Court of Appeals of Ohio, Seventh District, Belmont
Criminal Appeal from the Court of Common Pleas of Belmont
County, Ohio Case No. 17 CR 208
Reversed and Remanded.
Dan Fry, Belmont County Prosecutor, and Atty. J. Flanagan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee and
Adam Myser, for Defendant-Appellant.
BEFORE: David A. D'Apolito, Cheryl L. Waite, Carol Ann
OPINION AND JUDGMENT ENTRY
Appellant John Lavell Chapman appeals the judgment entry of
the Belmont County Court of Common Pleas denying his motion
to suppress drugs found during a warrantless search of his
person, following a canine alert on a vehicle in which he was
a passenger. Appellant entered a no contest plea to two
counts of drug possession, in violation of R.C.
2925.11(A)(C)(6)(d) (cocaine) and 2925.11(A)(C)(4)(c)
(heroin), both felonies of the second degree, and one count
of trafficking in drugs, in violation of R.C.
2925.03(A)(2)(C)(4)(d), a felony of the third degree, with a
forfeiture specification pursuant to R.C. 2941.1417. The
trial court imposed an aggregate sentence of eleven years.
Appellant contends that the trial court erred in concluding
that: (1) the police officer did not unlawfully extend the
traffic stop in order to conduct the canine sniff; (2) the
canine alert at the passenger side door constituted probable
cause to search Appellant's person; and, finally, (3)
exigent circumstances existed for the warrantless search. No
response brief was filed. For the following reasons, the
judgment of the trial court denying the motion to suppress is
reversed and the case is remanded to the trial court for
"Appellate review of a motion to suppress presents a
mixed question of law and fact." State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. Because the trial court is in the best position
to evaluate witness credibility, an appellate court must
uphold the trial court's findings of fact if they are
supported by competent, credible evidence. Id.
However, once an appellate court has accepted those facts as
true, the court must independently determine as a matter of
law whether the trial court met the applicable legal
Although considerable deference is afforded to a probable
cause determination made by a magistrate, we review a police
officer's decision to conduct a warrantless search de
novo. Ornelas v. United States, 517 U.S. 690, 116
S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Ornelas
The Court of Appeals, in adopting its deferential standard of
review here, reasoned that de novo review for
warrantless searches would be inconsistent with the"
'great deference'" paid when reviewing a
decision to issue a warrant, see Illinois v. Gates,
462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See
United States v. Spears, 965 F.2d 262, 269-271
(C.A.7 1992). We cannot agree. The Fourth Amendment
demonstrates a "strong preference for searches conducted
pursuant to a warrant," Gates, supra, at 236,
103 S.Ct., at 2331, and the police are more likely to use the
warrant process if the scrutiny applied to a magistrate's
probable-cause determination to issue a warrant is less than
that for warrantless searches. Were we to eliminate this
distinction, we would eliminate the incentive.
Id. at 698-99.
AND PROCEDURAL HISTORY
The following facts are taken from the testimony of Belmont
County Sheriff's Deputy Brian Carpenter at the bifurcated
hearing on the motion to suppress conducted on September 8
and 25, 2017. The hearing was continued because the dash
camera and body camera footage from the Sheriff's
deputies that were present during the latter part of traffic
stop was not available at the September 8th hearing.
The body camera footage of three Sheriff's deputies
(including Deputy Carpenter) was provided to Appellant's
trial counsel prior to the September 25th hearing. Deputy
Carpenter's body camera footage and the dash camera
footage, which was provided for the first time on September
25th, were both viewed by the trial court in their entirety
during the hearing.
Deputy Carpenter testified that he had been employed by the
Belmont County Sheriff's Office for over six years, and
was a canine handler with a primary focus on drug
interdiction since 2015. Deputy Carpenter's specialized
drug interdiction training included the identification of
drugs, as well as the identification of behaviors commonly
associated with drug possession, use, and sale.
On July 4, 2017, shortly after 2:00 a.m., Deputy Carpenter
initiated a traffic stop of a vehicle driven by Steven Moore.
Appellant, who was the only passenger, was in the front
passenger seat. Appellant concedes that Deputy Carpenter had
probable cause for the initial traffic stop.
After Moore pulled the vehicle to the side of the road,
Appellant "lean[ed] very far forward and kind of down
towards the floor board area." At the September 8th
hearing, Deputy Carpenter testified that Appellant "was
there for a brief moment and then sat straight back up in his
seat." (9/8/17 Hrg. Tr. 15). After viewing the body
camera footage at the September 25th hearing, Deputy
Carpenter conceded that he told the dispatcher that Appellant
was making many furtive movements as Deputy Carpenter was
walking up to the vehicle, rather than immediately after the
vehicle had stopped at the side of the road. At the September
25th hearing, Deputy Carpenter testified that Appellant was
moving around both immediately after the vehicle came to a
stop and as Deputy Carpenter approached the vehicle.
