State v. Herron

[Cite as State v. Herron, 2014-Ohio-3166.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25850

v. : T.C. NO. 12CR3171

CODEY S. HERRON : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :

:

..........

OPINION

Rendered on the 18th day of July , 2014.

..........

TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio
45459
Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Codey S.
 Herron,

filed July 30, 2013. Herron appeals from the trial court’s May 20, 2013 judgment entry of

conviction, entered following pleas of no contest 1 to one count of carrying a concealed

weapon (loaded, ready at hand), in violation of R.C. 2923.12(A)(2), a felony of the fourth

degree, and one count of improper handling of a firearm in a motor vehicle (loaded, no

license), in violation of R.C. 2923.16(B), also a felony of the fourth degree. One count of

receiving stolen property (firearm), in violation of R.C. 2913.51(A), a felony of the fourth

degree, was dismissed. Herron was sentenced to community control sanctions not to exceed

five years. For the following reasons, we hereby affirm the judgment of the trial court.

{¶ 2} Herron was indicted on November 21, 2012, and on December 6, 2012, he

pled not guilty. On December 20, 2012, Herron filed a Request for Intervention in lieu of

Conviction, which the State opposed. On February 4, 2013, Herron filed a Motion to

Suppress, and on February 6, 2013, he filed a Supplemental Motion to Suppress. A hearing

was held on Herron’s motion to suppress on February 22, 2013, and April 12,2013.

{¶ 3} On February 22, 2013, Brad Zollers testified that he is employed as a deputy

sheriff for Montgomery County. He stated that he is assigned to the Northland Village

Apartment complex, “so I am specifically assigned to handle all the dispatches, be proactive

and reactive to calls.” He stated that the area is a “known high-crime area where weapons

and narcotics regularly occur, crimes of violence being anywhere from assault to domestic

violence all the way up to, like felonious (sic) and stabbings and shootings.” When asked

how many of those types of crimes he has observed in the area of the complex, Zollers

1
We note that Herron’s Judgment Entry of Conviction erroneously
provides that he entered pleas of guilty.
 3

stated, “* * * when you’re talking about gun violence, you’re talking anywhere from a

simple CCW to an actual shooting. Several dozen estimate.” Zollers testified that he was

on routine patrol in the area on October 22, 2012, around 4:30 p.m., when he “observed a

white Mercury vehicle traveling south on Embassy. It caught my attention. I noticed that

the vehicle’s windshield was cracked which made the vehicle unsafe.” Zollers stated that it

was light outside at the time, and that as “the vehicle was traveling south on Embassy, I was

on Republic so I had a clear shot in front of the windshield. The crack was in the middle of

the windshield running parallel which would be obstructing the driver’s view.”

{¶ 4} According to Zollers, “the crack is in itself a problem especially if they hit a

bump or something strikes the window, due to that crack, that window is likely to crack and

expand and make the vehicle unsafe * * * .” Zollers stated that the driver was preparing to

turn left and head east on Republic. At this point, Zollers was stopped at the intersection on

Republic, just 15 to 20 feet from the vehicle. Thus, Zollers’ view of the vehicle was

unobstructed. Upon observing the vehicle, Zollers stated that he “turned around on

Republic,” and began to follow the vehicle. Zollers testified that he “ran the vehicle’s Ohio

license plate through our LEEDS system and found out who the vehicle was registered to.

And then in the area of Needmore and North Dixie Drive, I conducted a traffic stop on the

vehicle for the violation of unsafe vehicle.” Zollers stated that just prior to the stop, “[w]e

exited [the] Northland property and were just inside the township of Harrison.”

