[Cite as State v. Everett, 2019-Ohio-2397.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                              LAKE COUNTY, OHIO


 STATE OF OHIO,                                        :       OPINION

                    Plaintiff-Appellee,                :
                                                               CASE NO. 2018-L-142
          - vs -                                       :

 SCOTT W. EVERETT,                                     :

                    Defendant-Appellant.               :


 Criminal Appeal from the Mentor Municipal Court, Case No. 2018 TRC 02711 AB.

 Judgment: Affirmed.


 Lisa M. Klammer, City of Mentor Prosecutor, 8500 Civic Center Boulevard, Mentor, OH
 44060 (For Plaintiff-Appellee).

 Gregory A. Gentile, Gentile Law, LLC, 600 East Granger Road, Second Floor,
 Cleveland, OH 44131 (For Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}       Appellant, Scott W. Everett (“Mr. Everett”), appeals from the judgment of

the Mentor Municipal Court convicting him of OVI and failure to control following his no

contest plea. He argues the trial court erred in denying his motion to suppress evidence

obtained following (1) his unlawful arrest without probable cause, and (2) his placement

in custody without Miranda warnings.

        {¶2}       We find that (1) under the totality of the circumstances, the officers’ actions

in this case did not exceed the bounds of a lawful investigative detention, (2) Officer
Jacob’s questioning of Mr. Everett and the administration of field sobriety tests did not

constitute custodial interrogation, and (3) Mr. Everett’s statements and the results of his

field sobriety tests did not constitute self-incriminating statements.

         {¶3}   For the reasons that follow, we affirm the judgment of the Mentor Municipal

Court.

                           Substantive and Procedural History

         {¶4}   On August 10, 2018, at approximately 10:19 p.m., Mentor Police Officer

Matthew Jacob (“Officer Jacob”) received a call from dispatch indicating that a vehicle

had crashed into a building on Station Street in Mentor, Ohio. Other officers were also

en route based on the seriousness of the dispatch report. Upon arrival at the scene, a

witness pointed Officer Jacob in the direction of the crashed vehicle.

         {¶5}   Officer Jacob observed a Chevy Impala pinned up against a tree and the

building at Lintern Corp. The business was closed for the evening, so there was no

legitimate reason for a vehicle to be present in the area. Based on his observations of

tire tracks and damage to landscaping, Officer Jacob concluded the vehicle had pulled

into the driveway of Lintern Corp., veered off to the left side of the driveway, crossed over

some grass and bushes, and became pinned. The vehicle sustained damage to its front.

         {¶6}   When Officer Jacob approached the vehicle in his cruiser, he heard the

vehicle’s engine revving. He exited his police cruiser, stood near the passenger side door

of the vehicle, and ordered the driver and sole occupant, Mr. Everett, to turn off the engine

and exit. After Mr. Everett exited the vehicle, Officer Jacob ordered him to put his hands

up, come toward Officer Jacob, face his vehicle, place his hands behind his back, and




                                              2
interlace his fingers.     Officer Jacob testified that this entire interaction lasted

approximately 30 seconds.

       {¶7}   Although Mr. Everett complied with Officer Jacob’s directives, Officer Jacob

had to repeat himself three times before Mr. Everett complied with his orders to exit the

vehicle, to come toward Officer Jacob, and interlace his fingers. According to Officer

Jacob, Mr. Everett had a “blank stare” and “confused look” on his face during the

encounter.

       {¶8}   Following this interaction, Officer Jacob handcuffed Mr. Everett. Based on

Mr. Everett’s previous revving of the engine, Officer Jacob was concerned Mr. Everett

was going to flee. Officer Jacob did not tell Mr. Everett that he was under arrest, and he

testified that he did not consider Mr. Everett to be under arrest at that time.

       {¶9}   Patrolman Louzias was present when Officer Jacob handcuffed Mr. Everett.

Eventually, there were at least five other police officers on the scene, although it is not

clear from the record when they all arrived.

       {¶10} Officer Jacob instructed Patrolman Louzias to take Mr. Everett to Officer

Jacob’s car and “search him.” Mr. Everett was placed in the back seat of a police cruiser

where officers patted him down, searched his front pockets, and searched his belt/waist

area. It is not clear from the record who placed Mr. Everett in the back seat of the police

cruiser or who conducted the search. The officers did not find anything in Mr. Everett’s

pockets.

