The record is replete with facts supporting at least nine issues the officers were investigating prior to the canine sniff search: the mere presence of the SUV at the side of the road behind the guard rail; the condition and safety of the passengers; the concern as to the trespass; the vehicle’s fictitious plates and issuing a citation relative to those plates; whether the car was stolen; the failure to provide insurance or car registration information; confirming Mr. Kinney’s identification absent his driver’s license; obtaining the female passenger’s identity; and determining whether impound of the vehicle was necessary.

 

State v. Kinney

2023 – Ohio – 2549

Seventh District Appellate Court

Monroe County, Ohio

July 13, 2023

Suspicious Vehicle with Fictitious Tags on State Route 7

Shortly after midnight on March 20, 2021, Lieutenant Derek Anthony Norman of the Monroe County Sheriff’s Department was on patrol on State Rt. 7 in Monroe County south of Clarington. Another officer, Lieutenant Yonley, was driving the cruiser. They noticed a Kia SUV parked behind the guardrail on the opposite side of the highway. The vehicle had not been there when they passed the area approximately thirty to forty minutes earlier. Wondering whether an accident may have occurred, Lt. Yonley turned the cruiser around and shined his flashlight into the car as they passed, but the windows were very heavily tinted and they could not see inside the vehicle. At this point, Lt. Yonley ran a search of the license plate, and it revealed that the plate was registered to a different vehicle, a 1997 Buick. The officers were then concerned that the car may have been stolen, and began a further investigation. They were also concerned that the SUV was trespassing on the mowed right of way of State Rt. 7.

Monroe County Sheriff’s Lieutenant Derek Anthony Norman and Lieutenant Yonley discovered Mr. Kinney and Ms. Alexandria Morton passed out in a car parked behind a guardrail along State Route 7 south of Clarington, Ohio.  The lieutenants would soon discover enough narcotics to support many felony charges … but were the lieutenants lawful in their search?

Drive and Passenger were Passed [Methed] Out

In order to determine whether anyone was in the vehicle, the officers walked around the SUV to look inside. There was a small patch of tint missing, and with their flashlights they could see two people, a male and a female. The male was sitting in the driver’s seat with his head slumped over. The female also seemed to be unconscious. They could see wires and electronic equipment torn apart inside the car, which Lt. Norman indicated was a sign of methamphetamine activity.

A Lying Passenger

While the identification of the license plate was being double-checked, the officers tried to contact the passengers to see if they were all right. They knocked on the window a few times. They could tell that Mr. Jason Kinney was breathing, but they could not initially see whether the passenger was breathing. However, Mr. Kinney opened the door and spoke with Lt. Yonley, who asked for identification. Mr. Kinney did not have a driver’s license or identity card, but provided his name, birthday, and social security information. His identity was eventually confirmed. He could not provide the car registration or insurance information. The female passenger gave fictitious information about her identity. The passenger was later identified as Ms. Alexandria Morton.

Canine Alert, Methamphetamine, Drug Paraphernalia to include Snorting Straws

Very shortly after the officers parked behind the Kia SUV, they called for a canine unit to do a drug sniff of the SUV. As the unit was engaged nearby in a traffic stop, it arrived within five minutes of the time Lt. Norman and Lt. Yonley first pulled behind the SUV. The sniff search started a minute or two later. The canine indicated that drugs or narcotics were present in or on the vehicle. A subsequent search of the vehicle uncovered methamphetamines, drug paraphernalia including meth pipes, purple pills, “snorting” straws, a loaded syringe and needles, and a digital scale. The record does not reveal the actual owner of the vehicle, only that it was not owned by Mr. Kinney or Ms. Alexandria Morton.

Indicted

On May 20, 2021, Mr. Kinney was indicted on four counts: Aggravated Possession of Drugs pursuant to O.R.C. §2925.11, a first degree felony; Aggravated Trafficking in Drugs, O.R.C. §2925.03(A)(2), also a first degree felony; Aggravated Possession of Morphine, O.R.C. §2925.11, a fifth degree felony; and possession of Heroin pursuant to O.R.C. §2925.11, a fifth degree felony.

Motion to Suppress is Denied

On June 9, 2021, Mr. Kinney filed a motion to suppress. A hearing was held on the motion on August 5, 2021. On September 3, 2021, the court overruled the motion.

