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IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT


LAWRENCE COUNTY

STATE OF OHIO,

PLAINTIFF/APPELLEE, CASE NO. 14CA24

VS.

EVELYN M. ROBINSON,

DEFENDANT/APPELLANT.

APPEAL BRIEF OF APPELLANT EVELYN M. ROBINSON

ROBERT W. BRIGHT (0081612)


278 S. 5th Ave.
Middleport, Ohio 45760
740-304-0688
740-994-5178 (FAX)
robwbright@yahoo.com
Attorney for Appellant Evelyn M. Robinson

BRIGHAM M. ANDERSON
Lawrence County Prosecuting Attorney
1 Veterans Square
Ironton, Ohio 45638
Attorney for Appellee State of Ohio
TABLE OF CONTENTS

Table of Authorities . . . . . . . . 2

Assignments of Error . . . . . . . . 3

Issues Presented . . . . . . . . . 4

Statement of the Case and Statement of Facts . . . . . 5

Argument . . . . . . . . . . 8

Assignment of Error 1 . . . . . . . . 8

Assignment of Error 2 . . . . . . . . 9

Assignments of Error 3, 4 . . . . . . . . 10

Assignments of Error 5, 6, 7 . . . . . . . 11

Conclusion . . . . . . . . . . 20

Certificate of Service . . . . . . . . 21

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TABLE OF AUTHORITIES

CONSTITUTIONAL LAW

Fourth and Fourteenth Amendments of the U.S. Constitution

Article One, Section 14 of the Ohio Constitution

STATUTORY LAW

RC § 2901.05

CASE LAW

State v. Adkins, 2014-Ohio-3389, 2014 Ohio App. LEXIS 3326, 2014 WL 3824030
(Ohio Ct. App., Lawrence County July 23, 2014)

State v. Burns, 2013-Ohio-4784, 2013 Ohio App. LEXIS 4981, 2013 WL 5864626 (Ohio
Ct. App., Summit County Oct. 30, 2013)

State v. Dennewitz, 1999 Ohio App. LEXIS 5327, 1999 WL 1001109 (Ohio Ct. App.,
Ross County Nov. 5, 1999)

State v. Hamilton, 2011-Ohio-3835, 2011 Ohio App. LEXIS 3226, 2011 WL 3359984
(Ohio Ct. App., Cuyahoga County Aug. 4, 2011)

State v. Jenks (1991), 61 Ohio St.3d 259

State v. Qualls, 2012-Ohio-1111, 131 Ohio St. 3d 499, 967 N.E.2d 718, 2012 Ohio
LEXIS 694 (Ohio 2012)

State v. Robinette, 80 Ohio St. 3d 234, 685 N.E.2d 762, 1997 Ohio LEXIS 2970,
1997-Ohio-343 (Ohio 1997)

State v. Roper, 2013-Ohio-2176, 2013 Ohio App. LEXIS 2086, 2013 WL 2368766 (Ohio
Ct. App., Summit County May 29, 2013)

State v. Wilmoth (1986), 22 Ohio St.3d 251, 490 N.E.2d 123

U.S. v. Calandra (1974), 141 U.S. 338

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ASSIGNMENTS OF ERROR

1. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO A PERIOD OF POST-RELEASE


CONTROL EVEN THOUGH THE TRIAL COURT DID NOT GIVE APPELLANT NOTIFICATION OF THE
PERIOD OF POST-RELEASE CONTROL AT THE SENTENCING HEARING.

2. THE TRIAL COURT ERRED IN ORDERING THAT THE APPELLANT’S VEHICLE SHOULD BE
FORFEITED.

3. THE TRIAL COURT ERRED IN OMITTING FROM THE SENTENCING ENTRY THE FACT THAT THE
OFFENSES OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE ALLIED AND
SHOULD MERGE.