       {¶11} While Mr. Everett was being placed in the back of the police cruiser and

searched, Officer Jacob secured the scene by ensuring the vehicle was turned off and in




                                               3
park and by confirming there was no structural damage to the building. Officer Jacob

obtained and ran Mr. Everett’s license plate number.

       {¶12} Approximately two minutes after Mr. Everett was placed in the back of the

police cruiser, Officer Jacob approached him and asked several questions, including if he

was all right, if he had any injuries, his name, where he was coming from, whether he had

anything to drink, and whether he had used any drugs. Observing a bloody scrape on

Mr. Everett’s knee, Officer Jacob asked him whether he wanted an ambulance, which Mr.

Everett declined.

       {¶13} During this questioning, Officer Jacob noticed a strong odor of alcohol on

Mr. Everett’s breath and observed that Mr. Everett had bloodshot, glassy eyes and slurred

speech. Based on these observations, Officer Jacob asked Mr. Everett if he was willing

to perform field sobriety tests. Officer Jacob told Mr. Everett that if he did not want to do

the field tests, he would “just leave the cuffs on.”

       {¶14} After Mr. Everett performed and failed the field sobriety tests, Officer Jacob

advised him he was under arrest, handcuffed him again, and read him his Miranda

warnings.

       {¶15} Mr. Everett was cited for operating a vehicle under the influence of alcohol

or drugs pursuant to R.C. 4511.19(A) (“OVI”) and operation without being in reasonable

control of vehicle pursuant to R.C. 4511.202. He was arraigned in Mentor Municipal Court

and entered not guilty pleas to the charged offenses.

       {¶16} Mr. Everett subsequently filed a motion to suppress evidence alleging an

unlawful arrest and a violation of his Miranda rights. The trial court held an oral hearing

on the motion, and Officer Jacob was the sole witness.




                                              4
       {¶17} The trial court denied Mr. Everett’s motion to suppress, finding reasonable

suspicion based on specific, articulable facts that Mr. Everett was violating a law, based

on Mr. Everett’s presence in the driver’s seat of a vehicle that had crashed into the side

of a building, and finding probable cause to arrest based on the signs of intoxication and

the results of the field sobriety tests.

       {¶18} Mr. Everett entered a no contest plea to the OVI offense, and the trial court

imposed sentence, which was stayed pending appeal.

       {¶19} Mr. Everett now appeals, raising the following two assignments of error:

       {¶20} “[1.] The trial court erred in overruling appellant’s motion to suppress

evidence arising from appellant’s unlawful arrest without probable cause.

       {¶21} “[2.]   The trial court erred in overruling appellant’s motion to suppress

evidence of statements made after appellant was placed in custody and not provided

Miranda warnings.”

                                     Standard of Review

       {¶22} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶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). Consequently, an appellate court

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

evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate court

must then independently determine, without deference to the conclusions of the trial court,




                                              5
whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124

Ohio App.3d 706, 707 (4th Dist.1997).

       {¶23} In this case, Mr. Everett is not challenging the trial court’s finding of facts,

only its application of those facts to the law, so our review is de novo.

                      Investigative Detention or De Facto Arrest

       {¶24} In his first assignment of error, Mr. Everett asserts that the trial court erred

in denying his motion to suppress evidence that he claims arose from an arrest without

probable cause.

       {¶25} Mr. Everett argues that he was arrested for purposes of the Fourth

Amendment when he was handcuffed, searched, and held in the back of the police

cruiser. The state argues that these activities were consistent with an investigative

detention. According to the state, Mr. Everett was not arrested until after he failed the

field sobriety tests and Office Jacob formally arrested him. Therefore, we must determine

at what point Mr. Everett was arrested.

                                Constitutional Standards

       {¶26} The Fourth Amendment to the United States Constitution, as applied to the

states through the Fourteen Amendment, guarantees that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated[.]” The language of Article I, Section 14 of the Ohio

Constitution is nearly identical, and it has been interpreted by the Supreme Court of Ohio

as affording the same protection as the Fourth Amendment. State v. Hoffman, 141 Ohio

St.3d 428, 2014-Ohio-4795, ¶11, citing State v. Robinette, 80 Ohio St.3d 234, 238-239




                                             6
(1997).1 Courts must exclude evidence obtained by searches and seizures that violate

the Fourth Amendment. (Citations omitted.) State v. Adams, 144 Ohio St.3d 429, 2015-

Ohio-3954, ¶181.

