[Cite as State v. Duke , 2013-Ohio-743.]

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

STATE OF OHIO Appellant

v. ANTWONNE T. DUKE Appellee C.A. No. 12CA010225

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CR082152

DECISION AND JOURNAL ENTRY Dated: March 4, 2013

CARR, Judge. {¶1} Appellant, State of Ohio, appeals the ju dgment of the Lorain County Court of Common Pleas granting the motion to suppress file d by Appellee, Antwonne Duke. This Court

reverses and remands.

I. {¶2} As a result of a traffic stop that occurred on the evening of January 26, 2011, the Lorain County Grand Jury indicted Duke on one count of trafficking in drugs in violation of R.C. 2925.03(A)(2), a felony of the third degree, a nd possession of drugs in violation of R.C. 2925.11(A), a felony of the third degree. Duke pleaded not guilty to the charges at arraignment. On October 7, 2011, Duke filed a motion to suppress. After several continuances, the trial court held a hearing on the motion on April 19, 2012. The trial court subsequently issued a journal entry granting the motion.2

{¶3} The State filed a notice of appeal on May 9, 2012. On appeal, the State raises two assignments of error. This Court addresses th e second assignment of error first, as it is dispositive of the appeal.

II. ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING MR. DUKE’S MOTION TO SUPPRESS BASED ON AN ISSUE RAISED BY THE TRIAL COURT SUA SPONTE. {¶4} In its second assignment of error, the State of Ohio argues that the trial court erred in granting Duke’s motion to suppress based on an issue that the trial court raised sua sponte. This Court agrees. {¶5} On the night of January 26, 2011, Trooper Thurman Peterson of the Ohio State Highway Patrol was driving his cruiser eastbound on the Ohio Turnpike when he noticed a car without a license plate light. When Trooper Peters on initiated a traffic stop and asked for Duke’s license and registration, Duke looked “very ne rvous” and “agitated.” Though Trooper Peterson attempted to get Duke to calm down, Duke kept asking, “Why did you stop me? What did I do wrong?” Duke stated that he had driven half way to Detroit to deliver some paperwork to his cousin, and that he had been on the road two and a half hours. Trooper Pete rson testified that he was skeptical of this story given the distance. When Duke was unable to produce his registration and insurance, Trooper Peterson placed Duke in the back of the cruiser in order to determine if he was authorized to operate the vehicle. Ther eafter a second state trooper arrived with a K-9

that did “a free air sniff” around D uke’s vehicle. The K-9 allegedl y alerted to the passenger side of the vehicle near the gas tank. A subsequent s earch of the vehicle reve aled that Duke had a small baggy containing cocaine, stuf fed inside a bag of potato chips, on the front passenger seat.3

{¶6} Duke filed his motion to suppress on October 7, 2011. In his motion, Duke argued that the evidence seized during the se arch should be suppressed on the basis that the traffic stop was prolonged for an unreasonable amount of time given the initial reason for the stop. Duke did not argue with particularity that the evidence should be suppressed on the basis that there were issues with the reliability and credibility of the K-9 sni ff. Trooper Peterson and Trooper Michael Trader, who handled the K-9 during the stop, testified on behalf of the State at the suppression hearing. In conjunction with th e testimony, a video of the stop recorded by a dashboard camera was also played for the trial co urt. Trooper Peterson’s testimony concentrated on the duration of the stop, and his decision to place Duke in the back of his cruiser. The State’s direct examination of Trooper Trader focused on what transpired as he effectuated the K-9 sniff. Prior to cross-examination, the trial judge as ked Trooper Trader several questions about the

mechanics of the K-9 sniff in this case. S ubsequently, on cross-examination, defense counsel asked Trooper Trader several questions regarding the accuracy of K-9 sniffs, in addition to several questions regarding his actions during the stop. During closing arguments, both the State

and defense counsel focused on the duration of th e stop, and neither addre ssed the reliability of

the K-9 sniff. {¶7} On May 2, 2011, the trial court issued a journal entry granting the motion to suppress. In reaching this dete rmination, the trial court’s analys is centered on the reliability of the K-9 sniff. The trial court concluded, “Thus , the court holds that neither the dog nor its

handler is found to be a reliable means of detectin g the odor of cocaine, and that the behavior of the dog during its ‘free air sniff’ of defendant’s vehicle did not provide probable cause to search

defendant’s vehicle.”4

{¶8} In support of its assignment of error, the State argues that the trial court erred in granting the motion to suppress based on an issue th at it raised sua sponte. The State emphasizes that Duke’s motion did not put the State on notice that the reliability of the K-9 search would be an issue at the suppression hearing, and neither pa rty was given an opportunity brief that issue. The State concludes that had it been put on noti ce by the defense motion to suppress that the reliability of the K-9 or its handler was at issue, it would have been prepared to present evidence on that issue at the hearing. {¶9} Crim.R. 47 specifies that a motion to the trial court “shall state with particularity the grounds upon which it is made and sha ll set forth the relief or order sought.” {¶10} It is well settled that warrantless searches are “per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions.” Coolidge v. New Hampshire , 403 U.S. 443, 454-455 (1971). Once a defendant has demonstrated a warrantless search or seizure, and has clarified that the ground upon which he challenges its legality is a lack of probable cause, the State bears the burden of proof. Xenia v.

