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State v. Hall

Court of Appeals of Ohio, Second District, Montgomery

June 15, 2018

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL J. HALL, III Defendant-Appellant

          Criminal Appeal from Common Pleas Court T.C. NO. 2016-CR-553

          MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

          CARLO McGINNIS, Attorney for Defendant-Appellant.

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant, Michael J. Hall, III, appeals his conviction and sentence for the following offenses, to wit: Count I: possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree; Count II: possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(e), a felony of the first degree, accompanied by a one-year firearm specification; Count III: possession of drug paraphernalia, in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree; Count IV: improper handling of a firearm in a motor vehicle, in violation of 2923.16(B), a felony of the fourth degree; and Count V: carrying a concealed weapon, in violation of R.C. 2923.12(A)(1), a felony of the fourth degree. Hall filed a timely notice of appeal with this Court on August 16, 2017.

         {¶ 2} The incident which forms that basis for the instant appeal occurred on December 7, 2015, at approximately 7:17 p.m., when Officer Eric Lane, a ranger for the Five Rivers MetroParks, was on patrol in a marked police cruiser in the area near Wesleyan MetroPark in Dayton, Ohio; he observed a Chevrolet Impala run a stop sign located at the intersection of Wesleyan Road and Princeton Drive. The intersection where Officer Lane observed the traffic infraction is an area that is adjacent to park grounds. Officer Lane testified that, as a MetroParks ranger, he has jurisdiction over criminal offenses committed on park grounds and on property adjacent to park grounds. In order to avoid traffic congestion, Officer Lane did not initiate a traffic stop of the Impala, driven by an individual later identified as Hall, until the vehicle reached the intersection of Cornell Drive and Otterbein Avenue, one street over, at approximately 7:20 p.m.

         {¶ 3} After running the license plate number through his computer, Officer Lane approached the vehicle's front passenger window and obtained Hall's license, registration, and insurance information. Upon returning to his cruiser, Officer Lane contacted dispatch and requested a K-9 unit to respond to the scene to perform a free-air sniff around Hall's vehicle. The dispatcher indicated that the K-9 unit was currently in Huber Heights. Officer Lane testified that he informed dispatch that it would take too much time for the K-9 unit to arrive. The dispatcher responded that he had located another K-9 unit in west Dayton in Officer Lane's immediate vicinity. Officer Lane's exchange with the dispatcher lasted from 7:22 to 7:24 p.m. Officer Lane requested that the K-9 unit respond to his location. Officer Lane testified that he requested the K-9 unit because Hall was acting overly nervous upon being stopped. Specifically, Officer Lane observed that Hall slammed the glove box after removing his proof of insurance card, as if he did not want Officer Lane to see what was inside. Officer Lane also testified that Hall's hands were shaking when he handed over his insurance card.

         {¶ 4} After successfully requesting the K-9 unit, Officer Lane entered Hall's information into the LEADS database and the Dayton Police Department's "MIS" system. Officer Lane testified that entering Hall's information took approximately three to four minutes. Thereafter, Officer Lane testified that he began writing Hall's citation for the stop sign violation. The trial court found that Officer Lane began writing the citation at approximately 7:25 p.m. Officer Lane testified that unlike other jurisdictions, Five Rivers MetroParks does not provide its rangers with citations that contain template or "preloaded" information. Thus, Officer Lane had to fill out all of the information in Hall's citation by hand. Furthermore, because he patrolled multiple jurisdictions, Officer Lane testified that he had to verify that Hall's citation referenced the correct court. Accordingly, Officer Lane testified that it generally takes him longer to complete a traffic citation than it does for an officer from a municipal police department.

         {¶ 5} At approximately 7:42 p.m., Officer Robert Cleaver of the Dayton Police Department arrived at the scene with his K-9 unit, Phantom. When Officer Cleaver arrived, Officer Lane was in the process of completing Hall's citation. Officer Lane testified that he stopped working on the uncompleted traffic citation at approximately 7:43 and removed Hall from his vehicle so that Officer Cleaver could perform a free-air sniff with Phantom. At approximately 7:44 p.m., Phantom alerted to the presence of narcotics in Hall's vehicle. The trial court found that only nineteen minutes had passed between the time Officer Lane began writing Hall's citation and when Phantom began the free-air sniff.

