State v. Brown
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[Cite as State v. Brown, 2009-Ohio-3804.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY State of Ohio Appellee Court of Appeals No. WD-07-077 Trial Court No. 07 CR 125 v. Jeremy Brown Appellant DECISION AND JUDGMENT Decided: July 31, 2009 ***** Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee. William F. Hayes, for appellant. ***** SINGER, J. {¶ 1} Appellant appeals his conviction and sentence for trafficking marijuana and possession of marijuana in the Wood County Court of Common Pleas. Appellant sets forth the following assignments of error: {¶ 2} "I. The trial court erred to the prejudice of defendant/appellant in failing to suppress the observations of, and evidence obtained by, police as a result of the unconstitutional stop of the appellant's vehicle. The stop was unconstitutional as the office[r] did not have a reasonable, articulable basis to stop the vehicle under the Fourth Amendment rights under the United States Constitution and Article 1 Section 14 of the Ohio Constitution. {¶ 3} "II. The trial court erred in denying defendant/appellant's motion to suppress inasmuch as defendant/appellant was unreasonably detained by investigating authorities when it was clear to the investigating officers, upon initially stopping the defendant/appellant that no crime had occurred and that there was no other legitimate reason to detain defendant/appellant. {¶ 4} "III. The offences [sic] charged in the indictment and to which the defendant was found guilty were allied offenses of similar import and the sentences should have been merged pursuant to O.R.C. 2941.25." {¶ 5} In his first assignment of error, appellant claims that the trial court committed prejudicial error in failing to suppress all evidence obtained as a result of the unconstitutional stop of appellant's vehicle. {¶ 6} A suppression hearing in this case commenced on June 8, 2007. Sergeant John M. Gazarek of the Perrysburg Township Police Department testified that at approximately 8:00 p.m. on March 29, 2007, he was parked at a median on I-75 when he observed and decided to follow a blue Dodge Grand Caravan with Texas tags traveling 2. northbound. Sergeant Gazarek testified that he became suspicious of this vehicle upon viewing the driver, a white female, staring straight ahead and driving with her hands placed on the steering wheel in the eight and four position, even though he repeatedly testified that driving in this manner is safe and consistent with what is taught in a driver's education course. Sergeant Gazarek testified that when he caught up to the vehicle, he ran the vehicle's tag and discovered the vehicle was rented in Texas. He also noticed there were two children seated in the back. Sergeant Gazarek testified that he then sped up to pass the vehicle, but when he pulled up alongside the driver he viewed the appellant, Jeremy Brown, a black male, for the first time and noticed they were both staring straight ahead. Sergeant Gazarek testified that he found this behavior suspicious so he reduced his speed and followed them. {¶ 7} Sergeant Gazarek observed that the vehicle traveled in the far right lane at a speed of 60 m.p.h. in a 65 m.p.h. zone for approximately the first two miles, and then reduced its speed upon approaching the rear of a semi tractor-trailer. Sergeant Gazarek testified that the semi was traveling at a speed of approximately 55 m.p.h., and that he was following the vehicle in the center lane at a speed of 60 m.p.h. The vehicle traveled behind the semi for approximately three miles. When the vehicle attempted to change lanes, Sergeant Gazarek initiated the stop. Sergeant Gazarek testified the vehicle was traveling one-and-one-half car lengths behind the semi, and he stopped the vehicle for following too closely in violation of R.C. 4511.34. Sergeant Gazarek testified that based 3. on his training and experience, he has learned that following too closely is a common precursor to traffic accidents. {¶ 8} In reviewing a motion to suppress "an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." State v. Montoya (Mar. 6, 1998), 6th Dist. No. L-97-1226 (citing State v. Guysinger (1993), 86 Ohio App.3d 592, 594). "[T]he appellate court must then independently determine as a matter of law, without deferring to the trial court's conclusions, whether the facts meet the applicable legal standard." Id. (citing State v. Klein (1991), 73 Ohio App.3d 486, 488). {¶ 9} The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. State v. Meza, 6th Dist. No. L-03-1223, 2005-Ohio1221, ¶ 18. "A seizure occurs when police restrain an individual's freedom for an investigatory stop, even if it is only a brief detention short of a traditional arrest." Id. (citing Terry v. Ohio (1968), 392 U.S. 1, 21; State v. Andrews (1991), 57 Ohio St.3d 86, 87). "A police officer may reasonably conduct an investigatory stop of an individual if the