       {¶27} A police officer may stop and investigate unusual behavior without probable

cause to arrest when the officer reasonably concludes that the individual is engaged in

criminal activity. State v. Andrews, 57 Ohio St.3d 86, 87 (1991), citing Terry v. Ohio, 392

U.S. 1, 21 (1968). In assessing that conclusion, the officer “must be able to point to

specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.” Terry at 21. The propriety of an investigative

stop by a police officer must be viewed in light of the totality of the surrounding

circumstances. State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph one of the syllabus.

These circumstances are to be viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold. Andrews at 87-88.

       {¶28} In addition, police officers may investigate vehicle accidents in which there

is no claim of criminal liability and engage in “community caretaking functions” totally

divorced from the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). When

approaching a vehicle for safety reasons, the police officer must be able to point to

reasonable, articulable facts upon which to base his or her safety concerns. State v.




1. In certain circumstances not present here, the Supreme Court of Ohio has construed Article I, Section
14 of the Ohio Constitution to provide greater protection than the Fourth Amendment. See State v. Brown,
99 Ohio St.3d 323, 2003-Ohio-3931, ¶22 (regarding warrantless arrests for minor misdemeanors); State v.
Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, ¶23 (regarding searches and seizures conducted by
members of law enforcement who lack authority to make an arrest).


                                                   7
Chrzanowski, 180 Ohio App.3d 324, 2008-Ohio-6993, ¶24 (11th Dist.), quoting State v.

Norman, 136 Ohio App.3d 46, 54 (3d Dist.1999).

       {¶29} A warrantless arrest that is based upon probable cause and occurs in a

public place does not violate the Fourth Amendment. State v. Brown, 115 Ohio St.3d 55,

2007-Ohio-4837, ¶66, citing United States v. Watson, 423 U.S. 411, 426-27 (1976). An

arrest signifies the apprehension of an individual or the restraint of a person’s freedom in

contemplation of the formal charging with a crime. State v. Darrah, 64 Ohio St.2d 22, 26

(1980). An arrest occurs when the following four requisite elements are involved: (1) An

intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or

constructive seizure or detention of the person, and (4) which is so understood by the

person arrested. State v. Barker, 53 Ohio St.2d 135 (1978), paragraph one of the

syllabus.

       {¶30} Probable cause is required when police restraint is so intrusive that, while

not technically an “arrest,” it may be “tantamount” to an arrest. United States v. Tilmon,

19 F.3d 1221, 1224 (7th Cir.1994), citing Dunaway v. New York, 442 U.S. 200, 212-16

(1979). Factors to be considered in distinguishing an investigative stop from a de facto

arrest include the seriousness of the crime, the location of the encounter, the length of

the detention, the reasonableness of the officer’s display of force, and the conduct of the

suspect as the encounter unfolds. Columbus v. Galang, 10th Dist. Franklin No. 02AP-

1441, 2003-Ohio-4506, ¶16.

                                     Initial Approach

       {¶31} Officer Jacob clearly had an objectively reasonable basis to approach Mr.

Everett to make an initial inquiry. Whether or not Officer Jacob suspected criminal activity,




                                             8
he was lawfully investigating a report from dispatch that a vehicle had crashed into a

building on private property. See State v. Tanner, 160 Ohio Misc.2d 54, 2010-Ohio-5231,

¶2 (M.C.) (officer’s initial contact with defendant after an accident was justified as a

community caretaking function to check for injuries and secure the scene).

       {¶32} Upon arrival, Officer Jacob encountered the rather unusual situation of a

vehicle pinned between a building and a tree. Based on the tire tracks and damage to

the landscaping, there was evidence indicating that the driver, Mr. Everett, had driven

erratically for some unknown reason. Officer Jacob was therefore justified in approaching

Mr. Everett to determine the cause. See State v. Hilleary, 2d Dist. Miami No. 88-CA-5,

1989 WL 55637, *3 (May 24, 1989) (erratic driving alone was a sufficient basis for an

articulable and reasonable suspicion justifying an investigatory stop to determine the

reason for the erratic driving).

       {¶33} Since Officer Jacob’s initial approach of Mr. Everett was legally justified,

we next consider whether the officers’ subsequent actions exceeded the permissible

scope of a detention and rendered it a de facto arrest.

                                   The Officers’ Actions

         1. Order to Exit Vehicle; Handcuffing; Placement in Police Cruiser

       {¶34} The record indicates that Officer Jacob ordered Mr. Everett to exit the

vehicle and handcuffed him, and another officer then placed Mr. Everett in the back of a

police cruiser.

