State v. Gibson

Ohio Court of Appeals September 21, 2015

State v. Gibson, 2015 Ohio 3812 (2015)

Rogers

Opinion

[Cite as State v. Gibson,

2015-Ohio-3812

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-15-22

ALMON D. GIBSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR20140143

Judgment Affirmed

Date of Decision: September 21, 2015

APPEARANCES:

Kenneth J. Rexford for Appellant

Jana E. Emerick for Appellee Case No. 1-15-22

ROGERS, P.J.

{¶1} Defendant-Appellant, Almon Gibson, appeals the judgement of the

Court of Common Pleas of Allen County convicting him of 27 counts of forgery

and sentencing him to one year in prison. On appeal, Gibson argues that the trial

court erred in denying his motion to suppress evidence seized during a warrantless

search of his vehicle. For the reasons set forth herein, we affirm the judgment of

the trial court.

{¶2} On October 17, 2014, an Allen County Grand Jury indicted Gibson on

27 counts of forgery, in violation of R.C. 2913.31(A)(2) and (C)(1)(b), each being

a felony of the fifth degree. Gibson entered a plea of not guilty.

{¶3} On November 5, 2014, Gibson moved to suppress the evidence

underlying the indictment: 27 allegedly forged credit cards. On November 12,

2014, a hearing was held, and the following evidence was presented.

{¶4} Sergeant Dean Laubacher of the Ohio State Highway Patrol testified

that he has been a trooper for the past 25 years. He explained that he has received

additional, specialized training in the area of drug interdiction, including training

on certain indicators suggestive of drug activity. According to Sergeant

Laubacher, these indicators include: whether a motorist is in route from a source

city; whether a motorist is in route to a user city; whether a motorist is traveling on

a major highway; whether the vehicle has a strong odor of air freshener; and

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whether a motorist is driving a rental car without proper authorization. Sergeant

Laubacher further explained that narcotics generally flow from Mexico to select

distribution centers in the United States, including Detroit, Michigan. From there,

the narcotics are broken down into smaller shipments and transported to various

user cities. During transportation, Sergeant Laubacher testified that couriers

frequently drive rented vehicles and do not list themselves as an authorized driver

in attempt to circumvent forfeiture laws.

{¶5} Sergeant Laubacher testified that on September 14, 2014, he was on

routine patrol along Interstate 75, in Allen County, when he clocked a motorist

traveling approximately seven miles above the posted limit. Sergeant Laubacher

initiated a routine traffic stop.1 He asked the driver, later identified as Gibson, for

his driver’s license and vehicle registration. Gibson provided Sergeant Laubacher

with a Michigan temporary driver’s license and the vehicle’s rental agreement.

{¶6} Sergeant Laubacher testified that he examined Gibson’s temporary

driver’s license and noticed that it had been issued in February 2014, roughly six

months earlier. According to Sergeant Laubacher, Gibson stated that he was

waiting on the State of Michigan to issue him a permanent license. Sergeant

Laubacher added that he found it odd that Gibson was still waiting on a permanent

license after more than six months. Gibson then indicated that he had a more

1 The traffic stop was fully captured on Sergeant Laubacher’s cruiser camera, and the video was admitted into evidence at the suppression hearing.

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recent temporary license but “couldn’t find the other piece of paper so [I] just

grabbed that one [I] had.” Nov. 12, 2014 Hrg. p. 8. According to Sergeant

Laubacher, these circumstances raised a “red flag.”

Id.

{¶7} Sergeant Laubacher testified that he also examined Gibson’s rental

agreement and immediately noticed that Gibson was not listed as an authorized

driver. Gibson explained that his unemployed girlfriend, Lexie Whitfield, had

rented the vehicle for him. When Sergeant Laubacher inquired into Ms.

Whitefield’s whereabouts, Gibson stated that she had just recently flown to Las

Vegas, Nevada. Sergeant Laubacher testified that he found these circumstances

very unusual.

