[Cite as State v. Benson, 2019-Ohio-3234.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :      OPINION

                  Plaintiff-Appellee,            :
                                                        CASE NO. 2018-A-0054
         - vs -                                  :

 LYNDEE A. BENSON,                               :

                  Defendant-Appellant.           :


 Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018-
 CR-0094.

 Judgment: Reversed and remanded.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Plaintiff-Appellee).

 Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, Suite 202,
 Ashtabula, OH 44004 (For Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Lyndee A. Benson, appeals her conviction for aggravated

possession of drugs following her no contest plea. Ms. Benson argues the Ashtabula

County Court of Common Pleas erred in denying her motion to suppress. We reverse

and remand, having determined from the totality of the circumstances that once Ms.

Benson admitted to having drugs in her purse and was removed from the vehicle, she

was, as any reasonable person would believe, in custody. Thus, her statements following
her initial admission to the police should have been suppressed. The trial court made no

factual findings as to the physical evidence from the search of Ms. Benson’s purse that

occurred at the same time she was removed from the vehicle. Thus, the trial court has

failed to provide us with a sufficient basis upon which to determine whether its decision

to not suppress the physical evidence was supported by competent, credible evidence.

We remand on this limited basis for the trial court to make findings of fact and conclusions

of law based on the evidence adduced at the suppression hearing as to whether the drugs

seized were the result of an unlawful search.

                         Substantive and Procedural History

       {¶2}   Ms. Benson’s conviction stems from a traffic stop of a targeted vehicle in

which she was a passenger.             Upon the officer’s questioning, she admitted

methamphetamine was in her purse. A search of her purse discovered the drugs.

       {¶3}   Ms. Benson was indicted and charged with aggravated trafficking in drugs,

a felony of the fourth degree, and aggravated possession of drugs, a felony of the fifth

degree. She subsequently filed a motion to suppress, arguing her statements and the

substances found were inadmissible because she was subjected to a custodial

interrogation without any Miranda warnings.

                               The Suppression Hearing

       {¶4}   Ashtabula County Sheriff’s Deputy Scott Daniels (“Officer Daniels”) was the

sole witness at the hearing. He testified that he was on a special assignment as a “chase

car.” This meant he was assigned to a targeted drug residence and instructed to follow

any vehicle leaving the residence until the vehicle either committed a traffic violation or

led to other investigative sources.




                                             2
       {¶5}   An individual Officer Daniels was familiar with, Ryan Dougherty, was driving

the vehicle. Mr. Dougherty had been observed dropping off a female on West 38th Street

and circling the block while the female went into a residence. Officer Daniels was

instructed to follow the truck once the female returned to the vehicle.

       {¶6}   Once the truck left the area with the female inside, Officer Daniels followed

the vehicle for approximately one mile before observing Mr. Dougherty fail to signal while

changing lanes. Officer Daniels initiated a traffic stop, and several other cruisers

appeared on the scene, pulling up behind Mr. Dougherty’s vehicle. These cruisers, at

least one unmarked and two with K-9 officers, were involved in the chase car operation

and on standby in the area. Two of these officers, Sergeant Trader, an interdiction drug

officer with the Ohio State Highway Patrol, and Officer Hildebrand, an interdiction drug

officer with the Ashtabula City Police, were the first to approach the vehicle. The K-9

officers, while available, were never deployed.

       {¶7}   Officer Daniels then had a conversation with Ms. Benson, asking her “* * *

where she was coming from. If she knew the driver. I asked her if there was anything

illegal I should know about inside the vehicle or on her person.” She responded that

“There wasn’t.” He told her he had observed her moving around the vehicle before the

stop and that it was at that point, Officer Daniels testified, she “started breathing hard”

and became visibly nervous, failing to make eye contact.

                                  The Body Cam Video

       {¶8}   The video from the body cam, worn by Officer Daniels and submitted into

evidence, was played during the hearing. The video is 14 minutes and 34 seconds in

length and begins without audio for approximately one minute. Ms. Benson is seen sitting




                                             3
in the front passenger seat. She gives her license to Officer Daniels. Only Officer Daniel’s

hands, which are holding her license, are visible. Ms. Benson’s face is obscured by the

officer until he reaches toward the body cam and turns on the audio, shifting his position.

       {¶9}   After audio recording begins, Officer Daniels can be heard telling Ms.

Benson, “I can already see how nervous you are getting. You got something on you.” At

that point, Ms. Benson states, “I do.”      The officers can be heard asking Ms. Benson

“where’s it at,” and telling her to “tell the truth,” and “be honest.” It is not long before Ms.

Benson admits to having something in her purse. She is told to step out of the vehicle

and leave the purse on the seat.

       {¶10} At this point, Ms. Benson is standing outside the vehicle. Sergeant Trader

opens the driver’s side of the vehicle and retrieves her purse. The other two officers are

surrounding Ms. Benson, and multiple police cruisers are behind the vehicle. She admits

to having “speed” in her purse, no needles, and “nothing else.” An officer asks her where

she got it and then tells her, “this is where your honesty is really going to help me out.”

       {¶11} Ms. Benson tells the officers she “got it from a friend to give to a friend” and

was doing a favor for a “friend.” The officers inquire as to her driver, Mr. Dougherty, who

she disclaimed knowing, stating he was simply “a ride” and had “no idea what she was

doing.” The officers keep questioning who the friend was and how she knew where to

go, urging her “to be honest,” and stating, “this is the time to be honest, think about what

we are asking you.” Ms. Benson does not reply, appears visibly nervous and chokes

back tears.

       {¶12} An officer then asks her how often she goes over “there” to do friends a

“favor.” Eventually, the officer’s questioning elicits an admission that the drugs belonged




                                               4
to the daughter of Ms. Benson’s aunt [Ms. Benson’s cousin], who told her to drop the

drugs off to an individual who would meet her in a nearby park. The unknown individual

would approach her, and no money would be exchanged.

       {¶13} The officers interject statements with their questioning, such as: “you can

tell us who it was from,” “we won’t go run and tell them, that’s not what this is about,” and

“the best thing you can do is be honest, we already know a lot of what we are going to

find.” When asked about her personal drug use, she admits she smokes or did smoke

marijuana.

       {¶14} Sargent Trader interrupts the questioning and again asks Ms. Benson how

she knows Mr. Dougherty. She repeats that Mr. Dougherty is simply giving her a ride.

Sergeant Trader informs Officer Daniels that one of them (Ms. Benson or Mr. Dougherty)

is lying since their stories are not the same. He continues to ask her how she knows Mr.

Dougherty and through which mutual acquaintances. Officer Daniels interjects with the

name, “Donny,” and the officers continue to interrogate her as to whether Mr. Dougherty

is friends with Donny, and “Donny who.”

       {¶15} Ms. Benson raises her hands to her face and says, “I can’t even…I can’t

have both of you….” Officer Daniels says, “Okay, we will just let him talk to you,” pointing

to Sergeant Trader. After several more questions, Sergeant Trader walks away, saying

within earshot of Ms. Benson, “does she want to go to jail?” Officer Daniels asks her

again, “who did she get this methamphetamine from?”

