[Cite as State v. Brooks,

.]

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

STATE OF OHIO C.A. No. 28070

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANTHONY W. BROOKS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 15 07 2345

DECISION AND JOURNAL ENTRY

Dated: September 28, 2016

SCHAFER, Judge.

{¶1} Defendant-Appellant, Anthony Brooks, appeals the judgment of the Summit

County Court of Common Pleas denying his motion to suppress. For the reasons set forth below,

we affirm.

I.

{¶2} Officer David Holzapfel is an 11-and-a-half-year veteran of the Cuyahoga Falls

Police Department and has been a K-9 handler for eight of those years. As such, Officer

Holzapfel always has a K-9 with him while on duty. Officer Holzapfel was on duty during the

early morning of July 16, 2015. At the time, a K-9 named Diesel was located in the backseat of

his cruiser. Diesel is a narcotics searching K-9 that is trained to detect the presence of

methamphetamine, heroin, cocaine, and marijuana, or any derivatives of those drugs.

{¶3} At roughly 12:55 a.m., Officer Holzapfel pulled his cruiser into a gas station

located at the intersection of Howe Avenue and Main Street in Cuyahoga Falls. Upon pulling 2

into the gas station, Officer Holzapfel observed a tan Chevy Impala with only one functioning

headlight. Officer Holzapfel followed the vehicle as it pulled out of the gas station, turned right

onto Main Street, and then immediately turned left onto Howe Avenue. However, while turning

out of the gas station and onto Main Street, the vehicle crossed over two lanes, in violation of

city ordinance, and immediately drove into the far left-turn lane of traffic. While following the

vehicle, Officer Holzapfel ran the vehicle’s license plate and learned that the vehicle was

registered to Anthony Brooks. Officer Holzapfel recognized Brooks’ name, as the Summit

County Drug Unit had recently informed him that Brooks might be involved in drug-related

activity. Based on the two aforementioned traffic violations, Officer Holzapfel decided to stop

the vehicle.

{¶4} Upon effectuating the traffic stop, Officer Holzapfel called for backup. While the

backup officer was en route, Officer Holzapfel established contact with the driver, who was

identified as Anthony Brooks. Officer Holzapfel also immediately noticed numerous air

fresheners inside of the vehicle, including eight or nine air fresheners hanging from the rearview

mirror and at least one air freshener in every dashboard vent. Officer Holzapfel then returned to

his cruiser and began writing Brooks a citation for his traffic violations. While writing out the

citation, Officer Holzapfel searched several court websites on his cruiser’s computer to see if

Brooks had any criminal history. Officer Holzapfel also observed Brooks staring straight ahead

during the duration of the traffic stop, which he found to be “somewhat unusual.”

{¶5} When Officer Holzapfel was about halfway finished filing out the traffic citation,

the backup police officer arrived at the scene. With the citation still only halfway completed,

Officer Holzapfel returned to Brooks’ vehicle and asked Brooks to exit. Brooks complied.

Officer Holzapfel then engaged Brooks in conversation, asking whether Brooks had a criminal 3

history, whether there were any drugs in the vehicle, or whether there was any reason why a K-9

may indicate that drugs are present within the vehicle. Brooks responded in the negative to each

question. Brooks then gave consent for Officer Holzapfel to search his person. The body search

did not reveal any contraband. Officer Holzapfel then retrieved Diesel from his cruiser and

walked the K-9 around Brooks’ vehicle. Diesel alerted to the presence of drugs near the rear

driver’s-side door of the vehicle. Officer Holzapfel placed Diesel back into his cruiser and

searched Brooks’ vehicle, where he discovered a firearm and two bags of marijuana.

{¶6} The Summit Count Grand Jury subsequently indicted Brooks on the following

four counts: (1) carrying concealed weapons in violation of R.C. 2923.12(A)(2), a fourth-degree

felony; (2) improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), (I),

a fourth-degree felony; (3) receiving stolen property in violation of R.C. 2913.51(A), a fourth-

degree felony; and (4) possession of marijuana in violation of R.C. 2925.11(A)(C)(3), a minor

misdemeanor. Brooks pleaded not guilty to the charges and filed a motion to suppress. The trial

court held a hearing on Brooks’ suppression motion, but ultimately denied the motion.

