[Cite as State v. Campbell, 2015-Ohio-3381.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

STATE OF OHIO                                        :
                                                     :
        Plaintiff-Appellant                          :   Appellate Case No. 26497
                                                     :
v.                                                   :   Trial Court Case No. 14-CRB-1626
                                                     :
AARON CAMPBELL                                       :   (Criminal Appeal from
                                                     :    Dayton Municipal Court)
        Defendant-Appellee                           :
                                                     :

                                                ...........

                                               OPINION

                            Rendered on the 21st day of August, 2015.

                                                ...........

LYNN R. DONALDSON, Atty. Reg. No. 0041507, and STEPHANIE L. COOK, Atty. Reg.
No. 0067101, by MATTHEW O. KORTJOHN, Atty. Reg. No. 0083743, Dayton City
Attorney’s Office, 335 West Third Street, room 372, Dayton, Ohio 45402
       Attorneys for Plaintiff-Appellant

JULIA J. MARTIN, Atty. Reg. No. 0084156, Law Office of the Public Defender, 117 South
Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                               .............

HALL, J.

        {¶ 1} The State of Ohio appeals the trial court order suppressing Aaron Campbell’s
                                                                                         -2-
admission to police officers that he had been drinking alcohol, which lead to Campbell

being charged with underage consumption of alcohol. The trial court found that Campbell

was subjected to custodial interrogation without being given Miranda warnings. The State

does not dispute that Miranda warnings were not given but contends that the warnings

were not required because Campbell was not “in custody.” We agree and reverse the

suppression order.

                                         I. Facts

       {¶ 2} Around 1:00 a.m. on March 16, 2014, University of Dayton Police Officer

Tom Weber was patrolling a residential neighborhood near the University of Dayton

campus when he noticed Campbell and two females near Campbell’s car, which was

parked along the sidewalk. The two females were getting into the car, and as Officer

Weber approached in his cruiser he saw one of them drop an open container of alcohol on

the ground before she got in. Weber stopped his cruiser in the middle of the street and

approached Campbell, who had not yet gotten in the car.

       {¶ 3} Officer Weber asked Campbell for his identification and asked how old he

was. Campbell handed over his ID, telling him that he was eighteen years old. Weber then

turned his attention to the two females. While Weber was talking to them, Campbell

interrupted several times, trying to get Weber’s attention and trying to get the girls to be

cooperative. So when Officer Orrill arrived on the scene, Weber told Campbell to sit on

the sidewalk while he dealt with the two females. Orrill stood near Campbell and spoke to

him. Officer Weber soon learned that the two females were under the legal drinking age,

so he arrested them both for underage consumption.

       {¶ 4} After the girls were arrested, Weber turned his attention back to Campbell.
                                                                                         -3-
Weber asked Officer Orrill if Campbell had been drinking, and Orrill replied that Weber

had told him that he had not been. But when Officer Weber asked Campbell if a

breathalyzer test would show the same, Campbell admitted that “he had a couple of

drinks.” (Suppression Hearing Tr. 14). Weber eventually had Campbell taken to the

campus police station, where Campbell’s parents picked him up.

        {¶ 5} Campbell was charged with one count of underage consumption, in violation

of R.C. 4301.69(E), to which he pleaded not guilty. Campbell then filed a motion to

suppress the incriminating statements that he made to the police officers at the time of the

stop. An evidentiary hearing was held at which Officer Weber testified and a DVD of the

audio and video from the body camera that he was wearing was admitted as an exhibit.1

The State stipulated to the fact that Campbell was not given Miranda warnings. The trial

court issued a written decision on November 20, 2014, finding that during the encounter

Campbell was “was not free to go” and therefore Miranda warnings were required before

questioning that resulted in the incriminating statements. Because he had not been given

Miranda warnings, the trial court suppressed all the statements that Campbell made to

the police officers, sustaining Campbell’s suppression motion.

        {¶ 6} The State appealed.

                                        II. Analysis

        {¶ 7} The State assigns a single error to the trial court. It alleges that the court

erred by granting Campbell’s motion to suppress. The State contends that the trial court

incorrectly found that when officers asked Campbell if he had been drinking, Campbell

was in custody for purposes of Miranda.


1
    We watched and listened to the recorded encounter.
                                                                                        -4-



      {¶ 8} Typically, in reviewing a trial court’s suppression decision, “an appellate

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

credible evidence * * * [and] must then independently determine * * * whether the facts

satisfy the applicable legal standard.” (Citation omitted.) State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. But we have said that, “in the particular

area of custodial interrogations, * * * whether a suspect is in custody is a mixed question

of fact and law entitled to independent review.” (Citations omitted.) State v. Estepp, 2d

Dist. Montgomery No. 16279, 1997 WL 736501, *2 (Nov. 26, 1997); see Thompson v.

Keohane, 516 U.S. 99, 102, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).

      {¶ 9} Police are not required to give Miranda warnings to every person they

question, even if the person is a suspect. State v. Biros, 78 Ohio St.3d 426, 440, 678

N.E.2d 891 (1997). “Only custodial interrogation triggers the need for Miranda warnings.”

(Emphasis sic.) (Citations omitted.) Id. That is so because the Miranda doctrine applies

only in situations that put pressure on a detained person sufficient to “impair his free

exercise of his privilege against self-incrimination to require that he be warned of his

constitutional rights.” Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82

L.Ed.2d 317 (1984).