       {¶16} After several more questions as to whom she was meeting, Officer

Hildeband asks her if “she would be willing to go back there to buy more ‘ice’ for the

police?” Ms. Benson replies this is her aunt’s house, so she does not know. He then




                                             5
asks her how much methamphetamine was at the house. She says, she “doesn’t know,”

and that “she [her aunt] had what was left and put it on a scale and handed it to her” and

said, “when I got kicked out of my ex’s house, she let me stay in Ohio Village and she just

said I owed her a favor.” Officer Daniels then asks, “What do you guys want to do with

her?”

        {¶17} The officers discuss taking her to the station and charging her with

possession. They then again question Ms. Benson about whom she was meeting and

where. Dispatch can be heard over the questioning, “For clarity, they came out of a

different residence than our target residence, just so you guys know.” Officer Daniels

continues questioning her as to whom “she was meeting; what she was supposed to do,

and how it was that guy even now knows who she was even meeting?” She describes

what her aunt instructed her to do. Then an officer states, “And now you are getting

charged with possession of drugs * * * and trafficking * * *.”

        {¶18} As two of the officers walk away, one asks Ms. Benson if she “knows where

her aunt is getting “it” [the drugs] from.   The officer then shows the drugs to a woman in

the front seat of one of the cruisers, telling her it was “meth, crystal, it comes out of

Mexico.” The video ends with Ms. Benson with her head in her hands and the officers

standing around the scene discussing what they should do next.

        {¶19} Ms. Benson was never placed under arrest, was never handcuffed, and was

never given Miranda warnings.

        {¶20} The trial court denied Ms. Benson’s motion to suppress all evidence finding

that on review of the testimony and evidence presented, “it does not appear that this was

a custodial interrogation necessitating Miranda warnings.”




                                               6
       {¶21} Ms. Benson entered a written plea of no contest to aggravated possession

of drugs, in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree. The

aggravated trafficking in drugs count was dismissed. The court sentenced Ms. Benson to

two years of community control, with conditions.

       {¶22} Ms. Benson now timely appeals, raising the following assignment of error:

       {¶23} “The trial court erred when overruling Appellant’s motion to suppress.”

                       Motion to Suppress Standard of Review

       {¶24} We give due deference to the trial court’s assignment of weight and

inferences drawn from the evidence when ruling on a motion to suppress on appeal.

(Citations omitted.) State v. Starcovic, 11th Dist. Portage No. 2007-P-0081, 2008-Ohio-

2758, ¶10, citing State v. Wilson, 11th Dist. Ashtabula No. 2007-A-0044, 2007-Ohio-6557,

¶11.

       {¶25} Thus, appellate review of a motion to suppress presents a mixed question

of law and fact. (Citations omitted.) Id. at ¶11, citing Wilson at ¶12. “The appellate court

must accept the trial court’s factual findings, provided they are supported by competent,

credible evidence. * * * Thereafter, the appellate court must independently determine

whether those factual findings meet the requisite legal standard. Id., citing Wilson at ¶12,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. We review the trial

court’s application of the law de novo. Id., citing State v. Zaken, 11th Dist. Ashtabula No.

2006-A-0036, 2007-Ohio-2306, ¶14.

                                Custodial Interrogations

       {¶26} Ms. Benson raises a single issue in her assignment of error, contending that




                                             7
the trial court erred in ruling she was not subjected to a custodial interrogation that

required Miranda warnings.

       {¶27} “In Miranda [v. Arizona, 384 U.S. 436], at 444, * * * the United States

Supreme Court established procedural safeguards for securing the privilege against self-

incrimination guaranteed by the Fifth Amendment to the United States Constitution. The

Fourteenth Amendment to the United States Constitution makes the privilege against self-

incrimination applicable to a witness in a state proceeding.” Cleveland v. Oles, 152 Ohio

St.3d 1, 2017-Ohio-5834, ¶8, citing Malloy v. Hogan, 378 U.S. 1, 3 (1964). “A similar

privilege is recognized in Article I, Section 10 of the Ohio Constitution.” Id.

       {¶28} “What are now commonly known as Miranda warnings are intended to

protect a suspect from the coercive pressure present during a custodial interrogation.” Id.

at ¶9, citing Miranda at 469. “A custodial interrogation is ‘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., quoting Miranda at 444. “If a suspect

provides responses while in custody without having first been informed of his or her

Miranda rights, the responses may not be admitted at trial as evidence of guilt.” Id.,

quoting Miranda at 479.

       {¶29} “Any statement, question or remark which is ‘reasonably likely to elicit an

incriminating response’ is an interrogation.” State v. Knuckles, 65 Ohio St.3d 494, 495

(1992), citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The questions asked of

Ms. Benson were designed to elicit inculpatory responses.

       {¶30} Ms. Benson was a suspect from the outset. Officer Daniels was instructed

to follow Mr. Dougherty’s truck once the female he dropped off at a target drug house




                                              8
returned to the vehicle. Officer Daniels had suspicions based on facts and circumstances

that occurred prior to the stop and which laid a legitimate foundation for the initial, basic

questions posed to Ms. Benson while she was in the passenger seat of the vehicle. The

same cannot be said of the questions posed after she was removed from the vehicle.

       {¶31} While “[p]olice officers are not responsible for unforeseeable incriminating

responses,” the initial questions were designed and reasonably likely to elicit incriminating

statements. Ms. Benson was a target since she was seen in the vicinity of a known drug

house and was followed by the officers until they had probable cause to stop the vehicle

for a traffic law violation. State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, ¶20

(2d Dist).

       {¶32} After Ms. Benson made her initial incriminating statements, she was

removed from the vehicle and her pursed immediately searched. At this point from the

video, it appears the only legitimate basis for this search was incident to arrest. And it is

at this point we determine the interrogation became a custodial interrogation.

  When does questioning after a traffic stop become a custodial interrogation?

       {¶33} A roadside motorist detained for questioning pursuant to a routine traffic

stop does not usually constitute a custodial interrogation requiring a driver [or passenger]

to be read his or her Miranda warnings. State v. Ferrell, 11th Dist. Portage No. 2017-P-

0018, 2017-Ohio-9341, ¶28, citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984).

       {¶34} The Supreme Court of Ohio recently reviewed the development of the law

in the area of traffic stops and Miranda warnings in the Oles case, supra. Writing for the

majority, Chief Justice O’Connor began the analysis with two critical observations

underpinning the reasonable person in the suspect’s position test from the Supreme Court




                                             9
of the United States’ decision in Berkemer, which were then applied in State v. Farris,

109 Ohio St.3d 519, 2006-Ohio-3255.

       {¶35} The first observation was that “although a traffic stop ‘significantly curtails

the “freedom of action” of the driver and passengers, if any, of the detained vehicle,’ the

stop alone does not render a suspect “in custody” and therefore does not trigger the need

for Miranda warnings.’ * * * ‘[I]f a motorist who has been detained pursuant to a traffic

stop thereafter is subjected to treatment that renders him “in custody” for practical

purposes, he will be entitled to the full panoply of protections prescribed by Miranda.’”

Oles at ¶11, quoting Berkemer at 440.

