[This opinion has been published in Ohio Official Reports at 

.]




           THE STATE OF OHIO, APPELLANT, v. ROBINETTE, APPELLEE.
                     [Cite as State v. Robinette, 

.]
Criminal law—Motor vehicles—Continued detention of a person stopped for a
        traffic violation constitutes an illegal seizure, when—Police officer
        required to inform motorist that his legal detention has concluded before
        the police officer may engage in any consensual interrogation.
1. When 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.
2. The right, guaranteed by the federal and Ohio Constitutions, to be secure in one’s
        person and property requires that citizens stopped for traffic offenses 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. Any attempt at consensual interrogation must be preceded by
        the phrase “At this time you legally are free to go” or by words of similar
        import.
     (No. 94-1143—Submitted May 24, 1995—Decided September 6, 1995.)
      Appeal from the Court of Appeals for Montgomery County, No. 14074.
                                  __________________
        {¶ 1} On August 3, 1992, appellee, Robert D. Robinette, was driving his
car at sixty-nine miles per hour in a forty-five miles per hour construction zone on
Interstate 70 in Montgomery County. Deputy Roger Newsome of the Montgomery
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County Sheriff’s office, who was on drug interdiction patrol at the time, stopped
Robinette for a speeding violation.
       {¶ 2} Before Newsome approached Robinette’s vehicle, he had decided to
issue Robinette only a verbal warning, as was his routine practice regarding
speeders in that particular construction zone. Newsome approached Robinette’s
vehicle and requested Robinette’s driver’s license. Robinette supplied the deputy
with his driver’s license, and Newsome returned to his vehicle to check it. Finding
no violations, Newsome returned to Robinette’s vehicle. At that point, Newsome
had no intention of issuing Robinette a speeding ticket. Still, Newsome asked
Robinette to get out of his car and step to the rear of the vehicle. Robinette complied
with Newsome’s request and stood between his car and the deputy’s cruiser.
Newsome returned to his vehicle in order to activate the cruiser’s video camera so
that he could videotape his interaction with Robinette. Newsome returned to
Robinette, issued a verbal warning regarding Robinette’s speed, and returned
Robinette’ s driver’s license.
       {¶ 3} After returning the license, Newsome said to Robinette, “One
question before you get gone [sic]: are you carrying any illegal contraband in your
car? Any weapons of any kind, drugs, anything like that?” Newsome testified that
as part of the drug interdiction project he routinely asked permission to search the
cars he stopped for speeding violations. When Robinette said that he did not have
any contraband in the car, Newsome asked if he could 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.
       {¶ 4} Upon his search of Robinette’s vehicle, Newsome found a small
amount of marijuana. Newsome then put Robinette and his passenger in the back
seat of the cruiser and continued the search. As a result of this extended search,
Newsome found “some sort of pill” inside a film container.              The pill was




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determined to be methylenedioxy methamphetamine (“MDMA”) and was the basis
for Robinette’s subsequent arrest and charge for a violation of R.C. 2925.11(A).
          {¶ 5} Robinette’s indictment was issued on December 18, 1992.          On
February 19, 1993, Robinette filed a motion to suppress the evidence found in the
search of his vehicle. The trial court overruled the motion on March 8, 1993,
finding that the deputy made clear to Robinette that the traffic matter was concluded
before asking to search the vehicle. The court ruled that Robinette’s consent did
not result from any overbearing behavior on behalf of Newsome.
          {¶ 6} Robinette appealed. The Court of Appeals for Montgomery County
reversed the trial court, holding that Robinette remained detained when the deputy
asked to search the car, and since the purpose of the traffic stop had been
accomplished prior to that point, the continuing detention was unlawful and the
ensuing consent was invalid.
          {¶ 7} This matter is before this court upon an allowance of a discretionary
appeal.
                                __________________
          Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney; Carley J.
Ingram and Michael L. Gebhart, Assistant Prosecuting Attorneys, for appellant.
James D. Ruppert, for appellee.
          Betty D. Montgomery, Attorney General, Richard A. Cordray, State
Solicitor, and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus
curiae, Ohio Attorney General.
          Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio
Prosecuting Attorneys Association.
                                __________________




