 [Cite as State v. Blanks, 2014-Ohio-1658.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 ANTHONY BLANKS

         Defendant-Appellant


 Appellate Case No. 25802

 Trial Court Case No. 2013-CR-471/1

 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                 Rendered on the 18th day of April, 2014.

                                              ...........

MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

WILLIAM O. CASS, JR., Atty. Reg. #0034517, 135 West Dorothy Lane, Suite 209, Kettering, Ohio
45429
      Attorney for Defendant-Appellant

                                                     .............
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FAIN, J.

           {¶ 1}   Defendant-appellant Anthony Blanks appeals from his conviction and sentence,

 following a no-contest plea, for Improper Handling of a Firearm in a Motor Vehicle, in violation

 of R.C. 2923.16(B), a felony of the fourth degree. Blanks contends that the trial court erred by

 not suppressing his statement that a firearm and magazine found in the car he was driving were

 his, because it was in response to custodial interrogation not preceded by Miranda warnings. He

 further contends that the search of his car was not justified, so that the trial court should have

 suppressed the firearm and magazine seized. Finally, he contends that all evidence seized should

 have been suppressed, since it was found as the result of an unreasonably prolonged traffic stop.

           {¶ 2}   We conclude that the trial court could find, as it did, that the statement Blanks

 made was not in response to interrogation; that the magazine was not found as the result of a

 search; that the firearm was found as the result of a consensual search; and that the stop, which

 began as a traffic stop, was not unreasonably prolonged after the police officers became aware of

 the presence in the car of a loaded magazine that did not fit a firearm retrieved from the

 waistband of a passenger who was the subject of an active warrant, and after Blanks had given

 inconsistent answers to the officers’ questions whether there was another firearm in the car, by

 which time the traffic stop had evolved into an investigatory stop supported by reasonable and

 articulable suspicion of weapons violations.

           {¶ 3}   Accordingly, the judgment of the trial court is Affirmed.



                                   I. The Traffic Stop and Arrest

           {¶ 4}   Matthew Lykins, a certified police officer for the Dayton Department of
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Aviation, was on patrol in the area of the Dayton airport in a marked cruiser just after midnight in

February 2013. He saw a green Mazda, which had left the immediate area of the airport, make

an improper U-turn, and thereafter clocked it at 54 miles per hour in a 40 mph zone. Officer

Lykins stopped the Mazda, which Blanks was driving. Larry Anderson, Jr., was a passenger in

the front seat. A third man, an arriving passenger they had picked up at the airport, was in the

back seat.

       {¶ 5}    As was his custom, Officer Lykins obtained identification from all three

occupants of the car. When Lykins ran the identifications, he found an outstanding warrant on

Anderson. Through his dispatcher, Lykins checked to see if the warrant to arrest Anderson was

active. Within five minutes, Officer Lykins received confirmation, “from Miamisburg courts

advising that the warrant was confirmed and that they did indeed want Mr. Anderson secured and

taken to the Montgomery County Jail.”

       {¶ 6}    Officer Lykins had also determined that there was a warrant to arrest the backseat

passenger, but it appeared to be a “minor warrant,” out of Scioto County, and Lykins did not

bother to check it, because he had no intention of taking action on it.

       {¶ 7}    Meanwhile, Officer Charles Wright, who was also on patrol in the area of the

Dayton airport, had heard Lykins use the code on the radio that the subject of an active warrant

had been found, which would require apprehension of the individual subject to the warrant.

Lykins and Wright had been working the airport beat together for six years; it was their custom to

provide backup to each other whenever someone was going to have to be removed from a

vehicle. Wright proceeded to Lykins’s location; it took him about five minutes to get there.

       {¶ 8}    Officer Lykins returned to the Mazda from his cruiser, and “asked Mr. Blanks
                                                                                          4


and all the occupants of the vehicle if there was anything in the vehicle I need to be made aware

of.” All three men responded in the negative. Lykins repeated the question, this time using

some examples: “Any guns, drugs, knives, bombs, anything illegal?” Again, all three men

responded in the negative.

        {¶ 9}     Officer Lykins asked Blanks to turn off the ignition, and put the keys up on the

dashboard. Blanks complied. Lykins, who was standing at the front-passenger side of the

Mazda, asked Anderson to get out of the car. Anderson broke eye contact, looking straight

ahead. By this time, Officer Wright had arrived. Lykins asked Anderson a second and third

time to get out of the car, grabbing Anderson’s shoulder on the third request. Lykins was losing

sight of Anderson’s hands, so Lykins grabbed Anderson’s hands.

