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State of Ohio v. Kenneth Hollins

October 31, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KENNETH HOLLINS,
DEFENDANT-APPELLANT.



Appeal from Hancock County Common Pleas Court Trial Court No. 2009 CR 257 Judgment Affirmed

The opinion of the court was delivered by: Rogers, P.J.

Cite as State v. Hollins,

OPINION

{¶1} Defendant-Appellant, Kenneth Hollins, appeals the judgment of the Court of Common Pleas of Hancock County sentencing him to a nine-year prison term. On appeal, Kenneth contends that the trial court erred in denying his motion to suppress, and that he received ineffective assistance of counsel. Based on the following, we affirm the judgment of the trial court.

{¶2} In December 2009, the Hancock County Grand Jury indicted Kenneth on a single count of possession of a controlled substance, heroin, in violation of R.C. 2925.11(A), with the specification that Kenneth is a major drug offender pursuant to R.C. 2941.1410, a felony of the first degree. The indictment arose from the discovery of heroin in a vehicle initially stopped for speeding.

{¶3} Later that month, Kenneth entered a plea of not guilty to the sole count in the indictment.

{¶4} In March and April 2010, Kenneth filed a motion to suppress and supplemental brief in support of his motion to suppress, respectively. Kenneth argued, in pertinent part, that the officer, without reasonable articulable suspicion of criminal activity, prolonged the traffic stop beyond the time reasonably necessary to effectuate the initial purpose of the traffic stop, i.e., issuance of a warning or citation for speeding. As a result, Kenneth argued that any evidence obtained outside the time which was reasonably necessary to issue a warning or citation for speeding must be suppressed as the discovery of such evidence occurred as a result of an unlawful seizure.

{¶5} In August 2010, the matter proceeded to a suppression hearing during which the following evidence and testimony was adduced.

{¶6} Trooper Jacob Fletcher testified that he is employed by the Ohio State Highway Patrol ("OSHP") and has been stationed at the Hancock County OSHP post for eight years. On December 12, 2009, at approximately 3:45 p.m., Trooper Fletcher was sitting stationary on Interstate 75 in the southbound rest area, near mile marker 153, monitoring traffic. Around this time Trooper Fletcher caught sight of a vehicle traveling southbound, at what he perceived to be a speed greater than the posted limit. To verify the vehicle's speed Trooper Fletcher employed a laser, which indicated that the vehicle was traveling seventy-four (74) miles per hour. A second laser reading, taken shortly after the first reading, indicated that the vehicle had decelerated to fifty-nine (59) miles per hour. Trooper Fletcher left his position and caught up to the vehicle. Prior to initiating the traffic stop, Trooper Fletcher pulled alongside the vehicle and witnessed the driver driving with both hands on the wheel and looking straight forward, a behavior Trooper Fletcher considered to be a criminal indicator. Thereafter, Trooper Fletcher initiated a traffic stop of the vehicle at approximately 3:47 p.m. Judgment Entry, p. 3. Upon initiating the traffic stop Trooper Fletcher ran the vehicle's license plate and discovered that the vehicle was a rental and that it had not been reported stolen.

{¶7} Trooper Fletcher continued that upon approaching the driver's door he informed the driver, who was later identified as Darrell Hollins, that he was being stopped for speeding. Trooper Fletcher asked Darrell for his driver's license, the vehicle's registration, and proof of insurance. Darrell produced his driver's license and a rental agreement. At this time, Trooper Fletcher noticed three to four cell phones and power cords lying in the vehicle's center console, which he considered to be a criminal indicator as there were only two individuals in the vehicle. Upon receiving Darrell's driver's license and the rental agreement, Trooper Fletcher asked Darrell if he would step out of the vehicle, to which Darrell agreed. Trooper Fletcher explained that he customarily asks the driver to step out of the vehicle during traffic stops when passengers are present so he can discuss the violation with the driver without passenger involvement. Upon exiting the vehicle, Trooper Fletcher asked Darrell whether he had any weapons or contraband on his person, to which Darrell responded in the negative. Trooper Fletcher then asked Darrell if he would have a seat in the front passenger seat of the patrol car, and whether he would consent to a search of his person for weapons before he sat in the patrol car. Darrell consented to both requests.

{¶8} Trooper Fletcher continued that upon entering the patrol car he informed Darrell about his speed and asked whether he had any questions. Immediately thereafter, Trooper Fletcher began to conduct checks of Darrell's driver's license and the vehicle's information. Darrell had a valid Michigan driver's license. Upon reviewing the rental agreement, however, Trooper Fletcher noticed that Darrell's name did not appear on the rental agreement. On re-direct, Trooper Fletcher testified about the significance of the renter's absence from a rental vehicle.