{¶ 5} According to Zollers, there were two people in the vehicle, and he

testified that he “made contact with the driver. He provided me with his Ohio driver’s

license identifying himself as Aaron Robbins the registered owner of the vehicle. I spoke
 4

with him about the reason for the traffic stop. He acknowledged the crack in the windshield

saying he understood * * * .” Zollers testified that after he “got done speaking with

Robbins, * * * I turned my attention and as I began to ask if he had any type of

identification, Mr. Herron said I knew who he was. So I said, I may know who you are but

could you identify yourself? He said [that] his name was Codey Herron.” According to

Zollers, “Mr. Robbins appeared to be a little overly nervous. I noticed his hand had been

shaking a little bit when he handed me his Ohio driver’s license. While speaking with him,

though, [Herron] would always speak up when I would ask Robbins a question.” Zollers

“found it sort of odd that every time [I] would ask Robbins a question, [Herron] would

chime in when I was specifically addressing Robbins. [Herron] seemed to be just as nervous

as Robbins.” According to Zollers, “while speaking with Robbins, I asked him if there was

anything illegal in the vehicle and [Herron] chimed up and said, no, there’s nothing in the

car. I readdressed Robbins and I said, I’m specifically speaking to you. It’s your vehicle.

I said, would you have any problem granting me consent to search the inside of this vehicle?

At the same time both of them said, yeah.” The following exchange occurred:

Q. Let me stop you for a second. Is that specifically how you asked

for consent to search the vehicle?

A. Yes, directly towards Mr. Robbins.

Q. That was the specific language that you used?

A. Yes. Specific after they both said there’s nothing illegal in the

vehicle. I readdressed I’m speaking with Mr. Robbins and then just as I said,

I asked him if he gave consent.
 5

Q. Sorry, I’m just going to go back one more time a little bit. When

you said that they both responded, who else other than Mr. Robbins

responded to your question?

A. Codey.

Q. Okay. What did Codey say?

A. Codey, well Codey initially said, no, there’s nothing in the car.

And then when I addressed Mr. Robbins about if he would grant me consent,

him and Codey both said, yeah, go ahead.

***

Q. And just for clarification, what was the driver’s answer to the

question?

A. He consented. He said, yes, you can search the car.

{¶ 6} Zollers stated that at the time he did not display his weapon or tazer, that he

did not raise his voice, and that he did not make any threats. Zollers stated that upon

obtaining Robbins’ consent to search the vehicle, he “advised him that I was going to return

to my vehicle, conduct a couple things that I needed to do and then I would return. So after

obtaining his ID, getting Codey’s information, I returned to my vehicle. As I was walking

back to my vehicle, another deputy came, responded to assist.” Zollers stated that as he

walked to his cruiser, he “observed over my right shoulder that [Herron] was looking over

his right shoulder and tracking where I was going,” while Robbins “was looking forward[,]

he was not watching where I was going.” Zollers described Herron’s conduct in the course

of the stop as “a little odd, not normal.”
 6

{¶ 7} Zollers stated that when he returned to Robbins’ vehicle he “first

made contact with Robbins, confirmed he was granting consent to search the vehicle which

he advised, yes, he was * * * .” Zollers stated that he asked Robbins to step out of the

vehicle and then “conducted a protective pat down at his consent for any weapons.” Zollers

stated that he then had Robbins stand behind the cruiser with the other deputy while he

“walked around and made contact with [Herron], same thing. I asked him to exit the

vehicle. I conducted a protective patdown with his consent and then I asked him to stand

with Robbins in front of the cruiser.” Zollers stated that he then began a search of the

vehicle on the passenger side, and he stated that in the course of his search he looked “under

the seat which is a common area where things would be hidden and right under the front

passenger seat, there’s a semi-automatic handgun.” Zollers stated that when he advised

Robbins and Herron about the weapon, “they advised they knew nothing about it.” Zollers

stated that he placed both men under arrest and into separate cruisers. He stated that he

issued a citation for the windshield violation, pursuant to R.C. 4513.02, a minor

misdemeanor.

{¶ 8} On cross-examination, Zollers acknowledged that he did not feel the

crack on the windshield or measure it. He testified, however, that he observed that the crack

was “through and through. * * * after I made the stop and I explained the reason for the stop

and [Robbins] acknowledged he understood why, I mean speaking to him looking through

you could clearly see there was a crack throughout the entire windshield, not just a surface

crack. It was on the inside and out.” Zollers stated that he did not sit in the driver’s seat of

Robbins’ vehicle to determine if the crack would actually obstruct the view of the driver.
 7

Zollers stated that an evidence technician responded to the scene and photographed the

vehicle. He stated that he spent “less than three, five minutes” talking to Robbins and Herron

before he returned to his vehicle to do a record check, and that he was in his cruiser for

“[l]ess than a minute” before returning to Robbins’ vehicle. Zollers stated that he spent a

minute each patting down Robbins and Herron and that he “began searching the area where

[Herron] was seated since that’s where I was last standing and I found the gun within a

minute.” Zollers stated that both men were “arrested for CCW and RSP. Mr. Robbins was

the only one that got a citation.”

