[Cite as State v. Benton, 2018-Ohio-1296.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105840




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    TYRONE BENTON
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-611910-A

        BEFORE:          Laster Mays, Kilbane, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: April 5, 2018
                               -i-
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Anne Kiran Mikhaiel
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

      {¶1} Defendant-appellant Tyrone Benton (“Benton”) appeals the trial court’s

decision to deny his motion to suppress evidence, reverse his conviction, and find him not

guilty. We affirm the trial court’s decision.

      {¶2} Benton was charged with one count of having a weapon while under

disability in violation of R.C. 2923.13(A)(2). He pleaded no contest and was sentenced

to a 36-month suspended prison sentence, 12 months of community control sanctions, and

to pay a $250 fine along with court costs of $100.

I.    Facts

      {¶3} On November 22, 2017, Garfield Heights police officers responded to a

dispatched call regarding a shooting and homicide at Skills Barbershop. Officer Bryan

Cwiklinski (“Officer Cwiklinski”) testified at the suppression hearing that he arrived at

the barbershop as the homicide victim was being taken out of the barbershop into the

ambulance.    (Tr. 18.)   Officer Cwiklinski entered the barbershop and observed three

males, one of which was Benton. (Tr. 19.) After Officer Cwiklinski determined that

the barbershop was an active crime scene, he instructed all three men to exit the

barbershop. (Tr. 19.) Once outside, Officer Cwiklinski spoke to one of the men and

patted him down for weapons. (Tr. 21.) During this time, Officer Cwiklinski observed

Benton leaving the barbershop.     Benton threw a backpack into a vehicle.       (Tr. 21.)
Officer Cwiklinski asked Benton what he threw into the car, and Benton told him it was

just books. (Tr. 23.)

       {¶4} Officer Cwiklinski informed two detectives that arrived at the scene,

Detectives Biegacki and Herron that he saw Benton leave the barbershop and place a

backpack into a vehicle.      (Tr. 24.)   Detective Biegacki testified that when Officer

Cwiklinski informed him about the backpack, he was concerned because at that point he

“didn’t know what it was, could have been evidence; could have been a firearm; could

have been anything related to this homicide, we didn’t know.”        (Tr. 47.)

       {¶5} Detective Biegacki asked Benton if there was a firearm in the backpack, and

Benton answered yes.     (Tr. 48.)   Detective Biegacki testified, “[d]o you mind if we go

into your car and get this weapon, and he was cooperative. And so I had Detective Herron

give him a consent form, which he filled out.”        (Tr. 48-49.)

       {¶6} Detective Herron testified that he approached Benton with a consent-

to-search form.   (Tr. 76.)   Detective Herron stated, “[a]t the very bottom of that consent

form there is something I read, and I read on every consent, because consents are always

challenged.   So I read the consent form to him and I reiterate during the consent, if we’re

executing it, he can stop at any time.”   (Tr. 76.)

       {¶7} After finding a second gun inside another vehicle, and receiving conflicting

stories from all men, the police arrested the three men.      After obtaining a search warrant,

the police searched Benton’s vehicle.       They found a brown backpack containing a

hi-point 9mm pistol and a loaded magazine on the
passenger side of the vehicle seat.

       {¶8} Benton testified at the suppression hearing as well.          He stated that he

initially denied the police requested to search his vehicle but was told that “this is a

murder scene now and that we are going to check the car. We are going to get a warrant.

We are going to seize the car. We are going to confiscate it and we are going to lock you

up if you don’t sign this consent form.” (Tr. 103.)

       {¶9} Benton was arrested and charged with having a weapon while under

disability. He filed a motion to suppress the gun evidence. The suppression hearing

was heard on April 24, and 26, 2017. Benton’s motion to suppress was denied. As a

result, Benton filed this appeal and asserts one assignment of error for our review:

       I.      The trial court improperly denied the appellant’s motion to suppress
               evidence, in violation of his Fourth and Fifth Amendment Rights of
               the United States Constitution.

