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State v. Ogletree

Court of Appeals of Ohio, Second District, Montgomery

June 15, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JESSE M. OGLETREE, JR Defendant-Appellant

          Criminal Appeal from Common Pleas Court T.C. NO. 2017-CR-1183

          MATHIAS H. HECK, JR. by MICHAEL ALLEN, Attorney for Plaintiff-Appellee.

          J. ALLEN WILMES, Attorney for Defendant-Appellant.

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the October 17, 2017 Notice of Appeal of Jesse Ogletree. Ogletree appeals from his September 20, 2017 Judgment Entry of Conviction, following a no contest plea, on one count of possession of cocaine (less than five grams), in violation of R.C. 2925.11 (A), a felony of the fifth degree. The trial court sentenced Ogletree to twelve months in prison. We hereby affirm the judgment of the trial court.

         {¶ 2} Ogletree was indicted on June 1, 2017, and on June 16, 2017, the court entered a not guilty plea on behalf of Ogletree at his arraignment. On June 29, 2017, Ogletree filed a motion to suppress, and a hearing thereon was held on July 26, 2017. At the hearing, Officer Josh Bowling of the City of Dayton Police Department testified that he was working on April 11, 2017, on routine patrol in the area around Good Samaritan Hospital, along with Officer Betsinger. Officer Bowling testified that the area is known as the Phoenix Project, which "is basically a rejuvenation project of the neighborhood that's sponsored by Good Sam and [C]itywide and we are responsible for rejuvenating the neighborhood, taking care of the houses and people that move in, all the neighboring businesses." Officer Bowling stated that in the area "there is quite a bit of drug activity and that's one of our main responsibilities."

         {¶ 3} Officer Bowling testified that on April 11, 2017, he stopped a black Volvo SUV at 721 Burbank Drive. When asked if there was anything unusual about the vehicle, Officer Bowling testified as follows:

Yeah, the vehicle initially had turned into - - we were traveling north on Burbank, actually, and the car actually turned in. And what I mean by that it came and would go essentially head-on with us in different directions. It turned in without using its blinker 100 feet prior. It's something we see when someone's usually trying to evade police contact, so. When I turned around and get behind the car to run the vehicle's license plate, essentially, the driver sped up quite a bit and was failing to stop at marked stop signs and stoplights and was actually going to the right of some traffic to get by vehicles. And then, essentially, the car had went and made a big circle to go back to our original spot where I first saw the vehicle. And this was, you know, called my attention.

Tr. 7-8.

         {¶ 4} Officer Bowling testified that he activated his overhead lights, and the driver of the vehicle, Ogletree, pulled into a residential driveway at 721 Burbank Drive. Officer Bowling stated that the driver "quickly exited the driver's side of the Volvo, " which "alarmed me for officer safety * * * because as everyone knows on a traffic stop, you're supposed to stay inside of your car." Officer Bowling testified that Ogletree "had an attitude about saying he wasn't doing anything, that he was at his parents' house and that he - - essentially, we couldn't pull him over once he reached his house." Officer Bowling stated that he and Officer Betsinger advised Ogletree, " ' Stop, come here; we need to speak with you; this is a traffic stop.' He continued to walk towards the house." At that point, according to Officer Bowling, "[Officer] Betsinger actually went and took hold of Jesse Ogletree." Officer Bowling testified that Ogletree was "patted down for officer safety and placed in the back of our cruiser until we could figure out exactly what was going on." Officer Bowling stated that his intention at that time was to "just conduct the traffic stop that we had initially pulled him over for the moving violations." When asked how much time that process requires, Bowling responded, "[depending on how many code violations are involved, I'd say ten minutes or more." Officer Bowling testified that he began working on the citation as soon as Ogletree was detained in the cruiser, and that "within the first several minutes of our stop" he requested a K-9 unit to perform a drug sniff. Officer Bowling stated that the K-9 unit arrived approximately eight minutes later, and that he had not yet completed the citation at that time.

