State v. Nevarez-Reyes, C.A. CASE NO. 27047

CourtUnited States Court of Appeals (Ohio)
Citation2017 Ohio 2610
Docket NumberC.A. CASE NO. 27047
PartiesSTATE OF OHIO Plaintiff-Appellee v. RENE NEVAREZ-REYES Defendant-Appellant
Decision Date28 April 2017

2017 Ohio 2610

STATE OF OHIO Plaintiff-Appellee
RENE NEVAREZ-REYES Defendant-Appellant

C.A. CASE NO. 27047


April 28, 2017

T.C. NO. 14-CR-3659

(Criminal Appeal from Common Pleas Court)


LYNNE R. NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant


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{¶ 1} After the trial court overruled his motion to suppress, Rene Nevarez-Reyes pled no contest to aggravated possession of drugs (Schedule I or II, equal to or exceeding 100 times the bulk amount), a first-degree felony, and to a major drug offender specification. The trial court sentenced Nevarez-Reyes to a mandatory term of eleven years in prison and suspended his driver's license for three years.

{¶ 2} Nevarez-Reyes appeals from his conviction, challenging the trial court's denial of his motion to suppress. For the following reasons, the trial court's judgment will be affirmed.

I. Factual and Procedural History

{¶ 3} In November 2015, the trial court held a hearing on the motion to suppress. The testimony of Detectives Josh Walters and Jason Leslie and Deputy Joseph Caito, which the trial court found to be credible, established the following facts.

{¶ 4} In October 2014, Detective Walters and Deputy Caito, both of the Montgomery County Sheriff's Office, and Detective Leslie of the Butler Township Police Department were members of the multi-agency Miami Valley Bulk Smuggling Task Force. Detective Walters was the lead investigator in this case.

{¶ 5} On Sunday, October 26, 2014, a confidential informant contacted the Task Force about a suspected load of narcotics. The informant told Detective Walters that he (the informant) had been contacted by a third-party in Mexico, who asked the informant to "go to Miller Lane. Go to Sam's Club. There's a truck in the lot. Meet with that guy. We need you to take the truck somewhere." The informant did not provide further information about the truck or the narcotics. According to Walters, the informant had

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previously provided verifiable information "hundreds of times" and the information had proven reliable. Sometimes the tips were more specific, and other times, like this, the tips were vague.

{¶ 6} Walters contacted other members of the Task Force and informed them that there were "possibly drugs on Miller Lane." Deputy Caito drove to the area in his marked cruiser and with his canine partner, and he waited along Interstate 75. Detective Leslie and other officers also responded to the call out.

{¶ 7} Detective Walters drove in an unmarked vehicle to Sam's Club "to see if I could find a truck that possibly matched a description of somebody that was concealing narcotics or just hanging out, per se, waiting on somebody." Few vehicles were in the lot. Walters observed a red Ford Ranger "parked over all by itself," far away from the entrance, with one man inside "just looking around, constantly on the phone." Walters drove by the truck three times to read and reconfirm the license plate number. Walters checked the plate using a program called Accurint; the results indicated that the plate was registered to a 1998 Honda. Walters then asked via radio for another officer to check the license plate; Detective Leslie and Deputy Caito separately ran the plate.

{¶ 8} Deputy Caito described how he ran the number, as relayed by Detective Walters, through his onboard computer, which was referred to as his mobile data terminal (MDT). Using LEADS, Caito entered the abbreviation for Illinois (IL), the plate's numbers (1567557), and the registration expiration date from the registration sticker. Caito stated that if he had entered any information inaccurately, the system would have generated an error message. However, in this case, the system indicated that the vehicle was a 1998 Honda four-door vehicle, that it was registered to an individual (not Nevarez-Reyes) in

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Elgin, Illinois, and that the registration had expired. Caito relayed the information to Detective Walters, who indicated that the vehicle with that license plate was a red Ford Ranger pickup truck.

{¶ 9} Detective Leslie also observed the license plate and heard the number as relayed by Walters, and his LEADS search also identified a 1998 Honda. Leslie testified, "I tried it a few different ways. There are a * * * few different parameters you can change for truck plates, passenger car, date of expiration. I ran it a number of ways to see if it came back different any other way." Leslie stated that they all came back the same, "except for I think I had the expiration date wrong on one, and it came back 'Not in file' or something of that sort."

