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State v. Chapman

Court of Appeals of Ohio, Seventh District, Belmont

August 15, 2019

STATE OF OHIO, Plaintiff-Appellee,
JOHN LAVELL CHAPMAN, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 17 CR 208

         JUDGMENT: Reversed and Remanded.

          Atty. Dan Fry, Belmont County Prosecutor, and Atty. J. Flanagan, Assistant Prosecuting Attorney, for Plaintiff-Appellee and

          Atty. Adam Myser, for Defendant-Appellant.

          BEFORE: David A. D'Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.


          D'Apolito, J.

         {¶1} 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.

         {¶2} 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 further proceedings.


         {¶3} "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 standard. Id.

         {¶4} 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 Court opined:

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.


         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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 drinking.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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." (Id.)

         {¶18} 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 that vehicle.

(Id. at 57).

         {¶19} 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.

         {¶20} 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 ...

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