II.    Motion to Suppress

       A.      Standard of Review

       {¶10}    When the appellate court reviews a motion to suppress it presents a mixed

question of law and fact.    State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of

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

credibility.   State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995).              A

reviewing court must defer to the trial court’s factual findings if competent, credible

evidence exists to support those findings. Burnside at ¶ 8.     However, once an appellate
court has accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. Id. at ¶ 9. In other words, the

application of the law to the trial court’s findings of fact is subject to a de novo standard

of review. Id.    State v. Jones, 8th Dist. Cuyahoga No. 102318, 2015-Ohio-4694, ¶ 26.

       B.        Law and Analysis

       {¶11} In Benton’s sole assignment of error, he contends that the trial court erred in

improperly denying his motion to suppress the gun evidence. Specifically, he argues

that the police violated his constitutional rights to be protected from unreasonable

searches and seizures by the government. Benton contends that the police did not have

probable cause to search his car or backpack, and that he was coerced into signing a

consent to search.

       The Fourth Amendment to the United States Constitution protects “the right
       of the people to be secure in their persons, houses, papers, and effects,
       against unreasonable searches and seizures,” and provides that “no warrants
       shall issue, but upon probable cause, supported by oath or affirmation, and
       particularly describing the place to be searched, and the persons or things to
       be seized.” Ohio Constitution, Article I, Section 14, is nearly identical to its
       federal counterpart. State v. Kinney, 83 Ohio St.3d 85, 87, 698 N.E.2d 49
       (1998).

State v. Blevins, 2016-Ohio-2937, 65 N.E.3d 146, ¶ 18 (8th Dist.).

       {¶12} There are exceptions to the Fourth Amendment protection against

unreasonable searches and seizures.       One of the well-recognized exceptions to the

warrant requirement is “[t]he existence of exigent circumstances, coupled with probable

cause.”     State v. Harris, 8th District Cuyahoga No. 84591, 2005-Ohio-399, ¶ 32, citing

Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The
United States Supreme Court has recognized “four situations which form the appropriate

standard for determining the existence of exigent circumstances:    (1) hot pursuit of a

fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent escape, and

(4) the risk of danger to police or others. State v. Adams, 7th Dist. Mahoning No. 08

MA 246, 2011-Ohio-5361, ¶ 34.”      State v. Thomas, 10th Dist. Franklin No. 14AP-185,

2015-Ohio-1778, ¶ 15.   When the delay associated with obtaining a warrant would result

in the concealment or destruction of evidence, the exigent circumstances exception to the

Fourth Amendment’s warrant requirement may apply.          State v. Johnson, 187 Ohio

App.3d 322, 931 N.E.2d 1162, ¶ 14 ( 2d Dist.), citing State v. Motley, 9th Dist. Summit

No. 24182, 2008-Ohio-6937.       State v. Schneider, 8th Dist. Cuyahoga No. 96953,

2012-Ohio-1740, ¶ 18.

      {¶13} Generally, under the exigent circumstances exception, there must be

“compelling reasons” or “exceptional circumstances” to justify a warrantless search.

McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The

appropriate inquiry is whether, based on the totality of the circumstances, it was

reasonable for the officers to believe that an exigent or emergency situation existed.

State v. Applegate, 68 Ohio St.3d 348, 626 N.E.2d 942 (1994).   State v. Booker, 8th Dist.

Cuyahoga No. 96935, 2012-Ohio-162, ¶ 17.

      {¶14} Benton argues that the police did not have probable cause to question him

about the backpack because they knew that he was not the shooter. “[T]he standard for

finding probable cause does not require a prima facie showing of criminal activity, but
only the probability of criminal activity.” State v. Weimer, 8th Dist. Cuyahoga No.

92094, 2009-Ohio-4983, ¶ 29.      In this case, the police were in the barbershop and

observed shell casings from a firearm on the ground, bullet holes, and a deceased victim

being removed from the crime scene.    Officer Cwiklinski asked the barbers to wait in the

parking lot because it was an active crime scene.   As Officer Cwiklinski spoke with the

owner, he observed Benton leaving the barbershop, where a homicide had just occurred,

with a backpack and throwing the backpack into a vehicle.

