[Cite as State v. Brown, 2016-Ohio-4973.]




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

 STATE OF OHIO                                    :
                                                  :   Appellate Case No. 26937
         Plaintiff-Appellant                      :
                                                  :   Trial Court Case No. 15-CR-1308
 v.                                               :
                                                  :   (Criminal Appeal from
 AUNDRE BROWN                                     :    Common Pleas Court)
                                                  :
         Defendant-Appellee                       :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 15th day of July, 2016.

                                             ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

BARRY S. GALEN, Atty. Reg. No. 0045540, 22 St. Clair Street, Dayton, Ohio 45402
    Attorney for Defendant-Appellee

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

FAIN, J.

        {¶ 1} Plaintiff-appellant the State of Ohio appeals from an order of the trial court

suppressing evidence. The State contends that the trial court erred by concluding that

Brown was in custody at the time he was questioned. Defendant-appellee Aundre Brown
                                                                                          -2-


contends that under the circumstances, a reasonable person would believe he was not

free to leave and was in custody. We agree with the trial court that under the

circumstances, Brown was in custody, for Miranda purposes, when he was questioned

about crack cocaine found on his side of the car he had been driving. Therefore, we

conclude that the trial court did not err in suppressing the statement made by Brown while

in custody, and the suppression order is affirmed.



                        I. The Interrogation After a Traffic Stop

       {¶ 2} In early May 2015, Officer Schwartz, a patrol officer for the City of Dayton,

was driving a marked cruiser on North Main Street when he observed that Brown’s vehicle

had no lights to illuminate the license plate. Officer Schwartz activated his overhead lights

and initiated a traffic stop for the purpose of issuing a citation. Brown stated that he was

already stopped when the police cruiser activated its sirens, because he and his cousin,

a passenger in the vehicle, were talking to a young lady on the side of the road. As the

officer stopped his police cruiser behind Brown’s vehicle, the passenger got out of the car

and starting running. The passenger believed, erroneously, that there was an active

warrant out for his arrest. Officer Schwartz chased the passenger until he caught him,

then handcuffed him and placed him in the back of the cruiser. Officer Schwartz then

approached Brown, who was still in the driver’s seat, and asked to see his license. Brown

stated that he did not have a license. Officer Schwartz told Brown to get out of the car,

and escorted him to the back of the cruiser. Brown was not handcuffed, and was not told

he was under arrest. Officer Schwartz testified that Brown was not free to leave. Officer

Schwartz sat in the front seat of his cruiser and checked his computer to verify that Brown
                                                                                        -3-


was unlicensed. Officer Schwartz called for assistance to have the vehicle towed, since

neither occupant had a valid driver’s license. Officer Johnson arrived to assist, and

inventoried Brown’s vehicle before it was towed.

         {¶ 3} While the inventory was being completed, Officer Schwartz was writing up a

citation for Brown. Brown and his cousin were in the back seat of the cruiser. The doors

of the back seat of the cruiser do not open from the inside. During the search of Brown’s

car, Officer Johnson found a baggie of suspected crack cocaine in the vehicle, near the

driver’s side door. Officer Schwartz got out of his cruiser, seized the baggie, returned to

his cruiser, and asked both Brown and his cousin, “Whose drugs are these?” Before

Brown responded, no warnings were given as prescribed by Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

         {¶ 4} Brown answered the officer’s question by responding, “It’s mine.” After

this, the officer did read a Miranda warning to Brown, and advised him that he was under

arrest. After the Miranda warning, Brown refused to answer any further questions at the

scene.

                             II. The Course of Proceedings

         {¶ 5} Brown was indicted on one count of Possession of a Controlled Substance,

in violation of R.C. 2925.11(A). He moved to suppress the evidence seized and the

statement made at the time of the offense, in which he admitted to possession of the

drugs.

         {¶ 6} At the hearing on the motion to suppress, Officer Schwartz and Brown

testified. Based on the evidence presented, the trial court sustained the motion in part

and overruled the motion in part. The trial court found that the officer had sufficient
                                                                                          -4-


justification to make the traffic stop and inventory the vehicle, but that the incriminating

statement made by Brown before he was informed of his Miranda rights should be

suppressed. From the order of the court suppressing Brown’s statement, the State

appeals.