         {¶ 6} Once Phantom alerted, Officer Lane testified that he had probable cause to search Hall's vehicle. Officer Lane also testified that he patted Hall down and recovered approximately $700.00 from his person. The officers searched the passenger compartment of Hall's vehicle and ultimately discovered a loaded .22 caliber handgun in the center console. Without being questioned, Hall admitted that he "keeps that [the gun] for protection." Officer Lane then asked if he had a CCW permit, and Hall stated that he did not have a permit to carry a concealed weapon. Hall was arrested, handcuffed, and placed in the back of Officer Lane's cruiser. As he was being placed in the cruiser, Hall spontaneously made the following statements, to wit: 1) "Lord, Lord, Lord, I done f*** up"; 2) "All my sh***, f***"; and 3) "I really f*** up." The statements were recorded by audio equipment inside the cruiser.

         {¶ 7} Upon resuming their search of the vehicle, the officers discovered cocaine, pills, and various pieces of drug paraphernalia. Thereafter, Officer Lane read Hall his Miranda rights, and Hall indicated to Officer Lane that he understood each right. While Hall was being transported to the Montgomery County Jail, Hall made admissions regarding the contraband found in his vehicle. While in jail, Hall was questioned by Detective Jeremy Fritz. Detective Fritz testified that he provided Hall with his Miranda warnings. Hall signed the pre-interview waiver of rights form and agreed to speak with Detective Fritz. Detective Fritz testified that he questioned Hall for approximately thirty minutes, during which Hall made several admissions. At no point during the interview did Hall request an attorney.

         {¶ 8} On April 25, 2016, Hall was indicted for the following offenses, to wit: Count I: possession of criminal tools; Count II: possession of cocaine, accompanied by a one-year firearm specification; Count III: possession of drug paraphernalia; Count IV: improper handling of a firearm in a motor vehicle; and Count V: carrying a concealed weapon. At his arraignment on June 7, 2016, Hall stood mute, and the trial court entered a plea of not guilty on his behalf.

         {¶ 9} On June 21, 2016, Hall filed a motion to suppress the statements he made to the police before and after he was arrested. In a separate motion to suppress filed the same day, Hall sought to exclude any evidence seized during the search of his person and his vehicle. Hall also filed a motion to dismiss based upon pre-indictment delay and a motion for independent analysis of the drugs seized from his vehicle. Shortly thereafter, on June 26, 2016, Hall filed a motion for the appointment of a defense investigator, which the trial court granted one day later on June 27, 2016. On June 28, 2016, the trial court granted Hall's motion for independent drug analysis.

         {¶ 10} A hearing was held on Hall's motions to suppress on July 6 and July 14, 2016. On July 19, 2016, Hall filed a supplemental motion to suppress in which he argued that his statements to the police officers at the scene were involuntary and that he did not validly waive his Miranda rights. On July 20, 2016, the trial court held a hearing on Hall's motion to dismiss.

         {¶ 11} In a decision issued on August 17, 2016, the trial court sustained in part and denied in part Hall's motions to suppress. Specifically, the trial court found that the statements made by Hall while in the back of the cruiser before the police informed him of his Miranda rights were suppressed, while the statements he made after being read his Miranda rights were admissible. Notably, the trial court found that the spontaneous statements made by Hall after being arrested but before being placed in the cruiser were admissible. Furthermore, the trial court found that the traffic stop and the subsequent search of Hall's vehicle were lawful and supported by probable cause. On the same day, the trial court also denied Hall's motion to dismiss, finding that he failed to adduce any evidence that he suffered prejudice as a result of the pre-indictment delay.

         {¶ 12} Hall filed additional supplemental motions to suppress on November 3 and 30, 2016, arguing that the evidence seized from his vehicle was only discovered after an unreasonably prolonged detention because of the time it took for the K-9 unit to arrive at the scene. On December 9, 2016, a hearing was held before the trial court on Hall's supplemental suppression motions. These motions were denied on March 6, 2017.

