[Cite as State v. Hoskins, 197 Ohio App.3d 635, 2012-Ohio-25.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO,                                               :

        Appellant,                                               : C.A. CASE NO. 24711

v.                                                               : T.C. NO.    2011CR190

HOSKINS,                                                         : (Criminal appeal from
                                                                   Common Pleas Court)
        Appellee.                                                :

                                                                 :

                                            ..........

                                           OPINION

                         Rendered on the 6th day of                  January   , 2012.

                                            ..........

      Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Kirsten A.
Brandt and Laura M. Woodruff, Assistant Prosecuting Attorneys, for appellant.


      D.K. Rudy Wehner, Montgomery County Public Defender, and Charles L.
Grove, Assistant Public Defender, for appellee.

                                            ..........

        DONOVAN, Judge.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a decision of the

Montgomery County Court of Common Pleas sustaining defendant-appellee’s, Darryl

E. Hoskins Jr.’s, motion to suppress, filed on March 8, 2011. A hearing was held on

the motion on April 28, 2011. On June 22, 2011, the trial court issued a written

decision sustaining the motion. The state filed a timely notice of appeal with this court
                                                                                       2

on June 29, 2011. For the following reasons, the judgment of the trial court is

affirmed.

                                            I

       {¶ 2} The incident that forms the basis for the instant appeal occurred on

January 14, 2011, at approximately 7:25 p.m., when Detective Chad Knight of the

Dayton Police Department observed a small four-door sedan drive past him in the

parking lot of a Taco Bell restaurant located on Salem Avenue in Dayton, Ohio.

Detective Knight was performing “unmarked reconnaissance” of the area as part of

his assignment as a member of the Community Initiative to Reduce Gun Violence

Task Force (“CIRGV”). The CIRGV Task Force is a multijurisdictional unit consisting

of deputies from the Montgomery County Sheriff’s Office, the Dayton Police

Department, the Trotwood Police Department, the Montgomery County Prosecuting

Attorney’s Office, and the FBI Street Task Force to help reduce gun, gang, and drug

violence in Montgomery County. Detective Knight testified that he was initially parked

in the Taco Bell lot in order to observe a nearby business named Gina’s Liquor,

known for being a local gang hangout and a high-crime area where violence was

prevalent.

       {¶ 3} As the sedan backed out in front of him and headed out of the Taco Bell

parking lot, Knight observed that the driver of the vehicle pulled out of the lot very

quickly and did not signal his turn onto the street. Knight also testified that the small

sedan was loaded down with several passengers. He began following the sedan.

Because his unmarked vehicle was not equipped with a police computer, Knight

radioed the sedan’s license-plate number to nearby uniformed officers for
                                                                                      3

identification. Dayton Police Officers Alex MacGill and Dustin Phillips entered the

license-plate number into their police computer. Officer Phillips testified that a check

of the license-plate number revealed that the sedan had been reported as stolen, and

he immediately so informed Detective Knight.

       {¶ 4} Moments later, the sedan was stopped and surrounded by several

police cruisers. Multiple officers approached the sedan and removed the five

occupants of the vehicle. At the time he was removed from the sedan,

defendant-appellee Hoskins was located in the rear passenger seat directly behind

the driver. Officer Phillips testified that he removed Hoskins from the sedan and laid

him facedown on the ground with his feet pointed towards the vehicle. All four doors

of the sedan were open at this point. While Hoskins was lying on the ground, Officer

MacGill removed the front-seat passenger from the sedan on the opposite side of the

vehicle. Officer MacGill testified that before he patted the passenger down, he

stated in a “loud, controlling voice,” “[D]o you have guns or knives on you.”

       {¶ 5} Officer MacGill’s inquiry prompted Hoskins to roll over, look up at

Officer Phillips, and acknowledge that he had a handgun in his pocket. Officer

Phillips testified that he removed a .38-caliber handgun from Hoskins’s front pants

pocket. Hoskins had not been Mirandized when he informed Officer Phillips that he

had a handgun in his possession.

       {¶ 6} Hoskins was subsequently arrested and charged with carrying a

concealed weapon and improperly handling a firearm in a motor vehicle. At his

arraignment on March 17, 2011, Hoskins stood mute, and the trial court entered a

plea of not guilty on his behalf. Hoskins filed a motion to suppress on March 8, 2011.
                                                                                                    4

After a hearing held on April 28, 2011, the trial court ordered the parties to submit

posthearing briefs. On June 22, 2011, the trial court issued a decision sustaining

Hoskins’s motion to suppress.

       {¶ 7} It is from this decision that the state now appeals.

                                                 II

       {¶ 8} The state’s sole assignment of error is as follows:

       {¶ 9} “Hoskins’ statement to police about having a gun was admissible in the

absence of Miranda warnings.”