       {¶36} Secondly, it is the “noncoercive aspects of a traffic stop that ‘mitigate the

danger that a person questioned will be induced ‘to speak where he would not otherwise

do so freely.’” Id. at ¶12, quoting Berkemer at 437. Using examples from Berkemer, the

court contrasted a station house interrogation to a traffic stop, noting the latter is generally

temporary with only a short period of questioning, which may result in a citation before

the driver is free to go, and generally a traffic stop is less “‘police dominated’ than

interrogations that require Miranda warnings because the law-enforcement officer's ‘aura

of authority’ over the driver is offset by the public nature of the stop and the typical one-

to-one ratio of officer to motorist.” Id. at ¶12, citing Berkemer at 437-439.

       {¶37} Thus, the Berkemer court held that “the only relevant inquiry is how a

reasonable person in the suspect's position would have understood his or her situation.”

Id. at ¶13, citing Berkemer at 442.

       {¶38} There is no bright-line rule to employ in determining whether Miranda

warnings are required. Instead, a fact-specific inquiry must be applied to the facts in each




                                              10
case to assess whether an individual during a traffic stop is “in custody” such that Miranda

warnings are required. Id. at ¶21-23.

       {¶39} The Second District has consistently considered ten factors “* * * to assess

how a reasonable person in the defendant’s situation would understand his situation:

       {¶40} “1. What was the location where the questioning took place—i.e., was the

defendant comfortable and in a place a person would normally feel free to leave? For

example, the defendant might be at home as opposed to being in the more restrictive

environment of a police station;

       {¶41} “2. Was the defendant a suspect at the time the interview began (bearing in

mind that Miranda warnings are not required simply because the investigation has

focused);

       {¶42} “3. Was the defendant’s freedom to leave restricted in any way;

       {¶43} “4. Was the defendant handcuffed or told he was under arrest;

       {¶44} “5. Were threats made during the interrogation;

       {¶45} “6. Was the defendant physically intimidated during the interrogation;

       {¶46} “7. Did the police verbally dominate the interrogation;

       {¶47} “8. What was the defendant’s purpose for being at the place where

questioning took place? For example, defendant might be at a hospital for treatment

instead of being brought to the location for questioning;

       {¶48} “9. Were neutral parties present at any point during the questioning;

       {¶49} “10. Did police take any action to overpower, trick or coerce the defendant

into making a statement.” State v. McCrary, 2d Dist. Montgomery No. 18885, 2022 WL




                                            11
125760 (Feb.1, 2002), 2-3, citing State v. Estepp, 2d Dist. No. Montgomery App. 16279,

1997 WL 736501 (Nov. 26, 1997), 4.

                               The Trial Court’s Findings

       {¶50} In this case, the trial court found the following facts determinative of a non-

custodial interrogation:

       {¶51} “Defendant exits the vehicle at the direction of the officers. Five uniformed

officers including Deputy Daniels are visible on the body camera footage. The officers

continue to talk and ask the Defendant questions for approximately twelve minutes.

However, in the first two minutes of speaking with the Defendant, she provided her

identification and acknowledged she has an illegal substance. At no time on the video

was the Defendant advised of any Miranda rights warnings.            During this time, the

Defendant is standing by the vehicle. She is not handcuffed, placed in a police cruiser,

or constrained in any way. She was not patted down. An officer tells her, ‘this is your

time to be honest with us.’ The Defendant voluntarily answers questions regarding the

alleged drugs. The Defendant was not arrested.”

       {¶52} While the trial court correctly cited the Berkemer standard and considered

cases addressing the Fifth Amendment right under the United States Constitution, it failed

to consider the test set out in Oles and to consider the import of Article I, Section 10 of

the Ohio Constitution that provides greater protections than the Fifth Amendment

regarding the admissibility of physical evidence seized as the result of statements made

without the benefit of Miranda warnings. In fact, the trial court made no findings regarding

the evidence seized.

                   Applying the Oles Test to the Facts of This Case




                                            12
       {¶53} When we apply the law to the facts presented, we find no reasonable

person, who upon questioning admits to possessing an illegal substance, is then asked

to step from the vehicle blocked in the rear by three police cruisers and is surrounded by

five officers, with three of those officers interrogating her regarding her possession of

drugs and what she intended to do with the drugs, would believe herself not to be “in

custody.” Her purse is not within reach; she is not asked whether she will voluntarily

consent to a search of her purse; a baggie is taken from inside her purse; and the

interrogation continues without Miranda warnings.

       {¶54} These facts present a situation that “exerts upon a detained person

pressures that sufficiently impair his free exercise of his privilege against self-

incrimination to require that [she] be warned of [her] constitutional rights.” Ferrell at ¶31,

quoting Ole at ¶30-31.

       {¶55} “It is not a detainee’s freedom of movement that makes a traffic stop

constitutionally unoffensive. It is, instead, the relative brevity, limited scope, and non-

threatening character of the police intrusion.” Ferrell at ¶28, quoting State v. Wineberg,

2d Dist. Clark No. 97-CA-58, 1998 WL 409021, 5 (Mar. 27, 1998), citing Berkemer. See

Ferrell at ¶37 (where we reversed the trial court’s denial of appellant’s motion to suppress,

holding that under the totality of the circumstances, the appellant was “in custody” at the

time he admitted the substances in his sock were “dope and heroin” and that he had a

“rig” in his backpack). See also Farris at ¶4 (where the Supreme Court of Ohio found the

appellant’s incriminating statements inadmissible because he was administered Miranda

warnings after admitting he had marijuana in the trunk of his car but was not told that his

previous admissions could not be used against him. The officer then asked the appellant




                                             13
the same questions and obtained the same responses regarding the location of the drug

paraphernalia).

       {¶56} The questions from the outset of the stop were investigative as to Ms.

Benson’s crime of possession and possession for sale. Once Ms. Benson admitted to

having “speed,” and the police removed her from the vehicle, she was for all intents and

purposes “in custody.”

       {¶57} She was then subjected to extended questioning by multiple officers as to

the possession of and her intent to deliver the drugs. As previously noted, from the video

it appears the only legitimate basis for this interrogation was incident to arrest. In fact,

the officers discussed whether to further detain Ms. Benson, but until that determination

was made, Ms. Benson was clearly not free to leave. Miranda advisements should have

preceded any questioning after Ms. Benson was removed from the vehicle.

       {¶58} Ms. Benson’s case is quite like another drug interdiction case in the Second

District, State v. Jirac, 2d Dist. Montgomery No. 15-CR-756, 2016-Ohio-8187, which

affirmed the lower court’s grant of a suppression motion after a thorough consideration of

the ten factors. Law enforcement had intercepted nine kilos of a Schedule I drug in

Lexington, Kentucky and then decided to allow the drugs to continue to its destination at

the Centerville, Ohio UPS office in order to identify the recipient. Id. at ¶3.

       {¶59} A team was assembled in and around the UPS store. Id. Mr. Jirac arrived,

collected the package, and was intercepted before he was able to leave the store. Id. He

was told why he was being detained and was taken out the back door for questioning

designed to obtain information about the supply chain in a more private setting. Id.

