[Cite as State v. Scarberry, 2016-Ohio-7065.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                   No. 15AP-775
v.                                                :            (C.P.C. No. 14CR-1707)

Kyle D. Scarberry,                                :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                   Rendered on September 29, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee. Argued: Sheryl L. Prichard.

                 On brief: Yeura R. Venters, Public Defender, and
                 George M. Schumann, for appellant. Argued: George M.
                 Schumann.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

        {¶ 1} Defendant-appellant, Kyle D. Scarberry, appeals the July 15, 2015 judgment
of the Franklin County Court of Common Pleas convicting him, pursuant to a plea of no
contest, and imposing sentence. For the following reasons, we reverse the judgment of
the trial court.
I. History of the Case
        A. Procedural History
        {¶ 2} On April 2, 2014, a Franklin County Grand Jury filed an indictment
charging appellant with a single count of possession of drugs, in violation of R.C. 2925.11,
a felony of the fifth degree. On July 22, 2014, appellant filed a motion to suppress. On
May 7, 2015, the trial court held a suppression hearing at which the trial court denied
No. 15AP-775                                                                               2


appellant's motion to suppress. Following the denial of his motion to suppress, appellant
entered a plea of no contest. On July 13, 2015, the trial court held a sentencing hearing,
imposing a sentence of community control for a period of five years and suspending
appellant's driver's license for a period of six months. On July 15, 2015, the trial court
filed a judgment entry reflecting appellant's conviction and sentence.
       B. Factual History
       {¶ 3} At the suppression hearing, plaintiff-appellee, State of Ohio, called Officer
Joseph Hughes of the Grove City Police Department as its sole witness. During Officer
Hughes' testimony, the state played a video recording from Officer Hughes' cruiser of the
incident in question; however, there was no accompanying audio recording, as Officer
Hughes stated that his microphone was not working during the stop.
       {¶ 4} Officer Hughes testified that on November 8, 2013, at approximately 2:00
a.m., he was on patrol when he saw appellant commit a traffic violation. Officer Hughes
stated he was familiar with appellant because appellant had previously been charged with
possession of heroin.    After observing the traffic violation and following appellant's
vehicle for a brief time, Officer Hughes activated his lights and directed appellant to pull
over. Appellant stopped his vehicle in the driveway of an apartment building, and Officer
Hughes parked his police cruiser in the driveway behind appellant's vehicle.
       {¶ 5} Officer Hughes exited his cruiser and approached appellant's vehicle.
Officer Hughes informed appellant that he had committed a traffic violation due to his
failure to stop behind a marked stop line. Officer Hughes gave appellant a verbal warning
and then told him "he was free to go at any time." (May 7, 2015 Tr. at 17.) However, after
telling appellant he was free to leave, Officer Hughes immediately asked appellant
whether he would consent to exiting his vehicle for a pat-down search. Specifically,
Officer Hughes testified that he said: " 'Mr. Scarberry, before you pull away, you're free to
go, but, before you pull away, would you mind stepping out of the vehicle so I can
complete a pat-down of you?' " (May 7, 2015 Tr. at 18.) Officer Hughes stated that
appellant replied affirmatively to the request for a pat-down search.          While Officer
Hughes was addressing appellant, and before appellant had exited his vehicle, another
officer, whom Officer Hughes identified as a "backup officer," arrived and walked toward
appellant's vehicle. (May 7, 2015 Tr. at 17.) Officer Hughes agreed that approximately 30
No. 15AP-775                                                                              3


seconds elapsed between his initial contact with appellant and the time appellant
consented to be searched.
       {¶ 6} After allegedly giving his consent to the pat-down search, appellant exited
his vehicle and stood facing the driver's side of the vehicle. Officer Hughes testified that
he deliberately positioned appellant next to his vehicle so that appellant was encircled on
all sides. Specifically, Officer Hughes stated:
               Mr. Scarberry steps out here. I begin my pat-down of him. My
               backup officer, one side is covered by a building. The other
               side is blocked by the door. The other side is blocked by the
               vehicle. So my backup officer took placement here to block the
               side in case he would try to run.

(May 7, 2015 Tr. at 18-19.) On cross-examination, Officer Hughes clarified:

               [Appellant's Counsel]: I kind of gathered there's a design or a
               purpose for the way you've situated everybody here; correct?

               [Officer Hughes]: Yes, sir.

               [Appellant's Counsel]: You've got your partner here; you've
               got the door open right here?

               [Officer Hughes]: Yeah. Three sides are blocked. The backup
               is there to block the fourth side from someone running. If
               someone tried to run away, he was there.

(May 7, 2015 Tr. at 28.) The video recording reflects appellant was positioned facing the
driver's side of his vehicle, with the driver's door open to his left. Officer Hughes stood
behind appellant while he searched him, and the backup officer stood to appellant's right.
       {¶ 7} Officer Hughes testified that, while he was searching appellant, he asked
appellant whether he "could remove the items in his pockets," and appellant replied
affirmatively. (May 7, 2015 Tr. at 19.) Later, Officer Hughes testified that he asked
appellant if he "would * * * mind if I remove the items from your pocket and look at
them?" (May 7, 2015 Tr. at 20.) In the video recording, appellant appears to nod while
being searched by Officer Hughes.
       {¶ 8} During the pat-down search, Officer Hughes removed a cigarette pack from
appellant's pocket, opened the pack, and found what he suspected was heroin wrapped in
plastic within the cigarette pack. Officer Hughes testified that he would not have removed
No. 15AP-775                                                                             4


the cigarette pack from appellant's pocket if he did not have consent. Although the video
recording does not clearly reflect whether Officer Hughes placed appellant in handcuffs
before he opened the cigarette pack or afterward, Officer Hughes testified as follows:
               [Officer Hughes]: [O]nce I pulled the cigarette packet out and
               I saw it, I immediately just put him in handcuffs after that.