                               III. The Standard of Review

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

and fact. 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.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-

1326, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings of fact if

they are supported by competent, credible evidence. Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id.       The

application of the law to the trial court's findings of fact is subject to a de novo standard

of review. State v. Gordon, 5th Dist. Fairfield No. 14-CA-13, 2014-Ohio-5027, ¶ 14, citing

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).



             IV. Brown Was in Custody at the Time of the Interrogation

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

              THE TRIAL COURT ERRED IN SUPPRESSING BROWN’S

       STATEMENT. THE STATEMENT WAS NOT MADE IN VIOLATION OF

       BROWN’S MIRANDA RIGHTS AS HE WAS NOT IN CUSTODY WHEN HE
                                                                                      -5-


      MADE HIS STATEMENT.

      {¶ 9} The State argues that the trial court incorrectly determined that Brown was

subject to a custodial interrogation requiring Miranda warnings, because he was not in

custody at the time he was questioned about the drugs found in his vehicle. We recently

reviewed the applicable law as follows:

              “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, 876 N.E.2d 1304, ¶ 16 (2d

      Dist.), citing Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 89

      L.Ed.2d 410 (1986). “The procedural safeguards prescribed by Miranda

      apply only when persons are subjected to ‘custodial interrogation.’ ” State

      v. Thomas, 2d Dist. Montgomery No. 20643, 2005-Ohio-3064, ¶ 27, citing

      Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694

      (1966). “ ‘Custodial interrogation’ means questioning initiated by the police

      after the person has been taken into custody or otherwise deprived of his

      freedom to the degree associated with a formal arrest.” (Citations omitted.)

      State v. Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 32.

              “In order to determine whether a person is in custody for purposes

      of receiving Miranda warnings, courts must first inquire into the

      circumstances surrounding the questioning and, second, given those

      circumstances, determine whether a reasonable person would have felt that

      he or she was not at liberty to terminate the interview and leave.” State v.

      Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, citing
                                                                                    -6-

Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995). “Once the factual circumstances surrounding the interrogation are

reconstructed, the court must apply an objective test to resolve ‘the ultimate

inquiry’ of whether there was a ‘ “formal arrest or restraint on freedom of

movement” ’ of the degree associated with a formal arrest.” Id., quoting

California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d

1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.

711, 50 L.Ed.2d 714 (1977).

        “The factors a court should consider in applying this reasonable

person test include whether the encounter takes place in surroundings that

are familiar to the suspect; the number of law enforcement officers present,

as well as their conduct and demeanor; the degree of physical restraint

imposed; and the duration and character of the interrogation.” (Citation

omitted.) State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999 WL 812249,

*3 (Oct. 8, 1999). We note that “a police officer's subjective intent to arrest

a suspect is immaterial to the issue of whether the suspect is in custody for

Miranda purposes, unless and until that intent is communicated to the

suspect.” (Citation omitted.) State v. Cross, 2d Dist. Montgomery No.

25838, 2014-Ohio-1534, ¶ 13. Rather, the issue is whether a reasonable

person in the suspect's situation would have understood that he was in

custody. Id.

        Individuals are not “in custody” for purposes of Miranda during a

typical investigatory detention such as a routine traffic stop. State v. Cundiff,
                                                                                          -7-

       2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 60, citing Berkemer v.

       McCarty, 468 U .S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “An

       individual is subject to an investigatory detention when, in view of all the

       circumstances surrounding the incident, by means of physical force or show

       of authority, a reasonable person would have believed that he was not free

       to leave or was compelled to respond to questions.” (Citations omitted.)

       State v. Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241, ¶ 34.

       During an investigatory detention, “the officer may ask the detainee a

       moderate number of questions to determine his identity and to try to obtain

       information confirming or dispelling the officer's suspicions” without the

       need to first advise the detainee of his Miranda rights. Berkemer at 439–

       440. “However, if the individual is, during the course of the detention,

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

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

       State v. Keggan, 2d Dist. Greene No. 2006 CA 9, 2006-Ohio-6663, ¶ 31,

       citing Berkemer at 440. (Other citation omitted.)

