[Cite as State v. Maffey,
2021-Ohio-2460.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellant, : CASE NO. CA2020-08-045
: OPINION
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:
MICHAEL P. MAFFEY, :
Appellee. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2019 CR 00921
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellant.
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant
Public Defender, for appellee.
HENDRICKSON, J.
{¶1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Clermont
County Court of Common Pleas granting a motion to suppress filed by defendant-appellee,
Michael P. Maffey. For the reasons set forth below, we reverse the judgment of the trial
court.
{¶2} In September 2019, Maffey was indicted for aggravated possession of drugs.
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The charges stemmed from an agent's stop of a vehicle in which Maffey was a passenger.
During the stop, the agent searched both the vehicle and Maffey, and discovered
methamphetamine under the vehicle's passenger-side visor. Maffey pleaded not guilty to
the charges.
{¶3} In January 2020, Maffey moved to suppress the evidence discovered as a
result of the officer's stop and search of the vehicle, as well as his search of Maffey's person.
In his motion, Maffey argued the officer improperly extended the traffic stop, and that the
resulting search of the vehicle and his person were not supported by probable cause.
{¶4} At the suppression hearing, Agent Robert Bailey with the Clermont County
Sheriff's Office testified that he had been employed with the Sheriff's Office since 1998 and
became involved with the canine program in 2004. On October 21, 2018, Agent Bailey was
doing "drug interdiction work," and was parked near the intersection of Inez Avenue and
Airport Road in Tate Township. The agent described the "general area" as a "high drug
area."
{¶5} While parked near the intersection, Agent Bailey observed a vehicle commit
two traffic violations during its turn at the intersection's stop sign. Specifically, the driver
failed to timely use his turn signal and the vehicle had a loud exhaust system hanging from
the bottom of the vehicle. Agent Bailey stated he made several traffic stops throughout his
shift that day, and that it was common for him to initiate traffic stops due to such traffic
violations, regardless of whether the violations occurred in high traffic areas or not.
{¶6} After observing the traffic violations, Agent Bailey initiated a traffic stop at 5:01
p.m. The agent then retrieved the driver's identification, and noticed the passenger, Maffey,
was not wearing a seatbelt. At that point, Agent Bailey asked Maffey for his identification,
to which Maffey responded that his name was Michael Davis and his date of birth was
March 29, 1960, but he could not recall his social security number. Agent Bailey testified
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"it appeared to [him] … that [Maffey] was being reluctant or misleading about his - - who
he was and his identification." Specifically, Agent Bailey was suspicious of Maffey's
response because, in his experience, "somebody that age usually knows their Social
Security number."
{¶7} At that point, Agent Bailey radioed the department's communication center to
"run" the information provided by Maffey and the driver. The purpose of radioing in the
information was to check the driving status of the driver and to conduct a routine warrant
check on the driver and Maffey. While the communication center was running the
information, Agent Bailey deployed his canine, Mox, for a free air sniff around the exterior
of the vehicle. According to Agent Bailey, Mox started at the front driver-side headlight and
worked counterclockwise around the vehicle. During the canine sniff, Agent Bailey
observed that "[a]s [Mox] started rounding the passenger side – the rear passenger side of
the vehicle, his respiration increased, there's a change of behavior, he bracketed to a point
where he centralized where an odor of illegal narcotics was emitting from the vehicle, and
he gave a positive alert for the odor of narcotics inside of that vehicle at that point." Agent
Bailey testified Mox's positive alert indicated there was an odor of illegal narcotics inside
the vehicle.
{¶8} After observing Mox's positive alert, Agent Bailey secured Mox in his vehicle
and returned to Maffey and the driver. At that point, the communication center informed the
agent that it could not find any information under the name and date of birth provided by
Maffey. According to Agent Bailey, this heightened his suspicion that Maffey provided him
with false information.
{¶9} At that point, the agent removed Maffey from the vehicle and placed him in
handcuffs. Maffey was not under arrest at that time but was secured for officer safety.
Agent Bailey explained that, on a prior occasion, he encountered a similar situation where
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a suspect provided false information to him during a traffic stop and then fled the scene.
Agent Bailey and another deputy engaged in a chase of the suspect, who ultimately stabbed
both the agent and deputy. That incident, in addition to the fact that the agent was dealing
with Maffey and the driver by himself, led the agent to securing Maffey in handcuffs.