               [Assistant Prosecutor]: You saw what?

               [Officer Hughes]: The suspected heroin inside the cigarette
               container wrapped in plastic.

(May 7, 2015 Tr. at 20.) After placing appellant in handcuffs, Officer Hughes completed a
more thorough search of appellant and found a syringe in another pocket on appellant's
person. Officer Hughes acknowledged that he was not going to cite appellant for the
alleged traffic violation, but did eventually cite appellant after arresting him.
       {¶ 9} Officer Hughes stated that appellant was "very cooperative" throughout the
incident, and noted that appellant had a "speech and hearing issue, so his speaking to me
was very short." (May 7, 2015 Tr. at 23-24.) When asked whether there was any
indication that appellant did not understand what Officer Hughes was asking him to do,
Officer Hughes replied, "No." (May 7, 2015 Tr. at 24.)
       {¶ 10} On redirect examination, Officer Hughes testified regarding whether or not
he asked appellant if he had any contraband or weapons in his vehicle:
               [Assistant Prosecutor]: [D]o you remember asking [appellant]
               if he had anything illegal in his car before you asked him for
               consent?

               [Officer Hughes]: Yes, sir.

               [Assistant Prosecutor]: When was that? Well, obviously,
               before you asked him for consent, but can you describe that in
               a little more detail?

               [Officer Hughes]: Yes. It would have been when I was up there
               talking to him about the traffic violation he made. I would
               have asked him, "[Appellant], is there anything illegal in the
               vehicle that I should be aware of? Any guns? Knives? Drugs?
               Bombs? Anything of that nature?"

               Again, he replied, "No."
No. 15AP-775                                                                               5


               [Assistant Prosecutor]: So that's when you asked him, "Can I
               search you?"

               [Officer Hughes]: Yeah, and advised him all in that
               conversation that he was free to leave. I asked him to step out
               of the vehicle to perform a pat-down, and he complied.

(May 7, 2015 Tr. at 34.) Furthermore, when asked on recross-examination whether he
"thought there could be some heroin" in appellant's vehicle, Officer Hughes responded:
"Guns and knives go together. That's why I asked. I know he commonly uses drugs, so
there's reason for me to believe there could be a weapon involved." (May 7, 2015 Tr. at
36.) However, when asked whether he had ever seen appellant with a gun or knife,
Officer Hughes responded, "I've never seen him, no." (May 7, 2015 Tr. at 36.)
       {¶ 11} Appellant did not call any witnesses at the suppression hearing.
II. Assignment of Error
       {¶ 12} Appellant appeals and assigns the following sole assignment of error for our
review:
               The trial court erred in denying the defendant-appellant's
               motion to suppress unconstitutionally obtained evidence.

III. Discussion
       {¶ 13} In his sole assignment of error, appellant asserts the trial court erred in
denying his motion to suppress.
       A. Standard of Review
       {¶ 14} "Appellate review of a motion to suppress presents a mixed question of law
and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. See also State v.
Belton, __ Ohio St.3d __, 2016-Ohio-1581, ¶ 100, citing Burnside. In evaluating the
motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best
position to resolve factual questions and evaluate the credibility of witnesses. Burnside at
¶ 8. Therefore, we must accept the trial court's findings of fact if they are supported by
competent, credible evidence. Id. "Accepting these facts as true, the appellate court must
then independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard." Id. See also State v. Johnson,
10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 6 ("We apply a de novo standard in
determining whether the trial court properly denied appellant's motion to suppress.").
No. 15AP-775                                                                             6


       B. Applicable Law
       1. Constitutional Protections
       {¶ 15} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched,
and the persons or other things to be seized."         Article I, Section 14 of the Ohio
Constitution contains a nearly identical provision:
               The right of the people to be secure in their persons, houses,
               papers, and possessions, against unreasonable searches and
               seizures shall not be violated; and no warrant shall issue, but
               upon probable cause, supported by oath or affirmation,
               particularly describing the place to be searched and the
               person and things to be seized.

