Court of Appeals of Ohio, Fifth District, Tuscarawas
from the Tuscarawas County Court of Common Pleas, Case No.
2017 CR 08 0192
Plaintiff-Appellant MICHAEL J. ERNEST Assistant Prosecuting
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.
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.
OF THE FACTS AND CASE
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
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.
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.
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
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).
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. However, the
court found the stop was unlawfully prolonged for the canine
sniff of the vehicle, and granted Appellee's motion to
It is from the November 14, 2018 judgment the State