[S]ince 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.
State v. Brandenburg
2021 – Ohio – 2875
Twelfth District Appellate Court
Clermont County, Ohio
Officer Tyler Fannin testified that he initiated a traffic stop after observing that Mr. Jonathan Brandenburg vehicle did not have a rear license plate light. When the vehicle stopped, Officer Fannin approached the driver’s side window, advised Mr. Brandenburg about the reason for the stop, and retrieved his identification.
Officer Fannin returned to his cruiser and confirmed that Mr. Brandenburg did not have any outstanding warrants. At that point, Officer Fannin acknowledged that he completed his review of Mr. Brandenburg’s records and there were no warrants or reason to detain him any further. Officer Fannin had a gut feeling that Mr. Brandenburg was up to no good and as you will later see, his gut feeling was accurate. Because Officer Fannin testified that the reason for the stop had been completed, his subsequent actions would be critically reviewed by the court. During the Motion to Suppress, Officer Fannin stated that he could have written Mr. 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 Mr. Brandenburg’s vehicle to request consent to search. Officer Fannin testified that Mr. Brandenburg consented to the search. Mr. Brandenburg would later refute that he consented to this search.
After searching the vehicle and discovering no contraband, Officer Fannin asked to search Mr. Brandenburg’s wallet. Again, Officer Fannin testified that Mr. 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 Mr. Brandenburg and issued him a citation for the license plate violation.
Mr. 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. Mr. Brandenburg claimed that he denied Officer Fannin’s request. However, when Officer Fannin approached his vehicle the second time, Mr. Brandenburg claimed that Officer Fannin gave him an ultimatum—either allow him to search the vehicle or face serious consequences. Because of this threat, Mr. Brandenburg testified that he felt compelled to consent to both the search of the vehicle and the search of his wallet. The two very different explanations as to what occurred roadside on this traffic stop underscores the importance of body worn cameras.
After consideration of written closing arguments, the trial court granted Mr. 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 Mr. Brandenburg’s vehicle—a request unrelated to the purpose of the stop. The trial court found that Officer Fannin did not have any reasonably articulable facts or individualized suspicion to justify Mr. Brandenburg’s further detention in order to request consent to search the car and, later, Mr. Brandenburg’s wallet.
Concluding that this ended the analysis, the trial court did not consider it necessary to determine whether Mr. Brandenburg had provided “consent to search.” The state appeals the trial court’s decision.
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 Mr. 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.
The below is a critical exchange between the defense attorney and Officer Fannin at the Motion to Suppress:
Q. Okay. So then you went back to the vehicle; what did you do at that point?
Officer Fannin: 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?
Officer Fannin: 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?
Officer Fannin: Correct.
Q. That his registration was good?
Officer Fannin: Correct.
Q. So you really had no further reason to detain him at that point, right?
Officer Fannin: 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?
Officer Fannin: Correct.
Upon continued cross-examination, Officer Fannin clarified that after he took Mr. 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.” 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 Mr. Brandenburg’s vehicle. The court underscores what I instruct in my classes. Cases are not won and lost by attorneys or judges but the law enforcement officer.
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 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, 80 Ohio St.3d 234 (1997)
Based on the actions of Officer Fannin and Robinette, the Twelfth District Appellate Court held “[S]ince 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.”.
Information for this article was obtained from State v. Brandenburg, 2021 – Ohio – 2875 and State v. Robinette, 80 Ohio St.3d 234 (1997).
- Law enforcement officers can request a consent to search a person, vehicle, package, purse, backpack, home or other personal belongings but there are limitations. In this case Officer Fannin had a gut feeling that Mr. Brandenburg possessed something unlawful and he was right! But a law enforcement officer’s gut feeling does not provide the legal foundation to detain or search.
- In 1997 the Supreme Court of Ohio decided the case of State v. Robinette, 80 Ohio St.3d 234 (1997). In that case an officer extended a traffic stop to ask Mr. Robert Robinette consent to search. Exactly what occurred here was the officer found methamphetamine inside Mr. Robinette’s vehicle on August 3, 1992. On appeal the U.S. Supreme Court held that the search was lawful, but the Supreme Court of Ohio subsequently determined that the search was unlawful under the Ohio Constitution, not the Fourth Amendment to the U.S. Constitution. Therefore, Ohio law enforcement officers are held to a stricter standard of extending traffic stops to obtain consent to search than officers in other states. In Robinette, the Supreme Court of Ohio specifically held “[W]e find that the totality-of-the circumstances test is controlling in an unlawful detention to determine whether permission to search a vehicle is voluntary. Once 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.”
- Law enforcement must always know in what legal block they are operating. In this case this was an investigative detention based on the burned-out license plate light. Now Officer Fannin should be commended for utilizing the traffic code to begin an investigation and this demonstrates how a minor misdemeanor traffic violation can metastasize into a felony. However, the officer left the investigative detention block when he stated he completed the traffic stop after he completed his warrants and LEADS checks. At that moment any further detention to obtain consent to search was unlawful.
Does your agency train on Traffic Stops?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!