{¶10} After securing Maffey, Agent Bailey advised Maffey and the driver that he
"was going to search the vehicle because of the positive [canine] alert." At that point, the
agent conducted a pat down of Maffey's person, searching for weapons or contraband.
During the pat down, Agent Bailey discovered a wallet on Maffey's person. According to
Agent Bailey, the wallet is a common source of concealment for illegal narcotics as it gives
the suspect the ability to keep the product close on his person while keeping it concealed.
Thus, upon discovering the wallet during the pat down, Agent Bailey proceeded to search
the wallet for weapons and contraband. During the search, Agent Bailey discovered an
Ohio identification card ("ID") belonging to a Michael Maffey. The agent testified he knew
the ID was not drugs and that it was not a weapon when he removed the card from Maffey's
wallet; however, he indicated there was a "possibility that there could have been drugs
concealed underneath the ID card."
{¶11} After Agent Bailey pulled the ID from the wallet, Maffey admitted, without
being questioned, that his name was Mike Maffey and he had a warrant for his arrest. Agent
Bailey confirmed this information with the communication center, which advised that Maffey
had a felony warrant for his arrest for drugs. After learning of the warrant, Agent Bailey
advised Maffey of his Miranda rights and asked him if he had anything illegal inside the
vehicle. At that time, Maffey informed Agent Bailey that he had a cigarette pack containing
methamphetamine above the sun visor on the passenger side.
{¶12} Agent Bailey then removed the driver from the vehicle and conducted a pat
down for weapons. After removing the driver from the vehicle, the agent conducted a
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search of the interior of the vehicle, wherein he discovered a cigarette pack containing a
crystal substance, which later tested positive for methamphetamine, above the passenger-
side visor. According to Agent Bailey, he would have found the cigarette pack regardless
of whether Maffey informed him of the contraband or not.
{¶13} Around the time Agent Bailey discovered the methamphetamine, another
officer arrived on the scene and transported Maffey to the Clermont County jail.
{¶14} After consideration of written closing arguments, the trial court granted
Maffey's motion to suppress, and suppressed the statements made by Maffey after the pat
down search, as well as the methamphetamine found in the vehicle after Maffey's
statements were made. In its decision, the trial court found that Agent Bailey's decision to
conduct a pat down search of Maffey was reasonable and justified, given the totality of the
circumstances, both as a search for drugs and weapons, but concluded Agent Bailey's
examination of the ID exceeded the limited scope of a warrantless search of the person as
set forth in Terry v. Ohio. The trial court also concluded the inevitable discovery doctrine
did not apply in this case, as the state failed to prove the agent was actively pursuing an
alternative line of investigation prior to the misconduct.
{¶15} The state now appeals, raising the following assignment of error for our
review:
{¶16} Assignment of Error No. 1:
{¶17} THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE AS THE
AGENT'S SEARCH DID NOT VIOLATE THE FOURTH AMENDMENT AND AS THE
INEVITABLE DISCOVERY AND ATTENUATION DOCTRINES APPLIED TO PREVENT
SUPPRESSION.
{¶18} As noted above, in granting Maffey's motion to suppress the trial court
suppressed the methamphetamine found in the vehicle as well as the statements Maffey
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made to Agent Bailey after the search of the wallet. On appeal, the state only challenges
the trial court's decision as it relates to the suppression of the drugs found in the vehicle.
While its merit brief states that the trial court erred in suppressing "the evidence" generally,
it does not reference or otherwise analyze the correctness of the trial court's decision to
suppress Maffey's statements to Agent Bailey after the search of his wallet and inspection
of the ID. Rather, the state's brief focuses solely on Agent Bailey's discovery of the
methamphetamine inside the vehicle, and the trial court's error in suppressing that
evidence. As a result, we will not address the trial court's decision as it relates to the
suppression of Maffey's statements. See, e.g., State v. Brauer, 12th Dist. Warren No.
CA2012-11-109,
2013-Ohio-3319, fn. 1.
I. Standard of Review
{¶19} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-
Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve
factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial
of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact
if they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.
CA2005-03-074,
2005-Ohio-6038, ¶ 10. "An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." Cochran at ¶ 12.
II. The Fourth Amendment
{¶20} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including
unreasonable automobile stops. Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-
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3563, ¶ 11. A warrantless search is per se unreasonable unless certain "'specifically
established and well delineated exceptions'" exist. Xenia v. Wallace, 37 Ohio St.3d 216,
218 (1988), quoting Coolidge v. New Hampshire,
403 U.S. 443, 454-455,
91 S.Ct. 2022
(1971). Once a warrantless search is established, the state bears the burden of proof,
including the burden of going forward with evidence, to show the validity of the search.