{¶ 9} Pat Tannreuther testified that she has been employed at the Montgomery

County Public Defender’s Office for 17 years as an investigator. She stated that she

photographed Robbins’ vehicle “a couple days ago.” According to Tannreuther, Robbins

told him where she could find the car, and she “was looking for a white Mercury Grand

Marquis and I found one. When I got out and looked at the car, I didn’t notice the crack. I

had to verify that it was the correct vehicle by the license plate.” Tannreuther stated that

when she “first walked up to the vehicle on the driver’s side and I looked at the windshield, I

didn’t notice anything. As I verified the license plate and I went back to the windshield, I

noticed what appeared to be a scratch.” Tannreuther stated that the “scratch” began “on the

passenger side maybe six inches from the far passenger side window and it went across to

just right before the steering wheel area of the driver’s side.” She stated that it did not

extend through the driver’s side. According to Tannreuther, she “felt it actually on the first

side of it over in front of the driver’s window and the glass was smooth. When I checked

the other side of the scratch or crack or whatever it is, it was smooth, too. And I ran my
 8

hand all the way along it. I could feel no indentations, no sharp edges. It just appeared to

be smooth glass.” Tannreuther further stated that the “part on the passenger side appeared

to be a little bit thicker but as it approached the driver’s side, it, it all was pretty thin. But

by the time you got over to the driver’s side, * * * it just appeared to be a scratch.”

{¶ 10} Tannreuther identified photographs that she took of the vehicle.

Tannreuther testified that Exhibit C is a photo of the front of the vehicle, which was taken

“maybe four feet away from the front of the vehicle.” When asked if the “crack/scratch * *

* [is] readily apparent in that picture,” she stated, “not in this picture, no.” Tannreuther

identified Exhibit D which is also a picture of the front windshield taken at a closer range.

When asked if she “can see something in that picture,” she responded, “ * * * just barely. It

almost looks like it could be the line across the rear, the inside of the rear window but it

could be a scratch.” Tannreuther identified Exhibit H, which is another picture of the front

of the vehicle taken from “[m]aybe 15 feet” away, and she stated that no crack or scratch is

visible in the photo. Tannreuther identified Exhibits I and G, which are shots of the

windshield taken from opposite angles, and she identified Exhibit F, a photo of the front of

the windshield taken “by the front passenger side quarter panel toward the front of the

vehicle,” and she stated that “the scratch or crack appears to be over here on the passenger

side. And it goes across the vehicle and it ends up * * * right close to where the steering

wheel starts.” Tannreuther identified Exhibit E, which is “a closer view right by the

steering wheel. It’s taken from the front. I zoomed in. You actually see what appears to

be two lines, two scratches.” Tannreuther stated that the crack is not visible from 15 to 20

feet away from the vehicle.
 9

{¶ 11} On cross-examination, Tannreuther stated that she took the photos between

10:30 and 11:00 am, and that it was “a little overcast” at the time. She stated that the

vehicle was locked and the windows were up, and that she did not feel the inside of the

windshield. While responding to questions about Exhibit D, the court asked Tannreuther to

“place an arrow at the point at which * * * you think the line ends so just simply use my blue

pen and point to the arrow at the precise point where you believe the line ends in this

photograph.” In doing so, Tannreuther stated that the line “does appear to possibly go over

towards the driver’s side of the steering wheel.” On re-direct examination, Tannreuther

stated that the scratch did not obstruct her view into the vehicle, and she stated that the

scratch “seemed to be so small, I wouldn’t think that it would obstruct my view at all.”

