[Cite as State v. Duke,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 12CA010225

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE ANTWONNE T. DUKE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 11CR082152

DECISION AND JOURNAL ENTRY

Dated: March 4, 2013

CARR, Judge.

{¶1} Appellant, State of Ohio, appeals the judgment of the Lorain County Court of

Common Pleas granting the motion to suppress filed by Appellee, Antwonne Duke. This Court

reverses and remands.

I.

{¶2} As a result of a traffic stop that occurred on the evening of January 26, 2011, the

Lorain County Grand Jury indicted Duke on one count of trafficking in drugs in violation of R.C.

2925.03(A)(2), a felony of the third degree, and possession of drugs in violation of R.C.

2925.11(A), a felony of the third degree. Duke pleaded not guilty to the charges at arraignment.

On October 7, 2011, Duke filed a motion to suppress. After several continuances, the trial court

held a hearing on the motion on April 19, 2012. The trial court subsequently issued a journal

entry granting the motion. 2

{¶3} The State filed a notice of appeal on May 9, 2012. On appeal, the State raises two

assignments of error. This Court addresses the second assignment of error first, as it is

dispositive of the appeal.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING MR. DUKE’S MOTION TO SUPPRESS BASED ON AN ISSUE RAISED BY THE TRIAL COURT SUA SPONTE.

{¶4} In its second assignment of error, the State of Ohio argues that the trial court erred

in granting Duke’s motion to suppress based on an issue that the trial court raised sua sponte.

This Court agrees.

{¶5} On the night of January 26, 2011, Trooper Thurman Peterson of the Ohio State

Highway Patrol was driving his cruiser eastbound on the Ohio Turnpike when he noticed a car

without a license plate light. When Trooper Peterson initiated a traffic stop and asked for Duke’s

license and registration, Duke looked “very nervous” and “agitated.” Though Trooper Peterson

attempted to get Duke to calm down, Duke kept asking, “Why did you stop me? What did I do

wrong?” Duke stated that he had driven half way to Detroit to deliver some paperwork to his

cousin, and that he had been on the road two and a half hours. Trooper Peterson testified that he

was skeptical of this story given the distance. When Duke was unable to produce his registration

and insurance, Trooper Peterson placed Duke in the back of the cruiser in order to determine if

he was authorized to operate the vehicle. Thereafter a second state trooper arrived with a K-9

that did “a free air sniff” around Duke’s vehicle. The K-9 allegedly alerted to the passenger side

of the vehicle near the gas tank. A subsequent search of the vehicle revealed that Duke had a

small baggy containing cocaine, stuffed inside a bag of potato chips, on the front passenger seat. 3

{¶6} Duke filed his motion to suppress on October 7, 2011. In his motion, Duke

argued that the evidence seized during the search should be suppressed on the basis that the

traffic stop was prolonged for an unreasonable amount of time given the initial reason for the

stop. Duke did not argue with particularity that the evidence should be suppressed on the basis

that there were issues with the reliability and credibility of the K-9 sniff. Trooper Peterson and

Trooper Michael Trader, who handled the K-9 during the stop, testified on behalf of the State at

the suppression hearing. In conjunction with the testimony, a video of the stop recorded by a

dashboard camera was also played for the trial court. Trooper Peterson’s testimony concentrated

on the duration of the stop, and his decision to place Duke in the back of his cruiser. The State’s

direct examination of Trooper Trader focused on what transpired as he effectuated the K-9 sniff.

Prior to cross-examination, the trial judge asked Trooper Trader several questions about the

mechanics of the K-9 sniff in this case. Subsequently, on cross-examination, defense counsel

asked Trooper Trader several questions regarding the accuracy of K-9 sniffs, in addition to

several questions regarding his actions during the stop. During closing arguments, both the State

and defense counsel focused on the duration of the stop, and neither addressed the reliability of

the K-9 sniff.

{¶7} On May 2, 2011, the trial court issued a journal entry granting the motion to

suppress. In reaching this determination, the trial court’s analysis centered on the reliability of

the K-9 sniff. The trial court concluded, “Thus, the court holds that neither the dog nor its

handler is found to be a reliable means of detecting the odor of cocaine, and that the behavior of

the dog during its ‘free air sniff’ of defendant’s vehicle did not provide probable cause to search

defendant’s vehicle.” 4

{¶8} In support of its assignment of error, the State argues that the trial court erred in

granting the motion to suppress based on an issue that it raised sua sponte. The State emphasizes

that Duke’s motion did not put the State on notice that the reliability of the K-9 search would be

an issue at the suppression hearing, and neither party was given an opportunity brief that issue.

The State concludes that had it been put on notice by the defense motion to suppress that the

reliability of the K-9 or its handler was at issue, it would have been prepared to present evidence

on that issue at the hearing.

{¶9} Crim.R. 47 specifies that a motion to the trial court “shall state with particularity

the grounds upon which it is made and shall set forth the relief or order sought.”

{¶10} It is well settled that warrantless searches are “per se unreasonable under the

Fourth Amendment - subject only to a few specifically established and well delineated

exceptions.” Coolidge v. New Hampshire,

(1971). Once a defendant has

demonstrated a warrantless search or seizure, and has clarified that the ground upon which he

challenges its legality is a lack of probable cause, the State bears the burden of proof. Xenia v.

Wallace,

(1988), paragraph two of the syllabus.

