[Cite as State v. Harris, 2023-Ohio-1544.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. Patricia A. Delaney, P.J.

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J.

: Hon. Andrew J. King, J.

-vs- :

:

JOSHAUAN HARRIS : Case No. 22-CA-00091

:

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 22-CR-117

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 8, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT ANDREW T. SANDERSON

20 South Second Street 738 East Main Street

Fourth Floor Lancaster, OH 43130

Newark, OH 43055
Licking County, Case No. 22-CA-00091 2

King, J.

{¶ 1} Defendant-Appellant Joshauan M.D. Harris appeals the July 6, 2022 

judgment of the Licking County Court of Common Pleas overruling his motion to 

suppress. Plaintiff-Appellee is the state of Ohio.

Facts and Procedural History

{¶ 2} On February 15, 2022, an undercover detective assigned to the Central 

Ohio Drug Enforcement Task Force observed a red Ford Focus leaving a Hudson Avenue 

home in Newark, Ohio which the task force had under surveillance. The detective 

watched the driver fail to signal before changing lanes. He radioed Licking County 

Sheriff's Deputy Benjamin Martens who was nearby and who performed a traffic stop of 

a red Ford Focus. 

{¶ 3} Harris was a backseat passenger in the vehicle. Martens ordered the driver 

and all three passengers out of the car and placed the driver in the back seat of his cruiser 

to handle the traffic infraction. As Martens was gathering information from the driver and 

issuing a warning, Licking County Deputy Kris Kimble arrived at Martens' request with his 

canine partner Harry. Harry is trained to detect narcotics, specifically cocaine, 

methamphetamine, and heroin. Upon arrival, Kimble noticed three people standing 

outside the Ford and one person in the backseat of Martens' cruiser. Kimble deployed 

Harry to the Ford for a free air sniff. Harry alerted to the presence of narcotics in the 

vehicle. 

{¶ 4} The vehicle was subsequently searched. A black bookbag was discovered 

in the backseat. Harris had previously been observed leaving the Hudson Avenue home 

carrying a black bookbag. Inside the bookbag was a firearm and plastic baggies 
Licking County, Case No. 22-CA-00091 3

containing fentanyl and methamphetamine. A search of Harris's person incident to arrest 

led to the discovery of $1,624 in his pocket.

{¶ 5} As a result of these events, Harris was charged with various aggravated 

drug possession charges. He pled not guilty to the charges and filed a motion to suppress.

He raised two arguments as to why the evidence contained in the backpack should be 

suppressed, specifically that the duration of the stop was impermissibly extended, and 

that the warrantless search of the backpack container was improper.

{¶ 6} On April 27, 2022, a hearing was held on Harris's motion to suppress. 

Counsel for Harris stipulated to the deputies training and experience, the date and venue, 

the authenticity of Marten's dash camera and body camera videos, the training and

certification of Harry, the positive alert, probable cause to search the vehicle following the 

alert, and each exhibit produced by the state. Transcript of hearing (T.) 6, 7, 32, 35.

{¶ 7} The state elicited testimony from Martens and Kimble who testified 

regarding their roles in the above outlined traffic stop. Harris rested without presenting 

evidence. 

{¶ 8} After taking the matter under advisement the trial court denied Harris's 

motion to suppress. 

{¶ 9} Harris filed an appeal and the matter is now before this court for 

consideration. He raises one assignment of error as follows:

I

{¶ 10} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE 

DEFENDANT-APPELLANT’S MOTION TO SUPPRESS EVIDENCE."
Licking County, Case No. 22-CA-00091 4

{¶ 11} In his sole assignment of error, Harris argues the trial court erred by denying 

his motion to suppress. We disagree.

Standard of Review

{¶ 12} Appellate review of a motion to suppress presents a mixed question of law 

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d 

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of 

fact and is in the best position to resolve questions of fact and to evaluate witness 

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 652 N.E.2d 988 (1995); State v. 

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must 

defer to the trial court's factual findings if competent, credible evidence exists to support 

those findings. See Burnside, supra; Dunlap, supra. Once this Court has accepted those 

facts as true, it must independently determine as a matter of law whether the trial court 

met the applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 

Ohio App.3d 706, 707 N.E.2d 539 (4th Dist. 1997); See, generally, United States v. 

Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). That is, the application of 

the law to the trial court's findings of fact is subject to a de novo standard of review Ornelas 

v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

{¶ 13} Three methods exist to challenge a trial court's ruling on a motion to 

suppress. First, an appellant may challenge the trial court's findings of facts. State v. 

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). "A reviewing court is bound to 

accept those findings of fact if supported by competent, credible evidence." State v. Curry, 

95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). Second, an appellant may argue 
Licking County, Case No. 22-CA-00091 5

the trial court failed to apply the appropriate test or correct law to the findings of fact. In 

that case, the appellate court can reverse the trial court for committing an error of law. 