Wallace , 37 Ohio St.3d 216 (1988), paragra ph two of the syllabus. {¶11} The Supreme Court has held, however, that, “the prosecutor cannot be expected to anticipate the specific legal and factual grounds up on which the defendant challenges the legality of a warrantless search. The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the gr ounds of the challenge in order to rule on evidentiary issues at the hearing a nd properly dispose of the merits.” Xenia , 37 Ohio St.3d at 218. Thus, “the defendant must make cl ear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search and seizure.” Id . The defendant “must5

state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and

the court on notice of issues to be decided.” State v. Shindler , 70 Ohio St.3d 54 (1994), syllabus. {¶12} In this case, the trial court granted D uke’s motion to suppress based on an issue that fell outside the scope of the motion. The fo cus of Duke’s motion, and thus the scope of the hearing, was limited to whether the traffic stop la sted for an unreasonable amount of time. The State was given notice that Duke was challenging the admission of the evidence on those particular grounds. As th e Supreme Court held in Xenia , the prosecutor cannot be expected to anticipate the specific legal and factual grounds th at form the basis by which the evidence might

be excluded. Xenia , 37 Ohio St.3d at 218. Because the trial court raised the K-9 reliability issue sua sponte, and that issue was not raised in Duke’s motion to suppress, the State was not provided with an opportunity to adequately pr epare arguments and present evidence on that issue. Thus, the trial court erred in granting the motion to suppress on that basis. {¶13} The State’s second assignment of error is sustained, and the matter is remanded for a supplemental hearing on the motion to suppr ess where the State must be afforded an opportunity to present evidence on the issue of whether the K-9 search of the vehicle was

credible and reliable.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING MR. DUKE’S MOTION TO SUPPRESS AS THE EVIDENCE RECOVERED FROM HIS VEHICLE WAS OBTAINED THROUGH A LEGAL SEARCH. {¶14} In its first assignment of error, the State argues that the trial court erred in granting the motion to suppress because the evidence was obtained through a legal search. As noted above, the State was not afforded an opportuni ty to present evidence on all of the issues relating to whether the search of Duke’s vehicle was reasonable. Thus, because our resolution of6

the second assignment of error is dispositive of th is appeal, this Court declines to address the State’s first assignment of error as it is rendered moot. See App.R. 12(A)(1)(c).

III. {¶15} The State’s second assignment of error is sustained. In light of our resolution of the State’s second assignment of error, the firs t assignment of error is rendered moot. The judgment of the Lorain County Court of Comm on Pleas is reversed and remanded for further proceedings consistent with this opinion. Judgment reversed, and cause remanded.

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 Lorain, State of Ohio, to carry th is 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 docum ent 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 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 Appellee.

DONNA J. CARR FOR THE COURT7

MOORE, P. J. CONCURS. BELFANCE, J. CONCURRING IN JUDGMENT ONLY. {¶16} I concur in the majority’s judgment becau se this case should be remanded. While

the trial court found that “the testimony of Trooper Trader in explaining the dog’s alleged alert to the presence of cocaine on the gas cap * * * not [t o be] credible[,]” it is unclear what the trial court meant by that statement. (Emphasis sic.). It could have believe d that Trooper Trader had caused the dog to falsely alert or that the dog’s alert was not competent evidence because Trooper Trader was unable to explain it satisfactoril y. Or the court coul d have meant something else altogether. Because this is a credibility de termination and the trial court is the arbiter of credibility in suppression cases, this ambigu ity is problematic for appellate review. See State v.

Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. {¶17} Furthermore, remand is appropriate for the trial court to clarify precisely what it

believed was the reason the evidence should have been suppressed. As the majority notes, the trial court’s rationale could have been that the officers lacked probable cause to search the car. However, the trial court may have been thinking that, given that it found there to be a problem with the dog’s alert, the officers impermi ssibly extended the length of the stop. See State v.

Carlson , 102 Ohio App.3d 585, 598 (9th Dist.1995), citing Florida v. Royer , 460 U.S. 491, 500 (1983) (“An investigative stop may last no longer than is necessary to effectuate the purpose of the stop.”). Because the trial c ourt’s reasoning is unclear, it is appropriate to remand for it to clarify its decision.8

{¶18} I further wish to note that I certainly do not believe the trial court extended beyond the issues raised in the suppression mo tion if its determinati on was that the police impermissibly extended the stop. In his motion to s uppress, Mr. Duke argued, “[E]ven if that K9 sniff was reasonable at the time, there is good indica tion that it did not hit on the vehicle to begin with and what it smelled was gasoline from the vehicle’s gas tank.” While not the most articulate phrasing, the legitimacy of the dog’s alert in the context of the length of the stop was certainly raised. Furthermore, the trial court remarked during th e suppression hearing that one of the issues before it was “[D]id the dog al ert on the vehicle[?]” and Trooper Trader was questioned about his dog’s accuracy and training as well as whether he had an explanation for why the dog allegedly alerted to the gas cap of the car. At no point did the State object to the questions, which would imply that it did not believe that the questions were beyond the scope of the suppression motion. See State v. Robinson , 11th Dist. No. 99-P-0019, 2000 WL 895587, *2 (June 30, 2000) (“Despite a ppellant’s failure to strictly comp ly with Crim.R. 47, the prosecution did not object to appellant arguing this issue at the hearing on the motion to suppress. As a result, we will address th e merits of appellant’s appeal.”). Thus, while this case should be remanded for the trial court to clarify its findings and reasoning, I do not agree that the trial court necessarily exceeded the scope of the motion to suppress. {¶19} Accordingly, I concur in the judgment.

APPEARANCES: DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant. JENIFER BERKI, Attorney at Law, for Appellee.