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       PFEIFER, J.
       {¶ 8} The issue in this case is whether the evidence used against Robinette
was obtained through a valid search. We find that the search was invalid since it
was the product of an unlawful seizure. We also use this case to establish a bright-
line test, requiring police officers to inform motorists that their legal detention has
concluded before the police officer may engage in any consensual interrogation.
       {¶ 9} In order to justify any investigative stop, a police officer “must be able
to point to specific and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio
(1968), 

, 

, 

. Absent any
additional articulable facts arising after the stop is made, the police officer must
tailor his detention of the driver to the original purpose of the stop. State v. Chatton
(1984), 

, 11 OBR 250, 253, 

.
       {¶ 10} In Chatton, the police officer stopped the defendant’s car when he
noticed it had no license plates. When he approached the car after it had pulled
over, the officer saw a valid temporary tag in the car’s rear window. Despite the
fact that the original question which gave rise to the stop had been resolved, the
officer approached the driver and asked to see his driver’s license. A check of the
license revealed that it was suspended, and the officer ordered the defendant out of
his vehicle and placed him under arrest for driving with a suspended license. Upon
searching the vehicle, the officer discovered a loaded revolver under the driver’s
seat. The defendant was charged with carrying a concealed weapon.
       {¶ 11} This court ruled in Chatton that the evidence resulting from the
search should have been suppressed. This court reasoned that the officer, upon
seeing the valid temporary tag, no longer maintained a reasonable suspicion that
the defendant’s vehicle was not properly licensed, and thus had no articulable
reason to further detain the defendant to determine the validity of his driver’s




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license. As a result, any evidence seized upon a subsequent search of the vehicle
was inadmissible under the Fourth Amendment to the United States Constitution.
        {¶ 12} In this case, Newsome certainly had cause to pull over Robinette for
speeding. The question is when the validity of that stop ceased. Newsome testified
that from the outset he never intended to ticket Robinette for speeding. When
Newsome returned to Robinette’s car after checking Robinette’s license, every
aspect of the speeding violation had been investigated and resolved. All Newsome
had to do was to issue his warning and return Robinette’s driver’s license.
        {¶ 13} Instead, for no reason related to the speeding violation, and based on
no articulable facts, Newsome extended his detention of Robinette by ordering him
out of the vehicle.     Newsome retained Robinette’s driver’s license and told
Robinette to stand in front of the cruiser. Newsome then returned to the cruiser and
activated the video camera in order to record his questioning of Robinette regarding
whether he was carrying any contraband in the vehicle.
        {¶ 14} When 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.

        {¶ 15} The entire chain of events, starting when Newsome had Robinette
exit the car and stand within the field of the video camera, was related to the
questioning of Robinette about carrying contraband. Newsome asked Robinette to
step out of his car for the sole purpose of conducting a line of questioning that was
not related to the initial speeding stop and that was not based on any specific or
articulable facts that would provide probable cause for the extension of the scope
of the seizure of Robinette, his passenger and his car. Therefore the detention of
Robinette ceased being legal when Newsome asked him to leave his vehicle.




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       {¶ 16} However, this case contains a feature not discussed in Chatton:
Robinette consented to the search of his vehicle during the illegal seizure. Because
Robinette’s consent was obtained during an illegal detention, his consent is invalid
unless the state proves that the consent was not the product of the illegal detention
but the result of an independent act of free will. Florida v. Royer (1983), 

, 

, 

. The burden is on the state to
prove that the consent to search was voluntarily given. 

, 

,

. The factors used in consideration of whether the consent is
sufficiently removed from the taint of the illegal seizure include the length of time
between the illegal seizure and the subsequent search, the presence of intervening
circumstances, and the purpose and flagrancy of the circumstances. United States
v. Richardson (C.A.6, 1991), 