See also R.C. 2933.22(A), and Crim.R. 41(C).
       {¶ 16} Historically, the protections afforded by Article I, Section 14 of the Ohio
Constitution have been construed as coextensive with the protections of the Fourth
Amendment of the United States Constitution. State v. Geraldo, 68 Ohio St.2d 120, 125-
26 (1981) ("We are disinclined to impose greater restrictions in the absence of explicit
state constitutional guarantees protecting against invasions of privacy that clearly
transcend the Fourth Amendment. * * * It is our opinion that the reach of Section 14,
Article I, of the Ohio Constitution * * * is coextensive with that of the Fourth
Amendment."); State v. Robinette, 80 Ohio St.3d 234, 239 (1997) ("Robinette III")
(stating that courts "should harmonize * * * interpretation of Section 14, Article I of the
Ohio Constitution with the Fourth Amendment, unless there are persuasive reasons to
find otherwise"); State v. Jones, 88 Ohio St.3d 430, 434 (2000), modified in State v.
Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, syllabus. However, it is well-recognized that
states may "rely on their own constitutions to provide broader protection for individual
rights, independent of protections afforded by the United States Constitution." Robinette
III at 238. See Arnold v. Cleveland, 67 Ohio St.3d 35, 38 (1993), paragraph one of the
syllabus ("In the areas of individual rights and civil liberties, the United States
Constitution, where applicable to the states, provides a floor below which state court
No. 15AP-775                                                                              7


decisions may not fall."). Thus, in certain circumstances, the Supreme Court of Ohio has
construed Article I, Section 14 of the Ohio Constitution as providing greater protection
than the Fourth Amendment to the United States Constitution. Brown at ¶ 22; State v.
Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, ¶ 23 ("Article I, Section 14 of the Ohio
Constitution affords greater protection than the Fourth Amendment against searches and
seizures conducted by members of law enforcement who lack authority to make an
arrest."). See Robinette III at 238 (noting that a "state may impose greater restrictions on
police activity pursuant to its own state constitution than is required by federal
constitutional standards").
       2. Consent as an Exception to the Warrant Requirement
       {¶ 17} "The touchstone of the Fourth Amendment is reasonableness." Florida v.
Jimeno, 500 U.S. 248, 250 (1991), citing Katz v. United States, 389 U.S. 347, 360 (1967).
"The Fourth Amendment does not proscribe all state-initiated searches and seizures; it
merely proscribes those which are unreasonable." Id. at 250. In keeping with this
principle, " 'searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only
to a few specifically established and well-delineated exceptions.' " Arizona v. Gant, 556
U.S. 332, 338 (2009), quoting Katz at 357. See Arnold at 45 (recognizing exceptions to
the search warrant requirement under the Ohio Constitution); State v. Kessler, 53 Ohio
St.2d 204, 207 (1978).
       {¶ 18} Thus, both the Fourth Amendment to the United States Constitution, as
applied to the states through the Fourteenth Amendment, and Article I, Section 14 of the
Ohio Constitution prohibit the government from conducting warrantless searches and
seizures, subject to certain exceptions. State v. Limoli, 10th Dist. No. 11AP-924, 2012-
Ohio-4502, ¶ 20, citing State v. Fowler, 10th Dist. No. 10AP-658, 2011-Ohio-3156, ¶ 11-
12. See also Stone v. Stow, 64 Ohio St.3d 156, 163 (1992), fn. 4. Among others, "consent
signifying waiver of constitutional rights" has been recognized as an exception to the
search warrant requirement. State v. Alihassan, 10th Dist. No. 11AP-578, 2012-Ohio-825,
¶ 8, citing State v. Akron Airport Post No. 8975, 19 Ohio St.3d 49, 51 (1985). See
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Jimeno at 250-51 (stating that "we
have long approved consensual searches because it is no doubt reasonable for the police
No. 15AP-775                                                                                  8


to conduct a search once they have been permitted to do so"). "[W]here the validity of a
search rests on consent, the State has the burden of proving that the necessary consent
was obtained and that it was freely and voluntarily given, a burden that is not satisfied by
showing a mere submission to a claim of lawful authority." Florida v. Royer, 460 U.S.
491, 497 (1983) (plurality opinion). "The standard for measuring the scope of a suspect's
consent under the Fourth Amendment is that of 'objective' reasonableness—what would
the typical reasonable person have understood by the exchange between the officer and
the suspect?" Jimeno at 251.
       {¶ 19} "In determining the voluntariness of [a person's] consent to a search, a
court must apply a different standard when [the] consent is given during a lawful police
detention as opposed to an unlawful detention." Limoli at ¶ 22. "[W]hen a person is
lawfully detained by police and consents to a search, the state must show by clear and
convincing evidence that the consent was freely and voluntarily given. * * * Important
factors in determining the voluntariness of consent are: (1) the voluntariness of the
defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent
and level of the defendant's cooperation with the police; (4) the defendant's awareness of
his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the
defendant's belief that no incriminating evidence will be found."             (Emphasis sic.)
(Citations omitted.) Id.
       {¶ 20} However, when a person offers consent to a search during an unlawful
police detention, the state must meet a more stringent standard in determining whether
the consent was freely and voluntarily given. Id. at ¶ 23. When consent is obtained after
illegal police activity, " '[t]he consent will be held voluntary only if there is proof of an
unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior
illegal action.' " Alihassan at ¶ 26, quoting State v. Retherford, 93 Ohio App.3d 586, 602
(2d Dist.1994), citing Royer at 501. See also State v. Spain, 10th Dist. No. 09AP-331,
2009-Ohio-6664, ¶ 26, quoting State v. Melvin, 8th Dist. No. 88611, 2007-Ohio-3779,
¶ 37, quoting Royer at 501 ("[W]hen consent is 'obtained during an illegal detention, the
consent is negated "even though voluntarily given if [the consent is] the product of the
illegal detention and not the result of an independent act of free will." ' "). In order for the
illegally detained person's consent to be considered an independent act of free will, "the
No. 15AP-775                                                                                9