4. THE TRIAL COURT ERRED IN INCLUDING IN THE SENTENCING ENTRY THE IMPOSITION OF A
MANDATORY FINE EVEN THOUGH THE TRIAL COURT HAD PREVIOUSLY WAIVED THAT FINE.

5. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT IN THE ABSENCE OF ANY EVIDENCE
THAT THE APPELLANT KNOWINGLY POSSESSED OR TRAFFICKED IN HEROIN.

6. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE


OBTAINED ILLEGALLY AFTER APPELLANT’S ARREST SOLELY RELATED TO APPELLANT’S
FAILURE TO APPEAR ON A MISDEMEANOR MARIJUANA CHARGE.

7. THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE JUDGMENT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAINLY IN ERROR.

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ISSUES PRESENTED

1. WHETHER THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO A PERIOD OF POST-
RELEASE CONTROL EVEN THOUGH THE TRIAL COURT DID NOT GIVE APPELLANT
NOTIFICATION OF THE PERIOD OF POST-RELEASE CONTROL AT THE SENTENCING HEARING.

2. WHETHER THE TRIAL COURT ERRED IN ORDERING THAT THE APPELLANT’S VEHICLE SHOULD
BE FORFEITED.

3. WHETHER THE TRIAL COURT ERRED IN OMITTING FROM THE SENTENCING ENTRY THE FACT
THAT THE OFFENSES OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE ALLIED
AND SHOULD MERGE.

4. WHETHER THE TRIAL COURT ERRED IN INCLUDING IN THE SENTENCING ENTRY THE
IMPOSITION OF A MANDATORY FINE EVEN THOUGH THE TRIAL COURT HAD PREVIOUSLY
WAIVED THAT FINE.

5. WHETHER THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT IN THE ABSENCE OF ANY
EVIDENCE THAT THE APPELLANT KNOWINGLY POSSESSED OR TRAFFICKED IN HEROIN.

6. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS


EVIDENCE OBTAINED ILLEGALLY AFTER APPELLANT’S ARREST SOLELY RELATED TO
APPELLANT’S FAILURE TO APPEAR ON A MISDEMEANOR MARIJUANA CHARGE.

7. WHETHER THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE
JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAINLY IN
ERROR.

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STATEMENT OF THE CASE

On October 22, 2013, the grand jury of Lawrence County, Ohio returned a two (2)

count indictment against the Appellant, Evelyn M. Robinson. The two (2) counts were

possession of heroin in excess of 250 grams with a major drug offender specification and

trafficking in heroin in excess of 250 grams with a vehicle forfeiture specification. Trial

by jury was held in the matter and on July 1, 2014, Appellant was found guilty on both

counts.

At the Appellant’s sentencing hearing, the State elected to proceed to sentencing

on the possession of heroin charge. The Trial Court sentenced the Appellant to eleven

(11) years of incarceration; ordered a fine of $10,000.00; ordered a two (2) year

suspension of Appellant’s driver’s license; ordered the forfeiture of Appellant’s vehicle;

and ordered Appellant to pay Court costs.

Appellant’s Trial Counsel moved to set aside the mandatory fine because the

Appellant was indigent. The Trial Court granted Appellant’s motion to set aside the fine

and ordered the fine waived.

STATEMENT OF FACTS

On October 19, 2013 at approximately 3:00 a.m., Ohio Highway State Patrol

Trooper Joshua Craft (hereinafter “Trooper”) was parked on Porter Gap Road with his

high beams shining across State Route 93, just north of Ironton, Ohio. At that time,

Appellant was driving from Detroit on Route 93 towards Ironton, with her ultimate

destination being her nephew’s residence in Huntington, West Virginia (Trans. P. 91).

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Trooper testified at both the Motion to Suppress hearing and at Trial that he

visually estimated the Appellant’s speed and that she had slowed from 55 mph to 35 mph

upon seeing Trooper’s car. Trooper also claimed to have observed Appellant with “... her

hands gripped tightly on the wheel. For whatever reason when she went by she turned

her head abruptly to the left...”. (Trans. p. 92).

