[Cite as State v. Potts, 2017-Ohio-8512.]


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

STATE OF OHIO                                        C.A. No.      17CA0033-M

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MICHAEL C. BRAMLEY                                   COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellee                                     CASE No.   17CR0103

                                  DECISION AND JOURNAL ENTRY

Dated: November 13, 2017



        SCHAFER, Presiding Judge.

        {¶1}     Appellant, the State of Ohio, appeals from the judgment of the Medina County

Court of Common Pleas, granting Appellee, Michael Bramley’s, motion to suppress. This Court

reverses.

                                                I.

        {¶2}     While aiding the Drug Task Force, Officer Kelly Moran was asked to follow a

truck that had just left a suspected drug house. The truck had two occupants: the driver and his

passenger, Bramley. Because the truck had an excessively loud muffler, Officer Moran stopped

it on that basis and took the driver’s and Bramley’s information. He relayed their information to

the Drug Task Force and learned that the task force was familiar with both of them. As a result,

he requested a canine unit.

        {¶3}     A canine unit responded shortly thereafter. Though the canine expressed some

interest in the truck, it did not positively alert. Accordingly, Officer Moran verbally warned the
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driver about his muffler and told him and Bramley they were free to go. He then proceeded to

ask the driver several questions, culminating in a request to search the truck. The driver agreed

to the search, and Officer Moran had Bramley exit the truck. Before searching the truck, Officer

Moran briefly spoke with Bramley and asked him to consent to a search of his person. Bramley

agreed and, when Officer Moran conducted his search, he found crack cocaine in Bramley’s

pocket.

          {¶4}   A grand jury indicted Bramley on one count of felony possession. Bramley filed

a motion to suppress, and the court scheduled the matter for a hearing. Following the hearing,

the court granted Bramley’s motion.

          {¶5}   The State now appeals from the court’s suppression ruling and raises a single

assignment of error for our review.

                                                 II.

                                       Assignment of Error

          The trial court erred in granting Appellee Bramley’s motion to suppress
          evidence where the search at issue was conducted during a consensual
          encounter and with Appellee Bramley’s voluntary consent. Even if this court
          were to find that the interaction in question was continued detention, there
          was sufficient reasonable suspicion to continue Bramley’s detention past the
          traffic stop and search Bramley’s person.

          {¶6}   In its assignment of error, the State argues that the trial court erred when it

granted Bramley’s motion to suppress. The State argues that Bramley voluntarily consented to

Officer Moran’s search. In the alternative, the State argues that the officer had reasonable

suspicion to conduct the search.

          {¶7}   Appellate review of a trial court’s ruling on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial

court assumes the role of trier of fact and is in the best position to evaluate witness credibility
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and resolve factual issues. State v. Mills, 62 Ohio St.3d 357, 366 (1992). Accordingly, an

appellate court must accept a trial court’s findings of fact when they are supported by competent,

credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100. Accepting

those facts as true, the appellate court then must independently determine, without deference to

the trial court’s conclusion, whether those facts satisfy the applicable legal standard. Burnside at

¶ 8, citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

       {¶8}    When an officer stops a vehicle for a violation of a traffic law, an investigatory

stop occurs. State v. Johnson, 9th Dist. Medina No. 03CA0127-M, 2004-Ohio-3409, ¶ 11. In

general, “[a]n investigative stop may last no longer than necessary to accomplish the initial goal

of the stop.” State v. Rackow, 9th Dist. Wayne No. 06CA0066, 2008-Ohio-507, ¶ 8. Accord

Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609, 1614 (2015) (“Authority for the

seizure [] ends when tasks tied to the traffic infraction are–or reasonably should have been–

completed.”). Yet, an officer may briefly extend a seizure to ask about the presence of illegal

drugs or weapons. State v. Robinette, 80 Ohio St.3d 234, 241 (1997). Such an inquiry need not

be based on reasonable suspicion because it serves “a legitimate public concern” that outweighs

an individual’s interest in resuming their normal activities. Id. If, when inquiring, “the officer

ascertain[s] reasonably articulable facts giving rise to a suspicion of criminal activity,” the

officer may continue the detention and conduct “a more in-depth investigation * * *.” Id. If

facts giving rise to reasonable suspicion do not present themselves, however, “[a] continued

detention to conduct a search constitutes an illegal seizure.” Id. at paragraph one of the syllabus.

