[Cite as State v. Keyser, 2017-Ohio-1182.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       28248

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JULIE KEYSER                                          COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2015-07-2207

                                  DECISION AND JOURNAL ENTRY

Dated: March 31, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, Julie Keyser, appeals the judgment of the Summit County Court of

Common Pleas denying her motion to suppress. For the reasons set forth below, this Court

affirms.

                                                     I.

        {¶2}     Ms. Keyser was indicted on three counts: possession of heroin, illegal use or

possession of drug paraphernalia, and possessing drug abuse instruments. She pled not guilty to

the charges and filed a motion to suppress “any and all tangible or intangible evidence” obtained

as a result of the illegal stop, detention, and questioning. Because this evidence includes the

heroin, the issue is not forfeited. The trial court excluded her statements and needles, but did not

suppress the heroin found after her arrest. Ms. Keyser pled no contest to an amended count of

possession of drugs and was found guilty. Based on the suppression ruling, the State dismissed
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the remaining counts. The State did not appeal the suppression of the statements or the needles.

Ms. Keyser timely appeals the denial of the motion to suppress the heroin.

                                               II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW, IN VIOLATION OF
       MS. KEYSER’S FOURTH, FIFTH, AND FOURTEENTH AMENDMENT
       RIGHTS UNDER THE U.S. CONSTITUTION AND ARTICLE I OF THE
       OHIO CONSTITUTION IN ITS APPLICATION OF THE LAW TO THE
       FACTS OF HER SEIZURE, CUSTODIAL INTERROGATION, ARREST, AND
       THE POLICE’S SEARCH OF HER VEHICLE.

       {¶3}    Ms. Keyser’s sole assignment of error is that the trial court erred in violation of

her rights under the Self-Incrimination Clause of the Ohio Constitution by failing to suppress the

heroin found as a direct result of a Miranda violation. While Ms. Keyser lists both the United

States and Ohio Constitutions in her assignment of error, her argument is limited to the Ohio

Constitution. This Court disagrees.

       {¶4}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio

St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1

Ohio St.3d 19, 20 (1982).      “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Burnside at ¶ 8, citing State v. McNamara, 124 Ohio

App.3d 706, 710 (4th Dist.1997). Therefore, this Court grants deference to the trial court’s

findings of fact, but conducts a de novo review of whether the trial court applied the appropriate
                                                   3


legal standard to those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th

Dist).

         Trial Court’s Findings of Fact

         {¶5}      Officers Tassone and Westlake of the Akron Police Department were conducting

a routine patrol of the parking lot of Gatsby’s Strip Club. The parking lot is a high drug area.

The officers were looking for individuals who remain inside their cars, because this type of

activity is a red flag for the use or sale of drugs and a sign that criminal activity may be afoot.

         {¶6}      The officers saw a vehicle parked in the rear of the lot. Inside the vehicle were

two persons with their heads down. The occupants were still in the car after Officer Tassone

circled the lot.

         {¶7}      Officer Tassone parked the cruiser and both officers walked up to the vehicle to

engage in a consensual encounter. As they approached the vehicle, the driver, Ms. Keyser,

attempted to jump head first out of the driver’s side window. Both officers ordered Ms. Keyser

back into the car. At that time, Officer Tassone observed Ms. Keyser’s right arm was bleeding.

Based on the location and appearance of the blood, Officer Tassone believed Ms. Keyser had just

injected an intravenous drug.

         {¶8}      Based on her observation of the blood, Officer Tassone immediately asked Ms.

Keyser, “[W]here’s the needle?” Ms. Keyser told her the needles were in a green bag in the

vehicle. Officer Tassone then asked Ms. Keyser where the heroin was located and she said they

had already used it. Ms. Keyser was arrested for drug paraphernalia and drug abuse instruments.

         {¶9}      During the subsequent tow inventory of the vehicle, the officers discovered Ms.

Keyser’s wallet which contained a baggie with suspicious residue. Officer Tassone read Ms.

Keyser her Miranda rights and re-questioned her about the heroin. Ms. Keyser again stated that
                                                 4


she had injected the heroin prior to the officers approaching the vehicle. When confronted with

the heroin in her wallet, Ms. Keyser said it was hers from a prior occasion.

       {¶10} Based upon a review of the testimony from the suppression hearing, the trial

court’s findings of fact are supported by competent, credible evidence and are hereby accepted.

       Trial Court’s Conclusions of Law

       {¶11} Based on the foregoing findings of fact, the trial court concluded that Ms.

Keyser’s pre- and post-Miranda statements were obtained in violation of her Miranda rights and

were inadmissible pursuant to Missouri v. Seibert, 542 U.S. 600 (2004). The trial court went on

to conclude that the needles were discovered as a result of Ms. Keyser’s pre-Miranda statements

and thereby inadmissible pursuant to State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 49.

However, the trial court concluded that the heroin found in Ms. Keyser’s wallet was admissible

because it was discovered during an inventory search and search incident to arrest and not as the

result of any pre-Miranda admissions by Ms. Keyser. Therefore, it was “not ‘fruit of any

poisonous tree.’”

