State v. Hollins

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 3rd District Court of Appeals » 2011 » State v. Hollins

State v. Hollins

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-5588

Case Date: 10/31/2011

Plaintiff: State

Defendant: Hollins

Preview:[Cite as State v. Hollins, 2011-Ohio-5588.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE,                                 CASE NO.   5-10-41
v.
KENNETH HOLLINS,                                    O P I N I O N
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 257
Judgment Affirmed
Date of Decision:    October 31, 2011
APPEARANCES:
Dennis C. Belli   for Appellant
Mark C. Miller and Drew A. Wortman   for Appellee

Case No. 5-10-41
ROGERS, P.J.
{¶1} Defendant-Appellant, Kenneth Hollins, appeals the judgment of the
Court of Common Pleas of Hancock County sentencing him to a nine-year prison
term.   On appeal, Kenneth contends that the trial court erred in denying his motion
to suppress, and that he received ineffective assistance of counsel.   Based on the
following, we affirm the judgment of the trial court.
{¶2} In December 2009, the Hancock County Grand Jury indicted Kenneth
on a single count of possession of a controlled substance, heroin, in violation of
R.C.  2925.11(A), with the specification that Kenneth is a major drug offender
pursuant to R.C. 2941.1410, a felony of the first degree.   The indictment arose
from the discovery of heroin in a vehicle initially stopped for speeding.
{¶3} Later that month, Kenneth entered a plea of not guilty to the sole
count in the indictment.
{¶4} In March and April  2010, Kenneth filed a motion to suppress and
supplemental brief in support of his motion to suppress, respectively.   Kenneth
argued, in pertinent part, that the officer, without reasonable articulable suspicion
of  criminal  activity,  prolonged  the  traffic  stop  beyond  the  time  reasonably
necessary to effectuate the initial purpose of the traffic stop, i.e., issuance of a
warning or citation for speeding.   As a result, Kenneth argued that any evidence
obtained outside the time which was reasonably necessary to issue a warning or
-2-

Case No. 5-10-41
citation  for  speeding  must  be  suppressed  as  the  discovery  of  such  evidence
occurred as a result of an unlawful seizure.
{¶5} In August 2010, the matter proceeded to a suppression hearing during
which the following evidence and testimony was adduced.
{¶6} Trooper Jacob Fletcher testified that he is employed by the Ohio State
Highway Patrol (“OSHP”) and has been stationed at the Hancock County OSHP
post for eight years.   On December 12, 2009, at approximately 3:45 p.m., Trooper
Fletcher was sitting stationary on Interstate 75 in the southbound rest area, near
mile marker 153, monitoring traffic.   Around this time Trooper Fletcher caught
sight of a vehicle traveling southbound, at what he perceived to be a speed greater
than the posted limit.   To verify the vehicle’s speed Trooper Fletcher employed a
laser, which indicated that the vehicle was traveling seventy-four (74) miles per
hour.   A second laser reading, taken shortly after the first reading, indicated that
the vehicle had decelerated to fifty-nine (59) miles per hour.   Trooper Fletcher left
his position and caught up to the vehicle.    Prior to initiating the traffic stop,
Trooper Fletcher pulled alongside the vehicle and witnessed the driver driving
with both hands on the wheel and looking straight forward, a behavior Trooper
Fletcher  considered  to  be  a  criminal  indicator.    Thereafter,  Trooper  Fletcher
initiated a traffic stop of the vehicle at approximately 3:47 p.m.   Judgment Entry,
p. 3.   Upon initiating the traffic stop Trooper Fletcher ran the vehicle’s license
-3-

Case No. 5-10-41
plate and discovered that the vehicle was a rental and that it had not been reported
stolen.
{¶7} Trooper Fletcher continued that upon approaching the driver’s door he
informed the driver, who was later identified as Darrell Hollins, that he was being
stopped for speeding.   Trooper Fletcher asked Darrell for his driver’s license, the
vehicle’s  registration,  and  proof  of  insurance.    Darrell  produced  his  driver’s
license and a rental agreement.   At this time, Trooper Fletcher noticed three to four
cell  phones  and  power  cords  lying  in  the  vehicle’s  center  console,  which  he
considered to be a criminal indicator as there were only two individuals in the
vehicle.    Upon  receiving  Darrell’s  driver’s  license  and  the  rental  agreement,
Trooper Fletcher asked Darrell if he would step out of the vehicle, to which
Darrell agreed.   Trooper Fletcher explained that he customarily asks the driver to
step out of the vehicle during traffic stops when passengers are present so he can
discuss the violation with the driver without passenger involvement.   Upon exiting
the  vehicle,  Trooper  Fletcher  asked  Darrell  whether  he  had  any  weapons  or
contraband on his person, to which Darrell responded in the negative.   Trooper
Fletcher then asked Darrell if he would have a seat in the front passenger seat of
the patrol car, and whether he would consent to a search of his person for weapons
before he sat in the patrol car.   Darrell consented to both requests.
-4-