Sentenced: Four to Six Years in Prison

On February 9, 2022, the court held its sentencing hearing. Mr. Kinney was convicted on one count of aggravated possession of drugs, O.R.C. §2925.11, a first degree felony. The other charges were dismissed. The court sentenced Mr. Kinney to an indefinite term of four to six years in prison, with credit for 326 days of time served. The court also imposed court costs and sentenced Mr. Kinney to two to five years of post-release control. The sentencing entry was filed on February 10, 2022. The notice of appeal was filed on February 23, 2022. Mr. Kinney raises two assignments of error on appeal.

Appeal

Community Caretaking Doctrine

Mr. Kinney does not contest that ultimately the officers engaged in a police stop of the vehicle nor does he contest the validity of the initial stop as part of the community caretaking function of the police. In Cady v. Dombrowski, 413 U.S. 433 (1973), the United State Supreme Court recognized that police often investigate traffic incidents where there is no suspicion of illegal activity. Such encounters may reasonably result in the search of a vehicle, and that search does not violate the Fourth Amendment. 

Extension of Traffic Stop

Nevertheless, even in community caretaking or emergency aid encounters, police officers must possess articulable facts explaining their presence at the scene and reasonably justifying the duration of the encounter. Of course, if at some point the consensual encounter uncovers facts or circumstances which raise a reasonable suspicion criminal activity is occurring or has occurred, then the stop may be extended to investigate the criminal matter. State v. Martin, 2018-Ohio-1705.

When detaining a motorist to investigate a traffic violation, an officer may take a reasonable amount of time to prepare and issue a ticket. State v. Keathley, 55 Ohio App.3d 130, 131, 562 N.E.2d 932 (2nd Dist.1988). “This time period also includes the period of time sufficient to run a computer check on the driver’s license, registration, and vehicle plates.” State v. Bolden, 2004-Ohio- 184, ¶ 17. 

Are Fictitious Tags a Valid Reason to Detain a Vehicle and the Occupants?

Lt. Norman testified that this investigation began with the appearance of a Kia SUV with very dark tinted windows pulled over and parked in the highway right of way. The vehicle had not been there 30 to 40 minutes earlier. This initial encounter was based on reasonable suspicion of criminal activity and was not a traditional traffic stop. There is no indication that the cruiser’s flashing lights or siren had been activated. The officers simply pulled the cruiser up behind the SUV to see why it was there. Once there, they ran a license plate check. After the plates were reported as fictitious, though, the officers then possessed a reasonable belief criminal activity may be occurring and the criminal investigation in this matter began. The prosecutor asked Lt. Norman if, at that point, it was clear that he was now investigating a possible stolen vehicle. He answered “Yeah. Absolutely.”

Jason Feebly Argues that Fictitious Tags are ‘Mere Speculation’, Not Actual Criminal Activity

Mr. Kinney argues that mere speculation about illegal activity is not enough to form reasonable suspicion. Although Mr. Kinney characterizes the investigation into whether the car was stolen as mere speculation, it was based on the concrete evidence that the car had fictitious plates. Once the fictitious plates were confirmed, there was a basis for the officers’ reasonable suspicion the situation involved criminal activity, calling for further investigation. Additionally, once the officers looked into the vehicle and saw two people slumped over, and observed what appeared to be drug production equipment in the backseat, this additional set of circumstances also justified investigation into possible criminal activity.

Is Seven Minutes ‘Extending a Traffic Stop’?

This record shows there was no extended detention of the vehicle. The time period between the officers pulling up behind the SUV and the arrival of the canine unit was about five minutes, and the sniff search started within another two minutes. In conducting a stop of a motor vehicle for a traffic violation, an “officer may detain an automobile for a time sufficient to investigate the reasonable, articulable suspicion for which the vehicle was initially stopped.” State v. Cahill, 2002-Ohio-4459.   We acknowledge that each case is decided on its own facts, but seven minutes is an extremely short amount of time to allow process of even the most routine of traffic tickets, much less to investigate the variety of circumstances that were under investigation in this case.

There were Almost as Many Facts Supporting Probable Cause as Narcotics Discovered in the Car

The record is replete with facts supporting at least nine issues the officers were investigating prior to the canine sniff search: the mere presence of the SUV at the side of the road behind the guard rail; the condition and safety of the passengers; the concern as to the trespass; the vehicle’s fictitious plates and issuing a citation relative to those plates; whether the car was stolen; the failure to provide insurance or car registration information; confirming Mr. Kinney’s identification absent his driver’s license; obtaining the female passenger’s identity; and determining whether impound of the vehicle was necessary.