       {¶9}    Though an individual has been unlawfully detained, “[v]oluntary consent * * *

may validate an otherwise illegal detention and search.” Robinette at 241. “Whether consent

was voluntarily given is a question of fact to be determined from the totality of the
                                               4


circumstances, and the government bears the burden of showing that consent was ‘freely and

voluntarily’ given by ‘clear and positive’ evidence.” State v. Cummings, 9th Dist. Summit No.

20609, 2002 Ohio App. LEXIS 98, *7 (Jan. 16, 2002), citing Robinette at 243. Consent is an act

of free will, not “a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S.

491, 497 (1983). If an individual consents while being unlawfully detained, “the totality of the

circumstances must clearly demonstrate that a reasonable person would [have] believe[d] that he

or she had the freedom to refuse to answer further questions and could in fact [have left].”

Robinette at paragraph three of the syllabus. “[W]hile the [individual’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.’”         Id. at 243, quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973).

       {¶10} The trial court made each of the following factual findings. Officer Kelly Moran

was assisting the Drug Task Force when they asked him to follow a truck that was leaving a

suspected drug house. Officer Moran located the truck, noted that it had an excessively loud

muffler, and initiated a stop on that basis. Before approaching the truck, he saw the front seat

passenger make furtive movements in the direction of the center console. He then approached

and obtained the name of both the driver and the passenger, whom he identified as Bramley.

Officer Moran relayed the driver’s and Bramley’s names to the Drug Task Force and learned that

the task force was familiar with both individuals. Consequently, he asked the task force to send

a canine.

       {¶11} The canine handler led the canine around the truck. Though the canine was

“interested in the truck,” it did not positively alert. Accordingly, Officer Moran approached the

truck, verbally warned the driver about his muffler, and told him he was free to go. Without
                                                  5


informing the occupants that the canine had failed to positively alert, the officer then asked the

driver if there was a reason the canine was interested in his truck, if there was anything illegal in

the truck, or if anyone had recently smoked marijuana in the truck. The driver answered no to

each question, but Officer Moran nonetheless asked him for consent to search the truck. The

driver “eventually gave [his consent] after initially refusing.”

        {¶12} Officer Moran first removed Bramley from the truck. He asked Bramley about

the furtive movements he had observed, and Bramley admitted that he had hidden an open

container between his seat and the center console. The officer then asked Bramley to consent to

a search of his person, and Bramley agreed. Inside Bramley’s pants pocket, Officer Moran found

a baggie containing crack cocaine. He then handcuffed Bramley, placed him in his cruiser, and

searched both the truck and the driver. Officer Moran estimated that 20 minutes elapsed between

his initial traffic stop and Bramley’s arrest.

        {¶13} The trial court determined that Officer Moran lacked a constitutional basis to

detain Bramley once the canine failed to positively alert and he verbally warned the driver about

his muffler. The court concluded that, at that point, the violation giving rise to the traffic stop

had been addressed and Officer Moran lacked reasonable suspicion to support a continued

detention. Though Officer Moran told Bramley and the driver they were free to leave, the court

determined that the additional questions he asked immediately thereafter gave rise to an illegal

detention. The court wrote that “the specific wording of [the] questions implied, and would lead

a reasonable person to believe based on the totality of the circumstances, that the [canine] had in

fact alerted on the truck.” The court further concluded that the consent Bramley gave for a

search of his person was involuntary. The court elaborated: “The overhead lights on Officer

Moran’s police cruiser were still activated, and by this time, there were multiple other police
                                                 6


cruisers at the scene of the traffic stop.” Because “[a] reasonable person in Bramley’s position

would not [have] believe[d] he had the freedom to refuse to answer questions and could in fact

[have left],” the court granted his motion to suppress.

       {¶14} The State argues that Officer Moran did not illegally detain Bramley and that

Bramley voluntarily consented to a search of his person. The State notes that Officer Moran told

Bramley and the driver they were free to go. It further notes that Officer Moran was the only

officer speaking with them and never threatened them, physically touched them, or displayed his

weapon. According to the State, a reasonable person in Bramley’s position would have felt free

to refuse to answer further questions or leave. Consequently, the State argues that his consent

was a product of free will rather than compulsion. Alternatively, it argues that Officer Moran’s

search of Bramley was supported by reasonable suspicion.

       {¶15} Upon review, one of the trial court’s factual findings is not supported by

competent, credible evidence. See Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, at ¶ 100.