       {¶35} When a police officer makes a stop supported by reasonable suspicion, he

is authorized to take such steps as reasonably necessary to protect his personal safety




                                            9
and to maintain the status quo during the course of the stop. United States v. Hensley,

469 U.S. 221, 235 (1985).

         {¶36} Police may require a driver who commits a traffic violation to exit the vehicle

even if they lack any particularized reason for believing the driver possesses a weapon.

Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977); State v. Evans, 67 Ohio St.3d 405,

408 (1993) (“a Mimms order does not have to be justified by any constitutional quantum

of suspicion”). Officers are also justified in ordering a driver to exit a vehicle to ascertain

whether a medical or mechanical emergency exists. State v. Blair, 6th Dist. Wood No.

WD-98-081, 1999 WL 606330, *3 (Aug. 13, 1999).

         {¶37} While the use of handcuffs is a significant factor in determining whether an

individual is subject to an investigative stop or de facto arrest, it is not automatically

conclusive. Columbus v. Beasley, 10th Dist. Franklin No. 17AP-629, 2019-Ohio-719,

¶64. Police officers are entitled to ensure their own safety by handcuffing the detainee

should the situation warrant it. State v. Feliciano, 11th Dist. Lake No. 2004-L-205, 2006-

Ohio-1678, ¶27. Handcuffing and other means of detention may also be used to prevent

flight. State v. Pickett, 8th Dist. Cuyahoga No. 76295, 2000 WL 1060653, *5 (Aug. 3,

2000).

         {¶38} Similarly, a police order for a person to sit in a police car does not

automatically transform an investigative detention into a formal arrest.            Id. at *5.

According to the Supreme Court of Ohio, “it is reasonable to place the driver in a patrol

car and subject him or her to a pat-down search for weapons where placement of the

driver in the patrol car is justified to protect the officer or the driver from a dangerous

condition.” (Emphasis sic.) State v. Lozada, 92 Ohio St.3d 74, 79 (2001). Placing a




                                              10
subject in a police vehicle can also be justified in order to secure the scene. United States

v. Boyett, 295 Fed.Appx. 781, 785 (6th Cir.2008).

       {¶39} Whether handcuffing or other means of detention are reasonable depends

on whether the restraint was temporary and lasted no longer than was necessary to

effectuate the purpose of the stop, and whether the methods employed were the least

intrusive means reasonably available to verify the officer’s suspicions in a short period of

time. Pickett at *5, citing United States v. Glenna, 878 F.2d 967, 972 (7th Cir.1989).

       {¶40} In this case, Officer Jacob encountered a damaged vehicle and building that

posed a potentially dangerous condition.          Therefore, Officer Jacob was justified in

ordering Mr. Everett to exit the vehicle to ensure his safety and to allow Officer Jacob to

assess the situation.

       {¶41} The officers’ further actions of handcuffing Mr. Everett and briefly detaining

him in a police cruiser were reasonable under the circumstances.            Officer Jacob’s

reasonable, articulable suspicion that Mr. Everett had engaged in erratic driving

supported securing Mr. Everett away from his vehicle while Officer Jacob addressed his

immediate concerns regarding the vehicle and the building.            See Beasley at ¶64

(handcuffing and placement in police cruiser reasonable as part of securing defendant

away from his vehicle to permit further investigation); See N. Olmsted v. Benning, 8th

Dist. Cuyahoga Nos. 79548 & 79561, 2002 WL 501693, *4 (Apr. 4, 2002) (placement in

police cruiser reasonable while officer waited for further information from dispatch to

permit investigation).

       {¶42} In addition, based on Mr. Everett’s revving of his vehicle’s engine, Officer

Jacob had a reasonable concern that Mr. Everett could attempt to flee. See id. at *5




                                             11
(placement in police cruiser reasonable to prevent a suspected intoxicated person from

driving away); State v. Hopper, 8th Dist. Cuyahoga Nos. 91269 & 91327, 2009-Ohio-

2711, ¶23 (placement in police cruiser reasonable to prevent fleeing).

