[Cite as State v. Warnick, 2020-Ohio-4240.]




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

                                                    :
 STATE OF OHIO                                      :
                                                    :   Appellate Case No. 2019-CA-14
         Plaintiff-Appellee                         :
                                                    :   Trial Court Case No. 2018-CR-566
 v.                                                 :
                                                    :   (Criminal Appeal from
 JAMES C. WARNICK                                   :    Common Pleas Court)
                                                    :
         Defendant-Appellant                        :


                                               ...........

                                              OPINION

                            Rendered on the 28th day of August, 2020.

                                               ...........

PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, Safety
Building, 201 West Main Street, Troy, Ohio 45373
       Attorney for Plaintiff-Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

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

FROELICH, J.
                                                                                         -2-




       {¶ 1} After the trial court overruled his motion to suppress, James C. Warnick pled

no contest to felony counts of aggravated possession of drugs and improper handling of

a firearm in a motor vehicle and to two misdemeanor counts of possession of drugs.

Warnick appeals from his conviction, claiming that the trial court erred in denying his

motion to suppress. For the following reasons, the trial court’s judgment will be affirmed.

                            I. Facts and Procedural History

       {¶ 2} The evidence at the suppression hearing consisted of the testimony of two

Ohio State Highway Patrol (OSHP) troopers, a photograph of Warnick’s vehicle, and a

cruiser video. The trial court found the troopers to be experienced and their testimony

to be credible. The evidence at the hearing established the following facts.

       {¶ 3} At 7:17 a.m. on August 5, 2018, Trooper James Davis was at his OSHP post

when the patrol received a telephone call stating that a vehicle with a shattered windshield

was parked in the southbound Interstate 75 rest stop and the driver was slumped,

unconscious, over the steering wheel. The caller was not identified. Within minutes,

Trooper Davis and a second trooper, Jordan Monnin, responded to the rest stop near

milepost 81 in Miami County in separate cruisers.         Davis testified that they “were

responding to the possibility that someone was ill or injured.” (Supp. Tr. at 27.) Trooper

Monnin’s cruiser camera was activated as he drove on I-75 toward the rest stop.

       {¶ 4} Upon arriving, the troopers observed a 2005 Dodge pickup truck that was

backed into an angled parking space. The truck had a shattered windshield with large

holes in it; Trooper Davis described the windshield as consisting of two panes of glass.

The roofline of the truck also was dented. The driver, later identified as Warnick, was in
                                                                                          -3-


the driver’s seat, unconscious or asleep. Officer Monnin’s initial thought was that the

vehicle had been in a crash, the driver was impaired, and the driver had gotten the vehicle

“as far as they could and pulled over and possibly passed out or fell asleep in the vehicle.”

(Supp. Tr. at 30.)

       {¶ 5} The troopers conferred and decided to put a tire deflation device in front of

one of the tires.    Monnin explained that the device was for officer safety; they had

concerns that the driver might try to flee while impaired and a pursuit would ensue.

Trooper Davis noted that it was unusual for people to back into rest area parking spaces,

as they are angled for vehicles to pull into them. Trooper Davis retrieved a stop stick

from the trunk of his cruiser and placed it under the front driver’s side wheel.

       {¶ 6} Trooper Davis went to the passenger side of the vehicle while Trooper

Monnin went to the driver’s side and knocked on the driver’s window. Warnick woke,

and Monnin saw him immediately reach toward the ignition. Monnin opened the driver’s

door and asked Warnick what was going on. Warnick responded that he was taking a

nap. Monnin next asked about the windshield. Warnick stated that a tree branch had

fallen on the truck a few days before, and he was driving to get a new windshield. Monnin

asked Warnick where he was living, and Warnick provided his address; he was not able

to produce his ID. Trooper Monnin then asked Warnick to exit the vehicle. Warnick got

out, leaving the driver’s door open.

       {¶ 7} Warnick was wearing baggy camouflage pants and a black tank top.