{¶8} Gibson informed Sergeant Laubacher that he was currently in route

from Detroit, Michigan to Charleston, South Carolina. During their exchange,

Gibson stated that he had previously attended school in South Carolina. When

Sergeant Laubacher inquired into the particular school, Gibson could not recall the

name. Sergeant Laubacher found Gibson’s lack of knowledge suspicious, noting

that “if you’re going to college you know where you’re going.” Id. at p. 10.

Moreover, Sergeant Laubacher testified that as the traffic stop progressed, Gibson

became increasingly more nervous.

{¶9} After issuing Gibson a warning, Sergeant Laubacher stated that he

asked Gibson for consent to search the vehicle. Gibson declined. Sergeant

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Laubacher told Gibson that he would be calling for a narcotics-detection canine to

come and sniff around the vehicle’s exterior. Twenty-four minutes later, a

narcotics-detection canine arrived. In the interim, Sergeant Laubacher detained

Gibson in the front passenger seat of his cruiser. After sniffing the vehicle’s

exterior, the canine alerted. Based on this alert, Gibson’s vehicle was searched,

and 27 credit cards were uncovered.

{¶10} On December 11, 2014, the trial court denied Gibson’s motion to

suppress. In doing so, the trial court found that “[t]he detention of defendant was

legally extended beyond the time frame necessary for [Sergeant] Laubacher to

issue a warning for speeding because [Sergeant] Laubacher testified about the

specific and articulable facts that demonstrated his reasonable suspicion of

criminal activity.” (Docket No. 23, p. 6). Specifically, the court noted that

“[Sergeant] Laubacher testified about his experience and training about drug

couriers driving down I-75, in rented vehicles, from Detroit, acting very nervous.”

Id. “He also observed the extreme nervousness and considered the ‘indicators’

about which he testified.” Id. at 12.

{¶11} On April 23, 2015, Gibson filed a motion for reconsideration in light

of the United States Supreme Court’s finding that a traffic stop may not be

extended in order to conduct a dog sniff, absent reasonable suspicion. Rodriguez

v. United States, _U.S._,

135 S.Ct. 1609, 1612

191 L.Ed.2d 492

(2015). By entry

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dated April 24, 2015, the trial court denied Gibson’s motion noting that “[t]he dog

sniff. . . was independently supported by [Sergeant] Laubacher’s individualized

suspicion of criminal drug activity.” (Docket No. 40, p. 4).

{¶12} On March 5, 2015, Gibson pleaded no contest to the indictment, and

the trial court entered a finding of guilt. On April 27, 2015, the trial court

sentenced Gibson to a total of one year in prison, with an additional three years of

post-release control.

{¶13} It is from this judgment that Gibson appeals, presenting the

following assignment of error for our review.

Assignment of Error

THE TRIAL COURT ERRED BY NOT SUPPRESSING THE FRUITS OF A WARRANTLESS SEARCH OF MR. GIBSON’S VEHICLE, THEREBY DENYING TO MR. GIBSON HIS RIGHTS TO FREEDOM FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED TO HIM BY BOTH THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION WHEN THE SEARCH WAS ENABLED BY A BASELESS DETENTION FOR 24 MINUTES.

{¶14} In his sole assignment of error, Gibson argues that Sergeant

Laubacher lacked reasonable suspicion to detain Gibson beyond the time period

necessary to issue Gibson a warning for speeding. Gibson further argues that even

if there was reasonable suspicion to detain Gibson beyond this time period,

Sergeant Laubacher did not conduct a diligent investigation prior to the narcotics-

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detection canine’s arrival, thereby making the 24 minute detention unreasonable.

We disagree.

{¶15} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside,

100 Ohio St.3d 152

, 2003-

Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence

presented. State v. Johnson,

137 Ohio App.3d 847, 850

(12th Dist. 2000).

Therefore, when an appellate court reviews a trial court’s ruling on a motion to

suppress, it must accept the trial court’s findings of facts so long as they are

supported by competent, credible evidence. State v. Roberts,

110 Ohio St.3d 71

2006-Ohio-3665

, ¶ 100. The appellate court must then review the application of

the law to the facts de novo.

