The video footage, coupled with the marijuana debris in the vehicle and facts suggesting Etherson- Tabb was lying about his employment and travel plans, gave Trooper Lewis reasonable, articulable suspicion that Mr. Etherson-Tabb was concealing contraband around his crotch area.
State v. Etherson-Tabb
2024 – Ohio – 550
Fourth District Appellate Court
Scioto County, Ohio
February 9, 2024
A Gut Feeling and a Traffic Violation
Several witnesses testified for the state, but most pertinent to this appeal is the testimony of Trooper Nick Lewis of the Ohio State Highway Patrol. He testified that on Sunday, June 28, 2020, around 11:30 p.m., he saw a vehicle traveling southbound on U.S. Route 23. The vehicle caught his attention because it appeared to be a rental vehicle, and the driver appeared to be wearing a brand-new yellow construction vest. Trooper Lewis testified that a lot of drug traffickers use rental vehicles, that it is unusual to see construction workers on US 23 on a Sunday at 11:30 p.m., and that people sometimes try to look like construction workers to “blend in with traffic.” Trooper Lewis caught up to the vehicle near the exit to State Route 823. The vehicle was in the right lane, and Trooper Lewis saw its left tires drift completely over the white dash center lane line before abruptly moving back into the right lane. The driver then took the southbound exit ramp to SR 823. Trooper Lewis testified that there is a point where the fog lines for the southbound and northbound exit ramps “basically come into a triangle,” and the lanes join. Right before that point, he saw the vehicle’s “right side tire” drift over the southbound exit ramp’s white fog line by about half a tire width. The driver then activated his turn signal and moved into the other lane.
Trooper Nick Lewis observed a driver wearing a brand new construction vest inside a vehicle on a Sunday. Trooper Lewis believed this was beyond unusual and rose to the level of suspicious. Tr. Lewis’ actions that followed would lead to an arrest, conviction and appeal.
Camera Did Not Capture Traffic Violation
Trooper Lewis had two cameras in his cruiser at the time of the traffic stop— a front-facing one which captured events happening through the front windshield and a rear-facing one which captured events happening in the backseat. Trooper Lewis testified that the cameras were set up to continuously record but only began recording 60 seconds before he activated his overhead lights. He indicated that the cameras did not capture the traffic violations in this case because they occurred more than 60 seconds before he activated his overhead lights.
No Driver’s License and a Pat Down
The video footage starts 90 seconds before Trooper Lewis activated his overhead lights. The audio is sometimes difficult to hear, but after Trooper Lewis approaches the vehicle, he can be heard asking the driver, Mr. Ryan Etherson-Tabb, for his license. Trooper Lewis testified that Mr. Etherson-Tabb gave him a Michigan ID card. On the footage, Mr. Etherson-Tabb tells Trooper Lewis that he is driving a rental car and heading to Ashland, Kentucky for court. They discuss the reason for the traffic stop, and Trooper Lewis says, “So you don’t have a driver’s license?” Mr. Etherson-Tabb says he does and gives Trooper Lewis some paperwork. Trooper Lewis briefly looks at it while Mr. Etherson-Tabb talks. Trooper Lewis puts the paperwork inside the vehicle and has Mr. Etherson-Tabb exit the vehicle. Trooper Lewis asks if Mr. Etherson-Tabb has any weapons. Mr. Etherson-Tabb indicates he does not and raises his arms up, and Trooper Lewis says he will pat Mr. Etherson-Tabb down if he does not mind. On the footage, it sounds as if he says, “Ok,” and Trooper Lewis testified that Mr. Etherson-Tabb said he did not care. Trooper Lewis then does a pat-down search, places Mr. Etherson-Tabb in the back of the cruiser, and retrieves the paperwork from his vehicle.
