[Cite as State v. Prater , 2012-Ohio-5105.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 24936 Plaintiff-Appellee : : Trial Court Ca se No.11-CRB-1179 v. : : CASEY B. PRATER : (Criminal Appeal from : ( Kettering Municipal Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 2nd da y of November, 2012.

. . . . . . . . . . . JAMES F. LONG, Kettering Municipal Prosecutor’s Office, 2325 Wilmington Pike, Kettering, Ohio 45420 Attorney for Appellee JOHN M. EBERSOLE, Baver and Bookwalter Co., L.P.A., 202 East Central Avenue, Miamisburg, Ohio 45342 Attorney for Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Casey B. Prater appeals from his conviction and sentence following ano-contest plea to a minor-misdemeanor charge of marijuana possession. {¶ 2} Prater advances two assignments of e rror challenging the trial court’s denial of his motion to suppress the marijuana, whic h police discovered during a traffic stop. Prater contends the trial cour t erred in finding that police obtai ned consent to search the stopped vehicle. Alternatively, even if consent was given, he claims the trial court erred in finding the consent voluntary. {¶ 3} The record reflects that Prater was a passenger in a vehicle driven by his friend, Robert Slone, and regist ered to his mother. Centerville police officer Adam Bennett stopped the vehicle for a traffi c violation. In the course of the stop, Bennett discovered marijuana under both front seats. As a result, Pr ater and Slone were charged with marijuana possession. Slone also received a paraphernalia charge based on a coke can being found in the car. Prater and Slone moved to suppress the ev idence. The matter proceeded to a September 19, 2011 hearing. {¶ 4} Based on the evidence presented, the trial court made the following factual findings: * * * Officer Bennett was on road patrol on June 17, 2011, at approximately 7:45 p.m. when he obser ved a black Honda Civic operated by Slone. The vehicle had a broken left taillight, and a smoke or dark gray plastic cover obscuring the vehicle’s temporary license placard. The officer, after [e]ffecting a traffic stop, approached the Honda, spoke briefly with the occupants, then returned to his cruiser to check for wants or warrants. While in his cruiser, he called for back up, wh ich arrived in the person of Officer [Andrew] Hardacre. During this time, both Defendants remained seated in the 3

 Honda. After confirming that neither Defendant had a detainer or warrant, Officer Bennett decided to issue warnings rather than citations for the observed violations. Officer Hardacre, during part of this time, stood in a grassy area near the Honda’s right passenger door. Offi cer Bennett walked to the rear of the Honda, requested Defendant Sl one to exit the vehicle, and come to the rear of the vehicle. At that time he pointed out to Slone the cracked left taillight, and the smoke colored plate cover. The tw o discussed possible “fixes” for the perceived defects, Officer Bennett hande d the warnings to Defendant Slone, and advised him he was free to go. Officer Bennett then asked Slone for permission to search the vehicle, and Slone gave the officer his permission. Defendant Prater was then asked to exit the vehicle, and stood near the rear of the Honda. As Officer Bennett got to the driver door area, he did detect the odor of marijuana coming from inside the vehicle. He search ed the vehicle and found two baggies (one under each front s eat) containing susp ected marijuana, and also found an empty Coke can with the top removed, which had sandwich baggies containing susp ected marijuana residue. Officer Hardacre testified he hear d Officer Bennett advise Defendant Slone he was “free to go,” then ask fo r permission to search the vehicle, and heard Slone give that per mission to Officer Bennett. Defendant, Casey Prater testified the Honda is his, although it is titled in his mother’s name. Prater denied givi ng either officer permission to search the vehicle, but did not admit or deny that Defendant Slone gave his consent to 4