Based on these observations - which Trooper considered criminal indicators -

Trooper began to follow Appellant’s vehicle down Route 93 for approximately three (3)

miles “... just to keep looking for a traffic violation...”. Trooper claimed to have

witnessed Appellant “drive on the white line...”, as she drove onto the entrance ramp to

US 52. (Trans. P. 93). Trooper testified that Appellant failed to use her left turn signal

as she exited the ramp onto US 52. Trooper testified that he then activated his dash cam,

“... in hopes to catch a probable cause violation for the traffic stop. As I was following

her she was weaving the lane and touching the marked lanes a few times...”. (Trans. P.

93).

Trooper then pulled Appellant over (Trans. P. 93-94). Trooper indicated that upon

his initial contact with Appellant, Appellant was “trembling and had a nervous

behavior”, but was able to provide her Michigan driver’s license to him as requested.

Trooper found it strange that Appellant was traveling State Route 93 at 3:00 a.m. in a

vehicle with Michigan license plates. However, Appellant explained that she was merely

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following the directions given by her GPS system in her vehicle (Trans. P. 316-317). That

explanation was not challenged by the State with any contradictory evidence.

After running Appellant’s driver’s license, Trooper advised Appellant that

Appellant had a warrant for failure to appear in Marion County Municipal Court related

to possession of marijuana residue and that Appellant was being placed under arrest.

Trooper testified that the arrest was “Based solely on the [failure to appear] warrant”.

(Trans. P. 94-95).

Only then - after Appellant’s arrest related solely to failing to appear on the

warrant - did Trooper Craft request a K-9 unit and Officer Lusk of the Huntington, West

Virginia Police Department responded with his K-9. (Trans. P. 97). When the K-9 alerted

on Appellant’s vehicle, Trooper Craft and Trooper Robirds conducted a warrantless

search of Appellant’s vehicle. The search revealed 297 grams of heroin behind the tail

light assembly. The detention and search took approximately three (3) hours. Appellant

was subsequently indicted on the previously mentioned charges.

After a two (2) day jury trial, the jury returned a verdict of guilty on both counts

and the Appellant was sentenced to eleven (11) years in prison. Appellant appeals from

the jury verdict and sentencing.

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ARGUMENT

1: THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO A PERIOD OF POST-RELEASE


CONTROL EVEN THOUGH THE TRIAL COURT DID NOT GIVE APPELLANT NOTIFICATION OF THE
PERIOD OF POST-RELEASE CONTROL AT THE SENTENCING HEARING

The Trial Court did not notify the Appellant that she would be subject to a period

of post-release control during the sentencing hearing. In State v. Adkins,

2014-Ohio-3389, 2014 Ohio App. LEXIS 3326, 2014 WL 3824030 (Ohio Ct. App., Lawrence

County July 23, 2014), this Court stated:

Under R.C. 2929.19(B)(2)(c) and (e), a trial court must notify certain
felony offenders at the sentencing hearing that: 1.) the offender is
subject to statutorily mandated postrelease control; and 2.) the
parole board may impose a prison term of up to one-half of the
offender's originally-imposed prison term if the offender violates
the post-release control conditions...

When a trial court fails to provide the required notification at either


the sentencing hearing or in the sentencing entry, that part of the
sentence is void and must be set aside. State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 27-29...

Here, the record shows that the trial court did not notify Adkins at
his sentencing hearing about postrelease control or the potential
consequences for violating his postrelease control conditions as
required by R.C. 2929.19(B)(2)(c) and (e). Therefore, that portion of
his sentence is void and we sustain his fifth assignment of error.

The Appellant asserts that the failure of the Trial Court to notify her of the

postrelease control conditions at the sentencing hearing requires that the postrelease

control portion of her sentence be set aside and asks this court order the same.