        {¶ 10} As Officer Lykins was getting ready to handcuff Anderson, Lykins asked

Anderson “if there is anything that I need to be made aware of.” Anderson replied, “Yeah. I

have a fire – I have a gun in my waistband.” Officer Wright then retrieved a Glock 22, 40

caliber handgun from Anderson’s waistband. Anderson was arrested on the outstanding warrant,

for Carrying a Concealed Weapon, and for, in Officer Lykins’s words, “felons under disability.”

Anderson was placed in Lykins’s cruiser. It was now between twenty and twenty-two minutes

after the initial stop.

        {¶ 11} Officer Wright gave Officer Lykins the handgun retrieved from Anderson’s

waistband, to put in Lykins’s cruiser.      While Lykins was taking the handgun to his cruiser,

Officer Wright asked Blanks “if there was anything else in the vehicle we need to be made aware

of.” Initially, Blanks “said he had a firearm and a magazine in the center console.”

        {¶ 12} Officer Wright then asked Blanks, “you have a firearm and a magazine in the
                                                                                            5


console,” and Blanks replied, “no, just a magazine.” Blanks then removed a loaded magazine

from the center console. Wright retrieved the magazine and determined that it was not “similar”

to the Glock handgun that Anderson had had in his waistband. Because of Blanks’s inconsistent

statements about whether there was another firearm in the car, and also because, in Wright’s

experience, a loaded magazine is usually “paired together” with a firearm, Wright asked Blanks

and the remaining passenger to get out of the car, in order to separate them from any firearm that

might be in the car. By this time, Officer Lykins was returning to the car.

        {¶ 13} Blanks and his other passenger were then patted down for weapons; nothing was

found. While Lykins and the other passenger were standing in front of the Mazda, Officer

Lykins asked Blanks if there was a firearm in the car, and Blanks answered in the negative.

Lykins then asked Blanks: “Do you have a problem with us searching?” or “We can go ahead

and search the vehicle and we won’t find a gun?” Blanks replied: “Go ahead and do what you

got to do.”

        {¶ 14} As Officer Lykins was walking to the still open driver’s door, he asked Blanks “if

I was going to find anything in the car such as a gun.” At this time, Blanks was standing in front

of the Mazda. He was not handcuffed. Blanks told Lykins: “You’ll probably find a firearm or

gun underneath the driver’s seat.” Lykins found a Taurus 40 caliber firearm under the driver’s

seat.   It matched the magazine that had been retrieved from the center console.             Lykins

estimated that his search of the vehicle began no more than 25 minutes after the initial stop.

        {¶ 15} Blanks was then placed in handcuffs. As Blanks was being handcuffed, or right

after, Blanks said: “The gun and the stuff are mine. They’re legit.” This statement was not in

response to a question.
                                                                                           6


       {¶ 16} Blanks was placed in Wright’s cruiser. Wright advised Blanks “briefly” of his

Miranda rights. Later, Officer Lykins read both Blanks and Anderson their Miranda rights,

when they were in a holding cell. No statements were thereafter made.



                                II. The Course of Proceedings

       {¶ 17} Blanks was charged by indictment with one count of Improper Handling of a

Firearm in a Motor Vehicle, in violation of R.C. 2923.16(B), a felony of the fourth degree, and

one count of Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2), a felony of the

fourth degree. He moved to suppress evidence seized as a result of the stop, and statements

made. At the suppression hearing, Officer Lykins, Officer Wright, and Blanks all testified.

Blanks’s testimony was substantially at variance with the testimony of Officers Lykins and

Wright, summarized in Part I, above.

       {¶ 18} A week after the suppression hearing, the trial court announced its decision

overruling the motion, in open court. The trial court found that Blanks “seemed to be shifting in

his testimony [concerning what he told Officer Wright in regard to whether there was another

firearm in the car] and that undermined the credibility of Mr. Blanks in this hearing.” The trial

court found the testimony of Officers Lykins and Wright to be “fully credible,” and “fully

accept[ed] and adopt[ed]” their testimony.

       {¶ 19} In analyzing the circumstances from the point that Officer Wright arrived, the

trial court made the following findings of fact and conclusions of law, orally, from the bench:

       Officer Wright arrives at the scene and this Court finds by preponderance of the evidence

he then asks Mr. Blanks who is still in the vehicle is there anything in the car that he should be
                                                                                              7


aware of? Mr. Blanks says, magazine in the console and then he gives conflicting statements as

to whether or not there is a gun in the car. These statements made by the defendant, he’s still in

the car, are statements made while he was not in custody, he was not under arrest or the

equivalent of arrest therefore the Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966)] rights do not reply [sic] to those statements.

        Officer Wright, this Court finds, then recovers the magazine from the console and then

Mr. Blanks and the other passenger are removed from the vehicle, they’re patted down and Mr.

