{¶ 3} Joshua Rackow was sitting in the backseat of the car and two of his friends were sitting in the front. The officer asked the driver questions about who was in the car, where they had been, and where they were headed. The young men explained that they were lost and waiting for another car of friends to catch up with them. The men had just decided to find their way home unassisted and the *Page 3 driver pulled out of the school parking lot. He quickly realized that he had turned the wrong way onto the street, so he immediately pulled into the tiny lot in front of the school in order to turn around. Before the car could turn around, however, the police cruiser pulled in and blocked the path. The police officer testified that he believed the information he was told about who the men were, where they were headed, and why they had been waiting in the school parking lot at that hour. Mr. Rackow was not involved in that conversation. He sat quietly in the back seat, looking out the window.

{¶ 4} As the officer spoke with the driver, he collected identification cards from each occupant of the vehicle. The officer testified that there were no problems with the identification cards. The men did not look dangerous. There was no indication that the driver was drunk or otherwise impaired. The officer testified that this conversation lasted three to five minutes, during which time he did not see or hear anything that caused him to be suspicious of any criminal activity. He testified the men in the car were "cooperative and friendly." Before ending the encounter, the officer asked the group in general whether there was anything illegal in the car. He testified that he asked this question, "just to see how they would answer." The two men sitting in the front of the vehicle immediately said, "no." Mr. Rackow did not respond to the officer's question.

{¶ 5} The officer testified that it was at this point that his suspicion was aroused. He testified, "[a]t that point . . . after he failed to answer my question that *Page 4 alerted me to the possibility that something was tak[ing] place, somebody had something on them illegal that they shouldn't have and that basically aroused my suspicion." The officer testified that he then turned toward Mr. Rackow, shined his flashlight toward him, and asked him directly whether he had anything illegal on him. Mr. Rackow testified that the officer's question directly to him was: "If I search you will I find anything on you, you shouldn't have?" The officer agreed that it was "possible" that after Mr. Rackow did not answer the first question that he may have "followed that up with the question, `If I were to search you would you really have anything on you?'" because he has "said that in the past." Based on this testimony, the trial court determined that the officer asked Mr. Rackow directly: "If I search you, will I find anything illegal?" Mr. Rackow testified that when the officer asked him the question directly, he was scared and believed he would be searched no matter how he answered. Mr. Rackow responded that he had some marijuana. The officer then ordered him out of the vehicle to search him. Mr. Rackow exited the vehicle and handed the officer a small bag of marijuana. The officer then searched him, finding another small bag of marijuana and a pipe. The officer testified that the sole reason for the warrantless search was probable cause based on Mr. Rackow's admission that he had some marijuana.

{¶ 6} Mr. Rackow was charged with misdemeanor possession of drug paraphernalia and minor misdemeanor possession of marijuana. Mr. Rackow moved the court to suppress both the admission and the physical evidence *Page 5 obtained as a result, arguing the search was based on an illegal detention and coerced confession. The trial court granted the motion finding that Mr. Rackow's confession was not voluntary. The State has appealed the trial court's order suppressing the statement and the physical evidence. This Court affirms the trial court's suppression of the statement and the physical evidence because Mr. Rackow was the subject of an illegal seizure when he admitted to carrying marijuana and the probable cause for the search flowed directly from that admission.

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. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. 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.

State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶ 8 (citations omitted); But see, State v. Metcalf, 9th Dist. No. 23600,2007-Ohio-4001, at ¶ 14 (Dickinson, J., concurring).

{¶ 10} A consensual encounter can quickly turn into a seizure of the person, requiring at least a reasonable, articulable suspicion of criminal activity. Id. at ¶ 20. A person is seized within the meaning of the Fourth Amendment when, in *Page 8 view of the totality of the circumstances, "a reasonable person would have believed that he was not free to leave." United States v.Mendenhall, 446 U.S. 544, 554 (1980). This type of seizure is accomplished "by either physical force or show of authority" that restrains the citizen's "liberty so that a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter." Llanderal-Raya, 2005-Ohio-3306, at ¶ 20 (quoting Akron v.Harvey, 9th Dist. No. 20016, 2000 WL 1859838, at *1 (Dec. 20, 2000)). One example of such a circumstance, offered by the United States Supreme Court in United States v. Mendenhall, is if the police use "language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554. When a person is illegally seized in this manner and not warned of his Miranda rights, statements made will not be admissible at trial. Florida v. Royer,460 U.S. 491, 501.

{¶ 14} The next question is whether the officer was objectively justified in continuing the detention beyond the point when Mr. Rackow failed to answer the initial contraband question. Both the Ohio Supreme Court and the United States Supreme Court have held that if a citizen refuses to listen or respond to an officer who detains him without either probable cause or reasonable suspicion of criminal activity, the citizen's refusal to listen or respond to the officer alone cannot furnish reasonable suspicion for further detention and inquiry.Robinette, 80 Ohio St. 3d at 240 (citing Florida v. Royer, 460 U.S. 491,497-98 (1983)).

