[Cite as State v. McCullough,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, : CASE NO. CA2013-07-021 Plaintiff-Appellee, : OPINION : 4/21/2014 - vs - :

ANNDREA M. McCULLOUGH, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 13CRI00089

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Melissa S. Upthegrove, 254 East Court Street, Washington C.H., Ohio 43160, for defendant- appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Anndrea M. McCullough, appeals from the decision of the

Fayette County Court of Common Pleas denying her motion to suppress. For the reasons

outlined below, we affirm.

{¶ 2} On the afternoon of April 20, 2013, Detective Larry McGarvey of the Fayette

County Sheriff's Office received word from a confidential informant that James Babineau Fayette CA2013-07-021

would be traveling to Dayton that day in order to pick up heroin and bring it back to Fayette

County. Detective McGarvey had used the confidential informant intermittently since 2001

and had never known the confidential informant to provide false information. Detective

McGarvey was also familiar with Babineau as he had dealings with him in the past and knew

he was involved in drug trafficking.

{¶ 3} After receiving this information, Detective McGarvey drove his unmarked

vehicle to Babineau's residence where he observed an unidentified male loading a flat screen

television into a PT Cruiser parked outside Babineau's mobile home. Not seeing anything

overly suspicious, Detective McGarvey contacted the confidential informant who informed

him that Babineau was going to sell the television at a local pawn shop in order to raise the

money necessary to purchase the heroin in Dayton.

{¶ 4} Detective McGarvey then drove to the pawn shop where the sale was to take

place. Once there, Detective McGarvey observed the same unidentified male, as well as

Babineau and Babineau's mother, exit the pawn shop and get into the PT Cruiser. Detective

McGarvey then watched as the vehicle drove to a nearby grocery store. While at the grocery

store, Detective McGarvey saw Babineau make contact with several individuals in a blue

vehicle. Detective McGarvey, however, was unable to identify any of those individuals within

the vehicle. Detective McGarvey then watched as Babineau got into the PT Cruiser;

McGarvey then followed the PT Cruiser as it made its way back to Babineau's mobile home.

{¶ 5} Once he arrived back at Babineau's residence, Detective McGarvey again

contacted the confidential informant who told him that Babineau needed $100 more to make

the trip to Dayton to purchase the heroin. Detective McGarvey then offered to give the

confidential informant $50 to give to Babineau. As Detective McGarvey testified:

I sat in the area for a little while, I ended up contacting my source again and asked if I could meet with them and give them 50.00 told them to make contact with Mr. Babineau and tell them they -2- Fayette CA2013-07-021

could come up with 50.00. I figured that way I could get them out of the trailer park and get to a place where I knew they would be and that I could actually observed from that point[.]

After providing the confidential informant with the $50 to give to Babineau, the confidential

informant contacted Detective McGarvey and told him of where the exchange was going to

take place. The confidential informant also told Detective McGarvey that immediately after

the money was exchanged, Babineau would travel to Dayton to purchase the heroin.

{¶ 6} Upon arriving at the exchange site, Detective McGarvey saw a blue Monte

Carlo pull up with Babineau in the passenger seat. The vehicle was driven by a female later

identified as McCullough. Detective McGarvey testified he knew McCullough was involved in

drug trafficking with Babineau, but had never had any direct contact with her. Detective

McGarvey, however, was not sure if the blue Monte Carlo was the same blue vehicle that he

had seen outside the grocery store earlier that day.

{¶ 7} Following this exchange, McCullough and Babineau drove the blue Monte Carlo

onto State Route 35 heading towards Dayton. Detective McGarvey then followed

McCullough and Babineau into downtown Dayton when he lost sight of their vehicle after it

exited into an area known for high drug and criminal activity. Unable to locate the car,

Detective McGarvey exited the downtown Dayton area and looped back around onto State

Route 35. He then stopped his unmarked vehicle near the Bickett Road exit in hopes of

spotting McCullough and Babineau as they traveled back towards Fayette County.