Case No. 5-10-41
{¶8} Trooper  Fletcher  continued  that  upon  entering  the  patrol  car  he
informed  Darrell  about  his  speed  and  asked  whether  he  had  any  questions.
Immediately thereafter, Trooper Fletcher began to conduct checks of Darrell’s
driver’s  license  and  the  vehicle’s  information.    Darrell  had  a  valid  Michigan
driver’s license.   Upon reviewing the rental agreement, however, Trooper Fletcher
noticed that Darrell’s name did not appear on the rental agreement.   On re-direct,
Trooper Fletcher testified about the significance of the renter’s absence from a
rental vehicle.
Q:                                                                                         [Defense counsel] questioned you with regards to not having
any knowledge when you initially stopped this vehicle that was
stolen, that it was wanted, that it was used in a crime, that’s
correct, right?
A:     Yes.
Q:     Did your opinion change with regards to the automobile
that  you  had  stopped  once  you  saw  the  rental  agreement,  I
believe it’s State’s Exhibit 1, and [the] only listed driver was not
present?
A:     Yes.
Q:   During your 8 years as a State Patrol Officer for the Ohio
State Highway Patrol and numerous traffic stops you’ve made,
have you ever encountered an individual that’s told you he’s had
permission to drive a rental vehicle and you found that to be
contrary to the evidence that you’ve later collected?
A:     Yes.
-5-

Case No. 5-10-41
Hearing Tr., pp. 68-69.   Trooper Fletcher testified that the absence of the named
renter, or other authorized driver, from a rental vehicle was a  “big” criminal
indicator.  Id. at p. 68.
{¶9} Trooper Fletcher, in an effort to determine why Darrell was driving a
vehicle rented under a third party’s name, asked Darrell several basic questions, to
wit:  where  were  they  coming  from;  where  were  they going;  who  rented  the
vehicle; why did they have the vehicle.   According to Trooper Fletcher, Darrell
stated that he and his brother, Kenneth, were driving from Detroit to Dayton to
pick up their cousin, Troy Kyles, who rented the vehicle.   Darrell further stated
that he and Kenneth had traveled to Dayton with Kyles the previous night, and that
he and Kenneth returned to Detroit the same night because he had to work in the
morning.   Trooper Fletcher testified that he found Darrell’s story to be suspect and
a criminal indicator.   Specifically, Trooper Fletcher could not rationalize why an
individual would drive from Detroit to Dayton, return to Detroit the same day for
work, and return to Dayton the following day to pick up an acquaintance.
{¶10} After Darrell explained his recent and current travel plans, Trooper
Fletcher asked Darrell whether he was listed as an additional driver.    Darrell
responded  that  he  should  have  been  listed  as  an  additional  driver.    Darrell,
however, produced no documentation to substantiate his claim, nor did he explain
why he should have been listed as an additional driver.
-6-

Case No. 5-10-41
{¶11} After speaking with  Darrell,  Trooper  Fletcher requested  a canine
unit, which occurred at approximately 3:51 p.m.   Judgment Entry, p. 3.
{¶12} After requesting the canine unit, Trooper Fletcher returned to the
vehicle to speak with the vehicle’s passenger, Kenneth.   Trooper Fletcher asked
Kenneth for identification, which Kenneth was unable to produce.   Accordingly,
Trooper  Fletcher  took  down  Kenneth’s  name  and  date  of  birth  to  verify  his
identity.   Trooper Fletcher also asked Kenneth about his and Darrell’s travel plans
and who rented the vehicle.   According to Trooper Fletcher, Kenneth stated that he
and  Kyles  had  traveled  from  Detroit  to  Dayton  the  previous  night  to  party.
Kenneth  further  stated  that  Darrell  did  not  accompany  them  to  Dayton  the
previous night, and that Kyles remained in Dayton while he returned to Detroit
that night.   After speaking with Kenneth, Trooper Fletcher returned to his patrol
car.
{¶13} Upon  returning  to  his  patrol  car,  Trooper  Fletcher  again  asked
Darrell about his travel plans in an attempt to see whether his story would change.
Darrell’s explanation of his travel plans did not change.   Trooper Fletcher testified
that  the  inconsistencies  between  Darrell  and  Kenneth’s  stories  were  criminal
indicators.
{¶14} Trooper  Fletcher  continued  that  due  to  a  lack  of  documentation
demonstrating  that  Darrell  was  an  authorized  driver  and  pursuant  to  OSHP
-7-

