[Cite as State v. Newman , 2021-Ohio-119.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : KYLIE NEWMAN : Case No. 2020 CA 0018 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2019-CR-0389

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 19, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP MICHAEL E. STEPANIK Prosecuting Attorney ALISSA R. BARBOSKY Richland County, Ohio 520 Broadway Avenue, 1st Floor Lorain, Ohio 44052 By: JOSEPH C. SNYDER Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902Richland County, Case No. 2020 CA 0018 2

Baldwin, J. {¶1} Defendant-appellant Kylie Newman appeals from the denial by the Richland County Court of Common Pleas of her Motion to Suppress. Plainti ff-appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} On May 10, 2019, the Richland County Grand Jury indicted appell ant on one count of trafficking in cocaine in violation of R.C. 2925.0 3(A)(2) and (C)(4)(g), a felony of the first degree, one count of possession of cocaine in viol ation of R.C. 2925.11(A) and (C)(4)(f), a felony of the first degree, one count of aggravat ed funding of drug trafficking in violation of R.C. 2925.05(A)(3) and (C)(1), a felony of the first degree, and one count of operating a vehicle with a hidden compartment used to transp ort a controlled substance in violation of R.C. 2923.241(C) and (F), a felony of the secon d degree. The indictment also contained three forfeiture specifications and a major drug offender specification. At her arraignment on May 28, 2019, appellant entered a plea of no t guilty to the charges. {¶3} On September 25, 2019, appellant filed a Motion to Suppress. A hearing on such motion commenced on October 22, 2019. {¶4} At the hearing, Trooper Colt Browne of the Ohio State Highway P atrol testified that he was working on February 6, 2019 and was in un iform in a marked cruiser. His cruiser was positioned on U.S. 30. Trooper Browne testified that he had b een contacted by his supervisor that a vehicle believed to be trans porting drugs was traveling northbound on I-71 from U.S. 30. He testified that he was given a description of the vehicle, the license plate number and the identity of the occup ants and “that it was a group that we had made contact with before,...” Transcript at 33. He wa s also told that thereRichland County, Case No. 2020 CA 0018 3

may be drugs in the vehicle and that the vehicle was traveling from Texas to Ohio. He testified that he was instructed to pull over the vehicle if he found probable cause to do

so. {¶5} Trooper Browne was eventually notified over the radio that the vehicle had just entered Richland County and was approaching his position. After making a visual estimate that the vehicle was exceeding the speed limit, the Tr ooper used his laser a series of times to check its speed. The laser indicated that th e vehicle was traveling 60, 54, and then 50 miles an hour. Trooper Browne testified that h e noticed the nose of the vehicle dip as it rapidly decelerated down to 50 miles per hour . The posted speed limit was 55 miles per hour. The Trooper testified that he began to t ail the vehicle. He testified that he was able to catch up with the vehicle a couple of miles down the road. Trooper Browne testified that he pulled alongside the vehicle and obser ved that the driver and right front passenger were rigid in their seats and that while they appeared to be talking to each other, they were not making eye contact. He testified t hat they “were straight ahead.” Transcript at 54. The Trooper then initiated a traffic stop for speeding. {¶6} The vehicle then pulled over on the berm of U.S. 30. He testifi ed that appellant, the driver, began frantically searching for her driv er’s license in her purse. Appellant eventually turned over a valid drivers’ license. How ever, she handed over invalid insurance information. Trooper Browne then asked appell ant if she had updated insurance and she did not but said that she might be able to fi nd updated insurance information in her phone. She began looking into her phone for the insurance information. {¶7} While appellant was looking though her phone, German Zuniga, a passenger, asked if the Trooper was involved in a previous traf fic stop with him onRichland County, Case No. 2020 CA 0018 4