Contrary to the court’s finding, there was no testimony that “there were multiple other police

cruisers at the scene of the traffic stop” when Officer Moran asked Bramley for consent to search

his person. Though the canine unit clearly had arrived on scene sometime before the search, no

one testified that the canine unit remained on scene once the canine completed its sweep of the

truck. Officer Moran was the only witness to testify at the suppression hearing, and he was

never asked about the presence of other officers. Consequently, the evidence does not support

the trial court’s finding on that point, and this Court need not accept it. See, e.g., State v.

McLemore, 9th Dist. Lorain No. 13CA010435, 2014-Ohio-2116, ¶ 25. Because the record

reflects that the trial court’s remaining factual findings are based on competent, credible
                                                 7


evidence, this Court applies the law strictly to those findings. See Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, at ¶ 8.

       {¶16} Upon review, the record supports the trial court’s conclusion that Officer Moran

illegally detained Bramley and the driver of the truck. The officer acknowledged that he stopped

the truck due to an excessively loud muffler and that the canine he called to the scene sniffed the

truck and did not alert. At that point, the officer issued the driver a verbal warning for his

muffler and informed him that he was free to leave. Officer Moran acknowledged that, had the

driver refused to engage with him further, he would have allowed him to leave. Thus, the record

evinces that he had accomplished the initial goal of his investigatory stop before he began asking

more questions. See Rackow, 2008-Ohio-507, at ¶ 8. See also Rodriguez, 135 S.Ct. at 1614.

       {¶17} Though Officer Moran could briefly extend his seizure to ask the driver questions

about the presence of contraband, see Robinette, 80 Ohio St.3d at 241, none of the driver’s

answers gave rise to reasonable suspicion to search the truck. The driver answered no to each of

the officer’s questions, and Officer Moran did not testify that he made any additional

observations during that time that aroused his suspicions. Thus, he “did not have any reasonably

articulable facts or individualized suspicion to justify [the driver’s] further detention in order to

ask to search his truck,” and, when he asked to search the truck, the continued detention became

unlawful. Robinette at 241. See also State v. Scarberry, 10th Dist. Franklin No. 15AP-775,

2016-Ohio-7065, ¶ 39-41; Rackow at ¶ 15. Because Bramley was a passenger in the truck, his

freedom of movement was “equally affected” at that point, and thus, Bramley too became the

subject of an illegal detention. State v. Redding, 9th Dist. Medina No. 10CA0018-M, 2010-

Ohio-4286, ¶ 9, quoting State v. Carter, 69 Ohio St.3d 57, 63 (1994). The remaining question is

whether, despite the unlawful detention, Bramley voluntarily consented to a search of his person.
                                                8


       {¶18} As noted, “[v]oluntary consent, determined under the totality of the

circumstances, may validate an otherwise illegal detention and search.”         Robinette at 241.

Because Officer Moran obtained Bramley’s consent to search while he was unlawfully detained,

it was the State’s burden to show that a reasonable person in his position would have felt he “had

the freedom to refuse to answer further questions and could in fact [have left].” Id. at paragraph

three of the syllabus. The trial court concluded that a reasonable person in Bramley’s position

would not have felt free to leave because (1) the specific wording of Officer Moran’s questions

to the driver implied that the canine had alerted on the truck, (2) the officer’s overhead lights

were activated, and (3) there were multiple other police cruisers on scene. The court’s analysis is

problematic for at least two reasons.

       {¶19} The first reason the court’s analysis is problematic is that one of the

circumstances on which it relied lacks a foundation in the record. As previously noted, there was

no evidence that multiple police officers or cruisers were present when Bramley consented to a

search of his person. No one asked Officer Moran that question, and he was the only witness to

testify at the suppression hearing. Because there was no proof that additional officers were

present, the trial court should not have relied on that fact in considering the totality of the

circumstances.

       {¶20} The second reason that the court’s analysis is problematic is that it focused

extensively on the conversation Officer Moran had with the driver of the truck. The court went

into specific detail about the exact wording of the questions Officer Moran posed to the driver

and whether he made it appear as if the canine had alerted on the truck. Yet, the issue was

whether Bramley voluntarily consented to a search of his person, not whether the driver

voluntarily consented to a search of his truck. Officer Moran testified that he asked Bramley to
                                                 9


exit the truck after the driver agreed to let him search it. Before conducting any search, Officer

Moran asked Bramley about the furtive movements he had seen him make. Bramley then

admitted to having stashed an open container in the truck. At that point, Officer Moran asked

Bramley to consent to a search of his person, and Bramley agreed. There was no testimony that

he hesitated or answered equivocally.       Indeed, Officer Moran described Bramley as “very

cooperative.”

