[Cite as State v. Brandenburg,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellant, : CASE NO. CA2020-09-055

: OPINION - vs - 8/23/2021 :

JONATHAN R. BRANDENBURG, :

Appellee. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2019 CR 01130

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant Prosecuting Attorney, for appellant.

W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant Public Defender, for appellee.

HENDRICKSON, J.

{¶1} Appellant, the state of Ohio, appeals from a decision of the Clermont County

Court of Common Pleas granting a motion to suppress filed by appellee, Jonathan

Brandenburg. For the reasons detailed below, we affirm in part, reverse in part, and remand

this matter for further proceedings.

{¶2} On November 14, 2019, Brandenburg was indicted on one count of Clermont CA2020-09-055

aggravated possession of drugs in violation of R.C. 2925.11, a fifth-degree felony. The

charge arose after Brandenburg was stopped for a traffic violation. The police officer who

initiated the traffic stop searched both the vehicle and Brandenburg and discovered

methamphetamine in his wallet. Brandenburg pled not guilty.

{¶3} In March 2020, Brandenburg moved to suppress the evidence discovered as

a result of the officer's stop and search of the vehicle, as well as the search of his wallet.

At the suppression hearing, Officer Tyler Fannin testified that he initiated a traffic stop after

observing that Brandenburg did not have a rear license plate light. When the vehicle

stopped, Officer Fannin approached the driver's side window, advised Brandenburg about

the reason for the stop, and retrieved his identification.

{¶4} Officer Fannin returned to his cruiser and confirmed that Brandenburg did not

have any outstanding warrants. At that point, Officer Fannin acknowledged that he

completed his review of Brandenburg's records and there were no warrants or reason to

detain him any further. Officer Fannin stated that he could have written Brandenburg a

citation for the license plate violation and released him from the stop. However, Officer

Fannin did not write the citation and instead chose to reapproach Brandenburg's vehicle to

request consent to search. Officer Fannin testified that Brandenburg consented to the

search. After searching the vehicle and discovering no illegal contraband, Officer Fannin

asked to search Brandenburg's wallet. Again, Officer Fannin testified that Brandenburg

consented to this search. When he proceeded with the search of the wallet, Officer Fannin

located a clear plastic bag containing a crystal substance later determined to be

methamphetamine. After removing the suspected narcotic, Officer Fannin returned the

wallet to Brandenburg and issued him a citation for the license plate violation.

{¶5} Brandenburg had a different recollection of the traffic stop. According to him,

Officer Fannin asked to search the vehicle as soon as he pulled him over. Brandenburg

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claimed that he denied Officer Fannin's request. However, when Officer Fannin

approached his vehicle the second time, Brandenburg claimed that Officer Fannin gave him

an ultimatum—either allow him to search the vehicle or face serious consequences.

Because of this threat, Brandenburg testified that he felt compelled to consent to both the

search of the vehicle and the search of his wallet.

{¶6} After consideration of written closing arguments, the trial court granted

Brandenburg's motion to suppress. In its decision, the trial court found that Officer Fannin

had completed his investigation into the original purpose for the stop and the ordinary

inquiries incident to the stop. At that point, the trial court found that Officer Fannin should

have ended his investigation unless he could present articulable facts giving rise to a

suspicion of illegal activity. Instead, the trial court found that Officer Fannin engaged in an

improper detour in the otherwise lawful traffic stop by requesting consent to search

Brandenburg's vehicle—a request unrelated to the purpose of the stop. Continuing, the trial

court found that Officer Fannin did not have any reasonably articulable facts or

individualized suspicion to justify Brandenburg's further detention in order to request

consent to search the car and, later, Brandenburg's wallet. Concluding that this ended the

analysis, the trial court did not consider it necessary to determine whether Brandenburg had

provided "consent to search." The state appeals the trial court's decision, raising two

assignments of error for review.

{¶7} Assignment of Error No. 1:

{¶8} THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE AS

APPELLEE CONSENTED TO A SEARCH WITHIN THE TIME NECESSARY TO ISSUE A

CITATION.

{¶9} Assignment of Error No. 2:

{¶10} THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE AS IT

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FAILED TO CONSIDER THE EFFECT OF APPELLEE'S VOLUNTARY CONSENT.

{¶11} In its first assignment of error, the state alleges the trial court erred in

suppressing the evidence—the methamphetamine—obtained following the search of

Brandenburg's wallet. The state argues that Brandenburg consented to the search within

the time necessary to issue him a citation. In its second assignment of error, the state

alleges the trial court erred by concluding that it was not necessary to consider whether

Brandenburg had consented to the search after it had concluded that Officer Fannin did not

have any reasonable or articulable facts to continue the detention.

{¶12} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Shaibi, 12th Dist. Warren No. CA2020-07-038, 2021-

Ohio-1352, ¶ 24. The trial court, as the trier of fact, is in the best position to weigh the

evidence to resolve factual questions and evaluate witness credibility. State v. Vaughn,

12th Dist. Fayette No. CA2014-Ohio-05-012,

, ¶ 8. Therefore, when

reviewing a trial court's decision on a motion to suppress, this court is bound to accept the

trial court's findings of fact if they are supported by competent, credible evidence. State v.