Q: [Defense counsel] questioned you with regards to not having any knowledge when you initially stopped this vehicle that was stolen, that it was wanted, that it was used in a crime, that's correct, right?

A: Yes.

Q: Did your opinion change with regards to the automobile that you had stopped once you saw the rental agreement, I believe it's State's Exhibit 1, and [the] only listed driver was not present?

A: Yes.

Q: During your 8 years as a State Patrol Officer for the Ohio State Highway Patrol and numerous traffic stops you've made, have you ever encountered an individual that's told you he's had permission to drive a rental vehicle and you found that to be contrary to the evidence that you've later collected?

A: Yes.

Hearing Tr., pp. 68-69. Trooper Fletcher testified that the absence of the named renter, or other authorized driver, from a rental vehicle was a "big" criminal indicator. Id. at p. 68.

{¶9} Trooper Fletcher, in an effort to determine why Darrell was driving a vehicle rented under a third party's name, asked Darrell several basic questions, to wit: where were they coming from; where were they going; who rented the vehicle; why did they have the vehicle. According to Trooper Fletcher, Darrell stated that he and his brother, Kenneth, were driving from Detroit to Dayton to pick up their cousin, Troy Kyles, who rented the vehicle. Darrell further stated that he and Kenneth had traveled to Dayton with Kyles the previous night, and that he and Kenneth returned to Detroit the same night because he had to work in the morning. Trooper Fletcher testified that he found Darrell's story to be suspect and a criminal indicator. Specifically, Trooper Fletcher could not rationalize why an individual would drive from Detroit to Dayton, return to Detroit the same day for work, and return to Dayton the following day to pick up an acquaintance.

{¶10} After Darrell explained his recent and current travel plans, Trooper Fletcher asked Darrell whether he was listed as an additional driver. Darrell responded that he should have been listed as an additional driver. Darrell, however, produced no documentation to substantiate his claim, nor did he explain why he should have been listed as an additional driver.

{¶11} After speaking with Darrell, Trooper Fletcher requested a canine unit, which occurred at approximately 3:51 p.m. Judgment Entry, p. 3.

{¶12} After requesting the canine unit, Trooper Fletcher returned to the vehicle to speak with the vehicle's passenger, Kenneth. Trooper Fletcher asked Kenneth for identification, which Kenneth was unable to produce. Accordingly, Trooper Fletcher took down Kenneth's name and date of birth to verify his identity. Trooper Fletcher also asked Kenneth about his and Darrell's travel plans and who rented the vehicle. According to Trooper Fletcher, Kenneth stated that he and Kyles had traveled from Detroit to Dayton the previous night to party. Kenneth further stated that Darrell did not accompany them to Dayton the previous night, and that Kyles remained in Dayton while he returned to Detroit that night. After speaking with Kenneth, Trooper Fletcher returned to his patrol car.

{¶13} Upon returning to his patrol car, Trooper Fletcher again asked Darrell about his travel plans in an attempt to see whether his story would change. Darrell's explanation of his travel plans did not change. Trooper Fletcher testified that the inconsistencies between Darrell and Kenneth's stories were criminal indicators.

{¶14} Trooper Fletcher continued that due to a lack of documentation demonstrating that Darrell was an authorized driver and pursuant to OSHP operating procedure he began the process of contacting the vehicle's owner, in this case Avis Car Rental Company ("Avis"). To that end, Trooper Fletcher, at approximately 3:59 p.m., requested his dispatcher, Tracy Koenig, to contact Avis to determine whether anyone other than Kyles could operate the vehicle. Judgment Entry, p. 3. At approximately 4:02 p.m., Koenig informed Trooper Fletcher that there were no additional drivers associated with the rental agreement, but that there may be a form attached to the rental agreement listing additional drivers. Upon inspection of the rental agreement, State's Exhibit 1, Trooper Fletcher found no additional forms listing additional drivers, and relayed the same to Koenig. At approximately 4:04 p.m., Koenig informed Trooper Fletcher that neither Darrell nor Kenneth was permitted to drive the vehicle, and that Avis wanted the vehicle to be detained. Judgment Entry, p. 4.*fn1

{ΒΆ15} At approximately 4:05 p.m., the canine unit arrived on scene and conducted an exterior sniff of the vehicle. Id. The canine alerted to the driver side of the vehicle. After the canine alerted to the vehicle, Kenneth was asked to exit the vehicle and Trooper Fletcher conducted a search of his person, which revealed a small plastic bag of "green leafy material." Hearing Tr., p. 30. Thereafter, Trooper Fletcher placed Kenneth in the back of his patrol car, and conducted a thorough search of the rental vehicle. Trooper Fletcher searched the passengercompartment first and discovered the presence of a blunt in the ashtray. Trooper ...


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