[Cite as State v. Wilcox, 2012-Ohio-3400.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellant                           :            C.A. CASE NO.    2011 CA 99

v.                                                    :            T.C. NO.   11CR231

ROBERT S. WILCOX                                      :            (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellee                            :

                                                      :

                                             ..........

                                             OPINION

                         Rendered on the       27th       day of       July     , 2012.

                                             ..........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellant

ANTHONY S. VANNOY, Atty. Reg. No. 0067052, 130 West Second Street, Suite 1600,
Dayton, Ohio 45402
      Attorney for Defendant-Appellee

                                             ..........

FROELICH, J.

                 {¶ 1} The State of Ohio appeals from a judgment of the Clark County Court
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of Common Pleas, which granted Robert S. Wilcox’s motion to suppress evidence and

dismissed the charges against him.        Wilcox had been indicted for possession of crack

cocaine and possession of heroin, in violation of R.C. 2925.11(A), after he was arrested for

public indecency and was searched pursuant to his arrest. The State asserts that the trial

court erred in suppressing the evidence, because Wilcox’s arrest for public indecency was

proper and the search incident to that arrest did not violate his constitutional rights.

       {¶ 2}    For the following reasons, the trial court’s judgment will be affirmed.

                                                I

       {¶ 3}    On March 7, 2011, Springfield Police Officer William Evans was on patrol

when a car drove past him in the opposite direction, with the horn blowing continuously.

Evans turned his cruiser around and stopped the vehicle to investigate whether the horn was

blowing for an emergency or a malfunction. Another officer, Deric Nicols, responded

within one or two minutes to assist Evans.

       {¶ 4}    As Evans approached the stopped vehicle, the driver exited and said that the

horn was stuck.      Evans requested her driver’s license, “ran her information” in his

computer, and found that her license had been suspended. Because the driver would not be

permitted to leave with the car, Evans went to the passenger side of the vehicle, where

Wilcox was seated, to see if Wilcox had a valid license to drive. Wilcox was unresponsive

to Evans’ questions, was “barely conscious,” and his speech was slurred. Officer Nicols

also requested identification from Wilcox, but Wilcox remained uncooperative and

unwilling to identify himself. Evans ordered Wilcox to step out of the vehicle and patted

him down, at which point Wilcox did give the officers his name.
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          {¶ 5}    While Wilcox was outside the vehicle, he informed the officers that he

needed to urinate and made numerous requests to use a restroom. Wilcox attempted to

unzip his pants several times in order to urinate, but the officers stopped him and told him to

return to the stopped vehicle. (According to Nicols, the nearest restroom was five blocks

away at a gas station.)     The officers cautioned Wilcox that, if he urinated in public, he

would be arrested. Wilcox was not under arrest at this point, but he was repeatedly told to

sit inside the stopped vehicle.

          {¶ 6}   While Evans wrote the driver’s citation for driving with a suspended license,

Nicols returned to his cruiser. A short time later, Evans informed Nicols that Wilcox was

urinating on the curb and grass while standing in the open door of the stopped car. Nicols

approached Wilcox, saw his exposed genitals, and arrested him for public indecency.

          {¶ 7}    When Nicols searched Wilcox pursuant to his arrest, Nicols found three

plastic baggies on Wilcox’s person; two contained several small foil packages, and the other

contained large “off-white colored rocks.” Nicols believed these items were illegal drugs,

and they were seized.

          {¶ 8}    Wilcox was indicted on two counts of possession of drugs and pled not

guilty. He moved to suppress the evidence found on his person, arguing that the officers

had “provoked the crime” for which they arrested him by refusing to allow him to urinate

privately, and that the search conducted incident to his arrest was unlawful. In response, the

State argued that Wilcox chose to urinate in public after being warned that he would be

arrested if he did so, and that the evidence against him was properly seized incident to his

arrest.
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       {¶ 9}    The trial court found that Wilcox’s arrest for public indecency was

improper, because he “was not committing acts, but rather responding to a natural biological

function, for which, under his intoxicated condition, he had diminished capacity to control

and under circumstances which were acerbated by the refusal of the officers to allow him to

leave to find a more appropriate facility, even though there were no facts justifying the

defendant’s further detention.” The trial court suppressed the evidence that the officers

found when they searched Wilcox incident to his arrest. The court further found that the

charges against Wilcox “cannot be maintained without the evidence of illicit drugs

suppressed by this order,” and it dismissed the charges.

