Local man’s conviction upheld on appeal

DAVE MOSIER/independent editor

A Van Wert man who felt law enforcement officers went too far in searching his shoes during a traffic stop had his conviction on drug charges upheld by the Third Ohio District Court of Appeals.

Joshua Minyoung, though attorney John Hatcher, said the trial court erred when it denied his motion to suppress evidence found during a K-9 search on December 7, 2010.

Court documents noted the Van Wert Police Department acted on a Crime Stoppers tip that stated Minyoung would be returning to the city from Fort Wayne, Ind., where he had purchased prescription narcotics to sell in Van Wert.

The tip provided Minyoung’s name, a description of the vehicle, license plate number, the approximate time Minyoung would return to Van Wert and the fact that he would be driving on U.S. 30.

A trooper from the Van Wert Post of the Ohio State Highway Patrol spotted Minyoung’s vehicle and followed it, intending to stop it because of a loud exhaust system. However, when the trooper ran the vehicle’s license plate information, he discovered it was related to the Crime Stoppers tip. The trooper then contacted the VWPD and requested a K-9 unit be dispatched to his location.

The VWPD K-9 animal was walked around Minyoung’s vehicle while a trooper was still speaking to him and the dog alerted to the vehicle, indicating there were drugs inside.

Minyoung was then asked to step out of the vehicle, as was a passenger. During a pat-down on Minyoung, he was asked to remove his shoes, revealing a baggie of marijuana in one shoe and a bag of pills in the other.

The pills were determined to be Dilaudid, a Schedule II controlled substance. Minyoung was arrested on a charge of possession of drugs, a felony of the third degree.

Minyoung and his attorney claimed the search was illegal and sought to have the evidence obtained suppressed. The court denied Minyoung’s motion on May 3, 2011, and the defendant then entered a plea of no contest to one count of possession of drugs. He was sentenced to one year in prison on June 29, 2011.

In his appeal, Minyoung claimed that the officers who stopped him did not have legal grounds to search his shoe, arguing that the request to remove his shoes went beyond the scope of a pat-down, constituting an illegal search.

Assistant Van Wert County Prosecutor Martin Burchfield, who represented the state, claimed that the law enforcement officers had probable cause to perform the search.

In his majority opinion, Judge Vernon Preston cited the State vs. Rusnak, which states: “It is axiomatic that where there is a reasonable and articulable suspicion to believe that a motor vehicle or its occupants are in violation of the law, stopping the vehicle and detaining its occupants will not violate the Constitution.”

Judge Preston also noted that using a trained narcotics dog to sniff the exterior of a vehicle does not constitute a search in violation of a person’s Fourth Amendment protection against unlawful search and seizure.

“An officer does not need reasonable suspicion of drug-related activity before subjecting the lawfully detained vehicle to a canine sniff,” the judge wrote in his opinion, adding, “The officer may lengthen the time of the stop if the officer discovers additional facts leading to a reasonable inference of criminal activity.”

The appellate decision also cited State vs. Williams, which notes: “(O)nce a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband.”

Judge Preston also rejected Minyoung’s argument that removing his shoes was outside the scope of a pat-down, noting that, “an officer’s right to frisk an individual is virtually automatic when a person is suspected of a crime, such as drug trafficking, where the individual is likely to be armed.”

The appellate decision also noted that “if an officer has probable cause, the officer may conduct a search without a warrant if an exception to the warrant requirement exists … (such as) the danger that evidence will be lost or destroyed if the officer does not immediately conduct a search.”

Judges Richard M. Rogers and John R. Williamowski both concurred with the decision.