… And Why Law Enforcement Should Never Use the word ‘Furtive’
Mr. Glow was acting excessively nervous and contradicting his own story. Mr. Wilson made furtive movements as if to conceal something in the vehicle, acted excessively nervous, and attempted to hide his face fromTrooper Hendricks. [emphasis added]
State v. Wilson
2023 – Ohio – 135
Fifth District Appellate Court
Licking County, Ohio
January 18, 2023
On March 9, 2019, Trooper Hendricks was on duty and was assigned to enforcement of traffic and criminal laws. Trooper Hendricks noticed a red Ford driving dangerously by almost rear-ending a gray Nissan, cutting off a commercial vehicle without leaving a safe distance, and following another car in front of him at a dangerously close distance. The registration on the vehicle was to a woman, Carla Wade. Trooper Hendricksonly observed two males in the front seat.
After pulling the vehicle over, Trooper Hendricks approached and noticed a female in the back who appeared to be just waking up. She was later identified as Ms. Sheeders. Trooper Hendricks also observed the passenger, Mr. Robert D. Wilson, was not wearing
a seat belt. Mr. Wilson stated he just took it off.
Trooper Hendricks then asked the driver to get out of the vehicle. The driver had been acting nervously with fast-paced breathing, making furtive movements and his hands were trembling. Mr. Wilson was also breathing quickly and had a hat pulled down attempting to conceal his face.
Upon questioning the driver, his answers to questions kept changing. He thought for a long time on answers to questions that should have been readily available to him. His answers also changed throughout the conversation.
Trooper Hendricks then called Deputy Vogelmeier to the scene to conduct a canine sniff. Deputy Vogelmeier arrived on scene about five minutes after the initial stop of the vehicle. This five-minute delay would be at the center of Mr. Wilson’s appeal.
The canine indicated the presence of a controlled substance in the vehicle. Upon a search of the vehicle, officers located a rolled up twenty-dollar bill with heroin
residue on it, a couple empty baggies with residue, and two syringes, which Mr. Wilson put under his seat when the vehicle was stopped, and a handgun. Trooper Hendricks also found a boot in the trunk of the car which contained over thirteen grams of heroin.
While in the back of the cruiser, the camera caught Ms. Sheeders referring to Mr. Wilson throwing two syringes under the seat and inquiring if law enforcement found the heroin. The camera also recorded the driver, Mr. Glow, inquiring if Mr. Wilson just put the heroin in a boot in the trunk. Mr. Wilson was also recorded telling Mr. Glow his only way out is to “roll.” Mr. Glow then asked Mr. Wilson, “did you really just put it in a boot?”
On May 28, 2021, the trial court denied Mr. Wilson’s Motion to Suppress.
On September 23, 2021, a jury trial was held. At trial, Emily Harstel testified the substance found in the boot of the car contained heroin.
Trooper Hendricks Testimony
Next, Trooper Hendricks testified that on March 9, 2018, he stopped the vehicle Mr. Wilson was in for multiple traffic violations. Upon pulling the vehicle over, Trooper Hendricks testified Mr. Wilson was bent over in the front passenger seat, shuffling around and making furtive movements. Both the driver and Mr. Wilson were acting more nervous than a typical traffic stop. Mr. Wilson was not wearing his seat belt when Trooper Hendricks approached the vehicle.
After Trooper Hendricks observed the strange behavior of the occupants of the vehicle, he asked the driver to accompany him to his cruiser after he consented to a pat down. The driver initially told the trooper they were coming from Columbus, but quickly changed his story they were coming from Cincinnati. Trooper Hendricks notes conflicting stories within a short time frame is an indicator of criminal activity. Trooper Hendrickscontacted Deputy Vogelmeier, a canine officer.
Deputy Vogelmeier arrived around five minutes after being contacted. Deputy Vogelmeier took his canine around the vehicle and the canine alerted to the odor of
narcotics. During the search, Deputy Vogelmeier found a twenty-dollar bill with heroin residue on it in Mr. Wilson’s pocket. There were two syringes found in the vehicle. Mr. Wilson admitted they were his. Trooper Hendricks found a large quantity of heroin stuck inside a boot in the trunk of the vehicle.
Mr. Wilson and Mr. Glow both offered to provide Trooper Hendricks with information on where they obtained the heroin and who sold it to them. Trooper Hendricks also observed recorded statements between Mr. Glow and Ms. Sheeders. The recordings show them discussing identifying their supplier in exchange for a more lenient sentence. Also on the recording Ms. Sheeders identified Mr. Wilson as the individual who placed the heroin in the trunk.
Deputy Vogelmeier Testimony
Next, Deputy Vogelmeier testified he is a canine officer with the Central Ohio Drug Enforcement Task Force. On the morning of March 9, 2018, he received a call
from Trooper Hendricks to do a free air sniff. Trooper Hendricks had observed furtive
movements, nervous behaviors, and contradictory stories.