Case No. 5-10-41
operating procedure he began the process of contacting the vehicle’s owner, in this
case  Avis  Car  Rental  Company  (“Avis”).    To  that  end,  Trooper  Fletcher,  at
approximately 3:59 p.m., requested his dispatcher, Tracy Koenig, to contact Avis
to  determine  whether  anyone  other  than  Kyles  could  operate  the  vehicle.
Judgment Entry, p.  3.    At approximately  4:02 p.m., Koenig informed Trooper
Fletcher that there were no additional drivers associated with the rental agreement,
but that there may be a form attached to the rental agreement listing additional
drivers.    Upon inspection of  the rental agreement, State’s Exhibit  1, Trooper
Fletcher found no additional forms listing additional drivers, and relayed the same
to Koenig.   At approximately 4:04 p.m., Koenig informed Trooper Fletcher that
neither Darrell nor Kenneth was permitted to drive the vehicle, and that Avis
wanted the vehicle to be detained.   Judgment Entry, p. 4.1
{¶15} At approximately  4:05 p.m., the canine unit arrived on scene and
conducted an exterior sniff of the vehicle.   Id.   The canine alerted to the driver side
of the vehicle.   After the canine alerted to the vehicle, Kenneth was asked to exit
the vehicle and Trooper Fletcher conducted a search of his person, which revealed
a small plastic bag of  “green leafy material.”    Hearing Tr., p.  30.    Thereafter,
Trooper Fletcher placed Kenneth in the back of his patrol car, and conducted a
thorough search of the rental vehicle.   Trooper Fletcher searched the passenger
1 Upon review of the video recording of the traffic stop, admitted as State’s Exhibit 3, Koenig informs
Trooper Fletcher that Avis wants the vehicle to be detained.   See, also, Hearing Tr., p. 33.
-8-

Case No. 5-10-41
compartment first and discovered the presence of a blunt in the ashtray.   Trooper
Fletcher then proceeded to search the vehicle’s rear hatch compartment, or trunk,
where  he  discovered  a  plastic  bag  containing  approximately                        250  grams  of
suspected heroin.
{¶16} Trooper Fletcher continued that he issued Darrell a warning for his
speed.   Trooper Fletcher testified that if the driver is the owner of the car and the
driver’s license matches the registration, issuance of a warning for a speeding
violation takes approximately 8-10 minutes.   Where, however, the owner of the
vehicle is not present then issuance of a warning for a speeding violation can vary
greatly in time.
{¶17} Tracy  Koenig  testified  that  she  is  employed  by  the  OSHP  as  a
dispatcher and has held that position for fourteen years.   Koenig testified that she
entered the information associated with the dispatch report, or CAD log, offered as
State’s Exhibit Two.   Koenig testified that Trooper Fletcher requested her to call
Avis and inquire whether any other individuals, besides Kyles, were authorized to
operate the rental vehicle.   Accordingly, Koenig contacted Avis at 3:59 p.m. and
spoke with an Avis representative, whom she identified as Fred, I.D. number
10387.   Particularly, Koenig entered the following entry at 4:04 p.m.: “PX to Avis
checking status of rental & auth[orized] drivers.   Troy Kyles is the renter and no
additional drivers are listed.   If no form attached to rental agreement then no one
-9-

Case No. 5-10-41
was adde[d] later.”   State’s Exhibit 2, p. 1.   Koenig further testified that the Avis
representative with whom she spoke advised her to detain the vehicle.
{¶18} After Koenig’s testimony the State rested.
{¶19} The defense called Fred Nehmeh as their first witness.    Nehmeh
testified that he is employed with Avis in Detroit.   Nehmeh testified that Avis
offers corporate accounts to its business customers.   One of the attributes of a
corporate account is that employees may drive the rental vehicle if their use of the
vehicle is incidental to the business and the Corporate AWD number is printed on
the rental agreement.   See State’s Exhibit C; Judgment Entry, p. 6.
{¶20} Nehmeh continued that he was employed with Avis on December 12,
2009.   During his shift he received a phone call from the OSHP inquiring who
may operate the rental vehicle stopped by Trooper Fletcher.   Nehmeh testified:
A:   First I asked her for the car number, or the license plate
number, which I got from them.   I pulled up the contract and
they asked me what’s the name on the contract.   So I told them it
was Troy Kyles.   He’s the one that rented the car.   Then they
asked me (sic) anybody else listed as additional driver.   I’m like,
there’s  nobody  listed  here,  but  in  our  policy  coworker  and
spouses automatically drive the car.   That’s the Avis corporate
policy.
Hearing Tr., p. 109.
{¶21} On cross-examination Nehmeh testified that he did not inform the
OSHP officer whether the account was a personal or corporate account.   Nehmeh
-10-