       {¶43} Mr. Everett’s danger to officer safety was also an objectively reasonable

concern. Mr. Everett had apparently driven erratically for unknown reasons and had

somehow gotten his vehicle stuck in an unusual position on private property. During his

initial encounter with Officer Jacob, Mr. Everett demonstrated unusual behavior, such as

failing to comply with some of Officer Jacob’s directives until they were repeated three

times and exhibiting a “blank stare” and “confused look” on his face. State v. Wilson, 3d

Dist. Hancock No. 5-07-47, 2008-Ohio-2742, ¶29 (handcuffing and placement in police

cruiser reasonable based on defendant’s unusual behavior).

       {¶44} The record does not suggest the officers had an intent to arrest Mr. Everett

by handcuffing him and detaining him in the police cruiser. Rather, once Officer Jacob

finished addressing his immediate concerns regarding the vehicle and the building, he

spoke with Mr. Everett to investigate the cause of the accident. See Benning at *4

(handcuffing and detention in police cruiser not arrest where officer intended to conduct

field sobriety tests after receiving further information from dispatch); Tanner at ¶2

(detention in patrol car not an arrest where officer only intended to maintain the status

quo until an investigating officer could arrive).

       {¶45} Significantly, Officer Jacob testified that Mr. Everett was only detained in

the police cruiser for approximately two minutes before he was able to approach Mr.

Everett to investigate. Therefore, the evidence indicates that the detention lasted no

longer than necessary to effectuate its purpose of allowing Officer Jacob to secure the




                                              12
scene. See Beasley at ¶64 (handcuffing and placement in police cruiser reasonable

where defendant was released from the cruiser once recording equipment for field

sobriety testing arrived); Tanner at ¶2 (handcuffing and placement in police cruiser

reasonable where officers acted as promptly as possible).

        {¶46} Based on the totality of the circumstances, the officers’ actions of ordering

Mr. Everett to exit the vehicle, handcuffing him, and placing him in the police cruiser were

reasonable.

                                   2. Search of Person

        {¶47} The record further indicates that the officers patted down Mr. Everett and

searched his belt/waist area and front pockets.

        {¶48} Since potentially dangerous conditions justified the placement of Mr. Everett

in the police cruiser, a protective pat-down search of Mr. Everett for weapons was also

justified. See Lozada at 79 (“it is reasonable to place the driver in a patrol car and subject

him or her to a pat-down search for weapons where placement of the driver in the patrol

car is justified to protect the officer or the driver from a dangerous condition”). (Emphasis

sic.)

        {¶49} Mr. Everett cites the First District’s decision in State v. Franklin, 86 Ohio

App.3d 101 (1st Dist.1993), for the broad proposition that “[s]imply asking a defendant to

empty his pockets prior to a Terry frisk converts an investigatory detention into an unlawful

arrest without probable cause.” However, the circumstances presented in Franklin are

clearly distinguishable from the present case.




                                             13
       {¶50} In that case, the officers received a radio report of “a group of people

standing out by a green car shooting.” Id. at 103. The officers arrived at the scene and

directed all persons to “go to the police cruiser and empty their pockets.” Id.

       {¶51} The Franklin court held that the officer did not have a reasonable basis to

conduct a Terry “pat down” of the defendant for weapons, since the officer testified that

he “had known the defendant since high school” and “was not afraid of him.” Id. at 105.

Here, there is no indication that the officers knew Mr. Everett, and, as previously indicated,

they had a reasonable basis to conduct a Terry “pat down” of Mr. Everett for weapons.

       {¶52} The Franklin court also held that the officer’s directive that the defendant

empty his pockets exceeded the limited scope envisioned under Terry. Id. However,

courts have recognized that a pat-down is not the only option available when an officer

has reasonable suspicion that a suspect might be armed and dangerous. See State v.

Michael, 10th Dist. Franklin No. 12AP-508, 2013-Ohio-3889, ¶23. While a pat-down is

generally the least intrusive and therefore preferred option, because of the myriad of

encounters that may occur between officers and the public, courts must allow for the

possibility that, in some circumstances, a pat-down may not be the least intrusive, most

effective or safest option for an officer to verify or dispel suspicions that the person is

armed. Id.

       {¶53}   In Franklin, the officers were investigating a reported shooting. Id. at 103.

Therefore, the directive for everyone to empty his pockets resembled a general

exploratory search for evidence of the shooting rather than a search for weapons to

ensure officer safety. Here, Officer Jacob was investigating a reported vehicle crash,

where he encountered a potentially dangerous situation and an individual responding




                                             14
unusually. The officers’ search of Mr. Everett appears to have been a component of

securing him away from the vehicle and the building. Plus, the scope of the officers’

search appears to have been limited to the areas where weapons are commonly hidden,

i.e., the belt/waist area and front pockets. See Michael at ¶25 (search of waistband was

reasonable as a Terry search for weapons); State v. McGlown, 3 Ohio App.3d 344, 347

(6th Dist.1982) (search of pocket was reasonable as a Terry search for weapons).