         {¶ 5} Officer Bowling stated that the K-9 officer advised him that the dog had "alerted" on the Volvo, and that Betsinger accordingly "did the preliminary search and we always go back through because * * * sometimes there's things that well miss as officers so I was the second officer in the vehicle." Officer Bowling stated that when he "opened the driver door, I immediately saw a torn baggie which would be - - there's a center console but in front of that where you would keep like change and miscellaneous items, there was a torn baggie in plain view and that's where I located * * * what appeared to be crack cocaine." Officer Bowling stated that Ogletree was placed under arrest. He identified State's Exhibit 1 as the cruiser camera video of the stop, which was admitted without objection.

         {¶ 6} On cross-examination, Officer Bowling testified that he followed Ogletree's vehicle due to Ogletree's failure to signal 100 feet before turning. Officer Bowling stated that Ogletree turned onto Burbank Drive from a side street and then drove around the block from the location where he was initially observed. Officer Bowling testified that he activated his lights once Ogletree pulled into the driveway, and that his cruiser camera automatically records the previous "30 seconds prior to the lights being engaged." Officer Bowling stated that Ogletree failed to stop at Otterbein Avenue and Burbank Drive, Burbank Drive and Harvard Boulevard, and then at Harvard Boulevard and Philadelphia Drive as he proceeded around the block. When asked if he was aware that "the only thing * * * that's on Dayton Municipal Court's website is that he was cited for turn signals and changing course, " Officer Bowling responded, "I am now."

         {¶ 7} Officer Bowling testified that Ogletree exited his vehicle after the cruiser's overhead lights were on. Officer Bowling stated that he called for the K-9 unit so "the K-9 could perform an open-air sniff of the vehicle." Officer Bowling stated that Ogletree indicated at the scene that he had pulled into his parents' driveway. Officer Bowling stated that the owners of the residence came outside in the course of the stop and claimed to be Ogletree's parents.

         {¶ 8} Officer Theodore Trupp next testified that he is a City of Dayton police officer assigned to the K-9 unit, and that he responded to Ogletree's traffic stop. Officer Trupp stated that he is certified by the State of Ohio as a K-9 handler, and that Baron, his K-9 partner, is also certified and "considered a dual-purpose K-9. He's trained in patrol and he's also trained in narcotics detection." Officer Trupp stated that Baron is "trained on heroin, crack cocaine, marijuana, methamphetamines, ecstasy and any combination or derivative of those drugs."

         {¶ 9} Officer Trupp testified that he was "at James H. McGee Boulevard near Germantown" when he was dispatched to the traffic stop, and that he arrived at the stop in eight minutes. Officer Trupp stated that he began the "open-air sniff" within a minute of his arrival. Officer Trupp testified that Baron "alerts" by sitting down. Officer Trupp stated that he began the sniff at the front license plate of the Volvo, and Baron alerted "halfway behind the driver's door and the back driver's side passenger, rear door." Officer Trupp stated that the open-air sniff process is "very quick, " lasting one to two minutes "max." Trupp testified that he remained on scene after the sniff for purposes of officer safety. Officer Trupp stated that two other individuals present at the scene "were excited, " and yelling at Ogletree to calm down, and that Ogletree was "[v]ery excited, belligerent" and "screaming in the back seat" of the cruiser.

         {¶ 10} On August 8, 2017, the trial court rendered an oral decision on the motion to suppress. At the start of the hearing, the trial court indicated that it viewed the cruiser camera video "in its entirety several times." The trial court noted that Officer Bowling observed the Volvo which on the video "can be seen traveling at a high rate of speed." The court noted that the area is known for drug activity. According to the trial court, Officer Bowling's "testimony that was undisputed was that the officer observed numerous traffic violations including turning without a signal [and] running several stop signs." The court noted that Officer Bowling activated his lights as Ogletree pulled into the driveway on Burbank, and that Ogletree's "behavior from the very beginning is belligerent, profane among other things." The trial court noted that Ogletree "quickly exited the vehicle which caused concern for officer safety." The trial court further noted that the officers were ...


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