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7th District: Belmont trial court reverses drug dog sniff case

Legal News Reporter

Published: September 5, 2019

A Belmont County trial court committed reversible error by finding probable cause existed to conduct a warrantless search of an occupant’s vehicle based on a drug dog hit, the 7th District Court of Appeals recently ruled.

John Lavell Chapman was sentenced to 11 years in prison after pleading no contest to two counts of drug possession (cocaine and heroin) and one count of trafficking in drugs.

Case summary shows Chapman was the only passenger in a car driven by Steven Moore when sheriff’s Deputy Brian Carpenter initiated a traffic stop around 2 a.m. July 4, 2017.

Carpenter, a canine handler with a primary focus on drug interdiction, initially stopped the car because Moore’s rear license plate was not illuminated and neither the expiration sticker nor the county sticker was visible. He advised Moore he would only receive a warning if there were no other issues.

Carpenter testified that Moore was visibly nervous and his hands were trembling. Chapman also appeared nervous, was sweating and his pants were undone, the deputy said. Chapman said they had just attended a party where he had been drinking.

The deputy returned to his cruiser and radioed for backup after Chapman began showing him random photos from his Facebook page. About eight minutes after the traffic stop began, Carpenter’s canine, Hyra, performed a sniff. Carpenter testified he was uncertain whether the sniff occurred before or after the dispatcher radioed back with requested information on both men’s drivers’ license numbers.

Hyra began sniffing more intently when she reached the seam of the passenger-side door, alerting Carpenter to the presence of drugs. The deputy told Moore to exit the car due to the alert. Moore admitted having a capped syringe in his pocket. He was handcuffed and seated in the police car.

Next, Chapman was asked to step out of the vehicle. Carpenter said he saw Chapman’s left pant leg tucked “very tightly” into his shoe, leading him to believe Chapman had hidden drugs in his groin and then removed the contraband to his shoe. No drugs or weapons were found during the pat down.

Chapman was then asked to remove his shoes. Inside the left shoe, Carpenter removed plastic baggies with suspected drugs inside, as well as $341 in cash in the appellant’s pocket.

The vehicle was then searched, and Moore was arrested based on the capped needle in his pocket.

On appeal, Chapman challenged the search of his shoes, arguing the canine hit did not establish probable cause to execute a full search. The appellate court agreed.

“Every Ohio intermediate court to consider the issue has held that a canine hit on a vehicle is, in and of itself, insufficient to establish probable cause for the search or arrest of the occupants of a vehicle, but, instead one factor in the totality of the circumstances test applied to determine the existence of probable cause,” 7th District Judge David A. D’Apolito wrote in his 2-1 opinion.

“On appeal, the state argued that the logical conclusion based on the facts was that, if the drugs were not found in the vehicle or on the driver’s person, they must be on the passenger,” D’Apolito continued.

However, the 9th and 11th Districts have rejected similar theories. For instance, In State v. Kay (2009-Ohio-4801), the trial court granted the passenger’s motion to suppress.

In Kay, the police officer followed a vehicle departing from a known drug house. After the car made an improper turn, the officer initiated a traffic stop and requested a canine unit. The dog alerted to the vehicle. No drugs were found in the car or on its driver, but a crack pipe was found in the passenger’s pocket.

“The Ninth District rejected what it characterized as a ‘process of elimination argument,’ holding that the officers did not have probable cause to search the driver or his passenger,” D’Apolito added.

And in State v. McCorvey, (2010-Ohio-0038) the 11th District also held that a canine’s alert on a vehicle and the subsequent fruitless search of it did not independent provide probable cause to search the driver.

Therefore, the panel reversed the trial court’s judgment denying Chapman’s motion to suppress.

“The facts and circumstances within Deputy Carpenter’s knowledge prior to the search were sufficient to raise suspicion of appellant’s guilt, but insufficient to establish reasonable belief of appellant’s guilt,” D’Apolito wrote.

Appellate Judge Cheryl L. Waite concurred. Seventh District Judge Carol Ann Robb dissented. In her dissenting opinion, Robb agreed with the conclusion that the canine sniff of the vehicle was valid.

“The canine unit officer initiated a lawful traffic stop for failing to illuminate the license plate, began gathering information, noticed nervousness and the open zipper on the passenger’s jeans, waited for the driver to continue searching for an insurance card after hearing from dispatch, and then noticed another issue with the license plate (a frame concealed the county and the expiration sticker),” she wrote. “The canine sniff, lasting mere seconds, occurred within eight minutes of the stop, and the officer had not yet issued a warning or a ticket. The traffic stop was not unreasonably extended by the canine sniff of the vehicle. However, I respectfully dissent to the portion of the decision finding a lack of probable cause to conduct a warrantless search of the passenger. I would find the probable cause plus exigent circumstances exception to the warrant requirement applied.”

The case is cited State v. Chapman, 2019-Ohio-3339.