The Extension of the Traffic Stop or the Extension of Mr. Kinney’s Confinement are Unreasonable

Mr. Kinney is correct that the extension of a traffic stop beyond the original purpose of the stop must be based on articulable facts giving rise to a suspicion of illegal activity. State v. Latona, 2011-Ohio-1253. This record contains numerous facts to justify the investigation of the Kia SUV up to and including the point when the canine unit indicated the presence of drugs. Mr. Kinney does not challenge the search of the vehicle or seizure of evidence once the canine unit arrived and the dog alerted officers to the presence of drug activity. His argument is solely based on his erroneous belief that the initial stop was unreasonably prolonged. The record clearly shows it was not.

Mr. Kinney’s first assignment of error has no merit and is overruled.

A second appeal was filed.  That appeal focused on Mr. Kinney’s ability to withdraw his plea.  That appeal, though also denied, is not evaluated in this article.

Information for this article was obtained from State v. Kinney, 2023 – Ohio – 2549.

State v. Kinney, 2023 – Ohio – 2549 was issued on July 13, 2023, by the Seventh District Appellate Court and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.

Lessons Learned:

  1. Community Caretaking Doctrine – In recent years the Community Caretaking Doctrine has been the subject of many legal challenges. The doctrine was established by the U.S. Supreme Court in 1973 in Cady v. Dombrowski, 413 U.S. 433 (1973).  In that case the court approved law enforcement to protect the community with limited investigative authority that was outside of traditional investigation under the Fourth Amendment.  More recently, on May 17, 2021 the U.S. Supreme Court determined that law enforcement cannot cross the threshold of a doorway utilizing the Community Caretaking Doctrine in Caniglia v. Strom, 20 – 157 (2021). A few weeks later on July 7, 2021 the Sixth Circuit underscored Caniglia in Clemons v. Couch, 19 – 6411 (2021) and held that law enforcement may not cross the threshold of a doorway to standby for clothing under the Community Caretaking Doctrine.  Then on June 27, 2023 Ohio’s Fourth District Appellate Court held that law enforcement may use the Community Caretaking Doctrine to search the curtilage of a trailer for a loaded AR 15 that was hidden underneath the trailer during a domestic disturbance in State v. Pine, 2023 – Ohio – 2191.  This last case, Pine, may be appealed to the Supreme Court of Ohio as it conflicts with the legal tenets established by the U.S. Supreme Court and Sixth Circuit.  For more information on these cases see the links embedded herein.  In this case, Kinney, the Monroe County Sheriff’s Office lieutenants were objectively reasonable to investigate the meth consumer’s vehicle parked outside the guardrail on State Route 7.
  2. Extension of a Traffic Stop for a Canine Response – Though the Seventh District Court does not identify the 2015 U.S. Supreme Court case that evaluated extending a traffic stop for a canine response. Here is what the U.S. Supreme Court held “The 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 United States, 575 U.S. 348 (2015).  In this case the detention of Mr. Kinney was not extended for a canine response.
  3. How Long is Objectively Reasonable for a Traffic Stop? The Seventh District Appellate Court opined “We acknowledge that each case is decided on its own facts, but seven minutes is an extremely short amount of time to allow process of even the most routine of traffic tickets, much less to investigate the variety of circumstances that were under investigation in this case.”.  This begs the question as to the legal limits of a reasonable traffic stop.  Courts have always deferred to what is reasonable without establishing a finite time limit as there are many factors that should be considered.  In 1985 the U.S. Supreme Court held “[The U.S. Supreme Court] imposes no rigid time limitation on TerryU.S. v. Sharpe, 470 U.S. 675 (1985).  Consequently, law enforcement must be able to articulate what tasks are required during the mission of a traffic stop.  This is a point of instruction during my Canine Legal Update Class.  The attendees of this class and I have determined the following tasks are typical of traffic stops: (1) At least two vehicle approaches, (2) Obtaining license, insurance and registration.  (3) Computer/MDC/radio check on license, registration. (4) Warrant check(s) (5) Writing/issuance of warning or ticket. (6) Check VIN (7) Other?.  So how long are these checks and ticket/warning issuance take on a normal stop?  The times will vary based on experience level and challenges posed by the suspect(s).  However, the court in this case did recognize that Mr. Kinney’s claim that seven minutes was too long was not a valid claim.
  4. Pre-Sent Arms! Monroe County Sheriff’s Lieutenant Derek Anthony Norman and Lieutenant Yonley should both be highly commended. First, they should be highly commended for being lieutenants, working the road – leading from the front and working in concert on this investigation.  Second, the lieutenants should be highly commended for their Fourth Amendment acumen and application of the legal doctrines in real time to investigate and convict Mr. Kinney.  Well done lieutenants!

Does your agency train on the Investigative Detention and 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.