Trooper Monnin noticed that Warnick had an empty sheath for a machete hooked onto

his belt. When Monnin asked Warnick about the weapon, Warnick said that it was in the

truck, but was broken. Monnin removed the sheath, handed it to Davis, and Davis tossed
                                                                                       -4-


it back into the truck. Trooper Monnin decided to pat down Warnick for officer safety.

Monnin found a Bic lighter, a butane torch, and two cell phones, one of which was taped

together, on Warnick’s person. The troopers did not take the items from Warnick. While

patting him down, Monnin noticed that Warnick’s fingers were cut.

       {¶ 8} At 7:25 a.m., the troopers placed Warnick in Monnin’s cruiser. Both troopers

testified that Warnick was subject to an investigative detention at this point.     They

explained the bases for the detention, noting the positioning of Warnick’s vehicle, the

condition of the vehicle, and Warnick’s nervousness. The troopers did not detect any

odor of alcohol on Warnick, Warnick was not wobbly or unsteady, and he answered

questions coherently and without slurring his speech. The troopers indicated, however,

that they did not explore whether Warnick was impaired due to the rapid progression of

the stop.

       {¶ 9} As Trooper Monnin questioned Warnick in the cruiser, Trooper Davis

inspected the open driver’s side door for the vehicle’s VIN number and, standing in the

open doorway, looked into the vehicle for items in plain view. Davis saw a glass pipe

with a bulbous end, a bag with a white crystal substance, and ammunition strewn about

the console and ashtray. Davis testified that he was able to view these items without

entering the vehicle. Davis radioed Monnin about the ammunition that he observed, and

Monnin asked Warnick if he had a firearm in the truck. Warnick admitted that he did.

       {¶ 10} Trooper Monnin informed Warnick of his Miranda rights.             Warnick

subsequently stated that he did not have a concealed carry permit for the firearm.

Warnick stated that the firearm was his grandfather’s “antique rifle.” Trooper Davis

entered the passenger side of the vehicle, where he found a firearm in the rear seat area.
                                                                                      -5-


Warnick told Monnin that he was not a convicted felon in Ohio. Monnin subsequently

asked Warnick to hand him the butane torch and the taped cell phone. (Monnin had

concerns that Warnick would use the butane torch to start a fire in the cruiser and that

there might be contraband.)     Within a couple minutes, Monnin placed Warnick in

handcuffs.

      {¶ 11} Warnick subsequently was charged with aggravated possession of drugs,

improper handling of a firearm in a motor vehicle, and two counts of possession of drugs.

The charges were based on Warnick’s possession of a loaded Winchester Model 6122

caliber pump action rifle loose in his truck, 25.803 grams of methamphetamine, two Xanax

pills, and two Clonazepam pills. (Plea Tr. at 22.) On May 28, 2019, Warnick moved to

suppress the evidence obtained from the search of his vehicle.        Warnick’s motion

argued:

             In the instant case, the state troopers were conducting a consensual

      encounter in order to determine whether Defendant was under any distress.

      Troopers turned the encounter into an investigatory detention when

      Defendant was effectively seized without a reasonable suspicion that

      Defendant had violated the law. Troopers were dispatched to conduct a

      welfare check on Defendant. Finding the Defendant in no distress, with no

      injuries, and not under the influence of any intoxicants, Defendant

      nonetheless was forcibly taken from his vehicle by troopers, frisked, and

      placed in the patrol car. Any reasonable person would not believe he was

      free to leave or terminate the encounter under such circumstances. Such

      seizure is unreasonable under the Fourth Amendment.
                                                                                         -6-


       {¶ 12} The trial court overruled the motion. The court began by noting that, “[u]ntil

Trooper Monnin placed the stop stick under Defendant’s truck tire, the troopers were

engaged in a consensual encounter and the Fourth Amendment was not implicated.”

Prior to placing the stop stick, the troopers had observed the damage to truck, the truck’s

position in the parking space, and the unconscious driver, which corroborated the phone

tip. The trial court concluded that the observations reasonably led the officers to believe

that the driver was impaired and in control of a vehicle, which warranted the investigatory

stop, including the placement of the stop stick.