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2: THE TRIAL COURT ERRED IN ORDERING THAT THE APPELLANT’S VEHICLE
SHOULD BE FORFEITED

Appellant was convicted of two (2) crimes, trafficking and possession. The

underlying trafficking offense merged into the possession offense and the State chose

to proceed at sentencing on the possession offense. However, trafficking was the basis

for the vehicle forfeiture. In State v. Roper, 2013-Ohio-2176, 2013 Ohio App. LEXIS 2086,

2013 WL 2368766 (Ohio Ct. App., Summit County May 29, 2013), the Court stated:

... it is impermissible to sentence an offender for a specification


when the underlying offense upon which the specification is
predicated has merged with another allied offense. To hold
otherwise would result in improperly imposing a penalty
enhancement under circumstances where there can be no sentence
imposed for the underlying predicate offense.

Further, the same Court stated in State v. Burns, 2013-Ohio-4784, 2013 Ohio App.

LEXIS 4981, 2013 WL 5864626 (Ohio Ct. App., Summit County Oct. 30, 2013):

Additionally, we note that, despite the fact that the trial court
merged count two (kidnapping) with count one (aggravated
robbery), it impermissibly sentenced Mr. Burns on both counts and
on both attendant firearm specifications. See State v. Roper, 9th
Dist. Summit Nos. 26631, 26632, 2013-Ohio-2176, ¶ 9, 11. These
errors must be corrected on remand as well.

The Appellant agrees with the 9th District Court of Appeals of Summit County and

asserts that it would be patently unfair to impose a penalty/specification enhancement

in relation to an offense for which the Appellant cannot be sentenced. The Appellant

asks this Court to reverse the forfeiture specification of the Trial Court’s sentencing

entry.

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3: THE TRIAL COURT ERRED IN OMITTING FROM THE SENTENCING ENTRY THE
FACT THAT THE OFFENSES OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE
ALLIED AND SHOULD MERGE

4: THE TRIAL COURT ERRED IN INCLUDING IN THE SENTENCING ENTRY THE IMPOSITION OF A
MANDATORY FINE EVEN THOUGH THE TRIAL COURT HAD PREVIOUSLY WAIVED THAT FINE

None of the Trial Court’s three (3) sentencing entries (dated July 10, 2014; August

15, 2014; and August 25, 2014) note that the Appellant’s offenses of trafficking and

possession were allied offenses and should merge. That error appears to be a clerical

error, as the Trial Court did note in the sentencing hearing that the offenses were allied

and should merge.

Further, in the sentencing hearing, the Trial Court ordered a mandatory fine of

$10,000.00. On July 9, 2014, Appellant’s Trial Counsel filed a motion to set aside the fine

because the Appellant was and is indigent. The Trial Court granted that motion and

ordered that the mandatory fine be waived on the same day. However, the Trial Court’s

sentencing entry imposes the mandatory $10,000.00 fine. That error also appears to be

a clerical error.

In State v. Qualls, 2012-Ohio-1111, 131 Ohio St. 3d 499, 967 N.E.2d 718, 2012 Ohio

LEXIS 694 (Ohio 2012), the Ohio Supreme Court stated:

Although trial courts generally lack authority to reconsider their


own valid final judgments in criminal cases, they retain continuing
jurisdiction to correct clerical errors in judgments by nunc pro tunc
entry to reflect what the court actually decided.

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Further, in State v. Roper, 2013-Ohio-2176, 2013 Ohio App. LEXIS 2086, 2013 WL

2368766 (Ohio Ct. App., Summit County May 29, 2013), the 9th District Court of Appeals

stated:

... Mr. Keener's sentencing entry contains a clerical omission. At the


sentencing hearing, the trial court determined that the offenses of
aggravated burglary and aggravated robbery were allied and should
merge, and it was determined at the hearing that the aggravated
burglary charge would merge into the aggravated robbery charge.
However, the sentencing entry does not reflect this merger.
Accordingly, upon remand, the trial court shall enter, nunc pro
tunc, an entry reflecting what occurred at the sentencing hearing
with respect to merger.

