OH11: Intentionally delaying issuing ticket to give dog time to arrive where no RS is unreasonable

Intentionally delaying issuing a noise ticket to give the drug dog time to arrive made the stop unreasonable because there was no reasonable suspicion of drug activity. State v. Eggleston, 2015-Ohio-958, 2015 Ohio App. LEXIS 928 (11th Dist. March 16, 2015):

[*P25] We find that the circumstances of this case clearly fall on the other side of the line drawn in Henry. Here, before the K-9 unit even arrived on the scene, Officer Weber had verified all of the following: appellant’s license was valid; the vehicle was not reported stolen; the vehicle belonged to appellant’s girlfriend, as appellant stated; and appellant had no outstanding warrants. Nevertheless, Officer Weber waited a period of time, surrounded by at least four other officers, before beginning to issue a summons for the alleged noise violation–solely, and admittedly, because he was waiting for the K-9 unit to arrive. Once the K-9 unit arrived, Officer Weber approached appellant and ordered him out of the car so that the K-9 could walk around the vehicle. When appellant inquired as to what reason the officer had for conducting a K-9 walk-around, Officer Weber replied, “I don’t need a reason.”

[*P26] These facts are very reminiscent of Henry, where we observed that “it does appear that the officers prolonged the stop so that [the K-9] could arrive on the scene.” Id. at ¶41. Even so, we upheld the denial of the motion to suppress in Henry:

[I]n this case when the ‘collection’ of factors cited by the officer underlying his suspicion of drug activity and decision to call for a K-9 officer are viewed as a whole and the law of Batchili is applied, we are compelled to give due weight to the inferences drawn by the officer and the trial court that ‘crime was afoot’ in this case and uphold the continued detainment.

Id. at ¶43, citing Terry v. Ohio, 392 U.S. 1 (1968). The “law of Batchili” to which the Henry Court refers is as follows: “[A]ssuming the detention was actually prolonged by the request for a dog search, ‘the detention of a stopped driver may continue beyond [the normal] time frame when additional facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop.‘” Batchili, supra, at ¶15, quoting Howard, supra, at ¶16 (emphasis added).

. . .

[*P28] Here, the trial court found there was “no undue delay between the stop and the time of the drug dog sniff.” However, this is not a proper application of the law to the facts. Once it is determined that a delay occurred for the sole purpose of conducting a K-9 “sniff,” the question is not whether the delay was undue, but whether the delay was supported by a reasonable, articulable suspicion of drug activity. At oral argument, appellee, the state of Ohio, conceded that in order to delay a traffic stop for the purpose of conducting a K-9 drug “sniff,” the reasonable, articulable suspicion required must be of drug activity. In that respect, this case is distinguishable from Henry—Officer Weber did not articulate any facts establishing a reasonable suspicion of drug activity and his decision to call, and wait for, a K-9 officer.