Ryan told the Truth, there was Nothing Illegal in the Car because it was in his …
Trooper Lewis testified that he returned to his cruiser to verify whether Mr. Etherson-Tabb had a driver’s license. On the footage, once in the cruiser, Trooper Lewis asks Mr. Etherson-Tabb what he has court for, and Mr. Etherson-Tabb says it is for a “ticket.” Trooper Lewis asks if there is anything illegal in Mr. Etherson-Tabb’s vehicle. Mr. Etherson-Tabb says there is not and something like “everything you need to do.” Trooper Lewis testified that he took this comment to mean Mr. Etherson-Tabb would probably consent to a vehicle search if asked, so Trooper Lewis had Trooper Matt Lloyd head to the scene. At some point before Trooper Lloyd arrived, Trooper Lewis ran the number on the Michigan ID card, and the Michigan BMV indicated Mr. Etherson-Tabb’s license was expired and suspended. On the footage, Trooper Lewis and Mr. Etherson-Tabb discuss his paperwork. Trooper Lewis testified that he had “a difficult time” going through it because it was from two different courts. It appeared to him that Mr. Etherson-Tabb had been granted driving privileges in Michigan for 60 days, which had expired. Trooper Lewis testified that he tried to figure out if the privileges had been extended.
Who Doesn’t Travel from Detroit to West Virginia wearing a Brand New Yellow Construction Vest … besides Unemployed Construction Workers?
On the footage, Trooper Lewis and Mr. Etherson-Tabb discuss the fact that another person rented the vehicle Mr. Etherson-Tabb is driving because he could not do so with a suspended license. Trooper Lewis also asks where Mr. Etherson-Tabb works. He initially says he is not working right now but then says he does a little construction in Detroit and is traveling from work. They discuss his driver’s license again and a document Trooper Lewis says that he is “trying to figure out.” About 10 minutes into the traffic stop, Trooper Lewis asks dispatch for a “78,” which he testified is a criminal history check. He testified that he gave dispatch Mr. Etherson-Tabb’s driver’s license number, and at that point, dispatch will “typically run that,” check the status of the person’s license, check for warrants, and run a criminal history check. However, he acknowledged that he did not think dispatch could give him any information about the license status that he did not already have access to from his cruiser.
A Small Amount of Marijuana is Discovered in the Vehicle
On the footage, Trooper Lewis asks Mr. Etherson-Tabb additional questions about his upcoming traffic case. About 14 minutes into the stop, Trooper Lloyd arrives. Trooper Lewis testified that at that point, he thought he was trying to verify whether Mr. Etherson-Tabb had court the next day. On the footage, Trooper Lewis says that if Mr. Etherson-Tabb does not care, “while they’re checking some information on you,” he will “check the car real quick” if Mr. Etherson-Tabb does not mind, and Mr. Etherson-Tabb says, “Ok.” Trooper Lewis and Trooper Lloyd converse, and dispatch provides information on Mr. Etherson-Tabb’s criminal history. The troopers finish their conversation, and Trooper Lloyd discusses the driver’s license issue with Mr. Etherson-Tabb, while Trooper Lewis searches the front passenger side of the vehicle. About 16 minutes into the stop, Trooper Lewis announces that he found a “piece of weed.” Trooper Lewis testified that based on his training and experience, he can identify marijuana by sight, and he found a “small piece of marijuana” or “little bit of marijuana residue on the floor.” Trooper Lewis continued to search the vehicle, and Trooper Lloyd joined him after additional discussion with Mr. Etherson-Tabb about the driver’s license issue. Trooper Lewis testified that aside from marijuana “debris” or “residue” which was “throughout the vehicle,” the troopers found no other contraband.
Six Pairs of Shoes and a Crunchy Crotch
On the footage, about 52 minutes into the stop, the troopers stop the vehicle search. Mr. Etherson-Tabb returns to his vehicle. Trooper Lewis testified that he then reviewed the footage from his rear-facing camera to see if there was anything the troopers missed, like Mr. Etherson-Tabb reacting to a “hotspot on the car where something was … concealed.” Trooper Lewis thought his story did not make sense because he made inconsistent statements about being employed, claimed to be coming from a construction job while wearing what appeared to be brand new clothing, and was traveling with six pairs of shoes for an overnight trip. The footage shows that while Mr. Etherson-Tabb is alone in the cruiser waiting for Trooper Lewis to retrieve his paperwork, he puts his hands inside his pants and seems to adjust something in his crotch area. Trooper Lewis testified that when he watches footage from inside his cruiser, he can “kill” certain microphones. When he did this with a microphone that was creating a “buzzing” sound, he could hear a “crunching sound” when Mr. Etherson-Tabb moved his hands around. The footage also shows Mr. Etherson-Tabb moving his hands around his crotch area, from over top and inside of his pants, at other times he is in the cruiser.