       {¶ 10} In its sole assignment, the state contends that the trial court erred by

sustaining Hoskins’s motion to suppress and finding that he was subjected to a

custodial interrogation without the benefit of Miranda warnings. Specifically, the

state argues that the trial court erred when it found that Officer MacGill should have

known that his question to the front-seat passenger regarding weapons was

reasonably likely to elicit an incriminating response from Hoskins.1

       {¶ 11} In regard to a motion to suppress, “ ʻthe trial court assumes the role of

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

credibility of witnesses.’ ” State v. Hopfer (1996), 112 Ohio App.3d 521, 548, quoting

State v. Venham (1994), 96 Ohio App.3d 649, 653. The court of appeals must

accept the trial court’s findings of fact if they are supported by competent, credible

evidence in the record. State v. Isaac, Montgomery App. No. 20662,


          1
          We note that the state does not contest the trial court’s conclusion that the “public safety
  exception” to Miranda was inapplicable to the instant case. We also note that the state essentially
  conceded during oral arguments on November 29, 2011, that the police officers did not have a
  reasonable, articulable suspicion that the occupants of the sedan were armed.
                                                                                       5

2005-Ohio-3733, citing State v. Retherford (1994), 93 Ohio App.3d 586. Accepting

those facts as true, the appellate court must then determine, as a matter of law and

without deference to the trial court’s legal conclusion, whether the applicable legal

standard is satisfied. Id.

       {¶ 12} The Fifth Amendment to the United States Constitution provides that

“[n]o person * * * shall be compelled in any criminal case to be a witness against

himself.”   “The Fifth Amendment privilege against compulsory self-incrimination

‘protects against any disclosures that the witness reasonably believes could be used

in a criminal prosecution or could lead to other evidence that might be so used.’ ”

Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty. (2004), 542 U.S. 177,

190, 124 S.Ct. 2451, 159 L.Ed.2d 292, quoting Kastigar v. United States (1972), 406

U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212; Ohio v. Reiner (2001), 532 U.S. 17, 20,

121 S.Ct. 1252, 149 L.Ed.2d 158. “The right to Miranda warnings is grounded in the

Fifth Amendment’s prohibition against compelled self-incrimination.”           State v.

Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, ¶ 16, citing Moran v. Burbine

(1986), 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410.

       {¶ 13} A suspect who volunteers information, and who is not even asked any

questions, is not subject to a custodial interrogation and is not entitled to Miranda

warnings. State v. McGuire (1997), 80 Ohio St.3d 390, 401, citing State v. Roe

(1989), 41 Ohio St.3d 18, 22.        In other words, “Miranda does not affect the

admissibility of ‘[v]olunteered statements of any kind.’ ” Id., citing Miranda v. Arizona

(1966), 384 U.S. 436, 478; State v. Montgomery, Montgomery App. No. 23870,

2010-Ohio-5047, ¶ 15.
                                                                                    6

       {¶ 14} Conversely, Hoskins had been removed from the sedan and placed,

facedown, on the ground with his hands behind his back by Officer Phillips. Under

these circumstances, a reasonable person would not have felt free to leave.

Additionally, it is very doubtful that any of the police officers present would have

allowed Hoskins to leave. Accordingly, Hoskins was in custody for the purposes of

Miranda. Thus, any police interrogation should have been preceded by Miranda

warnings and the subject’s waiver of the rights those warnings involve. The issue

presented is whether Officer MacGill’s question regarding the presence of weapons

constituted a form of police interrogation that he should have known was reasonably

likely to elicit an incriminating response from Hoskins, who was located nearby on the

other side of the vehicle.

       {¶ 15} “ ‘Interrogation’ includes express questioning as well as ‘any words or

actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.’ ” Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876

N.E.2d 1304, at ¶ 20, quoting Rhode Island v. Innis (1980), 446 U.S. 291, 301, 100

S.Ct. 1682, 64 L.Ed.2d 297. “Interrogation” must reflect “a measure of compulsion

above and beyond that inherent in custody itself.” Innis, 446 U.S. at 300. “Police

officers are not responsible for unforeseeable incriminating responses.” State v.

Waggoner, Montgomery App. No. 21245, 2006-Ohio-844, ¶ 14; Strozier at ¶ 20.

       {¶ 16} “In Innis, the defendant was arrested for an armed robbery involving a

shotgun; at the time of his arrest, Innis was unarmed. Innis was given Miranda

warnings, and he invoked his right to speak with a lawyer. While three officers
                                                                                     7

transported Innis to the police station, one of the officers began talking to another

officer regarding the missing shotgun. One of the officers stated that there were ‘a

lot of handicapped children running around in this area’ because a school for such

children was nearby, and ‘God forbid one of them might find a weapon with shells and

they might hurt themselves.’ With that, Innis insisted on showing the officers where

he had concealed the shotgun. He subsequently moved to suppress that evidence.