 search.
* * * The Court in reviewing the video and audio recording of the stop (State’s Ex. “B”) observed the officer apparently discussing the taillight and plate cover issues with Defendant Slone at the rear of the vehicle. (The audio portion of the recording is not always clear or understandable.). After handing the warning to Defendant Slone, it appear s the officer asks said Defendant a question. Defendant Slone’s body language suggests his agreement, and the officer requests Defendant Prater exit the vehicle as he commences to search the vehicle. At no time does it appear that Defendant Prater, the passenger[,] is asked for permission to search the vehicl e. Defendant Slone did not testify at the hearing. As such, Officer Bennett’s testimony that he requested permission to search the vehicle from the driv er, Defendant Slone , and was granted permission is uncontroverte d. Additionally, the actions of Officer Bennett and Defendant Slone in the video support the officer’s testimony. (Doc. #18 at 2-3). {¶ 5} The trial court then held that Offi cer Bennett’s traffic stop was supported by reasonable, articulable suspicion of a legal violation due to the obscured plate cover. The trial court also held that Slone had consented to a search of the Honda and that his consent was voluntary. In support, the trial court found that Bennett had advised Slone he was “free to go” before Slone consented to th e search. After the trial cour t overruled the suppression motion, Prater entered a no-contest plea. The tria l court accepted the plea, found him guilty, and 5

 sentenced him accordingly. The trial court also stayed execution of the sentence pending appeal. (Doc. #20). {¶ 6} In his first assignment of error, Prater challenges the trial court’s finding of consent to search. Although officers Bennett a nd Hardacre provided uncont roverted testimony that Slone consented to the search, Prater cont ends “the probative value of that testimony is fatally compromised by the evidence as set forth in the video” of the traffic stop. Specifically, Prater asserts that Slone can be seen trying “to explain something” and “throwing up his arms.” Prater reasons that Sl one “could well have been saying that he did not have the authority to consent or he c ould have been revoking consent. ” (Appellant’s brief at 4). At most, Prater contends the video establishes Slone’s “mere acquiescence.” {¶ 7} In ruling on a motion to suppress, the tr ial court “assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” (Citation omitted). State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist. 1994). As a result, wh en we review suppression decisions, “we are bound to accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting those facts as true , we must independently determine as a matter of law, without deference to th e trial court's conclusi on, whether they meet the applicable legal standard.” Id. {¶ 8} In its ruling, the trial court found, as a factual matter, that Slone orally gave Officer Bennett permission to search the Honda. This factual finding is supported by evidence in the record, including Officer Bennett’s tes timony that he obtained consent and Officer Hardacre’s testimony that he heard Bennett as k for and obtain permission to search the 6

 vehicle. We are unpersuaded by Prater’s argument that the video recording of the traffic stop clearly contradicts the officers’ testimony. Nothing on the video definitively establishes that Slone did not consent to a search or that he revoked his consent. Althoug h Slone appears to act equivocally when the issue of consent is raise d, not every word on the recording can be heard. Slone’s consent, or lack thereof, simply cannot be established by viewing the video alone. We are left, then, with the trial court’s factual fi nding, based on the officers’ testimony, that Slone consented. Significantly, the record contains no testimony contradicting the officers’ claim, which the trial court credited. We will defer to the trial court, as the finder of fact, on this issue because its finding of consent is supported by co mpetent, credible evidence in the form of the officers’ testimony. {¶ 9} Under his first assignment of error, Prater also claims Slone lacked authority to consent to a search. Prater acknowledges that a non-owner generally may consent to a search if he possesses authority over the area to be inspected. Prater suggests this rule does not apply, however, when another person with superior authority is present. Here, Prater contends that he, not Slone, was the only person capable of consenting to the vehicle search. In support, Prater points out that Officer Bennett knew (1) Sl one did not own the vehi cle, (2) the vehicle was registered to Prater’s mother, (3) Prater a nd the registered owner shared the same address, and (4) Slone and the registered owne r did not share the same address. {¶ 10} Upon review, we find the foregoing argument to be unpersuasive. In consent-to-search cases, the test is whether po lice had an objectively reasonable belief that the consenting person possesse d apparent authority to give consent. State v. Wallace , 2d Dist. Montgomery No. 24383, 2011-Ohio-1741, ¶ 15-16; State v. Green , 2d Dist. Greene No. 2007 7