{¶7} On December 10, 2015, Brooks pleaded no contest to the charges of carrying

concealed weapons and receiving stolen property, both fourth-degree felonies. In exchange, the

State dismissed the remaining counts contained within the indictment. The trial court then

sentenced Brooks to a term of two years of community control.

{¶8} Brooks filed this timely appeal and raises one assignment of error for our review.

II.

Assignment of Error

The trial court erred as a matter of law when it denied the Defendant his constitutional rights against illegal search and seizure based upon his motion to suppress the evidence in this case. 4

{¶9} In his sole assignment of error, Brooks argues that the trial court erred by denying

his suppression motion because Officer Holzapfel lacked both probable cause and a reasonable

suspicion to effectuate the traffic stop and search his vehicle. We disagree.

A. Standard of Review

{¶10} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside,

, 2003–Ohio–5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.”

citing State v. Mills,

(1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Id. at ¶ 8. “Accepting these facts as true,

the appellate court must then independently determine, without deference to the conclusion of

the trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v.

McNamara,

(4th Dist. 1997).

B. Traffic Stop

{¶11} The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, and Article I, Section 10 of the Ohio Constitution protect

individuals from unreasonable searches and seizures. The United States Supreme Court

established the basic standard for reviewing the propriety of a traffic stop through its holdings in

Terry v. Ohio,

(1968), and Delaware v. Prouse,

(1979). Under this

standard, “a law enforcement officer may stop a vehicle when the officer has a reasonable

suspicion, based on specific and articulable facts, that an occupant is or has been engaged in

criminal activity.” State v. Epling,

(9th Dist. 1995). “Reasonable

suspicion is something less than probable cause.”

citing State v. VanScoder,

(9th Dist. 1994). In addition, when “analyzing whether reasonable suspicion existed,

this Court looks to the facts available to the officer at the moment of the seizure or the search and

considers whether those facts would warrant a man of reasonable caution in the belief that the

action taken was appropriate.” (Internal citations and quotations omitted.) State v. Blair, 9th

Dist. Summit No. 24208,

. Reasonable suspicion is based on the totality of

the circumstances. See United States v. Cortez,

, 417–418 (1981). Finally, any

violation of traffic law provides the reasonable suspicion required to make an investigatory stop.

State v. Johnson, 9th Dist. Medina No. 03CA0127-M,

, citing Whren v.

United States,

(1996); State v. Wilhelm,

(1998); Dayton v.

Erickson,

(1996); see also State v. Barbee, 9th Dist. Lorain No. 07CA009183,

.

{¶12} Here, Brooks contends that the basis of the traffic stop was solely the purported

lane violation, not the inoperable headlight. Brooks argues that Officer Holzapfel stopped his

vehicle “without specific articulable facts based upon an illegal lane change, which [he] denies.”

However, Brooks’ representation that the traffic stop was premised solely on the alleged lane

violation is belied by the record. Officer Holzapfel explicitly testified at the suppression hearing

that the traffic stop was based on both the vehicle’s inoperable headlight and the alleged lane

violation. Specifically, Officer Holzapfel testified that after observing both aforementioned

traffic violations, he “was going to conduct a traffic stop on the vehicle; however, by the time

[he] got out to where the [traffic] light was [at the intersection of Howe Avenue and Main

Street], [he] had gotten stuck at the light.” Officer Holzapfel explained that he had to wait for

cross-traffic to pass before he was able to safely turn onto Howe Avenue, catch up with Brooks’

vehicle, and effectuate the traffic stop. Thus, based upon Officer Holzapfel’s testimony, we 6

disagree with Brooks’ assertion that the traffic stop in this case was not based, at least in part, on

the vehicle’s inoperable headlight. As Brooks does not dispute that he was driving a vehicle

with an inoperable headlight, we conclude that the initial stop of Brooks’ vehicle was lawful.

See State v. Evans,

(1993) (stating that the propriety of the initial stop of

the defendant’s vehicle due to a broken headlight “cannot reasonably be disputed.”).

