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State v. Haynes

Court of Appeals of Ohio, Second District, Montgomery

February 16, 2018

STATE OF OHIO Plaintiff-Appellee
DARRELL L. HAYNES Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 16-CR-2202

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Montgomery County Prosecutor's Attorney for Plaintiff-Appellee

          JULIUS L. CARTER, Atty. Reg. No. 0084170, Attorney for Defendant-Appellant


          HALL, J.

         {¶ 1} Darrell L. Haynes appeals from his conviction and sentence on one count of improperly handling a firearm in a motor vehicle, a fourth-degree felony. Haynes pled no-contest to the charge and was found guilty after the trial court overruled his suppression motion.

         {¶ 2} In his sole assignment of error, Haynes challenges the trial court's denial of the suppression motion.

         {¶ 3} The sole witness at Haynes' suppression hearing was Devin Maloney, a K-9 patrol officer with the Kettering police department. Maloney testified that he was on patrol with his dog on the night of July 9, 2016 when he conducted a random license-plate check of a passing vehicle. His computer alerted him that the registered owner of the vehicle, Keishaun Tims, had a warrant for her arrest. Maloney made a U-turn but failed to catch the other vehicle. He looked at the address associated with the warrant, however, and realized that it was just round the corner at an apartment complex. Maloney proceeded directly to that location. Upon arriving, he saw the subject vehicle parked in front of Tims' apartment. Maloney stopped his cruiser behind the vehicle, which still was running and had its headlights and brake lights on. He shined his spotlight on the vehicle and observed that the female driver matched the physical description of the registered owner of the vehicle. He then approached the vehicle and made contact with Tims, the driver, and Haynes, the front-seat passenger and only other occupant. Maloney obtained identification from Haynes and Tims. Haynes appeared to be particularly nervous, but Maloney had no reason to suspect him of anything criminal. Due to Tims' warrant, Maloney requested a second police unit, which arrived within minutes.

          {¶ 4} When the second police unit arrived, the warrant was confirmed with the dispatcher. Tims was removed from her car, handcuffed, and placed in the back of a police cruiser. Police proceeded to talk to Tims about searching her car, but she refused to consent. At that point, Haynes was asked to step away from Tims' car and to wait with an officer. He complied and also consented to a weapons pat-down, but no weapons were found on his person. Haynes then stood behind Tims' car while Maloney deployed his K-9 dog in a free-air sniff.

         {¶ 5} Maloney's dog alerted to the driver's side door area of Tims' car. Maloney asked Tims and Haynes whether there was anything illegal or dangerous in the car. After they responded negatively, he proceeded to search the car. The search resulted in police discovering marijuana shake on the floorboard and a marijuana blunt in the ashtray. Maloney also found a loaded handgun behind the passenger's seat. A magazine also was found in the car. Upon discovering the firearm, police handcuffed Haynes. As they were doing so, Haynes asked why he was being handcuffed. Maloney responded, "There's a gun in the car, alright?" Another officer added, "Just until we figure out who's [sic] gun and what's going on." Maloney then stated, "We got to figure out whose it is." Haynes immediately admitted that he owned the gun.

         {¶ 6} In its suppression ruling, the trial court found that Haynes reasonably believed he was not free to leave the scene after police obtained his driver's license and retained it. (Doc. # 33 at 3). The trial court also found that Haynes was not handcuffed for officer safety after police discovered the loaded handgun because he already had been patted down and the firearm found in Tims' car already had been secured. (Id.). Although Haynes also was not Mirandized before he admitted owning the gun, the trial court nevertheless found no basis for suppression. It reasoned that his confession was a spontaneous utterance not in response to police interrogation. (Id. at 6). Therefore, the trial court declined to suppress the confession. It also declined to suppress the gun and the magazine, ruling that they were discovered during a lawful search based on the dog's alert. (Id.).

         {¶ 7} On appeal, Haynes raises three issues. First, he contends the trial court's "most notable factual error was referring to the incident as a "traffic stop." (Appellant's brief at 10). He also contends the trial court erred in finding that the magazine was discovered in the glove box. (Id.). Second, he asserts that no basis existed for detaining him because the incident was not a traffic stop and because police lacked any basis for an investigative detention with regard to him. (Id. at 10-11). Third, he argues that his un-Mirandized statement about owning the gun was not spontaneous. Rather, he contends he made the statement in response to words and actions by the officers that were reasonably likely to elicit an incriminating response.

         {¶ 8} When ruling on a motion to suppress, " 'the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.' " State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). We must accept the trial court's findings of fact if they are supported by competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, we then must determine as a matter of law, without deference to the trial court's legal conclusion, whether the applicable legal standard is satisfied. Id.

         {¶ 9} With the foregoing standards in mind, we see no error in the trial court's ruling. As a threshold matter, we note that the trial court did not err in declining to suppress the gun or the magazine discovered during the search of Tims' car. Following her arrest on the outstanding warrant, her car remained parked in front of her apartment. At that point, nothing prevented Maloney from walking his dog around her car, or any other car, in the lot. This is so because a free-air sniff by a dog is not a "search" under the Fourth Amendment.[1] State v. McCray, 2d Dist. Montgomery No. 26519, 2015-Ohio-3049, ¶ 17. Once the dog alerted on the car, Maloney had probable cause to search it. Id. Therefore, the trial court properly refused to suppress the gun or the magazine.

