State v. Heath

2023 – Ohio – 2647

Eleventh District Appellate Court

Geauga County, Ohio

July 31, 2023

 

Heavily Tinted Windows on a Black Mercedes

On Sunday November 21, 2021 Geauga County Sheriff’s Sergeant Jonathan Bilicic testified he was on patrol in a marked vehicle when he observed a black Mercedes with heavily tinted windows. Sgt. Bilicic approached the vehicle and advised Mr. David Heath of the reason for the stop. Mr. David Heath gave the sergeant his driver’s license, who observed Mr. Heath “appeared to be nervous,” his “hands were shaking,” and his eyes were “red, bloodshot.”

Valid License

Sgt. Bilicic returned to his vehicle and ran Mr. Heath’s driver’s license through the LEADS database. He also sent a message to a canine unit who was patrolling in the same zone. Sgt. Bilicic’s LEADS search revealed Mr. Heath did not have any warrants: “he was valid, and his license plates were valid.” Sgt. Bilicic retrieved his tint meter and returned to Mr. Heath’s vehicle to confirm the window tint was in violation.

Would You have Believed Dave?

Sgt. Bilicic asked Mr. Heath if he had anything illegal in the vehicle. Mr. Heath “looked down” and responded “no.” After further examination, Sgt. Bilicic testified he inquired whether Mr. Heath had anything illegal in the vehicle because he was familiar with Mr. Heath from his time as a narcotics detective and his eyes were “bloodshot.” Sgt. Bilicic stated he asks the driver whether he or she is in possession of anything illegal “almost every time” he conducts a traffic stop.

Sgt. Bilicic had a Gut Feeling

Sgt. Bilicic explained that at the time of the traffic stop, there was an ongoing drug trafficking investigation of a house in the area. Although there was no information Mr. Heath had been at the suspected house, he was in the vicinity, and he had been observed stopping at a stop sign for longer than usual and sitting in his vehicle in a nearby gas station parking lot.

Too Much Tint

Sgt. Bilicic tested Mr. Heath’s driver side window and found the tint saturation at 37%. He informed Mr. Heath window tint cannot be “below 50%” (i.e., it must allow more than 50% of light in). Mr. Heath told the sergeant he had just purchased the vehicle and asked him what he could do. Sgt. Bilicic advised him he could tear it off and remove it from the windows.

Canine Unit Arrived within Three Minutes

The canine unit arrived on the scene two to three minutes into the stop while Sgt. Bilicic was testing Mr. Heath’s driver’s side door window. The officer brought his canine partner to walk around the rear of the vehicle. Sgt. Bilicic had sent a message to the canine unit when he retrieved his tint meter “just for backup, and to walk around the vehicle.” Upon the court’s inquiry, Sgt. Bilicic testified he did not have to provide additional time for the canine unit to arrive since “he was there pretty quickly.”

Canine Alerts

The dash cam video showed a third officer arrive and stand behind Sgt. Bilicic. While Sgt. Bilicic was conversing with Mr. Heath, the canine unit stood in position next to Sgt. Bilicic’s cruiser. Sgt. Bilicic motioned for the canine unit to walk around the vehicle, and the canine alerted his handler to the trunk of the vehicle. Sgt. Bilicic again asked Mr. Heath if he had anything illegal in the vehicle, which Mr. Heath denied.

Meth Pipe is Discovered

Mr. Heath was asked to step out of the vehicle. The officers searched and detained him in Sgt. Bilicic’s cruiser while they searched his vehicle, which revealed a methamphetamine pipe in the car. Nothing was ever found in or near the trunk of the car.

Mr. Heath had Recently Been at the Nearby Gas Station

Sgt. Bilicic confirmed on cross-examination that he did not include in his sworn statement his observations that Mr. Heath had red eyes or that Mr. Heath had been observed sitting in the gas station parking lot. He also did not believe Mr. Heath’s nervousness and shaky hands were a sign of alcohol or field sobriety tests should be administered. Upon questioning by the court, Sgt. Bilicic testified he had been advised Mr. Heath was driving the vehicle that was seen sitting at the gas station by the narcotics detectives approximately fifteen to twenty minutes prior to the stop and further, had already checked the vehicle’s license plate.

