Court of Appeals of Ohio, Second District, Montgomery
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.
McGINNIS, Attorney for Defendant-Appellant.
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
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
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
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
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)
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT
OFFICER LANE DILIGENTLY PROCESSED THE SUBJECT TRAFFIC TICKET
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
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