Case No. 5-10-41
testified that, typically, additional drivers would appear under the renter’s name, in
this case Kyles’ name.   On re-direct, Nehmeh testified that he did not make any
statements to the OSHP dispatcher about detaining or releasing the vehicle.
{¶22} Troy  Kyles  testified  that  he  rented  the  vehicle  in  question  on
December  11,  2009, and drove from Detroit to Dayton on that same day with
Darrell and Kenneth.   Kyles testified that he gave Darrell permission to drive the
rental vehicle back to Detroit on the night of December 11, 2009, because Darrell
had to work the following morning.   Kyles further testified that Darrell was going
to return to Dayton the following day to pick him up and return to Detroit.
{¶23} Shortly after the suppression hearing the trial court filed its judgment
entry.   Based on the evidence and testimony adduced during the hearing the trial
court made the following findings of fact:
On Dec[ember]  12,  2009 at  3:47 pm, Defendant Hollins was a
passenger in a vehicle stopped for speeding near milepost 153 on
Interstate 75 in Hancock County.   Trooper Fletcher checked the
vehicle’s speed by  lazer  (sic) and found  it to be traveling at
seventy-four (74) mph in a sixty-five (65) mph zone.   During the
course  of  this  stop,  Trooper  Fletcher  asked  for  the  driver’s
license and registration.    The driver was identified as Darrell
Hollins.    The driver gave Trooper Fletcher a valid Michigan
driver’s license and a rental agreement.   The rental agreement
did not list the driver as a permissible driver and listed only
Troy Kyles as a permissible driver.   Trooper Fletcher then asked
Darrell Hollins to exit the vehicle.   Upon exiting the vehicle, the
driver consented to being frisked.   No contraband was found on
the  person  of  Darrell  Hollins  and  he  was  placed  in  Trooper
-11-

Case No. 5-10-41
Fletcher’s vehicle while the defendant remained in the rental
car.
Trooper Fletcher then asked Darrell Hollins about  his travel
destination.   Darrell Hollins responded that he was driving from
Detroit  to  Dayton  with  his  brother,  the  defendant  Kenneth
Hollins, to pick up his cousin, and that he had been in Dayton
the night before.   Trooper Fletcher then requested that a canine
unit  report  to  the  site  of  the  traffic  stop  and  that  the  post
dispatcher contact the Avis car rental company to determine if a
non-listed driver was permitted to operate the vehicle.    It is
unclear which of those two actions took place first.   However, the
CAD Log, State’s Exhibit 2, (which only keeps a record of when
the Dispatcher types the Officer’s actions into the computer  -
not when the actions actually occurred,) lists the request for a
canine unit at  3:51 pm and the request for clarification from
Avis at 3:59 pm.
Trooper  Fletcher  then  returned  to  the  stopped  vehicle  to
question the defendant Kenneth Hollins.   When asked his travel
destination, defendant replied that he was traveling to pick up
his cousin but that the driver had not been in Dayton the night
before.   Trooper Fletcher then returned to his cruiser to verify
the driver’s statements that he had been in Dayton the night
before.   The driver again said he was in Dayton the previous
night.
At 4:04 pm, according to the CAD Log, Trooper Fletcher was
informed  that  neither  the  driver  nor  the  defendant  was
permitted to drive the vehicle under the Avis rental agreement.
(Again,  the  CAD  Log  only  represents  when  the  dispatcher
logged the occurrence in the computer, not the actual time it
occurred.)   According to the CAD Log, the canine unit arrived
on scene no later than 4:05 pm - 18 minutes into the traffic stop.
The  canine  then  was  walked  around  the  motor  vehicle  and
alerted on the stopped vehicle while defendant was still in the
passenger seat.   Defendant was then ordered out of the vehicle
and a plastic bag of green, leafy substance was found on his
-12-

Case No. 5-10-41
person.   In a subsequent search of the vehicle, Trooper Fletcher
found a plastic bag containing what appeared to be heroin, in
the trunk of the rental car.
During the traffic stop at hand, Trooper Fletcher was given a
rental agreement that did not list the driver as being allowed to
operate the vehicle.   Also, there was no attachment or addendum
on the agreement indicating the driver was permitted to operate
the vehicle.   In addition, the patrol post dispatcher had given
Trooper Fletcher no indication that Avis Car Rental had verified
that the driver was permitted to drive the rental vehicle.    As
such, Trooper Fletcher was being “reasonable and diligent” by
investigating whether the driver was allowed to be operating the
vehicle.     The  CAD  Log  shows  Trooper  Fletcher  requested
dispatch to contact the rental car agency no later than 3:59 pm.
Furthermore, no later than 4:04 pm, Trooper Fletcher was told
that the driver was not permitted to drive the rental vehicle.
Trooper  Fletcher  also  testified  that,  while  stops  to  issue  a
warning involving the owner of the car take eight to ten minutes,
stops  where  the  vehicle  owner  is  not  present  vary  greatly  in
length.   Trooper Fletcher further testified that, throughout the
stop,  he  was  conducting  checks  of  the  defendant’s  driver’s
license and identity in addition to waiting to see if the driver was
permitted to drive the rental vehicle.
Defendant,    through    counsel,    contends    that    an    Avis
representative told the dispatcher that co-workers are permitted
to drive a vehicle rented under a corporate policy.   Defendant
also  contends  that  he  and  the  driver  were  employees  of  the
corporation  under  which  the  car  was  rented.    Regardless  of
Avis’ actual policy, there is no evidence that such information
was   passed   along   to   Trooper   Fletcher.                          Furthermore,
Defendant’s Exhibit C, an e-mail from an Avis representative,
explains  that  for  employees  to  drive  a  rental  car  under  a
corporate  account,  the                                                 “corporate  AWD  number”  must  be
-13-