      {¶ 10} An investigative stop, a “Terry stop,” does not put this kind of pressure on a

person. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A police

officer “whose ‘observations lead him reasonably to suspect’ that a particular person has

committed, is committing, or is about to commit a crime, may detain that person briefly in

order to ‘investigate the circumstances that provoke suspicion.’ ” Berkemer at 439,
                                                                                          -5-
quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d

607 (1975). In this situation, the police officer is not required to give the person Miranda

warnings before asking questions, because of the “comparatively nonthreatening

character of detentions of this sort.” Id. As we have said, “[g]eneral, on-the-scene

questioning of persons concerning events that have happened does not ordinarily fall

within the ambit of custodial interrogation.” (Citations omitted.) State v. Barnett, 2d Dist.

Montgomery No. 14019, 1994 WL 567551, *4 (Aug. 31, 1994). Analogously, the

“noncoercive aspect of ordinary traffic stops” means that “persons temporarily detained

pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Berkemer at 440.

       {¶ 11} Of course, a person who has been detained initially for investigatory

purposes or pursuant to a traffic stop may thereafter be subjected to treatment that

renders the person “in custody” and thus be entitled to the protections of Miranda. See id.

Whether the person is “in custody” depends on “ ‘how a reasonable man in the suspect’s

position would have understood his situation.’ ” Biros at 440, quoting Berkemer at 442.

Whether a person is free to go is only part of the equation. Although a person “may not

have been free to go, the fact that he was being detained does not necessarily mean that

he was in custody.” State v. Johnson, 2d Dist. Greene No. 2001 CA 55, 2001 WL

1562089 (Dec. 7, 2001). The person is in custody for Miranda purposes if “ ‘there is a

“formal arrest or restraint on freedom of movement” of the degree associated with a

formal arrest.’ ” Biros at 440, quoting California v. Beheler, 463 U.S. 1121, 1125, 103

S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

       {¶ 12} Here, we see nothing in the record that suggests that Campbell should have

been given Miranda warnings before he admitted to drinking alcohol. The initial stop, by
                                                                                           -6-
itself, did not render him “in custody.” And there is little evidence that between the time of

the stop and time of his admission Campbell was restrained to a degree associated with a

formal arrest. Undoubtedly the officer was officious in the encounter. But Campbell was

neither handcuffed nor told that he was under arrest. He was not detained in a police car.

Only about 15 minutes elapsed between the stop and Campbell being taken to the police

station for his parents to pick him up. No other aspects of the interaction between

Campbell and the police officers support the trial court’s finding that Campbell was

subjected to custodial interrogation at the scene of the stop. Campbell’s treatment

“cannot fairly be characterized as the functional equivalent of formal arrest.” Berkemer,

468 U.S. at 442, 104 S.Ct. 3138, 82 L.Ed.2d 317.

       {¶ 13} Campbell was not “in custody” for purposes of Miranda when he admitted to

drinking alcohol. Consequently, the trial court erred by suppressing Campbell’s

admission.

       {¶ 14} The sole assignment of error is sustained.



                                      III. Conclusion

       {¶ 15} The trial court’s judgment is reversed. This case is remanded for further

proceedings.

                                      .............

WELBAUM, J., concurs.

DONOVAN, J., dissenting:
       {¶ 16} I disagree. Based on the evidence, the trial court could have reasonably

concluded that Campbell was in custody and not free to leave. In my view, Campbell
                                                                                        -7-
was deprived of his freedom of movement in a significant way when he was ordered to “sit

on the ground,” with an officer standing nearby (or over him). In a routine traffic stop,

drivers are not ordered to sit on the ground for fifteen minutes. Furthermore, in a routine

traffic stop, five officers are not present. Here, both bike patrol officers and a second

cruiser came to the scene. The two juvenile females were cuffed and taken into custody

in Campbell’s presence. As aptly and specifically noted in appellee’s brief, the police

dominated the situation, Campbell’s vehicle was searched, and Officer Weber retained

his driver’s license.

       {¶ 17} Further, besides the officious tone noted by the majority, I would find that

the stop rose to the level of “coercive conditions.” Campbell was intimidated into making

incriminating statements by the threat that he would be locked up with “murderers and

rapists.”2

       {¶ 18} This was not a temporary, non-police dominated interview as envisioned in

Berkemer. It is inconceivable that a person facing Campbell’s situation would conclude

that he was just free to walk away. I acknowledge that “in the absence of coercive

conditions * * * the short detention involved in a traffic stop falls outside the scope of

Miranda * * *.” State v. Campbell, 2d Dist. Clark No. 94-CA-78, 1995 WL 472142, * 4

(Aug. 9, 1995). This stop does not, however, in my view, fall outside the scope of

Miranda. I agree with the trial court. Campbell was “at the mercy of the police.” Id.

                                          ..........




2
  An eighteen-year-old without a criminal history would not be astute enough to know that
someone accused of underage consumption would not be housed in the same pod with
violent offenders such as “murderers and rapists.”
                        -8-




Copies mailed to:
Lynn R. Donaldson
Stephanie L. Cook
Matthew O. Kortjohn
Julia J. Martin
Hon. Daniel G. Gehres