The trial and appellate courts denied the motion.

       {¶ 17} “On review, the United States Supreme Court held that the statements

the officers made were not ones which they should have known were reasonably

likely to elicit an incriminating response. There was no express questioning, and

nothing in the record indicated that the officers were aware that the defendant was

‘particularly susceptible to an appeal to his conscience concerning the safety of

handicapped children,’ or that he was ‘unusually disoriented or upset’ when the

statements were made. Though some ‘subtle compulsion’ was present, the Court

concluded that the officers’ words did not constitute interrogation.” State v. Fair,

Montgomery App. No. 24120, 2011-Ohio-3330.

       {¶ 18} In State v. Waggoner, Montgomery App. No. 21245, 2006-Ohio-844,

the defendant and his companions had been ordered out of the vehicle, and the

defendant had been arrested on an outstanding warrant.                  Under those

circumstances, we found that the record did not support a finding that the arresting

officer should have known that when he asked the defendant whether there was “any

other property of his in the vehicle,” he would have elicited an incriminating response

from the defendant. Thus, we held that Miranda warnings were not required before
                                                                                        8

the officer questioned the defendant regarding any objects left in the vehicle.

       {¶ 19} Innis and Waggoner, however, are clearly distinguishable from the facts

present in the instant case. After the sedan had been stopped and the occupants

removed from the vehicle, Hoskins was placed by Officer Phillips face down on the

ground with his feet pointing towards the vehicle. All of the vehicle’s doors were open

as well. The officers had no particularized basis upon which to suspect that any of the

occupants of the vehicle were armed. When he began questioning the suspect that

he removed from the front passenger seat, Officer MacGill inquired in a “loud,

controlling voice” about weapons. At that point, Officer Phillips testified that he had

not spoken to Hoskins, who was lying face down on the ground. Officer Phillips,

however, admitted that he could clearly hear Officer MacGill’s question on the other

side of the vehicle. It is reasonable to find that under these circumstances, as the trial

court concluded, Hoskins thought that he was being asked a question by Officer

MacGill, and he felt compelled to answer. We also accept the trial court’s finding that

Officer MacGill should have been aware that his question was reasonably likely to

elicit an incriminating response from Hoskins who was in such close proximity

facedown. Thus, Hoskins’s statement regarding the handgun in his possession was

obtained in violation of his Miranda rights. Accordingly, the trial court did not err when

it sustained Hoskins’s motion to suppress.

       {¶ 20} The state’s sole assignment of error is overruled.

                                           III

       {¶ 21} The state’s sole assignment of error having been overruled, the

judgment of the trial court is affirmed.
                                                                                      9

                                     ..........

                                                               Judgment affirmed.



      FROELICH, J., concurs.

      HALL, J., dissents.

                                  __________________

      FROELICH, Judge, concurring.

      {¶ 22} I concur in the judgment to affirm the decision of the trial court, all the

while not disagreeing with some of the statements in the dissent. This was an

extremely fact-sensitive situation and the trial court made specific findings that I

cannot say are, as a matter of law, not supported by the record.

                               __________________



      HALL, Judge, dissenting.

      {¶ 23} When several occupants are removed from a confirmed stolen

automobile, I fail to see how an officer’s loud question “Do you have any knives,

weapons, guns or anything like that in your possession?” directed to a removed

front-seat passenger on one side of the vehicle, which was apparently overheard by a

rear driver’s side passenger, on the other side of the vehicle, constitutes custodial

interrogation of the rear driver’s side passenger. I would reverse the trial court’s

granting of the motion to suppress Hoskins’s statement that he had a firearm in his

possession.

      {¶ 24} In determining whether Hoskins was “interrogated,” the trial court
                                                                                        10

indicated that “the focus must be primarily upon the perceptions of Hoskins.” The trial

court then concluded that “Hoskins reasonably believed the question had been posed

to him * * *.” Id. The problem with this conclusion is that it is speculation. Hoskins did

not testify at the motion hearing. What he “reasonably believed” is not supported by

the record.

       {¶ 25} I am also of the opinion that the testimony of the officers that they were

stopping a confirmed stolen vehicle, after dark and in an area where officers deal with

violent gang members and where “[s]tolen vehicles, lot of times, have people that are

armed or with any various types of weapons,” supports the notion that the officers

could constitutionally pat down each of the occupants of the vehicle. Stopping a

stolen vehicle is not an ordinary traffic stop. It is not the time for hesitation or polite

discourse. The great likelihood is that a felony is being committed by one, and

perhaps all, of the occupants. The stop is fraught with danger with great potential for

flight and risk of injury or even death. However, in this case, the state, erroneously in

my opinion, conceded that the officers did not have the right to pat down the

occupants of the car. Thus, I do not include the public-safety exception to Miranda as

part of the basis of my disagreement.

                                       ..........