Case No. 5-10-41
printed on the rental agreement.   Troy Kyles’ AWD number,
identified on Defendant’s Exhibit D as “Z391037,” is nowhere to
be found on the rental agreement.   There is also no evidence that
the  rental  agreement  can  be  identified  as  under  a  corporate
policy, as it only listed the name “Troy Kyles” as a driver, not a
corporation.
Judgment Entry, pp. 3-6.   Based on these findings the trial court concluded that
Trooper  Fletcher’s                                                                      “investigation  during  the  traffic  stop  was  reasonable  and
diligent,” and that the “extension of the traffic stop had not been unconstitutionally
prolonged at the time of the canine sweep.”   Id. at p. 7.   Accordingly, the trial
court denied Kenneth’s motion to suppress.
{¶24} In  September                                                                      2010,  the  State  dismissed  the  sole  specification.
Thereafter,  Kenneth  entered  a  plea  of  no  contest  to  the  sole  count  in  the
indictment, which the trial court accepted and entered a finding of guilt.
{¶25} In December  2010, the matter proceeded to sentencing.    The trial
court sentenced Kenneth to a nine-year prison term on the sole count.
{¶26} It  is  from  this  judgment  that  Kenneth  appeals,  presenting  the
following assignments of error for our review.
Assignment of Error No. I
THE   COURT   OF   COMMON   PLEAS   COMMITTED
REVERSIBLE  ERROR  WHEN  IT  DENIED  DEFENDANT-
APPELLANT’S MOTION TO SUPPRESS A QUANTITY OF
HEROIN THAT WAS SEIZED BY THE HIGHWAY PATROL
DURING  A  WARRANTLESS  SEARCH  OF  THE  LOCKED
TRUNK   OF   A   VEHICLE   IN   WHICH   HE   WAS   A
-14-

Case No. 5-10-41
PASSENGER, IN VIOLATION OF HIS RIGHTS UNDER THE
UNITED  STATES  CONSTITUTION  AND  ARTILE  I,  AND
SECTION 14 OF THE OHIO CONSTITUTION.
Assignment of Error No. II
DEFENSE  COUNSEL’S  FAILURE  TO  CHALLENGE  THE
HIGHWAY  PATROL  TROOPER’S  EXTENSION  OF  THE
SCOPE   OF   THE   SEARCH   FROM   THE   PASSENGER
COMPARTMENT  TO  THE  LOCKED  TRUNK  OF  THE
VEHICLE  DEPRIVED  DEFENDANT-APPELLANT  OF  HIS
SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error No. I
{¶27} In his first assignment of error, Kenneth contends that the trial court
erred in denying his motion to suppress.   Specifically, Kenneth contends that the
search of the rental vehicle was unconstitutional because it was the result of an
unconstitutionally prolonged detention, and that the canine alert on the passenger
compartment of the vehicle did not give Trooper Fletcher probable cause to search
the vehicle’s trunk.   We disagree.
{¶28} “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 (2000), 137 Ohio App.3d 847, 850.   Therefore, when
an appellate court reviews a trial court’s ruling on a motion to suppress, it must
-15-

Case No. 5-10-41
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, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20.   The appellate
court must then review the application of the law to the facts de novo.   Roberts,
supra, citing Burnside, 2003-Ohio-5372, at ¶8.
{¶29} Initially, we note that Kenneth does not challenge the original basis
for the traffic stop, i.e., the speeding violation.    Rather, Kenneth, in his first
assignment of error, challenges the duration of the stop and the scope of the
search.   Close review of Kenneth’s motion to suppress, however, reveals that he
did  not  challenge  the  scope  of  the  search.    Rather,  he  only  challenged  the
constitutionality of the stop as it relates to its duration.   Nevertheless, Kenneth
now challenges the scope of the search as though the matter was adjudicated
below.   Because Kenneth did not raise the scope of the search below, a fact he
attributes to the ineffectiveness of trial counsel in his second assignment of error,
we will not address the same in his first assignment of error.   Rather, we will
consider the matter in Kenneth’s second assignment of error.   Accordingly, we
now consider whether the duration of the stop was unconstitutionally prolonged.
{¶30} The stopping of a vehicle and the detention of its occupants is a
seizure within the meaning of the Fourth Amendment.   State v. Johnson, 3d Dist.
No. 5-07-43, 2008-Ohio-1147, ¶16, citing Delaware v. Prouse (1979), 440 U.S.
-16-

Case No. 5-10-41
648, 653, 99 S.Ct. 1391, 1396.   Where the defendant challenges the duration of the
seizure, the government must present facts that justify its duration.   State v. Hobbs,
9th Dist. No. 24764, 2010-Ohio-420, ¶11, citing Florida v. Royer (1983), 460 U.S.
491, 500, 103 S.Ct. 1319.   When one has been detained so that the police may
investigate a traffic violation, the police may detain the individual for the length of
time  necessary  to  check  the  driver’s  license,  vehicle’s  registration,  and  the
vehicle’s license plate.   State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204,
¶12.                                                                                      “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.”   Id., quoting State v. Carlson (1995), 102 Ohio App.3d 585,
598.
{¶31} If, during the investigation of the events that gave rise to the initial
stop, the officer discovers additional facts from which it is reasonable to infer
additional criminal activity; the officer is permitted to lengthen the duration of the
stop to investigate such suspicions.   State v. Williams, 9th Dist. No. 09CA009679,
2010-Ohio-3667, ¶15, citing Batchili, 2007-Ohio-2204, at ¶15; State v. Robinette,
80 Ohio St.3d 234, 241, 1997-Ohio-343.
{¶32} In addition, “[t]he use of a drug-detection dog does not constitute a
‘search,’ and an officer is not required, prior to a dog sniff, to establish either
-17-