Burnside at ¶ 8

{¶16} In the case sub judice, there is no dispute that the initial traffic stop

was appropriate. Sergeant Laubacher clocked Gibson on three occasions traveling

nearly 77 mph in an area with a posted maximum speed of 70 mph. Based on this

information, Sergeant Laubacher had a reasonable and articulable suspicion, as

well as probable cause, to believe that a traffic violation had occurred. State v.

Mays,

119 Ohio St.3d 406

2008-Ohio-4539

, ¶ 24; State v. Burwell, 3d Dist.

Putnam No. 12-09-06,

2010-Ohio-1087, ¶ 12

. Thus, Sergeant Laubacher was

permitted to stop Gibson’s vehicle “for a time period necessary to issue a ticket or

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a warning.” State v. Smith,

117 Ohio App.3d 278, 285

(1st Dist. 1996), citing State

v. Keathley,

55 Ohio App.3d 130, 131

(2d Dist. 1998). This period includes the

time needed to run a computer check on the driver’s license, registration, and

vehicle plates. Delaware v. Prouse,

440 U.S. 648, 659

99 S.Ct. 1391

59 L.Ed.2d 660

(1979).

{¶17} The issue in this case is whether Sergeant Laubacher had the

requisite justification to detain Gibson beyond the time necessary to conduct a

traffic stop so that a narcotics-detection canine could arrive on scene and sniff

around the exterior of Gibson’s vehicle. It is well settled that the use of a trained

narcotics-detection dog during a lawful traffic stop generally does not trigger

Fourth Amendment protection. Illinois v. Caballes,

543 U.S. 405, 409

125 S.Ct. 834

160 L.Ed.2d 842

(2005). A narcotics-detection dog may sniff around the

exterior of a motorist’s vehicle during a lawful traffic stop in absence of a

reasonable suspicion of drug-related activity.

Id.

However, a traffic stop may not

be extended—i.e., prolonged by any additional amount of time—in order to

conduct a dog sniff, absent reasonable suspicion.

Rodriguez at 1612

{¶18} Reasonable suspicion exists when there are “ ‘specific and articulable

facts which, taken together with rational inferences from those facts, reasonably

warrant the intrusion.’ ” State v. Stephenson, 3d Dist. Union No. 14–04–08,

2004–Ohio–5102, ¶ 16, quoting State v. Bobo,

37 Ohio St.3d 177, 178

(1988).

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Law enforcement officers may “draw on their own experience and specialized

training to make inferences from and deductions about the cumulative information

available to them that ‘might well elude an untrained person.’ ” United States v.

Arvizu,

534 U.S. 266, 273

122 S.Ct. 744

151 L.Ed.2d 740

(2002), quoting United

States v. Cortez,

449 U.S. 411, 418

101 S.Ct. 690

66 L.Ed.2d 621

(1981). “A

‘series of acts, each of them perhaps innocent,’ may nonetheless, when viewed

together, give the police officer justification for conducting further investigation.”

State v. Ramey,

129 Ohio App.3d 409, 414

(1st Dist. 1998), citing United States v.

Sokolow,

490 U.S. 1, 9

109 S.Ct. 1581

104 L.Ed.2d 1

(1989). “[T]he relevant

inquiry is not whether the particular conduct is innocent or guilty, but the degree

of suspicion that attaches to particular types of noncriminal acts.

Sokolow at 9

citing Illinois v. Gates,

462 U.S. 213, 243-244

103 S.Ct. 2317

76 L.Ed.2d 527

(1983).

{¶19} Here, Sergeant Laubacher testified to specific indicators suggestive

of drug-related activity. Those indicators included: whether the motorist is in

route from a source city; whether the motorist is in route to a user city; whether the

motorist is traveling on a major highway; whether the vehicle has a strong odor of

air freshener; and whether the motorist is driving a rental vehicle without proper

authorization.

