[W]e find that the state established that Mr. Shropshire was in constructive possession of the drugs.

 

A Fourth Amendment Symphony!

 

State v. Shropshire

2023 – Ohio – 2783

Fifth District Appellate Court

Stark County, Ohio

August 10, 20-23

 

Is Willie Shropshire a Major Dru Offender?

On March 2, 2022, the Stark County Grand Jury indicted Mr. Willie Cassie Shropshire on one count of Aggravated Trafficking in Drugs, in violation of O.R.C. §2925.03(A)(2)/(C)(1)(f), a first-degree felony, and one count of Aggravated Possession of Drugs, in violation of O.R.C. §2925.11(A)/(C)(1)(e), a first-degree felony. Each count also contained a Major Drug Offender specification pursuant to O.R.C. §2941.1410(A).

On November 2-3, 2022, the case proceeded to jury trial. At trial, the state of Ohio presented testimony and evidence from Detective Shaun Dadisman, Detective Mike Volpe, Patrolman Matthew Kruger, and Officer Ryan Wood, as follows:

President’s Day 2022 at the Massillon’s Jimmy John’s

Detective Dadisman testified that he is employed by the Massillon Police Department and is a member of the FBI Safe Streets Task Force. He explained that he was in charge of a drug investigation involving Mr. Willie Shropshire and was one of several law enforcement officers personally surveilling a particular area of Massillon on the evening of Presidents Day – Monday February 21, 2022. While surveilling the area for drug activity, he observed a Kia Sportage in the Jimmy John’s parking lot and watched it for approximately ten minutes until it eventually pulled out and left the parking lot.

The surveillance began here at the Massillon Jimmy Johns, 117 Tommy Henrich Drive.  Mr. Shropshire described law enforcement surveillance as “Like he seen’em and everything”, but it was old fashion shoe leather surveillance.

Fail to Signal – Pretextual Traffic Stop

Officers Kruger and Wood were also both on duty that evening, in separate marked cruisers. Det. Dadisman had asked them to remain in the area to assist with the Shropshire investigation and to conduct a traffic stop. Officer Kruger observed the Kia Sportage exit the Jimmy John’s parking lot and proceed eastbound on Federal Avenue Northwest. He positioned his cruiser behind the Sportage to follow it, but the Sportage immediately made a right hand turn into the backside of a McDonald’s parking lot. The vehicle failed to use its turn signal prior to turning into the McDonald’s lot, so he initiated a traffic stop.

The takedown of Mr. Shropshire and his co-conspirators occurred here at McDonalds, 227 Lincoln Way.  The officers would describe the scene as chaotic but it ended up being a Fourth Amendment symphony!

Chaos at McDonalds

At that time, the remaining officers all converged on that location. Officer Wood described the scene as “chaotic.” Officers yelled verbal commands for the suspects to stay in the vehicle, but Mr. Shropshire failed to listen and instead immediately exited the passenger side of the vehicle. Mr. Shropshire then made furtive movements toward the vehicle and reached back into it one or two times as the officers continued shouting their commands.

According to Det. Dadisman, Mr. Shropshire looked back at the officers and then “made several motions down toward the floorboard with his hands, almost in debate of movement, whether or not to grab what was located right there.”

Preparing to Fight or Flee

Det. Volpe believed Mr. Shropshire was “preparing for either fight or flight.” From his position, Det. Volpe also observed a white, plastic, grocery-style bag on the passenger side floor of the vehicle, and saw Mr. Shropshire attempting to reach for something in that location every time he reached inside the vehicle. Although Mr. Shropshire was reaching in that general area, Det. Volpe was unable to tell if he ever actually touched the bag. However, Det. Volpe was certain that Mr. Shropshire was reaching for the bag because there was nothing else in that area to grab He testified that he believed Mr. Shropshire was going to grab the bag and flee.

OODA Loop

Mr. Shropshire “continued to shuffle back and forth and look in different directions,” which Officer Wood perceived as “implying that he was going to run.” Officer Wood brought out Canine Loki in a bulletproof vest and harness lead, and yelled warnings that the canine would be “sent” and Mr. Shropshire would be bitten if he did not comply and get on the ground. Mr. Shropshire was “literally surrounded” by officers, so he eventually surrendered and complied by getting on the ground. Both the driver and Mr. Shropshire were taken into custody, handcuffed, and detained in separate cruisers.

