[Cite as State v. Thomas,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-10-096

: OPINION - vs - 8/5/2013 :

WINSTON THOMAS, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 07CR24553

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Clyde Bennett II, 119 East Court Street, Cincinnati, Ohio 45202, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, Winston Thomas, appeals his convictions and sentence in

the Warren County Court of Common Pleas for possession of and trafficking in marijuana.

{¶ 2} On October 9, 2007, Deputy Brian Lewis was patrolling northbound traffic on I-

71 in Turtle Creek Township. Deputy Lewis noticed a dark-colored minivan traveling in the

left-hand lane, followed by a semi-truck. Deputy Lewis clocked the van going 64 m.p.h. in an

area of interstate that had a posted speed limit of 65 m.p.h. As the van and truck passed Warren CA2012-10-096

Deputy Lewis, the van slowed so suddenly that the semi-truck had to apply its brakes to

avoid a rear-end collision with the van. Deputy Lewis checked the van's speed, which had

decreased to 59 m.p.h.

{¶ 3} After pulling onto the highway to follow, Deputy Lewis continued to watch the

van, which had moved to the right lane. Deputy Lewis then saw the minivan drift over the

centerline so that both the front and rear tires were across and into the left lane, only to drift

back into the right lane. Deputy Lewis also observed the van's speed fluctuate from the mid-

50s up to the mid-60s and back again. At that point, Deputy Lewis stopped the van.

{¶ 4} In addition to being a deputy with the Warren County Sheriff's Office, Deputy

Lewis is also a trained canine handler, and at the time of the pertinent proceedings, was

assigned to the Warren County Drug Task Force. Deputy Lewis informed Anthony Graham, 1 the driver, that he pulled the van over because Graham committed a lane violation. At that

time, Deputy Lewis requested Graham's identification. Thomas, who was a passenger in the

van, told Deputy Lewis that he had rented the van. Deputy Lewis requested Thomas'

identification and the rental paperwork. While Deputy Lewis was waiting for Graham and

Thomas to turn over their identifications and rental paperwork, he visually scanned the van

and noticed an air freshener in the back of the van, as well as various garbage bags and

clothes.

{¶ 5} Deputy Lewis then verified that the van was rented and discovered that Thomas

had picked it up from Logan International Airport in Boston, Massachusetts at approximately

8:00 pm the previous night. Deputy Lewis asked Thomas to step out of the van, and began a

1 This court affirmed Graham's convictions and sentence in State v. Graham, 12th Dist. Warren No. CA2008-07- 095,

, jurisdiction declined,

,

, writ of habeas corpus denied with prejudice, Graham v. Warden of Chillicothe Correctional Institute, W.D. Ohio No. 1:10-CV-616,

(Sept.7, 2011). As the essential facts remain the same regarding Deputy Lewis's stop, we incorporate many of the pertinent facts as set forth in State v. Graham.

-2- Warren CA2012-10-096

conversation with him in front of his police cruiser. Thomas told Deputy Lewis that he and

Graham had driven from Boston in order to visit friends in Cincinnati. However, Thomas

would not give Deputy Lewis a specific address or location where he visited his friends,

instead telling Deputy Lewis that he and Graham slept in the van and were traveling to

Cleveland.

{¶ 6} After hearing Thomas' version, Deputy Lewis went back to the van and asked

Graham to explain why the two had come from Boston the night before. Graham told Deputy

Lewis that the two had been to Cincinnati, but said that they were visiting family. However,

Graham could not give a specific location or address that they had visited. Graham also told

Deputy Lewis that they had gotten lost and had, at one point, ended up in Indianapolis.

{¶ 7} Deputy Lewis called for backup assistance and ran Thomas' and Graham's

information through police dispatch to confirm their identifications and that neither had any

outstanding warrants. By the time the information was verified, a backup unit arrived on the

scene and Deputy Lewis felt the situation was secure enough to perform a canine sniff to

detect drugs. During the search, Thomas and Graham were seated in the backup unit's

cruiser. Before placing them in the cruiser, the backup officer patted Thomas and Graham

down and found a McDonald's bag with over $2,000 cash in the back of Thomas' waistband.

At that point, Deputy Lewis walked his canine partner around the van, and the dog alerted at

the back of the van as well as the driver-side door.

{¶ 8} Deputy Lewis opened the back door of the van, removed a blanket from the

back seat area and found four individual bails wrapped in moving blankets and tape. After

Deputy Lewis removed the moving blanket and cut through the tape and cellophane, he saw

that the bundle was filled with a green, leafy substance he recognized as marijuana. The

police then took the van to a secure garage and thoroughly searched the van, finding two

more bundles of marijuana in the middle portion of the van. In total, 313 pounds of marijuana -3- Warren CA2012-10-096

were discovered in the van.

