[Cite as State v. Cross, 2014-Ohio-1534.]




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

 STATE OF OHIO                                   :
                                                 :     Appellate Case No. 25838
           Plaintiff-Appellee                    :
                                                 :     Trial Court Case No. 13-CR-633
 v.                                              :
                                                 :
 DKARL G. CROSS                                  :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
           Defendant-Appellant                   :
                                                 :
                                             ...........

                                             OPINION

                                Rendered on the 11th day of April, 2014.

                                             ...........

MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CARL BRYAN, Atty. Reg. #0086838, 266 Xenia Avenue, #225, Yellow Springs, Ohio 45837
     Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1}     Defendant-appellant Dkarl G. Cross appeals from his conviction and sentence,
                                                                                                    2


following a no-contest plea, for Carrying a Concealed Weapon, in violation of R.C.

2923.12(A)(2), and Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C.

2923.16(B), both felonies of the fourth degree. Cross contends that the trial court erred by

overruling his motion to suppress a statement he made to a police officer as he was being patted

down for weapons, or as he was about to be patted down for weapons, and to suppress, also,

evidence obtained as a result of that statement.

       {¶ 2}    We conclude that a reasonable person in Cross’s position would not have

understood himself to be under the functional equivalent of arrest when responding to the

officer’s question; therefore, the officer was not required to give the warnings required by

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before asking the

question. Consequently, the trial court did not err in overruling the motion to suppress, and the

judgment of the trial court is Affirmed.



       I. A Missing Front License Plate Leads to an Arrest for Weapons Violations

       {¶ 3}    Dayton Police Officer Jonathan Sopczak was patrolling in a marked police

cruiser with his partner, Jake Willam, one morning in late February 2013, when he saw a car

being driven by Cross. The area, 1219 North Gettysburg Avenue, in Dayton, was a high-crime

area, including both violent crimes and drug crimes. Violent crimes were reported in that area

“almost on a daily basis.” Likewise, drug complaints and arrests occurred in the area “on an

approximately daily basis.”

       {¶ 4}    Sopczak stopped Cross because the car he was driving had no front license plate.

 When stopped, Cross’s car was in one of two drive-through lanes at a McDonald’s restaurant,
                                                                                                   3


blocking that lane. When Sopzak asked Cross for his driver’s license, Cross said he did not have

a driver’s license.

        {¶ 5}    Sopczak testified that he had Cross get out of his car, and “asked him if there was

anything on his person that would concern officers.” Cross, who also testified at the suppression

hearing, testified:

                A. He [Sopczak] asked me did I have anything on me that would break or

        stick him or something like that. And I then said, no, but there’s a bag of weed in

        my pocket and there’s a gun in the car. And as I’m talking, he’s patting me down

        as I’m speaking. It’s not like he’s just standing there looking at me and I’m

        looking back. He’s got me under control. And before he goes to do anything in

        the car, he cuffs me, takes the weed out of my pocket and then puts me in the

        [cruiser] backseat. I noticed him get the firearm out of the doorway [the inside of

        the driver’s side car door], and then him and his partner speak for a moment, he

        comes back, pulls out his card, and reads my Miranda.

                ***

                Q. Okay. So you were handcuffed?

                A. Yes.

                Q. Was that prior to being placed in the back of the police car?

                A. Yes.

                Q. Do you remember if it was before or after the question that he asked

        you, do you have anything of concern that I should know about?

                A. Like I said, I think it was simultaneous. It’s kind of hard to tell if he
                                                                                                      4


         was, I’m pretty sure he wasn’t talking and cuffing me at the same time. So he

         probably asked me did I have anything on me and then I said no and he pulled out

         the cuffs and put them on me. Before I got in his car, I had cuffs on me

         backwards and I never got back out of the car to be recuffed.

                 ***

                 Q. Okay. And the officer, he asked you, according to your statement that

         I wrote down, if anything would poke, prick or stick him?

                 A. Something to that effect. It’s not verbatim. It could have been, do

         you have anything on you that would stick me? I can’t remember the exact words

         but what he was asking me was do I have anything on me.

