Alleged drug dealers beware: fooling the nose of a police dog by masking the smell of marijuana with air freshener and household cleaners is not enough to get evidence suppressed at trial, according to the 12th District Court of Appeals.
The Middletown-based appeals court has reversed a Warren County Common Pleas Court decision that threw out bales of marijuana found during a traffic stop on Interstate 71 in February. Judge Robert Peeler ruled that when a police canine failed to alert to the presence of drugs, further detention of one of two Cincinnati men in the Chrysler Pacifica as well as the vehicle was illegal.
Prosecutors then could not proceed with the case against Jason Raphael and Gregory Clayton, of Cincinnati, who were facing one count of trafficking in marijuana and one count of possession of marijuana, both second-degree felonies.
Not the right decision, said the appellate judges, noting the dog’s search was just one of many indicators, including the nervousness of the men, five cell phones in the vehicle and eight large block-shaped packages wrapped in moving blankets and taped extremely tight.
The deputy was also suspicious that the SUV was registered to Clayton’s 84-year-old aunt and that Clayton said he was moving to Columbus.
“The deputy thought it was odd that the vehicle would be fully loaded heading southbound, if Clayton was moving to Columbus,” according to the written appellate decision. “Clayton then stated he was moving ‘the furniture stuff or the antique stuff’ of his aunt who recently passed away.”
The deputy didn’t believe the bundles were furniture or antiques.
The Warren County deputies and task force members went the extra mile to get a search warrant before tossing the vehicle and finding the wrapped objects were bales of marijuana wrapped with paper and plastic laced with ammonia.
“This is a win for the good guys,” said Warren County Prosecutor David Fornshell, who said they will now pursue the drug charges against the Cincinnati men.
Robert Kelly and Edward Kathman, attorneys for Raphael and Clayton, could not be reached for comment.
Covering the scent of marijuana or other drugs is nothing new, but the internet has spurred new techniques.
Butler County Deputy Jeff Duke, who is partnered with police dog Jackson, said people with hear about a technique that allegedly works and try it out. It is up to the dog and handler to stay ahead of it.
Some scent maskers commonly used are coffee grounds, household cleaners, dryer sheets, mustard, axle grease, perfume, peppers and large quantities of car fresheners, to name a few, according to Sgt. Mike Hackney of the Butler County Sheriff’s Office.
“We have seen just about everything over the years,” Hackney said.
Major John Burke, commander of the Warren County Drug Task Force said the drug-sniffing police canines are like people.
“Some are better at their jobs than others,” he said.
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