.
       {¶ 17} In this case there was no time lapse between the illegal detention and
the request to search, nor were there any circumstances that might have served to
break or weaken the connection between one and the other. The sole purpose of
the continued detention was to illegally broaden the scope of the original detention.
Robinette’s consent clearly was the result of his illegal detention, and was not the
result of an act of will on his part. Given the circumstances, Robinette felt that he
had no choice but to comply.
       {¶ 18} This case demonstrates the need for this court to draw a bright line
between the conclusion of a valid seizure and the beginning of a consensual
exchange. A person has been seized for the purposes of the Fourth Amendment
when a law enforcement officer, by means of physical force or show of authority,
has in some way restrained his liberty such that a reasonable person would not feel
free to walk away. United States v. Mendenhall (1980), 

, 553-554,

, 

.
       {¶ 19} The transition between detention and a consensual exchange can be
so seamless that the untrained eye may not notice that it has occurred. The




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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.
       {¶ 20} The present case offers an example of the blurring between a legal
detention and an attempt at consensual interaction. Even assuming that Newsome’s
detention of Robinette was legal through the time when Newsome handed back
Robinette’s driver’s license, Newsome then said, “One question before you get
gone: are you carrying any illegal contraband in your car?” (Emphasis added.)
Newsome tells Robinette that before he leaves Newsome wants to know whether
Robinette is carrying any contraband. Newsome does not ask if he may ask a
question, he simply asks it, implying that Robinette must respond before he may
leave. The interrogation then continues. Robinette is never told that he is free to
go or that he may answer the question at his option.
       {¶ 21} Most people believe that they are validly in a police officer’s custody
as long as the officer continues to interrogate them. The police officer retains the
upper hand and the accouterments of authority. That the officer lacks legal license
to continue to detain them is unknown to most citizens, and a reasonable person
would not feel free to walk away as the officer continues to address him.
       {¶ 22} We are aware that consensual encounters between police and
citizens are an important, and constitutional, investigative tool. Florida v. Bostick
(1991), 

, 

, 

. However, citizens who
have not been detained immediately prior to being encountered and questioned by
police are more apt to realize that they need not respond to a police officer’s
questions. A “consensual encounter” immediately following a detention is likely
to be imbued with the authoritative aura of the detention. Without a clear break
from the detention, the succeeding encounter is not consensual at all.
       {¶ 23} Therefore, we are convinced that the right, guaranteed by the federal
and Ohio Constitutions, to be secure in one’s person and property requires that




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citizens stopped for traffic offenses 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. Any attempt at consensual interrogation must be
preceded by the phrase “At this time you legally are free to go” or by words of
similar import.
       {¶ 24} While the legality of consensual encounters between police and
citizens should be preserved, we do not believe that this legality should be used by
police officers to turn a routine traffic stop into a fishing expedition for unrelated
criminal activity. The Fourth Amendment to the federal Constitution and Section
14, Article I of the Ohio Constitution exist to protect citizens against such an
unreasonable interference with their liberty.
       {¶ 25} Accordingly, the judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       MOYER, C.J., WRIGHT and RESNICK, JJ., concur.
       DOUGLAS, F.E. SWEENEY and COOK, JJ., dissent.
                               __________________
       FRANCIS E. SWEENEY, SR., J., dissenting.
       {¶ 26} I am disturbed by the majority’s requirement that police officers
must now recite certain words before a consensual interrogation may begin. This
“bright-line” test appears unique to Ohio and vastly undercuts our law
enforcement’s ability to ferret out crime. Furthermore, the majority’s test is
contrary to well-established state and federal constitutional law.
       {¶ 27} The United States Supreme Court has made it clear that not every
encounter between a police officer and citizen is a seizure. Florida v. Bostick
(1991), 

, 

, 

. Instead,
the encounter becomes a seizure and is subject to Fourth Amendment scrutiny only




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when the encounter loses its consensual nature.1 

 Traditionally, the crucial test
has always been “whether, taking into account all of the circumstances surrounding
the encounter, the police conduct ‘would have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go about his
business.’” 