Id.
at paragraph two of the syllabus. The state's burden of proof that the search is subject to
an exception to the warrant requirement is by a preponderance of the evidence. Athens v.
Wolf,
38 Ohio St.2d 237, 241 (1974).
{¶21} One such exception, the "automobile exception," provides that warrantless
searches of motor vehicles are permitted if police have probable cause to believe that the
vehicle contains evidence relevant to a crime and that exigent circumstances exist
necessitating a search or seizure. Carroll v. United States, 267 U.S. 132, 149,
45 S. Ct.
280 (1925). The mobility of automobiles creates the exigent circumstance and is the
traditional justification for this exception to the Fourth Amendment's warrant requirement.
California v. Carney,
471 U.S. 386, 391,
105 S.Ct. 2066 (1985); State v. Mills,
62 Ohio St.3d
357, 367 (1992). The automobile exception also allows for the warrantless search of
packages and containers in a vehicle that could contain items for which officers have
probable cause to search. United States v. Ross,
456 U.S. 798,
102 S.Ct. 2157 (1982).
The Court explained, "[i]f probable cause justifies the search of a lawfully stopped vehicle,
it justifies the search of every part of the vehicle and its contents that may conceal the object
of the search."
Id. at 825.
{¶22} If an individual's right against unreasonable searches and seizures is violated,
the evidence obtained as a result of the violation is subject to exclusion. United States v.
Leon, 468 U.S. 897, 906,
104 S.Ct. 3405 (1984). While the Fourth Amendment does not
contain an express mandate that evidence seized as a result of an illegal search be
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suppressed, suppression is inherent in the amendment's language. Id., citing United States
v. Calandra,
414 U.S. 338, 348,
94 S.Ct. 613 (1974). "The [exclusionary] rule thus operates
as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of the party
aggrieved.'"
Id., quoting
Calandra at 348.
III. The Inevitable Discovery Doctrine
{¶23} As noted above, the state argues on appeal that the trial court erred in finding
the inevitable discovery doctrine does not apply in this case. Specifically, the state contends
that, even if the agent's examination of Maffey's ID was unreasonable pursuant to the Fourth
Amendment, the trial court erred in concluding the agent did not actively pursue the dog
alert on the vehicle before the pat down search. After a review of the record, we agree with
the state's claim.
{¶24} Under the inevitable-discovery doctrine, evidence that is illegally obtained is
properly admitted "once it is established that the evidence would have been ultimately or
inevitably discovered during the course of a lawful investigation." State v. McCullough, 12th
Dist. Fayette No. CA2013-07-021, 2014-Ohio-1696, ¶ 29, citing State v. Farrey, 9th Dist.
Summit No. 26703,
2013-Ohio-4263, ¶ 17, quoting State v. Perkins,
18 Ohio St.3d 193
(1985), syllabus. Under the "prior to misconduct" requirement, inevitable discovery has
been restricted to situations where alternative investigatory procedures were already
underway or completed.
Id., citing State v. Bradford, 4th Dist. Adams No. 09CA880, 2010-
Ohio-1784, ¶ 56. The doctrine generally applies where, "prior to the misconduct, authorities
were actively pursuing an alternate line of investigation that would have resulted in
discovery of the evidence, or authorities would have subsequently discovered the evidence
through a standardized procedure or established routine." State v. Cundiff, 10th Dist.
Franklin No. 12AP-483,
2013-Ohio-1806, ¶ 20, citing Bradford at ¶ 55.
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{¶25} In other words, "the state must show that police were actively pursuing an
alternate line of investigation, one untainted by the illegality that took place prior to the
particular misconduct." State v. Porter, 178 Ohio App.3d 304,
2008-Ohio-1149, ¶ 43 (2d
Dist.). Otherwise, the inevitable-discovery doctrine would apply even if police merely "could
have discovered" the evidence, rather than if they "would have discovered" the evidence.
Id., citing State v. Pearson,
114 Ohio App.3d 153 (3d Dist.1996).
{¶26} The record is clear that during the "pat down," Agent Bailey did not believe
the wallet was a weapon. Rather, he immediately identified the item as a "billfold," and
proceeded to search the wallet because, in his experience, individuals typically hide
contraband in their wallets. It is well settled that a Terry search is limited in scope to a pat
down search of an individual's outer clothing for weapons. State v. Arrasmith, 12th Dist.