       {¶54} Further, the officers did not seize any physical evidence from Mr. Everett.

Unlike in Franklin, where the officers discovered a handgun and charged the defendant

with carrying a concealed weapon, no evidence from Mr. Everett’s person formed the

basis for any charges against him, nor did it serve as justification for probable cause for

his eventual arrest for OVI.

       {¶55} Finally, when issues of officer safety arise and are supported by articulable

facts, courts should not second guess an officer in a close case.           See State v.

Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶24.

       {¶56} Based on the totality of the circumstances, we cannot say the officers’

search of Mr. Everett’s belt/waist area and front pockets was unreasonable.

                                 3. Cleveland v. Lopez

       {¶57} In his reply brief, Mr. Everett relies heavily on the Cleveland Municipal

Court’s decision in Cleveland v. Lopez, Cleveland M.C. Nos. 2018 TRC 22637 & 2018

CRB 12453, 2019 WL 1349667 (Feb. 22, 2019), which he misidentifies as a decision from

the Eighth District Court of Appeals.

       {¶58} In Lopez, a state trooper stopped the defendant for speeding. Id. at *1.

During their conversation, the trooper smelled marijuana and heard slurred speech. Id.




                                            15
The trooper proceeded to ask the defendant to exit the vehicle, handcuffed him, read him

his Miranda warnings, pat him down, thoroughly searched his pockets and all items

contained therein, placed him in a police cruiser, and thoroughly searched his car. Id.

Finding nothing, the trooper removed the defendant from the cruiser, uncuffed him, and

had him perform field sobriety tests. Id. The trooper then placed the defendant under

formal arrest for OVI. Id. During the ride to the patrol station, the defendant admitted he

had marijuana in his crotch. Id.

       {¶59} The defendant filed a motion to suppress, arguing he was under arrest after

he was handcuffed, Mirandized, searched, and placed in the cruiser. Id. at *2. The city

argued the defendant was not arrested until his formal arrest at the end of the encounter.

Id. The court determined that a reasonable person would believe he had been arrested

as he sat handcuffed in the cruiser. Id. at *4.

       {¶60} Lopez is factually distinguishable from this case in several crucial respects.

In Lopez, the trooper initiated a routine traffic stop which may not have warranted the

officer’s aggressive show of force. Here, Officer Jacob encountered an unusual accident

that posed a potentially dangerous situation, requiring Officer Jacob to secure Mr. Everett

and the scene. The defendant in Lopez also did not attempt to flee during the trooper’s

initial approach, nor did he exhibit unusual behavior.

       {¶61} In Lopez, the trooper handcuffed and searched the defendant immediately

after he exited the vehicle. Id. at *3. The officer went through every pocket of the

defendant’s pants, including the smallest, emptied the pockets, searched through the

items found (a pack of cigarettes and paper money), and even pulled out the lining of the

pockets. Id. at *1, 3. According to the court, the trooper was obviously searching for the




                                            16
marijuana he smelled. Id. at *1. In this case, there is no indication the officers searched

Mr. Everett in a similar manner or for a similar purpose.

       {¶62} In Lopez, it appears the trooper detained the defendant in the police cruiser

for the purpose of searching the front and back seats and trunk of the defendant’s car for

marijuana. The record in this case indicates that the officers detained Mr. Everett in the

police cruiser while Officer Jacob addressed immediate safety concerns regarding the

vehicle and the building. Officer Jacob had not even had a conversation with Mr. Everett

at this point.

       {¶63} Finally, in Lopez, the detention was not limited in duration. In this case, Mr.

Everett was only detained for approximately two minutes before Officer Jacob could

speak with him.

       {¶64} Under the totality of the circumstances, we conclude the officers’ actions in

this case did not exceed the bounds of a lawful investigative detention. The officers acted

promptly and reasonably for the purposes of securing Mr. Everett and the scene and

ensuring their safety until Officer Jacob could investigate the cause of Mr. Everett’s erratic

driving.

       {¶65} Since the investigative detention did not ripen into a de facto arrest, we do

not need to determine whether the officers had probable cause to arrest Mr. Everett for

OVI when he was handcuffed and detained in the police cruiser.