Without prior Miranda warnings and with comments from the interrogating officer that




                                             14
cooperation would be helpful to Mr. Jirac’s predicament, Mr. Jirac agreed to cooperate

and gave details of the operation. Id. Mr. Jirac was Mirand-ized later at the station and

once again made inculpatory statements. Id.

       {¶60} The Second District affirmed the trial court’s decision to suppress the

evidence considering the totality of the circumstances and the objective test of whether a

reasonable person, under similar circumstances, would have understood that he was in

custody at the time of the interrogation. Id. at ¶12. Both the trial court and the reviewing

court relied on evidence in the record to find that “by show of authority, Jirac was detained

from leaving the UPS Store, was told that the package contained illegal substances, was

directed to the back parking lot so that he could not flee, and was then questioned about

the drugs in the presence of multiple officers.” Id.

       {¶61} In this case, as the body cam footage demonstrated, after Ms. Benson was

removed from the vehicle, she was subjected to police questioning that could only elicit

self-incriminating statements. There were no questions regarding the reason for the

traffic stop. The questions were “designed to pressure a suspect to confess to illegal

conduct.” Oles at ¶28. The officers were clearly using open-ended questions about the

drugs in Ms. Benson’s possession, her supplier, and what she intended to do with the

drugs. Indeed, this questioning elicited statements that formed the basis for not just an

aggravated possession count but an aggravated trafficking in drugs count as well.

       {¶62} Further, they were exerting coercive pressure by telling her “to be honest,”

and that they would “not run and tell the person” from whom she was getting the drugs.

Not once did the officers advise her about her legal rights to silence and counsel.




                                             15
      {¶63} Ms. Benson was physically in between an open vehicle door and two or

more officers, who surrounded her during the interrogation. The truck, in which she was

a passenger, was blocked in by multiple patrol cars. There were no neutral persons

present. The officers verbally dominated the interrogation. At one point she throws up

her hands at the barrage of questions from two officers at the same time and states, “I

can’t even…I can’t have both of you….” At which point, Officer Daniels instructs Sargent

Trader to solely pose questions to Ms. Benson.

      {¶64} By any objective measure, the questioning by the police in this case was

“systematic, exhaustive, and managed with psychological skill.” Farris at ¶29. “These

circumstances must be seen as challenging the comprehensibility and efficacy of the

Miranda warnings to the point that a reasonable person in the suspect’s shoes would not

have understood them to convey a message that she retained a choice about continuing

to talk.” (Emphasis added.) (Citation omitted.) Id.

      {¶65} This is not a case where the suspect admitted to possessing a substance

and then was informed of her rights before questioning resumed with an advisement that

the earlier statements could not be used against her (the voluntariness test). This is a

case where law enforcement completely failed to inform Ms. Benson of her right against

self-incrimination. Under these circumstances, Ms. Benson’s statements made after she

was removed from the vehicle should have been suppressed.

      {¶66} The dissent takes issue with and misapprehends our consideration of the

Second District’s Estepp factors, arguing the factors are an “artificial test,” which will

“unnecessarily burden” an officer with considering as many as ten factors in order to

determine if a Miranda warning is required.




                                           16
       {¶67} These factors are not an exhaustive and exclusive metric to be utilized in

law enforcement training or by a reviewing court when evaluating whether Miranda

warnings should be given at any point during questioning. These ten factors are

characteristics to consider together with all other facts and circumstances surrounding

the suspect’s encounter with law enforcement when applying the Oles “suspect position”

test—how a reasonable person in the suspect’s position would have understood his or

her situation.

                 The Trial Court Failed to also Consider the Enhanced
                    Protection Afforded by the Ohio Constitution.

       {¶68} In Farris, supra, the Supreme Court of Ohio examined whether the

protections against self-incrimination under the Fifth Amendment of the United States

Constitution and Section 1, Article 10 of the Ohio Constitution prevent evidence to be

excluded that was obtained as a direct result of statements made in custody without the

benefit of Miranda warnings.

       {¶69} The court reviewed the Supreme Court of the United States’ holding in

United States v. Patane, 542 U.S. 630 (2004), where the court rejected the argument that

physical evidence seized as a result of unwarned statements is the practical equivalent

of a statement, declining to extend the Fifth Amendment protection against self-

incrimination to direct evidence. Id. at ¶42-44, citing Patane at 643-44. This did not,

however, end the Supreme Courtof Ohio’s analysis since “[t]he Ohio Constitution ‘is a

document of independent force[,] * * * [and] state courts are unrestricted in according

greater civil liberties and protections to individuals and groups.’” Id. at ¶46, quoting Arnold

v. Cleveland, 67 Ohio St.3d 35 (1993), paragraph one of the syllabus.




                                              17
       {¶70} The Supreme Court of Ohio held that “Section 10, Article I of the Ohio

Constitution provides greater protection to criminal defendants than the Fifth Amendment

to the United States Constitution.” Id. at ¶48. “Only evidence obtained as the direct result

of statements made in custody without the benefit of a Miranda warning should be

excluded.” Id. at ¶49. The court expounded that to “hold otherwise would encourage law-

enforcement officers to withhold Miranda warnings and would thus weaken Section 10,

Article I of the Ohio Constitution.” Id.

       {¶71} While we recognize the law in Farris, supra, we cannot say based on the

trial court’s determinations of fact if it applies to the case at hand. Ms. Benson was not

arrested at the scene. She was issued a citation. As a result, the failure of the trial court

to make any factual determinations and legal conclusions in its judgment entry regarding

the evidence seized is problematic because the record is not clear as to the state’s

justification for searching the purse given that she was not taken into custody.

       {¶72} Crim.R. 12(F) mandates that a trial court state its essential findings on the

record when factual issues are involved in determining a motion to suppress. State v.

Brown, 2d Dist. Montgomery No. 24297, 2012-Ohio-195, ¶10. We note that Ms. Benson

did not specifically request findings of fact; however, the record, standing alone is

insufficient to allow a review of the search of Ms. Benson’s purse and the drugs seized.

Id.

       {¶73} Because the trial court failed to provide us with a sufficient basis upon which

to determine whether its decision was supported by competent, credible evidence, we

remand for the trial court to make findings of fact and conclusions of law based on the




                                             18
evidence adduced at the suppression hearing as to whether the drugs seized were the

result of an unlawful search.

      {¶74} The procedural safeguards articulated over 50 years ago in Miranda v.

Arizona have been sometimes criticized as interfering with law enforcement’s ability to

effectively investigate crimes, but despite challenges to Miranda, the core principles

articulated in the decision have withstood the test of time and have not hamstrung crime

fighting. Many forget that after his conviction was overturned, Mr. Miranda was retried—

his confession was not introduced into evidence and he was convicted.

      {¶75} The trial court’s decision is reversed, and the case remanded for the trial

court to make findings of fact and conclusions of law based on the evidence adduced at

the suppression hearing as to the search of Ms. Benson’s purse and the drugs seized.



TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion,

MATT LYNCH, J., dissents with a Dissenting Opinion.


                                   ____________________




TIMOTHY P. CANNON, J., concurring in judgment only.