State v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled on 

other grounds. Third, an appellant may argue the trial court incorrectly decided the 

ultimate issue raised in the motion to suppress. When addressing the third type of 

challenge, an appellate court must independently determine, without deference to the trial 

court's conclusion, whether the facts meet the appropriate legal standard in the given 

case (Citation omitted). Curry at 96.

{¶ 14} Harris' challenge to the trial court's decision rests on mixed claims of law 

and fact.

Traffic Stops

{¶ 15} " '[W]hen detaining a motorist for a traffic violation, an officer may delay a 

motorist for a time period sufficient to issue a ticket or warning.' " State v. Elliot, 5th Dist. 

Guernsey No. 18 CA 22, 2019-Ohio-4411, 2019 WL 5543085, ¶ 21 quoting 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.1988). The scope and 

duration of a routine traffic stop "must be carefully tailored to its underlying justification * 

* * and last no longer than is necessary to effectuate the purpose of the stop." State v. 

Latona, 5th Dist. Richland No. 2010-CA-0072, 2011-Ohio-1253, 2011 WL 917728, ¶¶ 20-

21 quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); 

see also, State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist.1995). 

The measure of the time period includes the time sufficient to run a computer check of 

the driver's license, registration, and vehicle plates. State v. Elliot, 2019-Ohio-4411, ¶ 21 
Licking County, Case No. 22-CA-00091 6

citing State v. Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, 2004 WL 

77617, ¶ 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 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, 102 Ohio App.3d 585, 598-599, 657 N.E.2d 

591 (9th Dist.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). See also State v. Whitman, 184 Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 

293 (5th Dist.); State v. Woodson, 5th Dist. Stark No. 2007-CA-00151, 2008-Ohio-670, 

2008 WL 442569, ¶ 21.

Preliminary Matters

{¶ 16} As an initial matter, we note the state, for the first time here on appeal, 

argues Harris is without standing to challenge the search of the backpack because he did 

not own the car it was found in and denied ownership of the backpack at the scene. Harris 

did not file a reply brief.

{¶ 17} Both drivers and passengers in a vehicle may challenge the validity of a 

traffic stop. State v. Carter, 69 Ohio St.3d 57, 63 (1994). "The question of whether a 

person may challenge the search of a vehicle in which they have placed an item of 

property is a distinct inquiry." State v. Redding, 9th Dist. No. 10CA0018-M, 2010-Ohio4286, at ¶ 9 "[S]uppression of the product of a Fourth Amendment violation can be 

successfully urged only by those whose rights were violated by the search itself[.]"

Alderman v. United States, 394 U.S. 165, 171-72 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). 
Licking County, Case No. 22-CA-00091 7

"[O]ne who owns or lawfully possesses or controls property will in all likelihood have a 

legitimate expectation of privacy by virtue of [the] right to exclude." It is well established 

that an individual has a heightened expectation of privacy in the contents of a closed 

container. United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 53 L.Ed.2d 538 

(1977).

{¶ 18} The record of the suppression hearing in this matter provides little 

information from which this court could determine Harris's standing, but the remaining 

record is of some assistance. According to the arrest warrant, Harris was seen leaving a 

residence on Hudson Avenue carrying a black bookbag and getting into the rear driver's 

side seat of the Ford Focus. Docket at 1. Upon searching the Ford Focus, deputies 

discovered the black backpack, "which was seated at defendant Harris's feet." Id. The 

state's bill of particulars provides the same information. Docket at 14. 

{¶ 19} Additionally, other than at the scene of the traffic stop, Harris did not deny 

ownership of the backpack. His motion to suppress, filed March 11, 2022, indicates "Mr. 

Harris challenges the expansion of the traffic stop that lead to the search of Mr. Harris's 

effects." Docket at 16. Harris further argued the deputies "lacked a reasonable and 

constitutional basis to have searched the closed container." Id. Harris's challenge 

therefore appears to be to the search of the backpack which he characterizes as his 

"effects."

{¶ 20} Accordingly, we find even though Harris initially denied ownership of the 

bag, evidence from the record and the suppression hearing indicate Harris was seen 

carrying the backpack and it was found situated at his feet when the traffic stop took place. 
Licking County, Case No. 22-CA-00091 8

Harris therefore had a reasonable expectation of privacy in the bookbag and standing to 

challenge the search of the same.

Harris's Arguments

{¶ 21} Harris faults the trial court for focusing only on the time it took for Martens 

to issue a warning to the driver and whether the canine sniff reasonably took place with 

in that time period rather than the "nature" of the encounter. Harris concedes the traffic 

stop was lawful, but argues the traffic stop was merely a pretext to search the interior of 

the Ford for drugs, and further argues Deputy Martens had no cause to order him out of 

the vehicle for anything other than issuing a traffic citation. According to Harris, Deputy 

Martens could only issue a traffic citation and send the men on their way, not expand the 

stop to include a drug investigation and ultimately the search of the bookbag.

{¶ 22} First, as to Harris's mention that the stop was pretextual, in State v. 

