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State v. Skeens

Court of Appeals of Ohio, Fifth District, Tuscarawas

April 24, 2018

STATE OF OHIO Plaintiff - Appellant
v.
DESIRRA N. SKEENS Defendant-Appellee

          Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2017 CR 05 0120

          For Plaintiff-Appellant: MICHAEL J. ERNEST Assistant Prosecuting Attorney Tuscarawas County Prosecutor's Office

          For Defendant-Appellee: MARK A. PERLAKY Assistant Public Defender Tuscarawas County Public Defender

          Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          Baldwin, J.

         {¶1} Plaintiff-appellant State of Ohio appeals from the October 31, 2017 Judgment Entry of the Tuscarawas County Court of Common Pleas granting the Motion to Suppress filed by defendant-appellee Desirra N. Skeens.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On May 19, 2017, the Tuscarawas County Grand Jury indicted appellee on one count of possession of cocaine in violation of R.C. 2925.11 (A) and (C)(4)(a), a felony of the fifth degree. At her arraignment on June 9, 2017, appellee entered a plea of not guilty to the charge.

         {¶3} Appellee, on August 2, 2017, filed a Motion to Suppress. Appellee, in her motion, argued that the arresting officer did not have reasonable and articulable suspicion or probable cause to stop appellee's vehicle and did not have reasonable and articulable suspicion to prolong appellee's detention in order to wait for a drug-sniffing canine to arrive.

         {¶4} A hearing on the Motion to Suppress was held on September 18, 2017. At the hearing, Sergeant Joel Smith of the Ohio State Highway Patrol testified that he was traveling southbound on Interstate 77 on October 25, 2016 in a marked patrol car when he observed the vehicle in which appellee was traveling following too close to another vehicle. Sergeant Smith stopped the vehicle and had the driver exit the same and come over to the patrol car. He testified that he asked the man for his driver's license and the man told Sergeant Smith that he did not have a license because it had been suspended.

         {¶5} Sergeant Smith testified that the man told him that they were coming from Cleveland and going back to West Virginia after visiting his cousin and that "she [appellee] was with him for the ride and a friend rented the car." Transcript at 6-7. Neither appellee nor the driver knew who had rented the car. Appellee did not know the driver's first name, even though she indicated that she had known him since June, and the driver did not know appellee's name. Sergeant Smith then called for the canine handler to the scene to conduct a sniff of the exterior of the vehicle. Approximately seven minutes after the traffic stop was initiated, the canine unit arrived on the scene. After the canine indicated to the odor of narcotics coming from inside the vehicle, appellee was placed in the back seat of the patrol car while a search of the vehicle was conducted. No narcotics were found in the vehicle.

         {¶6} On cross-examination, Sergeant Smith admitted that he did not indicate that the driver of the vehicle in which appellee was a passenger was impaired, did not smell any odor of narcotics in the vehicle, and did not indicate in his report anything about nervousness.

         {¶7} On redirect, Sergeant Smith testified that after the search of the vehicle was completed, he had appellee step out of the patrol car and reviewed his in-car video. He testified that the video recorded the driver of the vehicle asking appellee "You don't have anything on you do you?" and appellee responding "Well yeah, I have a few but it's up inside me." Transcript at 24. After Sergeant Smith confronted appellee, she voluntarily retrieved the cocaine from her pants.

         {¶8} Following the testimony, a video of the traffic stop was ...


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