[Cite as State v. Smith, 2012-Ohio-5962.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :       CASE NO. CA2012-03-022

                                                  :              OPINION
    - vs -                                                       12/17/2012
                                                  :

BRUCE A. SMITH,                                   :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 11CR27642



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Flanagan, Lieberman, Hoffman & Swaim, Dennis A. Lieberman, 15 West Fourth Street, Suite
100, Dayton, Ohio 45402, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} The question on this appeal is whether the trial court erred in failing to suppress

the evidence found in a defendant's vehicle when he alleges his consent to search was not

voluntary. We affirm the judgment, finding from the totality of the circumstances that the

defendant voluntarily consented to the search of his vehicle.

        {¶ 2} Defendant-appellant, Bruce A. Smith, was charged in Warren County Common

Pleas Court with possession of drugs after he was stopped for a marked lanes violation and
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a search of his vehicle revealed a pill bottle that included some painkillers not prescribed for

him. After unsuccessfully moving to suppress the evidence, Smith pled no contest and was

convicted.

       {¶ 3} In his single assignment of error on appeal, Smith avers that the trial court erred

in denying his motion to suppress. Smith specifically argues that "where a traffic stop is

improperly prolonged and a driver does not freely and voluntarily consent to a search of his

car, the fruits of such a search must be suppressed."

       {¶ 4} An appellate court's review of a ruling on a motion to suppress presents a

mixed question of law and fact. State v. Forbes, 12th Dist. No. CA2007-01-001, 2007-Ohio-

6412, ¶ 29. A reviewing court must accept the trial court's findings of fact if they are

supported by competent, credible evidence. Id. The appellate court then determines as a

matter of law, without deferring to the trial court's conclusions, whether the trial court applied

the appropriate legal standard. Id.

       {¶ 5} Smith does not contest his detention for the traffic stop for a marked-lane

violation. And generally, when detaining a motorist for a traffic violation, an officer may delay

the motorist for a time period sufficient to issue a ticket or a warning. See State v. Howard,

12th Dist. Nos. CA2006-02-002, CA2006-02-003, 2006-Ohio-5656, ¶ 15. This time period

also includes the period of time sufficient to run a computer check on the driver's license,

registration, and vehicle plates. Id.

       {¶ 6} In the case at bar, the arresting officer testified that Smith was

              defensive immediately, as soon as I walked up, he was wanting
              to know why he was being stopped. As soon as I would ask him
              a question, he was like why do you want to know that? He never
              really came straight forward and answered any questions until I
              explained to him why I was asking him questions and calming
              him down, and he would answer the question and then I would
              ask him another question and it was right back to the same
              defensive mannerism. He appeared to be nervous. [sic]

       {¶ 7} The officer stated that he took Smith's driver's license and insurance
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information and asked Smith if he had anything illegal in his car, such as drugs, alcohol,

knives, etc. Smith told the officer he did not.

       {¶ 8} When the officer checked Smith's information, he noticed that Smith had prior

convictions. According to the transcript of the suppression hearing, the officer found "several

OVI/drug/alcohol convictions on his [Smith's] record." The trial court subsequently noted in

its decision that "defendant had several prior drug and alcohol related violations on his

record." However, the state acknowledged at oral argument that it was not clear from the

officer's testimony whether Smith had any prior drug convictions. While we understand the

confusion from the officer's testimony, we will consider for purposes of this review that Smith

did not have prior separate drug convictions.

       {¶ 9} After the computer check revealed the prior convictions, the officer testified,

"[a]t that point, I decided to go up and ask him some more questions. I asked him once

again, if he had anything illegal in his car that I needed to be aware of." The officer said

Smith "started looking around in his car," and answered that he did not have anything illegal

in his vehicle. The officer asked Smith, "[d]o you care if I take a look?" According to the

officer, Smith said, "No, you go ahead." Smith left his vehicle and the officer "had him stay at

the front of my vehicle" during the search. .

       {¶ 10} The prosecutor asked the officer if he had issued a citation prior to asking to

search the vehicle. The officer said, "No, at that point, no because like is said, [sic] I returned

to my car and saw that there was a history of drug and alcohol and based on the way he had

answered my questions, I determined to pursue that investigation farther instead of doing the

traffic violation at that time." [sic]

       {¶ 11} After reviewing the record under the applicable standard of review, we conclude

that Smith was being lawfully held when the officer asked him for permission to search, and,

while this is a close case, we draw this conclusion for two reasons.

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       {¶ 12} The record indicates the officer had not completed the purpose of the traffic

stop before he asked Smith for permission to search his vehicle. Where a consent to search

is sought and obtained during the period of time reasonably necessary to process the traffic

citation -- which is while a violator is being lawfully detained -- the traffic stop and resulting

detention is not unlawfully prolonged. State v. Loffer, 2nd Dist. No. 19594, 2003-Ohio-4980;

see State v. Lattimore, 10th Dist. No. 03AP-467, 2003-Ohio-6829, ¶ 15; see also State v.

