[Cite as State v. Robison, 2020-Ohio-2980.]


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

STATE OF OHIO                                        C.A. No.       18CA0064-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MATTHEW ROBISON                                      COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   18CR0234

                                 DECISION AND JOURNAL ENTRY

Dated: May 18, 2020



        HENSAL, Judge.

        {¶1}     Matthew Robison appeals from the judgment of the Medina County Court of

Common Pleas, denying his motion to suppress. This Court affirms.

                                                I.

        {¶2}     A grand jury indicted Mr. Robison on one count of aggravated trafficking in

methamphetamine, and one count of aggravated possession of methamphetamine. The charges

stemmed from a search of a vehicle driven by Jennifer Alexander, in which he was a passenger.

In Ms. Alexander’s appeal, this Court set forth the relevant factual background as follows:

        At approximately 1:30 a.m., Officer James Allenby responded to a nearby gas
        station based on a tip that two males appeared to be either under the influence of
        narcotics or involved in drug activity. The informant indicated that the two males
        were leaving the gas station in a blue Dodge four-door vehicle, and Officer Allenby
        spotted a matching vehicle as he approached the parking lot. Because the vehicle
        was leaving the lot, Officer Allenby followed behind it and executed a traffic stop
        shortly thereafter.

        The vehicle contained three occupants: (1) Alexander, who was the driver, (2) her
        boyfriend [Mr. Robison], who was the front seat passenger; and (3) an
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       acquaintance, who was the backseat passenger. Officer Allenby spoke with each
       occupant in turn and continued to investigate, as he found their circumstances
       suspicious and it was clear to him that the backseat passenger was under the
       influence of narcotics. Approximately 38 minutes into the traffic stop, he and
       another officer spotted an item of concern in the back of Alexander’s vehicle and
       asked her for consent to retrieve the item and open it. Alexander assented, so they
       removed the item and identified it as a scale coated with drug residue. After
       locating that item, they searched the remainder of the vehicle and discovered
       narcotics. A second search of the vehicle, conducted several days later, also
       revealed narcotics that had been concealed inside a pillow in the trunk.

State v. Alexander, 9th Dist. Medina No. 18CA0066-M, 2019-Ohio-3310, ¶ 2-3. The police

arrested Ms. Alexander and the backseat passenger at the scene, but did not arrest Mr. Robison. A

few days later, after the second search of the vehicle, the police arrested Mr. Robison.

       {¶3}    Mr. Robison and Ms. Alexander filed motions to suppress in their respective

criminal cases. Upon motion of Mr. Robison, the trial court held a consolidated suppression

hearing. The trial court subsequently denied both motions, and Mr. Robison pleaded no contest to

the indicted charges. The trial court found him guilty and sentenced him to three years of

imprisonment. He now appeals, raising two assignments of error for this Court’s review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION                               IN   DENYING
       DEFENDANT[’]S MOTION TO SUPPRESS[.]

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S DENIAL OF APPELLANT[’]S MOTION TO
       SUPPRESS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
       OR BASED UPON INSUFFICIENT EVIDENCE.

       {¶4}    Mr. Robison has set forth two assignments of error that challenge the trial court’s

denial of his motion to suppress, but has not argued each assignment of error separately in his

merit brief. While this Court can disregard his assignments of error on that basis, we exercise our
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discretion to consider the merits of Mr. Robison’s combined assignments of error. See Loc.R.

7(B)(7) of the Ninth District Court of Appeals (“Each assignment of error shall be separately

discussed * * *.”); App.R. 12(A)(2) (“The court may disregard an assignment of error presented

for review if the party raising it fails to * * * argue the assignment separately in the brief[.]”).

        {¶5}    In his assignments of error, Mr. Robison argues that the trial court erred by denying

his motion to suppress. Specifically, he argues that the officers violated his constitutional rights

because they lacked reasonable suspicion to stop Ms. Alexander’s vehicle, and because they lacked

reasonable suspicion to prolong the length of the stop to investigate potential drug activity. He

argues that the officers had no reliable information that he – or any of the other occupants of the

vehicle – possessed drugs, or had used them. He also argues that, even if the officers did have

reasonable suspicion to prolong the stop, the continued detention became illegal when Ms.

Alexander refused to consent to a search of the vehicle. Mr. Robison further argues that any

evidence obtained as a result of the illegal search was fruit of the poisonous tree, and that the

inevitable-discovery exception does not apply. Lastly, in a footnote, he argues that the officers

conducted an illegal pat down of him. For the reasons that follow, this Court disagrees.

        {¶6}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual

questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357,

366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion of the trial
                                                   4


court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997). 1

         {¶7}    This Court set forth the trial court’s findings of fact and conclusions of law in Ms.