       {¶ 13} The trial court further concluded that the troopers’ continued detention of

Warnick was reasonable. The court reasoned:

              Although the troopers focused on the suspicion that Defendant was

       impaired, the condition of the vehicle’s windshield rendered it unsafe to

       operate. Trooper Monnin testified that the windshield was damaged to the

       point where there were large holes in it, which is confirmed in State’s Exhibit

       2 [a photograph of the truck].     R.C. 4513.02 prohibits operation of an

       unsafe vehicle, and damage to the windshield can render it unsafe to

       operate. * * * The damage was not a “slight crack” that is not a basis to stop

       the vehicle or detain the driver * * *. Instead, the damage was extensive

       and the truck was plainly unsafe to operate.

              The troopers did not observe Defendant operate the unsafe vehicle,

       however, the location of the vehicle at a highway rest area raised a clear

       probability that Defendant drove the vehicle to the rest area.         As the

       troopers began to investigate whether Defendant was impaired, Monnin
                                                                                        -7-


      observed Defendant appear to reach for the keys in the ignition. Based on

      that gesture, it was reasonable for the trooper to remove Defendant from

      the vehicle to prevent him from operating the obviously unsafe vehicle, and

      pat him down for their own safety. * * * The Court finds that it was reasonable

      to detain the Defendant and the truck until the troopers determined that the

      truck would not be operated on the interstate in that condition. Trooper

      Monnin then observed an empty machete holder, and Defendant said the

      machete was in the vehicle albeit broken. Therefore, it was reasonable to

      place Defendant in the cruiser while the officer looked for the machete and

      continued his investigation into Defendant’s possible impairment.

             At the same moment Trooper Monnin’s investigation was indicating

      that Defendant was not impaired, the basis to detain him had shifted to a

      search for the weapon. The condition of the vehicle and the suspicion that

      Defendant would drive it on the highway also justified his continued

      detention. * * *

      {¶ 14} The trial court further concluded that, as Trooper Monnin continued to

question Warnick in the cruiser, Trooper Davis saw, in plain view, a glass pipe, baggie

with a crystal substance, and live ammunition in the truck. The court found that the

incriminating nature was immediately apparent. The court found that these observations

provided the troopers probable cause to search the vehicle, leading to the discovery of

the rifle. The court thus found that Warnick’s detention was reasonable under the Fourth

Amendment, and the troopers had probable cause to search the vehicle and arrest

Warnick.
                                                                                           -8-


       {¶ 15} Soon after the trial court’s ruling, Warnick pled no contest to the charged

offenses.   The trial court sentenced him to a mandatory four years in prison for

aggravated possession of drugs, 17 months for improper handling of a firearm, and six

months for each count of possession of drugs, to be served concurrently. The trial court

also suspended Warnick’s driver’s license for four years and ordered him to pay $35 in

restitution to the Ohio State Highway Patrol and $629.50 in court costs.

       {¶ 16} Warnick appeals, challenging the denial of his motion to suppress.

                            II. Review of Suppression Ruling

       {¶ 17} In ruling on a motion to suppress, the trial court “assumes the role of the

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

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d

498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116,

¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

       {¶ 18} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968).           “The touchstone of the Fourth Amendment is

reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297

(1991). Whether a stop and/or search is reasonable under the Fourth Amendment

depends upon the particular facts and circumstances, viewed objectively by examining
                                                                                             -9-


the totality of the circumstances. See State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154,

47 N.E.3d 821, ¶ 14.

       {¶ 19} Under Terry, police officers may briefly stop and/or temporarily detain

individuals in order to investigate possible criminal activity if the officers have a

reasonable, articulable suspicion that criminal activity may be afoot, including a minor

traffic violation. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,

¶ 7-8. We determine the existence of reasonable suspicion by evaluating the totality of

the circumstances, considering those circumstances “through the eyes of the reasonable

and prudent police officer on the scene who must react to events as they unfold.” State

v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v.

Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

       {¶ 20} In addition, under the community-caretaking/emergency-aid exception to

the Fourth Amendment warrant requirement, a law-enforcement officer with objectively

reasonable grounds to believe that there is an immediate need for his or her assistance

to protect life or prevent serious injury may conduct a community-caretaking/emergency-

aid stop. State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 26;

State v. Klase, 2019-Ohio-3392, 131 N.E.3d 1054, ¶ 16 (2d Dist.).

