[Cite as State v. Brocker, 2015-Ohio-3412.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2014-P-0070
        - vs -                                  :

BRADEN K. BROCKER,                              :

                 Defendant-Appellant.           :


Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R 2014
TRC 5319.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

David J. Betras, Betras, Maruca, Kopp, Harshman & Bernard, L.L.C., 6630 Seville
Drive, Suite #1, P.O. Box 129, Canfield, OH 44406-0129. (For Defendant-Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, Braden K. Brocker, seeks reversal of the trial court’s denial of

 his motion to suppress. He claims he was subject to a custodial interrogation without

 being read his Miranda warnings. For the following reasons, we affirm.

        {¶2}     Appellant was pulled over for speeding by an Ohio State Highway Patrol

 trooper after midnight in April of 2014. He was alone in the car. The trooper told

 appellant that he was being issued a warning ticket for speeding.
      {¶3}   The trooper noticed that appellant’s eyes were bloodshot and glassy and

that he had a strong odor of alcoholic beverage coming from his mouth. He asked

appellant to step out of his vehicle so that he could conduct his interview and to see if

he could continue to smell alcohol. Appellant consented to a pat down search, and the

trooper had him enter his patrol car. The trooper testified that he had appellant sit in

the front seat of the patrol car while he checked appellant’s license and plates. The

trooper confirmed that the front door was unlocked; that appellant was not handcuffed;

and that he was not under arrest at that point. However, appellant testified that he

“believed” he was placed in the backseat of the patrol car and that he did not feel free

to leave. Unlike the front seat, the trooper explained that someone placed in the back

seat of a patrol car is in a cage and is not free to leave.

      {¶4}   While they were both seated in the patrol car, the trooper asked appellant

a few questions pertaining to his alcohol consumption that day. Appellant admitted

drinking a single beer three hours earlier and drinking quite a few earlier that day.

Based on appellant’s admissions, strong smell of alcoholic beverage, and glassy and

bloodshot eyes, the trooper got appellant out of the patrol car and had him perform the

standard field sobriety tests to determine whether he was okay to drive. Appellant

explained that he felt compelled to perform the field tests because he thought he was

under arrest or that he was going to be arrested because he was placed in the patrol

car. Appellant performed very poorly on the field sobriety tests.

      {¶5}   After the completion of the field tests and the implementation of the

portable breathalyzer test, the trooper placed appellant under arrest for operating his

vehicle while impaired. Appellant was then handcuffed and read his Miranda warnings.




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      {¶6}   Appellant pled not guilty and moved the trial court to suppress evidence

from his traffic stop. The motion was heard by the Portage County Municipal Court and

was denied via its September 12, 2014 Journal Entry.

      {¶7}   Following the denial of his motion to suppress, appellant pled no contest

to the charge of OVI in violation of R.C. 4511.19(A)(1)(a). The trial court found him

guilty. Appellant timely appeals and asserts one assignment of error:

      {¶8}   “The trial court failed to make findings of fact and thus did not articulate a

legally sufficient ruling on the issue, raised in the Defendant-Appellant’s Motion to

Suppress Evidence, that he was subjected to custodial interrogation and in response

made incriminating statements without first being read his Miranda Rights, in violation

of his Constitutionally protected right to remain silent and privilege against self-

incrimination.”

      {¶9}   The motion to suppress set forth three distinct grounds for suppression.

Counsel raised each of these grounds at the suppression hearing and each was

addressed by the prosecutor in his remarks. During his closing, appellant’s counsel

argued that appellant’s admissions of drinking resulted in the administration of the field

sobriety tests, and as a result, his arrest based on those tests was unlawful. The trial

court judge never directly ruled on the issue as to whether appellant was in custody at

the time of his admission. Appellant now challenges the trial court’s lack of findings on

this issue and claims that the subsequent field sobriety tests and arrest were contrary

to law.

