OH: Holding defendant’s driver’s license for 50 minutes was not a seizure

Officer does not have to tell the defendant he was free to leave for the stop to be consensual. During this stop and request for identification, the defendant went to a pay phone and made a call for somebody to pick him up. He was not told he could leave, but he wasn’t told he couldn’t (like he would know the difference). State v. Lair, 2008 Ohio 2417, 2008 Ohio App. LEXIS 2068 (5th Dist. May 19, 2008). Significant is the fact the officer had defendant’s driver’s license 50 minutes, and the partially spoken fact that defendant could not leave without it, a fact of limited value here:

[*P14] In the case sub judice, Officer Staysniak approached appellant shortly before 9:00 AM and asked to see his identification, which appellant provided. Officer Staysniak returned appellant’s identification at approximately 9:49 AM. It is crucial to note that although appellant carried a valid state identification card, he did not have driving privileges, and thus was unable to legally drive away. The record further indicates that appellant nonetheless walked over to use a pay telephone and call for a ride home. While appellant presently contends he was not free to leave the scene, Staysniak testified that he did not tell appellant he could not leave. Tr. at 12. Thus, we conclude the period of time between the officer’s arrival at CVS and the officer’s discovery of a license plate discrepancy constituted a voluntary consensual encounter, which did not implicate appellant’s constitutional rights.