[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 

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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 
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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 
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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. 
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{¶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. 
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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. 
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{¶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 
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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. 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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 DEFENDANTAPPELLANT’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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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-Ohio3665, ¶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. 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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. 
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{¶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 
Case No. 5-10-41 

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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. 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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. 
Case No. 5-10-41 

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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. 
Case No. 5-10-41 

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{¶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 
Case No. 5-10-41 

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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 
Case No. 5-10-41 

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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