{¶ 10} Detective Walters contacted his source, and asked the source to call his contact in Mexico and ask the contact to have the truck go somewhere else. The source called Walters back and said, "Hey, I told him." The source told Walters that the Mexican contact said, "It's a truck. He's on his way." Walters then saw the Ford Ranger leave the Sam's Club parking lot. Detective Leslie and another officer in separate unmarked vehicles began to follow the pickup. Detective Walters continued searching the Sam's Club lot to make sure that there was not another vehicle of concern. When no other vehicle left the lot, Walters contacted Deputy Caito about stopping the pickup.

{¶ 11} The pickup travelled south on Interstate 75. When the pickup truck passed Deputy Caito's location, Caito began to follow it. After visually confirming that the Ford Ranger had the same license plate that he had run, Deputy Caito initiated a traffic stop for "expired and fictitious registration." Caito activated his overhead lights, and the pickup truck pulled to the shoulder of the interstate. The driver, Nevarez-Reyes, was the

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sole occupant.

{¶ 12} Deputy Caito approached Nevarez-Reyes, and Nevarez-Reyes provided his valid Illinois driver's license, proof of insurance, and valid registration for the truck. Upon inquiry, Nevarez-Reyes indicated that he was heading to his cousin's house. Caito noticed a small travel bag in the vehicle; the key to the vehicle was the only key on the keyring. After speaking with Nevarez-Reyes, the deputy asked dispatch to send another cruiser so that Caito's canine, Gunner, could conduct a free-air sniff of the Ranger. Within 10 to 12 minutes, Nevarez-Reyes was removed from his vehicle and patted down, and Caito walked Gunner along the truck, starting at the front left driver's side corner. Gunner alerted at the rear passenger side of the vehicle, at the separation between the bed and the cab of the truck.

{¶ 13} Caito participated in the search of Nevarez-Reyes's vehicle. He did not find contraband within the vehicle, but stated certain items were "flags," such as the presence of QuikSteel (a metal sealant) in the vehicle, tool marks on the bolts that hold the straps for the gas tank, and the fact that the straps themselves were not in the "factory position." Caito also located rubber gloves and an air chisel bit. Deputy Caito believed the vehicle was a "trap vehicle" used to transport drugs across the country. Detective Leslie testified that these items "can be used to make hidden or false compartments inside the vehicle."

{¶ 14} Deputy Caito contacted Detectives Walters and Leslie about the alert and what he had found, and Detective Walters decided to have the vehicle towed and to get a search warrant to search it. Deputy Caito issued a citation for fictitious tags and expired tags, and Nevarez-Reyes was transported by another officer to the sheriff's office

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(District 7) so that he could be interviewed.

{¶ 15} Detective Leslie, with Walters's supervision, prepared a search warrant for the vehicle. After it was obtained, the gas tank was removed from the Ranger. Five individually-wrapped packages of suspected methamphetamine were located in the gas tank.

{¶ 16} Detectives Walters and Leslie interviewed Nevarez-Reyes at District 7 offices. Prior to questioning Nevarez-Reyes, Detective Walters informed Nevarez-Reyes of his Miranda rights using a pre-interview form. Leslie testified that Nevarez-Reyes agreed to speak with the officers, and he was not threatened or coerced. Nevarez-Reyes did not ask to speak to an attorney.

{¶ 17} In February 2015, as the prosecution of Nevarez-Reyes proceeded, the State discovered that Nevarez-Reyes's vehicle had been validly registered and that his registration had not expired. The State of Illinois maintains a vehicle registration system such that plate number 1567557 is assigned to a 1998 Honda, whereas plate number 1567557 B was assigned to the red truck at issue here. The license plate on Nevarez-Reyes's vehicle showed 1567557, but in a smaller font to the side, the plate contained the additional information of "B Truck." (See Def.'s Ex. B-E.)

Image materials not available for display.

The rear license plate displayed a small registration expiration tag showing an expiration in July 2015 for vehicle registration "1567557B." The paper registration document for the truck showed a current and valid registration for 1567557B. Nevarez-Reyes's driver's license and proof of insurance were in order.

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Deputy Caito's testimony indicated that it is not typical or usual for officers at a traffic stop to run the information on the paper registration form once the information on the tag has been run.

{¶ 18} On February 27, 2015, Nevarez-Reyes was indicted for aggravated possession of drugs (100 times the bulk amount or more), with a major drug offender specification. Nevarez-Reyes subsequently moved to suppress the evidence seized from the vehicle and all statements that he made to police. He claimed that (1) the officers lacked a reasonable suspicion to stop his vehicle, (2) his...

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