       {¶66} Mr. Everett’s first assignment of error is without merit.




                                             17
                                     Miranda Warnings

         {¶67} In his second assignment of error, Mr. Everett claims the trial court erred in

denying his motion to suppress the evidence obtained following his placement in custody

without Miranda warnings.

         {¶68} 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 warnings given pursuant to the U.S. Supreme Court’s decision in Miranda v. Arizona,

384 U.S. 436 (1966) are designed to protect against violations of the Fifth Amendment's

self-incrimination clause. State v. Rupp, 11th Dist. Portage No. 2007-P-0095, 2008-Ohio-

4052, ¶39.

         {¶69} The duty to advise a suspect of Miranda rights does not attach until

questioning rises to the level of a “custodial interrogation.” State v. Roe, 41 Ohio St.3d

18, 22 (1989). In determining whether an individual has been placed into custody, the

test is whether, under the totality of the circumstances, a “reasonable person would have

believed that he was not free to leave.” State v. Gumm, 73 Ohio St.3d 413, 429 (1995).

         {¶70} Applying the standard to the present case, Mr. Everett was not subject to

custodial interrogation when Officer Jacob questioned him or administered field sobriety

tests.

         {¶71} The U.S. Supreme Court has held that the roadside questioning of a

motorist detained pursuant to a routine traffic stop does not constitute “custodial

interrogation” for the purposes of Miranda warnings. Berkemer v. McCarty, 468 U.S. 420,

421 (1984). This court and others have applied the Berkemer rule in cases involving

accident investigations. See State v. Chudzik, 11th Dist. Ashtabula No. 2003-A-0002,




                                              18
2004-Ohio-2791, ¶17 (applying Berkemer to admissions the police obtained during a

crash investigation); State v. Warrell, 41 Ohio App.3d 286, 287 (9th Dist.1987) (“Simply

requiring [the] defendant to sit in a police car for a short period of time to answer a few

questions did not elevate the situation beyond the realm of the ordinary traffic stop

approved in Berkemer”); State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893, ¶48

(1st Dist.) (“That [the defendant] had been involved in an accident did not change the fact

that the officers initially had the right to detain and question him about the accident before

actually arresting him”). A motorist at an accident scene can reasonably expect that he

will be requested to answer questions. Warrell at 286.

       {¶72} Courts have also found that the administration of field sobriety tests does

not constitute custodial interrogation for Miranda purposes. See Fairview Park v. Pelsnik,

8th Dist. Cuyahoga No. 54915, 1989 WL 4140, *2 (Jan. 19, 1989), citing Berkemer at

442.

       {¶73} Even assuming, arguendo, that Officer Jacob subjected Mr. Everett to

custodial interrogation, Mr. Everett has not identified any self-incriminating statements

that the trial court should have suppressed. Officer Jacob asked him if he had been

drinking or had taken drugs, and Mr. Everett responded in the negative. See Rupp at ¶44

(Miranda violation not found where defendant made no inculpatory statements prior to

taking the field sobriety tests).

       {¶74} In addition, the Supreme Court of Ohio has held that nonverbal results of

field sobriety tests are not self-incriminating statements. State v. Henderson, 51 Ohio

St.3d 54, 57-58 (1990). See Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990), quoting

Schmerber v. California, 384 U.S. 757, 764 (1966) (“the privilege [against self-




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incrimination] does not protect a suspect from being compelled by the State to produce

‘real or physical evidence’”).

       {¶75} In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶49, the Supreme

Court of Ohio held that under the Ohio Constitution, “evidence obtained as the direct

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

excluded.” (Emphasis added.) However, there is no indication that Officer Jacob’s

decision to administer the field sobriety tests was based on anything Mr. Everett told him.

See Rupp at ¶44 (physical evidence was not the result of unwanted statements where

the officer’s decision to administer field sobriety tests was not based on anything the

defendant said). Instead, the decision appeared to be based on the strong odor of alcohol

on Mr. Everett’s breath and Mr. Everett’s bloodshot, glassy eyes and slurred speech. See

id.

       {¶76} Accordingly, the trial court was not required to suppress Mr. Everett’s

statements to Officer Jacob or the results of his field sobriety tests based on the failure to

provide Miranda warnings.

       {¶77} Mr. Everett’s second assignment of error is without merit.

       {¶78} Based on the foregoing, the judgment of the Mentor Municipal Court is

affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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