         {¶ 13} On January 23, 2017, Hall filed a motion to dismiss Count II of the indictment, possession of cocaine, based upon the Ohio Supreme Court's decision in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405 (hereinafter referred to as "Gonzales I ") (holding that the offense level for possession of cocaine was determined only by weight of actual cocaine, not by total weight of cocaine plus any filler). Prior to the hearing on Hall's motion to dismiss Count II, the State orally requested leave to dismiss Count II without prejudice. Nevertheless, on February 14, 2017, the trial court held a hearing on Hall's motion to dismiss Count II. The parties filed post-hearing memoranda on February 24, 2017. On March 6, 2017, the Ohio Supreme Court issued an opinion vacating its previous decision in Gonzales I, holding that the entire compound, mixture, preparation, or substance was to be considered in determining the appropriate penalty for the offense of cocaine possession. State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419 (hereinafter referred to as "Gonzales II"). On the same day, the State withdrew its oral motion to dismiss Count II.

         {¶ 14} Thereafter on June 14, 2017, Hall pled no contest to all of the offenses in the indictment, and the trial court found him guilty on all counts. On June 21, 2017, Hall filed an "affidavit of indigency." At disposition on July 27, 2017, the trial court sentenced Hall to a total mandatory term of four years in prison; it also imposed a mandatory fine of $10, 000.00 for his conviction of possession of cocaine.

         {¶ 15} It is from this judgment that Hall now appeals.

         {¶ 16} Because they are interrelated, Hall's first, third, fourth, fifth, and sixth assignments of error will be discussed together as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION(S) TO SUPPRESS.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT OFFICER LANE DILIGENTLY PROCESSED THE SUBJECT TRAFFIC TICKET COMPLAINT.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT THE SUBJECT DOG SNIFF TOOK PLACE WITHIN AN ORDINARY TIME FRAME FOR PROCESSING A ROUTINE TRAFFIC TICKET STOP.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO FIND THAT ANY OF OFFICER LANE'S ACTIONS SERVED TO PROLONG THE ROUTINE TRAFFIC STOP IN ORDER TO PROCESS THE SUBSEQUENT DOG SNIFF.
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE FRUITS OF A WARRANTLESS SEARCH AND THEREBY PRECLUDED DEFENDANTS CONSTITUTIONAL RIGHTS OF DUE PROCESS AND TO BE FREE FROM UNREASONABLE SEARCHES UNDER THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO STATE CONSTITUTION.

         {¶ 17} In the foregoing assignments, Hall essentially contends that the trial court should have granted his motions to suppress any physical evidence and/or statements because the traffic stop was unreasonably extended for the sole purpose of a canine sniff.

         {¶ 18} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. The application of the law to the trial court's findings of fact is subject to a de novo standard of review. State v. Gordon, 5th Dist. Fairfield No. 14-CA-13, 2014-Ohio-5027, ¶ 14, citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

         {¶ 19} "When an officer detains a motorist for a traffic violation, the stop should delay the motorist only for the amount of time necessary to issue a citation or warning." State v. Hill, 2d Dist. Montgomery No. 26345, 2016-Ohio-3087, ¶ 9, citing State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12. "The reasonable stop time includes the amount of time it takes to conduct a computer check on the driver's license, registration, and vehicle plates." Id. " 'In determining if an officer completed these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation.' " Id., quoting Batchili.

         {¶ 20} Nevertheless, official "conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes,543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), quoting United States v. Jacobsen,466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In United States v. Place,462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the United States Supreme Court held that the use of "a well-trained narcotics-detection dog" to examine unopened personal luggage "did not constitute a 'search' within the meaning of the Fourth Amendment" because "the manner in which information is obtained through this investigative technique is much less intrusive than a typical search, " and because such an examination "discloses only the presence or absence of narcotics, a contraband item." See also Jacobsen, 466 U.S. at 121-123 (finding no legitimate privacy interest in the possession of contraband). Relying on its holding in Place, ...


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