      [Cite as In re Q.O., 2014-Ohio-3893.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




IN RE: Q.O.                                   :   APPEAL NO. C-130548
                                                  TRIAL NO. 12-12095z

                                              :      O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 10, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Appellant,

Gordon C. Magella, for Appellee.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

       {¶1}    Appellant the state of Ohio appeals the judgment of the Hamilton

County Juvenile Court granting a motion to suppress and dismissing a charge of

delinquency.

                        The Arrest and Motion to Suppress

       {¶2}    In December 2012, the juvenile Q.O. was arrested for an act that would

have constituted the offense of carrying a concealed weapon in violation of R.C.

2923.12, a felony of the fourth degree, had he been an adult.

       {¶3}    Q.O. filed a motion to suppress all evidence that had been obtained in

the traffic stop that had led to the delinquency charge.

       {¶4}    At the hearing on the motion to suppress, Cincinnati Police Officer

Alicia Bruewer testified that she was working in the area of the University of

Cincinnati (“U.C.”) one night when she heard a police broadcast concerning shots

fired. She saw a U.C. officer with a car stopped, and the U.C. officer pointed to a

nearby silver Nissan that he said had been involved in the shooting.

       {¶5}    Bruewer followed the Nissan, which was being driven erratically. A

different U.C. officer soon stopped the Nissan, and Bruewer stopped beside his

cruiser. Because of the report of shots fired, Bruewer ordered all four of the

occupants to leave the car, and they were handcuffed.

       {¶6}    To ensure her own safety and the safety of others, Bruewer asked the

car’s occupants if they had any weapons on their persons or in the vehicle. Q.O., who

had been in the front passenger seat, responded that there was a gun in the glove

compartment, from which another officer recovered a loaded firearm. Bruewer then




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placed Q.O. under arrest and advised him of his rights under Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       {¶7}   The magistrate overruled the motion to suppress. The case proceeded

to trial, and the magistrate adjudicated Q.O. delinquent.

       {¶8}   Q.O. filed objections to the magistrate’s decision on the motion to

suppress but did not contend that the evidence admitted at trial was insufficient to

support the adjudication. The trial court sustained the objections on the suppression

motion, holding that the police had improperly questioned Q.O. prior to the Miranda

warnings and that all evidence obtained after such questioning was subject to

suppression. The court then dismissed the delinquency charge.

                            The Propriety of the Search

       {¶9}   In two related assignments of error, the state contends that the trial

court erred in suppressing the evidence and dismissing the charges.

       {¶10} Appellate review of a motion to suppress 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. An appellate court must accept the trial court’s findings of fact if they are

supported by some competent, credible evidence. Id. Accepting those facts as true,

the appellate court must then independently determine, without deference to the

trial court’s judgment, whether the facts satisfy the applicable legal standard. Id.

       {¶11} In this case, the trial court erred in granting the motion to suppress.

Even if we assume, for the sake of argument, that the pre-Miranda statements made

by Q.O. were inadmissible, the suppression order was unwarranted.

       {¶12} First, as the trial court properly concluded, the police had probable

cause to stop the car. The reports of its occupants’ involvement in firing shots as well




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as the driver’s erratic maneuvers in attempting to leave the area supported the

officers’ conclusion that illegal activity was afoot.

        {¶13} Once the car was stopped, the officers were entitled to search for

weapons. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201

(1983), the United States Supreme Court recognized an exception to the warrant

requirement permitting a limited protective search of an automobile during a traffic

stop. Under Long, a “search of the passenger compartment of an automobile, limited

to those areas in which a weapon may be placed or hidden, is permissible if the police

officer possesses a reasonable belief * * * that the suspect is dangerous and the

suspect may gain immediate control of weapons.” Id. at 1049.           The exception

recognized in Long may apply even where the vehicle’s occupants have been detained

and handcuffed. See State v. Jones, 1st Dist. Hamilton No. C-130069, 2014-Ohio-

1201.

        {¶14} Once again, the responding officers in this case had information from a

fellow officer that the occupants of the car had been involved in a shooting, and it

was apparent that the driver of the car was attempting to flee. These facts gave rise

to a reasonable belief that the car’s occupants could be armed and dangerous and

provided an ample basis to search the car, irrespective of the statements Q.O. had

made before the Miranda warnings.            And the presence of the firearm in the

proximity of where Q.O. had been seated provided reason to question him further

after the warnings had been administered.

        {¶15} As the Supreme Court of Ohio has held, “[o]nly evidence obtained as

the direct result of statements made in custody without the benefit of a Miranda

warning should be excluded.” See State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-

3255, 849 N.E.2d 985, ¶ 49. In this case, the firearm was obtained during a lawful



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search of the car. The suppression of the gun and Q.O.’s post-Miranda warning

statements was therefore improper.

       {¶16} Nonetheless, Q.O. maintains that the granting of the motion to

suppress and the dismissal of the charge by the trial court would preclude any

further proceedings against him on double-jeopardy grounds. This argument is

without merit.   As the United States Supreme Court has held, double-jeopardy

protection does not apply where the defendant seeks “termination of the proceedings

against him on a basis unrelated to factual guilt or innocence * * *.” United States v.

Scott, 437 U.S. 82, 98-99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).

       {¶17} Here, the proceedings were not terminated based on a finding of

factual innocence. The trial court erroneously held that the incriminating evidence

was subject to suppression, but there was no finding that the evidence admitted at

trial was insufficient to support the adjudication. Q.O. did not even file objections

based on the sufficiency of the evidence, and our review of the trial transcript reveals

that there was overwhelming evidence of his guilt.

       {¶18} Moreover, in this case, the trial court did not give the state an

opportunity to challenge the suppression of the evidence but instead immediately

dismissed the charge. To allow double-jeopardy considerations to prevent further

proceedings against Q.O. under these circumstances would be to deprive the state of

its right to appeal the granting of the motion to suppress under R.C. 2945.67 and

Juv.R. 22(F). Accordingly, we sustain the assignments of error.




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                                       Conclusion

       {¶19} We reverse the judgment of the trial court and remand the cause for

the juvenile court to make an adjudication of delinquency and for further

proceedings consistent with law and this opinion.



                                       Judgment reversed and cause remanded.



CUNNINGHAM, P.J., and FISCHER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this
opinion.




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