{¶ 9} Soon thereafter, Detective Dan Schweitzer of the Warren County Drug Task

Force and Special Agent Raymond Dratt of the Drug Enforcement Agency ("DEA")

interviewed Thomas and Graham. In an interview separate from Thomas, Graham told

Schweitzer and Dratt that he and Thomas drove from Boston to Cincinnati, slept in the van at

a rest stop, and had eventually stopped at a Dunkin' Donuts in the Kenwood Mall area.

{¶ 10} Graham said that while at Dunkin' Donuts, Thomas went outside and

approached three unknown males and had a conversation with them. The men drove off in

the van and brought it back a few hours later. Graham told Detective Schweitzer and Special

Agent Dratt that Thomas said the men were family members. When the van reappeared,

Graham said that he and Thomas immediately started northbound towards Boston.

{¶ 11} Soon thereafter, Graham and Thomas were indicted and moved the court to

suppress the marijuana and evidence seized from the van. After a hearing on the matter, the

court denied the motion to suppress. Thomas then fled the jurisdiction and the trial court

issued a capias for his arrest. Thomas was later apprehended on federal drug charges, and

sentenced to 37 months in federal prison. Thomas was incarcerated in the Mashannon

Valley Correctional Center, which is located in Pennsylvania. Ohio filed a detainer against

Thomas on June 7, 2010, and a magistrate in Pennsylvania state court held hearings on the

extradition issue. In the Pennsylvania court, Thomas refused to waive extradition, and the

matter was continued for further proceedings.

{¶ 12} Thomas was set to be released from federal custody on April 23, 2012, and

Ohio filed a request for temporary custody of Thomas. On March 28, 2012, the Pennsylvania

court held an extradition hearing, and then held another on April 5, 2012. Ohio took custody

of Thomas on April 18, 2012 and he was transported back to Warren County to face drug

charges. -4- Warren CA2012-10-096

{¶ 13} Thomas moved to dismiss the charges against him, claiming Ohio violated the

Interstate Agreement on Detainers by transporting and holding him in custody. The trial

court denied the motion to dismiss, and the matter proceeded to a jury trial. The jury found

Thomas guilty of possession of and trafficking marijuana, and the trial court sentenced

Thomas to six years in prison. Thomas now appeals his conviction and sentence, raising the

following assignments of error.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED WHEN IT FOUND THAT LAW ENFORCEMENT

HAD THE REQUISITE PROBABLE CAUSE TO LAWFULLY STOP THE VEHCILE IN

WHICH MR. THOMAS WAS AN OCCUPANT AND WHEN IT FOUND THAT LAW

ENFORCEMENT HAD REASONABLE ARTICULABLE SUSPICION TO DETAIN MR.

THOMAS AND SEARCH THE VEHICLE.

{¶ 16} Thomas argues in his first assignment of error that the trial court erred in

denying his motion to suppress.

{¶ 17} As previously mentioned, this court has already considered the appeal of

Thomas' co-defendant, Anthony Graham. In Graham's appeal, he also challenged the

constitutionality of the stop. In affirming the trial court's denial of the motion to suppress, we

found that the stop was valid at both its inception, as well as it duration. The same reasoning

applies to the case sub judice.

{¶ 18} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023,

.

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and

evaluate witness credibility.

Therefore, when reviewing the denial of a motion to

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03- -5- Warren CA2012-10-096

074,

. "An appellate court, however, independently reviews the trial court's

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Cochran at ¶ 12.

{¶ 19} The Fourth Amendment to the United States Constitution protects individuals

from unreasonable governmental searches and seizures. United States v. Hensley,

,

(1985). "A 'search' occurs when an expectation of privacy that society is

prepared to consider reasonable is infringed." United States v. Jacobsen,

,

(1984). Specific to the legality of the initial traffic stop, "where a police officer

stops a vehicle based on probable cause that a traffic violation has occurred or was

occurring, the stop is not unreasonable under the Fourth Amendment to the United States

Constitution * * *." Dayton v. Erickson,

(1996), syllabus. "[E]vidence of a

defendant's marked lane violation establishes reasonable suspicion or probable cause for a

traffic stop." State v. McEldowney, 2d Dist. Clark No. 06-CA-138,

.

{¶ 20} R.C. 4511.33(A)(1) requires that a vehicle "shall be driven, as nearly as is

practicable, entirely within a single lane or line of traffic and shall not be moved from such

lane or line until the driver has first ascertained that such movement can be made with

safety." In the trial court's entry denying Thomas' motion to suppress, the court found that

Deputy Lewis observed the van slow down quickly, which almost caused a rear-end collision

with a semi-truck traveling behind it. Deputy Lewis began following, and observed the van

drifting over the marked center-line and then back into the original travel lane. Based on

Deputy Lewis' testimony, the court properly found that the evidence supported Deputy Lewis'

conclusion that Graham committed a marked lane violation.