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." Robinette III at paragraph three of the syllabus. "Factors to consider in
determining whether the consent is sufficiently removed from the taint of the illegal police
activity include the length of time between the illegal activity and the subsequent search,
the presence of intervening circumstances, and the purpose and flagrancy of the
misconduct." Alihassan at ¶ 26. See State v. Doane, 1st Dist. No. C-040523, 2005-Ohio-
2740, ¶ 16, fn. 24, citing United States v. Lopez-Arias, 344 F.3d 623, 630 (6th Cir.2003);
Brown v. Illinois, 422 U.S. 590, 603 (1975). "The state 'bears the burden of proving, by
"clear and positive" evidence, that consent was freely and voluntarily given.' " Spain at
¶ 26, quoting Melvin at ¶ 37, citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
See State v. Posey, 40 Ohio St.3d 420, 427 (1988).
       {¶ 21} Importantly, regardless of whether consent is given during a lawful or
unlawful detention, a court must examine the totality of the circumstances in determining
the voluntariness of consent to be searched. Limoli at ¶ 24, citing State v. Lattimore, 10th
Dist. No. 03AP-467, 2003-Ohio-6829, ¶ 9, and Robinette III at paragraphs two and three
of the syllabus; Alihassan at ¶ 26 ("Voluntariness is a question of fact and depends on the
totality of the circumstances.").
       3. Lawfulness of Detention
       {¶ 22} "Temporary detention of individuals during the stop of an automobile by
the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure'
of 'persons' within the meaning of [the Fourth Amendment]." Whren v. United States,
517 U.S. 806, 809-10 (1996). "[A] routine traffic stop is 'more analogous to a so-called
"Terry [v. Ohio, 392 U.S. 1 (1968)] stop" . . . than to a formal arrest.' " Rodriguez v.
United States, 135 S.Ct. 1609, 1614 (2015), quoting Knowles v. Iowa, 525 U.S. 113, 117
(1998).
       {¶ 23} Under Terry v. Ohio, 392 U.S. 1 (1968), an investigatory stop and a frisk or
pat-down for weapons may be conducted without violating the Fourth Amendment's ban
on unreasonable searches and seizures if two conditions are met. First, the investigatory
stop must be lawful. A stop is lawful where an investigating officer "reasonably suspects
that the person apprehended is committing or has committed a criminal offense."
No. 15AP-775                                                                               10


Arizona v. Johnson, 555 U.S. 323, 326 (2009). See State v. Fisher, 10th Dist. No. 10AP-
746, 2011-Ohio-2488, ¶ 18, citing State v. Williams, 51 Ohio St.3d 58, 60-61 (1990) ("To
justify a brief investigative stop or detention of an individual pursuant to Terry, a police
officer must be able to cite specific and articulable facts which, taken together with
rational inferences derived from those facts, give rise to a reasonable suspicion that the
individual is engaged or about to be engaged in criminal activity."). Second, in order to
proceed from a stop to a frisk or pat-down, the investigating officer "must reasonably
suspect that the person stopped is armed and dangerous." Johnson, 555 U.S. at 327.
       {¶ 24} Recently, the United States Supreme Court held that "in a traffic-stop
setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful
for police to detain an automobile and its occupants pending inquiry into a vehicular
violation." Id. As a result, "[t]he police need not have, in addition, cause to believe any
occupant of the vehicle is involved in criminal activity." Id.
       {¶ 25} Detention arising from a traffic stop remains lawful for the amount of time
reasonably required to complete the stop's mission. "Like a Terry stop, the tolerable
duration of police inquiries in the traffic-stop context is determined by the seizure's
'mission'—to address the traffic violation that warranted the stop * * * and attend to
related safety concerns." Rodriguez at 1614. "Because addressing the infraction is the
purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' "
Id., quoting Royer at 500. "Authority for the seizure thus ends when tasks tied to the
traffic infraction are—or reasonably should have been—completed." Id. See Illinois v.
Caballes, 543 U.S. 405, 407 (2005) ("A seizure that is justified solely by the interest in
issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission."); Johnson, 555 U.S. at 333 ("A lawful
roadside stop begins when a vehicle is pulled over for investigation of a traffic violation"
and such lawful stop "ends when the police have no further need to control the scene, and
inform the driver and passengers they are free to leave."). "On-scene investigation into
other crimes, however, detours from [the] mission" of the traffic stop, including "safety
precautions taken in order to facilitate such detours." Rodriguez at 1616.
       {¶ 26} When justification for the original detention ends, there must be an
additional reasonable suspicion of illegal activity in order to justify the continued
No. 15AP-775                                                                               11