Ackerson, 5th Dist. Stark No. 2012CA00228, 2013-Ohio-4020, we court noted "[a] traffic 

stop is valid under the Fourth Amendment if the stop is based on an observed traffic 

violation or if the police officer has a reasonable, articulable suspicion a traffic or 

equipment violation has occurred or is occurring. City of Dayton v. Erickson, (1996), 76 

Ohio St.3d 3. It is irrelevant the officer may have had other subjective motives for stopping 

the vehicle. Id." Ackerson, ¶ 21. Harris and his companions were drawn to the attention 

of law enforcement in the area when he and his companions were observed leaving a 

home which was under surveillance for suspected drug activity. Deputy Martens had prior 

knowledge of the ongoing narcotics investigation when he performed the traffic stop. T. 

11. That knowledge, however, in no way impacted the legality of the stop.
Licking County, Case No. 22-CA-00091 9

{¶ 23} Next, Harris argues Deputy Martens was not justified in ordering him out of 

the vehicle. It is well settled, however, that once a lawful traffic stop has been made, 

officers may order the driver and any passengers to exit the vehicle pending completion 

of the traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 

(1977); Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); State 

v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993).

{¶ 24} Harris next relies upon State v. Robinette, 80 Ohio St.3d 234, 1997-Ohio343, 685 N.E.2d 762 to support his contention that deputies in this matter unjustifiably 

expanded their traffic infraction investigation into a drug investigation without articulable 

facts giving rise to illegal activity justifying extension of the detention. Robinette, however 

is inapplicable to the facts this matter as it did not involve a canine sniff. 

{¶ 25} "When a motorist is lawfully detained pursuant to a traffic stop, and when 

the purpose of the stop has yet to be fulfilled, the Fourth Amendment is not violated when 

the officer employs a trained narcotics canine to sniff the vehicle for drugs." Ackerson, 

supra ¶ 23 citing State v. Jefferson, 5th App. No. 11 CAA040033, 2012-Ohio-148. Harris 

does not challenge the legality of the stop, nor that the purpose of the stop had yet to be 

fulfilled when Deputy Kimble arrived with canine Harry.

{¶ 26} Further, this court had found a canine sniff is not a search within the 

meaning of the Fourth Amendment as long as the canine is legally present at its vantage 

point when its sense is aroused. State v. Cook, 5th Dist. Muskingum Nos. 2010-CA-40, 

2010-CA-41. 2011-Ohio-1776, ¶ 60 citing State v. Jardines, 9 So.3d 1, 2008 WL 4643082, 

33 Fla. L. Weekly D2455 (Fla. 3d DCA Oct. 22, 2008); People v. Jones, 279 Mich.App. 

86, 755 N.W.2d 224, 228 (2008). We have further found because a canine sniff is not a 
Licking County, Case No. 22-CA-00091 10

search, " 'an officer need not have formed a reasonable suspicion that drug-related 

activity is occurring in order to request that a drug dog be brought to the scene or to 

conduct a dog sniff of the vehicle.' " State v. Latona, 5th Dist. Richland No. 2011-Ohio1253, ¶ 27 quoting State v. Guckert, 4th Dist. Washington App. No. 99CA49, 2000 WL 

33226314, (Dec. 20, 2000). citing State v. Keller, 2nd Dist. Montgomery App. No. 17896, 

2000 WL 20873, (Jan. 14, 2000). "[W]hen a [drug] dog alerts to the presence of drugs, it 

gives law enforcement probable cause to search the entire vehicle." State v. Nguyen, 157 

Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, ¶ 22. In Wyoming v. Houghton, 526 

U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408(1999), the United States Supreme Court held 

that police officers with probable cause to search a car may search a passenger's 

belongings found in the car that could conceal the object of the search. Accord State v. 

Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262.

{¶ 27} Deputy Martens therefore need not have formed reasonable suspicion that 

drug activity was occurring before calling for a canine. He nonetheless testified he called 

for a canine sniff due to the nervousness of the driver of the Ford Focus, his knowledge 

that Harris and his companions were coming from a suspected drug house, and his 

knowledge of an active investigation focusing on that house. T. 23. Canine Harry arrived 

and alerted on the Ford Focus 12 minutes and 6 seconds into the stop and while Deputy 

Martens was still in the process of issuing a warning to the driver of the vehicle. T. 25, 

states exhibits 1 and 2. The entire encounter in this matter took place in less than 15 

minutes which we find is not unreasonable.

{¶ 28} In summary, the nature of the encounter did not run afoul of Harris's Fourth 

Amendment protections. Deputy Martens was permitted to ask Harris to exit the vehicle, 
Licking County, Case No. 22-CA-00091 11

need not have developed probable cause to call for a canine sniff, and canine Harry's

alert on the Ford established probable cause to search the entire vehicle and Harris's 

backpack. We, therefore overrule Harris's sole assignment of error.

{¶ 29} The judgment of the Licking County Court of Common Pleas is affirmed.

By King, J., 

Delaney, P.J. and

Baldwin, J. concur.

AJK/rw