Case No. 5-10-41
probable cause or a reasonable suspicion that drugs are concealed in a vehicle.”
State  v.  Chambers,  3d  Dist.  No.  5-10-29,  2011-Ohio-1305,  ¶25,  discretionary
appeal denied, 129 Ohio St.3d 1451, 2011-Ohio-4217, quoting State v. Whitman,
184 Ohio App.3d 733, 2009-Ohio-5647, ¶9, citing Illinois v. Caballes (2005), 543
U.S. 405, 409, 125 S.Ct. 834; United States v. Place (1983), 462 U.S. 696, 707,
103 S.Ct. 2637.   Consequently, a law enforcement officer needs no suspicion to
request a canine sniff nor does the officer need suspicion to conduct an exterior
canine sniff  of  the vehicle as long as it is done contemporaneously with the
legitimate activities associated with the traffic violation.   State v. Keller, 2d Dist.
No. 17896, 2000 WL 20873, *5; Carlson, 102 Ohio App.3d at 594; Chambers,
2011-Ohio-1305, at ¶25, citing Whitman, 2009-Ohio-5647, at ¶9, citing Caballes,
543 U.S. at 409.
Investigation of Rental Agreement during Traffic Stop
{¶33} Kenneth  contends  that  Batchili’s  holding  concerning  permissible
background checks performed during a stop for a traffic violation does not extend
to an investigation of a rental agreement.   Specifically, Kenneth contends that an
officer acts outside the investigatory scope set forth in Batchili when he or she
makes or attempts to make contact with the vehicle’s registered owner to ascertain
whether  the  vehicle’s  occupants  are  authorized  to  operate  the  vehicle  in  the
absence of the renter or listed driver.   We disagree.
-18-

Case No. 5-10-41
{¶34} This Court and others have found that an officer, while conducting a
stop for a traffic violation, may, as part of his or her investigation, review a rental
agreement, if  one exists, in addition to conducting background  checks of  the
driver’s license, vehicle registration, and license plate.   In State v. Chambers, a
case factually similar to the present case, this Court found that the duration of the
stop  was  not  unconstitutionally  prolonged  for  the  purpose  of  conducting  an
exterior canine sniff of a rental vehicle because the sniff coincided with a pending
review of a rental agreement to verify whether the defendant was authorized to
operate the rental vehicle.   Chambers, 2011-Ohio-1305, at ¶26;   see, also, State v.
Bell,                                                                                     12th Dist. No. CA2001-06-009,  2002-Ohio-561,  *3, discretionary appeal
denied, 95 Ohio St.3d 1486, 2002-Ohio-2625.
{¶35} Federal courts have also held that an officer, while conducting a stop
for a traffic violation, may review a rental agreement in addition to conducting
background checks of the driver’s license and the vehicle’s registration.   U.S. v.
Kitchell  (C.A.10,  2011),  653 F.3d  1206,  1218  (determining that examining the
rental agreement and inquiring why the driver was operating a vehicle leased to
another individual was reasonably related to the initial purpose of the stop); U.S. v.
Bell (C.A.6., 2009) 555 F.3d 535, 542, (determining that questioning the driver
whether he was authorized to operate the rental vehicle in the absence of the renter
was within the initial purpose of the stop); U.S. v. Bonilla  (C.A.6,  2009),  357
-19-

Case No. 5-10-41
Fed.Appx. 693, 696 (finding that requesting a driver’s license, registration, rental
papers, running a computer check thereon, and issuing a citation do not exceed the
scope of a traffic stop for a speeding violation), citing U.S. v. Hill (C.A.6, 1999),
195 F.3d 258, 269; U.S. v. Garrido-Santana (C.A.6, 2004), 360 F.3d 565, 572-73
(finding that the officer did not unconstitutionally prolong the stop for a traffic
violation to verify whether the driver could operate the vehicle, as the rental
agreement did not contain the driver’s name, and the driver’s signature on the
agreement was illegible); U.S. v. Brigham (C.A.5, 2004), 382 F.3d 500, 507-08
(finding no constitutional impediment to a law enforcement officer’s request to
examine a driver’s license, vehicle registration, or rental papers during a traffic
stop and to run a computer check thereon); see, also U.S. v. Roberts (S.D. Ohio
2005), 492 F.Supp.2d 771, 775; U.S. v. Randall (C.A. 6, 2003), 62 Fed.Appx. 96,
101.
{¶36} In light of the foregoing, we find that the holding in Batchili should
not  be  read  so  narrowly  as  to  preclude  an  officer  from  reviewing  a  rental
agreement during a stop for a traffic violation.   Furthermore, we find that it is
neither necessary nor prudent to proscribe the exact degree to which an officer
may investigate irregularities or inconsistencies in a rental agreement.   Rather, we
find that the reasonableness of an officer’s investigation of irregularities in a rental
agreement depends upon the totality of the circumstances surrounding the stop.
-20-