{¶ 12} On April 12, 2013, Zollers again testified. He identified State’s Exhibit 3,

a photograph of the windshield of the vehicle, taken from the front of the vehicle, depicting a

scratch beginning to the left of the passenger seat and ending past the center of the steering

wheel. Zollers stated that the photo was taken by an evidence technician. The court

provided Zollers with a pen, and he circled the scratch in the photograph. According to

Zollers, “* * * as far as the size of the crack, all the way across the window because at any

time it could crack and, like, obstruct his view or it could fall in and hurt anybody inside the

vehicle. That’s what makes it unsafe.” Zollers identified State’s Exhibit 4, another

photograph of the windshield, taken from the passenger side of the car, and he again circled

the scratch, testifying, “I mean, due to the angle of - - I’m no evidence technician. I

haven’t been trained in that, the picture taking, but the close up and the angle, it’s not as

visible.” Finally, Zollers identified Exhibit 5, a photograph of the scratch taken from the
 10

driver’s side of the vehicle, and he circled the scratch with a pen.

{¶ 13} On cross-examination, Zollers stated that he observed the evidence

technician photograph the car, and he estimated that the technician was five to ten feet away

from the vehicle when he did so. When asked whether the scratch was “uniform in width

all the way across the windshield,” Zollers replied, “I can tell you it was a through and

through crack.” He further testified, “When I was talking to the driver and you could look

through, you could see that the inside of the windshield was cracked as well as the outside.”

Finally, Zollers stated, “* * * Exhibit 3 clearly describes, you know, perfectly. It’s exactly

why I stopped the vehicle. And 4 and 5 are the same thing as 3. It just looks a little

different, I guess, because of maybe the angle of the front windshield and who knows?

The light conditions and where he was standing. * * * .”

{¶ 14} On redirect examination, Zollers stated that he has stopped vehicles for

cracked windshields in the past, and that based upon his training and experience, the crack

he observed in Herron’s windshield “was the probable cause for the traffic stop.” He stated

that the windshield was “clearly unsafe.”

{¶ 15} At the conclusion of the hearing, the court ordered post-hearing briefs.

Herron filed his brief on April 29, 2013. Therein he asserted that “[b]ecause the officer did

not reasonably believe the alleged crack in the windshield amounted to an unsafe condition,

the officer did not have reasonable articulable suspicion to stop the vehicle,” and “[e]ven if

the court finds there was reasonable articulable suspicion to initiate the traffic stop, there

was no reasonable suspicion to detain Mr. Herron for the purpose of searching the vehicle.”

Herron asked the court to find that he was unlawfully seized and unlawfully detained. On
 11

May 10, 2013, the “State’s Response to Defendant’s Post Motion to Suppress Brief” was

filed. The State asserted that it “proved its burden by clear and positive evidence that the

defendant was not unreasonably detained. The deputy had reasonable and articulable

suspicion for pulling the vehicle over. The deputy then obtained valid consent to search the

vehicle during the process of issuing a citation.”

{¶ 16} In its decision overruling Herron’s motion to suppress, the trial court

determined as follows:

***

This Court is fully persuaded by State’s Response to Defendant’s Post

Motion to Suppress Brief * * *. For the reasons set forth in the State’s

Response, this Court finds:

(1) Officer Zollers had reasonable articulable suspicion that the crack

in the windshield of the vehicle in which the Defendant was a passenger

rendered the vehicle to be in “such an unsafe condition as to endanger any

person,” in violation of R.C. 4513.02(A). Thus, Officer Zollers’ stop of the

vehicle was lawful; and

(2) Officer Zollers was conducting a lawful consensual search of the

vehicle. During this lawful search the Defendant was being lawfully

detained.

Therefore, the Defendant’s Motion to Suppress is overruled.

Herron entered his pleas of no contest on June 13, 2013.

{¶ 17} Herron asserts one assignment of error, with subparts, as follows:
 12

THE TRIAL COURT ERRED IN HOLDING THAT THE OFFICER

WAS JUSTIFIED IN STOPPING THE VEHICLE AND DETAINING

DEFENDANT TO SEARCH THE VEHICLE, IN VIOLATION OF HIS

FOURTH AND FOURTEENTH AMENDMENT RIGHTS.

a. The Trial court Incorrectly Found that the Officer had a

Reasonable and Articulable Suspicion that the minor crack in the windshield,

of which Appellant was a passenger (sic), rendered the vehicle in such an

unsafe condition as to endanger any person.

b. The Trial Court Incorrectly Found that the Defendant was being

lawfully detained during the search and that the search was consensual.