       {¶ 21} Community caretaking functions are “divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady

v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Accordingly,

Ohio appellate courts generally have held that police officers are not required to possess

reasonable articulable suspicion of criminal activity when exercising community

caretaking functions/emergency aid. E.g., State v. Pattin, 10th Dist. Franklin No. 17AP-
                                                                                           -10-


575, 2018-Ohio-3876, ¶ 10; State v. Norman, 136 Ohio App.3d 46, 54, 735 N.E.2d 953

(3d Dist.1999).

       {¶ 22} We agree with the trial court’s assessment of the circumstances.            The

troopers responded to the rest stop on a report of a vehicle with a substantially damaged

windshield and an unconscious driver. Upon arrival and prior to placing the stop stick,

the troopers observed the vehicle and the driver, which led Trooper Monnin to reasonably

believe that the driver might have been in a collision and impaired. The troopers acted

reasonably in detaining Warnick for the purpose of ascertaining whether he was in need

of medical attention.

       {¶ 23} Moreover, the troopers had observed the windshield, which was shattered

with large holes and appeared to be two panes of glass; the roofline of the vehicle also

was dented. The vehicle was located at a rest stop, indicating that Warnick had driven

to that location with the damaged windshield. Based on the visible condition of the

vehicle, the troopers also reasonably detained Warnick for driving an unsafe vehicle.

Accordingly, the troopers were justified in placing the stop stick in front of one of the

wheels of Warnick’s truck to prevent him from driving away until the questions regarding

his and the truck’s safety were resolved.

       {¶ 24} After stopping a motorist for a traffic violation, a police officer may order the

motorist to get out of his car, even without suspicion of criminal activity. State v. Dozier,

187 Ohio App.3d 804, 2010-Ohio-2918, 933 N.E.2d 1160, ¶ 8 (2d Dist.), citing State v.

Evans, 67 Ohio St.3d 405, 407, 618 N.E.2d 162 (1993) and Pennsylvania v. Mimms, 434

U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Additionally, “[d]uring a routine traffic

stop, it is reasonable for an officer to search the driver for weapons before placing the
                                                                                             -11-


driver in a patrol car, if placing the driver in the patrol car during the investigation prevents

officers or the driver from being subjected to a dangerous condition and placing the driver

in the patrol car is the least intrusive means to avoid the dangerous condition.” State v.

Lozada, 92 Ohio St.3d 74, 748 N.E.2d 520 (2001), paragraph one of the syllabus.

       {¶ 25} Still, neither a Mimms order to exit the vehicle nor the act of placing the

motorist in a police cruiser automatically entitles an officer to pat the driver down for

weapons. Dozier at ¶ 8, citing Evans at 409. “During the course of an investigatory stop

and detention, law enforcement officers may conduct a pat down search for weapons if

the officers have reasonable grounds to believe that the suspect is armed and

dangerous.” State v. Keggan, 2d Dist. Greene No. 2006-CA-9, 2006-Ohio-6663, ¶ 26.

“The officer need not be absolutely certain that the individual is armed; rather, the issue

is whether a reasonably prudent man in those circumstances would be warranted in the

belief that his safety or the safety of others was in danger.” State v. Grefer, 2d Dist.

Montgomery No. 25501, 2014-Ohio-51, ¶ 24.

       {¶ 26} Having lawfully detained Warnick, Trooper Monnin was permitted to ask

Warnick to exit his truck. The request was further supported by Warnick’s apparent

reaching for the ignition. After Warnick exited his vehicle, Trooper Monnin noticed that

Warnick wore an empty sheath for a machete. Warnick acknowledged that he had the

knife in the vehicle, although he claimed it was broken. Both troopers also commented

that Warnick was acting nervous, which made the troopers apprehensive.                   At that

juncture, Trooper Monnin had a reasonable articulable suspicion that Warnick was armed

and dangerous, justifying the patdown for weapons.