       {¶15} At the time Officer Cwiklinski observed Benton, he was not aware who

committed the homicide or even the full facts surrounding the homicide. Reviewing the

totality of the circumstances, there was probable cause to reasonably suspect that Benton

was removing evidence from the crime scene.

See State v. Moore, 90 Ohio St.3d 47, 51-52, 734 N.E.2d 804 (2000) (finding search of a

defendant’s person was justified where the officer smelled a strong odor of burnt

marijuana emanating from the vehicle and on the defendant); State v. Douglas, 3d Dist.

Marion No. 9-13-07, 2013-Ohio-4563.         Under the exigent circumstances exception,

“[b]ecause marijuana and other narcotics are easily and quickly hidden or destroyed, a

warrantless search [of an individual’s person] may be justified to preserve evidence.   **

*.” Moore at 52.     State v. Jones, 8th Dist. Cuyahoga No. 100300, 2014-Ohio-2763, ¶

27.   Because a weapon could be easily hidden, the Garfield Heights police searched

Benton in an effort to preserve evidence.

       {¶16} After being questioned a second time, Benton acknowledged that he had a
gun in the backpack and signed a consent- to-search form.       Benton argues that he was

coerced into signing the consent-to-search form because the police stated that they could

arrest him and impound the vehicle. Benton argues that this is a violation of his Fifth

Amendment rights.

       The Fifth Amendment to the Constitution of the United States provides that
       no person “shall be compelled in any criminal case to be a witness against
       himself.” This Amendment is made applicable to the states through the
       Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378
       U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

State v. McMiller, 8th Dist. Cuyahoga No. 103962, 2016-Ohio-5844, ¶ 41.

       {¶17} Benton contends that because the police questioned him about the backpack,

they were conducting an interrogation.

       In interpreting the Fifth Amendment, the United States Supreme Court has
       found that criminal suspects in the custody of the police enjoy certain rights
       during interrogation. Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct.
       1602, 16 L.Ed.2d 694 (1966). These rights include the right to remain
       silent and the right to have counsel present during the interrogation. Id. at
       467-468. “Once an accused invokes his right to counsel, all further
       custodial interrogation must cease and may not be resumed in the absence
       of counsel unless the accused thereafter effects a valid waiver or himself
       renews communication with the police.” State v. Knuckles, 65 Ohio St.3d
       494, 605 N.E.2d 54 (1992), paragraph one of the syllabus, citing State v.
       Williams, 6 Ohio St.3d 281, 6 Ohio B. 345, 452 N.E.2d 1323 (1983).

Id. at ¶ 42.

       {¶18} However, we disagree with Benton’s assertion.          The record does     not

support the claim that Garfield Heights police conducted a custodial interrogation of

Benton.

       Miranda defined “custodial interrogation” as “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.” Id. at 444. In
      order to determine whether a person is in custody for purposes of receiving
      Miranda warnings, courts must first inquire into the circumstances
      surrounding the questioning and, second, given those circumstances,
      determine whether a reasonable person would have felt that he or she was
      not at liberty to terminate the interview and leave. Thompson v. Keohane,
      516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Once the factual
      circumstances surrounding the interrogation are reconstructed, the court
      must apply an objective test to resolve “the ultimate inquiry” of whether
      there was a “‘formal arrest or restraint on freedom of movement’ of the
      degree associated with a formal arrest.’” California v. Beheler, 463 U.S.
      1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), quoting Oregon v.
      Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

State v. Grant, 8th Dist. Cuyahoga No. 96586, 2011-Ohio-6279, ¶ 18.

      {¶19}    Reviewing the record, Benton was asked to wait in the parking lot while

the crime scene was secured. Benton was seen putting his book bag in his vehicle.

The Garfield Heights police asked Benton what was in his book bag. Benton never

invoked his right to counsel or showed that his restraint on his movement was restricted

of the degree associated with a formal arrest.   Benton then signed a consent to search.

Benton’s assertions regarding a police interrogation have no merit.

      {¶20} Benton’s sole assignment of error is overruled.

      {¶21} The trial court’s judgment is affirmed.

      It is ordered that the appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



_________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