Alexander’s appeal, which are identical to the findings of fact and conclusions of law the trial court

made in this case,2 as follows:

         The trial court found that, at about 1:30 a.m., Officer James Allenby received a
         dispatch regarding suspicious individuals at a nearby gas station. The dispatcher
         received his or her information from the gas station clerk, who reported that the
         suspicious individuals had been “involved in drug activity” in the restroom and
         were leaving in a blue four door vehicle. The court found that Officer Allenby
         knew the gas station clerk who had called, dealt with her on a daily basis, and felt
         that she was a reliable source given that the employees of the 24-hour gas station
         were “used to people doing drugs in their bathroom.” Only after he completed the
         stop did Officer Allenby learn that the clerk had not personally observed the
         suspicious activity she relayed to the dispatcher. Instead, a customer had reported
         the suspicious activity to her, and she, in turn, had reported it to the dispatcher.

         The trial court found that, as Officer Allenby approached the gas station in his
         cruiser, he saw a blue four door vehicle. Noting that it matched the vehicle
         description he had received from dispatch and that it had a burned-out license plate
         light, Officer Allenby stopped the vehicle to investigate. Upon his approach, he
         discovered that the vehicle had three occupants. Alexander was the driver, her
         boyfriend was the front seat passenger, and an acquaintance of theirs was the
         backseat passenger. Officer Allenby began his investigation by collecting their
         information and identifying each person. As he was doing so, he noticed the
         backseat passenger had “heavy or droopy eyelids” indicative of drug use. The court
         found that Officer Allenby had undergone Drug Recognition Training and was
         “able to recognize the physical signs of when a person is under the influence of
         seven different types of drugs including amphetamines.” Consequently, the court
         found him to be a Drug Recognition Expert, qualified to determine that the backseat
         passenger was under the influence of narcotics.



1
 The caption of Mr. Robison’s second assignment of error challenges the trial court’s decision as
not being supported by sufficient evidence, and as being against the manifest weight of the
evidence. This Court reviews a trial court’s denial of a motion to suppress based upon the standard
set forth herein, which “presupposes evidentiary weighing by an appellate court[.]” Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 15.

2
    The trial court substituted “Robison” for “Alexander” where appropriate.
                                          5


The trial court found that Officer Allenby spoke with each of the vehicle’s three
occupants in turn, separating them one at a time by making use of his cruiser and
the cruiser of a second officer who had arrived to assist. While speaking with
Alexander, Officer Allenby learned that she and her boyfriend were from an area
near Sandusky. Alexander told the officer that she and her boyfriend had driven to
Akron to pick up the backseat passenger because he was drunk and had called for
a ride. Officer Allenby found it strange that Alexander and her boyfriend would
drive that far in the middle of the night just to give the backseat passenger a ride.
He then informed Alexander that someone at the gas station had seen two men
engaged in suspicious activity in the bathroom, and she confirmed that her
boyfriend and the backseat passenger had gone into the bathroom. Following his
initial conversation with Alexander, Officer Allenby spoke with the backseat
passenger.

The trial court found that, as Officer Allenby spoke with the backseat passenger, he
confirmed his initial suspicion that the man was under the influence of narcotics.
The officer observed that the backseat passenger’s pupils were constricted in spite
of the dark surroundings, his speech was slurred, and his eyelids continued to be
droopy. The backseat passenger admitted that he had been in the gas station
bathroom and had used drugs in the past, but denied any recent use. As Officer
Allenby continued to speak with him, however, he began crying and admitted that
he had used heroin earlier that day. The backseat passenger acknowledged that
Alexander and her boyfriend had picked him up in Akron, but did not say how he
knew them.

The trial court found that, after speaking with the backseat passenger, Officer
Allenby spoke with the boyfriend. Much like Alexander, the boyfriend initially
maintained that the backseat passenger was drunk. After Officer Allenby informed
him that the backseat passenger was actually under the influence of heroin,
however, the boyfriend then offered that he had only known the backseat passenger
for a few days. That statement also aroused Officer Allenby’s suspicions given the
considerable distance that Alexander and her boyfriend had driven in the middle of
the night to pick up the backseat passenger. Moreover, while speaking with the
boyfriend, the officers noticed track marks on his neck. When Officer Allenby
asked about the track marks, the boyfriend admitted that he sometimes injected
drugs, but claimed he had not done so for several days. He indicated that he took
prescription Percocet each day for pain and would use heroin when his pills ran out.

The trial court found that, following his conversations with each of the three
occupants, Officer Allenby and his fellow officer walked around Alexander’s
vehicle and looked through the windows. They noticed a black object in the
backseat, and the second officer relayed that she had seen Alexander’s boyfriend
attempt to throw a blanket over the object while still inside the car. Officer Allenby
asked Alexander about the object, but she claimed not to know what it was. He then
asked her for permission to remove the object and open it, and she agreed he could
                                                6


       do so. Upon opening the object, Officer Allenby discovered it was a scale coated
       with crystals that resembled methamphetamine residue.