December of 2018 and the Trooper responded affirmatively. Troop er Browne’s sergeant had told him that it was the same group. {¶8} After appellant handed the Trooper an outdated insurance card, he asked her if she had a more updated card. He asked appellant to exit the vehicle to try to get

her to show her insurance and to continue with his check and so that he would have an easier time talking to her. Appellant then exited her vehicle b ut stopped and tied her shoe while still in the road. Appellant wanted the Trooper to look u p her insurance company and call them through Google. Because it is the driver’s duty to provide the insurance, Trooper Browne told appellant to keep trying to find the insura nce in her emails. {¶9} Trooper Browne asked appellant where they were coming from and appellant indicated Houston. She told him that they had been vi siting Zuniga’s relative who had throat cancer but was unable to identify the hospital t hat he was in. Appellant told him that they were headed home to Lorain, but they were he aded in the opposite direction. At the 8 minute and 43 second mark into the stop, Tr ooper Browne advised appellant of her rights but did not take her into custody. App ellant, at that point, had not given him her insurance information. Appellant told the Troope r that she did not want to sit in the back of his car and her let her stand outside. Troop er Browne testified that German Zuniga, the passenger, told him that they were going to Lorain but once he realized that they were traveling in the wrong direction, said that they were going somewhere to get outfits for his daughters. {¶10} Trooper Browne testified that based on his past interaction wit h appellant and Zuniga, they appeared more nervous than previously. Appella nt had yet to produce any current proof of insurance at the 14 minute 16 second mark. Due to theirRichland County, Case No. 2020 CA 0018 5

nervousness, Trooper Browne decided to walk his canine Atos aro und the vehicle. At fifteen minutes into the traffic stop. Trooper Browne performed a free air search around

the vehicle with Atos. He testified that he went to the Ohio State Highway Patrol K9 school. Trooper Browne and Atos have received multiple trainin g certifications from the Ohio Attorney General Peace Officer Training Commission. Troop er Browne testified that they had continual maintenance training that was a minimum of 1 6 hours a month. {¶11} During the second pass of the free air sniff, Atos breathed in the vehicle’s exhaust fumes and disengaged with the vehicle. Atos was not ver y interested in sniffing around the vehicle the second time. Trooper Browne agreed that Atos’ capability of smelling was at least temporarily compromised and his interest and engagement were also temporarily compromised due to the vehicle exhaust fumes. During his third walk around the vehicle, Atos reengaged and showed positive body lan guage by wagging his tail and canting his head back to the vehicle. During his four th walk, Atos gave his final indication by attempting to lie down in the areas directly unde r the vehicle on the driver’s

side. {¶12} Based on the positive indications from Atos, Trooper Brown cond ucted a

search of the vehicle. He testified that substances were found in the toolbox in the bed of

the truck and the false bottom on the toolbox on the driver’s s ide near where Atos had been indicated. When he opened the tool box, “[i]t looked comp letely off because the depth was off.” Transcript at 150. Ten packages of cocaine were found in the secret compartment. Appellant and the other occupants of the vehicle w ere then arrested. {¶13} On cross-examination, Trooper Browne testified that in December of 2018, he had stopped a vehicle in Amherst, Ohio and that appellant wa s a passenger in theRichland County, Case No. 2020 CA 0018 6

same. He testified that the vehicle was stopped based upon a t ip. While the K9 alerted to the presence of drugs in the vehicle, no illegal narcotics w ere found during a search of

the vehicle. {¶14} Sergeant Rich Barrett testified as an expert in K9 training and law enforcement K9 training in drug detection for the State of Ohio . He has over twelve years of experience in being a K9 officer and training approximately two hundred K9 teams. Sergeant Barrett testified that it was his expert opinion that Trooper Browne and Atos were an effective team and that the Trooper did not force Atos into a final indication. He testified that K9s with the Ohio State Highway Patrol are train ed to detect the source of odors and that due to the poor construction of the secret depar tment in the toolbox, it would not prevent the dot of the narcotics from leaking out. He further testified that while usually K9s are trained to make one and a half to two passes o f a vehicle , Atos was taken around appellant’s vehicle more than twice because of the extenuating

circumstances of his encounter with the vehicle’s’ exhaust. Ser geant Barrett opined that Atos did alert and subsequently indicate to the odor of narcoti cs emanating from the vehicle. His Expert Opinion Repor t was admitted as an exhibit. {¶15} At the suppression hearing, appellant called Andre Falco Jimene z as an expert in K9 training. He testified that his business had a his tory of training dogs for police work and that he had been in the business of training K9s for a pproximately 20 years. He was recognized as an expert in K9 training, including scent det ection. He testified that a