{¶ 8} After some time, Detective McGarvey spotted McCullough and Babineau in the

same blue Monte Carlo traveling towards Fayette County on State Route 35. After locating

the vehicle, Detective McGarvey radioed ahead to Deputy Clint Sines and Deputy Bruce

Stolsenberg who were stationed on State Route 35 conducting road patrol. Detective

McGarvey then began following the blue Monte Carlo, which he testified was traveling at

speeds ranging between 65 to 85 m.p.h. -3- Fayette CA2013-07-021

{¶ 9} Once McCullough and Babineau crossed into Fayette County, Deputy

Stolsenberg clocked the blue Monte Carlo traveling at 67 m.p.h., two m.p.h. over the posted

speed limit. Detective McGarvey then instructed Deputy Stolsenberg to initiate a traffic stop

on the vehicle. As Detective McGarvey testified, "[t]hat with the information we had and we

had a 67 let's get them pulled over."

{¶ 10} After the car was stopped, McCullough and Babineau were removed from the

vehicle and placed in separate police cruisers so that Deputy Sines could conduct a canine

sniff of their vehicle. They were also read their Miranda rights. Although the canine alerted

on the blue Monte Carlo, the subsequent search of the vehicle did not uncover any narcotics.

Deputy Sines then conducted a canine sniff of the two police cruisers where McCullough and

Babineau were sitting. The canine alerted on both cruisers. The canine also conducted a

sniff on a third police cruiser that was empty, but it did not alert on the vehicle. It is

undisputed that no narcotics were found in the two police cruisers either before or after the

canine sniff of the cruisers was conducted. Following the search of the vehicles, McCullough

and Babineau were taken to the Fayette County Sheriff's Office so that a search warrant

could be obtained for their persons.

{¶ 11} Once they arrived at the sheriff's office, McCullough was taken to the jail,

whereas Babineau was taken to the annex building. When asked why the two were

separated, Detective McGarvey testified he did not want the two together and that

McCullough was taken to the jail so that a female corrections officer could check her for

weapons. As Detective McGarvey testified, "it becomes difficult with females when we don't

have a female deputy available we can't do a proper pat down of them or any kind of search."

In addition, Deputy Stolsenberg testified, "I am much more comfortable when I have the

circumstances to take someone and to transport them into an office and let a female officer

take care of a search [for weapons] if one is needed." -4- Fayette CA2013-07-021

{¶ 12} Upon arriving at the jail, McCullough, although merely being held under an

investigative detention, was ordered to change out of her street clothes and into proper jail

attire. As she was changing out of her clothes, McCullough produced two baggies containing

heroin that she had concealed on her body. It is undisputed that Detective McGarvey was

actively typing out a search warrant for both McCullough and Babineau when McCullough

turned over the drugs. According to Deputy Stolsenberg, this occurred approximately 30

minutes after McCullough was taken to the jail.

{¶ 13} McCullough was subsequently arrested and charged with, among other things,

complicity to commit trafficking in heroin and possession of heroin. The charges also

contained a forfeiture specification for the blue Monte Carlo. McCullough then filed a motion

to suppress, which the trial court denied after holding a hearing. In so holding, the trial court

found that the initial stop of the vehicle was proper and that, even though she was subject to

an "equivalent of a strip search" at the jail, the inevitable-discovery doctrine nevertheless

applied. After the trial court denied her motion to suppress, McCullough agreed to enter a

plea of no contest. The trial court accepted McCullough's plea and sentenced her to a

mandatory two-year prison term.

{¶ 14} McCullough now appeals from the trial court's decision denying her motion to

suppress, raising three assignments of error for review. For ease of discussion,

McCullough's second and third assignments of error will be addressed together.

{¶ 15} Assignment of Error No. 1:

{¶ 16} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

SUPPRESS.

{¶ 17} In her first assignment of error, McCullough argues the trial court erred by

denying her motion to suppress in regards to the initial stop and subsequent detention. In

support of this claim, McCullough argues the trial court erred by denying her motion to -5- Fayette CA2013-07-021

suppress because the officers did not have probable cause to stop her vehicle. McCullough

also argues the trial court erred by denying her motion to suppress as there was "no

justification" to detain her while the canine sniff of her vehicle was conducted. These

arguments lack merit.

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

of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176,

, ¶ 15,

citing State v. Burnside,

,

, ¶ 8. When considering a

motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the

evidence in order to resolve factual questions and evaluate witness credibility. State v.

Johnson, 12th Dist. Butler No. CA2012-11-235,

; State v. Eyer, 12th

Dist. Warren No. CA2007-06-071,

. In turn, when reviewing the denial

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

are supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.