Given the above, the Appellant asks this Court to order that the clerical errors

noted above be corrected by the Trial Court.

5. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT IN THE ABSENCE OF ANY EVIDENCE
THAT THE APPELLANT KNOWINGLY POSSESSED OR TRAFFICKED IN HEROIN

6. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE


OBTAINED ILLEGALLY AFTER APPELLANT’S ARREST SOLELY RELATED TO APPELLANT’S FAILURE
TO APPEAR ON A MISDEMEANOR MARIJUANA CHARGE

7. THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE JUDGMENT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAINLY IN ERROR

Appellant asserts that the evidence seized by Appellee State of Ohio was seized in

violation of the Appellant’s Constitutional rights conferred upon her by the Fourth and

Fourteenth Amendments of the U.S. Constitution, Article One, Section 14 of the Ohio

Constitution, as well as the case law interpreting those Constitutional provisions. State

v. Wilmoth (1986), 22 Ohio St.3d 251, 490 N.E.2d 123; U.S. v. Calandra (1974), 141 U.S. 338.

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Appellant asserts that the exclusionary rule should have applied to all evidence seized

from Appellant’s vehicle and person in this case.

The evidence seized from the Appellant and used by the Appellee State of Ohio

against Appellant at Trial was obtained by the State as a result of a warrantless search.

No exception to the requirement of a search warrant applies under the facts of this case.

The evidence which was introduced against the Appellant was 297 grams of heroin was

not found on Appellant’s person or even in the passenger area of Appellant’s vehicle.

Rather, it was found in a sock behind the tail light assembly of Appellant’s vehicle in a

void.

No heroin was found in Appellant’s direct possession or control and there was no

showing by the Appellee that Appellant knew that the heroin was hidden behind the tail

light assembly of Appellant’s vehicle. The Appellee certainly did not prove beyond a

reasonable doubt at Trial that the Appellant knowingly possessed or knowingly

trafficked in heroin.

RC § 2901.05 addresses the burden of proof in criminal cases and defines

reasonable doubt. That code section states in pertinent part:

(A) Every person accused of an offense is presumed innocent until


proven guilty beyond a reasonable doubt, and the burden of proof
for all elements of the offense is upon the prosecution. The burden
of going forward with the evidence of an affirmative defense, and
the burden of proof, by a preponderance of the evidence, for an
affirmative defense, is upon the accused.

(E) "Reasonable doubt" is present when the jurors, after they have
carefully considered and compared all the evidence, cannot say they

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are firmly convinced of the truth of the charge. It is a doubt based
on reason and common sense. Reasonable doubt is not mere possible
doubt, because everything relating to human affairs or depending
on moral evidence is open to some possible or imaginary doubt.
"Proof beyond a reasonable doubt" is proof of such character that
an ordinary person would be willing to rely and act upon it in the
most important of the person's own affairs.

The Supreme Court of Ohio delineated the role of an Appellate Court presented

with an argument regarding the sufficiency of evidence in State v. Jenks (1991), 61 Ohio

St.3d 259:

It is also an elementary principle of law that when reviewing a


criminal conviction, "* * * [t]his court's examination of the record
at trial is limited to a determination of whether there was evidence
presented, 'which, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt... We have more
recently stated that "* * * '[t]his court may * * * examine the record
with a view of determining whether the proper rules as to the
weight of the evidence and degree of proof have been applied.' State
v. Martin (1955), 164 Ohio St. 54, 57, 57 O.O. 84, 87, 128 N.E.2d 7, 12.
* * * [I]t is not the function of this court to weigh the evidence
developed at trial. However, we will examine the record in order to
determine whether the evidence is of sufficient probative force to
support a finding of guilt beyond a reasonable doubt. * * *"
(Citations omitted.) State v. Sage (1987), 31 Ohio St.3d 173, 183, 31
OBR 375, 383-384, 510 N.E.2d 343, 351.

