[T]he nature of the encounter did not run afoul of Mr. Harris’s Fourth Amendment protections. Deputy Martens was permitted to ask Mr. Harris to exit the vehicle, need not have developed probable cause to call for a canine sniff, and canine Harry’s alert on the Ford established probable cause to search the entire vehicle and Mr. Harris’s backpack.
State v. Harris
2023 – Ohio – 1544
Fifth District Appellate Court
Licking County, Ohio
May 8, 2023
On February 15, 2022, an undercover detective assigned to the Central Ohio Drug Enforcement Task Force observed a red Ford Focus leaving a Hudson Avenue home in Newark, Ohio which the task force had under surveillance. The detective watched the driver fail to signal before changing lanes. He radioed Licking County Sheriff’s Deputy Benjamin Martens who was nearby and who performed a traffic stop of a red Ford Focus.
Mr. Joshauan Harris was a backseat passenger in the vehicle. Dep. Martens ordered the driver and all three passengers out of the car and placed the driver in the back seat of his cruiser to handle the traffic infraction. As Dep. Martens was gathering information from the driver and issuing a warning, Licking County Deputy Kris Kimble arrived at Dep. Martens’ request with his canine partner Harry. Harry is trained to detect narcotics, specifically cocaine, methamphetamine, and heroin. Upon arrival, Dep. Kimble noticed three people standing outside the Ford and one person in the backseat of Dep. Martens’ cruiser. Dep. Kimble deployed Harry to the Ford for a free air sniff. Harry alerted to the presence of narcotics in the vehicle.
Backpack Contained a Firearm, Fentanyl and Methamphetamine
The vehicle was subsequently searched. A black bookbag was discovered in the backseat. Mr. Harris had previously been observed leaving the Hudson Avenue home carrying a black bookbag. Inside the bookbag was a firearm and plastic baggies containing fentanyl and methamphetamine. A search of Mr. Harris’s person incident to arrest led to the discovery of $1,624 in his pocket.
As a result of these events, Mr. Harris was charged with various aggravated drug possession charges. He pled not guilty to the charges and filed a motion to suppress. He raised two arguments as to why the evidence contained in the backpack should be suppressed, specifically that the duration of the stop was impermissibly extended, and that the warrantless search of the backpack container was improper.
Motion to Suppress is Denied
On April 27, 2022, a hearing was held on Mr. Harris’s motion to suppress. Counsel for Mr. Harris stipulated to the deputies training and experience, the date and venue, the authenticity of Marten’s dash camera and body camera videos, the training and certification of Harry, the positive alert, probable cause to search the vehicle following the alert, and each exhibit produced by the state.
The state elicited testimony from Dep. Martens and Dep. Kimble who testified regarding their roles in the above outlined traffic stop. Mr. Harris rested without presenting evidence.
After taking the matter under advisement the trial court denied Mr. Harris’s motion to suppress.
Mr. Harris filed an appeal and the matter is now before this court for consideration. He raises one assignment of error as follows …
Was the Traffic Stop Lawful?
“[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, 500, (1983)
Was the Search of the Backpack Lawful?
As an initial matter, we note the state, for the first time here on appeal, argues Mr. Harris is without standing to challenge the search of the backpack because he did not own the car it was found in and denied ownership of the backpack at the scene. Mr. Harris did not file a reply brief.
“[O]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude.” It is well established that an individual has a heightened expectation of privacy in the contents of a closed container. United States v. Chadwick, 433 U.S. 1, 13 (1977)
The record of the suppression hearing in this matter provides little information from which this court could determine Mr. Harris’s standing, but the remaining record is of some assistance. According to the arrest warrant, Mr. Harris was seen leaving a residence on Hudson Avenue carrying a black bookbag and getting into the rear driver’s side seat of the Ford Focus. Upon searching the Ford Focus, deputies discovered the black backpack, “which was seated at defendant Mr. Harris’s feet.”
Additionally, other than at the scene of the traffic stop, Mr. Harris did not deny ownership of the backpack. His motion to suppress, filed March 11, 2022, indicates “Mr. Harris challenges the expansion of the traffic stop that lead to the search of Mr. Harris’s effects.” Mr. Harris further argued the deputies “lacked a reasonable and constitutional basis to have searched the closed container.” Mr. Harris’s challenge therefore appears to be to the search of the backpack which he characterizes as his “effects.”
Accordingly, we find even though Mr. Harris initially denied ownership of the bag, evidence from the record and the suppression hearing indicate Mr. Harris was seen carrying the backpack and it was found situated at his feet when the traffic stop took place. Mr. Harris therefore had a reasonable expectation of privacy in the bookbag and standing to challenge the search of the same.
Mr. Harris’s [feeble] Arguments
Was the Traffic Stop Delayed for the Canine Sniff?
Mr. Harris faults the trial court for focusing only on the time it took for Dep. Martens to issue a warning to the driver and whether the canine sniff reasonably took place within that time period rather than the “nature” of the encounter. Mr. Harris concedes the traffic stop was lawful, but argues the traffic stop was merely a pretext to search the interior of the Ford for drugs, and further argues Dep. Martens had no cause to order him out of the vehicle for anything other than issuing a traffic citation. According to Mr. Harris, Dep. Martens could only issue a traffic citation and send the men on their way, not expand the stop to include a drug investigation and ultimately the search of the bookbag.