CA2013-03-023,

; State v. Oatis, 12th Dist. Butler No. CA2005-03-074,

. "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." State

v. Thomas, 12th Dist. Warren No. CA2012-10-096,

, quoting State v.

Cochran, 12th Dist. Preble No. CA2006-10-023,

.

{¶ 19} As noted above, McCullough initially argues the trial court erred by denying her

motion to suppress because the officers did not have probable cause to stop her vehicle.

The stop of a motor vehicle, even if for a limited purpose or a brief amount of time,

constitutes the seizure of a person under the Fourth Amendment. State v. Hessel, 12th Dist.

Warren No. CA2009-03-031,

, ¶ 10, citing United States v. Martinez-Fuerte,

,

(1976). A noninvestigatory stop, one of two traffic -6- Fayette CA2013-07-021

stops recognized in Ohio, is reasonable for Fourth Amendment purposes where an officer

has probable cause to believe a criminal act has occurred, such as where an officer observes

a traffic violation. State v. Feerer, 12th Dist. Warren No. CA2008-05-064,

; State v. Mays,

,

, ¶ 22 (finding "an officer who has

probable cause necessarily has a reasonable and articulable suspicion, which is all the

officer needs to justify a stop"). This is true "even if the officer had some ulterior motive for

making the stop, such as suspicion that the violator was engaging in more nefarious criminal

activity." Dayton v. Erickson,

(1996), paragraph one of the syllabus.

{¶ 20} In this case, the record indicates the officers observed McCullough traveling on

State Route 35 at a speed of 67 m.p.h., two miles over the posted speed limit. Although de

minimus, this traffic violation provided the officers with probable cause to initiate a traffic stop

of McCullough's vehicle. State v. Willis, 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-

2391, ¶ 19. As the officers had probable cause to stop McCullough for speeding, the initial

stop of her vehicle was not unreasonable under the Fourth Amendment to the United States

Constitution. This is true even though the officers may have had an ulterior motive for

making the stop, such as their suspicion that McCullough and Babineau were engaged in

more serious criminal drug activity. Therefore, McCullough's first argument is without merit

and is overruled.

{¶ 21} Next, McCullough argues the trial court erred by denying her motion to

suppress as there was "no justification" to detain her while the canine sniff of her vehicle was

conducted. When detaining a motorist for a traffic violation, "a police officer may detain the

motorist for a time period sufficient to allow the officer to issue a ticket or a warning, or to run

a computer check on the driver's license, registration and vehicle plates." State v. Coleman,

12th Dist. Fayette No. CA2011-09-020,

, ¶ 11, citing State v. Batchili,

,

, ¶ 12. During this time, police may conduct a canine sniff of -7- Fayette CA2013-07-021

the exterior of a lawfully detained vehicle even without the presence of a reasonable and

articulable suspicion of drug-related activity. State v. Dixon, 12th Dist. Warren No. CA2008-

01-006,

; State v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-

Ohio-184, ¶ 18. It is well-established that "an alert by a trained narcotics dog provides law

enforcement with probable cause to search the vehicle for contraband." State v. Kelly,

,

, ¶ 25 (12th Dist.).

{¶ 22} Contrary to McCullough's claim otherwise, the officers were not required to

have a reasonable and articulable suspicion of drug activity in order to conduct a canine sniff

of her vehicle. In turn, although we believe the evidence in this case would support such a

contention, it is immaterial whether the officers had a reasonable and articulable suspicion of

criminal activity prior to removing McCullough and Babineau from the vehicle in order to

conduct the canine sniff. Moreover, the evidence submitted at the suppression hearing

indicates the duration of the stop did not impermissibly expand McCullough's detention, as

the canine sniff was done within mere minutes after the officers stopped her vehicle. See

State v. Howard, 12th Dist. Preble Nos. CA2006-02-002 and CA2006-02-003, 2006-Ohio-

5656, ¶ 23-28; State v. Bolden, 12th Dist. Preble No. CA2003-03-007,

, ¶ 19-

25. Once the canine alerted on the cruisers in which McCullough and Babineau were seated,

the officers were provided with even further justification to support their reasonable and

articulable suspicion that criminal activity was afoot. These facts also serve as a pertinent

factor in the officers' probable cause inquiry in support of the search warrant for their

persons. Therefore, McCullough's second argument likewise lacks merit and is also

overruled.