      {¶76} I respectfully concur in judgment only with regard to the lead opinion, as I

do not believe we need to address, adopt, or apply the ten factors outlined by the Second

District in Estepp and McCrary, supra. The Supreme Court of Ohio has held that the only

relevant inquiry in determining whether a person is in custody is how a reasonable person

in the suspect’s position would have understood his or her situation under the totality of

the circumstances. See, e.g., State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶14



                                           19
and Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, ¶1 (following Berkemer v.

McCarty, 468 U.S. 420, 442 (1984)). In this case, the circumstances are clear and

straightforward.

       {¶77} The dissenting opinion also merits a response. While there are many

interesting comments in the dissent, I cannot agree with describing this as a “routine traffic

stop.” It was anything but. The officers observed Benson exiting from what they believed

was a drug house. They were mistaken. The drug house was next door to the house

from which Benson exited. The vehicle in which Benson was a passenger was then pulled

over by officers from (1) the Ashtabula City Police, (2) the Ashtabula County Sheriff’s

Department, and (3) the Ohio State Patrol. They literally surrounded the vehicle. When

the officers approached passenger Benson, there was no discussion regarding any

reason for a traffic stop—they were immediately focused on drug possession. The cases

cited by the dissent that permit an officer to question the driver regarding the basis for a

traffic stop simply do not apply here.

       {¶78} Based on the officers’ mistake of fact and Benson’s admissions, the nature

of the encounter was one of an extended detention, not a routine traffic stop. See Farris,

supra, at ¶12 (“Here, Farris’s extended detention was not based upon the purpose of the

original stop, excessive speed, but was based upon Menges’s detection of the scent of

burnt marijuana.”). “Although a motorist who is temporarily detained as the subject of an

ordinary traffic stop is not ‘in custody’ for the purposes of Miranda * * *, if that person

‘thereafter is subjected to treatment that renders him “in custody” for practical purposes,

he will be entitled to the full panoply of protections prescribed by Miranda.’” Id. at ¶13,

quoting Berkemer, supra, at 440.




                                             20
       {¶79} Also, the dissenting opinion states that the lead opinion “takes issue only

with the questioning by police that took place after Benson exited the vehicle.

Presumably, had Benson not been asked to move a few feet to the right in order to leave

the car, the majority would find no necessity to Mirandize her.” This characterization

misses the point of the holding in this case. While Benson was still in the car, she admitted

to having drugs in her purse. Up to that point, the officers had no reason to detain her.

After she admitted to having drugs in her purse, an officer told Benson to exit the vehicle

and leave her purse. As she exited, Benson watched another officer retrieve her purse

from the driver’s side and begin to search for the drugs. At that time, she was surrounded

by at least three police officers. No reasonable person, knowing she had just admitted to

having drugs and that the drugs were now in possession of the police, would believe she

was free to go.

       {¶80} Our holding today follows very clear precedent from the Supreme Court of

Ohio. It is not in any way, as the dissent suggests, an expansion or a loose interpretation

of Miranda. Further, the case against Benson is not dismissed as a result of this opinion:

it is remanded for the trial court to proceed, but without the (very limited) incriminating

statements made in response to questions posed by officers after Benson had been

detained for possessing drugs. The outcome of the proceedings thus far, i.e., Benson’s

plea to one count of drug possession, may not change on remand.



                                    ____________________




MATT LYNCH, J., dissents with a Dissenting Opinion.



                                             21
       {¶81} I respectfully dissent from the majority’s decision to reverse the trial court’s

denial of Benson’s motion to suppress on the ground that statements elicited from Benson

occurred during an interrogation while she had not been Mirandized. A review of the

totality of the circumstances indicates that the police questioning of Benson occurred

during a traffic stop at which time she was not in custody. Since the facts do not support

a conclusion that a custodial interrogation took place, suppression is unwarranted.

       {¶82} A fair and thorough review of whether Miranda warnings were necessary in

the present matter cannot be completed without first considering the underlying rationale

of the Miranda decision and whether it has been expanded in a manner that provides

protections to defendants that were not anticipated and are more detrimental than

beneficial to society as a whole. Considering both the majority’s holding in Miranda v.

Arizona, 384 U.S. 436, 545, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as well as the opinions

of the dissenting justices provides necessary context, lest this court or others fail to

appreciate the concerns that arise when interpreting Miranda rights too broadly and

expanding rights beyond what were anticipated by the framers of the Fifth Amendment.

       {¶83} In 1966, the majority in Miranda expressed concern with the current police

tactics utilized in obtaining confessions, emphasizing that in each of the cases before the

court on appeal, “the defendant was questioned by police officers, detectives, or a

prosecuting attorney in a room in which he was cut off from the outside world,” being

“thrust into an unfamiliar atmosphere and run through menacing police interrogation

procedures.” Miranda at 445, 457. The court sought to address the dangers inherent in

this secret and private form of interrogation. It further examined police officers’ use of

physical and psychological coercion, emphasizing the utilization of questioning tactics




                                             22
specifically designed to coerce suspects, such as asking questions designed to minimize

moral blame, create insecurity, and trick the subject of the questioning. Id. at 450-455.

These concerns greatly influenced the Supreme Court’s now well-known holding that a

person facing a custodial interrogation must be advised of his right to remain silent and

right to the presence of an attorney and warned that his statements can be used against

him.

       {¶84} The Miranda court adopted this standard in light of concerns where police

questioning was often a secretive practice conducted in the private confines of an

interrogation room. However, this standard has been interpreted over the following

decades to encompass questioning of suspects that is far less likely to be coercive. At

the time Miranda was decided, several justices expressed alarm with its scope and

breadth in interpreting and applying the Fifth Amendment, noting: “for all the Court’s

expounding on the menacing atmosphere of police interrogation procedures, it has failed

to supply any foundation for the conclusions it draws or the measures it adopts.” Miranda

at 537 (White, J., dissenting).

       {¶85} While there may be legitimate concerns about improper questioning by

police in some scenarios, there is little proof that creating an expansive interpretation of

the Fifth Amendment is the proper method to address such issues. Studies conducted

after the Miranda decision have demonstrated negative consequences associated with

providing Miranda warnings. One study, which collected and analyzed statistics from

multiple cities, concluded that confession rates fell approximately 16 percent post-

Miranda. Cassell and Fowles, Still Handcuffing the Cops? A Rev. of Fifty Years of

Empirical Evidence of Miranda’s Harmful Effects on Law Enforcement, 97 B.U.L.Rev.




                                            23
685, 691-692, 695 (2017) (also noting that the National Research Council of the National

Academy of Sciences has found that studies suggest Miranda warnings “may have

resulted in a reduction of confessions of between 4 and 16 percent”).

       {¶86} Further, it was recognized Miranda constituted a significant deviation from

the   Supreme    Court’s   prior holdings.        As   Justice   Clark   emphasized    in   a

dissenting/concurring opinion in Miranda, custodial interrogation had long been accepted

as an important tool of law enforcement and was evaluated under a general totality of the

circumstances rule rather than requiring additional, burdensome requirements such as

an affirmative waiver, the burden of proving waiver placed on the prosecution, the

required presence of counsel during questioning, and the ability to withdraw waiver.