{¶ 21} As Graham's unsafe driving constituted a violation of R.C. 4511.33, Deputy

Lewis had the requisite suspicion or probable cause to initiate the traffic stop. See State v. -6- Warren CA2012-10-096

Gibson-Sweeney, 11th Dist. Lake No. 2005-L-086,

(reversing grant of

motion to suppress where officer initiated a traffic stop after appellee's vehicle drifted over

marked lanes by a distance of about two or three inches before crossing back into the

original travel lane). Having found that the initial traffic stop was lawful, we will next analyze

whether the stop became unconstitutional based on its duration.

{¶ 22} Thomas argues that even if the stop was lawful at its inception, it became a

violation of his constitutional rights based on the unreasonable duration between the time

Deputy Lewis pulled over the van and when the canine sniff occurred. "To justify a particular

intrusion, the officer must demonstrate 'specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Batchili,

,

, ¶ 11, citing Terry v. Ohio,

,

(1968). The court in Batchili clarified the reasonable and articulable suspicion analysis

by stating that a court must consider the "collection of factors * * * which cumulatively

provide[ ] a sufficient reason for additional detention for the purposes of a canine walk

around." Batchili at ¶ 19.

{¶ 23} Here, the trial court found that Deputy Lewis had several reasons for his

articulable suspicion. Deputy Lewis testified that after he made the traffic stop, Graham and

Thomas told him that they rented the van in order to drive from Boston to Cincinnati.

Graham and Thomas also told Deputy Lewis that they slept in the van the previous night but

then offered Deputy Lewis conflicting stories when prompted to explain their reasoning for

traveling so far in one day only to turn around and go back home. Deputy Lewis further

testified that Graham and Thomas were "nervous" during his questioning, and that at some

point, he noticed an air freshener hanging in the back of the van. While Deputy Lewis asked

Graham and Thomas questions and observed their demeanor, he awaited a response from

dispatch for his warrant check on Graham and Thomas, and after the check was completed, -7- Warren CA2012-10-096

Deputy Lewis commenced the canine walk around the van.

{¶ 24} Based on this collection of factors, Deputy Lewis provided sufficient reason for

detaining Thomas so that he could perform the canine walk-around. The record indicates

that the stop took approximately 24 minutes before Deputy Lewis deployed his canine. This

amount of time is not unreasonable given the circumstances of this case. Moreover, this

court has previously held that detentions of approximately 24 minutes and 23 minutes were

not unreasonable given the circumstances. See State v. Howard, 12th Dist. Preble Nos.

CA2006-02-002, CA2006-02-003,

; and State v. Bolden, 12th Dist. Preble

App. No. CA2003-03-007,

. Here, Deputy Lewis diligently questioned Graham

and Thomas, requested a warrant/records check, and worked to complete his traffic stop,

and did not unreasonably detain Thomas beyond the time necessary to conduct the

investigation.

{¶ 25} Thomas argues that this court's decision in Graham cannot control his case

because since we decided Graham, the Sixth Circuit decided United States v. Johnson, 6th

Cir. No. 11-5131,

(June 5, 2012). In Johnson, the Sixth Circuit overturned

a decision of the district court to deny Johnson's motion to suppress. Johnson was pulled

over by a Tennessee police officer for speeding. Johnson agreed to give Johnson a warning

citation, and after the warning was issued, engaged in discussions with Johnson because the

officer had become suspicious of criminal activity. Nineteen minutes after the citation was

issued, a canine unit arrived and alerted. A marijuana "blunt" and a gun were found inside,

and Johnson was indicted for "being a felon in possession of a firearm."

{¶ 26} The Sixth Circuit determined that the officer lacked reasonable suspicion to

detain Johnson until the canine unit arrived because such suspicion was limited to Johnson

being nervous, not having sufficient luggage in the car, a questionable travel itinerary, and

the existence of a heavy duty cleaner in car. Thomas argues that the facts are the same in -8- Warren CA2012-10-096

his case and that Deputy Lewis lacked suspicion because he too thought that Thomas was

acting nervous, had a questionable travel itinerary, and observed an air freshener in the car.

However, the facts of Johnson are distinguishable from the case at bar because the officer in

Johnson had already issued the traffic citation and then detained Johnson an extra and

additional 19 minutes before the K-9 unit arrived. Here, however, the traffic stop never

ended. Deputy Lewis was in the process of investigating the traffic violation when the K-9

performed the walk-around and the circumstances of the case were such that Deputy Lewis

had articulable suspicion to permit the continuance of the traffic stop long enough for the K-9

unit to inquire.