{¶ 23} As we have found no merit to either of McCullough's arguments advanced

under her first assignment of error, McCullough's first assignment of error is overruled.

{¶ 24} Assignment of Error No. 2: -8- Fayette CA2013-07-021

{¶ 25} THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO

SUPPRESS EVIDENCE OBTAINED FROM A STRIP SEARCH AND A BODY CAVITY

SEARCH CONDUCTED IN VIOLATION OF APPELLANT'S RIGHT TO BE FREE FROM

UNREASONABLE SEARCHES.

{¶ 26} Assignment of Error No. 3:

{¶ 27} THE TRIAL COURT ERRED WHEN CONCLUDING THE CONTRABAND

FOUND ON APPELLANT WAS THE RESULT OF THE "INEVITABLE DISCOVERY"

DOCTRINE IN VIOLATION OF APPELLANTS [SIC] FOURTH AMENDMENT RIGHT.

{¶ 28} In her second and third assignments of error, McCullough argues the trial court

erred by denying her motion to suppress based on the inevitable-discovery doctrine when the

trial court found she was subject to an improper and unconstitutional "strip search" and "body

cavity search" in violation of R.C. 2933.32.1 We disagree.

{¶ 29} Under the inevitable-discovery doctrine, evidence that is illegally obtained is

properly admitted "once it is established that the evidence would have been ultimately or

inevitably discovered during the course of a lawful investigation." State v. Farrey, 9th Dist.

Summit No. 26703,

, quoting State v. Perkins,

(1985), syllabus. The doctrine generally applies where, "prior to the misconduct, authorities

were actively pursuing an alternate line of investigation that would have resulted in discovery

of the evidence, or authorities would have subsequently discovered the evidence through a

standardized procedure or established routine." State v. Cundiff, 10th Dist. Franklin No.

1. We note that the alleged "strip search" and "body cavity search" was conducted after McCullough was transported to the jail for holding and ordered to change out of her clothes and into jail attire while a search warrant was being obtained. After reviewing the record, we question whether McCullough was subject to a "strip search" and "body cavity search" as those terms are defined by R.C. 2933.32(A)(1) and (2). This is particularly true given the fact that McCullough herself turned over the two baggies containing heroin that she had been concealing on her body when ordered to change into the jail attire. However, besides noting its disagreement with the trial court's decision within its brief, the state did not appeal from the trial court's finding McCullough was subject to an unconstitutional search of her person. Therefore, we will not address any potential issues regarding that finding here. -9- Fayette CA2013-07-021

12AP-483,

, ¶ 20, citing State v. Bradford, 4th Dist. Adams No. 09CA880,

, ¶ 55. In other words, "the state must show that police were actively

pursuing an alternate line of investigation, one untainted by the illegality that took place prior

to the particular misconduct." State v. Porter,

,

(2d Dist.). Otherwise, the inevitable-discovery doctrine would apply even if police merely

"could have discovered" the evidence, rather than if they "would have discovered" the

evidence.

citing State v. Pearson,

(3d Dist. 1996).

{¶ 30} Here, the record reveals that the officers were attempting to obtain a search

warrant when McCullough turned over the two baggies of heroin she had concealed on her

body. As Detective McGarvey testified:

[THE STATE]: So as you responded to the Judge you were in the process of actually typing up search warrants?

MCGARVEY: Yes.

[THE STATE]: And that was for one or both of the subjects?

MCGARVEY: I was going to do a warrant on both of the subjects.

[THE STATE]: And in the middle of typing up the warrants you receive a phone call from the jail?

MCGARVEY: Yes Sir.

[THE STATE]: And they informed you about what?

MCGARVEY: They stated to me about dressing Ms. McCullough out that she had actually pulled out two bags containing which they believed to be heroin and handed it to the deputies in the jail.

Because the officers were attempting to obtain a search warrant at the time the two baggies

of heroin were turned over, we find this case markedly different from those cases where

officers could have obtained a warrant, but simply choose not to do so. Compare State v.

