Based upon the totality of the circumstances at the time, Deputy Peyton had reasonable, articulable suspicion criminal activity was occurring and probable cause to continue his investigation.

 

State v. Bowen

2023 – Ohio – 2201

Third District Appellate Court

Union County, Ohio

June 29, 2023

 

Case Overview

On Friday September 18, 2020, Deputy Wyatt Peyton (“Deputy Peyton”) of the Union County Sheriff’s Office stopped a vehicle driven by Mr. Adam Bowen in Marysville after observing the vehicle exceed the speed limit. When Deputy Peyton asked Mr. Bowen to produce his identification, Mr. Bowen claimed he did not have it. Mr. Bowen further claimed his name to be “Derek Wilson” which he subsequently corrected to “Derek Keeran.” During the stop, a drug-detection canine officer named Andor was led around the exterior of the vehicle. Andor performed an “open-air sniff” of the area surrounding Mr. Bowen’s vehicle and alerted to the presence of drugs in the vehicle. Based on Andor’s alert, officers on the scene searched the vehicle and located hashish inside a backpack in the back seat.

On June 29, 2022, the trial court sentenced Mr. Bowen to five years of community control.

Mr. Bowen filed his notice of appeal on July 13, 2022. He raises one assignment of error for our review.

Adam Claims the Traffic Stop was Unreasonably Delayed

In his motion to suppress, Mr. Bowen did not challenge the constitutionality of the initial stop of the vehicle, and after reviewing the record, we are satisfied that Deputy Peyton had probable cause to stop the vehicle after he observed Mr. Bowen traveling approximately 75 miles per hour in a 55 mile per hour zone. Rather, Mr. Bowen argued that the evidence seized from the vehicle should be suppressed because Deputy Peyton unreasonably prolonged the traffic stop to await the arrival of the drug-detection dog.

Canine Sniff Case Law

Nevertheless, a law enforcement officer is not constitutionally prohibited from conducting a canine sniff of a vehicle during the course of a lawful traffic stop. An exterior sniff of a vehicle by a trained drug- detection dog does not constitute a “search” within the meaning of the United States Constitution or the Ohio Constitution. United States v. Place, 462 U.S. 696, (1983)

A Traffic Stop Cannot be Prolonged for a Canine Sniff Case Law

“‘However, if the officer extends the traffic stop in order to conduct a canine sniff, he must have reasonable suspicion that the vehicle contains drugs in order to detain the driver while a canine unit is brought to the scene.’” State v. Elliott 2012 – Ohio 3350 (noting that “‘the detention of a stopped driver may continue beyond [the normal] time frame when additional facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop’”).

Establishing Reasonable Suspicion Case Law

“In forming reasonable articulable suspicion, law enforcement officers may ‘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. Cortez, 449 U.S. 411, 417-418 (1981).

Body Worn Camera Reveals that Mr. Bowen had Difficulty Spelling his Fictitious Name

At the suppression hearing, Deputy Peyton testified that on September 18, 2020, he initiated a traffic stop for speeding. Deputy Peyton’s body-worn camera footage of the incident was introduced as State’s Exhibit 1. State’s Exhibit 1 depicts Deputy Peyton approach the passenger side of a white vehicle and make contact with the occupants – a male driver and a female passenger. The driver quickly admitted that he was “speeding.” The passenger provided Deputy Peyton with her driver’s license and vehicle registration. However, the driver of the vehicle claimed to have no identification. The driver also claimed he did not know his social security number. When Deputy Peyton asked the driver his name, he initially stated it was “Derek Wilson” and then corrected himself to “Derek Keeran.” When Deputy Peyton asked the driver if Wilson is his middle name, he stated that it is. The driver also had difficulty spelling the name he gave to Deputy Peyton.

Deputy Peyton Testified that if a Person Does not Know Their Own Name Criminal Activity is Afoot

Deputy Peyton testified that, in his experience, when someone seemingly does not know their name, it is usually an indicator the individual does not want his or her identity known. According to Deputy Peyton, this can be for a variety of reasons, such as an outstanding arrest warrant, a suspended license, or some other criminal activity being afoot. Deputy Peyton testified that in this particular instance, the fact the driver initially identified himself as “Derek Wilson” and then changed the name to “Derek Keeran” gave Deputy Peyton immediate suspicion the driver either had an outstanding arrest warrant or that some sort of criminal activity was occurring.