Canine Loki’s Head Snapped

Once the scene was secured, Det. Dadisman gave permission for Officer Wood to have Canine Loki perform an “open air sniff’ around the vehicle. Canine Loki alerted on the passenger side door on two separate passes around the vehicle, indicating the presence of illegal narcotics within the vehicle. The first time around the vehicle, Canine Loki’s “head snapped” and his behavior changed as he jumped on the passenger side door, which Officer Wood testified is his “final trained response” and a “true alert that you cannot fake.”

Almost Two Pounds of Methamphetamine

The second time around the vehicle, Canine Loki alerted in the same area again, with his “head snapping” and “jumping up,” again indicating the presence of narcotics within the vehicle. Law enforcement officers then searched the vehicle. On the floor on the passenger side of the vehicle, Officer Wood retrieved the white, plastic grocery bag, which was tied closed. Two clear, gallon-sized bags were found inside of the grocery bag, containing almost two pounds (895 grams) of a white, rock-like substance, which was sent to the crime lab for analysis and was later determined to be crystal methamphetamine.

Mr. Shropshire did not have any drugs or money on or about his person, but the driver had approximately $1,800.00 in one of his pockets.

Did the Bail Money Walk Away?

Officer Kruger asked investigators what to do with the $1,800 cash, and he was advised to return it to the driver, which he did. According to Det. Volpe, the federal threshold to seize money is $5,000.00, and they cannot seize any amount less than that. The driver was cited for driving while under an OVI suspension, but was eventually released from the scene and the vehicle was towed.

Mr. Shropshire was arrested and taken to jail.

Motion to Suppress

On May 12, 2022, Mr. Shropshire filed a Motion to Suppress challenging the lawfulness of the traffic stop and the subsequent search of the vehicle. 

On June 27, 2022, the trial court held a hearing on Mr. Shropshire’s motion to suppress. At the hearing, the trial court heard testimony from Patrolman Matthew Kruger and Detective Shaun Dadisman. Also presented as evidence was the Massillon Police Department dash cam video.

Motion to Suppress is Denied

By Judgment Entry filed August 2, 2022, the trial court denied Mr. Shropshire’s Motion to Suppress.

“Put the Play Down”

During his time at the jail, Mr. Shropshire made a couple of phone calls. During a jail call on February 21, 2022, an unidentified man says, “Whoever you was meetin’ put the play down,” and Mr. Shropshire replied, “I mean, I mean, that’s, that’s a fact. I mean, there can’t be no other way.”

Based on Det. Dadisman’s experience with drug investigations, he understood the phrase “somebody put a play down” to mean that a “setup” had occurred and the situation was potentially set up by someone else.

“Like he seen’em and everything” … said Another Way … ‘Surveillance’

While speaking to an unidentified female in another jail call on February 22, 2022, Shropshire discussed the driver’s decision to pull over, saying, “That bitch ass n***** just pulled over. Like, he seen’em and everything. I didn’t even see ’em. He literally just pulled over. I was mad as fuck, for real.”

The state also presented the following evidence: the crime lab report, the bags of methamphetamine, two audio recording of jail calls, the dash camera video from the Massillon Police Department and a body camera video from Officer Wood.

The defense did not present any witnesses.

Beyond a Reasonable Doubt

Following deliberations, the jury returned guilty verdicts on both counts and the trial court made the additional finding that the State proved the Major Drug Offender specification beyond a reasonable doubt.

Eleven to Sixteen and a Half Years

At the sentencing hearing, the trial court found that the Aggravated Possession count merged with the Aggravated Trafficking count. The court imposed an indefinite sentence of a minimum mandatory term of eleven years and a maximum mandatory term of sixteen-and-a-half years.

Note: Mr. Shropshire filed three appeals.  Two of the three are evaluated in this article.  The third appeal was based on the length of his sentence and that appeal was also denied. 

In his first assignment of error, Mr. Shropshire argues that the trial court erred in not granting his motion to suppress. We disagree.

There are three methods of challenging on appeal a trial court’s ruling on a motion to suppress.