Not the Normal Location for Pharmaceutical Storage
Based on his training and experience, Trooper Lewis believed Etherson- Tabb was concealing contraband, such as pills or crack cocaine. Trooper Lewis testified that he had Mr. Etherson-Tabb exit his vehicle again, searched him, and felt an object concealed between his legs. Trooper Lewis testified that he offered to let Mr. Etherson-Tabb leave the scene and do a direct indictment if he voluntarily surrendered the object. Mr. Etherson-Tabb reached down the front of his pants, pulled out a baggie containing 180 oxymorphone pills and five oxycodone pills, and gave it to Trooper Lewis, who let him leave the scene about an hour and a half after initiating the stop. Trooper Lewis could not recall whether he ever completed a written warning “for the lane violation.” He did not cite Mr. Etherson-Tabb for driving under suspension because he was unable to confirm whether Mr. Etherson-Tabb had valid driving privileges. Trooper Lewis “aired [sic] on the side of caution”because the stop was during the COVID-19 pandemic, and he knew “Ohio was extending driver’s license renewals,” so he “went ahead with the assumption that Michigan had probably renewed” Mr. Etherson-Tabb’s driving privileges.
Five to Seven and a Half Years of Prison
After the state rested its case-in-chief, the trial court overruled the motion to suppress. The defense then presented its case-in-chief during which Mr. Etherson-Tabb testified. The trial court found him guilty on all counts. The court found that the aggravated trafficking in drugs and aggravated possession of drugs counts merged. The state elected to proceed to sentencing on the aggravated trafficking in drugs count, and the court imposed an aggregate sentence of five to seven and a half years on that count and the possessing criminal tools count.
Appeal
Mr. Etherson-Tabb presents one assignment of error: “The trial court erred indenying Appellant’s Motion to Suppress.”
Mr. Etherson-Tabb Claims Trooper Lewis’ Detention was Unreasonable
In his sole assignment of error, Mr. Etherson-Tabb contends that the trial court erred in denying his motion to suppress. He maintains the traffic stop was unconstitutional because “a reasonable prudent person would not believe a crime had been committed.” He asserts that Trooper Lewis was only suspicious of him because he was wearing a yellow construction vest and driving a vehicle with Virginia license plates, followed his vehicle “for several miles without probable cause to stop it,” and only stopped his vehicle when its “tires finally contacted the white line.” Mr. Etherson-Tabb also claims the duration of the stop was excessive, asserting that “although Trooper Lewis reported that he observed marijuana residue on the floor of the vehicle, the time he took to review his in-car camera, coupled with the delay in obtaining assistance from another trooper went beyond temporary detention, was unreasonable, and amounted to an illegal seizure.”
Traffic Stop – Established Case Law
A traffic stop initiated by a law enforcement officer constitutes a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-810, (1996). Thus, a traffic stop must comply with the Fourth Amendment’s general reasonableness requirement. Id. at 810. “An officer’s decision to stop a vehicle is reasonable when the officer has probable cause or reasonable suspicion to believe that the driver has committed, or is committing a crime, including a minor traffic violation.” State v. Farrow, 2023-Ohio-682, citing Whren at 809-810, and State v. Jones, 2022-Ohio-561.
Driving in Marked Lanes
Trooper Lewis’s testimony implicates O.R.C. §4511.33(A)(1), which states: “Whenever any roadway has been divided into two or more clearly marked lanes for traffic, … [a] vehicle * * * shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety.” Contrary to what Mr. Etherson-Tabb suggests, Trooper Lewis did not initiate the traffic stop based on inconsequential movement within a lane of traffic. Trooper Lewis testified that when Mr. Etherson-Tabb was driving in the right lane on US 23, Trooper Lewis saw his vehicle’s left tires drift completely over the white dash center lane line before abruptly moving back into the right lane. Trooper Lewis also testified that when Mr. Etherson-Tabb was driving on the southbound ramp to SR 823, Trooper Lewis saw one of his vehicle’s right tires drift over the white fog line by about half a tire width right before the southbound and northbound ramps join.