Turner,

,

, ¶ 14. "An appellate court, however,

independently reviews the trial court's legal conclusions based on those facts and

determines, without deference to the trial court's decision, whether as a matter of law, the

facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023,

.

{¶13} "The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including

unreasonable automobile stops." Bowling Green v. Godwin,

, 2006-Ohio-

3563, ¶ 11. "When a defendant files a motion to suppress alleging the traffic stop

constituted an unlawful seizure, 'the state bears the burden of demonstrating the validity of

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[the] traffic stop.'" State v. Turner, 12th Dist. Clermont No. CA2018-11-082, 2021-Ohio-

541, ¶ 11, quoting State v. Bui, 6th Dist. Lucas No. L-19-1028,

, ¶ 29.

Similarly, "[o]nce a warrantless search is established, the burden of persuasion is on the

state to show the validity of the search." Xenia v. Wallace,

(1988).

{¶14} Ohio recognizes two types of lawful traffic stops, each requiring a different

constitutional standard. State v. Ratliff, 12th Dist. Butler No. CA2019-09-163, 2020-Ohio-

3315, ¶ 6-7; State v. Layne, 12th Dist. Clermont No. CA2009-07-043,

, ¶

45. One is a typical noninvestigatory stop where an officer directly observes a traffic

violation, giving rise to probable cause to stop the vehicle. Whren v. United States,

,

(1996). The second type of stop is an investigative or "Terry"

stop, which occurs where an officer has a reasonable suspicion based upon specific and

articulable facts that criminal behavior has occurred or is imminent. State v. Hinkston, 12th

Dist. Clermont No. CA2020-03-012,

, citing Terry v. Ohio,

,

(1968).

{¶15} This case involves the first type, a noninvestigatory stop after the observation

of a traffic violation. It is well established that when the police stop a vehicle based on

probable cause that a traffic violation has occurred, the stop is reasonable under the Fourth

Amendment. Dayton v. Erickson,

(1996), syllabus. "During a traffic stop,

a law enforcement officer may detain a motorist for a period of time sufficient to issue a

citation and to perform routine procedures such as a computer check on the motorist's

driver's license, registration, and vehicle plates." State v. Hill, 12th Dist. Warren No.

CA2015-05-044,

, citing State v. Grenoble, 12th Dist. Preble No.

CA2010-09-11,

, ¶ 28. "Because addressing the infraction is the purpose

of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' * * *

Authority for the seizure thus ends when tasks tied to the traffic infraction are — or

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reasonably should have been — completed." Shaibi,

, quoting

Florida v. Royer,

,

(1983).

{¶16} However, the detention of a stopped motorist "may continue beyond [the

normal] time frame when additional facts are encountered that give rise to a reasonable,

articulable suspicion of criminal activity beyond that which prompted the initial stop." State

v. Batchili,

,

, ¶ 15. Where reasonable and articulable

suspicion of criminal activity exists, "[t]he officer may detain the vehicle for a period of time

reasonably necessary to confirm or dispel his suspicions of criminal activity." State v.

Williams, 12th Dist. Clinton No. CA2009-08-014,

, ¶ 18.

{¶17} In the present case, it is undisputed that Officer Fannin was permitted to affect

a traffic stop after observing that Brandenburg's vehicle did not have a rear license plate

light. See R.C. 4513.05 (Illumination of rear license plate). It is also undisputed that Officer

Fannin was permitted to detain Brandenburg for that period of time necessary to issue a

traffic citation, verify his driver's license, and conduct "ordinary inquiries incident to [the

traffic] stop." See e.g., Shaibi,

, citing Illinois v. Caballes,

,

, (2005). The issue in this case, however, is whether Officer Fannin

unconstitutionally prolonged the detention prior to requesting Brandenburg's consent to

search his vehicle and wallet.

{¶18} The trial court found that Officer Fannin had completed the purpose of his stop

and resolved the ordinary inquiries incident to that stop prior to requesting consent to search

Brandenburg's vehicle. Therefore, the trial court determined that Officer Fannin

unconstitutionally prolonged Brandenburg's detention by requesting consent to search the

vehicle and, later, Brandenburg's wallet. On appeal, the state contends the trial court erred

by suppressing the evidence obtained during the searches and compares the facts in this

case to those in State v. Sexton, 12th Dist. Butler No. CA2019-08-133,

.

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{¶19} In Sexton, the driver of a vehicle was pulled over after leaving a residence

that was the subject of multiple drug complaints. Id. at ¶ 3. The detective assigned to the

case observed the driver fail to activate his turn signal and therefore affected a traffic stop.

Id. at ¶ 6. After obtaining the driver's license, the detective returned to his vehicle and

requested a K-9 unit. Id. at ¶ 8. When he reapproached the vehicle, the detective requested

and was granted consent to search the vehicle; later, the driver consented to the search of

his person. Id. at ¶ 11, 13. After searching the driver's clothing and shoes, the detective

located a small amount of methamphetamine. Id. at ¶ 14.