       {¶ 10}    The State appeals, raising one assignment of error.

                                                  II

       {¶ 11} The State’s sole assignment of error states:

       The trial court erred in determining that Wilcox’s arrest for public

       indecency was improper and thereby suppressing the drugs found

       during a search incident to arrest.

       {¶ 12} The State asserts the trial court erred in suppressing the evidence since, it

argues, the arrest for public indecency was proper and the search done incident to that arrest

did not violate Wilcox’s constitutional rights.

       {¶ 13}    In reviewing the ruling on a motion to suppress, an appellate court must

accept the trial court’s supported findings of fact as being true. State v. Dudley, 2d Dist.

Montgomery No. 24904, 2012-Ohio-960, ¶ 6. The court must then determine whether the

facts satisfy the applicable legal standard; this is done without deference to the conclusion of
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the trial court. Id.

       {¶ 14}     The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). A person is deemed “seized” if he or she is stopped and

detained by the police. State v. Leveck, 196 Ohio App.3d 26, 2011-Ohio-1135, 962 N.E.2d

316, ¶ 10 (2d Dist), citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59

L.Ed.2d 660 (1979). If a search is conducted in violation of this right, evidence must be

suppressed as “fruit of the poisonous tree.” State v. Cooper, 2d Dist. Montgomery No.

23719, 2010-Ohio-1120, ¶ 22, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407,

9 L.Ed.2d 441 (1963).

       {¶ 15}     A traffic stop by a law enforcement officer must comply with the Fourth

Amendment’s reasonableness requirement. Whren v. United States, 517 U.S. 806, 116

S.Ct. 1769, 135 L.Ed.2d 89 (1996). A police officer may stop and detain a motorist when

he observes a violation of the law, including any traffic offense, and no independent

reasonable and articulable suspicion of other criminal activity is required under Terry. State

v. Brown, 2d Dist. Montgomery No. 20336, 2004-Ohio-4058, ¶ 11; State v. Broaddus, 2d

Dist. Montgomery No. 23525, 2010-Ohio-490, ¶ 18, citing State v. Buchner, 2d Dist.

Montgomery No. 21892, 2007-Ohio-4329, ¶ 8.         “For the duration of a traffic stop, * * * a

police officer effectively seizes ‘everyone in the vehicle,’ the driver and all passengers.”

Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), quoting

Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

       {¶ 16}     During a legitimate traffic stop, a request for identification from a
                                                                                                 6

passenger, followed by a computer check of that information, does not constitute an

unreasonable search and seizure, so long as the traffic stop is not extended in duration

beyond the time reasonably necessary to effect its purpose. State v. Morgan, 2d Dist.

Montgomery No. 18985, 2002 WL 63196, *2 (Jan. 19, 2002), citing State v. Chagaris, 107

Ohio App.3d 551, 556-557, 669 N.E.2d 92 (9th Dist.1995). “A request for identification, in

and of itself, is not unconstitutional, and is ordinarily characterized as a consensual

encounter, not a custodial search.” Id., citing State v. Osborne, 2d Dist. Montgomery No

15151, 1995 WL 737913 (Dec. 13, 1995); Brown at ¶ 15. However, a passenger, unlike the

driver of a vehicle, is not legally obligated to carry identification or to produce it for a police

officer. Morgan at *2; Brown at ¶ 15. An officer “making a traffic stop may order

passengers to get out of the car pending completion of the stop” due to the added danger to

an officer when a passenger is present and the minimal additional intrusion on the passenger.