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{¶20} During Gibson’s traffic stop, Sergeant Laubacher identified several

of those indicators. In particular, Gibson was not listed as an authorized driver on

the vehicle’s rental agreement and he was traveling southbound on Interstate-75

from Detroit, Michigan, a known distribution center, to Charleston, South

Carolina, a known user city. While Gibson argues that these indicators are

innocuous and therefore cannot contribute to a finding of reasonable suspicion, we

again emphasize that “the relevant inquiry is not whether the particular conduct is

innocent or guilty, but the degree of suspicion that attaches to particular types of

noncriminal acts.”

Sokolow at 9

, citing

Gates at 243-244

. At the suppression

hearing, Sergeant Laubacher explained the heavy flow of narcotics along

Interstate-75, and in particular, the narcotic movement from Detroit, Michigan to

southern cities. Sergeant Laubacher also explained that couriers commonly drive

rented vehicles, without being listed as an authorized driver, in attempt to evade

forfeiture laws. While these indicators appear innocuous to a layperson, to a law

enforcement officer with experience and training regarding the patterns associated

with the distribution of narcotics, these indicators raised a suspicion of drug-

related activity.

{¶21} In addition to these specific indicators, Gibson’s own statements and

behaviors contributed to the development of reasonable suspicion. During the

colloquy between Sergeant Laubacher and Gibson, Gibson was unable to provide

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consistent answers to several of Sergeant Laubacher’s questions. For example,

Gibson stated that he had previously attended school in South Carolina, but was

unable to identify the institution’s name; Gibson stated that he had recently lost his

license, but then stated that he had more than one temporary driver’s license dating

back approximately six months; Gibson stated that his girlfriend rented the

vehicle, but was initially unable to identify what she did for a living. All the

while, Gibson appeared to be growing increasingly more nervous.

{¶22} The determination of reasonable suspicion requires consideration of

the “totality of the circumstances—the whole picture.”

Sokolow at 8

, citing

Cortez at 417

. The trial court found that Gibson’s statements and behaviors, in

conjunction with the presence of indicators suggestive of drug-related activity,

provided Sergeant Laubacher with sufficient reasonable suspicion to believe that

Gibson was engaged in drug-related activity. In doing so, the trial court considered

Sergeant Laubacher’s experience and training regarding the patterns associated

with the distribution of narcotics.

{¶23} Based on the evidence before us, we cannot say that the trial court

erred in finding that Sergeant Laubacher had the requisite justification to detain

Gibson beyond the time period necessary to issue a warning for speeding.

{¶24} Alternatively, Gibson argues that Sergeant Laubacher failed to

diligently pursue available means of investigation likely to confirm or dispel his

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suspicions of drug-related activity during the 24 minutes preceding the arrival of

the narcotic-detection canine. In assessing whether a detention is too long in

duration to be justified as an investigative stop, the United States Supreme Court

has held that a court should “examine whether the police diligently pursued a

means of investigation that was likely to confirm or dispel their suspicions

quickly, during which time it was necessary to detain the defendant.” United

States v. Sharpe,

470 U.S. 675, 686

105 S.Ct. 1568

84 L.Ed.2d 605

(1985). In

doing so, we have found the length of a justified traffic stop to be unreasonable

where, prior to a narcotic-detection canine’s arrival, an officer failed to search

defendant’s vehicle after obtaining permission to do so, but rather detained

defendant in the police cruiser and continued to question him as to whether his

vehicle contained drugs. State v. Troutman, 3d. Dist. Marion No. 9-11-17, 2012-

Ohio-407, ¶ 40-44.

{¶25} Unlike the facts presented in Troutman, Sergeant Laubacher was

denied consent to search Gibson’s vehicle. Prior to the narcotic-detection canine’s

arrival, the only means of investigation available to Sergeant Laubacher was to run

computer checks on Gibson’s information. In reviewing the footage of the traffic

stop, it is clear that Sergeant Laubacher pursued this course of action, as evident

by the fact that he questioned Gibson regarding an undisclosed prior arrest in

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Alabama. Despite Gibson’s argument to the contrary, we cannot say that the

conduct condemned in Troutman is present here.

{¶26} Accordingly, Gibson’s sole assignment of error is overruled.

{¶27} Having found no error prejudicial to the appellant, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr

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