Blanks is standing in front of the Mazda. And he then gives consent, in fact, Mr. Blanks

testified he did give consent to the search of the vehicle and the Court finds that consent by clear

and convincing evidence he voluntarily gave consent to the search of the vehicle. And he tells,

this Court finds, that he tells Officer Likens [sic] that there will probably be a gun underneath the

seat.

        Now, this statement, although at this point in time Mr. Blanks was being detained, that

temporary detention did not arise [sic] to the level of custody or the equivalent of being under

arrest and therefore, again, Miranda doesn’t apply with regard to his statement that they would

probably find a gun under the seat.

        So pursuant to that consent, the Officer Likens [sic] goes into the car and recovers the gun

from underneath the seat so that was a valid search of the car pursuant to a valid consent.

        Mr. Blanks is then arrested. Then he volunteers, not the result of any questioning, the

gun and stuff are mine but they’re legit and since they are volunteered statements, again, Miranda

doesn’t apply. And finally the Court finds that Mr. Blanks throughout this period was not being

detained for an unreasonable period of time. And therefore, for all of those reasons the motion
                                                                                                  8


       to suppress is overruled.

       {¶ 20} There is evidence in the record to support the trial court’s findings of fact.

       {¶ 21} Blanks then entered into a plea agreement with the State wherein he pled no contest to Improper

Handling of a Firearm in a Motor Vehicle, and the Carrying a Concealed Weapon count was dismissed. The

trial court imposed community control sanctions as a sentence.

       {¶ 22} From his conviction and sentence, Blanks appeals.



III. Blanks’s Statement that the Firearm Found Under the Driver’s Seat and “Stuff” Were His Was Not

 the Result of Interrogation, but Volunteered; Therefore, Miranda Does Not Apply, and that Statement

                                       Was Not Subject to Suppression

       {¶ 23} Blanks’s First Assignment of Error is as follows:

              THE TRIAL COURT ERRED WHEN IT DID NOT SUPPRESS THE STATEMENTS

       OF THE APPELLANT MADE AFTER HE WAS ARRESTED.

       {¶ 24} In this assignment of error, Blanks argues that as, or after, he was arrested and placed in

handcuffs, Officer Lykins asked him a question to which Blanks responded that the firearm Lykins had retrieved

from under the driver’s seat was his. Because this statement was the result of custodial interrogation, before

Miranda warnings had been given, Blanks argues that it should have been excluded, under the authority of

Miranda.

              {¶ 25} Officer Lykins’s testimony concerning the sequence of events leading up to

       Blanks’s statement that the gun found under the seat and “stuff” were his, “they’re legit,” was not

       always entirely clear. Officer Wright testified that he did not hear Blanks make the statement.

       At the conclusion of the cross-examination of Officer Lykins, the trial court asked Lykins the
                                                                                          9


following questions germane to this issue:

              THE COURT: Just one question before we do redirect and then we need to

       take our break.

              So the statement you’ve testified the Defendant made about the magazine,

       “They’re mine. They’re legit,” first of all, was it the statement the magazines and

       the gun are mine and they’re legit, or what was the complete statement?

              THE WITNESS: He made the statement – he goes, “it’s the” – “The gun

       and the stuff” – “The gun and the stuff are mine. They’re legit.” And we

       assumed he was talking about the magazine at that point.

              THE COURT: All right.          And this was made before or after he was

       formally arrested?

              THE WITNESS: This would have been – I would say after – once we

       found the firearm, he was placed into custody at that point and it was I think as he

       was being handcuffed or right after he was handcuffed he made that statement.

              THE COURT: All right. And the – and had you asked him anything or

       stated to him anything immediately before he made this statement of the gun and

       stuff, “They’re mine. They’re legit?”

              THE WITNESS: I do not recall asking him any statement [sic] prior to

       that. I’m – the way I remember it, it was as he was being placed under arrest or

       immediately after being placed under arrest.

       {¶ 26} Officer Lykins never expressly testified, in contradiction to his above testimony

that he did not recall asking Blanks anything preceding Blanks’s statement about his ownership
                                                                                          10


of the gun and “stuff,” that this statement by Blanks was in response to a question from Lykins.

Therefore, the trial court could find, as it did, that Blanks’s statement was not in response to

questioning, so that the restrictions of Miranda do not apply to it.

       {¶ 27} Blanks’s First Assignment of Error is overruled.



      IV. The Magazine Found in the Car Was Not Found as the Result of a Search,

         and the Firearm Found in the Car Was the Result of a Consensual Search

       {¶ 28} Blanks’s Second Assignment of Error is as follows:

               ALL EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED

       BECAUSE        THE     OFFICERS       DID     NOT     HAVE       A    REASONABLE,

       ARTICULABLE            SUSPICION         THAT       THE         CAR    CONTAINED

       CONTRABAND.

