[Cite as State v. Robison , 2020-Ohio-2980.]

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

STATE OF OHIO Appellee

v.

MATTHEW ROBISON Appellant C.A. No. 18CA0064-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 18CR0234

DECISION AND JOURNAL ENTRY Dated: May 18, 2020

HENSAL, Judge. {¶1} Matthew Robison appeals from the judgment of the Medina County Court of Common Pleas, denying his motion t o suppress. This Court affir ms.

I. {¶2} A grand jury indicted Mr. Robison on one count of aggravated tr afficking in methamphetamine, and one count of aggravated possession of meth amphetamine. The charges stemmed from a search of a vehicle driven by Jennifer Alexander , in which he was a passenger. In Ms. Alexander’s appeal, this Court set forth the relevant fa ctual background as follows: At approximately 1:30 a.m., Officer James Allenby responded to a nearby gas station based on a tip that two males appeared to be either und er the influence of narcotics or involved in drug ac tivity. The informant indicate d that the two males were leaving the gas station in a blue Dodge four-door vehicle, and Officer Allenby spotted a matching vehicle as he approached the parking lot. B ecause the vehicle was leaving the lot, Officer Allenby followed behind it and exe cuted a traffic stop shortly thereafter.

The vehicle contained three occ upants: (1) Alexander, who was t he driver, (2) her boyfriend [Mr. Robison], who was the front seat passenger; and (3) an2

acquaintance, who was the backseat passenger. Officer Allenby spoke with each occupant in turn and continued to investigate, as he found thei r circumstances suspicious and it was clear to him that the backseat passenger was under the influence of narcotics. Approximately 38 minutes into the traf fic stop, he and another officer spotted an item of concern in the back of Alexa nder’s vehicle and asked her for consent to retrieve the item and open it. Alexan der assented, so they removed the item and identified it as a scale coated with drug residue. After locating that item, they searched the remainder of the vehicle and discovered narcotics. A second search of th e vehicle, conducted several d ays later, also revealed narcotics that had bee n concealed inside a pillow in t he trunk.

State v. Alexander , 9th Dist. Medina No. 18CA0066- M, 2019-Ohio-3310, ¶ 2-3. The police arrested Ms. Alexander and the backseat passenger at the scene, but did not arrest Mr. Robison. A few days later, after the sec ond search of the vehicle, the pol ice arrested Mr. Robison. {¶3} Mr. Robison and Ms. Alexander f iled motions to suppress in thei r respective criminal cases. Upon motion of Mr. Robison, the trial court he ld a consolidated suppression hearing. The trial court subsequently denied both motions, and Mr. Robison pleaded no contest to the indicted charges. The trial court found him guilty and sen tenced him to three years of imprisonment. He now appeals, r aising two assignments of error for this Court’s review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT[’]S MOTION TO SUPPRESS[.]

ASSIGNMENT OF ERROR II THE TRIAL COURT’S DENIAL OF APPELLANT[’]S MOTION TO SUPPRESS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE OR BASED UPON INSUFFICIENT EVIDENCE. {¶4} Mr. Robison has set forth two a ssignments of error that challen ge the trial court’s denial of his motion to suppress, but has not argued each assig nment of error separately in his merit brief. While this Court can disregard his assignments of error on that basis, we exercise our3

discretion to consider the merits of Mr. Robison’s combined ass ignments of error. See Loc.R. 7(B)(7) of the Ninth District C ourt of Appeals (“Each assignmen t of error shall be separately discussed * * *.”); App.R. 12(A)(2) (“The court may disregard a n assignment of error presented for review if the party rais ing it fails to * * * argue the ass ignment separately in the brief[.]”). {¶5} In his assignments of error, Mr. Robison argues that the trial court erred by denying his motion to suppress. Specifically, he argues that the offic ers violated his constitutional rights because they lacked reasonable suspicion to stop Ms. Alexander’ s vehicle, and because they lacked reasonable suspicion to prolong the length of the stop to inves tigate potential drug activity. He argues that the officers had no reliable information that he – or any of the other occupants of the vehicle – possessed drugs, or had used them. He also argues th at, even if the officers did have reasonable suspicion to prolong the stop, the continued detenti on became illegal when Ms.

Alexander refused to consent to a search of the vehicle. Mr. R obison further argues that any evidence obtained as a result of the illegal search was fruit o f the poisonous tree, and that the inevitable-discovery exception does not apply. Lastly, in a fo otnote, he argues that the officers conducted an illegal pa t down of him. For the reasons that fol low, this Court disagrees. {¶6} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is theref ore in the best position to resolve factual questions and evaluate the credibility of witnesses.” Id. , citing State v. Mills , 62 Ohio St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial cour t’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the appellate court must t hen independently determine, without defe rence to the conclusion of the trial4

