State v. Jones
| Decision Date | 13 September 2019 |
| Docket Number | No. WD-18-063,WD-18-063 |
| Citation | 2019 Ohio 3704,143 N.E.3d 1170 |
| Parties | STATE of Ohio, Appellee v. Darnell Antonio JONES, Jr., Appellant |
| Court | Ohio Court of Appeals |
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, Toledo, for appellant.
DECISION AND JUDGMENT
{¶ 1} This matter is before the court on appeal from a September 5, 2017 order of the Wood County Court of Common Pleas, denying appellant's motion to suppress evidence obtained following a traffic stop. The case proceeded to a jury trial, where appellant was found guilty of one count contained of money laundering, a felony of the third degree, and one count of possession of criminal tools, a felony of the fifth degree, both with forfeiture specifications. Finding no error, we affirm the judgment of the trial court.
{¶ 2} Appellant, Darnell Jones Jr., appeals the trial court's judgment denying his motion to suppress evidence, asserting that the trial court erred in refusing to suppress the evidence discovered through an unconstitutional search of his vehicle, and that he was denied due process and the effective assistance of counsel as guaranteed by the state and federal constitutions.
{¶ 3} In the early morning hours of March 21, 2017, Lieutenant Scott Wyckhouse of the Ohio State Highway patrol observed a red, Chevy Tahoe traveling northbound on I-75 near mile-marker 197 in northern Wood County. Wyckhouse visually estimated the speed of the vehicle as well above the 65 mph speed limit, estimating a speed of 80 mph. Wyckhouse testified that the vehicle was initially in the left lane, but after passing him, it moved to the center lane. After a short interval, the vehicle moved back to the left lane and Wyckhouse gave pursuit. After a mile or two, Wyckhouse made a traffic stop for the speeding offense and activated his blue emergency lights. Appellant stopped his vehicle just over the county line, in Lucas County, Ohio.
{¶ 4} As Wyckhouse approached the vehicle, he was surprised to see a passenger in the front passenger seat. The passenger, Trevon Lowman, had fully reclined his seat, behind the "B pillar" of the vehicle. Appellant told Wyckhouse that he and his cousin Tre were traveling from Tennessee to Michigan, in order to pick up a car for Tre. Although appellant identified Lowman as his cousin, he did not know his last name. Both individuals identified themselves as Michigan residents. Appellant provided a Michigan driver's license to Wyckhouse, and Lowman produced a Michigan identification card that was broken in half. Wyckhouse noted several cell phones in plain sight, as well as numerous air fresheners, candy wrappers, an open energy drink, and enough clutter to make the car appear "lived in." Appellant also had a Doberman puppy between the two center seats.
{¶ 5} Wyckhouse then approached the driver's side of the vehicle and asked appellant to exit the vehicle. When appellant exited the driver's seat, Wyckhouse performed a pat down for weapons with appellant's consent. Wyckhouse's pat down revealed two wads of cash totaling approximately $1,500 in one pocket and $2,000 in the other. Wyckhouse did not confiscate the money at this point, and placed appellant in the front seat of the patrol car.
{¶ 6} At 2:15:26, Wyckhouse called in appellant's driver's license information to dispatch, part of the usual process in a traffic stop, to confirm the identity of the person stopped. Wyckhouse also requested a "78," a computerized criminal check, believing possible criminal activity based on his observations. Additionally, Wyckhouse called in Lowman's information to dispatch. Because of the presence of criminal indicators, Wyckhouse called for a drug detection canine unit at 2:16:53 to sniff for the odor of illegal narcotics.
{¶ 7} At 2:18:35, Sgt. Nathan Henn arrived on scene to provide assistance, and Henn conducted a pat down of passenger Lowman and separated him from appellant. Shortly thereafter, U.S. Border Patrol Agent Mike Lalonde and his canine officer, Misty, arrived on scene with Trooper Ann Malone.