K9 cannot find the source of narcotic odor. Jimenez is the aut hor of a publication titled “Big Income Expertise How Even You Can Be an Expert on Anything and Profit From It.”Richland County, Case No. 2020 CA 0018 7

{¶16} On or about December 12, 2019, the trial court denied appellant ’s Motion to Suppress. On December 13, 2019, appellant entered a plea of no contest to the charges and was found guilty. Pursuant to a Sentencing Entry fi led on January 9 2020, appellant was sentenced to an aggregate prison term of eleven y ears. {¶17} Appellant now raises the following assignments of error on appe al: {¶18} “I. APPELLANT’S RIGHTS UNDER THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE U.S. CONSTITUTIONS WERE VIOLATED WHEN THE

ARRESTING OFFICER UNREASONABLY PROLONGED THE TRAFFIC STOP IN

ORDER TO ALLOW A DRUG-SNIFFING DOG TO SNIFF APPELLANT’S VEHICLE .” {¶19} “II. APPELLANT’S RIGHTS UNDER ARTICLE I, SECTION 14 OF THE

OHIO CONSTITUTION WERE VIOLATED WHEN THE ARRESTING OFFICER

UNREASONABLY PROLONGED THE TRAFFIC STOP IN ORDER TO ALLOW A

DRUG-SNIFFING DOG TO SNIFF A PPELLANT’S VEHICLE.” {¶20} “III. THE STATE OF OHIO FAILED TO PRODUCE SUFFICIENT

EVIDENCE THAT K-9 ATOS PERFORMS RELIABLY IN DETECTING DRUGS IN

VIOLATION OF FLORIDA V. HARRIS , 568 U.S. 237(2013).” {¶21} “IV. THE STATE OF OHIO’S FAILURE TO MAINTAIN RECORDS OF K-9 PERFORMANCES, PARTICULARLY WHERE THERE ARE KNOWN ERRORS IN THE FILED, VIOLATES DUE PROCESS AND IS VIOLATIVE OF BRADY V. MARYLAND .” {¶22} “V. THE TRIAL COURT ERRED IN DETERMINING THAT K-9 ATOS

ALERTED TO THE VEHICLE BEING OPERATED BY MS. NEWMAN.”Richland County, Case No. 2020 CA 0018 8

I, II, III, IV, V {¶23} Appellant, in her five assignments of error, challenges the tri al court’s denial of her Motion to Suppress. {¶24} Appellate review of a trial court's decision to deny a motion to suppress involves a mixed question of law and fact. State v. Long , 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). During a suppres sion hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks , 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661 N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, cr edible evidence. State v.

Medcalf , 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Ac cepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial co urt's decision meets the applicable legal standard. State v. Williams , 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds. {¶25} There are three methods of challenging a trial court's ruling o n a motion to suppress on appeal. First, an appellant may challen ge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court's findings of fact are against the manifest wei ght of the evidence. See State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein , 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fa ct. In that case, an appellate court can reverse the trial court for committing an error of la w. See Williams,Richland County, Case No. 2020 CA 0018 9

supra. Finally, an appellant may argue the trial court has incorrectl y decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standa rd in any given

case. State v. Curry , 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994). {¶26} When ruling on a motio n to suppress, the tri al court assumes th e role of trier of fact and is in the best position to resolve questions of fac t and to evaluate the credibility