Madison No. CA2013-09-031, 2014-Ohio-4173, ¶ 15, citing State v. Terry,
392 U.S. 1, 29,
88 S. Ct. 1868 (1967). Because a protective pat down is limited to the purpose of protecting
the officer, it cannot be employed by the searching officer to search for evidence of a crime.
Id. citing State v. Evans,
67 Ohio St.3d 405, 414 (1993). Consequently, because Agent
Bailey was not conducting a protective pat down limited to the search for concealed
weapons, the search of Maffey's wallet, and the subsequent inspection of the ID, must be
supported by probable cause to be reasonable pursuant to the Fourth Amendment. Id. at
¶ 17-18.
{¶27} Here, the trial court determined that in light of the totality of the circumstances,
the agent did not have probable cause to examine the ID. Thus, for the inevitable discovery
doctrine to apply, the state was required to prove that the drugs ultimately would have been
discovered during the course of a lawful investigation prior to the examination of the ID.
{¶28} Regarding the inevitable discovery doctrine, the trial court stated:
There was a positive drug sniff and, at that point, the agent had
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probable cause to search the vehicle. Nonetheless, the agent
did not immediately search the vehicle. Instead, he conducted
the pat down search and the ensuing wallet search including the
removal and examination of the ID card. That compromised the
investigation. If the agent had had (sic) not impermissibly read
and discussed the information on the ID card with [Maffey], there
is no evidence that further conversation would have transpired
between the agent and [Maffey].
…
For purposes of this analysis, the court will accept the agent's
testimony that the drugs in the vehicle would have been
discovered without [Maffey's] statement, thus satisfying the first
part of the test. The court will also accept the second part of the
test that the agent possessed a lead (the dog sniff) making the
discovery inevitable. However, it is clear that there is no
indication the agent or the drug unit 'were actively pursuing an
alternate line of investigation prior to the misconduct.' The fact
that the dog had alerted to the vehicle before the pat down
search demonstrates that the agent did not actively pursue that
line of investigation before exceeding the permissible scope of
the pat down."
Thus, the trial court concluded that, because there was no active pursuit of an alternative
line of investigation prior to the misconduct, the doctrine of inevitable discovery did not
apply.
{¶29} After a careful review of the record, we find the state established that the
inevitable discovery doctrine permits admission of the evidence discovered in the vehicle.
Specifically, we find the state set forth sufficient evidence to prove there was an alternate
line of investigation underway prior to Agent Bailey's examination of the ID.
{¶30} As an initial note, the parties do not dispute that, in light of the traffic violations,
the agent had probable cause to stop and detain the vehicle and its passengers for a period
of time sufficient to perform routine procedures such as a computer check on Maffey's
information and the driver's license, registration, and vehicle plates. State v. Grenoble, 12th
Dist. Preble No. CA2010-09-011, 2011-Ohio-2343, ¶ 28.
{¶31} Additionally, both Ohio courts and the United States Supreme Court have
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determined that "the exterior sniff by a trained narcotics dog to detect the odor of drugs is
not a search within the meaning of the Fourth Amendment to the Constitution." State v.
Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶ 22. Thus, "a canine sniff
of a vehicle may be conducted during the time period necessary to effectuate the original
purpose of the stop." Dominguez at ¶ 22. Moreover, if a trained narcotics dog "alerts to
the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search
the vehicle for contraband." Id.; State v. Bolden, 12th Dist. Preble No. CA2003-03-007,
2004-Ohio-184, ¶ 18. Specifically, once a drug dog alerts to the presence of drugs, "it gives
law enforcement probable cause to search the entire vehicle." State v. Cruz, 12th Dist.
Butler No. CA2013-10-008,
2014-Ohio-4280, ¶ 18.
{¶32} Accordingly, here, as the trial court found, Agent Bailey had probable cause
to believe the vehicle contained illegal narcotics based on Mox's alert to the odor of
narcotics. The evidence at issue was found in a cigarette pack above the vehicle's
passenger side visor. As noted above, if the search of a lawfully stopped vehicle is justified
by probable cause, the search of every part of the vehicle and its contents that may conceal
the object of the search is also justified. Id. at 825. Thus, the searches of the vehicle and
the cigarette pack were justified due to Mox's alert and the existing exigent circumstances.
