OH7: Dog alert on a car alone didn’t give PC to search passenger

Dog alert on a car alone didn’t give probable cause to search a passenger. State v. Chapman, 2019-Ohio-3339, 2019 Ohio App. LEXIS 3422 (7th Dist. Aug. 20, 2019):

[*P59] Turning to the facts in this case, there is no question that Hyra’s alert established probable cause to search the automobile. In its response to the motion to suppress before the trial court, the State advocated the adoption of the bright line rule announced by the Tenth Circuit in Anchondo, supra, that a canine alert on a vehicle, like the odor of burning marijuana in Moore, supra, establishes probable cause for a warrantless search of both the vehicle and its occupants.

[*P60] We choose instead to adopt the sound reasoning of the other Ohio appellate districts that have considered this issue, and we hold that a canine alert alone is insufficient to establish probable cause to conduct a full search of the occupants in a vehicle, but may be considered as one factor in the probable cause determination. Further, upon de novo review, see Ornelas, supra, and having considered the totality of the circumstances leading up to the search of Appellant’s shoes in this case, we find that probable cause did not exist for the search.

[*P61] Deputy Carpenter claimed that the occupants’ behavior immediately raised suspicion of criminal activity. At the September 8th hearing, he testified that Appellant stared straight ahead while Deputy Carpenter talked with Moore, as if Appellant did not want to look at Deputy Carpenter, and that Appellant was anxious and sweaty during the stop.

[*P62] Of course, some degree of nervousness and anxiety during a traffic stop is commonplace, as is nervous conversation while waiting for information from dispatch. Moreover, after viewing the body camera footage at the September 25th hearing, Deputy Carpenter conceded that Appellant was looking at his phone, rather than staring straight ahead, while Deputy Carpenter talked with Moore. Of equal import, Deputy Carpenter conceded at the September 25th hearing that he, too, was sweating during the early-July encounter.

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