       {¶21} In State v. Starks, an officer conducted a random license plate check and stopped

a car in which Starks was a passenger. State v. Starks, 9th Dist. Summit No. 27347, 2015-Ohio-

2137, ¶ 9. The officer collected the driver’s and Starks’ information and, while he was verifying

their identities, a second officer arrived on scene. Id. The first officer ultimately discovered that

the driver had an outstanding warrant, so the driver was arrested and placed in a cruiser. Id.

Because Starks did not have a valid license, a decision was made to tow the car. Id. at ¶ 10.

Starks exited the car so that the officers could conduct an inventory search. Id. Before the

inventory search occurred, however, one of the officers asked Starks if he had anything illegal on

his person. Id. When Starks said no, the officer asked if he could search Starks’ person, and

Starks agreed. Id. The officer found drugs inside Starks’ pockets. Id. Starks later claimed that

his consent was involuntary, but this Court concluded otherwise. Id. at ¶ 12. We noted that the

officer who asked for Starks’ consent did so in a non-threatening way and there was no evidence

that either officer on scene drew a weapon or made an unlawful showing of authority. Id. at ¶

12. Consequently, this Court concluded that Starks voluntarily consented to a search of his

person. Id.

       {¶22} Although the consent in Starks arose in the context of a lawful detention rather

than an unlawful one, this Court finds the case instructive. As in Starks, Bramley had to exit the
                                                 10


vehicle in which he was a passenger because the police intended to search the vehicle. See id. at

¶ 10. As in Starks, Bramley was briefly asked about illegal contraband before agreeing to submit

to a search. See id. As in Starks, there was no testimony that the officer requesting consent had

a threatening demeanor, displayed a weapon, or made an unlawful showing of authority. See id.

at ¶ 12. The testimony was simply that Officer Moran asked for Bramley’s consent and Bramley

was “very cooperative” and agreed. Moreover, not long before the search occurred, Officer

Moran had expressly told Bramley’s driver he was free to leave. There was no indication in

Starks that officers ever told the defendant he was free to leave. Further, at the point Starks

consented, his driver had already been formally arrested and a decision had already been made to

tow the driver’s car. Id. at ¶ 9-10. This Court found the defendant’s consent to be voluntary in

spite of the presence of those additional factors, neither of which is present here. Id. at ¶ 12.

       {¶23} Having reviewed the record, this Court must conclude that a reasonable person in

Bramley’s position would have felt he “had the freedom to refuse to answer further questions

and could in fact [have left].” Robinette, 80 Ohio St.3d 234 at paragraph three of the syllabus.

Even assuming that Officer Moran’s questioning made it appear to the driver that he was not free

to leave, all of his questions were directed at the driver and pertained to his truck. Officer Moran

did not ask Bramley any questions at that time, and he had already told Bramley’s driver that he

was free to leave. See, e.g., State v. Davis, 4th Dist. Athens No. 15CA26, 2016-Ohio-3539, ¶ 48.

There was no evidence that there were multiple officers on scene and, at the point Officer Moran

asked Bramley to submit to a search, he had not even attempted to search the driver. Bramley,

therefore, could not have reasonably assumed that he was obligated to submit to a search of his

person. Compare State v. Oberholtz, 9th Dist. Summit No. 27972, 2016-Ohio-8506, ¶ 11.

Moreover, there was no evidence that the wording of Officer Moran’s request was impliedly
                                                11


coercive or made consent appear mandatory. See Davis at ¶ 48. Compare State v. Love, 9th

Dist. Lorain No. 13CA010388, 2015-Ohio-142, ¶ 10-12. Officer Moran did not testify to that

effect, and Bramley opted not to testify. Accordingly, upon review, the record supports the

conclusion that Bramley’s decision to consent to a search of his person was an act of free will

rather than “a mere submission to a claim of lawful authority.” Royer, 460 U.S. at 497. The trial

court, therefore, erred when it granted his motion to suppress. The State’s sole assignment of

error is sustained.

                                                III.

        {¶24} The State’s sole assignment of error is sustained. The judgment of the Medina

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




        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.
                                            12


      Costs taxed to Appellee.




                                                 JULIE A. SCHAFER
                                                 FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

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

LEE POTTS, Attorney at Law, for Appellee.