of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243, 652 N.E.2d 988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). {¶27} Appellant argues that the Trooper unreasonably prolonged the tr affic stop in order to allow a drug-detecting dog to sniff her vehicle and , in doing so, violated her rights under the Fourth and Fourteenth Amendments to the U.S. C onstitution and Article I, Section 10 and Section 14 of the Ohio Constitution. {¶28} “’ [W]hen detaining a motorist for a traffic violation, an offi cer may delay a motorist for a time period sufficient to issue a ticket or a wa rning.’ ” State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12, quoting State v. Keathley , 55 Ohio App.3d 130, 131, 562 N.E.2d 932 (2nd Dist. Miami 1988). “T his measure includes the period of time sufficient to run a computer check on the dr iver's license, registration, and vehicle plates.” Id. , citing State v. Bolden , 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 17, citing Delaware v. Prouse , 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660(1979). Additionally, “ ‘[i]n determining if an offi cer 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 o fficer diligently conductedRichland County, Case No. 2020 CA 0018 10

the investigation.’ ” Id. , quoting State v. Carlson , 102 Ohio App.3 d 585, 598- 599, 657 N.E.2d 591(9th Dist. Medina 1995), citing State v. Cook , 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992), and United States v. Sharpe , 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). {¶29} “[A]n investigative detention must be temporary and last no lon ger than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Indeed, “[t]he lawfulness of the initial stop will not support a fishing expedition for evidence of crime.” State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist.1995). Still, “the detentio n of a stopped driver may continue beyond the [normal time] frame when additional facts a re encountered to give rise to a reasonable, articulable suspicion of criminal activit y beyond that which prompted the initial stop.” State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E.2d 1282, ¶ 15. {¶30} The trial court found, and we agree, that Trooper Browne did no t unreasonably prolong the stop. There was testimony that he was still in the process of conducting the traffic stop when he walked his K9 around appell ant’s vehicle. Appellant was still in the process of looking for proof of insurance. App roximately thirteen minutes had passed between the stop and the K9 sniff and appellant was still attempting to locate current proof of insurance. As noted by the trial court, Troope r Browne testified that he was going to give appellant a warning for her speeding as long as she was able to provide proof of insurance. We note that in State v. Guinto , 5th District Ashland Nos. 12-COA031 and 12-COA-032, 2013-Ohio-2180, this Court held that a thir ty-one (31) minute delay from the time of the stop until the time of the drug dog hit wa s attributable to the necessityRichland County, Case No. 2020 CA 0018 11

that the appellant produce valid proof of insurance and that th ere was no violation of the appellant’s Fourth Amendment rights. In the case sub judice th e delay was attributable to the necessity that appellant provide valid proof of insuranc e. {¶31} Appellant also argues that the State of Ohio failed to produce sufficient proof that K9 Atos performs reliably in detecting drugs in viol ation of Florida v. Harris , 568 U.S. 237, 133 S.Ct. 1050 (2013). Appellant notes that at the su ppression hearing, Sergeant Barrett of the Ohio State Highway Patrol testified tha t the Patrol no longer kept records of a K9 unit’s performance in the field. Appellant argu es that this violated due process and is violative of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194. {¶32} In Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050 (2012), the U.S. Supreme Court addressed how a court should evaluate probable ca use based on an alert from a drug detection dog when the defendant has challenged the dog's reliability. Id. at 1053. The court rejected Florida's rigid test that required the state in every case to present exhaustive evidence of reliability in favor of a more flexible, commonsense approach that examines the dog's training. Id. In so doing, the court held that “evidence of a dog's satisfactory performance in a certifi cation or training program can itself provide sufficient reason to trust his alert.” Id. at 1057. However, the court noted that a defendant “must have an opportunity to challenge such ev idence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.” Id. Regarding the reliability of a canine search, the United States Supreme Court has held that “[i]f a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (s ubject to any conflictingRichland County, Case No. 2020 CA 0018 12

evidence offered) that the dog's alert provides probable cause to

search.” Florida v. Harris , 568 U.S. 237, 246-247, 113 S.Ct. 1050 (2013). {¶33} In State v. Nguyen , 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 55 (6th Dist.), the court stated that “proof of the fa ct that a drug dog is properly trained and certified is the only evidence material to a determ ination that a particular dog is reliable. Proof that a drug dog is properly trained and cert ified may be established by means of testimony or through documentary proof.” The court, i n Nguyen , noted that a

