[Cite as State v. Knapp, 2017-Ohio-2808.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
ANTHONY J. KNAPP                            :       Case No. 16-CA-00009
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Perry County Court of
                                                    Common Pleas, Case No. 15-CR-0068




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 15, 2017



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOSEPH A. FLAUTT                                    JAMES S. SWEENEY
Prosecuting Attorney                                James Sweeney Law, LLC
111 North High Street                               341 South Third Street, Suite 100
P.O. Box 569                                        Columbus, Ohio 43215
New Lexington, Ohio 43764-0569
Perry County, Case No. 16-CA-00009                                                    2

Baldwin, J.

       {¶1}   Defendant-appellant Anthony J. Knapp appeals the overruling by the Perry

County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State

of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On October 20, 2015, the Perry County Grand Jury indicted appellant on

one count of aggravated possession of drugs in violation of R.C. 2925.11 (A) and

(C)(1)(a), a felony of the fifth degree, and one count of tampering with evidence in violation

of R.C. 2921.12(A)(1), a felony of the third degree. At his arraignment on January 21,

2016, appellant entered a plea of not guilty to the charges.

       {¶3}   On May 5, 2016, appellant filed a Motion to Suppress. Appellant, in his

motion, argued that the “statements obtained by law enforcement in their custodial

interrogation of him were obtained without following the required procedural safeguards

of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.(2d) 694 (1966)…”               A

hearing on appellant’s motion was held on June 14, 2016.

       {¶4}   At the hearing, Sergeant David Briggs of the Perry County Sheriff’s Office

testified that he was on patrol as a deputy on June 11, 2015 and was in uniform in a

marked cruiser. He testified that he observed a Pontiac Grand Prix that, a few months

earlier, he had observed at residences known for or suspected of narcotics trafficking.

Sergeant Briggs testified that he ran the vehicle registration and that while he was waiting

for information, he saw the vehicle pull into a Circle K and the driver and passenger exit

the same and walk into the store. He testified that appellant was the driver.
Perry County, Case No. 16-CA-00009                                                  3


       {¶5}   After learning that the vehicle registration was expired, Sergeant Briggs

waited for appellant and his passenger to get back into the vehicle. He testified that he

followed the vehicle and that, after it came to a complete stop, the passenger jumped out

and began running towards the back of the vehicle. Sergeant Briggs then activated his

lights, ordered the passenger back into the vehicle and approached appellant. According

to him, appellant appeared to be nervous and his hands were trembling. Appellant

admitted that his driver’s license was suspended and further admitted to knowing that his

vehicle registration was expired. While appellant was under several license suspensions,

his passenger had a felony warrant out of Fairfield County on a narcotics violation. The

passenger was placed under arrest.

       {¶6}   Sergeant Briggs testified that he called Chief Ball to secure the passenger

and then retrieved his K-9 from his cruiser to conduct a free air search of appellant’s

vehicle. The Sergeant was unable to secure individuals in his own cruiser or transport

them due to having the K-9 in his cruiser. While the Sergeant was arresting the

passenger, appellant was in the driver’s seat of the vehicle. When asked the result of the

search, Sergeant Briggs testified that his K-9 indicated that there were illegal narcotics

on the driver’s side of appellant’s vehicle. The Sergeant then searched appellant’s vehicle

after having appellant exit the same and stand at the back of the vehicle. Appellant, who

was informed that the K-9 had alerted to the presence of illegal narcotics, was not told

that he was under detention or could not leave at that time. During a search of appellant’s

vehicle, Sergeant Briggs found two jewelry bags in the liquid contained within a polar pop

cup which was in the center console of the vehicle. He previously had seen appellant exit

the store with a polar pop cup in his hand. When asked if the polar pop cup was his,
Perry County, Case No. 16-CA-00009                                                    4


appellant admitted that it was and told Sergeant Briggs that it contained

methamphetamines. Appellant told him that he had put the methamphetamines in the cup

when he was being pulled over.

       {¶7}   According to Sergeant Briggs, appellant, prior to the initial questioning, was

not told that he was being detained and was not free to leave and was not handcuffed.

He further testified that appellant was not placed in the back of his cruiser and never

asked if he could leave. Before interviewing appellant for the second time, Sergeant

Briggs advised appellant of his Miranda rights. After the second interview, appellant was

arrested.

       {¶8}   On cross-examination, Sergeant Briggs admitted that during the air search

of appellant’s vehicle, appellant, for reasons of officer safety, would not have been

allowed to get out of his vehicle.