Trooper indicated that what initially drew his attention to the Appellant’s vehicle

was his observation that - although she was “traveling around the posted speed limit of

55 mph,” the Appellant slowed to “well below” the posted speed limit prior to passing

his stationary location. Trooper indicated that he considered Appellant’s slowing down

as a possible criminal indicator. But consider this: As Trooper was sitting stationary and

observing traffic around 3:00 a.m. on County Road 21 and State Route 93, it is logical that

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any prudent driver would slow their vehicle down significantly upon approaching

another vehicle ahead of them sitting perpendicular to their lane of travel. This is

especially true given that many sleepy and/or impaired drivers are out at that time of

night and the Appellant had no means of knowing if the other driver was going to pull

out in front of her. Further, the State presented no evidence that the Appellant even

knew that the vehicle sitting perpendicular to the road was a State Trooper as Appellant

approached the vehicle and slowed down.

In short, Appellant’s action in slowing down for a vehicle sitting perpendicular to

the road was a reasonable action that should not have been interpreted as a criminal

indicator by Trooper.

Trooper continued by stating that he had his “high beams” on and observed the

Appellant sitting straight up in her seat with both hands gripping the steering wheel

tightly and that Appellant abruptly looked away from Trooper as she drove past his

vehicle. Trooper indicated that he believed that Appellant’s holding of the steering

wheel with two (2) hands, sitting up straight and looking away from him were all

criminal indicators.

Trooper’s position is strange when it is considered in more depth. Appellant was

operating her vehicle just as a person would be taught in drivers’ class - both hands on

the wheel and sitting up straight. A driver nonchalantly driving slumped down with one

(1) hand on the wheel would certainly appear to be less attentive than a driver who is

driving safely. As Trooper had no reason to be suspicious of any possible drug related

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activity on Appellant’s part at this time (Trooper didn’t even know she was from Detroit

as she passed Trooper’s vehicle), Trooper should have only been looking for driving

violations as she passed Trooper. Trooper observed no driving violations on Appellant’s

part until Trooper had followed her for approximately three (3) miles - “in hopes to

catch a probable cause violation for the traffic stop”.

All of Trooper’s observations and actions - from the time he first observed

Appellant’s vehicle coming towards him until Trooper had followed Appellant for three

(3) miles - are indicators of a law enforcement officer looking for a pretextual reason to

pull Appellant over.

Right up until Appellant failed to use her turn signal about three (3) miles down

the road, Appellant had done nothing to justify an stop whatsoever. It is curious that

Trooper was so interested in Appellant as she had not broken any law whatsoever.

Trooper had no reason to pull in behind Appellant and follow her at all, much less to

follow her for three (3) miles, hoping beyond hope that Appellant would commit a minor

traffic violation that would justify Trooper pulling Appellant over.

Appellant acknowledges that this Court’s ruled in State v. Dennewitz, 1999 Ohio

App. LEXIS 5327, 1999 WL 1001109 (Ohio Ct. App., Ross County Nov. 5, 1999), that because

the traffic stop in Dennewitz was based on probable cause that a traffic offense was

committed, the fact that the officer used the traffic stop as a pretext to confirm his

hunch that appellee was involved in illegal drug activity was irrelevant and insufficient

to form a basis to suppress the evidence.

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The Appellant asks the Court to consider that her stop is distinguishable from the

stop in Dennewitz and/or to consider overturning the ruling in Dennewitz because

allowing pretextual stops violates the Constitutional rights of Defendants.

In Dennewitz, the officer followed the Defendant for “several blocks”. In this case,

Trooper followed the Appellant for three (3) miles. That is a significant difference.