Noting the history of case law to the contrary, Justice Clark concluded that “[t]o require

all those things at one gulp should cause the Court to choke over more cases than” only

the two it expressly overruled. Miranda at 502 (Clark, J., concurring in part and dissenting

in part).

       {¶87} The majority herein now takes another large swig from the chalice of

unintended consequences by expanding the meaning of being in custody.

       {¶88} Concerns raised regarding the expansion of Miranda have been borne out

by the application of Miranda in this state, with questioning performed during roadside

traffic stops interpreted as custodial interrogations even in instances where there has

been no arrest. In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d

985, a routine traffic stop was conducted for speeding. Upon the officer noticing the odor

of marijuana, Farris was instructed to enter the police cruiser while a search of his vehicle

was conducted. The court held that statements made while Farris was questioned inside




                                             24
of the cruiser amounted to a custodial interrogation. Id. at ¶ 12-15. However, Farris was

not handcuffed, not told he was under arrest, nor otherwise placed into formal custody.

The Ohio Supreme Court has reaffirmed its application of Miranda in Farris in a

subsequent decision as well, Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92

N.E.3d 810, ¶ 23, confirming its expansion of the definition of custodial interrogation under

Miranda.

       {¶89} Any expansion of the definition of custodial interrogation under Miranda is

especially troubling because of its overall impact on society. The defendant is not the

only person impacted by the decisions made by the courts in this arena. As adeptly

summarized in Justice White’s Miranda dissent: “The Court’s duty to assess the

consequences of its action is not satisfied by the utterance of the truth that a value of our

system of criminal justice is ‘to respect the inviolability of the human personality’ and to

require government to produce the evidence against the accused by its own independent

labors. * * * More than the human dignity of the accused is involved; the human

personality of others in the society must also be preserved. Thus the values reflected by

the privilege are not the sole desideratum; society’s interest in the general security is of

equal weight.” Miranda at 537 (White, J., dissenting).

       {¶90} Justice White expanded upon the “undesirable impact” of extending Fifth

Amendment rights too far, using the example of the need to protect society from the

danger of a murderer and the impact of releasing such an offender due to a failure to

provide Miranda warnings has on society. Id. at 539.

       {¶91} The interest in protecting society raised by Justice White is perhaps

nowhere more applicable than in the present case involving drug trafficking and drug




                                             25
dealing. Removing a drug trafficker from the streets by an arrest and conviction provides

a significant benefit to society while also protecting potential victims from the dangers

arising from drug use, a danger which cannot be overstated. Particularly noteworthy is

the fact that a conviction also serves the interests of the offender, holding her accountable

for the crime and providing the ability to return to society improved. This is especially

relevant in our current court system, where programs such as drug courts provide

rehabilitative functions that serve a defendant far better than being returned to the

streets.1

        {¶92} Removal of options to treat those suffering from drug addiction is a

legitimate concern in the application of Miranda. Ohio Supreme Court Chief Justice

Maureen O’Connor recently emphasized the necessity of utilizing the criminal justice

system to treat drug offenders when discussing a proposed constitutional amendment to

reclassify lower level drug offenses. She observed that the proposed amendment would

“take away the incentive from people who are suffering from substance abuse disorders

to carry out the terms of probation, especially the term of treatment.” This would prevent

judges from utilizing tools such as the imposition of a prison term for a parole or probation

violation, which can successfully push the defendant toward drug rehabilitation. Toledo,

Ohio Chief Justice Takes Hardline Stance Against Issue 1, The Observer,

http://observer.case.edu/ohio-chief-justice-takes-hardline-stance-against-issue-1/ (Nov.

2, 2018). The Chief Justice recognized: “We also know that through long-term treatment




1. According to the National Institute of Justice, drug court programs have been shown to decrease
recidivism, with one county showing that the felony re-arrest rate decreased from 40 percent before the
drug court program to 12 percent after the drug court was instituted. National Institute of Justice, Do Drug
Courts Work? Findings from Drug Court Research, https://www.nij.gov/topics/courts/drug-
courts/pages/work.aspx (accessed August 1, 2019).


                                                    26
and therapy, those addicted can lead law-abiding, productive lives.” O’Connor, The

Hidden Disaster of State Issue 1, http://ohiopa.org/oconnor1.pdf (Aug. 28, 2018).

       {¶93} The deterrent function of our justice system is eviscerated by loosely

interpreting Miranda to allow an addicted defendant to evade punishment and miss the

opportunity for treatment. Rather than failing to hold a defendant accountable while

exercising an overabundance of caution in protecting against perceived improper

behavior by officers, it would be wise to consider that accountability for offenders provides

a better outcome for society and for the offender.

       {¶94} Expanding Miranda may serve to return drug dealers and traffickers to the

streets of their communities although there is reasonable evidence to demonstrate that

they have committed a crime. Courts may claim to have upheld the rights of the defendant

but this overzealous protection comes at the expense of the right of the public to feel safe

and secure and may actually lead to the overdose of a defendant who might have

otherwise escaped the death sentence of addiction. The expansion of the duty to use

Miranda requirements may serve to provide even more protections to the accused but we

must ask “at what cost?”

       {¶95} With the foregoing in mind, it is necessary to consider whether Miranda

warnings were required under the facts of the present case. It has been consistently held

that routine traffic stops ordinarily do not give rise to concerns regarding custodial

interrogations or require Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 436,

104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); State v. Steerman, 11th Dist. Ashtabula No. 2007-

A-0054, 2008-Ohio-1691, ¶ 44; State v. Stone, 11th Dist. Portage No. 2007-P-0048,

2008-Ohio-2615, ¶ 18. This is the case for a multitude of reasons, including that such




                                             27
stops are brief and take place in public, allowing others to observe the interactions

between the officer and motorist. “This reduces the ability of policemen to use illegitimate

means to elicit self-incriminating statements and diminishes the motorist’s fear that if he

does not cooperate, he will be subjected to abuse.” Steerman at ¶ 45. While there are

some instances where a traffic stop can progress to a custodial interrogation, “[t]he

relevant inquiry is whether, under the totality of the circumstances, a reasonable person

in the suspect’s position would have understood himself or herself to be in custody.” Oles,

152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, at ¶ 1.

       {¶96} It warrants emphasis that Miranda warnings are only necessary in the case

where a defendant is in custody. A custodial interrogation is “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.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602,

16 L.Ed.2d 694. As to roadside detention of a motorist or passenger, the United States

Supreme Court has explained that the “noncoercive aspect of ordinary traffic stops

prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in

custody’ for the purposes of Miranda.” Berkemer, 468 U.S. at 440, 104 S.Ct. 3138, 82

L.Ed.2d 317. Miranda becomes applicable only when “a suspect’s freedom of action is

curtailed to a ‘degree associated with formal arrest.’” Id. quoting California v. Beheler,

463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

       {¶97} This court has previously addressed the same concerns that arise in the

present case in State v. Brocker, 11th Dist. Portage No. 2014-P-0070, 2015-Ohio-3412,

conducting a review of case law recognizing the limited applicability of Miranda to

roadside traffic stops:




                                            28
              In State v. Rice, 1st Dist. Hamilton Nos. C-090071-C-090073, 2009-
       Ohio-6332, the First District reversed the trial court’s suppression of the
       motorist’s admissions made while he was in the back seat of the police
       cruiser before he was read his Miranda warnings during a traffic violation
       stop. It held that the defendant was not in custody for Miranda purposes. *
       * * The court emphasized that the driver was not handcuffed at the time
       and that the officer’s questioning was neither lengthy nor intimidating. Id.
       at ¶ 10-15.