      {¶10} Ordinarily an appellate court reviews a trial court’s decision on a motion to

suppress pursuant to a two-step process.         First, an appellate court must accept




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findings of fact on a motion to suppress if they are supported by competent and

credible evidence.     State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶8 citing State v. Fanning, 1 Ohio St.3d 19, 1 Ohio B. 57, 437 N.E.2d 583

(1982). The trial court judge acts as the trier of fact and is in the best position to

assess witness credibility. Id. Second, an appellate court must independently verify

whether the facts found by the trial court satisfy the applicable legal standard. Id. citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist. 1997).

      {¶11} Pursuant to Crim.R. 12(F), a trial court “shall state its essential findings on

the record” in order to facilitate effective appellate review. Kirtland Hills v. Medancic,

11th Dist. Lake Nos. 2011-L-136 & 2011-L-137, 2012-Ohio-4333, ¶8, citing State v.

Marinacci, 5th Dist. Fairfield No. 99-CA-37, 1999 Ohio App. LEXIS 5279, *4 (Nov. 3,

1999). A trial court must recite its factual findings in order to enable an appellate court

to determine whether the trial court’s factual findings are supported by the record and if

the trial court applied the correct law. Kirtland Hills at ¶8, citing State v. Bailey, 5th

Dist. Muskingum No. CT2002-0041, 2003 Ohio App. LEXIS 5690, *6 (Nov. 21, 2003).

      {¶12} In the instant case, we agree with appellant that the trial court failed to

address this prong of his suppression motion. It did not make any findings on this

issue either in its written decision or at the hearing.           Nevertheless, no resulting

prejudice is apparent, and appellant did not request findings of fact. This court has

previously found that a trial court’s failure to set forth its essential findings is not fatal if

the record provides a sufficient basis to review appellant’s assigned errors on appeal.

State v. Armstrong, 11th Dist. Portage No. 2012-P-0018, 2013-Ohio-2618, ¶24; State

v. Sands, 11th Dist. Lake No. 2006-L-171, 2007-Ohio-35, ¶36; State v. Harris, 8th Dist.




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Cuyahoga No. 85270, 2005-Ohio-2192, ¶18-19.               Even absent findings and

conclusions, the trial court's denial of the motion to suppress was legally justified and

supported by the record.

      {¶13} Miranda warnings must be provided when a defendant is subject to a

custodial interrogation.   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 v. Arizona, 384 U.S. 436, 444-

468, 86 S.Ct. 1602 (1966).

      {¶14} The roadside questioning of a motorist detained pursuant to a routine

traffic stop does not usually constitute a custodial interrogation and invoke the

requirement that the driver be read his Miranda warnings. Berkemer v. McCarty, 468

U.S. 420, 440, 104 S.Ct. 3138 (1984). In Berkemer, the Supreme Court held that

Miranda was not implicated where the driver, who was stopped for swerving, was

questioned about his drinking during the traffic stop. Id. at 439. Instead, the court

explained that the “noncoercive aspect of ordinary traffic stops prompt us to hold that

persons temporarily detained pursuant to such stops are not ‘in custody’ for the

purposes of Miranda.” Id. at 440. Instead, the Miranda safeguards are implicated

when “a suspect’s freedoms are curtailed to a ‘degree associated with formal arrest.’”

Id. quoting California v. Beheler, 463 U.S. 1121, 1125 (1983). “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.” State v. Wineberg, 2d Dist. Clark No. 97-CA-58, 1998 Ohio App. LEXIS

1159, *15 (Mar. 27, 1998), citing Berkemer.




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      {¶15} 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 officer smelled alcohol and placed the driver

in the back of the cruiser to determine the source of the odor and to confirm that the

smell was not coming from either of the two passengers. The officer explained that the

driver was placed in the cruiser for safety reasons since there was high-speed traffic on

the interstate. 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.