The Vehicle Owner Could Not Prove the Vehicle was Insured

The passenger of the vehicle identified herself as the owner of the vehicle. She attempted to provide Deputy Peyton with proof of insurance; however, the information she provided was expired. The passenger stated she was going to have to “pull up” her insurance information on her phone. Deputy Peyton testified the purpose of waiting on the verification of insurance is because driving without insurance could potentially be an additional citation.

Insurance Verification Delayed the Traffic Stop

After receiving identifying information from the vehicle occupants, Deputy Peyton returned to his police cruiser to relay the information to dispatch and run the information provided through law enforcement systems. Shortly thereafter, Deputy Peyton returned to the vehicle and spoke to the occupants. At that time, the passenger, who was on the phone with her insurance company, stated it would be an additional eight to ten minutes for the company to provide her with the information requested.

Deputy Peyton Concludes he is Going to Write a Traffic Citation

Deputy Peyton testified that, at this point, he knew he was going to issue a traffic citation to the driver of the vehicle for speeding. However, Deputy Peyton stated that before he could issue the citation, he needed to verify the identity of the driver. Deputy Peyton stated that, at that time, he was aware of several additional indicators of criminal activity, including general nervous behavior from the driver, such as looking back at the deputy in the vehicle’s mirrors and immediately lighting a cigarette.

Adam Bowen Must Prove His Identity

Deputy Peyton then asked the driver for his insurance information. According to Deputy Peyton, the purpose of asking the driver for his insurance information was to aid in verifying the driver’s identification. Deputy Peyton testified that if the driver provided insurance information with the name “Derek Keeran” it would help confirm his identity and the veracity of his statements. However, the driver was unable to provide Deputy Peyton with any insurance information.

A Wise Sergeant Cautions the Deputy Not to Prolong the Traffic Stop

Approximately 20 minutes into the traffic stop, Deputy Peyton and his supervising sergeant engaged in a brief conversation discussing whether the canine officer was still en route to the scene. Deputy Peyton’s supervisor reminded him that he could not prolong the traffic stop for the purpose of awaiting the arrival of the canine. However, Deputy Peyton assured his supervisor he was not delaying the stop and that he was still waiting on information so he could accurately and proficiently issue the traffic citation. At that time, Deputy Peyton had still not been able to verify the identity of the driver, and he had not yet gotten verification of the passenger’s insurance. According to Deputy Peyton, his goal at this time was still to issue a traffic station to the driver of the vehicle.

Adam Bowen Delays His Own Traffic Stop that He Would Later Claim the Deputy Delayed

Nearly twenty-three minutes into the traffic stop, Deputy Peyton approached the driver’s side of the vehicle and asked the driver, who was smoking a cigarette, if he had any way to verify his identity. Deputy Peyton informed the driver that some individuals have photographs of their identification cards on their phone and suggested the driver check his phone for such a photograph. The driver initially indicated he might have a photograph of his driver’s license on his phone; however, after scrolling through his phone for a few seconds, he told Deputy Peyton did he not possess such a photograph. According to Deputy Peyton, at this point, he still could not ascertain the identity of the driver and was still in the “investigative detention” phase of the investigation.

Canine Alert Reveals Hashish and Adam Bowens Not-So-Missing License

Shortly thereafter, Officer Hertzinger of the Plain City Police Department arrived on the scene with his canine partner, Andor. At the request of Officer Hertzinger, the vehicle’s occupants exited the vehicle, and Officer Hertzinger ran Andor around the vehicle to conduct an open-air sniff. Andor subsequently alerted to the passenger side of the vehicle. Pursuant to the dog’s alert, the officers searched the vehicle. During the search, the officers located the hashish that is the subject of Count One of the instant case. Officers also located the driver’s identification in the vehicle and were able to confirm the driver’s identity as that of “Adam Bowen.”