{¶ 18} As this Court has previously noted:

“Regarding a motion to suppress, ‘the trial court assumes the role of

trier of facts and is in the best position to resolve questions of fact and

evaluate the credibility of witnesses.’ State v. Hopfer (1996), 112 Ohio

App.3d 521, 548, 679 N.E.2d 321, quoting State v. Venham (1994), 96 Ohio

App.3d 649, 653, 645 N.E.2d 831. The court of appeals must accept the trial

court's findings of fact if they are supported by competent, credible evidence

in the record. State v. Isaac, Montgomery App. No. 20662, 2005–Ohio–3733,

2005 WL 1707019, citing State v. Retherford (1994), 93 Ohio App.3d 586,

639 N.E.2d 498. Accepting those facts as true, the appellate court must then

determine, as a matter of law and without deference to the trial court's legal

conclusion, whether the applicable legal standard is satisfied. Id.” State v.
 13

Demus, 192 Ohio App.3d 181, 186, 2011–Ohio–124, appeal not allowed, 128

Ohio St.3d 1484, 2011–Ohio–2055.

State v. Watson, 2d Dist. Montgomery No. 24546, 2011-Ohio-5213, ¶ 5.

{¶ 19} R.C.4513.02(A) provides: “No person shall drive, move, or cause or

knowingly permit to be driven or moved, on any highway any vehicle or combination of

vehicles which is in such unsafe condition as to endanger any person.” R.C. 4513.02(B)

provides: “When directed by any state highway patrol trooper, the operator of any motor

vehicle shall stop and submit such motor vehicle to an inspection under division (B)(1) or

(2) of this section, as appropriate, and such tests as are necessary.” Ohio Administrative

Code 4501:2-1-11, provides: “Every motor vehicle shall be equipped with safety glass as

required in Section 4513.26 of the Revised Code: Such glass shall be free of discoloration or

diffusion, cracks, and unauthorized obstructions.”

{¶ 20} In State v. Latham, 2d Dist. Montgomery No. 20302, 2004-Ohio-2314, ¶

14, this Court addressed the issue of whether or not a cracked windshield gives rise to a

reasonable suspicion of a violation of R.C. 4513.02(A) and noted as follows:

Ohio state courts have disagreed as to whether a crack in the

windshield of a vehicle justifies a stop pursuant to R.C. 4513.02(A). State v.

Wilhelmy (May 17, 2000), Hamilton App. No. C–990730 (holding that a

police officer, who was not a state highway patrolman, did not have a

reasonable suspicion to stop a vehicle whose windshield was cracked absent

any evidence that the crack posed a threat to personal safety); State v. Glinsey
 14

(Aug. 20, 1999) Williams App. No. WM–98026 (holding that a state highway

patrolman did not have reasonable suspicion to stop a vehicle as unsafe when

it had a crack in the windshield that extended four inches below the shaded

portion of the windshield); State v. Repp, Knox App. No. 01–CA–11,

2001–Ohio–7034 (finding that a one to two foot long crack across the middle

of the driver's side windshield of a vehicle was sufficient to create a

reasonable suspicion to stop a vehicle as unsafe pursuant to R.C. 4513.02(A)

in a local police officer); State v. Heiney, Portage App. No.2000–P–0081,

2001–Ohio–4287 (finding that a one foot long spider crack in the middle of a

vehicle's windshield was “substantial” and gave a state highway patrolman

reasonable suspicion that the crack rendered the vehicle unsafe and a

violation of R.C. 4513.02); State v. Goins (May 24, 1996), Ross App. No.

95CA2106 (finding that a state highway patrolman had reasonable suspicion

to stop a vehicle with a large linear crack in the front windshield for an

equipment violation pursuant to R.C. 4513.02(A) and (B)); State v. Imboden

(Nov. 16, 1993), Ross App. No. 92CA1901 (stating that a state highway

patrolman did not have reasonable suspicion to stop a vehicle whose

windshield was cracked on the passenger side of the vehicle, did not impair

the driver's vision, and no evidence was presented that the cracked windshield

affected the safeness of the vehicle). We note that in these opinions a crack in

the windshield is generally found to amount to a reasonable suspicion of a

violation of R.C. 4315.02(A) only when the crack is “substantial” or impairs
 15

the driver's vision. Id. Some courts have stated that the combination of R.C.