         {¶ 10} With regard to Haynes' specific arguments, we see no basis for reversal predicated on the trial court referring to the incident as a "traffic stop." As set forth above, Maloney first observed Tims' car when it passed him heading the opposite direction on the road. He checked the car's license plate and determined that the registered owner, Tims, had an outstanding warrant. Maloney made a U-turn and pursued the car to a parking lot in front of Tims' apartment. The vehicle was stationary when Maloney reached it, but its engine was running, its lights were on, and Tims was in the driver's seat. We see no meaningful difference between this situation and an officer conducting a "traffic stop" by pulling behind a car that was already stopped at a gas station based on the officer determining that the car's registration had expired. See State v. Henderson, 2d Dist. Montgomery No. 26018, 2014-Ohio-4601. Because Maloney observed no traffic violation, his encounter in this case arguably might be characterized as an "investigatory stop" rather than a "traffic stop." But we see no conceivable prejudice in characterizing his encounter as a traffic stop, which is simply one type of investigative stop. It is beyond dispute that a police officer may detain a motorist when he has a reasonable, articulable suspicion that the motorist has committed any criminal offense, including a traffic offense, and no other independent reasonable and articulable suspicion is required. State v. Chase, 2d Dist. Montgomery No. 25323, 2013-Ohio-2347, ¶ 17. Here the information Maloney received about an active warrant gave him reasonable, articulable suspicion to believe that Tims had committed a criminal offense. Therefore, Maloney was entitled to "stop, " "seize, " or "detain" Tims to pursue the warrant issue further. Haynes' other argument about the location of the magazine within Tims' car is immaterial. For purposes of our analysis, Haynes has failed to explain what difference it makes whether the magazine was found in the glove box, as the trial court found, or in the same bag with the gun, as he suggests on appeal.

         {¶ 11} Haynes next challenges his detention at the scene, arguing that he merely was sitting in a car with someone who had a warrant and that he did nothing indicative of criminal activity. Although Maloney testified that Haynes appeared nervous, Haynes insists that there were no additional facts to justify an investigative detention of him. He also notes that his identification was not returned prior to police searching Tims' car.

         {¶ 12} Upon review, we see no illegality in Haynes' detention at the scene. "When a lawfully stopped vehicle contains passengers, the Fourth Amendment permits law enforcement officers to detain those passengers for the duration of the lawful detention of the driver." State v. Lawson, 180 Ohio App.3d 516, 2009-Ohio-62, 906 N.E.2d 443, ¶ 39 (2d Dist.), quoting State v. Brown, 2d Dist. Montgomery No. 20336, 2004-Ohio-4058, ¶ 14. Such detention " 'may last no longer than is necessary to resolve the issue that led to the original stop, absent some specific and articulable facts that further detention was reasonable.' " Id., quoting Brown, citing State v. Chatton, 11 Ohio St.3d 59, 463 N.E.2d 1237 (1984). A police officer also may request and obtain identification from a passenger. State v. Wilcox, 2d Dist. Clark No. 2011 CA 99, 2012-Ohio-3400, ¶ 16. In addition, "[d]uring an investigative stop of a vehicle, the police officer making the stop may order a passenger to get out of the vehicle pending completion of the stop." State v. Choice, 2d Dist. Montgomery No. 25131, 2013-Ohio-2013, ¶ 48. Maloney's detention of Haynes was lawful while he completed his investigation of Tims by confirming her identify and the validity of her warrant and arresting her. See also State v. Starks, 9th Dist. Summit No. 27347, 2015-Ohio-2137, ¶ 12 ("Though Starks argues that he should have been free to leave while the officers were processing the arrest of the driver, the continued detention of a passenger is not unreasonable when it is contemporaneous with the arrest of the driver.").

         {¶ 13} We note too that Maloney deployed his dog, which already was on the scene, less than two minutes after Tims' arrest and her denial of consent to search her car. In State v. Caulfield,2013-Ohio-3029, 995 N.E.2d 941 (2d Dist.), this court held that a passenger's continued detention was permissible where a vehicle search "was conducted contemporaneously with the driver's arrest and the search was lawful pursuant to the driver's consent." Id. at ¶ 19. Caulfield cited case law defining "contemporaneously" to mean "at or very near the time of the arrest." Id. at ¶ 17. Here, of course, Tims did not consent to a search of her car. As explained above, however, the dog's free-air sniff was lawful because it was not a search under the Fourth Amendment. In addition, Haynes' continued detention during the free-air sniff was lawful because the sniff occurred contemporaneously with Tims' arrest. The trial court determined that "after ordering [Haynes] out of the car, Officer Maloney promptly deployed the canine to perform an open air sniff around the car." (Doc. #33 at 2). Once the dog alerted, police had probable cause to search the car. State v. Greene, 2d Dist. Montgomery No. 25577, 2013-Ohio-4516, ΒΆ 17. The dog's alert also provided grounds for them to continue to detain Haynes pending completion of the search, which resulted in the discovery of a loaded ...

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