Was the Traffic Stop Unlawfully Pre-Textual?
First, as to Mr. Harris’s mention that the stop was pretextual, in State v. Ackerson, 2013-Ohio-4020, we court noted “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has a reasonable, articulable suspicion a traffic or equipment violation has occurred or is occurring”. City of Dayton v. Erickson 76 Ohio St.3d 3 (1976)
Was Mr. Harris Unlawfully Ordered Out of the Car?
Next, Mr. Harris argues Deputy Dep. Martens was not justified in ordering him out of the vehicle. It is well settled, however, that once a lawful traffic stop has been made, officers may order the driver and any passengers to exit the vehicle pending completion of the traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, (1977); Maryland v. Wilson, 519 U.S. 408, (1997) and State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993).
Mr. Harris next relies upon State v. Robinette, 80 Ohio St.3d 234 (1997) to support his contention that deputies in this matter unjustifiably expanded their traffic infraction investigation into a drug investigation without articulable facts giving rise to illegal activity justifying extension of the detention. Robinette, however is inapplicable to the facts this matter as it did not involve a canine sniff.
Was the Canine Sniff Unlawful?
Further, this court had found a canine sniff is not a search within the meaning of the Fourth Amendment as long as the canine is legally present at its vantage point when its sense is aroused. State v. Cook, 2011-Ohio-1776
We have further found because a canine sniff is not a search, “an officer need not have formed a reasonable suspicion that drug-related activity is occurring in order to request that a drug dog be brought to the scene or to conduct a dog sniff of the vehicle.” State v. Latona, 2011-Ohio- 1253
Was the Search of the Bag of Narcotics Unlawful?
In Wyoming v. Houghton, 526 U.S. 295, (1999), the United States Supreme Court held that police officers with probable cause to search a car may search a passenger’s belongings found in the car that could conceal the object of the search. [For more information on the Houghton case see] According to State v. Vega, 2018-Ohio-4002. [For more information on the Vega case see]
Did the Deputy Require Reasonable Suspicion to Request the Canine?
Deputy Dep. Martens therefore need not have formed reasonable suspicion that drug activity was occurring before calling for a canine. He nonetheless testified he called for a canine sniff due to the nervousness of the driver of the Ford Focus, his knowledge that Mr. Harris and his companions were coming from a suspected drug house, and his knowledge of an active investigation focusing on that house. Canine Harry arrived and alerted on the Ford Focus 12 minutes and 6 seconds into the stop and while Deputy Dep. Martens was still in the process of issuing a warning to the driver of the vehicle. The entire encounter in this matter took place in less than 15 minutes which we find is not unreasonable.
In summary, the nature of the encounter did not run afoul of Mr. Harris’s Fourth Amendment protections. Deputy Martens was permitted to ask Mr. Harris to exit the vehicle, need not have developed probable cause to call for a canine sniff, and canine Harry’s alert on the Ford established probable cause to search the entire vehicle and Mr. Harris’s backpack. We, therefore overrule Mr. Harris’s sole assignment of error.
The judgment of the Licking County Court of Common Pleas is affirmed.
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.
Information for this article was obtained from State v. Harris, 2023 – Ohio – 1544.
Lessons Learned:
- Pre-Textual Stop – This traffic stop, search and arrest was textbook example of a Pre-Textual Stop conducted by team effort by the Central Ohio Drug Enforcement Task Force! Utilizing a Fail to Signal violation led to a traffic stop where the length of time was reasonable, canine sniff was reasonable and the search was also reasonable. For more information on Pre-Textual Stops see Wh(r)en is it lawful to stop a vehicle?.
- Appeal EVERYTHING – Harris’ defense counsel threw each element of the deputies’ actions against the appellate court wall. Counsel challenged the stop, detention and search. None of the arguments were truly substantive because the deputies’ actions were congruent with established case law at each legal juncture. Well done Central Ohio Drug Enforcement Task Force!
- ‘Rodriguez’ Moment – Once a vehicle is lawfully stopped, law enforcement do not require reasonable suspicion or probable cause to request a canine for a sniff of the vehicle. Officers must however, have the sniff completed prior to the completion of the “mission of the traffic stop”. The mission includes, but is not limited to a LEADS check on the driver and the vehicle and completion and issuance of the written warning or citation. This is often called the “Rodriguez Moment”. For more information on the “Rodriguez Moment” see https://www.objectivelyreasonable.com/?s=rodriguez.
- Pro-Criminal Politicians – Lastly, there has been a recent push by pro-criminal politicians to inhibit law enforcement for conducting traffic stops for minor misdemeanor violations. If Licking County had this absurd ideology in place prior to February 15, 2022 then the gun-toting, drug dealer Mr. Joshauan Harris would not have been arrested. Here are some recent articles that identify the pro-criminal traffic stop inhibitions: https://www.freep.com/story/news/local/michigan/2023/06/23/ann-arbor-police-will-no-longer-pull-over-drivers-for-these-violations/70351455007/ andhttps://www.bloomberg.com/news/articles/2023-02-02/police-traffic-stops-face-new-scrutiny-after-tyre-nichols-death
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