                 ***

                 Q. And it’s only after you said no, but I’ve got a bag of weed in my

         pocket and a gun in the car that then you were handcuffed; is that right?

                 A. I’m not sure.

         {¶ 6}   On cross-examination, Officer Sopczak conceded that it was possible that his

pat-down of Cross began simultaneously with the question he asked. Although Sopczak testified

that he thought he did not handcuff Cross before putting Cross in the back of his cruiser, he could

not remember “exactly” when he put the handcuffs on Cross.

         {¶ 7}   The officers recovered a firearm from the driver’s door pocket of the vehicle

Cross was driving. Cross was arrested and charged with Carrying a Concealed Weapon and

Improper Handling of a Firearm in a Motor Vehicle. The vehicle, which Cross did not own, was

towed.
                                                                                                      5




                                II. The Course of Proceedings

       {¶ 8}    Cross moved to suppress both the statements he made and the evidence obtained

from the car. Following a hearing, his motion to suppress was overruled, in its entirety.

       {¶ 9}    Following the overruling of his motion to suppress, Cross pled no contest to both

charges. He was found guilty, and was sentenced to community control sanctions. From his

conviction and sentence, Cross appeals.



           III. Cross Was Not in Custody when He Was Asked the Question that

            Resulted in the Discovery of the Firearm in the Car He Was Driving

       {¶ 10} Cross’s First and Second Assignments of Error are as follows:

               THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS

       INCRIMINATING STATEMENTS MADE BY APPELLANT DURING A

       CUSTODIAL INTERROGATION WITHOUT FIRST BEING ADVISED OF HIS

       MIRANDA RIGHTS.

               THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS

       PHYSICAL EVIDENCE DISCOVERED DURING AN UNLAWFUL SEARCH

       AND SEIZURE OF THE VEHICLE APPELLANT WAS DRIVING.

       {¶ 11} Although there is a recognized exception from the requirement of prior Miranda

warnings for questions legitimately related to officer safety, that exception does not extend to an

open-ended question like “Do you have anything on you I need to know about?” State v.

Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 22 (2d Dist.). In the case
                                                                                                    6


before us, we have an unusual situation in which the police officer and the defendant gave

conflicting testimony as to what the officer asked the defendant, with the police officer’s version

being more favorable to the defendant, and the defendant’s version being more favorable to the

State. For purposes of analysis, we will assume that Officer Sopczak asked the open-ended

question, as he testified, “if there was anything on his person that would concern officers,” which

takes the question out of the officer-safety exception to the Miranda requirement.

       {¶ 12} The issue then becomes whether Cross was in custody when he was asked the

question. If he was in custody, then Miranda warnings had to have been given; if he was not in

custody, then the question was not subject to the Miranda requirement. The trial court found

that Cross was not in custody when the question was asked.

       {¶ 13} Officer Sopczak testified that once Cross told Sopczak that he had no driver’s

license, Sopczak made the decision to tow the car. Sopczak also testified that he had not

decided, at that point, whether he was going to arrest Cross. In any event, 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. State v.

Wynne, 2d Dist. Montgomery No. 23727, 2010-Ohio-3900, ¶ 21.                The issue is whether a

reasonable person in Cross’s situation would have understood that he was in custody. Id.

       {¶ 14} The evidence is unclear as to the temporal relationship between the question

Officer Sopczak asked and the pat-down search. But even if the pat-down search preceded the

question, a pat-down search, without more, is not sufficient to transform an investigatory stop

into custody – the functional equivalent of an arrest – for Miranda purposes. State v. Serafin,

11th Dist. Portage No. 2011-P-0036, 2012-Ohio-1456, ¶ 38. And whether the pat-down search
                                                                                                  7


itself was lawful is immaterial; even an unlawful pat-down search, without more, is insufficient

to transform an investigatory stop into custody. Id. at ¶ 25 (the court of appeals did not

determine whether the pat-down search was lawful, but still found that it did not transform the

stop into custody for Miranda purposes). See also, State v. Mapson, 8th Dist. Cuyahoga No.