              In State v. Serafin, 11th Dist. Portage No. 2011-P-0036, 2012-Ohio-
       1456, this court held that the motorist was not in custody for Miranda
       purposes during a routine traffic stop. * * * The officer explained that Serafin
       smelled of alcohol and that his eyes were glassy. * * * Serafin admitted to
       having a couple beers over dinner, and the officer then initiated the field
       sobriety tests. * * * Serafin was subsequently arrested and read his
       Miranda warnings at that time. On appeal, we upheld the denial of the
       motion to suppress * * *.

              Other appellate courts have considered comparable facts and
       agreed that most traffic stops and accompanying investigatory questioning
       do not constitute custodial interrogations warranting the right to Miranda
       warnings. State v. Engle, 2d Dist. Montgomery No. 25226, 2013-Ohio-1818;
       State v. Barnett, 2d Dist. Montgomery No. 14019, 1994 Ohio App. LEXIS
       4767 * * * (Aug. 31, 1994) (holding that roadside questioning of motorist
       while in the rear of the police cruiser for a short period of time does not
       constitute a custodial interrogation); State v. Leonard, 1st Dist. Hamilton No.
       C-060595, 2007-Ohio-3312, ¶ 22-23 (holding that the intrusion was minimal
       based on the short length of the detention and the fact that the officer did
       not take the defendant’s keys or search his vehicle); State v. Wineberg, 2nd
       Dist. Clark No. 97-CA-58, 1998 Ohio App. LEXIS 1159 * * * (Mar. 27, 1998)
       (holding in part that the detention of a driver in the back seat of a cruiser
       during a traffic stop does not invoke Miranda protection).

Id. at ¶ 15-17.

       {¶98} Based on the case law cited above, this court in Brocker determined that

questioning during the traffic stop did not rise to the level of a custodial interrogation since

the detention was brief (less than six minutes) and incriminating statements were made

during the course of the traffic stop. Id. at ¶ 18. Brocker is instructive in the present

matter where the statements were made by Benson during the course of a routine traffic

stop, not while she was handcuffed, arrested, or subjected to a lengthy detention or



                                              29
removed from the roadside where the vehicle had been stopped.

       {¶99} It is noteworthy that this court takes issue only with the questioning by police

that took place after Benson exited the vehicle. Presumably, had Benson not been asked

to move a few feet to the right in order to leave the car, the majority would find no necessity

to Mirandize her. This creates a slippery slope and may lead to the requirement that

officers give Miranda warnings whenever they simply approach a citizen for a traffic stop.

This would burden police by requiring a reading of Miranda rights where the risk of

coercive questioning is minimal at best.

       {¶100} An evaluation of the entirety of the facts and circumstances of this matter

warrants a conclusion that Benson was not in custody. She was in a vehicle stopped by

police for a valid reason and volunteered information about having an illegal substance in

her purse. While she was then asked to exit the car and was further questioned by officers

about her possession of drugs, she was never handcuffed, told she was under arrest,

placed in a police cruiser, or touched by any of the police officers. She and the officers

were parked in an area near both businesses and homes and all discussions occurred

while they were clearly visible to the public. The aspects that prohibit police abuse, as

discussed above, were present. Steerman, 2008-Ohio-1691, at ¶ 45. While this writer

recognizes that several officers were present during this stop, this fact alone does not

render the interrogation custodial, especially when taking into consideration that Benson

spoke primarily with only one or two officers while the others were occupied with tasks

such as searching the vehicle. Thus, under the reasonable person standard, there is no

custodial interrogation. As discussed earlier, this court has held there was a lack of

custodial interrogation in potentially more restrictive conditions, where the defendant was




                                              30
detained in the police cruiser during questioning. Brocker, 2015-Ohio-3412, at ¶ 18.

       {¶101} The majority, while recognizing that there is no bright-line rule for

determining when Miranda warnings are required, nonetheless proceeds to set forth a

ten-factor test for such a decision, outlined by the Second District in State v. McCrary, 2d

Dist. Montgomery No. 18885, 2002 WL 125760, *2-3 (Feb. 1, 2002). This test or list of

factors has not previously been applied by this court or recognized as the method for

evaluating whether Miranda warnings are required. This writer’s concern is that it is

entirely unclear how much weight to give any of the factors or why review should be

constrained to these factors. Applying such a test places too much emphasis on these

factors to the exclusion of other relevant considerations which may not be on the

majority’s list. While the majority contends that the list of factors is “not an exhaustive

and exclusive metric,” such a list, by its very nature, encourages officers and reviewing

courts to give more weight to these factors in particular.

       {¶102} The McCrary court recognized that it “do[es] not mean to suggest the

analysis is a simple counting exercise,” but then proceeded to conclude that a custodial

interrogation did not occur when six of the ten factors weighed in the State’s favor. Id. at

*3. As outlined above, a general examination of the totality of the circumstances when

viewed through the eyes of a reasonable person gives the courts appropriate leeway to

take into account any potential factors that may be relevant. The majority’s opinion

alludes to the existence of some of the factors in the ten-step test, but does not address

each factor, leaving law enforcement guessing as to when a Miranda warning is actually

required. This court should not adopt an artificial test as a manner of determining

custodial interrogation issues. By doing so the majority unnecessarily burdens an officer




                                            31
with considering as many as ten factors in order to determine if a Miranda warning is

required. Such a burden is both unreasonable and impractical and may lead to the

exclusion of otherwise proper evidence. Expecting officers to run the gauntlet of the

majority’s ten factors is to set up law enforcement for failure as certain as the Kobayashi

Maru test.

       {¶103} Nonetheless, even when considering the McCrary factors as part of an

overall evaluation of this case, there are no grounds to find a custodial interrogation

occurred. Although this court should not adopt a specific set of factors even the analysis

suggested by the majority reinforces the conclusion above that this was not a custodial

interrogation since a majority of the factors weigh against a finding that Benson was in

custody.

       {¶104} As to the first McCrary factor, the location of the questioning, it is quite clear

this is favorable to finding a noncustodial interrogation for the reasons discussed at length

above. Simply put, Benson was in a public area, clearly in the open and near businesses

and homes, preventing police abuse.

