[Cite as State v. Brown, 2015-Ohio-191.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

STATE OF OHIO                                    :
                                                 :
        Plaintiff-Appellee                       :   C.A. CASE NO. 26184
                                                 :
v.                                               :   T.C. NO. 13CR3097/1
                                                 :
TOBY L. BROWN                                    :   (Criminal appeal from
                                                 :    Common Pleas Court)
        Defendant-Appellant                      :
                                                 :

                                            ...........

                                           OPINION


              Rendered on the ___23rd___ day of _____January_____, 2015.

                                            ...........

MELISSA I. REDLIEN, Atty, Reg. No. 0091732, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 N. Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                           .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Toby L. Brown appeals his conviction and sentence for

one count of possession of heroin, in violation of R.C. 2925.11(A)(2), a felony of the

second degree. Brown filed a timely notice of appeal with this Court on April 21, 2014.
                                                                                         -2-
       {¶ 2} The incident which forms the basis for the instant appeal occurred on

September 28, 2013, at approximately 10:00 p.m. when Dayton Police Officer Zachary

Williams initiated a traffic stop of a motor vehicle with a non-functioning front headlight.

The traffic stop occurred in the City of Dayton near the intersection of Needmore Road

and North Crest Avenue.

       {¶ 3} Upon approaching the driver’s side door of the vehicle on foot, Officer

Williams asked the driver, later identified as Brown, for his license. Brown stated that he

did not have his license. Officer Williams then removed Brown from the vehicle and

patted him down for weapons. Satisfied that Brown was not armed, Officer Williams

placed him in the rear of the police cruiser. Officer Williams ran a search of Brown on the

cruiser’s computer and discovered that he did not have a driver’s license and there was

an outstanding warrant for his arrest for driving under suspension. Officer Williams

testified that he was going to arrest Brown and take him to jail at that point. Officer

Williams returned to the stopped vehicle and removed the passenger, later identified as

Mr. Gooch, and placed him with Brown in the rear of the cruiser.

       {¶ 4} While the men sat in the rear of the cruiser, Officer Williams observed Brown

give Gooch a baggie of marijuana. Gooch dropped the baggie on the floorboard and

kicked it under the front passenger seat of the cruiser. At this point, Officer Williams

advised both men of their Miranda rights. Brown immediately invoked his rights, and

stated that he did not want to speak any further to Officer Williams. Officer Williams then

asked Brown and Gooch if they had anything such as guns, knives, or drugs hidden about

their persons that they wanted to disclose to him before they arrived at the jail. Officer

Williams further informed the men of the consequences of conveyance of drugs or
                                                                                           -3-
weapons into the jail if they failed to disclose such items. Brown admitted that he was

carrying an amount of “soft” on his person. “Soft” is a street term for heroin. After

Brown indicated where the heroin was located, Officer Brienza, the other officer on duty,

removed the contraband from inside his underpants where it was located next to his right

testicle.

       {¶ 5} Upon arriving at the Montgomery County Jail, Officer Williams performed a

full custodial search of Brown before handing him over to corrections officers. The

second search was more thorough than the initial search performed at the scene of the

traffic stop.   Officer Williams testified that the second search at the jail specifically

included Brown’s groin, where the heroin had previously been located. Further, Officer

Williams testified that during the more thorough search at the jail, he discovered $919.00

in the front pocket of Brown’s pants, which he had not located while patting Brown down

at the scene solely for weapons.

       {¶ 6} On November 21, 2013, Brown was indicted for one count of possession of

heroin and one count of possession of cocaine. Brown subsequently filed a motion to

suppress any and all statements he made to Officer Williams during the traffic stop. A

hearing was held on said motion on January 24, 2014. On January 29, 2014, the trial

court overruled Brown’s motion to suppress, announcing its findings of fact and

conclusions of law from the bench. The trial court held that although Officer Williams

violated Brown’s Miranda rights by continuing to question him after he invoked his right to

counsel, the heroin found on his person would have been discovered when he was

searched at the jail. Thus, the trial court held that the rule of inevitable discovery allowed

the admission of the drugs into evidence.
                                                                                           -4-
       {¶ 7} On March 6, 2014, Brown pled no contest to one count of possession of

heroin in exchange for dismissal of the possession of cocaine charge. The trial court

found Brown guilty of possession of heroin and sentenced him to two years in prison.

       {¶ 8} It is from this judgment that Brown now appeals.

       {¶ 9} Brown’s sole assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS.”

       {¶ 11} In his sole assignment, Brown contends that the trial court erred when it

overruled his motion to suppress the heroin. Brown agrees with the trial court that

Officer Williams violated his Miranda rights by continuing to question him after he invoked

his right to counsel.   Brown, however, argues that under the factual circumstances

presented in the instant case, the trial court misapplied the rule of inevitable discovery,

and the heroin would not have been discovered during the search of his person at the jail.

