[Cite as State v. Miller, 2013-Ohio-985.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                         C.A. No.       12CA0070-M

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
KYLE MILLER                                           COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellee                                      CASE No.   12 CR 0097

                                  DECISION AND JOURNAL ENTRY

Dated: March 18, 2013



        HENSAL, Judge.

        {¶1}     Plaintiff-Appellant, State of Ohio, appeals from the trial court’s granting of

Defendant-Appellee, Kyle K. Miller’s, motion to suppress. For the reasons set forth below, this

Court reverses and remands.

                                                 I.

        {¶2}     On February 4, 2012, Officer Michael Patterson stopped a vehicle driven by Kyle

Miller after a computer check revealed expired license plates. As Officer Patterson approached

the vehicle, he noticed that the sticker on the rear license plate appeared current. Miller told the

officer he renewed the plates that morning. Miller appeared very nervous and attributed it to the

fact that he had prior police involvement for drug possession. Miller also gave suspicious and

conflicting answers to questions regarding the reason for his presence in the area. In addition,

Officer Patterson believed Miller sat in such a way as to hide something in the vehicle.
                                                2


       {¶3}    Upon returning to his cruiser to verify Miller’s information, Officer Patterson

prepared a written warning for driving with expired license plates.        He handed Miller the

warning, and told him he was free to go. After starting to walk back to his cruiser, Officer

Patterson turned around and approached Miller again. He asked for consent to search the

vehicle, to which Miller agreed. The search produced one rock of cocaine, a broken drug pipe, a

complete drug pipe and other drug paraphernalia.

       {¶4}    The Grand Jury indicted Miller on one count of possession of cocaine. Miller

filed a motion to suppress to challenge his detainment and search past the point when the officer

learned the license plates were valid. The trial court held a hearing after which it issued a

judgment entry finding the extended detention and subsequent search of Miller invalid.

       {¶5}    The State now appeals this judgment entry and raises three assignments of error

for review. For ease of analysis, this Court rearranges the Appellant’s assignments of error.

                                                II.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING MILLER’S MOTION TO
       SUPPRESS BECAUSE OFFICER PATTERSON HAD REASONABLE
       ARTICULABLE SUSPICION JUSTIFYING A PROLONGED DETENTION.

       {¶6}    The State argues that the trial court erred in granting Miller’s motion to suppress

because his suspicious behavior justified Officer Patterson’s belief that he had reasonable,

articulable suspicion to extend Miller’s detention and perform the subsequent search. The Ohio

Supreme Court has held that:

       [a]ppellate review of a motion to suppress presents a mixed question of law and
       fact. When considering a motion to suppress, the trial court assumes the role of
       trier of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. Consequently, an appellate court must
       accept the trial court's findings of fact if they are supported by competent,
       credible evidence. Accepting these facts as true, the appellate court must then
                                                 3


       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. This Court will

review the trial court’s factual findings for competent, credible evidence and its legal conclusions

de novo. State v. Ross, 9th Dist. No. 12CA010196, 2012-Ohio-6111, ¶ 7.

       {¶7}    Miller does not dispute that the initial stop for what appeared to be an expired

license plate was valid. Police officers may detain a motorist for a period of time that is

sufficient to perform a check of the driver’s license, registration, vehicle plates and to issue a

ticket or warning.    State v. Davenport, 9th Dist. No. 11CA010136, 2012-Ohio-4427, ¶ 6.

Miller’s motion to suppress challenged the length of his detainment and resulting search as both

occurred past the point in which Officer Patterson learned that the license plates were valid.

       {¶8}    An officer may, however, continue to detain a motorist further if the officer has a

reasonable, articulable suspicion of criminal activity different than that which led to the initial

detainment. Ross at ¶ 8.    The Ohio Supreme Court has held that:

       When a police officer’s objective justification to continue detention of a person
       stopped for a traffic violation for the purpose of searching the person’s vehicle is
       not related to the purpose of the original stop, and when that continued detention
       is not based on any articulable facts giving rise to a suspicion of some illegal
       activity justifying an extension of the detention, the continued detention to
       conduct a search constitutes an illegal seizure.