{¶20} On appeal, this court concluded that the detective requested and obtained

consent to search during the period of time reasonably necessary to process a traffic

citation. Id. at ¶ 27. This conclusion was based on the timeline presented during the

suppression hearing, including testimony that the traffic stop had not ended when the

detective asked for consent. Id. at ¶ 35. This court also determined that, based on the

evidence presented during the suppression hearing, the detective could have reasonably

extended the stop to investigate a reasonable articulable suspicion that the driver was

engaged in drug activity. Id. at ¶ 29.

{¶21} Following review, we find the trial court did not err by granting Brandenburg's

motion to suppress. Though Officer Fannin's initial reason for the stop was lawful, the

record here reflects that Officer Fannin had completed the investigation of the license plate

violation and the ordinary inquiries incident to that stop. Clearly, Officer Fannin did not need

to search Brandenburg's vehicle to investigate the license plate violation, nor did the state

argue that there were articulable facts giving rise to a suspicion of illegal activity justifying

additional investigation. Rather, unlike in Sexton, Officer Fannin testified that the purpose

of the stop was complete, and his only remaining task was to request to search the vehicle.

According to Officer Fannin:

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Q. Okay. So then you went back to the vehicle; what did you do at that point?

At that point, his license was run through my MDC and the checks were done on MDC.

Q. Okay. And was there any reason to wait further to issue a ticket at that point?

I was going to reapproach and ask to – for verbal consent to search the vehicle.

Q. But at that point, you had – you already knew he had no warrants, right?

Correct.

Q. That his registration was good?

Correct.

Q. So you really had no further reason to detain him at that point, right?

Just to ask him to search the vehicle.

Q. So that was the – basically, the stop was completed at that point and then you approached to ask that question?

Correct.

Upon continued cross-examination, Officer Fannin clarified that after he took Brandenburg's

license, confirmed that he had no warrants and that his registration was up to date, he could

have "written a citation and ended the stop there," but that is "not what occurred."1

{¶22} Based on the evidence produced at the suppression hearing, Officer Fannin's

only stated reason for extending his investigation was to request consent to search

Brandenburg's vehicle. As the Ohio Supreme Court has explained:

[w]hen a police officer's objective justification to continue detention of a person stopped for a traffic violation for the

1. This clarification was made after the state noted that Officer Fannin had not verified ownership or the right to use a U-Haul trailer attached to Brandenburg's vehicle. The trial court noted that this was "apparently a matter of choice," and emphasized Officer Fannin's acknowledgement that the stop was complete.

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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.

State v. Robinette,

(1997), paragraph one of the syllabus. Accordingly,

since the lawful basis for Brandenburg's continued detention had ceased, the continued

detention in order to seek consent to search Brandenburg's vehicle was an unreasonable

search and seizure under the Fourth Amendment. Thus, we find the trial court did not err

by finding that Brandenburg was illegally detained at the time he provided his alleged

consent. The state's first assignment of error is overruled.

{¶23} Notwithstanding resolution of the state's first assignment of error, we conclude

that the state's second assignment of error has merit; therefore, we remand this decision to

the trial court. As noted above, at the time Officer Fannin requested consent to search

Brandenburg's vehicle, his legal right to detain Brandenburg had expired. Although

Brandenburg was being unlawfully detained, the analysis into the validity of the search is

not complete. "Voluntary consent, determined under the totality of the circumstances may

validate an otherwise illegal detention and search."

.

{¶24} Where an "individual has been unlawfully detained by law enforcement, for

his or her consent to be considered an independent act of free will, the 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."

at

paragraph three of the syllabus, citing Florida v. Royer,

,

(1983); Schneckloth v. Bustamonte,

,

(1973). "'[T]he 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

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lawful authority.'"

, quoting

.

{¶25} The trial court determined that a "consent to search" analysis was

unnecessary because Officer Fannin had no reasonably articulable facts to continue the

detention to ask permission to search the vehicle or his wallet. However, as noted above,

this is only part of the analysis. The issue of consent was disputed between the parties

during the suppression hearing. Both parties agree that the trial court did not address this

issue and that remand is appropriate to determine if Brandenburg, notwithstanding the

unlawful detention, consented to the search through an independent act of free will.

Robinette, at paragraph three of the syllabus. See, e.g., State v. Shaibi, 12th Dist. Warren

No. CA2020-07-038,

(consent to search not freely and voluntarily

given); State v. Mathis, 8th Dist. Cuyahoga No. 107986,

(question of

whether consent to a search was voluntary or the product of duress or coercion, express or

implied, is a question of fact to be determined from the totality of the circumstances).

Accordingly, we sustain the state's second assignment of error. We remand this matter to

this trial court to determine whether Brandenburg provided consent to search his vehicle

consistent with the supreme court's decision in Robinette.

{¶26} Judgment affirmed in part, reversed in part, and remanded.

M. POWELL, P.J., and BYRNE, J., concur.

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