Would it be acceptable for a law enforcement officer to follow closely behind a person

for ten (10) miles looking for the person to commit a traffic violation? How about fifty

(50) miles? Five hundred (500) miles? Even when there has been no legitimate

indication of criminal activity? Once the suspect arrives at their destination, can the

Trooper follow her into the residence in hopes that she might take drugs out of her

pocket?

It would appear that Appellant would have been wise to simply pull over in the

first 2.9 miles after Trooper pulled in behind her and allow Trooper to drive by. After

all, Trooper had no basis to stop Appellant during the first 2.9 miles. Nevertheless, for

whatever reason, after three (3) miles of having Trooper on her rear bumper, Appellant

made a minor error and violated a traffic law - thereby resulting in her arrest for failure

to appear... and eventually with being charged with the drug crimes.

It is a generally accepted idea that all people - criminal or not - tend to get

nervous when a law enforcement officer is driving closely behind them. Nervousness

tends to lead to mistakes - mistakes such as not remembering to use a turn signal or

weaving a little bit in the lane, resulting in a tire touching the white line.

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Appellant asserts that it is not wise and an unreasonable public policy to allow law

enforcement officers to follow drivers who have committed no crime for miles in hopes

that they will commit a traffic violation at some point in the sweet by and by.

Of significant importance in this case is State v. Robinette, 80 Ohio St. 3d 234, 685

N.E.2d 762, 1997 Ohio LEXIS 2970, 1997-Ohio-343 (Ohio 1997). In Robinette, the Ohio

Supreme Court stated:

When a police officer's objective justification to continue detention


of a person stopped for a traffic violation for the purpose of
searching the person's vehicle is not related to the purpose of the
original stop, and when that continued detention is not based on
any articulable facts giving rise to a suspicion of some illegal activity
justifying an extension of the detention, the continued detention to
conduct a search constitutes an illegal seizure.

Further, in State v. Hamilton, 2011-Ohio-3835, 2011 Ohio App. LEXIS 3226, 2011 WL

3359984 (Ohio Ct. App., Cuyahoga County Aug. 4, 2011), the Court considered several

issues, including warrantless searches, inventory searches and searches incident to

arrest (emphasis added):

The inventory exception to the Fourth Amendment's warrant


requirement permits police to conduct a warrantless search of
a vehicle in order to inventory its contents after the vehicle has
been lawfully impounded. State v. Mesa, 87 Ohio St.3d 105, 1999
Ohio 253, 717 N.E.2d 329; Crosby. The rationale for excluding
inventory searches from the warrant requirement is that inventory
searches are an administrative or caretaking function, rather than
an investigative function....

In a departure from long-established precedent, the United States


Supreme Court significantly narrowed the parameters of
searches conducted incident to arrests. In Arizona v. Gant (2009),
556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, the Supreme Court

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specifically held that police officers may search a vehicle incident
to arrest only where the suspect is within reaching distance of
the vehicle, or there is reason to believe evidence of the
arresting offense will be present in the vehicle. Id. at 491. This
court has since upheld the reasoning outlined in Gant, see State v.
Thomas, Cuyahoga App. No. 91891, 2009 Ohio 3461.

In agreeing with Gant that the motion to suppress should have


been granted, the Supreme Court reasoned that because Gant
had been arrested, handcuffed, and detained in a patrol car, he
had no possible ability to regain access to his vehicle. Id.
Further, Gant was arrested for driving with a suspended license,
for which no related evidence of this conduct could be found
inside the vehicle. Id. The court held the search to be invalid. Id.

Similarly, in Thomas, police officers observed Thomas failed to


use his turn signal and arrested him for driving without a
license, handcuffed him and placed him in the back of the
patrol car. The officers then searched the vehicle and found two
bags of crack cocaine in the glove box. Id. Following the reasoning
outlined in Gant, this Court held that because the officers
handcuffed and placed Thomas in a patrol car where he no
longer posed a risk to officer safety, and because there would be
no evidence of the offense of driving with a suspended license
present in the vehicle, the search of Thomas's vehicle was
illegal. Id.