Herein, Mr. Shropshire challenges the traffic stop and the subsequent search of the vehicle.

Pretextual Traffic Stop

At the hearing on the motion to suppress, Officer Kruger testified that he observed the driver of the vehicle in this case fail to signal before making a turn into the parking lot.

It is well established an officer may stop a motorist upon his or her observation the vehicle in question violated a traffic law. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996). “[E]ven a de minimis traffic violation provides probable cause for a traffic stop.” Id. at 9. “Trial courts determine whether any violation occurred, not the extent of the violation.State v. Hodge, 147 Ohio App.3d 550, 2002- Ohio-3053, 771 N.E.2d 331, ¶ 27. Moreover, an officer is not required to prove the suspect committed an offense beyond a reasonable doubt or even satisfy the lesser standard of probable cause to believe the defendant violated the law. Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (1997).

Search of the Vehicle

When Mr. Shropshire exited the vehicle, after being told to remain in the vehicle, the white, plastic grocery bag was readily visible through the open passenger side door. The officers then closed the door of the vehicle, without looking in the bag, and had the canine do a “sniff” test of the vehicle, which resulted in the canine alerting to the presence of drugs on the passenger side of the vehicle.

Canine Established Case Law

The use of a narcotics dog to detect the odor of drugs does not constitute a “search” and an officer is not required, prior to a dog sniff, to establish either probable cause or a reasonable suspicion that drugs are concealed in a vehicle. See Illinois v. Caballes, 543 U.S. 405, 409, (2005); United States v. Place, 462 U.S. 696, 707 (1983).

Probable Cause to Search

Further, it is well established that the automobile exception to the warrant requirement allows police to conduct a warrantless search of a vehicle if there is probable cause to believe the vehicle contains contraband. State v. Ortiz, 2001WL520976 citing State v. Mills, 62 Ohio St.3d 357 (1992). When a narcotics dog alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband. See State v. Woodson, 2008-Ohio-670.

Search of the Car was Lawful

Here, because the vehicle was lawfully stopped, when the narcotics dog alerted to the odor of drugs coming from vehicle, we find no warrant was required prior to the search of the vehicle which resulted in seizure of the methamphetamines.

Based on the foregoing, we find the traffic stop and subsequent search of the vehicle was justified, and the trial court’s denial of Mr. Shropshire’s motion to suppress was based on competent, credible evidence.

Mr. Shropshire’s first assignment of error is overruled. 

In his second assignment of error, Mr. Shropshire argues his convictions were against the manifest weight and sufficiency of the evidence. We disagree.

Did Mr. Shropshire Constructively Possess the Two Pounds of Methamphetamine?

Mr. Shropshire herein argues the State failed to prove the drugs belonged to Mr. Shropshire or any physical connection to him to the bags of drugs through DNA or fingerprints. (Mr. Shropshire’s Brief at 13).

O.R.C. §2925.01(K) defines possession as follows:
Possess’ or ‘possession’ means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.

 

O.R.C. §2901.21(D)(1) provides the requirements for criminal liability and provides that possession is a “voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for sufficient time to have ended possession.”

Established Case Law on Constructive Possession

Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d 174, 176, (1989); State v. Haynes, 25 Ohio St.2d 264 (1971); State v. Hankerson, 70 Ohio St.2d 87, (1982), syllabus. To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351 (1976). Dominion and control may be proven by circumstantial evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93 (8th Dist. 2000).

Established Case Law on Circumstantial Evidence

Circumstantial evidence that the defendant was located in very close proximity to the contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86 Ohio App.3d 227, 235, (8th Dist. 1993); State v. Morales, 2005-Ohio-4714, State v. Moses, 2004-Ohio-4943. Ownership of the contraband need not be established in order to find constructive possession. State v. Smith, 2002-Ohio-3034, citing State v. Mann, 93 Ohio App.3d 301, 308, (8th Dist. 1993). Furthermore, possession may be individual or joint. Wolery, 46 Ohio St.2d at 332.

Sufficient Evidence

Upon review, we find that based on the testimony of the officers as set forth above, the state of Ohio presented sufficient evidence to prove that Mr. Shropshire possessed the drugs in this case.