       {¶ 29} In support of this assignment of error, Blanks first argues that the magazine was

found as the result of an unlawful search of the car. The trial court found that Officer Wright

was told of the existence of the magazine in response to his question whether there was anything

in the car that Wright should be aware of. There is evidence in the record to support this finding.

 Wright testified that Blanks opened the console and removed the magazine. The magazine was

not found as the result of a search. Although Blanks argues that Officer Lykins’s written report

is inconsistent with Officer Wright’s testimony on this subject, Officer Lykins was not present

when Wright found the magazine, and the trial court was entitled to credit Officer Wright’s

testimony on this subject.

       {¶ 30} Blanks next argues that the subsequent search of the Mazda was not protected by
                                                                                         11


his consent:

                The State may argue that the Appellant consented to the search. However,

        “[A]ny consent to search obtained during an unlawful detention is tainted and may

        be invalid. [State v.] Retherford [93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.

        1994)]. For such consent to be voluntary, the totality of the circumstances must

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

        to answer further questions and could, in fact, leave.” State v. White, 2d Dist.

        Montgomery No. 25396, 2013-Ohio-3027.

        {¶ 31} When Blanks gave his consent to search the Mazda, he was standing in front of

it, not in handcuffs.   The trial court concluded that he was not in custody, the functional

equivalent of an arrest, at this time. We agree. A reasonable person in Blanks’s position at this

time would have believed himself in detention during a traffic stop that had become an

investigative stop; he would not have believed himself to be in custody, the functional equivalent

of an arrest.

        {¶ 32} In the case Blanks cites, State v. White, we held that consent was vitiated because

a traffic stop had become unreasonably prolonged. For the reasons set forth in Part V, below, we

conclude that the stop in the case before us was not unreasonably prolonged.

        {¶ 33} Blanks’s Second Assignment of Error is overruled.



                        V. The Stop Was Not Unreasonably Prolonged

        {¶ 34} Blanks’s Third Assignment of Error is as follows:

        ALL EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED BECAUSE THE
                                                                                                 12


       DURATION OF THE TRAFFIC STOP WAS UNCONSTITUTIONALLY PROLONGED.

       {¶ 35} In support of this assignment of error, Blanks argues that the purpose of the stop was to issue a

traffic citation, and Officer Lykins failed to diligently issue the citation, resulting in an unconstitutional

prolongation of the stop.

       {¶ 36} Unquestionably, the stop began as a routine traffic stop. But it turned into something more than

that as soon as Lykins became aware that there was an outstanding warrant for the arrest of the passenger,

Anderson. Long before twenty minutes had elapsed, which Lykins testified was the typical duration of a traffic

stop, he became aware that it was going to be necessary to remove Anderson from the car and arrest him. Also

well within the typical duration of a routine traffic stop, all three occupants had denied having any firearms,

Anderson had then admitted that he had a firearm in his waistband, and that firearm was retrieved.

       {¶ 37} Still within the duration of a typical traffic stop, Officer Wright was told of the presence of the

loaded magazine in the center console, that magazine was produced and given to Wright, and it was found not to

fit the weapon that had been retrieved from Anderson’s waistband. Both officers testified that the presence of

the loaded magazine not fitting Anderson’s weapon, combined with Blanks’s shifting, inconsistent answers to

their questions whether there was another firearm in the car, led the officers to be concerned that there may have

been another firearm in the car. We conclude that under the circumstances, this concern that the officers had

for their safety was reasonable.

               {¶ 38} It was at this point that the duration of the stop began to exceed what Officer

       Lykins had testified was the usual duration of a traffic stop. By this point, also, the stop had

       clearly evolved into something more than a routine traffic stop. We conclude that it was

       reasonable for the officers to seek consent to search the car in order to determine whether there

       was a firearm in the car, before they issued the traffic citation, turned their backs to Blanks and
                                                                                        13


his other passenger, and proceeded to drive away with their arrested co-occupant, Anderson.

        {¶ 39} Furthermore, what begins as a traffic stop may continue beyond the normal

duration of a traffic stop if a police officer has acquired a reasonable articulable suspicion of

other criminal activity. State v. Nelson, 2d Dist. Montgomery No. 22718, 2009-Ohio-2546, ¶ 40.

 The presence of the loaded magazine in the center console of the Mazda gave Officers Lykins

and Wright, at the very least, a reasonable and articulable suspicion of a weapons violation, to

which they were not required to turn a blind eye and walk away, just because the encounter began

as a routine traffic stop.

        {¶ 40} Blanks’s Third Assignment of Error is overruled.



                                       VI. Conclusion

        {¶ 41} All of Blanks’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.



                                                 .............

FROELICH, P.J., and WELBAUM, J., concur.




Copies mailed to:

Mathias H. Heck
Matthew T. Crawford
                        14


William O. Cass, Jr.
Hon. Dennis J. Langer