C. Dog Sniff & Warrantless Search of the Vehicle

{¶13} Brooks raises numerous challenges to the search of his vehicle. First, Brooks

contends that the dog sniff utilized by Officer Holzapfel was illegal because “the officer lacked

the requisite probable cause to have the dog search the vehicle.” Next, Brooks contends that the

dog sniff and subsequent search of his vehicle unreasonably prolonged the length of the routine

traffic stop. Lastly, Brooks argues that the officer’s warrantless search of his vehicle was

unconstitutional since it was not supported by probable cause and was carried out without his

consent.

{¶14} At the outset, we determine that Brooks’ arguments concerning the legality of the

dog sniff and the subsequent search of his vehicle are without merit. The use of a drug detection

dog does not constitute a “search” within the meaning of the Fourth Amendment and a law

enforcement officer is not required, prior to a dog sniff, to establish either probable cause or a

reasonable suspicion that drugs are concealed in a vehicle. See Illinois v. Caballes,

(2005). Thus, we conclude that the dog sniff in this matter was constitutionally

permissible. Further, if a trained narcotics dog alerts to the odor of drugs from a lawfully

detained vehicle, an officer has probable cause to search inside of that vehicle for contraband.

State v. Reid, 9th Dist. Lorain No. 12CA010265, 2013–Ohio–4274, ¶ 8, citing State v. Carlson,

(9th Dist. 1995). Accordingly, having already determined that the 7

initial traffic stop in this matter was constitutionally valid, we now conclude that Officer

Holzapfel had probable cause to search the interior of Brooks’ vehicle following Diesel’s

indication to the presence of drugs therein. See Reid at ¶ 21 (concluding that law enforcement

officers had probable cause to search defendant’s vehicle where a trained drug dog alerted twice

to the driver’s side door, indicating the presence of narcotics within the vehicle).

{¶15} We turn now to Brooks’ argument that the dog sniff prolonged the traffic stop

beyond the time reasonably required to complete the mission of the stop. “[W]hen detaining a

motorist for a traffic violation, an officer may delay the motorist for a time period sufficient to

issue a ticket or a warning. This measure includes the period of time sufficient to run a computer

check on the driver’s license, registration, and vehicle plates.” (Internal citations and quotations

omitted.) State v. Ross, 9th Dist. Lorain No. 12CA010196, 2012–Ohio–6111, ¶ 8, quoting State

v. Davenport, 9th Dist. Lorain No. 11CA010136, 2012–Ohio–4427, ¶ 6, quoting State v.

Batchili,

, 2007–Ohio–2204, ¶ 12; see also Rodriguez v. United States, –––

U.S. –––,

(2015) (“A seizure justified only by a police-observed traffic

violation, * * * become[s] unlawful if it is prolonged beyond the time reasonably required to

complete th[e] mission of issuing a [warning] ticket for the violation.”) (Internal quotations and

citation omitted.) “In determining if an officer completed these tasks within a reasonable length

of time, the court must evaluate the duration of the stop in light of the totality of the

circumstances and consider whether the officer diligently conducted the investigation.” Ross at ¶

8, quoting Davenport at ¶ 6, quoting

. “[I]f during the limited scope and duration

of the initial stop an officer encounters additional specific and articulable facts that give rise to a

reasonable suspicion of criminal activity beyond that which prompted the stop, the officer may 8

continue to detain the defendant to investigate those new concerns.” Ross at ¶ 8, quoting State v.

Shook, 9th Dist. Lorain No. 93CA005716,

, *3 (June 15, 1994).