 State v. Ross, 2d Dist. Montgomery No. 16135, 1997 WL 531217, *2 (Aug. 29, 1997),

citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

       {¶ 17}      Officer Evans stated he stopped the vehicle because it was driving with its

horn blowing continuously, and Wilcox does not contest the validity of the traffic stop.

Once the vehicle was stopped, the driver exited the vehicle as Evans approached, to explain

that the horn was stuck. At that point, Evans acted within his authority in requesting the

driver’s license and determining its validity.

       {¶ 18}     When Evans discovered that the driver did not have a valid license, he

approached Wilcox (whose name the driver had been unable or unwilling to provide) and

requested his identification. Evans testified that Wilcox was unresponsive to his questions,
                                                                                                                                    7

was uncooperative, “could barely stand,” and was slurring his speech. Although Evans

considered the possibility of a medical emergency, he did not request an ambulance and

testified that Wilcox “seemed drunk.” Evans determined that Wilcox would not be allowed

to drive the stopped vehicle. The officers did not violate Wilcox’s constitutional rights in

asking for his identification or in attempting to assess his fitness to drive the car.

        {¶ 19}      According to both officers, Wilcox stated on numerous occasions that he

needed a restroom to urinate. It is unclear whether he expressly asked to leave, but the

officers testified that they repeatedly ordered him back into the car while Evans worked on

issuing a citation to the driver. A few minutes later, Wilcox urinated alongside the car.

        {¶ 20}      The trial court concluded that “there were no facts justifying the

defendant’s further detention” when “there was no indication that [he] was involved in any

criminal activity” and he had been eliminated as a potential driver of the car due to his

intoxication. Because the officers had no reasonable basis to prevent Wilcox from leaving,

the trial court concluded that Wilcox’s urination “was not committing acts, but rather was

responding to a natural biological function,” and therefore that his arrest for public

indecency was “improper.”

        {¶ 21}      We agree with the trial court’s legal conclusion that the officers were not

justified in detaining Wilcox. While the officers acted lawfully in stopping the car and

asking basic questions of Wilcox, the passenger, they violated his constitutional rights when

they insisted that he remain in the car or at the scene of the traffic stop while the driver’s

citation was issued.1


           1
            We need not address the lawfulness of the officers’ decision to frisk Wilcox because, even if the search were unlawful, it
                                                                                                   8

         {¶ 22}       In so holding, we do not suggest that officers are not justified in detaining a

passenger at the scene of a traffic stop, where there is some reasonable, articulable basis for

doing so. In this case, however, the trial court did not find that any such circumstances

existed.      When the police determined that Wilcox would not be allowed to drive the

stopped vehicle, they had no basis to keep him at the scene while the citation of the driver

was completed. Wilcox should have been allowed to walk away from the scene when he

expressed a need to do so.

         {¶ 23}       The State relies on Strozier and Brown for the proposition that, during a

lawful traffic stop, the police are permitted to detain passengers for as long as they are

lawfully justified in detaining the driver. See State v. Strozier, 172 Ohio App.3d 780,

2007-Ohio-4575, 876 N.E.2d 1304, ¶ 14 (2d Dist.). State v. Brown, 2d Dist. Montgomery

No. 20336, 2004-Ohio-4058, ¶ 14.                 However, in key respects, these cases are

distinguishable from the case at hand.

         {¶ 24}       In Brown, an officer stopped a car with three occupants for a headlight

violation, whereupon he observed an open beer can in the backseat of the car. Brown stated

that “the Fourth Amendment permits law enforcement officers to detain * * * passengers [of

a lawfully stopped vehicle] for the duration of the lawful detention of the driver,” citing

Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).                      It also,

recognized, however, that unlike the driver, a passenger is not legally obligated to carry

identification or to produce it for law enforcement officers, unless the officer has an

independent basis for requesting the passenger’s identification, such as a reasonable


   did not produce any incriminating evidence.
                                                                                               9

suspicion that the passenger himself has engaged in illegal activity. Id. at ¶ 15. Under

such circumstances, “the passenger may be required to identify himself and he may be

further detained as part of an investigation of that independent offense.” Id.      Brown held

that the open beer container in the car provided the officer with a reasonable suspicion that

Brown (and the other passengers) were violating the open container statute, R.C. 4301.62.