“new trend in some federal courts stresses that when the state demonstrates that the drug dog is trained and certified, it negates any need to estab lish the reliability of the challenged canine.” Id at paragraph 35. {¶34} In order for a K9 alert to support a determination of probable cause, the State must establish the dog's reliability by adducing evidence of the K9's training and

certification. State v. Lopez, 166 Ohio App.3d 337, 2006–Ohio–2091, 850 N.E.2d 781, ¶ 25 (1st Dist.). {¶35} In the present case, appellee presented both testimony and docu mentary proof establishing that Atos was properly trained and certified as a narcotics-detection

canine. Pursuant to Nguyen, this evidence was sufficient to establish the canine’s reliability. In the case sub judice, extensive training and cer tification records for Trooper

Browne and Atos were entered into evidence. This amounted to nu merous pages of training records. Trooper Browne testified in detail regarding the certification process. There was testimony that the Trooper and Atos were certified by the Ohio Peace Officer Training Commission on the date of the traffic stop. Moreover, Sergeant Barrett, as an expert witness, reviewed four or five months’ worth of Atos’ re cords in announcing thatRichland County, Case No. 2020 CA 0018 13

he was reliable. Both officers were subject to cross-examinati on. We find that appellant’s due process rights were not violated. {¶36} Appellant, in her final assignment of error, contends that the trial court erred in determining that K9 Atos alerted to the vehicle being operat ed by appellant. Appellant argues that there was not competent credible evidence that the K9 alerted to the vehicle and that greater weight of evi dence militates towards a findi ng that Atos did not alert on

the vehicle. {¶37} A reviewing court must defer to the trial court's factual findi ngs if competent, credible evidence exists to support those finding s. State v. Long , 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist. 1998). {¶38} In the case sub judice, both Trooper Browne and Sergeant Barret t testified that Atos alerted. In addition, the video of the stop was playe d for the trial court. The trial court, in its Judgment Entry overruling the Motion to Suppress, stated, in relevant part, as

follows: {¶39} “The court has considered Tpr. Browne and K9 Atos’s certificati ons and training records. The court also has had the opportunity to re view the in car video of the free air sniff performed by Tpr. Browne and K9 Atos. The court believes that the video speaks for itself. The court finds Tpr. Browne’s testimony to be credible and consistent with what can be seen on video. Clearly, Atos is bothered by g etting a face full of exhaust fumes. The court find (sic) defense witness, Andy Jimenez, to be less than credible when he testified that rather than the exhaust fumes, it was si mply Atos’s displaying avoidance behavior at the rear of the vehicle. The video says otherwise in the court’s opinion.Richland County, Case No. 2020 CA 0018 14

{¶40} “Defense witness Andy Jimenez, also says he did not see any ind ependent alert by Atos for the presence of narcotics on the video. It i s the testimony of Mr. Jimenez that everything Atos does with reference to the vehicle was sim ply the result of Tpr. Browne pressuring Atos to do it. Again, the court finds Mr. Ji menez to lack credibility regarding this assertion. The video shows what the court finds to be independent alerts by Atos consistent with the testimony of Tpr. Browne. Tpr. Bro wne’s testimony is also supported by not only the video itself but also by Sgt. Barrett ’s testimony. The court, as fact finder in this matter, finds Tpr. Browne’s and Sgt. Barret t’s testimony to be more

credible and more believable than Mr. Jimenez. The court furth er finds that the video itself is more consistent with the testimony of Tpr. Browne and Sgt. Barrett then it is with testimony of Mr. Jimenez.” {¶41} Upon our independent review of the video of the traffic stop, w e find that the greater weight of evidence militat es towards a finding that Ato s alerted on the vehicle. The video show Atos attempting to crawl under the truck on rear of the driver’s side. {¶42} Based on the foregoing, we find that the trial court did not er r in overruling the Motion to Suppress. Appellant’s five assignments of error a re overruled.Richland County, Case No. 2020 CA 0018 15

{¶43} Accordingly, the judgment of the Richland County Court of Commo n Pleas

is affirmed.

By: Baldwin, J. Wise, J. and Delaney, J. concur.