       {¶ 27} Immediately after the patdown, Warnick was placed in Trooper Monnin’s
                                                                                          -12-


cruiser for additional questioning, beginning with his name. At the same time, Trooper

Davis looked at the driver’s door of the truck for the VIN number and observed a drug

pipe, a crystal substance, and ammunition in the vehicle.

       {¶ 28} Under the plain view doctrine, a warrantless seizure of incriminating

evidence is permissible where “(1) the officers are lawfully positioned in a place from

which the object can be plainly viewed, (2) the incriminating character of the object is

immediately apparent, and (3) the officer has a lawful right of access to the object itself.”

State v. Goode, 2d Dist. Montgomery No. 25175, 2013-Ohio-958, ¶ 26, citing Minnesota

v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) and Horton v.

California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

       {¶ 29} When Warnick exited the vehicle, the driver’s door remained open.

Trooper Davis was standing in the open doorway when he observed the drug pipe, white

crystal substance, and ammunition. Davis testified that he was able to view these items

without entering the vehicle. The trial court did not err in concluding that the items were

in plain view.

       {¶ 30} Under the automobile exception, police may conduct a warrantless search

of a vehicle if there is probable cause to believe that the vehicle contains contraband, and

exigent circumstances necessitate a search or seizure. State v. Mills, 62 Ohio St.3d 357,

367, 582 N.E.2d 972 (1992); Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144

L.E.2d 442 (1999). A vehicle’s mobility is the traditional justification for this exception to

the warrant requirement. Mills at 367; Dyson at 467. “[T]he automobile exception does

not have a separate exigency requirement: ‘If a car is readily mobile and probable cause

exists to believe it contains contraband, the Fourth Amendment * * * permits police to
                                                                                         -13-


search the vehicle without more.’ ” Dyson at 467, quoting Pennsylvania v. Labron, 518

U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).                   Generally, “[t]he

immobilization of the vehicle or low probability of its being moved or evidence being

destroyed does not remove the officers’ justification to conduct a search pursuant to the

automobile exception.” State v. Russell, 2d Dist. Montgomery No. 19901, 2004-Ohio-

1700, ¶ 34. See Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750

(1982).

       {¶ 31} Under the automobile exception, Trooper Davis was justified in entering

Warnick’s truck to seize the drug pipe and the white crystal substance from the vehicle.

Moreover, prior to Davis’s entering the truck, Warnick also admitted that he had a firearm

in the vehicle, which provided probable cause for Davis to believe that Warnick was

unlawfully transporting a firearm. The trooper was permitted to enter the vehicle to

secure the weapon.

       {¶ 32} On appeal, Warnick argues that the troopers should have provided him his

Miranda rights upon initiating the investigatory detention, i.e., when they placed the stop

stick under his tire. In order to ensure that a person’s Fifth Amendment right against self-

incrimination is protected, statements resulting from custodial interrogations are

admissible only after a showing that the procedural safeguards described in Miranda v.

Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed.

State v. Earnest, 2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21. It is well

established that individuals involved in temporary investigatory detentions, such as

routine traffic stops, are not “in custody” for purposes of Miranda. Berkemer v. McCarty,

468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); State v. Bizzell, 2017-Ohio-8902,
                                                                                       -14-


100 N.E.3d 1267, ¶ 14 (2d Dist.).

      {¶ 33} From the time the troopers placed the stop stick under Warnick’s tire to

when he was handcuffed, Warnick was subject to an investigatory detention, but he was

not in custody. Thus, the troopers were not required to inform Warnick of his Miranda

rights during that time. We note that Trooper Monnin told Warnick his rights after Trooper

Davis notified him (Monnin) of the items found in plain view and Warnick admitted that he

had a gun in the vehicle.

      {¶ 34} In summary, the trial court did not err in denying Warnick’s motion to

suppress. Accordingly, Warnick’s assignment of error is overruled.

                                     III. Conclusion

      {¶ 35} The trial court’s judgment will be affirmed.

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



TUCKER, P.J. and HALL, J., concur.


Copies sent to:

Paul M. Watkins
Hilary Lerman
Hon. Jeannine N. Pratt