Landers, 10 Dist. No. 07AP-475, 2007-Ohio-7146.

       {¶ 13} Further, if during the initial detention, an officer ascertains reasonably

articulable facts giving rise to a suspicion of criminal activity, the officer may then further

detain and implement a more in-depth investigation of the individual. State v. Robinette, 80

Ohio St.3d 234, 241(1997). Reasonable articulable suspicion exists when there are specific

and articulable facts which, taken together with rational inferences from those facts,

reasonably warrant the intrusion. State v. Bobo, 37 Ohio St.3d 177, 178 (1988).

       {¶ 14} In forming reasonable articulable suspicion, law enforcement officers may "draw

on their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that might well elude an untrained

person." State v. Troutman, 3rd Dist. No. 9-11-17, 2012-Ohio-407, ¶ 25, quoting United

States v. Arviza, 534 U.S. 266, 273-274, 122 S.Ct. 744 (internal citations omitted).

Therefore, determining whether the officer's actions were justified depends upon the totality

of the circumstances, which must "be viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to the events as they unfold." State v. Andrews,

57 Ohio St.3d 86, 87 (1991).

       {¶ 15} When questioned by defense counsel, the officer indicated that he investigated

further on the traffic stop because of Smith's OVI record, and "the fact that he appeared to be

agitated when I was asking questions, he appeared to be nervous. He did not seem to want

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to be in contact with me at that time." We note that the officer previously testified that Smith

looked around the vehicle while responding to the question about any contraband present in

his vehicle.

       {¶ 16} Based on the distinctive combination of factors present for the officer in this

case, we find the officer had reasonable articulable suspicion to investigate further. See

State v. Christopher, 12th Dist. No. CA2009-08-041, 2010-Ohio-1816, ¶ 26 (courts have held

that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion).

       {¶ 17} The officer testified that Smith consented to a search of his vehicle during the

encounter.       To establish the consent exception to the probable-cause and warrant

requirements of the federal and Ohio constitutions, the state has the burden of establishing

by "clear and positive" evidence that consent was freely and voluntarily given, and not the

result of a mere submission to a claim of lawful authority. State v. Posey, 40 Ohio St.3d 420,

427 (1988); State v. Taylor, 12th Dist. No. CA2001-02-003, 2001-Ohio-8676; State v.

Lattimore, 2003-Ohio-6829 at ¶ 15.

       {¶ 18} Every search situation is unique unto itself and no set of fixed rules will be

sufficient to cover every situation. Robinette at 242. When the subject of a search is not in

custody and the state attempts to justify a search on the basis of his consent, the Fourth and

Fourteenth Amendments require that the state demonstrate that the consent was in fact

voluntarily given, and not the result of duress or coercion, express or implied. Schneckloth v.

Bustamonte, 412 U.S. 218, 248-249, 93 S.Ct. 2041 (1973); see also Christopher at ¶ 45-46

(additional factors gleaned from Bustamonte include evaluation of words and conduct of

suspect, whether suspect was a "newcomer to the law;" and his or her education and

intelligence).

       {¶ 19} Voluntariness is a question of fact to be determined from all of the

circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken

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into account, the prosecution is not required to demonstrate such knowledge as a

prerequisite to establishing a voluntary consent. Robinette at 244-243, citing Bustamonte at

248-249.

        {¶ 20} After considering the totality of the circumstances surrounding Smith's consent

to search his vehicle, we find Smith was not a "newcomer to the law," there is no evidence he

was of limited intelligence, there is no indication Smith consented under duress or coercion,

express or implied, there is every indication he was capable of questioning the officer's

motives or methods and did not simply submit to the officer's claim of lawful authority. See

Lattimore, 2003-Ohio-6829 at ¶ 17 (defendant's consent to the search demonstrates only his

desire to resolve the situation, and there is no evidence of any coercive police procedure).

Therefore, we find that Smith voluntarily consented to the search of his vehicle.

        {¶ 21} We also note that Smith argued that he was not sufficiently informed the officer

was asking to search the vehicle when he agreed to the officer taking "a look." As previously

noted, the officer asked Smith if he had anything illegal in his vehicle, and when Smith looked

around the vehicle and stated he did not have anything illegal, the officer asked Smith if he

cared "if I take a look?"          Smith reportedly said, "No, you go ahead."                    We find that

conversation sufficient to inform Smith that the officer was asking to search, as the record

indicates Smith had previous interactions with law enforcement.

        {¶ 22} We have considered all of the arguments set forth by Smith in his appeal and

find none of them warrants a reversal of the trial court's decision denying Smith's motion to
                      1
suppress the evidence. Smith's single assignment of error is overruled.

        {¶ 23} Judgment affirmed.


        RINGLAND and HENDRICKSON, JJ., concur.

1. While we are aware of the Ohio Supreme Court's recent decision in State v. Gardner, Slip Opinion No. 2012-
Ohio-5683, it is distinguishable because, in Gardner, the trial court relied on the subsequently discovered arrest
warrant and did not analyze the propriety of the defendant's detention and search.
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