State v. Sell, 2d Dist. Montgomery No. 26458, 2015-Ohio-1940, ¶¶ 15-18.

       {¶ 10} In the case before us, the trial court determined, based on the totality of

the circumstances, that Brown was in custody for purposes of Miranda at the time he was

asked about the baggie of drugs found in his car. Specifically, the trial court concluded

that no reasonable person would believe that he was only being detained long enough

for a citation to be written after this series of events:

       1. During the traffic stop the passenger ran from the vehicle, Officer
                                                                                        -8-


      Schwarz chased him, apprehended him and placed him in handcuffs in the

      back of the cruiser;

      2. Defendant Brown, seated at the driver’s side of the vehicle, was removed

      from the vehicle and placed in the rear of the cruiser once it was determined

      that he did not have a license;

      3. The rear doors of the cruiser were locked;

      4. Officer Johnson searched the car and found cocaine in the driver’s door;

      5. Officer Johnson told Officer Schwartz where he found the cocaine and

      Officer Schwartz physically displayed the cocaine to the Defendant before

      asking him, “Whose drugs are these?”

      {¶ 11} The State points out that Brown was not handcuffed, he was not told that

he was under arrest, the officer was not aggressive with Brown and did not use a gun.

Although Brown’s subjective view is not relevant, Brown stated at the suppression hearing

that when the officer was writing up the citation, he thought he was going to be cited and

be on his way. Brown was not asked whether his view changed when the officer displayed

drugs found in the car and questioned their ownership.

      {¶ 12} The trial court did consider the totality of the circumstances, and reached

its conclusion based on the objective test of whether a reasonable person, under these

circumstances, would have understood that he was in custody at the time he was detained

in the back seat of a locked cruiser and asked whether the crack cocaine found in the car

was his. We agree that these facts are supported by competent, credible evidence and

support a conclusion that the question about the ownership of the drugs was asked as

part of a custodial interrogation, triggering rights established under the Fifth Amendment.
                                                                                            -9-




       {¶ 13} We acknowledge that this court has previously held, under different

circumstances, that “[t]he mere fact that an individual is sitting in the back seat of a police

cruiser, with rear doors that do not open from the inside, without more, is not sufficient to

establish custody.” State v. Moody, 2012-Ohio-3390, 927 N.E.2d 1273, ¶13 (2d Dist.),

citing State v. Harris, 2d Dist. Montgomery No. 13279, 1992 WL 317447, *5 (Nov. 3,

1992). However, we qualified that rule of law in Moody and Harris by cautioning that “if

the police take actions that would lead a reasonable person in the defendant’s position to

believe that he was going to be detained indefinitely, the encounter is custodial.” Moody

at ¶ 13, citing State v. Wilkins, 2d Dist. Montgomery No. 20152, 2004-Ohio-3917, ¶ 20.

Relying on precedent from the Supreme Court of the United States, we commented in

Harris that:

               [T]he essential question in the case before us is whether the officer’s

       questions addressed to the issues of illegal drugs or weapons altered the

       routine character of this traffic stop to the extent that a reasonable person

       in Harris’s position would no longer expect that “he will be obliged to spend

       a short period of time answering questions and waiting while the officer

       checks his license and registration, that he may then be given a citation, but

       that in the end he most likely will be allowed to continue on his way.”

Harris at *7 (Fain, P.J., concurring), citing Berkemer v. McCarty, 468 U.S. 420, 437, 104

S.Ct. 3138, 82 L.Ed.2d 317 (1984).

       {¶ 14} The facts in the case before us do present a situation that changed from a

routine traffic stop to a custodial interrogation when drugs were found and incriminating
                                                                                       -10-


questions were asked while Brown was being detained in the locked cruiser. We

conclude, therefore, that the trial court did not err in sustaining Brown’s motion to

suppress the statement Brown allegedly made regarding his ownership of the drugs found

in the car. The State’s sole assignment of error is overruled.



                                     V. Conclusion

       {¶ 15} The State’s sole assignment of error having been overruled, the order of the

trial court suppressing evidence is Affirmed.


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



DONOVAN, P.J., and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michele D. Phipps
Barry S. Galen
Hon. Richard Skelton