detention. State v. Tyler, 10th Dist. No. 13AP-220, 2013-Ohio-4673, ¶ 15. "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." Robinette III
at paragraph one of the syllabus, modifying State v. Robinette, 73 Ohio St.3d 650 (1995),
paragraph one of the syllabus ("Robinette I"). See also State v. Ferrante, 196 Ohio
App.3d 113, 2011-Ohio-4870, ¶ 21 (2d Dist.).
       {¶ 27} Moreover, even when the first condition is satisfied by a lawful stop for
purposes of investigating a traffic violation, the second condition—a reasonable suspicion
that the person stopped is armed and dangerous—must still be satisfied in order to justify
a pat-down search during a traffic stop. "To justify a patdown of the driver or a passenger
during a traffic stop, * * * just as in the case of a pedestrian reasonably suspected of
criminal activity, the police must harbor reasonable suspicion that the person subjected to
the frisk is armed and dangerous." (Emphasis added.) Johnson, 555 U.S. at 327. See
State v. Evans, 67 Ohio St.3d 405, 408-09 (1993), quoting State v. Bobo, 37 Ohio St.3d
177 (1988), paragraph two of the syllabus (" 'Where a police officer, during an
investigative stop, has a reasonable suspicion that an individual is armed based on the
totality of the circumstances, the officer may initiate a protective search for the safety of
himself and others.' ") (Emphasis added.); State v. Moorer, 10th Dist. No. 14AP-224,
2014-Ohio-4776, ¶ 21 ("[A]n officer does not have authority to automatically conduct a
search of a detainee when a valid stop has been initiated. * * * In order to conduct a pat-
down search for weapons, an officer must have reason to believe that an individual is
armed and dangerous."). " 'The purpose of this limited search is not to discover evidence
of crime, but to allow the officer to pursue his investigation without fear of violence.' "
Evans at 408, quoting Adams v. Williams, 407 U.S. 143, 146 (1972). See State v.
Millerton, 2d Dist. No. 26209, 2015-Ohio-34, ¶ 26.
       {¶ 28} In Robinette I, the Supreme Court of Ohio examined the constitutionality of
a search following a traffic stop. In that case, a police officer stopped Robinette for
committing a speeding violation. On request, Robinette provided the officer with his
No. 15AP-775                                                                                12


driver's license. After checking Robinette's license, the officer asked Robinette to step out
of his vehicle and move between his vehicle and the officer's cruiser. Robinette complied
and the officer then issued him a verbal warning and returned his license. After returning
the license, the officer asked for drug interdiction purposes whether Robinette was
carrying any contraband or weapons in his vehicle. Although Robinette replied that he
did not have any contraband in his vehicle, the officer asked for consent to search the
vehicle. Robinette "testified that he was shocked at the question and 'automatically'
answered 'yes' to the deputy's request. Robinette testified further that he did not believe
that he was at liberty to refuse the deputy's request." Id. at 652. Upon searching
Robinette's vehicle, the officer found contraband, resulting in Robinette's arrest.
       {¶ 29} On review, the Supreme Court found that "[w]hen the motivation behind a
police officer's continued detention of a person stopped for a traffic violation is not related
to the purpose of the original, constitutional stop, and when that continued detention is
not based on any articulable facts giving rise to a suspicion of some separate illegal
activity justifying an extension of the detention, the continued detention constitutes an
illegal seizure." Id. at paragraph one of the syllabus. Therefore, the court concluded that
the search was invalid because it was the product of an unlawful seizure. Furthermore,
the court created a bright-line test stating that "citizens stopped for traffic offenses [must]
be clearly informed by the detaining officer when they are free to go after a valid
detention, before an officer attempts to engage in a consensual interrogation." Id. at
paragraph two of the syllabus.
       {¶ 30} On appeal, the United States Supreme Court found that it possessed
jurisdiction to hear the appeal because, although the Supreme Court of Ohio's decision in
Robinette I mentioned Article I, Section 14 of the Ohio Constitution, "the opinion clearly
relies on federal law nevertheless." Ohio v. Robinette, 519 U.S. 33, 36 (1996) ("Robinette
II"). Turning to the merits, the United States Supreme Court held that the Fourth
Amendment of the United States Constitution does not require that a lawfully seized
defendant must be advised that he or she is "free to go" before his or her consent to search
will be recognized as voluntary. Robinette II at 36. In so holding, the United States
Supreme Court reaffirmed its rejection of bright-line rules for determining whether a
No. 15AP-775                                                                               13


search was reasonable.     Rather, the court concluded that reasonableness was to be
"measured in objective terms by examining the totality of the circumstances." Id. at 39.
       {¶ 31} On remand, the Supreme Court of Ohio examined the question of "whether
this court's prior holding should be reaffirmed under the adequate and independent
ground of the Constitution of the state of Ohio." Robinette III at 237. In consideration of
this question, the court first examined "whether Robinette's stop and continued detention
were justified." Id. at 239. The court found that because it was undisputed that Robinette
was speeding, the officer's acts of stopping Robinette and ordering Robinette to exit the
vehicle were justified. However, once the officer "administered the warning for speeding
to Robinette, the reason for the stop ended." Id. Thus, the court was next required to
consider the officer's acts of asking whether Robinette was carrying contraband and the
subsequent request to search Robinette.
       {¶ 32} First, although the reason for the stop had ended, the court found that,
pursuant to Royer and Brown v. Texas, 443 U.S. 47 (1979), the officer was "justified in
briefly detaining Robinette in order to ask him whether he was carrying any illegal drugs
or weapons pursuant to the drug interdiction policy." Robinette III at 241. Next, the
court examined whether the continued detention of Robinette after that point was lawful.
The court opined that "[i]f during the initial detention to ask the contraband question, the
officer ascertained 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." Id. However, since the officer in that case did not have any reasonably
articulable facts or individualized suspicion, the continued detention of Robinette was not
justified. As a result, the continued detention of Robinette constituted an illegal seizure.
       {¶ 33} Having determined that Robinette was unlawfully seized at the time he gave
consent to the search, the court next examined whether the state met its burden of
establishing that Robinette's consent was given as an independent act of free will under
the totality of the circumstances. In its analysis of this question, the court focused on the
circumstances surrounding the request for consent, especially noting that after the officer
issued the verbal warning, he immediately transitioned into asking whether Robinette
possessed any contraband and whether he could conduct a search. The court found that
"[t]he timing of [the officer's] immediate transition from giving Robinette the warning for
No. 15AP-775                                                                                14