officer can point to specific and articulable facts which, under the totality of the circumstances, warrant a reasonable belief that criminal behavior has occurred or is imminent. Meza, supra, at ¶ 18. {¶ 10} The Supreme Court of Ohio has set out a standard for determining when a stop is constitutional. With respect to the issue of pretext stops, recent case law has held that a stop and detention is not unreasonable under the Fourth Amendment where a police 4. officer has probable cause to believe that a traffic violation has occurred, even though the officer was motivated to make the stop by a belief that the violator might be engaged in other, more serious criminal activity. Dayton v. Erickson (1996), 76 Ohio St.3d 3; Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769. {¶ 11} Here, Sergeant Gazarek stopped appellant after he determined that appellant's vehicle was following too close to the semi, a traffic offense under R.C. 4511.34. Sergeant Gazarek estimated the distance between the two vehicles to be one and one-half car lengths, and testified in the court below that as a general rule a driver should travel approximately one car length for every ten m.p.h. of speed to maintain a safe distance from the vehicle in front of him. Therefore, we must conclude that Sergeant Gazarek had probable cause to believe that a traffic violation had occurred and probable cause to make the traffic stop. {¶ 12} Accordingly, we find that the trial court properly denied the motion to suppress on the basis that the stop was unconstitutional. Therefore, appellant's first assignment of error is not well-taken. {¶ 13} In his second assignment of error, appellant asserts that the trial court committed prejudicial error in failing to suppress all evidence obtained as a result of the unreasonable detainment of appellant. We agree. {¶ 14} Sergeant Gazarek testified that when he approached the vehicle, he asked the driver for her license and removed her from the vehicle. Standing at the rear of the vehicle, Sergeant Gazarek asked the driver where she and her passenger were going and 5. the reason for their trip. Sergeant Gazarek then approached the passenger side of the vehicle where he requested identification from appellant and asked him the same questions that he had asked the driver. Driver and appellant both stated the reason for their trip to Detroit as the death of appellant's mother. However, Sergeant Gazarek became more suspicious upon comparing the following answers: the driver stated appellant's mother passed away the week before and they were returning to Texas on Saturday, while appellant stated his mother passed away a couple of days prior and the funeral was either on Saturday or Sunday and they would be returning to Texas after the funeral. Sergeant Gazarek questioned appellant further on this subject, and then asked appellant if there were any weapons, narcotics, or large sums of money in the vehicle. Appellant answered in the negative, stating they were carrying only travel money. {¶ 15} Approximately five to ten minutes after Sergeant Gazarek initiated the stop, he returned to the rear of the vehicle and asked the driver to wait inside his patrol car. There, he began running the checks on the driver's license and appellant's identification card and continued to question the driver about the answers given by her and appellant regarding the dates of appellant's mother's death and funeral. Sergeant Gazarek also asked the driver if there were any narcotics or large sums of money in the vehicle. {¶ 16} While waiting for the checks to come back, Sergeant Gazarek asked appellant, "Do you mind if I search your car?" to which appellant responded "Yes." Sergeant Gazarek assumed this response meant that appellant gave him consent to search the vehicle. There were two other officers at the scene while Sergeant Gazarek searched 6. the vehicle. Sergeant Gazarek had 136 hours of drug interdiction training at the time of the search. The following items were found in the vehicle: $4,000 (in a purse) and several rubber bands, which Sergeant Gazarek testified are consistent with drug trafficking. In addition, Sergeant Gazarek smelled raw marijuana in the vehicle. Another officer on the scene identified the odor as "something mixed with fabric softener sheets." Fabric softener has been known to be used by drug traffickers to cover the odor of marijuana. State v. Gonzales, 6th Dist. No. WD-07-060, 2009-Ohio-168, ¶ 25. {¶ 17} During the search, the checks on the driver and appellant came back with no outstanding warrants. Sergeant Gazarek requested the K-9 unit and placed appellant in one of the other officer's patrol cars. The officer with the canine arrived approximately 19 minutes later, as Sergeant Gazarek was filling out the traffic warning for following too closely. The canine was walked around the vehicle and alerted to the presence of narcotics almost immediately. Marijuana was found in a compartment in the floor underneath the seating areas. {¶ 18} "[T]he scope of a detention 'must be carefully tailored to its underlying justification * * * and last no longer than is necessary to effectuate the purpose of the stop.'" State v. Gonyou (1995), 108 Ohio App.3d 369, 372 (quoting Florida v. Royer (1983), 460 U.S. 491, 500). "The lawfulness of the initial stop will not support a 'fishing expedition' for evidence of crime." Id. (quoting State v. Smotherman (July 29, 1994), 6th Dist. No. 93WD082; citing State v. Bevan (1992), 80 Ohio App.3d 126, 130). 