OH11: When def’s ID showed he wasn’t subject to an order of protection, questions about drugs unreasonably extended stop

Defendant was stopped and the officer asked for his ID to determine whether defendant was subject to an order of protection. He wasn’t. Then the officer started asking about drugs, and he didn’t like the form of defendant’s answer. That went too far, and it unreasonably extended the stop without reasonable suspicion. State v. Mullen, 2018-Ohio-5188, 2018 Ohio App. LEXIS 5492 (11th Dist. Dec. 21, 2018):

[*P23] Deputy Sterrick initially approached appellant after arresting Stanley and asked to see appellant’s identification. However, after confirming appellant was not the victim of a protection order against Stanley, Deputy Sterrick questioned appellant about whether she was in possession of drugs. When appellant gave an answer that was not acceptable to Deputy Sterrick, he told appellant that he planned to have his drug detection dog walk around the car. Deputy Sterrick testified he informed appellant that “if [the dog] alerted to it and drugs were located on her person or within the vehicle, that I would charge her with falsification in addition to the drugs I found.” This statement indicates appellant was to remain in the vehicle while the drug detection dog walked around it. Under these circumstances, a reasonable person would not feel free to leave or terminate the encounter. Therefore, we determine Deputy Sterrick’s initial encounter with appellant was a consensual encounter that evolved into an investigative detention.

[*P24] The totality of the circumstances did not provide Deputy Sterrick with a reasonable suspicion of criminal activity afoot to justify the detention of appellant. Deputy Sterrick testified he was suspicious that appellant was in possession of drugs because she was associating with Stanley, who had been indicted on several “serious” crimes, and because upon being questioned, appellant responded that she was “not aware of” any drugs on her person or in the vehicle. Deputy Sterrick explained that in his years of experience and training, “routinely, the people that are involved in especially serious offenses of violence *** are typically involved with drugs, and the people that are involved with drugs typically associate with others involved in drugs[.]” He further explained: “[T]he most common response in which I find illegal narcotics on a person is the response of, not that I know of. It’s not a clear yes or no. It is a — has an open-ended answer, and that raised my suspicion.” Other than Deputy Sterrick’s assumptions and “unparticularized suspicion,” we find nothing in the record that would lead to a reasonable, articulable suspicion that appellant was in possession of drugs. Therefore, Deputy Sterrick’s continued detention of appellant under threat of bringing in the drug detection dog was unlawful, and the evidence obtained after the unlawful detention must be suppressed as “fruit of the poisonous tree.”