       {¶ 12} As this Court has previously noted:

              “Appellate courts give great deference to the factual findings of the

       trier of facts. (Internal citations omitted). At a suppression hearing, the trial

       court serves as the trier of fact, and must judge the credibility of witnesses

       and the weight of the evidence. (Internal citations omitted). The trial court

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

       credibility. (Internal citations omitted). In reviewing a trial court’s decision

       on a motion to suppress, an appellate court accepts the trial court’s factual

       findings, relies on the trial court’s ability to assess the credibility of

       witnesses, and independently determines whether the trial court applied the
                                                                                          -5-
       proper legal standard to the facts as found. (Internal citations omitted). An

       appellate court is bound to accept the trial court’s factual findings as long as

       they are supported by competent, credible evidence.”            State v. Hurt,

       Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

       {¶ 13} Initially, we note that the only witness who testified at the hearing held on

Brown’s motion to suppress was Officer Williams. The trial court found his testimony

credible and adopted it as its factual findings.

       {¶ 14} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v.

Pressly, 2d Dist. Montgomery No. 24852, 2012-Ohio-4083, ¶ 18. “Under applicable

legal standards, the State has the burden of showing the validity of a warrantless search,

because warrantless searches are ‘per se unreasonable under the Fourth Amendment –

subject only to a few specifically established and well delineated exceptions.’ ” State v.

Hilton, 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-5744, ¶ 21-22, citing Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).

       {¶ 15} It is undisputed that after Brown invoked his Miranda rights, Officer Williams

improperly inquired whether he had any additional contraband on his person. Officer

Williams’ improper questioning resulted in the illegal seizure of the heroin from Brown.

The Ohio Supreme Court has generally held that physical evidence obtained as a result

of statements made in contravention of Miranda is excludable under Section 10, Article I

of the Ohio Constitution. State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849
                                                                                            -6-
N.E.2d 985, ¶ 49.

       {¶ 16} Nonetheless, under the inevitable discovery doctrine, evidence obtained

unconstitutionally is admissible if it “would have been ultimately or inevitably discovered

during the course of a lawful investigation.” State v. Perkins, 18 Ohio St.3d 193, 196, 480

N.E.2d 763 (1985); see also Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81

L.Ed.2d 377 (holding that under the inevitable discovery doctrine, if the evidence in

question “ultimately or inevitably would have been discovered by lawful means *** then

*** the evidence should be received”). Under the inevitable discovery doctrine, the

burden is on the State to establish, within a reasonable probability, that law enforcement

would have discovered the evidence in question apart from unlawful conduct. Perkins, 18

Ohio St.3d at 196; see State v. Sincell, 2d Dist. Montgomery No. 19073, 2002 WL

538928, * 3 (Apr. 12, 2002) (although the police officer improperly searched defendant’s

purse, which contained crack, without a warrant, its contents would have inevitably been

discovered when the defendant’s possessions were inventoried upon her arrival at the jail

and was therefore admissible).

       {¶ 17} In the instant case, Officer Williams testified that it was routine procedure for

him to conduct a more thorough search of a suspect in custody at the jail itself before

booking occurred. Officer Williams testified that as a matter of routine, his custodial

search at the jail specifically included Brown’s groin area, where the heroin had been

retrieved from earlier. Thus, it was not unreasonable for the trial court to find that Officer

Williams would have ultimately discovered the heroin located in Brown’s underpants

during the search performed prior to him being booked. “It is sufficiently clear that

inventory searches of arrested persons and the personalty that they intend to bring with
                                                                                        -7-
them into the county jail are a customary and typical procedure in Montgomery County.”

State v. Combs, 2d Dist. Montgomery No. 22346, 2008-Ohio-2883, ¶ 6

       {¶ 18} Brown, however, argues that since Officer Williams did not initially find the

$919.00 dollars during the on-scene pat-down, he presumably would not have found the

heroin during the custodial search at the jail. Officer Williams testified that during the

initial pat-down, he quickly searched Brown for a weapon of some kind that could

potentially be used against him. The fact that Officer Williams overlooked the money in

Brown’s pocket during a pat down frisk for weapons is irrelevant. It is pertinent to our

analysis, however, that during the more thorough search of Brown at the jail, Officer

Williams did discover the money in the front pocket of Brown’s pants, thereby supporting

his contention that the book-in search is more comprehensive than a frisk for weapons at

the scene of the arrest. We also note that, per questioning by the trial court, Officer

Williams testified that the corrections officers perform a subsequent thorough search of a

suspect after he or she is booked into jail, further raising the probability that hidden

contraband will be discovered by the authorities. Accordingly, the trial court did not err

when it overruled Brown’s motion to suppress.

       {¶ 19} Brown’s sole assignment of error is overruled.

       {¶ 20} Brown’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                       ..........

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

Copies mailed to:

Melissa I. Redlien
Jay A. Adams
                         -8-
Hon. Michael L. Tucker