4513.02(A) and O.A.C. 4501:2–1–11 make it a violation to operate a vehicle

with any cracks in the windshield because administrative agencies' rules have

the full force and effect of law when issued pursuant to statutory authority.

Repp, supra citing Doyle v. Ohio Bureau of Motor Vehicles (1990), 51 Ohio

St.3d 46, 554 N.E.2d 97; Goins, supra. Although the Repp court stated that a

crack in a windshield violates R.C. 4513.02(A), the court continued on to

state that the size and placement of the crack is what created the reasonable

suspicion that R.C. 4513.02(A) was being violated. Repp, supra.

{¶ 21} The facts in Latham were as follows:

* * * the officers testified that the crack in Latham's windshield had

been “not a very bad crack” but was “noticeable.” The only evidence that the

officers had a reasonable suspicion that the vehicle violated R.C. 4513.02 as

an unsafe vehicle was Officer Simpson's statement under cross examination

that he believed “it was an unsafe vehicle.” (Tr. 19). The owner of the truck,

Mrs. Latham, testified at the motion to suppress hearing about the truck and

the crack in its windshield. Mrs. Latham testified that she had purchased the

truck approximately three years prior and at the time the truck had had a crack

in the windshield. (Id. at 46, 554 N.E.2d 97). Mrs. Latham entered into

evidence pictures of the truck with a small, horizontal crack just above the

windshield wiper between the driver's side of the vehicle and the middle of

the vehicle. (Id. at 48, 554 N.E.2d 97). Mrs. Latham further testified that
 16

when she had driven the vehicle the crack did not obstruct her vision at all.

(Id. at 49, 554 N.E.2d 97).

Id., ¶ 15.

{¶ 22} This Court noted that the matter was distinct from Goins, since the officers

who stopped Latham were Dayton police officers, and not state highway patrolmen who are

authorized to conduct stops for inspection purposes pursuant to R.C. 4513.02(B), and that

“thus the issue is whether they had a reasonable suspicion that Latham was violating R.C.

4513.02(A) by operating an unsafe vehicle.” Id., ¶ 16.

{¶ 23} This Court concluded as follows:

* * * [A]s the simple appearance of a crack in a windshield does not

give rise to a reasonable suspicion of a violation of R.C. 4513.02(A), we must

determine whether the particular facts surrounding the crack in the windshield

in this case gave rise to a reasonable suspicion that Latham's truck was in an

unsafe condition such that its operation would endanger persons. The trial

court characterized the crack in Latham's truck as a “relatively short,

horizontal, low crack on this truck windshield.” Having reviewed the hearing

testimony and the photographs of the truck's windshield entered into

evidence, we agree with the trial court. The small crack in the windshield is

low and would not appear to obstruct the vision of the driver of the truck.

Considering the minor nature of the crack in the windshield, we cannot find

that the officers had a reasonable suspicion that the small windshield crack

had rendered the operation of the truck unsafe and in violation of R.C.
 17

4513.02(A).

Id., ¶ 19.

{¶ 24} In contrast, in Repp, 2001 WL 1674100, upon which the State relied in its

post-hearing brief, the Fifth District affirmed the trial court’s denial of Repp’s motion to

suppress after Repp was stopped when a police officer noticed “a large crack across the

middle of the driver’s side windshield.” Id., *1. The officer testified that he stopped

Repp’s vehicle “because the cracked windshield was unsafe,” and the Fifth District noted

that photographs in the record showed “a substantial crack on the driver’s side of the front

windshield. Said crack appears to be between one and two feet long and extends into the

driver’s viewing area. The size and placement of this crack was sufficient to create a

reasonable suspicion that R.C. § 4513.02 was being violated.” Id., * 2.