7. {¶ 19} This court has identified "[v]arious activities, including following a script, prolonging a traffic stop in order to 'fish' for evidence, separating an individual from his car and engaging in 'casual conversation' in order to observe 'body language' and 'nervousness' [that it has] deemed (depending on the overall facts of the case) to be manipulative practices which are beyond the scope of, ' * * * the fulfillment of the purpose for which the stop was made.'" Id. (quoting State v. Correa (1995), 108 Ohio App.3d 362, 368; see, also, State v. Smotherman, (July 29, 1994), 6th Dist. No. 93WD082). {¶ 20} Here, "[w]hen [Sergeant Gazarek] asked questions irrelevant to the original purpose of the stop, he was expanding the investigative scope of the detention." Id. Why appellant was going to Detroit, the date of his mother's death, when he planned to return home, and whether there were drugs or large amounts of cash in the vehicle were not relevant to whether there had been a violation of R.C. 4511.34. {¶ 21} This court allowed a similar line of questioning in State v. Meza, 6th Dist. No. L-03-1223, 2005-Ohio-1221, ¶ 9, 21, where the officer's purpose in engaging the driver in conversation and asking where the driver was headed was to determine how long the driver had been on the road and if the driver was too fatigued to drive. See, also, State v. Kazazi, 6th Dist. No. WD-03-035, 2004-Ohio-4147, ¶ 3. There is no testimony from Sergeant Gazarek in the court below, or any evidence that there was such a permissible purpose for this line of questioning. In fact, it seems clear that by separating the driver and appellant, and then asking them both the same questions, Sergeant Gazarek 8. was "fishing" for answers that would raise suspicion. Sergeant Gazarek's suspicions were based only on appellant's and the driver's answers to his impermissible questions. Furthermore, we do not believe the answers given to the officer's questions regarding the purpose of their trip were very different from each other, and certainly not so different as to raise suspicion. (Given the fact that Sergeant Gazarek finds safe driving to be suspicious, he may also have found it suspicious if they had given him identical answers.) {¶ 22} "When conducting the stop of a motor vehicle for a traffic violation, an officer may detain the vehicle for a time sufficient to investigate the reasonable, articulable suspicion for which the vehicle was initially stopped." State v. Beltran, 12th Dist. No. CA2004-11-015, 2005-Ohio-4194, ¶ 16 (citing State v. Bolden, 12th Dist. No. CA2003-03-007, 2004-Ohio-184, ¶ 17). "This time period includes the time necessary to run a computer check on the driver's license, registration, and vehicle plates." Id; see, also, Delaware v. Prouse (1979), 440 U.S. 648. {¶ 23} Here, Sergeant Gazarek did not initiate the checks on the driver or appellant until five to ten minutes after the stop. A review of this court's prior case history indicates that an officer should, on average, have completed the necessary checks and be ready to issue a traffic citation in approximately 15 minutes. See State v. Johnson, 6th Dist. No. L-06-1035, 2007-Ohio-3961, ¶ 10; see, also, State v. Meza, 6th Dist. No. L-031223, 2005-Ohio-1221, ¶ 9. We are convinced that by impermissibly questioning both the driver and appellant, the length of the stop was prolonged. 9. {¶ 24} We find that the tactics used in this case impermissibly expanded the length and the scope of the investigative stop and violate the Fourth Amendment to the Constitution of the United States and Article I, Section 14 of the Ohio Constitution. Thus, the trial court erred in failing to suppress evidence which was the result of the subsequent search. Accordingly, appellant's second assignment of error is well-taken. {¶ 25} Accordingly, appellant's third assignment of error is rendered moot. {¶ 26} On consideration whereof, this court reverses the judgment of the Wood County Court of Common Pleas. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. JUDGMENT REVERSED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. Peter M. Handwork, J. _______________________________ JUDGE Arlene Singer, J. Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE _______________________________ JUDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6. 10.
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