{¶ 15} In this case, the officer reacted to a suspicion that was aroused only by the fact that Mr. Rackow did not immediately deny having anything illegal in his possession. The officer admitted he had seen nothing suspicious since approaching the vehicle and he had dispelled any suspicion created by the initial report of a car in the school parking lot. The officer never testified that he was concerned about weapons or any threat to his own safety. In fact, he testified that the men in the car did not look dangerous. The officer asked about drugs, "just to see how they would answer" and continued the inquiry directly with Mr. Rackow only because of Mr. Rackow's failure to immediately answer the question. The officer turned directly toward Mr. Rackow for the first time, shined his flashlight into his face, and asked him: "If I search you, will I find anything illegal?" The *Page 12 form of the question implied that it was the officer who would decide whether Mr. Rackow would be searched. The officer asked: "If I search you, will I find . . . ?" This choice of words by the officer indicated that "compliance with the officer's request might be compelled."United States v. Mendenhall, 446 U.S. 544, 554 (1980). Mr. Rackow had already failed to answer the question aimed at the group and, in response, the officer had focused his attention, his flashlight, and his question, directly at him alone. The reasonable person in Mr. Rackow's position would not feel free to walk away from the officer at that point. Id. Mr. Rackow was sitting in the back seat of a car that was not able to move. Even if the driver had been willing to drive away while the officer was questioning Mr. Rackow, the police cruiser was parked so as to block the car. The interior of the car was lit by the large overhead spotlight the officer trained on the vehicle before approaching it. And the officer was shining a flashlight directly into Mr. Rackow's face and directing his question at Mr. Rackow specifically. The encounter became an illegal seizure at the moment the officer directly asked Mr. Rackow the question about illegal contraband.

{¶ 16} The officer had no objective justification for detaining Mr. Rackow after he had dispelled the initial suspicion regarding the presence of the car in the school parking lot at night. When the officer asked the group whether they had any contraband, Mr. Rackow was free to "decline to listen to the questions at all and . . . his refusal to listen or answer [did] not, without more, furnish [sufficient] *Page 13 grounds" to detain him further. State v. Robinette, 80 Ohio St. 3d 234,240 (1997) (quoting Florida v. Royer, 460 U.S. 491, 497-98 (1983) (citations omitted)). That freedom is the essence of a consensual encounter between a citizen and a police officer. The encounter became an illegal seizure of Mr. Rackow when the officer directed the next question at Mr. Rackow: "If I search you, will I find . . . ?" The circumstances, including the officer's choice of words, would have implied to the reasonable person that he was not free to walk away from the officer.

{¶ 17} Mr. Rackow was being illegally detained at the time he admitted to carrying marijuana. Therefore, Mr. Rackow's statement is not admissible. Furthermore, the officer testified that the only reason he searched Mr. Rackow was probable cause based on Mr. Rackow's admission. As the probable cause for the search flowed directly from a violation of Mr. Rackow's right to be free from unreasonable seizures, the search was also illegal. Therefore, the fruits of that search were properly suppressed by the trial court. The State's assignment of error is overruled.

Judgment affirmed.

The Court finds that 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 Wayne, 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(E). 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.

CLAIR E. DICKINSON FOR THE COURT

MOORE, J. CONCURS

{¶ 19} The majority affirms the trial court's suppression of Defendant's statement during an investigative stop to the effect that Defendant had marijuana based on State v. Robinette (1997),80 Ohio St.3d 234. Because the facts in Robinette are distinguishable from the facts of this case, I would reverse the trial court's decision to suppress Defendant's confession. In Robinette, the police officer stopped the defendant's car for speeding. After checking defendant's license, he returned to the vehicle, gave the defendant a verbal warning regarding his speed, and returned his license. The officer then asked the defendant if he was carrying any illegal contraband in his car, to which the defendant responded that he was not. Despite the defendant's denial, the officer proceeded to ask the defendant if he could search his vehicle. The Supreme Court of Ohio found the officer's search of the vehicle objectionable because defendant denied having any contraband. The Robinette court found that, under the totality of the circumstances, the officer did not have articulable facts creating suspicion of illegal activity after the office received a negative answer to his initial question. *Page 16

{¶ 20} Here, considering the totality of the circumstances, I would hold that the officer had articulable facts creating suspicion of illegal activity sufficient to permit the officer to ask a follow-up question that resulted in Defendant's confession. Unlike the defendant in Robinette, Defendant failed to deny the initial question. Defendant did not deny that he had anything illegal in the car, as did the defendant in Robinette. The mere fact that Defendant was silent when the officer posed his initial question does not negate the officer's right to ask a follow-up question under the facts of this case. "Articulable suspicion turns on all the circumstances surrounding the actions of the suspected wrongdoer, and his suspicious behavior need only be recognizable by one versed in law enforcement." U.S. v. Byfield(C.A.6, 1991), 948 F.2d 1290, at *3, citing U.S. v. Knox (C.A.6, 1988),839 F.2d 285, 290, certiorari denied, (1989) 490 U.S. 1019. See, alsoU.S. v. Cortez (1981), 449 U.S. 411, 417-18 (noting that "terms such as `articulable reasons' and `founded suspicion' are not self-defining" and "fall short of providing clear guidance dispositive of the myriad factual circumstances that arise." Each case requires a review of the whole picture from the officer's perspective).

{¶ 21} Here, the officer was versed in law enforcement, and his actions in this case were simply good police work. As the majority notes, up to the time of the officer's initial question, all of the men in the car were uniformly cooperative. However, that cooperative attitude was not uniform among the men as they *Page 17 responded to the officer's routine question. Two of the men immediately denied having anything illegal in the car while Defendant did not do so. I believe that the men's responses in comparison to each other, under the facts of this case, reasonably created a suspicion in the officer's mind sufficient to allow him to ask a follow-up question. I would reverse. *Page 1