Case No. 5-10-41
See Pennsylvania v. Mimms (1977), 434 U.S. 106, 108-09, 98 S.Ct. 330 (“The
touchstone  of  our  analysis  under  the  Fourth  Amendment  is  always                    ‘the
reasonableness in all the circumstances of the particular governmental invasion of
a citizen’s personal security.’ ”), quoting Terry v. Ohio (1968), 392 U.S. 1, 19, 88
S.Ct. 1868.
Driver’s Presence in Patrol Car During Stop
{¶37} Kenneth  also  contends  that  the  stop,  as  it  related  to  the  traffic
violation, was complete the moment Darrell was asked to sit in the front seat of the
patrol car.   Consequently, Kenneth contends, albeit indirectly, that his continued
seizure  beyond  the  moment  Darrell  was  asked  to  sit  in  the  patrol  car  was
unconstitutional because the officer was prolonging the purpose of the stop for
reasons  other  than  investigating  the  traffic  violation  and  without  reasonable
articulable suspicion of past or present criminal activity.   We disagree.
{¶38} The mere act of having the driver sit in the patrol car during a traffic
stop neither terminates nor abandons the initial purpose of the stop.   An officer
may, during a routine traffic stop, have the driver sit in his or her patrol car.   State
v. Lozada, 92 Ohio St.3d 74, 76, 2001-Ohio-149, citing Carlson, 102 Ohio App.3d
at                                                                                          595-96;  Bay  Village  v.  Lewis,   8th  Dist.  No.   87416,  2006-Ohio-5933,  ¶4.
Whether the driver’s presence in the patrol car unconstitutionally prolongs the stop
is dependent upon the purpose of having the driver in the patrol car, e.g., was the
-21-

Case No. 5-10-41
purpose to facilitate background checks and issuance of the citation or was it a
dilatory tactic.   In determining the purpose of having the driver sit in the patrol car
the court must consider the totality of the circumstances.
Totality of the Circumstances
{¶39} The   record   herein   demonstrates   that   the   stop   was   not
unconstitutionally prolonged for the purpose of conducting a canine sniff.   Upon
stopping the vehicle, Trooper Fletcher immediately began to conduct a routine
traffic stop, asking Darrell for his driver’s license, the vehicle’s registration, and
proof of insurance.   In return, Trooper Fletcher received Darrell’s driver’s license
and a rental agreement.
{¶40} After receiving Darrell’s license and the rental agreement, Trooper
Fletcher asked Darrell to join him in the front seat of his patrol car, to which
Darrell  consented.    Based  on  Trooper  Fletcher’s  testimony  and  independent
review of the video recording of the stop, Darrell’s presence in the patrol car
facilitated the investigation and issuance of the subsequent warning.
{¶41} Upon  entering  the  patrol  car,  Trooper  Fletcher  began  checking
Darrell’s driver’s license and spoke with Darrell about his speed and travel plans.
During this time, Trooper Fletcher noticed that the rental agreement did not list
Darrell as the renter or an authorized driver.   Due to this inconsistency it was
reasonable for Trooper Fletcher to conduct further investigation.   Carlson,  102
-22-

Case No. 5-10-41
Ohio App.3d at 598 (determining that it was reasonable for a trooper to investigate
why the name and state listed on the vehicle’s registration were different from that
of defendant’s driver’s license).   First, Trooper Fletcher endeavored to resolve the
matter via discourse with Darrell and Kenneth.   Apparently unsatisfied with their
inconsistent  explanations,  Trooper  Fletcher,  pursuant  to  OSHP  operating
procedure, requested dispatch to contact Avis to determine whether Darrell or
Kenneth were in lawful possession of the vehicle and authorized to operate the
same.   In light of the facts known to Trooper Fletcher at the time of the request,
we find that Trooper Fletcher’s investigation was reasonable and not outside the
initial investigative scope of the stop.   See Chambers, 2011-Ohio-1305, at ¶26;
Bell, 2002-Ohio-561, at *3.   Several minutes later Trooper Fletcher was advised
that Avis wanted the vehicle to be detained, as neither Darrell nor Kenneth was
authorized to operate the vehicle.2
{¶42} Once Trooper Fletcher was informed that Avis wanted the vehicle to
be  detained,  further  detention  of  the  vehicle  and  its  occupants  became
inconsequential   in   determining   whether   the   duration   of   the   stop   was
unconstitutionally prolonged.   The moment Trooper Fletcher was informed that
2 Based on our reading of the transcript and the trial court’s judgment entry it appears as though the issue of
whether  Nehmeh  informed  the  OSHP  to  detain  the  rental  vehicle  became  an  issue  of  credibility,  as
evidence was presented on the matter by both parties.   Since a trial court is in the best position to resolve
issues of credibility, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, and there is competent,
credible evidence to support the trial court’s finding that Nehmeh informed the OSHP to detain the rental
vehicle, we will not disturb this finding on appeal.
-23-