speeding into questioning regarding contraband and the request to search is troubling."
Robinette III at 244. Furthermore, the court stated that " '[t]he transition between
detention and a consensual exchange can be so seamless that the untrained eye may not
notice that it has occurred. The undetectability of that transition may be used by police
officers to coerce citizens into answering questions that they need not answer, or to allow
a search of a vehicle that they are not legally obligated to allow.' " Robinette III at 244,
quoting Robinette I at 654.
       {¶ 34} The court found that "[w]hen these factors are combined with a police
officer's superior position of authority, any reasonable person would have felt compelled
to submit to the officer's questioning," and, as a result, "[w]hile [the officer's] questioning
was not expressly coercive, the circumstances surrounding the request to search made the
questioning impliedly coercive." Robinette III at 244-45. The court concluded that the
totality of the circumstances demonstrated that Robinette "merely submitted to 'a claim of
lawful authority' rather than consenting as a voluntary act of free will," and, therefore, the
state failed to carry its burden of demonstrating Robinette's consent was an independent
act of free will. Id., quoting Royer at 497.
       C. Analysis
       {¶ 35} In this case, we are asked to determine whether the search of appellant
violated the Fourth Amendment to the United States Constitution and Article I, Section 14
of the Ohio Constitution. Therefore, we must examine: (1) whether appellant was lawfully
detained at the time of the request to search, and (2) whether appellant voluntarily
consented to the search.
       1. Lawfulness of Search
       {¶ 36} Appellant does not contest the initial stop for committing an alleged traffic
violation but, rather, contends that "Officer Hughes's request for consent to get out of the
car and submit to a pat-down illegally expanded the scope and duration of the seizure."
(Appellant's Brief at 16.) We begin by reviewing the trial court's determination. After
hearing testimony from the Officer Hughes, arguments from counsel, and watching
portions of the video recording of the incident again, the trial court took a recess and then
announced its decision:
               I will deny the motion to suppress. In going through this,
               there are several aspects of searches here. The initial
No. 15AP-775                                                                       15


               confrontation was based upon a traffic offense and those
               elements of a Terry search. I think the defendant did consent
               to being patted down.

               The next question becomes the result of those pat-downs.
               Clearly, it wasn't a weapon -- that's usually the situation in a
               Terry search -- nor do we have a plain-view situation * * *.

               But we still have the officer asking questions. I don't see any
               indicia of it being a coercive situation. I realize there's a
               second officer there, but in viewing the tape -- and I think in
               the testimony and from the officer's statement -- I don't think
               there's any situation where the consent would be -- or any
               indication that the consent was coerced or in any way forced
               under the circumstances.

               The Court does have a little concern about some of the timing
               of things and the going back, but I don't have any testimony
               that he put him under arrest first, so I'm going to have to
               overrule the motion.

               ***

               We're going to go through this issue because we have various
               aspects. It's almost like a checklist of search and seizure law.
               The initial stop, I don't particularly have a problem with it. He
               saw the traffic violation. That's the thing.

               He has certain rights under Terry to search at that point in
               time. It is the hour of the day, you know, and various other
               aspects. Then the issue of consent comes up.

(May 7, 2015 Tr. at 54-56.)
       {¶ 37} Thereafter, appellant's counsel asserted objections to the trial court's
decision:
               [Appellant's Counsel]: [E]ven the officer acknowledges that
               there doesn't appear to be any dispute that the reason for this
               traffic stop is done, is done. So at that point, Terry goes out
               the window because there's no reasonable, articulable
               suspicion of criminal activity. He's done at that point; he's
               letting him go. So Terry doesn't kick in.

               [The Court]: I'm going to disagree with you in part. It's about
               a reasonable period of time that the officer is there. I don't
               necessarily think you can say it's done, but you can go ahead
               and make your record.
No. 15AP-775                                                                             16


               [Appellant's Counsel]: Well, I think --

               [The Court]: I mean, we're talking about 22 seconds basically.

               [Appellant's Counsel]: Right. And I think that cuts both ways.
               I understand one can say, well, that's not an unreasonable
               detention. However, I think the Rodriguez case a couple
               weeks ago that I mentioned, there's no -- there's no allowable
               amount of time or anything.

               Once the purpose -- and that's -- that was just restating, I
               think, what the law is. Once the purpose of the traffic stop is
               over with, anything after that is unlawful.

               ***

               [The Court]: I'll be quite frank with you. There were several
               things that come to my attention. It was a directed Terry
               search to a particular area. It wasn't like he checked the whole
               place and then he asked about what was in his pockets. Okay?