      {¶16} 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. Serafin was alone when he was pulled over for speeding. The

officer explained that Serafin smelled of alcohol and that his eyes were glassy. Serafin

was ordered to accompany the officer to the patrol car so he could complete his

investigation. The officer confirmed that the alcohol odor was coming from Serafin, so

he asked him how much he had to drink that night. Serafin admitted to having a couple

beers over dinner, and the officer then initiated the field sobriety tests. The video of the

traffic stop confirmed that approximately six minutes passed from the time of the initial

stop until the officer began the field tests. Serafin was subsequently arrested and read

his Miranda warnings at that time. On appeal, we upheld the denial of the motion to

suppress because the questioning in the cruiser during the temporary detention for

speeding was never elevated beyond the purpose of the initial stop. Id. at ¶8-15.




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      {¶17} 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).

      {¶18} Like the facts in Serafin and Rice, the record before us confirms that the

routine questioning during the traffic stop detention in this case did not rise to a

custodial interrogation, regardless of whether appellant was in the front or back seat of

the patrol car at the time. A review of the DVD of the traffic stop reveals that the

detention was brief, i.e., less than six minutes from the time the trooper approached

appellant’s car to the time he began the field tests, and that the questioning was neither

lengthy nor intimidating. The trooper did not take appellant’s keys and did not search

appellant’s vehicle. Instead, appellant’s incriminating admissions were made during

the traffic stop and attendant investigation for the issuance of the warning for speeding.




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Accordingly, Miranda warnings were not required before appellant made his

incriminating statements. The trial court appropriately denied the motion to suppress.

      {¶19} Based on the foregoing, it is the judgment and order of this court that the

decision of the Portage County Municipal Court is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.



                                  ____________________



COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶20} As the majority notes, failure by a trial court to set forth its essential

findings of fact in a suppression hearing pursuant to Crim.R. 12(F) may not be

reversible error if the record provides a sufficient basis for an appellate court to review

any error assigned. Armstrong, supra, at ¶24. Unlike the majority, however, I do not

find the record in this case sufficient to decide appellant’s contention he was held in

custody prior to being Mirandized without a finding on this issue by the trial court.

      {¶21} According to Trooper Engle’s testimony, he stopped appellant for

speeding, and observed typical indicia of intoxication: bloodshot, glassy eyes, and a

strong odor of alcohol. The trooper asked appellant to exit his car, and performed a pat

down, then placed appellant in the front seat of his cruiser, and questioned him about

his drinking. The trooper emphasized that he does not consider a person under arrest

until he or she is placed in the secure back seat of the cruiser. The trooper then exited




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the cruiser, and took appellant out by the passenger door, and had him perform the

field sobriety tests, prior to placing him under arrest.

      {¶22} Even on the trooper’s own testimony, appellant might reasonably consider

himself in custody when he was placed in the front seat of the cruiser, before being

questioned about his drinking. I respectfully question whether a reasonable person

would consider him or herself free to not answer questions, and leave, under these

circumstances. If not, this was custodial interrogation, and appellant should have been

given his Miranda warnings at the time. See, e.g., Thompson v. Keohane, 516 U.S. 99,

112 (1995).

      {¶23} Further, there is a discrepancy between the testimony of the trooper, and

appellant. The majority states appellant testified he “believed” he was placed in the

back seat, not the front seat, of the cruiser. The actual testimony elicited is as follows:

      {¶24} Defense counsel: “When you were in his – the first time he placed you in

the car, were you in the back seat or the front seat?”

      {¶25} Appellant: “I believe was in the back seat.”

      {¶26} Defense counsel: “You believe or you know?”

      {¶27} Appellant: “I was in the back seat.”

      {¶28} The trooper’s own testimony was that he considers a person under arrest

when placed in the back seat of his cruiser. When an issue of credibility is essential to

determining a motion to suppress, and a trial court makes no finding regarding

credibility, the proper response of an appellate court is to reverse and remand, so the

trial court can make that finding. State v. Payne, 9th Dist. Wayne No. 11CA0029,

2012-Ohio-305, ¶13-15.




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     {¶29} I would reverse and remand for the trial court to make further findings

under Crim.R. 12(F).

     {¶30} I respectfully dissent.




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