Miller,

(8th Dist. 1991) (finding the inevitable-discovery doctrine - 10 - Fayette CA2013-07-021

could apply if police "were attempting to get a warrant independent of [a warrantless]

search"); State v. Aber, 5th Dist. Licking No. 2003CA106,

(finding any

evidence improperly seized would have been discovered during the execution of the search

warrant that was then being obtained); United States v. Lewis,

(S.D.Ohio 2009) (finding "the limited evidence seized during the initial entry would have been

discovered through lawful means very shortly thereafter, namely, through the warrant for

which Detective Beane had already applied"); with State v. Coyle, 4th Dist. Ross No. 99 CA

2480,

, *6 (Mar. 15, 2000) (finding no merit to "the state's argument that the

inevitable discovery doctrine should apply just because officers could have obtained a

warrant had they sought one"); United States v. Johnson,

(6th Cir. 1994)

(rejecting the logic that "simply because the police could have obtained a warrant, it was

therefore inevitable that they would have done so," noting that such a ruling "would mean that

there is inevitable discovery and no warrant requirement whenever there is probable cause").

{¶ 31} Again, as the record indicates, Detective McGarvey received information from a

confidential informant that Babineau was planning to travel to Dayton to pick up heroin and

bring it back to Fayette County. Based upon this information, Detective McGarvey followed

Babineau for a period of several hours as Babineau gathered the money necessary for the

purchase. Detective McGarvey then observed McCullough and Babineau, both of whom he

knew were involved in drug trafficking activities, pull up in a blue Monte Carlo and stop at the

money exchange site. While there, Detective McGarvey watched as they met with the

confidential informant who provided them with $50.

{¶ 32} Detective McGarvey then followed McCullough and Babineau as they travelled

on State Route 35 towards Dayton where they exited into an area known for high drug and

criminal activity. Although he lost sight of their vehicle while in Dayton, Detective McGarvey

later spotted McCullough and Babineau in the blue Monte Carlo traveling back towards - 11 - Fayette CA2013-07-021

Fayette County from Dayton. Thereafter, once a traffic stop was initiated, a canine sniff was

conducted, wherein the canine alerted to the presence of drugs in the blue Monte Carlo, as

well as in the two police cruisers in which McCullough and Babineau were sitting.

{¶ 33} After a thorough review of the record, we find the facts and circumstances of

this case provides more than enough evidence to support a probable cause finding to issue a

search warrant. "A search warrant may be issued upon a showing of probable cause based

upon the totality of the circumstances presented in an affidavit." State v. Quinn, 12th Dist.

Butler No. CA2011-06-116,

, ¶ 20. "To determine whether probable cause

exists, a court must examine the 'totality of the circumstances' and make a 'practical,

commonsense decision whether, given all the circumstances there [was] a fair probability that

contraband or evidence of a crime [would] be found in a particular place.'" State v.

Christopher, 12th Dist. Clermont No. CA2009-08-041,

, ¶ 10, quoting Illinois

v. Gates,

,

(1982). Under the totality of the circumstances

analysis, "factors to be considered include an officer's observation of some criminal behavior

by the defendant, furtive or suspicious behavior, flight, events escalating reasonable

suspicion into probable cause, and association with criminals and locations."

{¶ 34} In making this determination, we note that such finding is not based solely on

the fact that a search did not uncover any drugs in any of the three vehicles after the canine

alerted on the same. See State v. McCorvey, 11th Dist. Ashtabula No. 2010-A-0038, 2011-

Ohio-3627, ¶ 35 (holding a canine's alert to defendant's car and its subsequent negative

search of the vehicle "did not independently provide probable cause to search" defendant's

person); State v. Kay, 9th Dist. Wayne No. 09CA0018,

, ¶ 16 (finding

"negative search of the vehicle does not necessitate the conclusion the drugs must therefore

be with one of the occupants of the vehicle" after a canine alerted on the vehicle). Rather, as

outlined above, the officers had a multitude of additional factors that would have established - 12 - Fayette CA2013-07-021

probable cause to justify issuing, at minimum, a search warrant for McCullough's person.

State v. Young, 12th Dist. Warren No. CA2011-06-066,

, ¶ 22-23 (finding

arrest was supported by probable cause where officers did not rely solely on canine alert of

vehicle where defendant had been sitting). Therefore, we find no error in the trial court's

decision denying McCullough's motion to suppress by finding the inevitable-discovery

doctrine applied in this matter. Accordingly, McCullough's second and third assignments of

error are overruled.

{¶ 35} Judgment affirmed.

RINGLAND, P.J., and HENDRICKSON, J., concur.

- 13 -