       The trial court concluded that Officer Allenby possessed reasonable suspicion to
       stop Alexander’s vehicle based on the information he received from dispatch. It
       found that the tip the dispatcher received from the gas station clerk and relayed to
       Officer Allenby possessed sufficient indicia of reliability because the officer was
       very familiar with the clerk and knew her to be a reliable source. Though it was
       actually a customer who had observed the suspicious activity and not the clerk
       herself, the court noted that Officer Allenby was unaware of that fact until later.
       Based on the information available to him at the time of the stop, the court
       concluded that Officer Allenby had reasonable suspicion to conduct an
       investigatory stop to determine whether Alexander or her passengers “were in
       possession of illegal drugs and paraphernalia to use or sell * * *.”

       The trial court also concluded that, once Officer Allenby began his investigation,
       he continued to develop “more ‘specific and articulable facts’ [to] support[ ] his
       initial suspicions that the occupants were involved in drug activity.” Those facts
       included the backseat passenger’s appearance and behavior, Alexander and her
       boyfriend’s claim that the backseat passenger was only intoxicated, their further
       claim that they had driven a considerable distance to pick up someone they barely
       knew at such a late hour, the track marks on the boyfriend’s neck, and the backseat
       passenger and boyfriend’s admissions that they were heroin users. The court found
       that Officer Allenby was justified in continuing to detain Alexander until he spotted
       the black case in her car and, as a result of opening it, developed probable cause to
       search the remainder of her car.

Alexander at ¶ 10-17.

       {¶8}    Like Ms. Alexander, Mr. Robison’s arguments on appeal sound entirely in law; he

has not challenged the trial court’s factual findings. Id. at ¶ 19. In her appeal, Ms. Alexander

argued that Officer Allenby lacked reasonable suspicion to stop her vehicle because “the State

failed to prove that the tip the officer received from dispatch possessed sufficient indicia of

reliability[,]” and that he lacked reasonable suspicion to prolong the length of the stop to

investigate potential drug activity. Id. at ¶ 18, 21. This Court rejected those arguments. Id. at ¶

20, 22. In doing so, this Court stated that “we cannot conclude that the trial court erred when it

determined that the tip Officer Allenby received from dispatch provided him with reasonable

suspicion to stop Alexander’s car and investigate its occupants for possible drug activity[,]” and
                                                  7


that “the record contains competent, credible evidence in support of the trial court’s determination

that Officer Allenby legally detained Alexander for the duration of the traffic stop.” Id. at ¶ 20,

22. Regarding the latter, this Court indicated that:

       [a]pproximately 38 minutes elapsed between the point in time that Officer Allenby
       executed the stop and the point in time that he discovered the residue-coated scale
       inside the vehicle. During that period of time, Officer Allenby was actively
       confirming the identities of the three occupants, speaking separately with each
       occupant, conferring with the second officer on scene, inspecting Alexander’s
       vehicle, and performing other tasks in the pursuit of his investigation. The record
       does not support the conclusion that he purposely delayed matters or otherwise
       failed to diligently conduct his investigation. * * *.

       The trial court determined that, as the stop progressed, Officer Allenby continued
       to develop “more ‘specific and articulable facts’ [to] support[ ] his initial suspicions
       that the occupants were involved in drug activity.” The record supports that
       determination given the backseat passenger’s appearance and behavior, Alexander
       and her boyfriend’s claim that he was only intoxicated, their further claim that they
       had driven a considerable distance to pick up someone they barely knew at such a
       late hour, the track marks on the boyfriend’s neck, and the backseat passenger and
       boyfriend’s admissions that they were heroin users. Based upon the totality of the
       circumstances, Officer Allenby possessed reasonable suspicion to extend
       Alexander’s detention as he continued to investigate the suspicious activity that he
       observed.

Id. at ¶ 22-23. Nothing in Mr. Robison’s merit brief, which presents substantially similar

arguments relative to the legality of the stop, the occupants’ continued detention, and the search

of the vehicle, compels this Court to reach a different conclusion than our decision in Alexander.

We, therefore, reject Mr. Robison’s arguments. Based upon this conclusion, we likewise reject

Mr. Robison’s arguments that any evidence obtained as a result of the illegal search was fruit of

the poisonous tree, and that the inevitable-discovery exception does not apply, both of which

presuppose that an illegal search and seizure occurred. To the extent that Mr. Robison has

challenged the pat-down search, he has not argued – and there is no indication in the record – that

he suffered any prejudice, even assuming without deciding that the pat down was illegal. See State
                                                 8


v. Franchi, 9th Dist. Summit No. 22474, 2005-Ohio-5105, ¶ 7. Accordingly, Mr. Robison’s

assignments of error are overruled.

                                                III.

       {¶9}    Mr. Robison’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



CALLAHAN, P. J.
CARR, J.
CONCUR.
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APPEARANCES:

RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
