State v. Cicora, Unpublished Decision (7-31-2000)
State v. Cicora, Unpublished Decision (7-31-2000)
Opinion of the Court
OPINION
Defendant Andrew J. Cicora appeals a judgment of the Municipal Court of Massillon, Stark County, Ohio, which convicted and sentenced him for excessive speed in violation of R.C.THE TRIAL COURT DID ERR OR ABUSE ITS DISCRETION BY NOT FINDING THAT THE STATEMENTS AND DRUGS CONFISCATED FROM APPELLEE WERE TAKEN BY AN ILLEGAL SEARCH AND SEIZURE AND SHOULD HAVE BEEN SUPRESSED [SIC] AS EVIDENCE.
At the hearing on the motion to suppress, Officer Doug Schwartz of the Canal Fulton Police Department testified he observed appellant traveling east on Cherry Street at 51 m.p.h. in a clearly posted 35 m.p.h. zone. As the officer approached appellant's vehicle, he observed the appellant lighting a cigarette. Officer Schwartz testified frequently people light cigarettes to cover the odors of alcoholic beverages or other substances during a traffic stop. The officer testified when he asked for permission to have a drug sniffing dog walk around the vehicle, appellant became nervous and said it was not his vehicle and he really wouldn't feel comfortable with the dog. The officer returned to his cruiser, called for the dog, and then proceeded with the registration check and other tasks associated with the traffic stop. The officer testified it typically takes around 7 minutes to write a speeding ticket, so that, in the officer's opinion, the average time a motorist was detained on a traffic stop is 10 or 11 minutes. The officer testified from the time of the stop 6 minutes elapsed before the dog actually arrived on the scene. During that time, the officer was writing out the citation. When the dog arrived, appellant expressed concern the dog might damage the vehicle and admitted he had a small amount of marijuana in his pocket. Both parties concede the dog never made a "hit" on the marijuana the officer obtained from appellant. The officer articulated his reasons for calling the dog were the fact that appellant lit the cigarette upon being stopped, his glassy eyes and the nervousness appellant displayed when asked if he would permit the dog to do a walk around the car. At trial, appellant urged the court he was improperly detained after the traffic stop until the dog arrived on the scene. Appellant also argued his admission about drug possession was coerced, because of his fear of the dog damaging the truck. The trial court denied the motion because it found the confession was not coerced, and because the officer had probable cause to call the drug dog based on the indicia he observed at the scene. The court also noted the drug dog did not actually find the drugs that were the subject of the motion to suppress. Appellant cites us to State v. Robinette (1997),
For the foregoing reasons, the judgment of the Municipal Court of Massillon, Stark County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence.
By Gwin, P.J., Edwards, J., and Reader, V.J., concur
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