{¶ 27} Deputy Lewis had other reasons that supported an articulable suspicion that

were not included in Johnson. For example, Thomas and Graham gave conflicting stories to

Deputy Lewis regarding the reason for their travel. Also, both admitted that they had been in

Boston the night before, had come to Cincinnati, and were already on their way home. While

Johnson spoke of a questionable travel itinerary not being sufficient basis for articulable

suspicion, the officer in Johnson stated that the appellant's travel itinerary was questionable

because Johnson stated he was on his way to meet someone he had met online, and yet did

not bring adequate clothing for a possible stay. However, and unlike Johnson, Deputy Lewis

was faced with two conflicting stories as to why Thomas and Graham were traveling, neither

was able or willing to supply the location they specifically visited in Cincinnati, and no

explanation was given for such a short turn-around-time.

{¶ 28} Also, Deputy Lewis was an experienced law enforcement officer and member of

a drug task force, and was therefore able to state that air fresheners are often used to mask

the odor of marijuana when such air fresheners appear in the back of a car rather than in the

front where a driver would traditionally place them. Conversely, the Sixth Circuit noted that

one could possess cleaner in their vehicle for a myriad of reasons. Another suspicion, and -9- Warren CA2012-10-096

the one that initially alerted Deputy Lewis, was that the van slowed down when it passed him

even though it was properly driving within the speed limit. In Johnson, however the appellant

was traveling 72 m.p.h. in a 55 m.p.h. zone. As an experienced drug task force agent,

Deputy Lewis became suspicious of criminal activity when the van slowed down upon

passing him even though it had not yet committed a traffic violation. In Johnson, the only

reason the officer initiated the stop was because of the excessive speed at which the

appellant traveled. Based on the distinguishable facts, we find that Johnson is not applicable

to this case and does not change the reasoning we first set forth in Graham that the initial

stop and duration of the stop were constitutionally sound.

{¶ 29} After reviewing the record, the trial court properly determined that Deputy Lewis

had articulable suspicion to continue the stop. Accordingly, the trial court properly denied

Thomas' motion to suppress, and his first assignment of error is overruled.

{¶ 30} Assignment of Error No. 2:

{¶ 31} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. THOMAS BY

FAILING TO GRANT HIS MOTION TO DISMISS FOR VIOLATION OF THE INTERSTATE

AGREEMENT ON DETAINERS ("IAD").

{¶ 32} Thomas argues in his second assignment of error that the trial court improperly

denied his motion to dismiss because Ohio violated the Interstate Agreement on Detainers

(IAD).

{¶ 33} "The Interstate Agreement on Detainers * * * creates uniform procedures for

lodging and executing a detainer, i.e., a legal order that requires a State to hold a currently

imprisoned individual when he has finished serving his sentence so that he may be tried by a

different State for a different crime." Alabama v. Bozeman,

,

(2001), syllabus. Ohio is one of 48 states that is a signatory to the IAD, along with the United

States and the District of Columbia. New York v. Hill,

,

- 10 - Warren CA2012-10-096

(2000). Ohio's involvement in the IAD is codified at R.C. 2963.30.

{¶ 34} Thomas argues that his indictment should have been dismissed according to

R.C. 2963.30, Art. IV(e), which essentially protects the prisoner from excessive transfers

through the so-called "anti-shuttling" provision.

If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

The Supreme Court in Bozeman referenced the language found in Art. IV and noted that, "it

is important to keep in mind that the [IAD] basically (1) gives a prisoner the right to demand a

trial within 180 days; and (2) gives a State the right to obtain a prisoner for purposes of trial,

in which case the State (a) must try the prisoner within 120 days of his arrival, and (b) must

not return the prisoner to his 'original place of imprisonment' prior to that trial."

. (Emphasis added.) Stated another way,

Accordingly, by its express terms, the IAD is violated under two conditions—when a prisoner, who is serving a sentence in the sending state and indicted by the receiving state, is (1) transferred to the receiving state based on its lodging a detainer against him and requesting custody,

at Art. IV(a), and then (2) returned to the "original place of imprisonment" before standing trial on the untried indictment,

at Art IV(e).

United States v. Pursley,

(10th Cir. 2007).

{¶ 35} Here, the facts are undisputed that the United States was the "sending state"

and that Ohio was the "receiving state." Thomas was a federal prisoner when the detainer

was lodged against him by Ohio. However, Thomas remained in federal custody during the

time he appeared in the Pennsylvania court for preliminary matters, and was never "received"

by Ohio during this time. Once Thomas arrived in Ohio and was in custody, the anti-shuttling

provision of the IAD was triggered. However, there was no violation of the IAD because

- 11 - Warren CA2012-10-096

Thomas' trial was properly held without Thomas ever being returned to federal prison or to

any other state. Therefore, there was no violation of the IAD, and Thomas' second

assignment of error is overruled.

{¶ 36} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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