Case No. 5-10-41
Avis wanted the vehicle to be detained Darrell and Kenneth were no longer being
seized based solely on the initial traffic violation or Trooper Fletcher’s suspicions.
Rather, Darrell and Kenneth’s continued presence was the result of the owner’s
request to detain the  vehicle, and as such  their continued presence no longer
implicated the Fourth Amendment.   Consequently, the fact that the canine unit
arrived one minute after Trooper Fletcher had completed his background checks of
Darrell’s license, the vehicle’s registration, and the rental agreement bears no
consequence   in   determining   whether   the   duration   of   the   stop   was
unconstitutionally prolonged.
{¶43} Having considered the totality of the circumstances surrounding the
stop, we find that Trooper Fletcher did not prolong the detention any longer than
necessary to effectuate the initial purpose of the stop.   Consequently, Kenneth was
not unconstitutionally seized at the moment the canine alerted to the vehicle,
which gave Trooper Fletcher probable cause to search the vehicle.
{¶44} Accordingly, we overrule Kenneth’s first assignment of error.
Assignment of Error No. II
{¶45} In his second assignment of error, Kenneth contends that he received
ineffective assistance of counsel.   Specifically, Kenneth contends that trial counsel
failed to challenge Trooper Fletcher’s extension of his search from the passenger
compartment to the trunk.   We disagree.
-24-

Case No. 5-10-41
{¶46} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result.   State v. Bradley (1989), 42 Ohio
St.3d                                                                                   136,  paragraph  two  of  syllabus.    To  show  that  a  defendant  has  been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would  have  been  different.  Id.,  at  paragraph  three  of  syllabus.                “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the  trial.    State  v.  Waddy                                                         (1992),                                                                          63  Ohio  St.3d   424,   433,  superseded  by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103, 1997-Ohio-355.
{¶47} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance.   State v. Malone
(1989), 2d Dist. No. 10564, 1989 WL 150798.                                             “Ineffective assistance does not
exist merely because counsel failed to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it.” Id., quoting Smith v.
Murray (1986), 477 U.S. 527, 535, 106 S.Ct. 2661 (internal quotation omitted).
{¶48} The United States Supreme Court has held that the “failure to file a
suppression motion does not constitute per se ineffective assistance of counsel.”
Kimmelman v. Morrison (1986), 477 U.S. 365, 384, 106 S.Ct. 2574, cited in State
-25-

Case No. 5-10-41
v. Madrigal,  87 Ohio St.3d  378,  389,  2000-Ohio-448.    There must also be a
reasonable probability that the motion will be successful.   State v. Ligon, 3d Dist.
No.  4-2000-25,  2001-Ohio-2231.    Thus, this Court’s determination of whether
Kenneth’s trial counsel was ineffective relies upon whether there was a reasonable
probability that a motion to suppress would have been successful.   State v. Pierce,
3d Dist. No. 11-09-05, 2010-Ohio-478, ¶34.
{¶49} A motion challenging the scope of the search would not have been
successful,  as  Kenneth  lacked  standing  to  challenge  the  same.     It  is  well
established that a passenger of a vehicle does not have standing to challenge the
search  of  the  vehicle  and  its  contents  absent  some  proprietary  or  possessory
interest in the vehicle and its contents.   State v. Weis, 3d Dist. No. 10-06-22, 2007-
Ohio-2279, ¶¶21-24, citing Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421.
Here, Kenneth was a passenger in a rental vehicle that was rented by an absent
third party.    The record herein is devoid of any evidence that Kenneth had a
proprietary  or  possessory  interest  in  the  vehicle,  and  Kenneth  advances  no
arguments establishing the same.   Consequently, trial counsel was not ineffective,
as a motion challenging the scope of the search would have failed for lack of
standing.   See State v. Stoddard, 3d Dist. No. 9-89-05, 1990 WL 72397, *2; State
v.  Tibbetts,                                                                              92  Ohio  St.3d   146,   165,   2001-Ohio-132   (denying  defendant’s
ineffective  assistance  of  counsel  claim  for  failure  to  file  suppression  motion
-26-

Case No. 5-10-41
concerning the scope of a vehicle search because the motion, had it been filed, was
“certain to fail” as defendant had no proprietary or possessory interest in the
vehicle or its contents).
{¶50} Since we find no error in trial counsel’s failure to challenge the scope
of Trooper Fletcher’s search, we find no error in trial counsel’s performance.
{¶51} Accordingly, we overrule Kenneth’s second assignment of error.
{¶52} Having  found  no  error  prejudicial  to  Kenneth  herein,  in  the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
-27-

Download 5-10-41.pdf