{¶33} However, the drugs were located after the agent examined the ID, and after
Maffey informed the agent of his true identity and the drugs' location. Thus, the state was
required to demonstrate that the agent was actively pursuing the untainted, alternate line of
investigation, i.e., Mox's alert, prior to the agent's search of Maffey's wallet and inspection
of the ID.
{¶34} At the suppression hearing, Agent Bailey testified Mox's positive alert
indicated to him that there was an odor of illegal narcotics inside the vehicle. Agent Bailey
further stated that Mox's alert occurred on the passenger side of the vehicle, where Maffey
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was sitting and where the methamphetamine was located. After Mox's alert, the agent
secured Mox in his vehicle and removed the occupants from their vehicle. By that time, the
communication center had informed Agent Bailey that Maffey's name and birth date was
not in the system, which resulted in the agent securing Maffey in handcuffs. Prior to
conducting the pat down of Maffey, Agent Bailey advised the driver and Maffey that he was
going to search the vehicle because of Mox's positive alert. The agent then proceeded with
the pat down of Maffey.
{¶35} In light of the above, the record is clear that Agent Bailey intended to search
the vehicle based upon Mox's positive alert after securing Maffey. In addition to the agent's
statement that he was going to search the vehicle, Agent Bailey further testified that he
would have discovered the drugs under the passenger side visor, regardless of Maffey's
statements. This is supported by the record where, as is the case here, the agent had
approximately 20 years of experience in the police force, over 10 of which took place with
the canine unit, and the drugs were discovered in a cigarette pack – a common container
to conceal drugs – under the vehicle's visor – a common place to search in a vehicle. See
e.g., State v. Huff, 12th Dist. Butler No. CA2019-06-104, 2020-Ohio-1064, ¶ 9 (where
methamphetamine was discovered concealed in a cigarette pack during a lawful search);
State v. Barber, 9th Dist. Summit No. 28507,
2017-Ohio-8010, ¶ 18 (search of the vehicle
yielded drugs hidden underneath the vehicle's visor); State v. Bickel, 5th Dist. Ashland No.
2006-COA-034,
2007-Ohio-3517, ¶ 7 (same); State v. Huggins, 6th Dist. Lucas No. L-95-
233,
1996 Ohio App. LEXIS 3323, *2 (Aug. 9, 1996).
{¶36} Based upon this evidence, we conclude the agent's search of the car was not
due to Maffey's statements after the search of the wallet. Instead, the line of investigation
relating to the vehicle and Mox's alert was separate and distinct from the agent's
subsequent search of Maffey. Thus, despite Maffey's declaration of the location of the
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methamphetamine in the cigarette pack, and based upon the evidence in the record, we
find the agent would have lawfully discovered the drugs in his investigation of Mox's alert
regardless of Maffey's statements.
{¶37} We further find that the agent did not abandon the investigation stemming
from Mox's alert prior to the misconduct of searching Maffey's wallet. Rather, prior to
conducting the pat down of Maffey, the agent specifically noted that he intended to search
the vehicle. There is no evidence in the record that he ever abandoned his intent to search
the vehicle after searching Maffey. Consequently, the record reflects the agent's
investigation into Mox's positive alert was ongoing at the time he removed Maffey from the
vehicle. At that point, the record indicates Agent Bailey planned to search the vehicle due
to Mox's alert and informed Maffey of his intentions, but temporarily ceased that line of
investigation in order to secure Maffey for his safety. Based upon the plain language of the
inevitable discovery doctrine, the alternate line of investigation must occur "prior to" the
misconduct. Thus, the agent's temporary pause in investigating Mox's positive alert to
secure and search Maffey did not render the initial investigation abandoned or the doctrine
inapplicable.
{¶38} In light of the above, we find the state set forth sufficient evidence to prove
there was an alternative line of investigation underway prior to Agent Bailey's examination
of the ID, and that line of investigation was not abandoned when the agent conducted the
search of Maffey's wallet. Consequently, we find the trial court erred in concluding the
inevitable discovery doctrine did not apply in this case.
{¶39} Accordingly, because the agent was actively pursuing an alternate
investigation, one untainted by any illegality and took place prior to the misconduct, the
methamphetamine should not have been suppressed. As such, the state's assignment of
error is sustained, the trial court's grant of the motion to suppress is reversed as to the
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methamphetamine discovered in the vehicle, and this cause is remanded for further
proceedings.
{¶40} Judgment reversed.
M. POWELL, P.J., and BYRNE, J., concur.
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