{¶ 8} On the date of the traffic stop, Misty was certified to detect controlled substances, including marijuana, cocaine, methamphetamine, heroin, and ecstasy, and had additional certification to detect concealed humans. Misty was not certified as a currency detection canine. Misty alerted to appellant's vehicle, with neither appellant nor his passenger inside. Lalonde testified that an alert is a change in the canine's body posture or respiration. A subsequent search of the vehicle revealed a backpack under the Doberman containing almost $30,000 in cash, a black Pelican case1 with large magnets attached, and 6 cell phones.
{¶ 9} The items seized were taken to the patrol post in Bowling Green, and after obtaining a search warrant for the phones, troopers were able to search one of the phones belonging to Lowman, and found photos of Lowman with large amounts of money. Trooper Ryan Stewart and his canine officer, Osso, also conducted a controlled sniff of the cash seized while at the post. Osso is certified to detect drugs, including marijuana, cocaine, methamphetamine, heroin, and any of their derivatives.2
{¶ 10} Appellant was indicted on April 20, 2017 in a two count direct indictment charging him with Count 1: possessing criminal tools with a specification, in violation of R.C. 2923.24(A)(C), a felony of the fifth degree, and Count 2: money laundering with a specification, in violation of R.C. 1315.55(A)(C)(C), a felony of the third degree. Appellant filed a motion to suppress on August 10, 2017, seeking to suppress all evidence obtained as a result of the traffic stop of appellant's vehicle by the Ohio State Highway Patrol on March 21, 2017.
{¶ 11} In his motion to suppress, appellant challenged the basis for the traffic stop, arguing that Wyckhouse did not have probable cause to initiate a traffic stop because he did not use his radar gun to specifically detect the speed of appellant's vehicle. The trial court noted Wyckhouse's testimony, that he in fact paced the vehicle at 67 mph in a 60 mph zone, and found this testimony was credible.
{¶ 12} In support of the drug sniff, the state presented Misty's valid canine detection certification, and appellant presented no evidence to refute this training and certification. The trial court denied the motion, finding probable cause for both the initial stop and subsequent search of the vehicle based on the alert of Misty.
{¶ 13} The matter proceeded to a two-day jury trial commencing January 25, 2017. The jury found appellant guilty of both counts contained in the indictment, and the trial court sentenced him to four years of community control with conditions. The trial court, furthermore, ordered $33,091 in cash forfeited. From this conviction, appellant filed a timely appeal.
{¶ 14} Appellant asserts the following assignments of error:
{¶ 15} Appellant's assignments of error each challenge the reliability of the canine officer's alert, considering its dual training and certification. In his first assignment of error, appellant argues the trial court committed plain error in not inquiring into the issue of dual certification as a factor in determining reliability. Based on the dual certification, appellant argues that the trial court should have granted the motion to suppress.
{¶ 16} Our review of a trial court's denial of a motion to suppress presents mixed questions of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." Id. , citing State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). An appellate court defers to a trial court's factual findings made with respect to its ruling on a motion to suppress where the findings are supported by competent, credible evidence. Id. ; State v. Brooks , 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). "[T]he appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. , citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
{¶ 17} "The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures." (Citation omitted.) State v. Brown , 183 Ohio App.3d 337, 2009-Ohio-3804, 916 N.E.2d 1138, ¶ 9 (6th Dist.). Search of a motor vehicle following an investigative stop, however, is an exception to the Fourth Amendment warrant requirement, where the search is justified by "articulable suspicion of some other criminal activity[.]" State v. Bordieri , 6th Dist. Lucas No. L-04-1321, 2005-Ohio-4727, 2005 WL 2174652, ¶ 20 ; see also U.S. v. Ross , 456 U.S. 798, 808, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
{¶ 18} The use of a drug dog to sniff the exterior of a vehicle, lawfully detained, is not a search within the meaning of the Fourth Amendment. Bordieri at ¶ 22. Thus, law enforcement officials do not need reasonable suspicion of drug related activity in order to subject a lawfully detained vehicle to a drug dog sniff. Id. "[W]hen a [drug] dog alerts to the presence of drugs, it gives law enforcement probable cause to search the entire vehicle." State v. Nguyen , 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 22 (6th Dist.).
{¶ 19} Appellant challenges the trial court's denial of his motion to suppress as plain error. Appellant argues that, because Misty had dual certification, trained to...
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