 CA 2, 2009-Ohio-5529, ¶ 65; State v. Lawson , 12th Dist. Butler No. CA99-12-226, 2001 WL 433121, *5 (April 30, 2001) (“In this case, Jenks cons ented to the search of the vehicle and handed the baggie over to Officer Boyd. Althoug h, according to appellant, Jenks was not the owner of the vehicle, she had a pparent authority to consent to a search. * * * The vehicle was parked in her driveway and registered to an automobile dealer. She told the police that she and Lawson were in the process of buying it together.”). {¶ 11} The record reflects that Officer Benne tt knew Slone was not the owner of the Honda. The video of the stop shows Bennett approach ing the driver’s side of the car and being told that the car belonged to Prater, the pa ssenger. After obtaining identification from Slone and Prater, Bennett returned to his cruiser a nd discovered that the car’s registered owner actually was Prater’s mother. (Tr. at 25). In his own suppression-hear ing testimony, Prater claimed the car was his because he made the paym ents. He testified that the car could not be registered in his name for legal reasons. ( Id . at 73). These additional facts, however, were unknown to Bennett at the time of the traffic st op. Bennett knew only that Slone was driving a car registered to Prater’s mother and that Prater claimed ownership. {¶ 12} Based on the foregoing circumstan ces, Bennett reasonably could have believed that neither Sl one nor Prater owned the car. The onl y verifiable evidence in Bennett’s possession indicated that the owne r was Prater’s mother. Given th at neither Slone nor Prater appeared to own the car, Bennett reasonably coul d have believed that Slone, the driver, had authority to consent to a search. In United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court recogniz ed that “[w]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that 8

 consent was given by the defe ndant, but may show that per mission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Common authority rests “on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. at n.7. {¶ 13} Case law supports the proposition that a non-owner driver of a vehicle has sufficient access or control under Matlock to consent to a search. United States v. Morales , 861 F.2d 396, 399 (3d Cir.1988) (“Under the Matlock test, a driver of a vehicle has the authority to consent to a search of that vehi cle. As the driver, he is the person having immediate possession of and control over the vehicle.”); State v. Walton , 565 So.2d 381, 383 (Fla.App.1990) (“In the context of vehicles on th e highway and searches after a valid traffic stop, courts generally hold that the driver of a car can validly authorize the police to search the car, whether or not there are other passengers in the car.”); United States v. Dunkley , 911 F.2d 522, 527 (11th Cir.1990) (“U nder the rationale of Matlock , a third party in sole possession and control of a vehicle clearly has the authority to consent to its search.* * * It is a somewhat different question whether an ow ner/lessee of a vehicle who is a passenger in the vehicle completely abandons his or her priv acy interests to the driver, to the extent that the third-party driver may rightfully consent to a full search of the entire vehicle. It is clear, however, that even if the owner/lessee is present as a passeng er, the driver of a vehicle has some amount of joint access to the vehicle, and, in fact, the driver has immediate control over the vehicle.” 9

 (Citations omitted)); United States v. Crain , 33 F.3d 480, 484 (5th Cir.1994) (“Crain was a co-occupant of the vehicle and ha d permission to drive it on a late -night highway trip. In such a situation, Watkins had assumed the risk that Crain might consent to a search. * * * We therefore conclude that Crain, as the driver of the vehicle with Watkins' permission, had enough authority to consent to the search.”). {¶ 14} In United States v. Brickley , 916 F.2d 713 (6th Cir.1990), the Sixth Circuit Court of Appeals held that a non-owner driver’s consent justified a vehicle search even when the car’s owner was present in the vehicle. It reasoned: Seefeldt implies in his brief that Brickley could not validly consent to the car search because the officers knew that Brickley did not own the car and knew that the car’s owner was available to consent. This argument is unpersuasive. In United States v. Matlock , 415 U.S. 164, 171 & n. 7 (1974), the Supreme Court held that persons having common access or control over property can give officers lawful authority to search. * * * The fact that the owner is available does not alter this analysis. The holding of Matlock does not rest on some sort of implied agency, which could be vitiated by the availability of the principal, but on the reduced ex pectation of privacy that naturally accompanies shared control. 415 U.S. at 171 n. 7. See also United States v. Morales , 861 F.2d 396, 399-400 (3d Cir.1988) (search consented to by the driver of a rental car was valid agains t the car’s lessee, even though lessee was present and silent); 1 W. LaFave & J. Israel, Criminal Procedure section 3.10, at 352 (1984). Accordingly, we hold that Brickley’s consent was valid against 10