               Don't think that didn't cross my mind. But in looking at the
               totality of things, I can't say that there's been a constitutional
               violation. I think there's a consent situation.

               You know, we can't necessarily take these things in a vacuum
               and say, well, it's one factor. I have to look at the totality of the
               circumstances.

               That will be the ruling.

(May 7, 2015 Tr. at 56-57, 59.)
       {¶ 38} Although not explicitly stated, based on the above record, the trial court
appears to have concluded that appellant's continued detention following the initial traffic
stop was a Terry stop and, therefore, lawful. For the following reasons, we disagree.
       {¶ 39} First, Officer Hughes sought consent to search appellant following the
completion of the traffic stop. We have held that "[w]here an officer observes a violation
of law, lawfully stops that individual in connection with that violation, and, prior to
completing the purpose of the stop, asks permission to conduct a search, the request
occurs during a lawful detention." (Emphasis added.) Limoli at ¶ 34; see Lattimore at
¶ 12. Here, however, Officer Hughes testified that he sought appellant's consent to search
after he determined that he was not going to issue appellant a citation for the traffic
No. 15AP-775                                                                              17


violation and specifically told appellant that he was "free to go." (May 7, 2015 Tr. at 17.)
Based on these facts, we find that Officer Hughes sought consent after the purpose of the
stop had been completed. See Robinette III at 239; Rodriguez at 1614; Caballes at 407.
       {¶ 40} Furthermore, under the facts of this case, no separate reasonable suspicion
of other criminal activity justified detaining appellant beyond completion of the
investigation of the traffic violation. Tyler at ¶ 15, quoting State v. Owens, 10th Dist. No.
03AP-423, 2004-Ohio-5159, ¶ 18 (" '[A]n investigatory stop which is prolonged and
extends beyond the scope of the initial detention must be supported by a reasonable
suspicion the suspect is engaged in another criminal activity.' "); Robinette III at 241;
Ferrante at ¶ 21; Retherford at 601; State v. Hobbs, 9th Dist. No. 24764, 2010-Ohio-420,
¶ 14 (finding that facts gave rise to "reasonable articulable suspicion to conclude that
other criminal activity was possibly afoot, which in turn warranted a further brief,
investigatory detention"). Although Officer Hughes stated that he was familiar with
appellant's past drug use, Officer Hughes did not testify that he possessed any reasonable
suspicion that appellant was presently or was about to be engaged in some other criminal
activity.
       {¶ 41} Finally, we find that the second condition for a pat-down search was not
satisfied. Here, Officer Hughes sought consent to conduct a pat-down search absent any
reasonable suspicion that appellant was armed and dangerous. Although, as previously
noted, Officer Hughes stated that he was familiar with appellant's past drug use, Officer
Hughes did not testify that he had any reasonable suspicion at the time of the stop that
appellant was armed and dangerous. Therefore, the second condition for conducting a
pat-down search under Terry is not satisfied under the facts of this case. Johnson, 555
U.S. at 326-27. Thus, because Officer Hughes sought appellant's consent to conduct a
search following the completion of the stop and absent any reasonable articulable facts or
individualized suspicion to justify appellant's continued detention in order to request to
conduct a search, we find appellant's continued detention was unlawful.
       2. Voluntariness of Consent
       {¶ 42} Next, we examine whether appellant's consent was voluntary under the
totality of the circumstances. Limoli at ¶ 23-24; Alihassan at ¶ 26. As we have previously
stated, the analysis for whether or not appellant's consent was voluntary depends on
No. 15AP-775                                                                                18


whether or not he was being lawfully detained at the time consent was sought. Limoli at
¶ 22. See Retherford at 602; State v. Torres, 6th Dist. No. L-07-1306, 2008-Ohio-2090,
¶ 21, citing United States v. Holmes, 505 F.3d 1288, 1295 (D.C.Cir.2007); Ferrante at
¶ 30-32; State v. Henderson, 11th Dist. No. 2006-L-110, 2007-Ohio-2315, ¶ 31; Alihassan
at ¶ 27. Here, the trial court considered whether appellant's consent was voluntary in the
context of a lawful detention. However, as we have found that appellant was unlawfully
detained, the trial court analyzed appellant's consent under the incorrect standard.
Therefore, we must remand in order for the trial court to consider whether appellant's
consent was voluntary under the standard applying to an unlawful detention as we have
outlined above in paragraphs 20 and 21. Spain at ¶ 29. See Limoli at ¶ 25, citing State v.
Hogan, 10th Dist. No. 11AP-644, 2012-Ohio-1421, ¶ 17, citing Burnside at ¶ 8 ("When
ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the
best position to resolve factual questions and evaluate witness credibility.").
       {¶ 43} Accordingly, we sustain in part and overrule in part appellant's sole
assignment of error, vacate the trial court's decision, and remand this matter to the trial
court to conduct further proceedings.
IV. Conclusion
       {¶ 44} Having sustained in part and overruled in part appellant's sole assignment
of error, we reverse the judgment of the Franklin County Court of Common Pleas and
remand this matter for further proceedings consistent with law and this decision.
                                                                          Judgment reversed
                                                                        and cause remanded.
                          LUPER SCHUSTER, J., concurs.
                     SADLER, J., concurs in part and dissents in part.