Mr. Shropshire Constructively Possessed the Methamphetamine

The jury in this case heard testimony from multiple police officers and watched the dash-cam and body-cam videos of the stop and search. The evidence showed that Mr. Shropshire was the front-seat passenger and the drugs were found on the floor where he had been sitting immediately before he exited the vehicle. Mr. Shropshire’s actions in attempting to reach back into the area where the drugs were located indicate that he had knowledge of the drugs and was exercising dominion or control over same. As such, we find that the state established that Mr. Shropshire was in constructive possession of the drugs.

From Willie Lips to the Jury’s Ears

The jury also heard the telephone calls from the jail wherein Mr. Shropshire discussed being set up and his irritation that the driver pulled over for the police.

Mr. Shropshire’s Convictions are Upheld

After a careful review of the entire record, weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, this Court cannot conclude that the trier of fact clearly lost its way when it found Mr. Shropshire guilty of Aggravated Trafficking in Drugs and Aggravated Possession of Drugs. Based on the foregoing, this Court does not find that Mr. Shropshire’s convictions were against the manifest weight of the evidence

Accordingly, we find Mr. Shropshire’s convictions are supported by sufficient evidence and are not otherwise against the manifest weight of the evidence.

Assignment of error II is denied.

Information for this article was obtained from State v. Shropshire, 2023 – Ohio – 2783.

State v. Shropshire, 2023 – Ohio – 2783 was issued by the Fifth District Appellate Court on August 10, 2024.

Lessons Learned:

  1. Pretextual Stop – This encounter began with a Pretextual Traffic Stop. This type of stop is based on a traffic violation, though the officer’s intent is to investigate another unrelated crime.  The U.S. Supreme Court established this doctrine on June 10, 1996 in Whren v. United States, 517 U.S. 806 (1996).  For more on Pretextual stops see: https://www.objectivelyreasonable.com/?s=whren
  2. Teamwork Works – Once the stop occurred the officers described the scene as ‘chaotic’ as Mr. Shropshire exited the vehicle, reached back into the vehicle where he was sitting and had indicators that he was going to flee. This is what Hamilton Township Police Chief Scott Hughes and Calibre Press Instructor describes as ‘scanning’ for witnesses, escape routes and back-up; known by the acronym WEB.  In this case Mr. Shropshire appeared as if he was going to ‘escape’.  The officers at scene quickly closed in and threatened Mr. Shropshire that if he ran Canine Loki would be released.  Mr. Shropshire wisely heeded the commands of the officers and deprived Canine Loki from a brief chase. The officers involved in the investigation were prepared for this very type of non-compliant behavior of one of the felonious suspects.
  3. Constructive Possession – Mr. Shropshire was in Constructive Possession of the nearly two pounds of methamphetamine. This doctrine was established by the Supreme Court of Ohio in 1982.  That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982)  The primary challenge for most constructive possession cases is for law enforcement to prove that the suspect was ‘conscious’ of the object in the second prong. In this case Mr. Shropshire was sitting in the front passenger seat and the methamphetamine was on the front seat passenger floorboard.  Additionally, Mr. Shropshire reached back into the car where the methamphetamine was when he was in the OODA Loop.  Therefore, both the trial court and the Fifth District Appellate Court determined Mr. Shropshire was conscious of the methamphetamine.
  4. OODA Loop – The OODA Loop is a decision-making model: Observe, Orient, Decide and Act, developed by Military Strategist and United States Air Force Colonel John Boyd. Here Mr. Shropshire observed and oriented but fell short of decide and act to flee.
  5. Canine Alert – Once Canine Loki alerted on the car, the search was lawful as established by the U.S. Supreme Court on June 20, 1983 in United States v. Place, 462 U.S. 696 (1983). For more on canine searches see: https://www.objectivelyreasonable.com/category/canine/
  6. Pre-Sent Arms! Massillon Police Detective Shaun Dadisman, Detective Mike Volpe, Patrolman Matthew Kruger, Officer Ryan Wood and the Stark County Prosecutor’s Office should all be HIGHLY commended for their investigatory work and successful prosecution of Mr. Shropshire. Well done!

Does your agency train on Pretextual Stops and the Constructive Possession Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.