(Emphasis omitted.) State v. Robinette, 80 Ohio St.3d 234, 240 (1997).

       {¶9}    The trial court held that the testimony regarding Miller’s suspicious behavior

during the stop was not enough to justify a reasonable, articulable suspicion of criminal activity

and found that the search was improper. Officer Patterson himself testified that he believed the

only legal way to search the vehicle was with Miller’s consent. Based upon the testimony, this

Court finds that there is competent, credible evidence to support the trial court’s finding that
                                                 4


Miller’s prolonged detainment was improper. Accordingly, the State’s second assignment of

error is overruled.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT’S MOTION
       TO SUPPRESS BECAUSE MILLER GAVE VOLUNTARY CONSENT TO
       SEARCH THE VEHICLE.


       {¶10} The State argues that based on a totality of the circumstances, Miller’s consent to

the search was valid. It is well settled that, “[v]oluntary consent, determined under the totality of

the circumstances, may validate an otherwise illegal detention and search.” Robinette at 241.

“Once an individual has been unlawfully detained by law enforcement, for his or her consent to

be considered an independent act of free will, the totality of the circumstances must clearly

demonstrate that a reasonable person would believe that he or she had the freedom to refuse to

answer further questions and could in fact leave.” Id. at 245-246.

       {¶11} The trial court failed to make any determination on whether Miller’s consent was

voluntary based on a totality of the circumstances. The trial court stated that, “[i]f the officer

thereafter seeks and obtains consent to search absent some reasonable, articulable suspicion of

criminal activity other than the traffic violation, the continued detention and the consent is

deemed involuntary, rendering a search unlawful.”      The practical effect of such a holding is that

consent is never voluntary if it occurs during or immediately after an invalid detention. This

directly contravenes the Ohio Supreme Court’s holding in Robinette. Accordingly, the State’s

first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE WHEN IT
       DID NOT FIND THAT THE DETERRENT VALUE OF SUPPRESSION
                                                 5


       OUTWEIGHED THE “SIGNIFICANT SOCIAL COSTS,” AS REQUIRED BY
       HOLDINGS OF THE UNITED STATES SUPREME COURT.

       {¶12} Given our resolution of the State’s first assignment of error, it is premature to rule

on the State’s third assignment of error, and we decline to address it.

                                                III.

       {¶13} The State’s first assignment of error is sustained, the second assignment of error is

overruled and the third assignment of error is premature. In light of the foregoing, this Court

reverses the judgment of the Medina County Court of Common Pleas granting Miller’s motion to

suppress and remands the matter to the trial court for additional proceedings to determine

whether Miller’s consent was voluntary.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                6


       Costs taxed to Appellee.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT




WHITMORE, J.
CONCURS.

CARR, P. J.
CONCURRING.

       {¶14} Although I concur in the majority opinion, I write separately to emphasize that the

issue of consent is analyzed differently under circumstances where there is an unlawful

detention. The First District discussed this distinction in State v. Gunn, 1st Dist. No. C-070016,

2007-Ohio-6874, ¶ 9, where the court stated as follows:

       In the context of a lawful detention, voluntariness is judged by the totality of the
       circumstances, and it need not be proved that the defendant in fact knew that he
       had the right to refuse his consent. But when a defendant consents while being
       unlawfully detained in violation of the Fourth Amendment, courts apply a
       different test to judge the validity of the consent. In such situations, consent is
       presumed in law to be tainted and is held to be invalid unless the state proves that
       it was not “the product of the illegal detention, [but was rather the] result of an
       independent act of free will.” The Ohio Supreme Court has held that consent is
       the result of an independent act of free will when the totality of the circumstances
       clearly demonstrates that a reasonable person would have believed that he had the
       freedom to refuse to answer further questions and could in fact leave the scene.

(Internal citations and quotations omitted). Gunn at ¶ 9.


APPEARANCES:

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellant.

DAVID C. SHELDON, Attorney at Law, for Appellee.