       {¶9}   At the hearing, appellant testified that after the K-9 alerted to drugs and he

was ordered to get out of his vehicle, he did not feel like he had a choice. He testified that

he thought that he would have been “jerked out of the vehicle” if he did not listen and

expected to be put in the back of the cruiser. Transcript at 32. Appellant further testified

that he did not feel that he could have walked away.

       {¶10} The trial court, as memorialized in a Judgment Entry filed on July 12, 2016,

denied appellant’s Motion to Suppress, finding that appellant was not in custody at the

time of the initial questioning and that, therefore, Sergeant Briggs’ initial questioning of

appellant did not require Miranda warnings.

       {¶11} Thereafter, on July 14, 2016, appellant withdrew his former not guilty plea

and entered a plea of no contest to both charges. The trial court found appellant guilty.
Perry County, Case No. 16-CA-00009                                                   5


Pursuant to a Judgment Entry filed on July 29, 2016, appellant was placed on community

control for a period of four (4) years with the condition that he attend and successfully

complete the program at the SEPTA Center in Nelsonville, Ohio. Appellant was also fined

$1,000.00, his driver’s license was suspended for a period of six (6) months and he was

ordered to perform 100 hours of community service.

       {¶12} Appellant now raises the following assignment of error on appeal:

       {¶13} THE     TRIAL     COURT      COMMITTED         REVERSIBLE        ERROR      BY

OVERRULING APPELLANT’S MOTION TO SUPPRESS STATEMENTS MADE WHILE

APPELLANT WAS IN CUSTODY.

                                                 I

       {¶14} Appellant, in his sole assignment of error, argues that the trial court erred in

failing to suppress statements that appellant made to Sergeant Briggs while appellant

was in custody. We disagree.

       {¶15} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 1996-Ohio-134, 661

N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they

are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court

must independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State
Perry County, Case No. 16-CA-00009                                                   6

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

       {¶16} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See, Williams, supra.

       {¶17} Finally, an appellant may argue the trial court has incorrectly decided the

ultimate or final issues raised in a motion to suppress. When reviewing this type of claim,

an appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case. State

v. Curry, 95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994).

       {¶18} Appellant, in the case sub judice, argues that his Motion to Suppress should

have been granted because he was in custody at the time of his initial interrogation by

Sergeant Briggs and was not Mirandized at such time.              The State may not use

statements, whether exculpatory or inculpatory, stemming from custodial interrogation of

the defendant unless it demonstrates the use of procedural safeguards effective to secure

the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S .Ct.

1602, 16 L.Ed.2d 694 (1966). Not all questioning, however, rises to the level of “custodial

interrogation.”
Perry County, Case No. 16-CA-00009                                                    7


       {¶19} Custodial interrogation is “questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom of action

in any significant way. State v. McKinley, 5th Dist. Delaware No. 15 CAA 06 0048, 2016–

Ohio–191, ¶ 17, citing Miranda, supra, 384 U .S. at 444. In Thompson v. Keohane, the

Court offered the following description of the Miranda custody test:

                 Two discrete inquiries are essential to the determination: first, what

       were the circumstances surrounding the interrogation; and second, given

       those circumstances, would a reasonable person have felt he or she was

       not at liberty to terminate the interrogation and leave. Once the scene is set

       and the players' lines and actions are reconstructed, the court must apply

       an objective test to resolve the ultimate inquiry: was there a formal arrest or

       restraint on freedom of movement of the degree associated with a formal

       arrest.

       {¶20} Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995); accord, Yarborough v. Alvarado, 541 U.S. 652, 653, 124 S.Ct. 2140, 158 L.Ed.2d

938 (2004).

       {¶21} The police and courts must “examine all of the circumstances surrounding

the interrogation,” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128

L.Ed.2d 293 (1994), including those that “would have affected how a reasonable person”

in the suspect's position “would perceive his or her freedom to leave,” Id. at 325. However,

the test involves no consideration of the particular suspect's “actual mindset.”

Yarborough, supra, 541 U.S. 652 at 667; accord, State v. Mason, 82 Ohio St .3d 144,
Perry County, Case No. 16-CA-00009                                                   8

153, 1998–Ohio–370, 694 N.E.2d 932; State v. Gumm, 73 Ohio St.3d 413, 429, 1995–

Ohio–24, 653 N.E.2d 253.

