State v. Urdiales
| Decision Date | 08 September 2015 |
| Docket Number | No. 7–15–03.,7–15–03. |
| Citation | 38 N.E.3d 907 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Roberto G. URDIALES, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Billy D. Harmon, for Appellant.
J. Hawken Flanagan, for Appellee.
WILLAMOWSKI
, J.
{¶ 1} Defendant-appellant, Roberto G. Urdiales (“Urdiales”), brings this appeal from the judgment of the Common Pleas Court of Henry County, Ohio, denying his motion to suppress, finding him guilty upon his entry of a no contest plea to a charge of possession of cocaine, a felony of the fifth degree in violation of R.C. 2925.11(A)(C)(4)(a)
, and sentencing him to eleven months in prison. For the reasons that follow, we affirm the trial court's judgment.
{¶ 2} On or about March 6, 2014, Sheriff Michael Bodenbender (“Sheriff Bodenbender”), applied for a search warrant authorizing installation and monitoring of a GPS tracking device on the target vehicle, which was a 2002 Ford Windstar, registered to Urdiales's mother. Together with his application, Sheriff Bodenbender attached an affidavit, in which he attested that the information obtained through the GPS monitoring would provide evidence of possession of drugs in violation of R.C. 2925.11
, and trafficking in drugs in violation of R.C. 2925.03. (State's Ex. 1.) The affidavit included the following facts:
(Id. ) A judge of the trial court approved the warrant application.
{¶ 3} A GPS tracking device was placed on the target vehicle on March 7, 2014. (State's Ex. 4.) Thereafter, Sheriff Bodenbender and other law enforcement personnel from the Henry County Sheriff's Office monitored the vehicle's location. The monitoring indicated that on Friday evening, March 7, 2014, the vehicle traveled to Toledo, Lucas County, Ohio, stopping at three or four locations in Toledo and at one location in Wood County, Ohio. When the vehicle entered Henry County, Sergeant Marc Ruskey (“Sergeant Ruskey”), who was also tracking the vehicle, initiated a stop. He asked the driver to step out of the vehicle and conducted a pat-down for weapons. A K–9 unit and Sheriff Bodenbender arrived on the scene. After the K–9 alerted to the vehicle for narcotics, Sheriff Bodenbender searched Urdiales and recovered cocaine and some cash.
{¶ 4} As a result of the search, Urdiales was arrested and charged with possession of drugs, a felony of the fifth degree in violation of R.C. 2925.11(A)
. Urdiales entered a plea of not guilty and was released upon his own recognizance. After receiving discovery, Urdiales filed a motion to suppress evidence obtained as a result of the stop and search on March 7, 2014. In his motion Urdiales alleged that the affidavit submitted in support of the search warrant was invalid as not based upon probable cause. He further asserted that the stop and search of his vehicle were “not based upon reasonable suspicion and/or probable cause.” (R. at 16.) Finally, he argued that the warrantless search of his person was unconstitutional. The trial court conducted a hearing on the motion.
{¶ 5} Sheriff Bodenbender testified about the information provided to him by the confidential informant in this case. He attested that he had been in phone contact with this confidential informant for two or three years and had spoken to him “dozens of times” regarding drug activity or other criminal activity, such as, for example, a stolen motorcycle. (Tr. at 17.) The information given by this confidential informant had always proven reliable. (Tr. at 14–15.)
{¶ 6} Sheriff Bodenbender talked about the information provided by the confidential informant regarding Urdiales and the alleged drug activity. In addition to repeating the facts that were in the affidavit, Sheriff Bodenbender testified about other details given by the confidential informant. In particular, the confidential informant told Sheriff Bodenbender that the suspect activity occurred every week between 8:00 p.m. and 10:00 p.m., on Friday or Saturday and it included cocaine. (Tr. at 19–20, 27.) The confidential informant indicated that “[h]e had been told specifically by Mr. Urdiales” about these events. (Tr. at 2021.) Based on this information, Sheriff Bodenbender applied for a search warrant to authorize the installation and monitoring of a GPS tracker.
{¶ 7} Sheriff Bodenbender further testified about the night of March 7, 2014, when the GPS monitoring of the target vehicle occurred. Based upon the information obtained from the tracking device, Sheriff Bodenbender determined that the vehicle's movements and the timing of these movements were consistent with the information provided by the confidential informant. (Tr. at 9–10.) Therefore, relying on his experience with this confidential informant and on the personal observations on March 7, 2014, Sheriff Bodenbender believed that Urdiales was transporting drugs into Henry County. (Tr. at 15.)
{¶ 8} Sheriff Bodenbender traveled to the site of the vehicle stop and confirmed that the driver was Urdiales. (Tr. at 10–11.) When he arrived at the scene of the stop, Urdiales was standing outside of his vehicle, while the K–9 unit was “sniffing around the van or inside.” (Tr. at 35–36.) The K–9 alerted the law enforcement personnel that there were drugs present. (Tr. at 11–12.) Sheriff Bodenbender testified that Urdiales was standing “right beside” his vehicle when the dog alerted to the presence of drugs. (Tr. at 36–37.) While the dog continued the vehicle search, Sheriff Bodenbender patted down Urdiales and recovered “two little bags of what we thought was cocaine,” and some cash. (Tr. at 12–13, 37.) Sheriff Bodenbender testified that this pat-down search was based on all the information available to him at this point, including the K–9 alert. (Tr. at 39.) A field test conducted at the scene came back positive for cocaine. (Tr. at 39.)
{¶ 9} Sergeant Ruskey was the next person testifying at the hearing. He indicated that on March 7, 2014, as he conducted the GPS monitoring, he was aware that Urdiales was the person driving the vehicle and that the vehicle was monitored for a suspicion of drug trafficking. (Tr. at 46–47, 49, 52.) He was given the description of the vehicle. (Tr. at 54.) He knew other details of the suspected drug activity, as they were conveyed to him by Sheriff Bodenbender, including the time the vehicle was supposed to travel to Toledo. (Tr. at 54–56.) When the vehicle entered Henry County, Sergeant Ruskey traveled in the direction indicated by the GPS unit and identified the target vehicle. (Tr. at 48.) Sergeant Ruskey testified that at this point he believed that the vehicle or its occupants would be in possession of illegal drugs. (Tr. at 49.) Therefore, he initiated a stop based on his belief that the vehicle would contain contraband or illegal drugs, as indicated in the search warrant. (Tr. at 48–49.)
{¶ 10} When Urdiales exited the vehicle, Sergeant Ruskey patted him down for weapons and placed him in handcuffs. (Tr. at 61–62.) He again testified that these precautions were based on the information collected through the investigation and the monitoring, which led him to believe that the vehicle would contain narcotics. (Tr. at 61–63.) According to Sergeant Ruskey, Urdiales was not under arrest at this point. (Tr. at 70–72.) Sergeant Ruskey testified that Urdiales was standing right behind his vehicle when the K–9 unit was deployed, within 40 feet of his vehicle. (Tr. at 51, 63.) Sergeant Ruskey specified that the search by Sheriff Bodenbender occurred after the K–9 alerted to the presence of drugs, but the K–9 continued the search while Sheriff Bodenbender was patting down Urdiales. (Tr. at 51–52.) Urdiales was placed under arrest upon the recovery of the drugs from his person. (Tr. at 70–71.)
{¶ 11} Following the hearing, the trial court denied the motion to suppress. On January 13, 2015, Urdiales withdrew his previous not guilty plea and entered a plea of no contest. The trial court found Urdiales guilty and sentenced him to eleven months in prison. Thereafter, Urdiales filed the instant appeal in which he raises three assignments of error, as quoted below.
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