        {¶ 25}     Brown is distinguishable from the case at hand because, by the officers’

own admission, Wilcox, although he “seemed drunk,” had committed no offense when the

officers ordered him to remain in the vehicle. Moreover, we find Brown’s recognition of

the consenual nature of a passenger’s encounter with police officers (in the absence of

evidence of an independent offense) to be inconsistent with the State’s view that a passenger

can be held at the scene of a traffic stop, purely by virtue of his presence in the car and

against his will, for as long as the driver is held.

        {¶ 26}    In Strozier, a police officer observed a pick-up truck driving erratically, ran

its license plate number, and learned that it had been reported stolen. Strozier at ¶ 3.

When the truck stopped, one of the two passengers exited the vehicle. The police officer

ordered the passenger to return to the truck; the officer “wanted all of the occupants of the

vehicle in the truck for safety reasons. Specifically, he did not want to risk the passenger

circling back and harming him from behind.” Id. at ¶ 4. When additional officers arrived

at the scene, they ordered the passengers out of the truck and onto the ground at gunpoint;

although the officers did not have any specific basis to believe that Strozier had a weapon,

they wanted “to make sure.” Id. at ¶ 5. The officers did not know, at that point, to what

extent, if at all, Strozier had been involved in the theft of the vehicle. They handcuffed
                                                                                             10

Strozier while he was on the ground, then stood him up to conduct a pat-down search.

Before conducting the pat-down, one of the officers, who had previously been stuck with a

needle while conducting a pat-down, asked Strozier if he had “anything on [him] I need to

know about? Anything that might stick me?” In response, Strozier stated that he had some

“brown stuff” (heroin) in a baggie in his pocket.

        {¶ 27} Although Strozier has been cited for the proposition that a passenger can be

detained for the duration of a traffic stop (a proposition for which it cites Brown), the issues

in the case did not relate to the length of the detention. Rather, Strozier focused on whether

the defendant was in custody at the time of his statement, whether the officer’s questions

prior to the pat-down and prior to giving Miranda warnings constituted a “public safety

exception” to the Miranda rule, and whether the officer should have known that his question

would lead to an incriminating response.        The length of Strozier’s detention was not

discussed in the case. Although Strozier does contain a statement of law related to the

length of a passenger’s detention, it cannot, in our view, be properly relied on for the

proposition that officers can detain a passenger “for the duration of the lawful detention of

the driver,” because the case does not otherwise discuss this issue or endorse such a

detention. Moreover, the officers in Strozier continued to investigate their suspicion that

Strozier had been involved in the commission of a crime (the theft of the vehicle in which he

was a passenger), whereas the officers in Wilcox’s case admitted that they did not suspect

him of illegal activity.

        {¶ 28} Wilcox’s detention was consensual, and Brown supports this view. Having

concluded that Wilcox’s encounter with the police was consensual, we must logically
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conclude that he was free to leave, if he chose to do so, even if the driver was still being

detained. The trial court correctly found that Wilcox’s arrest for public indecency was

improper; Wilcox was being held at the scene in violation of his Fourth Amendment rights,

after repeatedly expressing his need to urinate, when he “exposed [his] private parts,” in

violation of R.C. 2907.09. Therefore, the evidence of drug possession, which was obtained

in a search incident to Wilcox’s arrest, was properly suppressed as fruit of the poisonous

tree.

        {¶ 29} The State’s assignment of error is overruled.

        {¶ 30} The judgment of the trial court will be affirmed.

                                        ..........

FAIN, J. and WILLIAMOWSKI, J., concur.

(Hon. John R. Willamowski, Third District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Lisa M. Fannin
Anthony S. VanNoy
Hon. Richard J. O’Neill
