Court denies motion to suppress

A motion to suppress items discovered during a K-9 unit search of a vehicle during a traffic stop was overruled Thursday in Highland County Common Pleas Court. During the search of the vehicle, officers found heroin and a loaded handgun.

Gerald Williams of Hillsboro was indicted in November on one count of second-degree felony possession of drugs; one count of receiving stolen property, a felony of the fourth degree; possession of criminal tools, a felony of the fifth degree; and a forfeiture specification. 

In the motion to suppress, defense attorney Lee Koogler said that the search was unreasonable, and the duration of the stop was longer than necessary. He alleged that the officer actually conducted the stop because he had prior information from a confidential informant who allegedly told police that Williams was carrying drugs. Koogler said that a search warrant had been granted for Williams' vehicle and residence, based on what was found during the search. He asked that all evidence admitted, based on that search, be suppressed.

Highland County Prosecutor Anneka Collins said the traffic stop was initiated for a lawful reason and that the average length of a traffic stop is between 25-28 minutes. The K-9 unit from the Highland County Sheriff's Office arrived 27 minutes into the traffic stop, and at that time, the traffic citation was still being written. Collins said the stop, and its length, was lawful. 

Officer Shawn Kelley of the Hillsboro Police Department was the only witness who testified Thursday. 

Kelley said that on Aug. 21, 2011 at approximately 8:50 p.m., he had been parked in his cruiser near Holmes Street and John Street, when he observed a maroon Buick driven by Williams. He said that the tinting on the windows was so dark that he could not see the driver - a violation - and so he initiated a traffic stop. 

The officer said that he asked for permission to search the vehicle, which was denied by Williams, and so he called for a K-9 unit, and a search of the trunk and the car interior was conducted. Kelley testified that during the initial search with the K-9, the officers found a loaded handgun behind a seat in the car and two napkins that contained a substance later identified as heroin. 

On cross examination, Koogler asked Kelley if he really initiated the stop based on the window tinting or if it was because of the information relayed to him by the confidential informant. 

"I would not have initiated a traffic stop without probable cause," Kelley said, and that the stop was based on the tinted windows. 

Responding to a question from Koogler, Kelley said that the informant had told him half an hour prior to the stop that Williams may be transporting drugs and that area he would be in. Kelley said that he was in the area based on that information. 

Koogler said that Williams had a prescription for the tinted windows. Collins argued that if Williams had a prescription that does not mean the stop was not legal because an officer would not know that. Kelley testified that Williams said he had a prescription to have the windows, but he could not locate it during the stop. 

Koogler submitted a prescription into evidence. Highland County Common Pleas Court Judge Rocky Coss, upon reviewing the prescription, noted that it said Williams was to wear dark glasses while working if he had a headache, but it did not mention tinted windows. 

Kelley was asked how long a traffic stop normally takes, and he said 15-20 minutes. However, Kelley testified that during this stop an officer who does not normally run the dispatch was on the radio and took longer in running the computer. 

Koogler asked Kelley how long he would have waited for the K-9 unit to arrive. Kelley said he didn't know. Koogler asked if he would have waited only five more minutes, an hour, or six hours. Kelley said that he would have waited for the unit. 

Collins later argued that it did not matter how long Kelley would have waited because the K-9 unit arrived in a reasonable amount of time while Kelley was still writing the citation. 

Koogler asked for a brief recess to confer with his client, and Coss granted it. Upon going back on the record, Koogler asked Kelley what he based his timeline of events on. Kelley said that he had reviewed the logs of the stop last week but did not have a copy with him. Koogler asked for the court to break so he could have an opportunity to review the logs, and Coss denied the request.  

Koogler asked Kelley if he actually filed a citation based on the stop, and Kelley said that he had, but that he did not know the outcome of the case. 

According to the Hillsboro Municipal Court website, Williams was cited for tinted windows, but the case was dismissed. Williams was also cited in March 2011 for tinted windows, but that case was also dismissed. 

Coss said that he appreciated that Kelley was "frank and forthright" while testifying but that it was disconcerting "under the law" that he wouldn't have let him go had the K-9 unit not arrived in a timely fashion. However, Coss said there was no evidence to contradict that Kelley's testimony was not accurate in that the traffic stop was based on the tinted windows. 

Coss overruled the defense motion to suppress, saying the stop was lawful, and the time of the stop was not excessive. 

Williams is scheduled to appear for a final pre-trial hearing Wednesday, with a jury trial scheduled for Feb. 9.