nervousness and the account of her travels, which did not make sense to him. These observations at best support an inchoate and unparticularized hunch that criminal activity might be afoot. However, they do not constitute specific facts to support a reasonable suspicion justifying an officer extending a traffic stop so that a canine could confirm or dispel the officer’s suspicion about illegal drug or gun activity.

Having evaluated the totality of the circumstances in this case, we conclude the police officer failed to articulate specific facts to support a reasonable suspicion justifying his prolonging the traffic stop for the purpose of a canine sniff of Ms. Byrd’s vehicle. The trial court’s finding of reasonable suspicion justifying a canine sniff is not supported by competent credible evidence contained in the record. In the absence of a reasonable articulable suspicion justifying a canine sniff, the extension of her detention during the traffic stop infringed upon Ms. Byrd’s rights under the Fourth Amendment to the United States Constitution against unreasonable searches and seizures. Ms. Byrd’s second assignment of error is sustained.

The judgment of the trial court denying Ms. Byrd’s motion to suppress is reversed. Ms. Byrd’s conviction is vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion.

Information for this article was obtained from State v. Byrd, 2022 – Ohio – 4635.

This case was issued by the Eighth District Appellate Court and is binding in Cuyahoga County, Ohio.