       {¶22} Traffic stops such as the one at issue here do not rise to the level of “formal

arrest.” Thus, generally in the course of an ordinary traffic stop, Miranda rights are not

implicated because custodial interrogation does not occur. In Berkemer v. McCarty, 468

U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court held that roadside

questioning of a motorist detained pursuant to a routine traffic stop does not constitute

“custodial interrogation” under the rule announced in Miranda, supra. However, once a

traffic stop evolves beyond the “ordinary,” questioning may rise to the level of custodial

interrogation under certain circumstances. In Pennsylvania v. Bruder, 488 U.S. 9, 109

S.Ct. 205, 102 L.Ed.2d 172 (1988), the Supreme Court held that an ordinary traffic stop

during which the police officer asked the driver a modest number of questions at a location

visible to passing motorists did not involve custody for purposes of Miranda. The Court

noted its holding in Berkemer applied only to ordinary traffic stops, but observed a motorist

“might properly” be found to have been placed “in custody” for purposes of Miranda

safeguards where he was detained for over one-half hour and subjected to questioning

while in a patrol car. Bruder, supra, at 11, f.n. 2. The Court noted that Berkemer applies

only to “ordinary traffic stops” and not to the “unusual traffic stop” where a motorist is

subjected to “prolonged detention” while in a patrol car.

       {¶23} The Ohio Supreme Court has noted a suspect need not be under arrest to

be “in custody” for Miranda purposes. State v. Farris, 109 Ohio St.3d 519, 2006–Ohio–

3255, 849 N.E.2d 985, ¶ 13, citing Berkemer, supra, 468 U.S. at 420. In Farris, after

stopping a driver for speeding, a police officer noticed the odor of burnt marijuana coming
Perry County, Case No. 16-CA-00009                                                  9


from inside the car. The officer asked the driver to step out of the car, patted the driver

down, and placed him in the front seat of the patrol car. Without providing Miranda

warnings, the officer asked the driver about the smell of marijuana and told him he was

going to search the car. At that point, the driver admitted that a marijuana pipe was in a

bag in the trunk.

       {¶24} The Ohio Supreme Court held “the officer's treatment of Farris after the

original stop placed Farris in custody for practical purposes”. Id. at ¶ 14. The Court,

quoting Berkemer, held the only relevant inquiry in determining whether a person is in

custody is “how a reasonable [person] in the suspect's position would have understood

[their] situation.” Id. The Court found that a reasonable person in Farris's position would

have understood himself to be in custody of a police officer, because (1) the officer patted

down Farris; (2) took his car keys; (3) instructed him to enter the cruiser; and (4) he told

Farris that he was going to search Farris's car because of the scent of marijuana. Id. The

Court held that the driver's pre-warning and post-warning statements were inadmissible.

       {¶25} We find the recent case of State v. Lukjare, 5th Dist. Ashland No. 15–COA–

038, 2016-Ohio-4613 to be instructive. In Lukjare, after the appellee was stopped for

speeding, the Trooper noticed a strong odor of cologne or deodorizer emanating from the

vehicle and that the appellee was nervous and wouldn't make eye contact. The Trooper

asked the appellee to exit the vehicle and placed him in the rear of the patrol car for the

purpose of separating the appellee from the strong odor in the vehicle. The appellee was

patted down but not handcuffed before being placed in the cruiser.

       {¶26} A Deputy arrived on the scene approximately 13 minutes into the traffic stop

with K–9 officer Nicky, opened the back door of the patrol car to speak to the appellee
Perry County, Case No. 16-CA-00009                                                    10


and told him he was a narcotics officer there to walk his dog around the vehicle. The

appellee then stated there were drugs in the vehicle. Marijuana and drug paraphernalia

were located in bags in the rear hatch of the car. The appellee said the drugs were his.

       {¶27} The appellee, who was not Mirandized at any time throughout the stop and

remained seated in the rear of the patrol car, filed a Motion to Suppress, arguing that he

was in custody. The trial court granted the motion and the State of Ohio appealed. This

Court reversed the judgment of the trial court, finding that the appellee was not in custody

and that the Motion to Suppress should not have been granted. This Court noted that the

appellee was not handcuffed, his keys were not taken away, and he was not subjected to

a lengthy detention.

       {¶28} In the case sub judice, the stop was an ordinary traffic stop. Appellant was

asked to exit his vehicle prior to the search and was not placed in a police cruiser.

Appellant was not handcuffed; his keys were not taken away; nor was he subjected to a

lengthy detention. Moreover, appellant was not told that he was being detained and was

not free to leave.

       {¶29} Based on the foregoing, we conclude that appellant’s statements to law

enforcement are admissible because appellee was not subject to custodial interrogation

during the time of the initial interrogation. We find, therefore, that the trial court did not

err in denying the Motion to Suppress.

       {¶30} Appellant’s sole assignment of error is, therefore, overruled.
Perry County, Case No. 16-CA-00009                                         11


      {¶31} Accordingly, the judgment of the Perry County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