, 

, 

. In other words, “a
person has been ‘seized’ within the meaning of the Fourth Amendment only if, in
view of all the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.” United States v. Mendenhall (1980),

, 

, 

. See, also, State v.
Childress (1983), 

, 4 OBR 534, 

.                          The
determination of whether consent has been freely given has always been a factual
one, which, once made, should not be disturbed on appeal.                   Schneckloth v.
Bustamonte (1973), 

, 

, 

.
        {¶ 28} The United States Supreme Court has consistently applied this legal
standard in cases dealing with consensual encounters. In fact, in 

the Supreme Court struck down a per se rule adopted by the Florida Supreme Court
that all routine bus searches were unconstitutional. The Supreme Court remanded
the case to the state court to apply the totality-of-the-circumstances test. More to
the point of the facts of this case, in Florida v. Jimeno (1991), 

, 

, 

, the court applied this legal standard to justify a
consent to search following a traffic stop.
        {¶ 29} Indeed, courts from around the nation have had no problem in
upholding the validity of consensual searches where consent was obtained after a
traffic stop. See, e.g., State v. C.S. (Fla.App. 1994), 

; State v. Bonham


1. Section 14, Article I of the Ohio Constitution is analogous to the Fourth Amendment to the
United States Constitution.




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(1993), 120 Ore.

; United States v. Werking (C.A. 10, 1990),

.
       {¶ 30} Despite this well-established test, the majority now holds that before
a police officer may engage in consensual interrogation, the officer must inform the
individual that “at this time you legally are free to go.” However, the United States
Supreme Court has ruled that being informed of the right to refuse a search is but
one factor to be taken into account when determining whether consent was freely
given; it is not the “sine qua non of an effective consent.” 

, 

, 

. The distinction between being
informed of the right to refuse a search and being informaed of the right to leave
the scene is insignificant. Whether the police officer uttered a warning is a relevant
consideration, but it does not end the inquiry.
       {¶ 31} I would instead apply the totality-of-the-circumstances test to this
case. Here, appellee was properly stopped and detained for speeding. After the
traffic matter was concluded, the officer returned appellee’s license. Appellee
testified that he believed he was free to leave. At this point, the encounter between
appellee and the police officer became an ordinary consensual encounter between
a private citizen and a law enforcement officer. Since appellee’s liberties were not
curtailed and since he understood that he could leave, there was no “seizure”
implicating state or federal constitutional guarantees. Appellee’s consent should
not be invalidated solely because it followed a traffic stop and simply because the
police officer failed to warn appellee that he was free to go. The utterance of these
“magic words” is but one factor for the fact-finder to consider when making the
determination as to whether consent was voluntarily given.
       {¶ 32} In 

, 

, 

,
the United States Supreme Court lists other examples of circumstances that might
indicate a seizure and, consequently, invalid consent: the threatening presence of
several officers, display of a weapon, physical touching of the person, and the use




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of language or tone of voice indicating that compliance with the officer’s request is
compelled. None of these factors was present in this case. Appellee testified that
the officer was nice to him at all times and never drew a weapon. Although appellee
may have been intimidated or nervous, the officer’s conduct did not rise to such a
level as to make him believe he had to agree to the search.
       {¶ 33} As support for its holding, the majority relies on State v. Chatton
(1984), 

, 11 OBR 250, 

. However, Chatton is
clearly distinguishable from this case. In Chatton, the police officer stopped the
defendant for driving without license plates. Once the officer discovered that the
vehicle displayed a temporary tag, which made his initial stop improper, the officer
nevertheless detained the defendant and asked to see his license. The issue in
Chatton was whether the police officer had continuing justification to detain the
defendant. In this case, the issue is whether an individual who has been validly
detained pursuant to a traffic stop may, in response to a police request, give a free
and voluntary consent to search, once the traffic stop has been completed and the
individual knows he is free to leave. Even the majority concedes that consent was
not an issue in Chatton. However, the instant case turns entirely on the issue of
consent. Thus, Chatton has little applicability to this case.
       {¶ 34} This technique of requesting consent following an initial valid
detention is employed on a daily basis throughout this nation to interdict the flow
of drugs. While I certainly do not advocate giving police officers carte blanche in
their treatment of traffic violators, when the original stop is permissible, the police
should be permitted to make inquiries that are not coercive. The majority’s bright-
line test undercuts police authority and severely curtails an important law
enforcement tool that is sanctioned by state and federal constitutional law.
       {¶ 35} For all these reasons, I would reverse the court of appeals and
reinstate the trial court’s judgment.
       DOUGLAS and COOK, JJ., concur in the foregoing dissenting opinion.




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