       {¶105} The second factor, whether a defendant is a suspect at the time the

questioning began, also does not weigh in Benson’s favor. The majority emphasizes that

Benson was a suspect from the beginning of the stop, rendering the questions

“investigative” and designed to elicit incriminating statements. Here, the questioning

began while Benson was merely the passenger in a traffic stop. While the questioning

did continue when officers began to suspect Benson of a crime, it is noteworthy that

McCrary’s statement of this factor specifies that Miranda warnings are not required simply

because “the investigation has focused.” Regardless, even if Benson was immediately a




                                              32
suspect, it does not follow that Miranda warnings were required. If an officer suspects

someone has committed a crime and detains that person to investigate the circumstances

provoking suspicion, he “is not required to give the person Miranda warnings before

asking questions, because of the ‘comparatively nonthreatening character of detentions

of this sort.’” State v. Campbell, 2d Dist. Montgomery No. 26497, 2015-Ohio-3381, ¶ 10,

citing Berkemer, 468 U.S. at 440, 104 S.Ct. 3138, 82 L.Ed.2d 317.

       {¶106} The third factor relates to whether Benson’s freedom to leave was

restricted. While there were officers surrounding Benson, it must also be emphasized

that the majority’s contention that she lacked a “choice” about whether to answer police

questions is not supported by the facts. The body cam video indicates that Benson was

freely cooperating with the officers and was standing comfortably by the truck during the

entirety of the questioning.

       {¶107} The fourth factor asks the court to consider whether a defendant was

handcuffed or under arrest. During the questioning, Benson was not handcuffed and

officers mentioned her going to jail only after much of the questioning was complete and

she had admitted to having “speed.” Only toward the end of the conversation did the

officers discuss charging her with possession, which carries little weight when analyzing

whether she was in custody at the time she made the incriminating statements. The

fourth factor does not support a finding of custodial interrogation.

       {¶108} The fifth factor is also unfavorable to Benson, as it inquires whether there

were threats made during the interrogation. It is evident that officers made no threats to

Benson but merely questioned her about her drug possession and the details surrounding

how she acquired the drugs. Further, their tone and demeanor, while authoritative, was




                                             33
not overly aggressive or otherwise verbally intimidating.

      {¶109} Next, the sixth factor relates to whether the defendant was physically

intimidated during the interrogation, which the evidence demonstrates was not the case.

During the questioning the officers were not standing in Benson’s personal space or, from

what can be seen in the video, physically intimidating her in any manner. As noted above,

Benson was permitted to comfortably stand by the truck and was not taken aside, moved,

or otherwise touched by the officers.

      {¶110} The seventh factor relates to whether the officers “verbally dominated the

interrogation.” While the majority answers this in the affirmative, such a conclusion is

contrary to the evidence presented. The majority points to the emotional state of Benson,

noting that she appeared nervous and “choke[d] back tears,” further stating that when she

was questioned by multiple officers she threw her hands up, stating “I can’t even … I can’t

have both of you…”      Benson herself also points to her personal characteristics in

addressing the impact of the questioning, noting that she is “petite” in comparison to the

officers. Emphasis on Benson’s feelings or interpretation of the questioning is misplaced.

A “determination of custody depends on the objective circumstances of the interrogation,

not on the subjective views harbored by either the interrogating officers or the person

being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128

L.Ed.2d 293 (1994). Whether a person is more sensitive or more easily unsettled than

another individual is not the pertinent inquiry. Again, this court must consider whether a

“reasonable person” would have understood himself to be in custody. Oles, 152 Ohio

St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, at ¶ 1. A standard that is grounded in the

suspect’s sensitivity ignores the reality that any person who has committed a crime is




                                            34
likely to be more upset when questioned by the police. By that measure the majority

effectively sets up two standards: one for the innocent, who are presumably less sensitive

to police questioning, and a separate, stricter standard for the guilty who are predictably

upset at any inquiry by an officer.

       {¶111} Further, it is improper to characterize officers asking a variety of questions

as “verbal domination” since making such inquiries would not be uncommon in any

interaction between police and the general public, especially in a traffic stop. Benson was

fully permitted time to answer the questions and engaged in a dialogue with the officers.

In fact, the video in this case actually supports the view that Benson was not intimidated

or dominated by the questioning officers. When Benson protested to taking questions

from the two officers simultaneously, the officers acquiesced and complied with her

request, indicating that Benson, not the officers, was controlling the dialogue.

       {¶112} The eighth McCrary factor asks what the defendant’s purpose was for being

at the location where questioning took place.         Benson was in the location of the

questioning as a result of a traffic stop and suspicion of drug activity, rather than taken

into a police cruiser or the police station. There is nothing about the location that would

weigh in favor of Benson being in police custody.

       {¶113} The ninth factor questions whether any neutral parties were present. Here,

there were several officers and the only other party that was present during the stop was

the driver. It is difficult to determine, however, what role the driver played since, while he

was present during the initial stop, he is not shown in the videotaped footage of the

questioning.

       {¶114} The final factor to consider in completing a thorough analysis in this matter




                                             35
is whether the police took action to trick or coerce Benson into making a statement or

confessing. Although the majority again emphasizes Benson’s “emotional reaction,” this

does not demonstrate coercion. State v. Powe, 9th Dist. Summit No. 21026, 2002-Ohio-

6034, ¶ 10. Furthermore, if the measure of the coerciveness of police questions was

whether a defendant became upset during questioning, such a tactic could be adopted

by anyone interacting with police.

       {¶115} Additionally, officers’ requests for Benson to “be honest” on multiple

occasions do not amount to coercion. That a police officer would request a person

suspected of a crime to make honest statements is hardly unusual or manipulative.

“Admonitions to tell the truth” have been held to be “permissible” and are not coercive or

“police overreaching.” State v. Cooey, 46 Ohio St.3d 20, 28-29, 544 N.E.2d 895 (1989);

State v. Jett, 11th Dist. Portage No. 97-P-0023, 1998 WL 258166, *4 (Mar. 31, 1998).

Thus, simply put, there is no evidence of coercion that would allow for the application of

the tenth factor in favor of Benson.

       {¶116} Although the majority offers no guidance on how much weight to give each

factor or how many must be met, an analysis of all of the evidence present in this case,

regardless of the applicability of any specific test or list of factors, strongly weighs in favor

of finding no custodial interrogation occurred. Even when utilizing the McCrary factors,

the evidence does not support the conclusion reached by the majority and weighs heavily

against suppression.

       {¶117} It is important to recognize any questioning by a police officer is by its very

nature dynamic and precarious. Police officers by necessity simultaneously seek to elicit

information from a person being questioned while maintaining awareness/vigilance of all




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the surrounding circumstances including any danger which may develop from that person,

other parties in the area, and even the risks from road traffic.

       {¶118} Judges have the privilege to consider these issues in the calm and

protected environment of our chambers, while a police officer must often act under

extreme circumstances or danger. The majority should not impose upon law enforcement

additional burdens likely to result in the exclusion of reliable evidence. Such a ruling is

both unwarranted and unwise.

       {¶119} Finally, while the majority holds that it is necessary for the lower court on

remand to make a determination as to whether the drugs were properly seized, Benson’s

argument regarding suppression hinges upon this court’s determination as to whether the

police questioning violated Miranda. Since the questioning of Benson was valid at all

points, she freely admitted to having drugs in her purse, and police conducted the search

after this admission, there can be no legitimate dispute that police had probable cause to

search for and seize the drugs.

       {¶120} For the foregoing reasons, since Benson was not in custody and Miranda

warnings were not required, the trial court properly denied her motion to suppress. Thus,

I must respectfully dissent.




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