{¶16} Officer Holzapfel testified that a routine traffic stop takes approximately 10 to 15

minutes to complete. Here, Officer Holzapfel effectuated the traffic stop at 12:58 a.m. with

Diesel already located in the cruiser. Brooks handed over his driver’s license shortly thereafter,

at which time Officer Holzapfel observed a number of air fresheners located within the cabin of

the vehicle, including roughly nine air fresheners hanging from the rearview mirror and at least

one air freshener in each vent. Officer Holzapfel testified that this is a tactic commonly “used by

people that are using drugs or transporting drugs [who are] trying to hide the odor [of drugs]

from police officers and/or police k9s.” At this time, Officer Holzapfel was also aware that the

Summit County Drug Unit suspected Brooks of trafficking in drugs. Officer Holzapfel also

testified that Brooks avoided eye contact by staring straight ahead during the duration of the

traffic stop, which he found to be “somewhat unusual.” Officer Holzapfel returned to his cruiser

at 12:59 a.m., where he searched various court dockets on his computer to see if Brooks had any

criminal history while simultaneously filling out a traffic citation. Officer Holzapfel testified

that it takes about two or three minutes to search a driver’s information on the cruiser’s

computer, but that he was “continuously working” during this time.

{¶17} The record indicates that backup arrived on the scene while Officer Holzapfel was

still in the process of filling out the traffic citation. At 1:04 a.m., while he was still in the process

of filling out the traffic citation, Officer Holzapfel reengaged Brooks and asked him to step out

of his vehicle. Once Brooks had exited from the vehicle, Officer Holzapfel asked him some

questions, inquiring if Brooks had any history with drugs or whether there was anything illegal in

his vehicle. Brooks denied ever being involved in drug-related activity or having a criminal 9

history and stated that there was nothing illegal in his vehicle. Brooks also consented to a body

search. At 1:07 a.m., Officer Holzapfel retrieved Diesel from his cruiser and conducted a sniff

around the exterior of Brooks’ vehicle. Diesel alerted to the odor of narcotics inside of Brooks’

vehicle less than one minute later.

{¶18} In our judgment, these facts constitute competent credible evidence to support the

trial court’s determination that Officer Holzapfel did not impermissibly extend the duration of

the stop. Under the totality of the circumstances, we determine that Officer Holzapfel’s

observation of multiple air fresheners within Brooks’ car, coupled with his personal knowledge

that the Summit County Drug Unit already suspected Brooks of trafficking in drugs, was

sufficient to provide Officer Holzapfel with reasonable suspicion that Brooks was involved in

criminal activity beyond that which prompted the initial traffic stop. This information also

provided Officer Holzapfel with reasonable suspicion that Brooks’ vehicle likely contained

drugs. See State v. Bennett, 8th Dist. Cuyahoga No. 86962,

(concluding that the officers’ observation of an air freshener on the front vent of the defendant’s

vehicle, along with the officers’ knowledge that the defendant had recently been questioned by

the DEA, among other facts, was sufficient to give officers reasonable suspicion of criminal

activity such that the officers were justified in briefly extending the duration of the traffic stop to

conduct a canine sniff of the defendant’s vehicle). As such, we conclude that Officer Holzapfel

was justified in detaining Brooks for a short period of time after the initial traffic stop to conduct

a dog sniff of the vehicle.

{¶19} At the time of the dog sniff, no traffic citation had yet been issued. Additionally,

there is no evidence indicating that Officer Holzapfel was not diligent and timely in the exercise

of his duties, especially considering that the dog sniff occurred less than ten minutes after Brooks 10

was initially stopped. As a result, we cannot reverse the trial court’s denial of the motion to

suppress on the basis that the duration of the traffic stop was unconstitutionally extended. See

Batchili,

, 2007–Ohio–2204, at ¶ 14 (concluding that there “simply [was] no

evidence to suggest that [the defendant]’s detention for the traffic violation was of sufficient

length to make it constitutionally dubious” where the drug dog alerted approximately nine

minutes into stop and the traffic citation had not yet been completed); State v. Jackson, 9th Dist.

Lorain No. 14CA010555, 2015–Ohio–2473, ¶ 29-30 (determining that traffic stop of eight

minutes was not impermissibly extended for dog sniff that occurred after the defendant was

removed from the vehicle, searched for weapons, and placed in the back of the police cruiser).

{¶20} Brooks’ assignment of error is overruled.

III.

{¶21} Brooks’ sole assignment of error is overruled and the judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

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 Summit, 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 11

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 Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. WHITMORE, J. CONCUR.

APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.