 Seefeldt. Id. at n.2; see also Welch v. State , 93 S.W.3d 50, 53-54 (Tex.Crim.App.2002) (“ Matlock instructs us that property rights are not dispositive in determining whether a third-party has joint access and control. * * * The relevant inquiry under Matlock is not whether Welch possessed a superior privacy interest to Hirsch’s . The relevant inquiry is whether Hirsch had joint access and control over the truck for most purposes at the time she granted consent, and whether Welch assumed the risk in giving the tr uck to Hirsch that Hirsch would consent to a search. The answer to both questions is ‘yes’ even though Welch owned the truck and did not consent to a search.”). {¶ 15} Based on the foregoing authority, we rej ect Prater’s argument that Slone could not give consent to search. At a minimum, Officer Bennett had an objectively reasonable belief that Slone possesse d apparent authority to give consent. Accordingly, the first assignment of error is overruled. {¶ 16} In his second assignment of error, Prater claims the trial c ourt erred in finding Slone’s consent to search voluntary. Prater reas ons that the original purpose for the traffic stop ended when Officer Bennett hande d Slone his driver’s license and warning ticket. Prater asserts that Bennett lacked any suspicion of criminal activity at that point to justify requesting consent to search the Honda and that the con tinued detention was an illegal seizure. Prater further argues that Slone’s cons ent to search was a product of th is illegal seizure rather than a voluntary act. {¶ 17} Prater’s argument implicates State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762 (1997) ( Robinette III ) and its progeny. In Robinette III , the Ohio Supreme Court 11

 held: 1. When a police officer’s objective ju stification to continue detention of a person stopped for a traffic viola tion for the purpose of searching the person’s vehicle is not related to the pur pose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal ac tivity justifying an extension of the detention, the continued detention to c onduct a search constitutes an illegal seizure. * * * 2. Under Section 14, Article I of the Ohio Constitution, the totality-of-the circumstances test is controlling in an unlawful detention to determine whether permission to sear ch a vehicle is voluntary. * * * 3. Once an individual has been unlawfu lly 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. * * * Id. at syllabus. {¶ 18} In a more recent case, State v. Wilburn , 188 Ohio App.3d 384, 2010-Ohio-3536, 935 N.E.2d 509 (2d Di st.), this court applied Robinette III and explained: A police officer’s request for consent to search a vehicle stopped for a traffic violation is valid if it is made , and voluntary consent is obtained, during the period of time reasonably necessary to process the traffic citation; in other words, while the driver is lawfully deta ined for the traffic violation. * * * On 12

 the other hand, once a traffic citation is issued and the purpose of the original stop is completed, the lawful basis for the detention ceases. If police thereafter seek consent to search the vehicle absent some reasonable, articulable suspicion of criminal activity other than the traffic violation, the continued detention is unlawful. * * * Any consen t to search obtained during an unlawful detention is tainted and ma y be invalid. * * * For such consent to be voluntary, the totality of the circumstances must 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. * * * Id. at ¶ 12. {¶ 19} In the present case, once Officer Be nnett handed Slone a wa rning citation and returned his driver’s license, “the purpose of the original stop was completed, and the lawful basis for the detention of defendant ended[.]” State v. Ferrante , 196 Ohio App.3d 113, 2011-Ohio-4870, 962 N.E.2d 383, ¶ 21 (2d Dist.). Be nnett’s ensuing request to search the vehicle constituted an unlawful continued detention unless he possessed a reasonable suspicion of additional criminal activity other than the traffic violations. Id. No such suspicion existed here. As a result, the continued detention to search the vehicle constituted an unlawful seizure. Id. at ¶ 28. “An illegal detention presumptivel y nullifies any consent that is a product of the detention.” Id. The remaining question, then, is wh ether Slone’s consent was a product of the illegal detention or whether it was a voluntary act of his free will. Robinette III at 241. (“Even though we have determin ed that Newsome unlawfully de tained Robinette to ask for permission to search his car, our analysis is not complete. Voluntary consent, determined 13