Before beginning the free air sniff, Deputy Vogelmeier instructed Mr. Wilson to roll up his window and place his hands on the dashboard for safety concerns. He asked Ms. Sheeders to place her hands on the headrest in front of her. Mr. Wilson attempted to exit the vehicle. This is typical with someone showing signs of extreme anxiety, attempting to distance himself from what is in the vehicle.
Deputy Vogelmeier then conducted a free air sniff around the vehicle. The canine alerted to the presence of narcotics on the passenger side of the vehicle and the
driver side of the vehicle. Deputy Vogelmeier then asked Mr. Wilson to step out of the vehicle and consent to a search of his person, which he did. The deputy found a large amount of U.S. currency rubber banded together out of his left pocket. This is typical in the world of narcotics. His right pocket had a crumpled up twenty-dollar bill containing heroin from his right pocket. The heroin was the same color and grade as the heroin found in the trunk of the vehicle. He also testified officers found syringes without a cap and a tie-off. This is indicative of recent drug use. Mr. Wilson admitted to ownership of the syringes.
Verdict
On September 23, 2021, the jury found Mr. Wilson guilty on the sole count of the indictment. The trial court sentenced Mr. Wilson to four years in prison
Appeals
Prolonging a Traffic Stop
“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, (1997)
An officer may briefly extend a traffic stop to inquire about the presence of illegal drugs or weapons. Id. 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. Id. Therefore, “[T]he critical question, then, is not whether thedog 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 (2015).
Impact of Nervousness on Prolongation of Traffic Stop
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 (1st Dist.1996).
In State v. Sealey, 2020 – Ohio – 987 the Eleventh District found that extremely nervous behavior and excessive air fresheners amounted to reasonable articulable suspicion was enough to prolong the traffic stop.
Similarly, in the case sub judice, Mr. Glow was acting excessively nervous and contradicting his own story. Mr. Wilson made furtive movements as if to conceal something in the vehicle, acted excessively nervous, and attempted to hide his face from Trooper Hendricks. [emphasis added]
Holding
Considering a totality of the circumstances, the record supports finding Trooper Hendricks had the reasonable, articulable suspicion of drug activity
necessary to prolong the traffic stop.
Note: There were four additional appeals that were filed by Mr. Wilson and the Fifth District denied those too. The additional four appeals are not evaluated in this article.
Information for this article was obtained from State v. Wilson, 2023 – Ohio – 135.
This case was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned:
- Law enforcement cannot extend a traffic stop for additional investigation without the delay being Objectively Reasonable. In 1997 the Supreme Court of Ohio specifically addressed the factors that would be evaluated in justifying the delay; “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, (1997). Here, Ohio State Highway Patrol Trooper Samuel Hendricks established the delay by articulating the conflicting stories – whether the drug couriers were traveling from Columbus or Cincinnati. The occupants were nervous “The driver had been acting nervous with fast-paced breathing, making furtive movements and his hands were trembling. Mr. Wilson was also breathing quickly and had a hat pulled down attempting to conceal his face.”.
- In the case the court used the verb ‘furtive’. Though furtive is a common word used in law enforcement, I am a strong opponent of officers using this word. Why? Because the word simply means secretive. What did the driver actually do? His actions are unknown because the court simply states his actions were ‘furtive’. Law enforcement should specifically describe what the person did such as; “The driver reached under the driver’s seat.”, “The driver reached into the center console.”, “The driver reached into the glove box.”, etcetera. The point being is a detailed description of the person’s movement is much better for the prosecutor, judge, defense attorney … and ultimately law enforcement. Providing a detailed explanation of the suspects actions is better as details provide clarity rather than the word furtive. Recalling a suspects actions weeks, months or years later is challenging and if the report only states the suspect made a ‘furtive motion’, that is unhelpful at best. Be specific … not ambiguous.
- Specific to the nervousness the Eleventh District Appellate Court held in 2020 “[C]onsidering Mr. Sealey’s continued and excessive nervousness, his criminal history, and the excessive use of air fresheners, we find Officer Swindell had reasonable, articulable suspicion of drug activity sufficient to prolong the initial traffic stop to await the arrival of the canine unit.”. State v. Sealey, 2020 – Ohio – 987. However, nervousness alone will not justify an investigative detention. Nervousness must be coupled with other factors, evaluated on a case-by-case basis, to rise to the level of Reasonable Suspicion.
- Law enforcement is limited to delay a traffic stop beyond the initial purpose of the stop as the U.S. Supreme Court held in 2015 “[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 (2015). In this case because Trooper Hendricks did well to articulate all the factors during the traffic stop, that the Fifth District Appellate Court determined that his actions in delaying the stop comported with the Rodriguez Well done Trooper Hendricks!
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