Accordingly, because Senft arrested, handcuffed, and placed


Hamilton in the rear of the police car, Hamilton neither posed a
threat to the officers' safety, nor did he have any possible ability to
regain access to his vehicle. Moreover, Senft could not possibly
expect to find evidence of the minor traffic violations Hamilton
committed inside the vehicle. A search incident to arrest under
these circumstances is clearly not permitted under Gant and
Thomas...

Based on the foregoing, we agree with the trial court's conclusion


that the search of Hamilton's vehicle was illegal. Accordingly, the
state's sole assigned error is overruled.

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In this case, Trooper pulled Appellant over for a minor traffic violation. Nothing

that happened during the stop gave Trooper a reasonable, articulable suspicion that the

Appellant might be trafficking in heroin or that Appellant possessed heroin. The mere

fact that Appellant had a warrant out for non-appearance in a marijuana residue case

in no way implies that the Appellant might have been trafficking in or possessing large

quantities of heroin. Trooper first arrested Appellant in relation to the warrant and

ONLY THEN requested that a K-9 unit be brought to search Appellant’s vehicle for drugs.

Were it not for the failure to appear warrant, the Appellant could have left

immediately after receiving a ticket for violating a minor traffic law. However,

Appellant was placed under arrest for failure to appear. At that point, Trooper’s primary

concern should have been to process Appellant in relation to the failure to appear

warrant. Instead, Trooper asserted that he had probable cause to search Appellant’s

vehicle because she “had a warrant for her arrest within the pickup radius...”.

Because Trooper had already placed Appellant under arrest for the outstanding

warrant, there was no reason to request a warrantless K-9 search of Appellant’s vehicle.

The Appellant was already in custody and had no access to her vehicle anymore.

Trooper was - correctly - going to let Appellant have someone come and pick up

Appellant’s vehicle. That fact is further evidence in support of the idea that there was

no basis for Trooper to have Appellant’s vehicle searched by a K-9 unit. Once it became

clear that Appellant could not find anyone to pick up the vehicle, Trooper should have

impounded Appellant’s vehicle - which would have allowed an inventory search of

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Appellant’s vehicle upon the vehicle being impounded. If Trooper believed that he had

a reasonable, articulable suspicion that illegal drugs might be in Appellant’s vehicle, then

Trooper could have asked the Court to issue a search warrant for the Appellant’s vehicle

after it was impounded.

As such, Trooper did not have probable cause to conduct a warrantless search of

Appellant’s vehicle. The heroin that was found in Appellant’s vehicle was not found in

the passenger area, but rather, was found inside the tail light assembly - which was not

accessible from inside of the vehicle. The evidence from the warrantless search should

have been suppressed.

Further, there was no evidence presented at trial that would tend to prove that

Appellant was aware that the heroin was hidden in her vehicle behind the rear light

cover. If the State did not prove that Appellant was aware that the heroin was in her

vehicle, then the State could not prove the “knowingly” requirement of R.C. § 2925.11

or of R.C. § 2925.03.

Finally, for all of the above reasons, the Appellant’s convictions were in plain

error and/or against the manifest weight of the evidence.

CONCLUSION

WHEREFORE, for all of the above reasons, Appellant asks the Court to reverse the

decision of the trial court.

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Respectfully submitted,

_________________________________
Robert W. Bright (0081612)
278 S. 5th Ave.
Middleport, Ohio 45760
740-304-0688
740-994-5178 (FAX)
robwbright@yahoo.com
Attorney for Appellant

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing was served this
10th day of October, 2015 by U.S. Mail to Brigham M. Anderson, Lawrence County
Prosecuting Attorney, 1 Veterans Square, Ironton, Ohio 45638.

_________________________________
Robert W. Bright (0081612)
Attorney for Appellant

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