Traffic Stop was Objectively Reasonable
Thus, we conclude Trooper Lewis had reasonable suspicion and probable cause to initiate the traffic stop, and the initial traffic stop was constitutional.
Duration of the Traffic Stop – Established Case Law
“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns.” Rodriguez v. United States, 575 U.S. 348, 354, (2015). “Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ ” quoting Florida v. Royer, 460 U.S. 491, 500, (1983).
Under the totality of the circumstances here, the stop’s duration was reasonable. “[I]t has been noted that a timeframe of approximately 15 minutes should be sufficient, on average, to complete the necessary checks and be ready to issue a traffic citation.” State v. Harper, 2022-Ohio-4357. The traffic stop in this case exceeded that time; however, within the first 15 minutes of the stop, Trooper Lewis discovered facts which gave rise to a reasonable, articulable suspicion of additional criminal activity—that Mr. Etherson-Tabb was driving under suspension as indicated by the information from the Michigan BMV. Mr. Etherson-Tabb asserts that Trooper Lewis improperly delayed the stop “in obtaining assistance from another trooper,” but contrary to what Mr. Etherson-Tabb suggests, Trooper Lewis was not idle while he waited for Trooper Lloyd to arrive. Trooper Lewis tried to confirm or dispel his suspicion that Mr. Etherson-Tabb was driving under suspension. He tried to ascertain whether Etherson- Tabb had valid driving privileges by reviewing paperwork from two different courts and discussing the matter with Mr. Etherson-Tabb multiple times.
Does a Questionable Valid License, Possible Active Warrants and Discovery of Marijuana Lead to a Reasonable Delay in a Traffic Stop?
On the footage, the last conversation about the license issue before Trooper Lloyd arrives ends about nine and a half minutes into the stop. Trooper Lewis then gives dispatch Mr. Etherson-Tabb’s license number, and there is a period of about four minutes before Trooper Lloyd arrives in which there is mostly silence interspersed with brief conversation about the reason for Mr. Etherson-Tabb’s travel. It is not clear whether Trooper Lewis investigated the license issue during those minutes. However, it appears Trooper Lewis was still waiting for information from dispatch about outstanding warrants during this time. And even if it could be said that Trooper Lewis was not acting diligently during those minutes, the license issue still impeded his ability to complete the traffic stop within 15 minutes, and he found marijuana in the passenger compartment of Mr. Etherson-Tabb’s vehicle about 16 minutes into the stop. Mr. Etherson-Tabb does not challenge the trial court’s finding that he consented to the search which led to that discovery.
Lying is a Factor When Evaluating the Totality of the Circumstances
Once Trooper Lewis found the small piece of marijuana on the vehicle floor, he had probable cause to search the entire vehicle. Adding to the totality of the circumstances at that point were facts suggesting Mr. Etherson-Tabb was lying about being a construction worker.
Fourth District Appellate Court Determines a Crunchy Crotch Established Reasonable Suspion
Contrary to what Mr. Etherson-Tabb suggests, Trooper Lewis was entitled to review the cruiser footage to see if the troopers missed any contraband in the vehicle. See generally Harper, 2022-Ohio-4357. The video footage, coupled with the marijuana debris in the vehicle and facts suggesting Etherson- Tabb was lying about his employment and travel plans, gave Trooper Lewis reasonable, articulable suspicion that Mr. Etherson-Tabb was concealing contraband around his crotch area. Trooper Lewis did not unconstitutionally further extend the duration of the stop to investigate that suspicion, which resulted in Mr. Etherson-Tabb turning over the baggie of pills.
Holding
For the foregoing reasons, we conclude the duration of the stop was constitutional.
Information for this article was obtained from State v. Etherson-Tabb, 2024 – Ohio – 550.
State v. Etherson-Tabb, 2024 – Ohio – 550 was issued by the Fourth District Appellate Court on February 9, 2024 and is binding in the following Ohio Counties: Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington.