87409, 2006-Ohio-5248, ¶ 14, 22, and State v. Thomas, 2d Dist. Montgomery No. 20643,

2005-Ohio-3064, ¶ 28, for the proposition that a pat-down search, without more, does not

transform an investigatory stop into custody for Miranda purposes.

        {¶ 15} Cross relies upon State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849

N.E.2d 985. But in that case the suspect was patted down, the officer took his car keys, the

officer placed the suspect in the police cruiser, and the officer told the suspect that his car was

going to be towed, before questioning the suspect. Id. at ¶ 13-14. Similarly, we held in State v.

Strozier, supra, ¶ 19, that although merely handcuffing a suspect does not transform an

investigatory stop into the functional equivalent of an arrest, the conduct of the officers in that

case, which included five police officers ordering the suspect out of the car at gunpoint, having

him lie down on the ground, and then handcuffing him, did constitute the functional equivalent of

an arrest.

        {¶ 16} In the case before us, the trial court made no factual finding as to when the

handcuffing of Cross occurred in relation to the question Officer Sopczak put to Cross.

Although Sopczak thought he did not handcuff Cross until after Cross had told him about the

firearm in the car, Sopczak admitted to some uncertainty on this point, admitting that he could

not be sure of “exactly” when he was handcuffed by Cross. Based upon the evidence in the

record, we conclude that a reasonable finder of fact could find that Sopczak only handcuffed
                                                                                                 8


Cross after Cross told Sopczak about the firearm in the car, so that his being handcuffed was not

part of his situation when Sopczak asked him whether he had anything on his person that officers

should be concerned about.

       {¶ 17} Based upon a view of the evidence most favorable to the State, as the prevailing

party, we conclude that Cross was not in custody for Miranda purposes when Officer Sopczak

asked him the question that led to the discovery of the firearm in the car. Therefore, the trial

court did not err in overruling the motion to suppress.

       {¶ 18} Cross’s First and Second Assignments of Error are overruled.



             IV. Any Error in the Trial Court’s Having Sustained an Objection

              to a Question Concerning the Issue of Inevitable Discovery, as an

                Exception to the Exclusionary Rule, Is Necessarily Harmless,

                  Since We Conclude that There Was No Miranda Violation

       {¶ 19} Cross’s Third Assignment of Error is as follows:

               THE TRIAL COURT ERRED WHEN IT FAILED TO LET APPELLANT

       TESTIFY AS TO WHETHER HE ATTEMPTED TO MAKE REASONABLE

       ALTERNATIVE ARRANGEMENTS TO DISPOSE OF THE VEHICLE.

       {¶ 20} The State’s alternative argument – its fallback position – is that even if there was

a Miranda violation, the exclusionary rule should not apply, because the firearm inevitably would

have been discovered during the inventory of the car Cross was driving, preceding the tow. Of

course, that argument would not save the statement Cross made from suppression, and the

statement about the firearm in the car had independent inculpatory significance, since its
                                                                                                 9


admission precluded an argument that he had no knowledge that there was a firearm in the car he

was driving, which was not his car.

       {¶ 21} During his re-direct examination, Cross was asked about a call he made to the

car’s owner – specifically, whether the owner was coming to pick up the car. The State objected

upon the ground that this question was outside the scope of the preceding cross-examination, and

the trial court sustained the objection.

       {¶ 22} We find it unnecessary to determine whether the trial court erred in sustaining the

objection. The testimony excluded bore upon the issue of inevitable discovery, which would

only come into play if there had been a Miranda violation. Since we have determined that there

was no Miranda violation, any error in the sustaining of this objection at the suppression hearing

was harmless.

       {¶ 23} Cross’s Third Assignment of Error is overruled.



                                           V. CONCLUSION

       {¶ 24} All of the assignments of error having been overruled, the judgment of the trial

court is affirmed.

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

DONOVAN and HALL, JJ., concur.



Copies mailed to:

Mathias H. Heck
Matthew T. Crawford
Carl Bryan
Hon. Dennis J. Langer
10