Deputy Peyton Testifies How Mr. Bowen’s Lies Delayed the Traffic Stop

Deputy Peyton testified that approximately twenty-four minutes elapsed from the beginning of the traffic stop to the arrival of the canine unit to the scene. According to Deputy Peyton, if the driver of the vehicle provides him with the necessary information, he is able to process the citation faster. In such circumstances, Deputy Peyton can reasonably issue a traffic citation within approximately fifteen minutes. However, if the individual does not provide the information requested or does not have the requested information readily available, it delays the process. Deputy Peyton testified that, under the circumstances presented at the traffic stop on September 18, 2020, he would not have been able to issue the citation with the limited information Mr. Bowen provided to him at that point. Deputy Peyton was not able to provide a positive identification on the driver of the vehicle, and based on his experience, he suspected the driver was not providing him with his correct name or identifying information.

Court Concludes, Based on Established Case Law, a Driver’s Identity is Part of a Traffic Stop Procedures

After reviewing the record, we do not find Deputy Peyton extended the traffic stop in order to conduct the canine sniff. It is clear any delay in the issuance of the citation was the result of the actions of the vehicle occupants. When Mr. Bowen gave Deputy Peyton a false name, his actions delayed the vehicle stop by necessitating Deputy Peyton continue to investigate and attempt to ascertain the driver’s identity. “[A]n officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop’ * * * [such as] checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile registration and proof of insurance.” Rodriguez v. United States, 575 U.S. 348, 355, (2015), quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005).

Under these Circumstances Twenty-Four Minutes was Objectively Reasonable

The record indicates that Deputy Peyton was diligently attempting to complete the mission of the traffic stop in the time between the initiation of the stop and Andor’s open-air sniff of the vehicle. In support of his position that the traffic stop was extended to allow for the canine to arrive on the scene, Mr. Bowen focuses on Deputy Peyton’s testimony that he generally can write a traffic citation in approximately fifteen minutes. Because the canine sniff occurred approximately twenty-four minutes after the initiation of the traffic stop, Mr. Bowen reasons law enforcement must have delayed the traffic stop for the canine to arrive at the scene. However, Deputy Peyton clarified that the fifteen-minute timeframe referred to situations where he possessed all the information necessary to issue the citation, such as the identity of the driver.

Mr. Bowen’s Lies Reasonably Delayed the Traffic Stop to His Own Legal Detriment

Importantly, at the time the canine unit arrived, deputies had still not ascertained the identity of the driver. Mr. Bowen’s own acts of providing false information regarding his identity necessarily prolonged the traffic stop and provided Deputy Peyton with additional justification for detaining him.

The Traffic Stop Delay was Assisted by Mr. Bowen’s Passenger

The passenger’s failure to provide Deputy Peyton with valid proof of insurance also delayed the stop. The passenger eventually received confirmation of her insurance; however, the verification took time. Deputy Peyton assisted the passenger in obtaining the verification by answering the passenger’s questions. Additionally, confusion regarding which vehicles were covered under the passenger’s insurance policy further increased the time needed to issue the traffic citation. The passenger did not obtain insurance verification until moments before the canine unit arrived on the scene. Accordingly, we do not find that Deputy Peyton extended the traffic stop for the purpose of employing the canine unit. 

Deputy Peyton’s Actions were Textbook ‘Totality of the Circumstances’

Moreover, even if the officers had prolonged the stop, they possessed the reasonable, articulable suspicion necessary to do so. Throughout his interaction with the vehicle’s occupants, Deputy Peyton developed reasonable, articulable suspicion that criminal activity was afoot. The indicators of criminal activity Deputy Peyton observed were the driver refusing to provide identification and attempting to provide a false identity, the vehicle’s occupants continuously smoking throughout the interaction, the driver looking back at Deputy Peyton nervously in the mirrors prior to the first interaction, the driver “continuously drinking water,” and other “general nervousness.” Based upon the totality of the circumstances at the time, Deputy Peyton had reasonable, articulable suspicion criminal activity was occurring and probable cause to continue his investigation.

Mr. Bowen’s Feeble Argument that his Unlawful Hashish Could have Been Lawful Marijuana

Mr. Bowen further argues that Andor’s alert on his vehicle did not give officers probable cause to search the vehicle because the canine was trained to alert when it detects the odor of marijuana. Mr. Bowen contends that because some forms and amounts of marijuana are now legal in Ohio, the sniff by Andor, a canine trained to alert to the presence of marijuana, among other substances, did not give officers probable cause to search the vehicle. Mr. Bowen reasons “because [Andor] is trained to detect marijuana, and because he cannot differentiate between legal and illegal marijuana, his alert is no longer reliable and cannot be used for probable cause to conduct a warrantless search.”

