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State v. Carter

Court of Appeals of Ohio, Fifth District, Tuscarawas

June 10, 2019

STATE OF OHIO Plaintiff-Appellant
v.
LEE B. CARTER Defendant-Appellee

          Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2017 CR 08 0192

          For Plaintiff-Appellant MICHAEL J. ERNEST Assistant Prosecuting Attorney

          For Defendant-Appellee MARK A. PERLAKY Assistant Public Defender

          JUDGES: Hon. W. Scott Gwin, P.J, Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

          OPINION

          HOFFMAN, J.

         {¶1} Appellant the state of Ohio appeals the judgment entered by the Tuscarawas County Common Pleas Court granting Appellee Lee B. Carter's motion to suppress cocaine seized during a traffic stop.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On October 28, 2016, Trooper Scott Bayless, a K9 handler with the Ohio State Highway Patrol, was parked in a crossover on Interstate 77 in Tuscarawas County, just south of the Stark County line. A vehicle in which Appellee was the passenger passed him traveling southbound. Trooper Bayless noticed the vehicle changed its pace, and "crept up on the vehicle in front of it." Tr. 5. Tpr. Bayless pulled out of the crossover and began to follow the vehicle. After following the vehicle for the better part of a mile, Tpr. Bayless stopped the car in which Appellee was traveling for following too closely.

         {¶3} The trooper approached the vehicle on the passenger side. Tpr. Bayless asked the driver for a driver's license. He was informed the vehicle was a rental car, and he asked for the rental agreement. Appellee also provided identification to the officer. Tpr. Bayless noted Appellee seemed very nervous, as he could see Appellee's carotid pulse by looking at his neck.

         {¶4} Sgt. Joel Smith arrived on the scene to help with the traffic stop. Sgt. Smith was parked in the crossover with Tpr. Bayless prior to the stop. Tpr. Bayless returned to his patrol car to run the licenses of both the driver and Appellee through LEADS to check for outstanding warrants. He informed Sgt. Smith he intended to run his dog Alex around the car. Sgt. Smith asked the driver to step out of the vehicle and come back to his patrol car.

         {¶5} Tpr. Bayless ran both licenses through LEADS and found no outstanding warrants. At this time, the driver was still looking for the rental agreement on her phone with Sgt. Smith. Tpr. Bayless proceeded to walk Alex around the vehicle. The dog first alerted by a "hard stop" on the passenger side. When the dog approached the open window on the driver's side, he alerted by scratching the door. The time elapsed from the time the car pulled to the berm until the dog alerted on the car was approximately six minutes.

         {¶6} Appellee told the trooper he had marijuana in the glove box. However, a search of the car uncovered crack cocaine in the vehicle. Appellee was indicted by the Tuscarawas County Grand Jury with one count of possession of drugs, a second degree felony, in violation of R.C. 2925.11(A), (C)(4)(d).

         {¶7} Appellee moved to suppress evidence on the grounds the stop of the vehicle was invalid, and the stop was unlawfully prolonged to allow the dog to walk around the vehicle. Following an evidentiary hearing, the trial court found the stop was pretextual, but nonetheless legal.[1] However, the court found the stop was unlawfully prolonged for the canine sniff of the vehicle, and granted Appellee's motion to suppress.

         {¶8} It is from the November 14, 2018 judgment the State prosecutes ...


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