Trial Court Determined that Since there was No Criminal Activity Afoot there was No Need to Call for a Canine

The trial court found there was probable cause to stop the vehicle due to the window tint. Further, the duration of the stop and calls for backup were reasonable. The court noted there was no evidence of any smell of either marijuana or alcohol, the sergeant noted no signs of impairment, and nervousness is quite common in an encounter with the police, especially to one who is familiar with the police. The sergeant did not request Mr. Heath to exit the vehicle for field sobriety testing, and there was nothing in plain view to mandate a further search. While Sgt. Bilicic was justified in calling for backup, there was no need to call for a canine unit because there was no reasonable articulable suspicion of criminal activity. The trial court granted Mr. Heath’s motion to suppress and dismissed the case.

Prosecution Appeals

In this case, there is no doubt Sgt. Bilicic had probable cause to conduct a traffic stop since Mr. Heath’s windows were visibly heavily tinted.

Traffic Stop Established Case Law

Thus, our inquiry turns to whether Mr. Heath was delayed “‘for a time period sufficient to issue a ticket or a warning.’State v. Batchili, 2007-Ohio-2204. In Batchili, the Supreme Court of Ohio explained this “‘includes the period of time sufficient to run a computer check on the driver’s license, registration, and vehicle plates.’” The court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation in order to determine if an officer completed these tasks within a reasonable time.

Facts Applied to Established Case Law

A review of Sgt. Bilicic’s testimony and the dash cam video reveals the traffic stop was only several minutes long, and, most fundamentally, the exterior dog sniff sweep occurred before the traffic stop was completed and a citation issued. The canine unit arrived on the scene minutes after the stop was initiated.

Court Identifies ‘Undertones’ of a Pre-Textual Traffic Stop

Cases involving searches after a traffic stop are heavily fact-dependent, and we recognize the pretextual undertones this case presents. We are bound, however, by the precedent of this court that “an exterior sniff by a trained narcotics dog to detect the presence of contraband does not constitute a search under circumstances in which a vehicle has been lawfully detained.” State v. Melone, 2009- Ohio-6710. Where an inspection by law enforcement does not intrude on a legitimate expectation of privacy, there is no search subject to the Warrant Clause of the Fourth Amendment. Id., citing Illinois v. Andreas, 463 U.S. 765, 771, (1983). It follows, therefore, that any interest in possessing contraband cannot be characterized as “legitimate,” and an exterior dog sweep, which only reveals the possession of contraband, does not compromise a legitimate privacy interest. Id., citing Illinois v. Caballes, 543 U.S. 405, 408-409, (2005).

More Established Traffic Stop Case Law

This case is reminiscent of State v. Melone, in which we aptly remarked, “By violating a traffic law, appellant subjected himself and his vehicle to a period of official detention that might have substantially exceeded four minutes, the time appellant was detained prior to the deployment of the dog. Further, the exterior sweep, even though it occurred subsequent to the officer confirming the validity of appellant’s license and registration, took place before the officer issued a citation. It therefore occurred before the traffic stop ended. Given the totality of the circumstances, we hold the stop of appellant’s vehicle was not unreasonably prolonged and therefore was constitutionally valid. Thus, the canine sweep of the exterior of appellant’s vehicle did not infringe upon appellant’s Fourth Amendment right to be free from unreasonable searches and seizures.” Id. at ¶ 60.

Mr. Heath was Not Unreasonably Detained

Finding Mr. Heath was not unreasonably detained, we reverse the trial court’s ruling granting Mr. Heath’s motion to suppress since the sergeant was not required to have a reasonable, articulable suspicion to conduct a dog-sniff sweep under these circumstances. The exterior sniff by a trained narcotics dog was conducted while the vehicle was being lawfully detained for a reasonable period in which to issue a routine traffic citation and does not constitute a “search.” See State v. Henry 2007 – Ohio – 6732. The canine unit happened to arrive “at the right place, at the right time.”