court, whether the fac ts satisfy the applicable legal standard. ” Id. , citing State v. McNamara , 124 Ohio App.3d 706, 710 (4th Dist.1997). 1 {¶7} This Court set forth the trial c ourt’s findings of fact and con clusions of law in Ms. Alexander’s appeal, which are identical to the findings of fact and conclusions of law the trial court made in this case, 2 as follows: The trial court found that, at about 1:30 a.m., Officer James A llenby received a dispatch regarding suspicious i ndividuals at a nearby gas stati on. The dispatcher received his or her information from the gas station clerk, who reported that the suspicious individuals had been “involved in drug activity” in the restroom and were leaving in a blue four door vehicle. The court found that Officer Allenby knew the gas station clerk who had called, dealt with her on a daily basis, and felt that she was a reliable source given that the employees of the 24-hour gas station were “used to people doing drugs i n their bathroom.” Only afte r he completed the stop did Officer Allenby learn th at the clerk had not personall y observed the suspicious activity she relayed to the dispatcher. Instead, a customer had reported the suspicious activity to h er, and she, in turn, had reported it to the dispatcher. The trial court found that, as O fficer Allenby approached the g as station in his cruiser, he saw a blue four door v ehicle. Noting that it match ed the vehicle description he had received from dispatch and that it had a bur ned-out license plate light, Officer Allenby stopped the vehicle to investigate. Upo n his approach, he discovered that the vehicle had three occupants. Alexander was the driver, her boyfriend was the front seat passenger, and an acquaintance of theirs was the backseat passenger. Officer Alle nby began his investigation by collecting their information and identifying each person. As he was doing so, h e noticed the backseat passenger had “heavy or droopy eyelids” indicative of drug use. The court found that Officer Allenby had undergone Drug Recognition Train ing and was “able to recognize the physical signs of when a person is under the influence of seven different types of drugs including amphetamines.” Conseq uently, the court found him to be a Drug Recognition Expert, qualified to determi ne that the backseat passenger was under the influence of narcotics.

1 The caption of Mr. Robison’s s econd assignment of error challe nges the trial court’s decision as not being supported by sufficient evidence, and as being agains t the manifest weight of the evidence. This Court reviews a trial court’s denial of a motio n to suppress based upon the standard set forth herein, which “presuppos es evidentiary weighing by an appellate court[.]” Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 15.

2 The trial court substituted “Robison” for “Alexander” where ap propriate.5

The trial court found that Officer Allenby spoke with each of t he vehicle’s three occupants in turn, separating them one at a time by making use of his cruiser and the cruiser of a second officer who had arrived to assist. Whi le speaking with Alexander, Officer Allenby learned that she and her boyfriend w ere from an area near Sandusky. Alexander told t he officer that she and her boyf riend had driven to Akron to pick up the backseat passenger because he was drunk an d had called for a ride. Officer Allenby found it strange that Alexander and he r boyfriend would drive that far in the middle of the night just to give the back seat passenger a ride. He then informed Alexander that someone at the gas station had seen two men engaged in suspicious activity in the bathroom, and she confirm ed that her boyfriend and the backseat passenger had gone into the bathroom . Following his initial conversation w ith Alexander, Officer Allenby spoke with the backseat passenger. The trial court found that, as O fficer Allenby spoke with the b ackseat passenger, he confirmed his initial suspicion that the man was under the infl uence of narcotics. The officer observed that the backseat passenger’s pupils were constricted in spite of the dark surroundings, his speech was slurred, and his eyeli ds continued to be droopy. The backseat passenger admitted that he had been in th e gas station bathroom and had used drugs in the past, but denied any recent use. As Officer Allenby continued to speak with him, however, he began crying a nd admitted that he had used heroin earlier that day. The backseat passenger ac knowledged that Alexander and her boyfriend ha d picked him up in Akron, but did not say how he knew them. The trial court found that, afte r speaking with the backseat pa ssenger, Officer Allenby spoke with the boyfriend. Much like Alexander, the boy friend initially maintained that the backseat passenger was drunk. After Office r Allenby informed him that the backseat passenger was actually under the influenc e of heroin, however, the boyfriend then offered that he had only known the backseat passenger for a few days. That statement also aroused Officer Allenby’s suspicions given the considerable distance that Alexa nder and her boyfriend had driv en in the middle of the night to pick up the backseat passenger. Moreover, while s peaking with the boyfriend, the officers noticed t rack marks on his neck. When Officer Allenby asked about the track marks, the boyfriend admitted that he som etimes injected drugs, but claimed he had not done so for several days. He ind icated that he took prescription Percocet each day for pain and would use heroin wh en his pills ran out. The trial court found that, follo wing his conversations with ea ch of the three occupants, Officer Allenby and his fellow officer walked around Alexander’s vehicle and looked through the windows. They noticed a black o bject in the backseat, and the second officer relayed that she had seen Alex ander’s boyfriend attempt to throw a blanket over the object while still inside t he car. Officer Allenby asked Alexander about the obj ect, but she claimed not to know w hat it was. He then asked her for permission to remove the object and open it, and she agreed he could6

do so. Upon opening the object, Officer Allenby discovered it was a scale coated with crystals that resembl ed methamphetamine residue. The trial court concluded that Officer Allenby possessed reason able suspicion to stop Alexander’s vehicle based on the information he received f rom dispatch. It found that the tip the dispatcher received from the gas station clerk and relayed to Officer Allenby possessed sufficient indicia of reliability bec ause the officer was very familiar with the clerk and knew her to be a reliable sour ce. Though it was actually a customer who had observed the suspicious activity an d not the clerk herself, the court noted that O fficer Allenby was unaware of th at fact until later. Based on the information available to him at the time of the st op, the court concluded that Officer Allenby had reasonable suspicion to cond uct an investigatory stop to determine wh ether Alexander or her passen gers “were in possession of illegal drugs and pa raphernalia to us e or sell * * *.”