       Farris Analysis

       {¶12} Relying upon Farris, Ms. Keyser challenges the denial of the motion to suppress

the heroin solely under the Self-Incrimination Clause of the Ohio Constitution. Ms. Keyser

asserts the heroin should be excluded because it was found as a direct result of her statements

made both pre- and post-Miranda. Ms. Keyser challenges the trial court’s reliance on Seibert as

a basis to not exclude the heroin. Ms. Keyser argues the facts in Farris are similar to this case

and thus the same analysis used to exclude the needles applies to exclude the heroin. This Court

disagrees.
                                                5


        {¶13} In Farris, the officer stopped the defendant for speeding. Id. at ¶ 1. The officer

recognized the odor of burnt marijuana and removed Farris from the car. Id. at ¶ 1-2. The officer

conducted a pat-down search, but found nothing. Id. at ¶ 2. The officer took Farris’ car keys and

requested he sit in the front seat of the cruiser. Id. Without administering Miranda, the officer

asked Farris about the smell. Id. at ¶ 3. Farris indicated his roommates had been smoking before

he left the house. Id. The officer told Farris he was going to search the car and asked if there

were any drugs or drug paraphernalia in the car. Id. Farris responded there was “a ‘bowl,’ i.e., a

marijuana pipe, in a bag in his trunk.” Id. After that statement, the officer Mirandized Farris and

asked him the same questions and received the same responses. Id. at ¶ 4. The officer searched

the car. Id. at ¶ 5. The officer found a marijuana pipe in the trunk and charged Farris with

possession of drug paraphernalia. Id. Farris moved to suppress his statements and the physical

evidence. Id. at ¶ 6.

        {¶14} Relying on Seibert, the Ohio Supreme Court held Farris’ post-Miranda statements

were inadmissible because the questioning of Farris pre- and post-Miranda were part of a single

interrogation that prevented him from being able to make an informed choice about giving an

admissible statement after the Miranda warnings. Farris at ¶ 30.

        {¶15} The Ohio Supreme Court further excluded the physical evidence seized as a result

of those statements, finding that the Self-Incrimination Clause of Section 10, Article I of the

Ohio Constitution provides greater protection to criminal defendants than the Fifth Amendment

of the United States Constitution. Farris at ¶ 9, 48. Farris held that “[o]nly evidence obtained

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

should be excluded.” (Emphasis added.) Id. at ¶ 49.
                                                  6


       {¶16} This case is distinguishable from Farris. Ms. Keyser made two incriminating pre-

Miranda statements: the location of the needles and an admission to injecting all of the heroin.

The pre-Miranda statement regarding the location of the needles led to their discovery. These

two statements, however, did not incriminate Ms. Keyser as to the possession of any additional

heroin. By saying she used all of the heroin, Ms. Keyser denied possessing any additional drugs.

       {¶17} After being Mirandized, Ms. Keyser made the same incriminating statements

about the needles and her injection of the drugs. When confronted with the heroin found in her

wallet, Ms. Keyser admitted it was hers. Accordingly, the officers did not find the heroin based

on any of Ms. Keyser’s pre- or post-Miranda statements. Instead, the officers found the heroin

during the inventory search and search incident to arrest.         See State v. Odavar, 8th Dist.

Cuyahoga No. 89029, 2007-Ohio-5535, ¶ 15 (holding Farris is inapplicable because a crack pipe

was found pursuant to an inventory search and not defendant’s statements).

       {¶18} Applying Farris to the facts found by the trial court, this Court agrees as a matter

of law that the heroin is not subject to suppression because it was not discovered as a direct result

of any of Ms. Keyser’s statements while made in custody without the benefit of Miranda.

       {¶19} Although the trial court correctly relied on Seibert to exclude Ms. Keyser’s

statements, its reliance on Seibert to deem the heroin admissible because it was “not ‘fruit of any

poisonous tree’” is misplaced. Seibert, relying on Oregon v. Elstad, 470 U.S. 298 (1985),

addressed the admissibility of successive, unwarned statements and specifically rejected the

application of the Fourth Amendment “fruit of the poisonous tree” doctrine to a Miranda

analysis. Seibert, 542 U.S. at 612, fn. 4. There was no physical evidence seized in Seibert or

Elstad. Thus, a Seibert analysis is not applicable to the heroin in this case.
                                                   7


       {¶20} Nevertheless, the trial court reached the correct overall conclusion. Because the

facts in this case are inapposite to Farris, the trial court correctly found the heroin is admissible.

       {¶21} In her reply brief, Ms. Keyser challenges the State’s Fourth Amendment

arguments by questioning the validity of the inventory search. However, this Court declines to

address that issue because Ms. Keyser’s sole assignment of error was narrowly tailored to the

Self-Incrimination Clause of the Ohio Constitution and Fourth Amendment arguments are not

applicable.

       {¶22} Ms. Keyser’s sole assignment of error is overruled.

                                                 III.

       {¶23} Ms. Keyser’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT




TEODOSIO, J.
CONCURS.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶24} I concur in the majority’s judgment; however, I would affirm on the basis that

Keyser has forfeited the issue of the suppression of the heroin on appeal.

       {¶25} On appeal, Keyser asserts that the heroin discovered in the car should be

suppressed as a result of the Miranda violations. However, Keyser did not argue that at the trial

court level. While Keyser generally alleged in her suppression motion that any and all evidence

should be suppressed, at the suppression hearing, Keyser indicated that her motion was limited to

two issues:   (1) whether there was reasonable suspicion/probable cause sufficient to allow

officers to approach and detain her; and (2) whether Keyser’s statements were taken in violation

of Miranda and should be suppressed. As Keyser failed to advance the specific argument in the

trial court that the heroin should be suppressed based upon the Miranda violations, I would

conclude that she failed to preserve the issue and cannot now raise it on appeal. See State v.

Nestor, 9th Dist. Summit No. 27800, 2016-Ohio-1333, ¶ 18 (declining to address an argument

for the first time on appeal where defendant did not raise it in the motion to suppress or at the

suppression hearing); State v. Manso, 9th Dist. Summit No. 26727, 2014-Ohio-1388, ¶ 7

(concluding that, where defendant limited his argument to the basis of the stop at the suppression
                                               9


hearing, he could not raise the issue of his removal from the vehicle on appeal). Accordingly, I

concur in the majority’s judgment.




APPEARANCES:

REBECCA M. BLACK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