 under the totality of the circumstances, may validate an otherwise illegal detention and search.”). {¶ 20} “* * * [O]nce an individual has been unl awfully 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 be lieve that he or she had the freedom to refuse to answer furt her questions and could in fact leave.” Ferrante , at ¶ 29. “The state has the burden to show, under th e totality of the circumstances, that * * * consent to search [a] vehicle was a voluntary act of free will, as opposed to mere submission to an officer’s superior position of authority, wh ich is not sufficient to demonstrate a free and voluntary consent.” (Citations omitted.) Id. {¶ 21} Even if we accept the trial court’s finding that Slone consented to a search of the stopped Honda, the record fails to establish that his consent was free and voluntary. Based on our review of the video, Benne tt appears to tell Slone, “You gu ys are good to go,” after handing Slone a warning ticket and his driver’s license. Slone responds by engaging Bennett in a few seconds of conversation about the vehicle’s tail light a nd license plate cover. During this time, the cruiser’s overhead lights remain flashing and Officer Hardacre remains positioned beside the Honda’s pa ssenger-side door, where Prater sits inside. After answering Slone’s questions, Bennett repeats, “You’re good to go.” Sloan begins moving toward his car and Officer Bennett moves slightly backwards toward the cruiser. Bennett then re-engages the conversation and asks whether there is an ything illegal in the Honda. Slone responds negatively. Bennett then appears to say, “You don’t care if we take a look, do you?” Slone’s response suggests surprise on his part. He shrugs slightly, gestures toward the car, and begins 14

 to reply, “I didn’t know—.” At that point, Bennett directs him to the curb and orders Prater out of the vehicle. {¶ 22} Having reviewed the video, we are unc onvinced that the ci rcumstances clearly demonstrate that a reasonable pe rson in Slone’s position would have believed at that point that he was free to refuse to give consent and could leave. We note that the defendant in Robinette
III admitted having been told by police that he was “free to go.” Robinette III at 244. Despite that fact, the Ohio Supreme Court held that the a reasonable person in the defendant’s position would not have felt free to leave. Id. at 244-246. We reach the same conclusion here. {¶ 23} Arguing against the foregoing conclu sion, the State contends Prater lacks “standing” to challenge the cons titutionality of the search and se izure of items found inside the car. The State asserts that Prater cannot object to the search becau se he lacks a “possessory or property interest in the property seized or the premises searched.” The State further argues that “[a] mere occupant of a vehicle who neither owns nor is operating a vehicle, and who maintains no property interest in the property seized, has no legitimate expectation of privacy necessary to bring a wrongful search and seizure claim.” {¶ 24} We are unpersuaded by the State’s argume nt for at least two reasons. First, as explained above, Officer Bennett’ s continued detention of the Honda after giving Slone a warning ticket and returning his driver’s license constitu ted an unlawful seizure under Robinette III . Even though he was a passenger in the vehicle, Prater was equally seized and has standing to challeng e the unlawful detention. Brendlin v. California , 551 U.S. 249, 127 S.Ct. 2400, 168 L.E.2d 132 (2007). It follows, then, that Prater also has standing to argue that the marijuana discovered under his seat, and attributed to him, was a product of that unlawful 15

 detention. State v. Carter , 69 Ohio St.3d 57, 63, 630 N.E.2d 355 (1994). (“* * * [A] passenger does have st anding to object to police conduc t which intrudes upon his Fourth Amendment protection against seiz ure of his person. If either the stopping of the car or the passenger’s removal from it is unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those cons titutional violations and to have suppressed any evidence found in the car which is their fruit.”). {¶ 25} Second, Prater had a sufficient interest in the property seized and the area searched. The record supports a finding that the marijuana discovered under the passenger’s seat belonged to him. Indeed, that is why the State charged him with marijuana possession. The record also reflects that he had an interest in the vehi cle itself. Although he was not driving and was not the registered owner of the Honda, Prater pr ovided uncontroverted testimony that the car belonged to him because he was making the payments. Therefore, we are persuaded he has sta nding to challenge the continued dete ntion and search of the vehicle. {¶ 26} Finally, the State makes a passing argument that the consent issue is immaterial because Officer Benne tt smelled marijuana when he had Prater exit the passenger side of the vehicle so he could search it. Th e State contends this odor of marijuana gave Bennett probable cause to search the car. The flaw in this argument is that, absent valid consent to search, Bennett had no au thority to continue detaining Pr ater or to order him out of the Honda. As set forth above, the traffic stop already had been completed and the continued detention was unlawful. Therefore, the smell of marijuana when Bennett approached the passenger side of the vehicle to have Prater step out coul d not supply probable cause for a search. 16

 {¶ 27} Based on the reasoning set forth above, we sustain Prater’s second assignment of error. The trial court erred in failing to suppress the mariju ana found under Prater’s seat and attributed to him. The trial court’s judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

. . . . . . . . . . . . . GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to: James F. Long John M. Ebersole Hon. Thomas M. Hanna