Eleventh District Court Cautions Law Enforcement Not to be Sluggish

“Nevertheless, we would be remiss if we did not take this opportunity to remind law enforcement officers of the dangers of engaging in a pretextual stop in which a traffic citation is issued in a dilatory manner. The circumstances of this case present a perilously close set of facts, and we must always be mindful that ‘[t]he liberties of the American citizen depend upon the existence of established and known rules of law limiting the authority and discretion of men wielding the power of government.’ Perry & Cooper, Sources of Our Liberties, (Chicago: American Bar Association, 1959), at 1.” Henry at ¶ 44.

Finding the state’s assignment of error to be with merit, the judgment of the Chardon Municipal Court is reversed and remanded in accordance with this opinion.

Note:  On August 8, 2023, nine days after this appellate court decision was issued, Mr. David Heath was charged with Aggravated Possession of Drugs in accordance with the Geauga County Clerk of Courts website.  See Geauga County Case #23C000122.  He plead guilty to that charge on October 19, 2023.

Information for this article was obtained from State v. Heath, 2023 – Ohio – 2647, the Brief by Appellant – State of Ohio and the Geauga County Clerk of Courts website.

State v. Heath, 2023 – Ohio – 2647 was issued by the Eleventh District Appellate Court and is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.

Lessons Learned:

  1. Pretextual Stop – On June 10, 1996, the U.S. Supreme Court issued Whren v. United States, 517 U.S. 806 (1996). The Whren court determined that law enforcement may conduct a pre-textual stop “[T]he officers had probable cause to believe that petitioners had violated the traffic code.  That rendered the stop reasonable under the Fourth Amendment.”. Id at 819.  Here the Eleventh District Court opined Cases involving searches after a traffic stop are heavily fact-dependent, and we recognize the pretextual undertones this case presents.”.  Uhhhmmmm yes (!) there are both undertones of a pretextual stop AND overtones …however a pretextual stop is objectively reasonable, so why would the court insert this language in the holding – as if to imply there is something wrong with a pretextual stop?  Geauga County Sheriff’s Sergeant Jonathan Bilicic had a gut feeling that Mr. Heath was engaged in criminal activity and he properly used the traffic stop a canine and binding case law to support his gut feeling.  For more information on the Whren case see Wh(r)en is it Lawful to Stop a Vehicle?
  2. Trial Judge Creates a New Standard for a Canine Sniff – More problematic than the Eleventh District Appellate Court’s ‘pretextual undertone’ comment, was the trial judge’s suppression of the evidence. The trial court judge suppressed the evidence because Sgt. Bilicic did not identify any criminal behavior to justify the canine request. The trial court judge held “While Sgt. Bilicic was justified in calling for backup, there was no need to call for a canine unit because there was no reasonable articulable suspicion of criminal activity.”. The U.S. Supreme Court held in United States v. Place, 462 U.S. 696 (1983) that a canine sniff is not a search. Therefore Sgt. Bilicic did not require criminal activity to justify his request for a canine.  For more information on canine case law see: https://www.objectivelyreasonable.com/category/canine/
  3. Dilatory? The Eleventh District Appellate Court inserted an excerpt cautioning law enforcement on being ‘dilatory’ [sluggish]  – “Nevertheless, we would be remiss if we did not take this opportunity to remind law enforcement officers of the dangers of engaging in a pretextual stop in which a traffic citation is issued in a dilatory manner.”. The canine team of Geauga County Deputy Borden and his Canine Rotar arrived three minutes after the traffic stop!  Three minutes!  What is so ‘dilatory’ that the court was motivated to insert this language into its dicta? If three minutes was dilatory, what would the court determine is not dilatory?
  4. Pre-Sent Arms! Geauga County Sheriff’s Sergeant Jonathan Bilicic, Deputy Borden, his Canine Rotar and the Geauga County Prosecutor’s Office should all be highly commended for their knowledge and application of long-standing established case law to investigate, charge and convict Mr. Heath!

Does your agency train on Laws of Arrest?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.