{¶11} The Supreme Court has held, however, that, “the prosecutor cannot be expected to

anticipate the specific legal and factual grounds upon which the defendant challenges the legality

of a warrantless search. The prosecutor must know the grounds of the challenge in order to

prepare his case, and the court must know the grounds of the challenge in order to rule on

evidentiary issues at the hearing and properly dispose of the merits.” Xenia,

. Thus, “the defendant must make clear the grounds upon which he challenges the

submission of evidence pursuant to a warrantless search and seizure.”

The defendant “must 5

state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and

the court on notice of issues to be decided.” State v. Shindler,

(1994), syllabus.

{¶12} In this case, the trial court granted Duke’s motion to suppress based on an issue

that fell outside the scope of the motion. The focus of Duke’s motion, and thus the scope of the

hearing, was limited to whether the traffic stop lasted for an unreasonable amount of time. The

State was given notice that Duke was challenging the admission of the evidence on those

particular grounds. As the Supreme Court held in Xenia, the prosecutor cannot be expected to

anticipate the specific legal and factual grounds that form the basis by which the evidence might

be excluded. Xenia,

. Because the trial court raised the K-9 reliability issue

sua sponte, and that issue was not raised in Duke’s motion to suppress, the State was not

provided with an opportunity to adequately prepare arguments and present evidence on that

issue. Thus, the trial court erred in granting the motion to suppress on that basis.

{¶13} The State’s second assignment of error is sustained, and the matter is remanded

for a supplemental hearing on the motion to suppress where the State must be afforded an

opportunity to present evidence on the issue of whether the K-9 search of the vehicle was

credible and reliable.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING MR. DUKE’S MOTION TO SUPPRESS AS THE EVIDENCE RECOVERED FROM HIS VEHICLE WAS OBTAINED THROUGH A LEGAL SEARCH.

{¶14} In its first assignment of error, the State argues that the trial court erred in

granting the motion to suppress because the evidence was obtained through a legal search. As

noted above, the State was not afforded an opportunity to present evidence on all of the issues

relating to whether the search of Duke’s vehicle was reasonable. Thus, because our resolution of 6

the second assignment of error is dispositive of this appeal, this Court declines to address the

State’s first assignment of error as it is rendered moot. See App.R. 12(A)(1)(c).

III.

{¶15} The State’s second assignment of error is sustained. In light of our resolution of

the State’s second assignment of error, the first assignment of error is rendered moot. The

judgment of the Lorain County Court of Common Pleas is reversed and remanded for further

proceedings consistent with this opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT 7

MOORE, P. J. CONCURS.

BELFANCE, J. CONCURRING IN JUDGMENT ONLY.

{¶16} I concur in the majority’s judgment because this case should be remanded. While

the trial court found that “the testimony of Trooper Trader in explaining the dog’s alleged alert to

the presence of cocaine on the gas cap * * * not [to be] credible[,]” it is unclear what the trial

court meant by that statement. (Emphasis sic.). It could have believed that Trooper Trader had

caused the dog to falsely alert or that the dog’s alert was not competent evidence because

Trooper Trader was unable to explain it satisfactorily. Or the court could have meant something

else altogether. Because this is a credibility determination and the trial court is the arbiter of

credibility in suppression cases, this ambiguity is problematic for appellate review. See State v.

Burnside,

,

, ¶ 8.

{¶17} Furthermore, remand is appropriate for the trial court to clarify precisely what it

believed was the reason the evidence should have been suppressed. As the majority notes, the

trial court’s rationale could have been that the officers lacked probable cause to search the car.

However, the trial court may have been thinking that, given that it found there to be a problem

with the dog’s alert, the officers impermissibly extended the length of the stop. See State v.

Carlson,

(9th Dist. 1995), citing Florida v. Royer,

(1983) (“An investigative stop may last no longer than is necessary to effectuate the purpose of

the stop.”). Because the trial court’s reasoning is unclear, it is appropriate to remand for it to

clarify its decision. 8

{¶18} I further wish to note that I certainly do not believe the trial court extended

beyond the issues raised in the suppression motion if its determination was that the police

impermissibly extended the stop. In his motion to suppress, Mr. Duke argued, “[E]ven if that K9

sniff was reasonable at the time, there is good indication that it did not hit on the vehicle to begin

with and what it smelled was gasoline from the vehicle’s gas tank.” While not the most

articulate phrasing, the legitimacy of the dog’s alert in the context of the length of the stop was

certainly raised. Furthermore, the trial court remarked during the suppression hearing that one of

the issues before it was “[D]id the dog alert on the vehicle[?]” and Trooper Trader was

questioned about his dog’s accuracy and training as well as whether he had an explanation for

why the dog allegedly alerted to the gas cap of the car. At no point did the State object to the

questions, which would imply that it did not believe that the questions were beyond the scope of

the suppression motion. See State v. Robinson, 11th Dist. No. 99-P-0019,

, *2

(June 30, 2000) (“Despite appellant’s failure to strictly comply with Crim.R. 47, the prosecution

did not object to appellant arguing this issue at the hearing on the motion to suppress. As a

result, we will address the merits of appellant’s appeal.”). Thus, while this case should be

remanded for the trial court to clarify its findings and reasoning, I do not agree that the trial court

necessarily exceeded the scope of the motion to suppress.

{¶19} Accordingly, I concur in the judgment.

APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant.

JENIFER BERKI, Attorney at Law, for Appellee.