Canine Andor Had Not Been Trained to Detect CBD

At the suppression hearing, Officer Hertzinger, who responded to the September 18, 2020 traffic stop with his canine partner, Andor, testified that Andor is trained to detect the odor of marijuana, cocaine, crack cocaine, methamphetamine, heroin, or any of those drugs’ derivatives. Officer Hertzinger further stated that Andor is not able to determine the difference between different variants of THC. However, from Officer Hertzinger’s experience with Andor, he has never alerted to legal marijuana-derivatives, such as CBD. Further, legal marijuana derived-substances, such as CBD oil, are not used in Andor’s training.

Third District and Andor both Believed There was Probable Cause to Search Mr. Bowen’s Vehicle

To the extent Mr. Bowen argues that Andor’s alert cannot be used to establish probable cause under any circumstances, we reject this argument. As this court recently reiterated “in the typical case, probable cause to search a vehicle may be based solely on the alert of a trained drug-detection dog.” State v. Mayo, 2023-Ohio-124.  Further, under the circumstances present in this case, we do not find that Andor’s training to alert to the odor of marijuana weighs so heavily against his credibility that his alert did not establish probable cause.

The Third District Explains How Mr. Bowen Helped Established Probable Cause

Moreover, it is clear from the totality of circumstances that law enforcement officers had probable cause to search Mr. Bowen’s vehicle. In addition to Andor’s alert and the indicators of criminal activity, such as Mr. Bowen giving a false name, which we addressed in detail above, when the vehicle occupants exited the vehicle prior to the canine sniff, the odor of marijuana, which had previously been masked by the odor of cigarette smoke, immediately became apparent to law enforcement officers. Accordingly, we do not find that law enforcement’s search of the vehicle ran afoul of the Fourth Amendment. Thus, the trial court did not err by denying Mr. Bowen’s motion to suppress evidence.

Conclusion

For the foregoing reasons, Mr. Bowen’s assignment of error is overruled. Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Union County Court of Common Pleas.

Information for this article was obtained from State v. Bowen, 2023 – Ohio – 2201.

State v. Bowen, 2023 – Ohio – 2201 was issued by the Third District Appellate Court and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.

Lessons Learned:

  1. Rodriguez Moment – The fundamental Fourth Amendment premise for canine stop detention was established by the U.S. Supreme Court in United States v. Rodriguez, 575 U.S. 348 (2015) when it held “Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been completed … An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop.  But … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”.  Hence the “Rodriguez Moment” is the moment at which the purpose of the stop has been completed.  In this case Deputy Peyton did not reach the Rodriguez Moment of the stop prior to the arrival of Plain City Police Officer Hertzinger and his canine partner Andor.  Bowen’s evasive behaviors kept extending the stop and increasing the reasonable suspicion that criminal activity was afoot, to Mr. Bowen’s own legal detriment.
  2. Very Good Leadership – The unidentified Union County Sheriff’s Office sergeant was wise to question Deputy Peyton on the duration of the traffic stop. Likewise Deputy Peyton was also wise to articulate his reasonable suspicion to the sergeant in real time so his supervisor was on the same page.
  3. Additional Resources – For more on extending traffic stops for a canine sniff see: Does Reviewing In-Cruiser Video Unreasonably Extend a Traffic Stop beyond the ‘Rodriguez Moment’?, Does Questioning the Indirect Travel from Houston to Detroit Violate the ‘Rodriguez Moment’ to Delay a Traffic Stop for a Canine Sniff? and Can a Traffic Stop be Extended for a Canine Sniff, beyond the ‘Rodriguez Moment’ if Reasonable Suspicion is Established?.
  4. Pre-Sent Arms! The unidentified Union County Sheriff’s sergeant, Deputy Peyton, Plain City Police Officer Hertzinger, Canine Andor and Union County Prosecutors R. Kelly Hamilton and Andrew Bigler should all be highly commended for their teamwork to identify, charge, convict and uphold the prosecution of Mr. Adam Bowen. Well done team!

 

Does your agency train on Canine Sniffs?

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!

Robert H. Meader Esq.