Deputy Carpenter approached the passenger side of the vehicle
and informed Moore that his rear license plate was not
illuminated and neither the expiration sticker nor the county
sticker was visible. Deputy Carpenter immediately noticed
that the zipper on Appellant's pants was undone.
Moore was visibly nervous and his hands were trembling. When
Deputy Carpenter informed Moore about the license plate and
tags, Moore jumped out of the vehicle to look at the plate.
Deputy Carpenter explained to Moore that he needed additional
information and instructed Moore to reenter the vehicle.
Deputy Carpenter advised Moore that he would receive only a
warning if there were no other issues.
Appellant was also very nervous. While speaking with Moore,
Deputy Carpenter noted that Appellant was staring straight
ahead as if he did not want to look at Deputy Carpenter.
Appellant's forehead was sweaty. After viewing the body
camera footage, Deputy Carpenter conceded at the September
25th hearing that Appellant was looking at his mobile
telephone while Deputy Carpenter questioned Moore. Deputy
Carpenter further conceded that he himself was noticeably
sweating during the traffic stop.
Deputy Carpenter ran the drivers' license numbers of both
occupants through dispatch prior to the canine sniff. After
collecting information relevant to the traffic stop, Deputy
Carpenter spoke with the men about their reason for being in
the area and their current destination. Appellant indicated
that they had just attended a party where Appellant had been
Appellant, who was a resident of Cleveland, Ohio according to
his driver's license, explained that he was in Belmont
County looking for work with the pipeline. He asked Deputy
Carpenter if he was aware of any job opportunities in the
area. Unprompted, Appellant began showing Deputy Carpenter
photos from Appellant's Facebook page, which depicted
Appellant performing various construction jobs.
At that time, Deputy Carpenter returned to his cruiser and
radioed for backup. Appellant continued to show Deputy
Carpenter random pictures until the additional Sheriff's
deputies arrived at the scene.
Roughly eight minutes after the traffic stop was initiated,
with the Sheriff's deputies in position, Deputy
Carpenter's canine, Hyra, a Belgian Malinois trained in
the detection of narcotics, performed a sniff. Deputy
Carpenter testified that Hyra had been specially trained in
the detection of narcotic odors, had received annual
certifications through the State of Ohio, and that she was in
the cruiser with Deputy Carpenter that evening. He was
uncertain whether the canine sniff occurred before or after
the dispatcher radioed back with the requested information.
On cross-examination, Deputy Carpenter conceded that there
were occasions in the past when Hyra alerted on a vehicle and
no drugs were found, but he was unable to estimate the
numbers of occasions when that situation had occurred.
(Id. at 32, 50-51.) However, Deputy Carpenter
immediately clarified the foregoing testimony, stating that
"[he could] say for certain that every time [Hyra]
indicates, there [were] or have been recently narcotics,
drugs, in that vehicle or area that she is sniffing."
On redirect, Deputy Carpenter reaffirmed that after each and
every one of Hyra's alerts, drugs were either found in
the vehicle, or the occupants conceded that drugs had been in
the vehicle but were removed prior to the sniff:
Defense asked if there's ever a time when [Hyra] would
indicate and not -drugs not being found. That answer is true,
there are times. However, when times like that occur, I
always ask the follow-up questions with the driver's
[sic] or passengers; explain to them, hey, my K-9 is trained
in X, Y, Z. Can you give me a reason why [Hyra] would
indicate and me not find anything? Have you smoked marijuana
before, had you let somebody borrow your car within 30 days,
maybe smoked weed? And every single time, 100 percent, that
has been true. So I can sit here and testify that my K-9 has
never given a false positive, with that being said, of no
drugs being found and no narcotics had ever being recently in
that vehicle. Its either drugs being found or extremely
recent [sic] of narcotics, drugs, marijuana what have you in
(Id. at 57).
Hyra began at the rear of the vehicle and worked her way
around the driver's side to the front of the car. When
she reached the seam of the passenger-side door, Hyra began
sniffing more intently, then snapped her head back toward the
passenger side door, alerting Deputy Carpenter to the
presence of drugs.
Deputy Carpenter informed Moore of the alert and instructed
him to exit the vehicle. Deputy Carpenter asked Moore if he
had anything in his pockets that could injure Deputy
Carpenter, and Moore admitted to having a capped syringe in
his pocket. Deputy Carpenter felt the outline of the capped