{¶ 25} Having reviewed the record, including the photographs submitted by the

parties, we conclude that the particular facts surrounding the crack in Robbins’ windshield

gave rise to a reasonable suspicion that Robbins’ vehicle was in an unsafe condition, such

that its operation would endanger persons in violation of R.C. 4513.02. Zollers testified

that he observed the crack from “a clear shot in front of the windshield,” at a distance of 15

to 20 feet, and that it was “in the middle of the windshield running parallel which would be

obstructing the driver’s view.” He stated that if something struck the windshield, “due to

that crack, that window is likely to crack and expand and make the vehicle unsafe.” Zollers

viewed the crack from the inside of the vehicle as well as from the outside, and he stated that

the crack was “through and through the windshield” and not a minor surface crack. Zollers

stated that Robbins acknowledged the crack as the basis for the stop. In each of the State’s
 18

Exhibits, Zollers drew a circle around the crack, and the photos clearly depict it in the

middle of the windshield running from the passenger’s side of the vehicle into what would

be the driver’s field of vision on the driver’s side. The crack appears to exceed the distance

of two feet in length. While Tannreuther characterized the damage to the windshield as

minor, all of the head-on photos she took of the windshield reflect a significant crack across

the middle of the windshield. Tannreuther did not view the crack from the inside of the

vehicle. Since the nature of the crack herein is not small or minor, as in Latham, but

rather is a substantial crack extending into the driver’s viewing area, as in Repp, the trial

court correctly determined that Zollers’ stop of Robbins’ vehicle was based upon a

reasonable, articulable suspicion that the vehicle was in an unsafe condition.

{¶ 26} Regarding the search of the vehicle and Herron’s detention, we agree with

the trial court that the search was consensual whether or not Herron was lawfully detained.

In its post-hearing brief, the State directed the court’s attention to State v. Watts, 2d Dist.

Montgomery No. 21982, 2007-Ohio-2411, in which this Court concluded that Watts’

consent to search his vehicle was given freely and voluntarily in the course of a lawful stop

for a window tint violation. At the time of the stop, Watts “was very nervous, more so than

most people who are stopped for traffic violations,” and the officer’s request to search the

vehicle “was based on [Watts’] extraordinary nervousness.” Id., ¶ 3-4. This Court noted

as follows:

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;
 19

in other words, while the driver is lawfully detained for the traffic violation.

State v. Loffer, Montgomery App. No. 19594, 2003-Ohio-4980; State v.

Swope (Nov. 9, 1994), Miami App. No. 93CA46. On 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.

State v. Retherford (1994), 93 Ohio App.3d 586; State v. Robinette, 80 Ohio

St.3d 234, 1997-Ohio-343. Any consent to search obtained during an

unlawful detention is tainted and may be invalid. Retherford. 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. Robinette.

Id., ¶ 12.

{¶ 27} Zollers testified that he approached the vehicle and obtained Robbins’

driver’s license and advised him of the purpose of the stop (which Robbins’ acknowledged).

As in Watts, Robbins was “overly nervous,” and Herron “seemed to be just as nervous as

Robbins” in the course of the stop. Zollers stated that Herron “would always speak up

when [Zollers] would ask Robbins a question.” When Zollers asked Robbins if there was

anything illegal in the car, Herron “chimed up and said no, there’s nothing in the car.”

Zollers readdressed Robbins specifically, stating, “* * * I’m speaking to you. It’s your

vehicle. * * * would you have any problem granting me consent to search the inside of this
 20

vehicle?” Zollers testified that Robbins and Herron “both said, yeah, go ahead,” in response

to his question. Zollers further testified that he did not raise his voice, display a weapon, or

make any threats to Robbins. Zollers stated that he spent “less than three, five minutes”

initially talking to Robbins and Herron and “less than a minute” performing the record check

in his cruiser. Upon his return to Robbins’ vehicle, Zollers again confirmed Robbins’

consent to search the car, and in the course of the search he found the weapon. Since

Robbins’ consent was obtained in the course of a lawful stop based upon the cracked

windshield, Herron’s Fourth Amendment rights were not violated. Herron’s assigned error

is overruled, and the judgment of the trial court is affirmed.

..........

FROELICH, P.J. and HALL, J., concur.

Copies mailed to:

Tiffany C. Allen
Daniel F. Getty
Hon. Dennis J. Langer