SADLER, J., concurring in part and dissenting in part.
       {¶ 45} Because I agree with the majority's conclusion that this matter must be
remanded to the trial court for additional proceedings, but I disagree with the scope of the
remand, I respectfully concur in part and dissent in part. I would reverse the judgment of
the trial court and remand the case for the trial court to initially determine whether
Officer Hughes obtained appellant's consent to a pat-down search for weapons during a
consensual encounter or during an unlawful seizure.
No. 15AP-775                                                                               19


       {¶ 46} As the majority noted, in Ohio v. Robinette, 519 U.S. 33 (1996), the United
States Supreme Court held that an officer need not inform a suspect that he or she is free
to go in order for the reviewing court to determine that police obtained consent to a
search during a consensual encounter rather than a seizure. Id. at 36. It stands to reason
then that when an officer informs a suspect that he or she is free to go, a reviewing court
may determine, based on the totality of the circumstances, that the encounter has become
consensual and the subsequent consent voluntary. Id.
       {¶ 47} There is no dispute in this case that Officer Hughes informed appellant that
he was free to go before he asked appellant for permission to conduct a pat-down search
for weapons. "In determining whether a particular encounter constitutes a 'seizure,' and
thus implicates the Fourth Amendment, the question is whether, in view of all the
circumstances surrounding [his or her] encounter [with police], a reasonable person
would believe he or she was 'not free to leave' or 'not free to decline the officers' requests
or otherwise terminate the encounter.' " State v. McDowell, 10th Dist. No. 13AP-229,
2013-Ohio-5300, ¶ 18, quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980);
Florida v. Bostick, 501 U.S. 429, 439 (1991); Michigan v. Chesternut, 486 U.S. 567, 573
(1988); Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion). "[T]he test 'is an
objective one: not whether the citizen perceived that he was being ordered to restrict his
movement, but whether the officer's words and actions would have conveyed that to a
reasonable person.' " Columbus v. Body, 10th Dist. No. 11AP-609, 2012-Ohio-379, ¶ 14,
quoting California v. Hodari D., 499 U.S. 621, 628 (1991). "This standard 'ensures that
the scope of Fourth Amendment protection does not vary with the state of mind of the
particular individual being approached.' " Id., quoting Chesternut at 574.
       {¶ 48} "[W]hen 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 it demonstrate that the consent was in fact voluntarily given, and not the
result of duress or coercion, express or implied. Voluntariness is a question of fact to be
determined from all the circumstances, and while the subject's knowledge of a right to
refuse is a factor to be taken into account, the prosecution is not required to demonstrate
such knowledge as a prerequisite to establishing a voluntary consent." Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49 (1973).
No. 15AP-775                                                                            20


      {¶ 49} The majority adopted the following construction of the trial court decision:
"Although not explicitly stated, based on the above record, the trial court appears to have
concluded that appellant's continued detention following the initial traffic stop was a
Terry stop and, therefore, lawful." (Majority decision at ¶ 38.) Because the initial Terry
stop had clearly ended prior to the time Officer Hughes asked appellant for consent to
conduct a pat-down search, and because there are no additional facts to support a
reasonable suspicion that appellant was carrying a weapon, the majority concludes that
Officer Hughes obtained consent during an unlawful detention of appellant. Accordingly,
the majority reverses the trial court decision and remands the case for the trial court to
determine whether appellant's consent was voluntary under the stricter standard
applicable to unlawful detention.
      {¶ 50} The trial transcript also reveals the following:
               THE COURT: The initial stop, I don't particularly have a
               problem with it. He saw the traffic violation. That's the thing.

               He has certain rights under Terry to search at that point in
               time. It is the hour of the day, you know, and various other
               aspects. Then the issue of consent comes up.

               MR. ESSEX: Well, I think –

               THE COURT: Because if he doesn't have consent, he's
               exceeded Terry.

(Emphasis added.) (May 7, 2015 Tr. at 55-56.)
      {¶ 51} The trial court acknowledged that the pat-down search for weapons was not
within the scope of the initial Terry stop. Rather, the trial court found that appellant
voluntarily gave his consent to the pat-down search. Based on the above, it is reasonable
to conclude that the trial court found that Officer Hughes obtained appellant's consent
during a consensual encounter immediately following the initial Terry stop.
      {¶ 52} In my view, because the trial court decision is reasonably susceptible to a
different construction than is suggested by the majority, this court should not choose a
construction that forecloses the possibility that Officer Hughes obtained appellant's
consent to the pat-down search during a consensual encounter. That is a factual finding
that must be made by the trial court in the first instance. Bustamonte at 226. See also
No. 15AP-775                                                                             21


State v. Hannah, 10th Dist. No. 15AP-12, 2015-I-4964, ¶ 20 (competent, credible evidence
supported the trial court determination that appellant was not detained by police when he
consented to a search of his person).
       {¶ 53} Based on the foregoing, I would reverse the judgment of the trial court and
remand the case with instructions for the trial court to initially determine whether Officer
Hughes obtained appellant's consent to a pat-down search for weapons during a
consensual encounter or during an unlawful detention and to further determine, under
the applicable standard, whether the consent was voluntary.
       {¶ 54} Because the majority reverses the judgment but remands with different
instructions, I respectfully concur in part and dissent in part.