The trial court also concluded th at, once Officer Allenby began his investigation, he continued to develop “more ‘s pecific and articulable facts’ [to] support[ ] his initial suspicions that the occ upants were involved in drug act ivity.” Those facts included the backseat passenger ’s appearance and behavior, Alex ander and her boyfriend’s claim that the backseat passenger was only intoxica ted, their further claim that they had driven a considerable distance to pick up s omeone they barely knew at such a late hour, the tr ack marks on the boyfriend’s ne ck, and the backseat passenger and boyfriend’s admissi ons that they were heroin user s. The court found that Officer Allenby was justified in continuing to detain Alex ander until he spotted the black case in her car and, a s a result of opening it, devel oped probable cause to search the remainder of her car.

Alexander at ¶ 10-17. {¶8} Like Ms. Alexander, Mr. Robison’s arguments on appeal sound ent irely in law; he has not challenged the trial court’s factual findings. Id. at ¶ 19. In her appeal, Ms. Alexander argued that Officer Allenby lacked reasonable suspicion to stop her vehicle because “the State failed to prove that the tip the officer received from dispatch possessed sufficient indicia of reliability[,]” and that he lacked reasonable suspicion to prol ong the length of the stop to investigate potential drug activity. Id. at ¶ 18, 21. This Court rejected those arguments. Id. at ¶ 20, 22. In doing so, this Court stated that “we cannot conclud e that the trial court erred when it determined that the tip Officer Allenby received from dispatch provided him with reasonable suspicion to stop Alexander’s c ar and investigate its occupants for possible drug activity[,]” and7

that “the record contains compe tent, credible evidence in suppo rt of the trial court’s determination that Officer Allenby legally detained Alexander for the duratio n of the traffic stop.” Id. at ¶ 20, 22. Regarding the latter, t his Court indicated that: [a]pproximately 38 minutes elapsed between the point in time th at Officer Allenby executed the stop and the point in time that he discovered the residue-coated scale inside the vehicle. During that period of time, Officer Allenb y was actively confirming the identities of the three occupants, speaking sepa rately with each occupant, conferring with the s econd officer on scene, inspecti ng Alexander’s vehicle, and performing other task s in the pursuit of his inves tigation. The record does not support the conclusion that he purposely delayed matte rs or otherwise failed to diligently condu ct his investigation. * * *

. The trial court determined that, as the stop progressed, Office r Allenby continued to develop “more ‘specific and articulable facts’ [to] support[ ] his initial suspicions that the occupants were involved in drug activity.” The record supports that determination given the backseat passenger’s appearance and beh avior, Alexander and her boyfriend’s claim that h e was only intoxicated, their f urther claim that they had driven a considerable dista nce to pick up someone they bare ly knew at such a late hour, the track marks on the boyfriend’s neck, and the bac kseat passenger and boyfriend’s admissions that they were heroin users. Based upon the totality of the circumstances, Officer Allenby pos sessed reasonable suspicion t o extend Alexander’s detention a s he continued to investigate the suspic ious activity that he observed.

Id. at ¶ 22-23. Nothing in Mr. Robi son’s merit brief, which prese nts substantially similar arguments relative to the legalit y of the stop, the occupants’ continued detention, and the search of the vehicle, compels this Court to reach a different conclus ion than our decision in Alexander

. We, therefore, reject Mr. Robi son’s arguments. Based upon this conclusion, we likewise reject Mr. Robison’s arguments that any evidence obtained as a result of the illegal search was fruit of the poisonous tree, and that the inevitable-discovery exception does not apply, both of which presuppose that an illegal search and seizure occurred. To the extent that Mr. Robison has challenged the pat-down searc h, he has not argue d – and there i s no indication in the record – that he suffered any prejudice, even assuming without deciding that the pat down was illegal. See State8

v. Franchi , 9th Dist. Summit No. 22474, 2005-Ohio-5105, ¶ 7. Accordingly , Mr. Robison’s assignments of error are overruled.

III. {¶9} Mr. Robison’s assignments of error are overruled. The judgment of the Medina County Court of Common P leas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

CALLAHAN, P. J. CARR, J. CONCUR.9

APPEARANCES: RUSSELL A. BUZZELLI, Attorn ey at Law, for Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLU ICCI, Assistant Prosecuting Attorney, for Appellee.