[Cite as State v. Dean, 2014-Ohio-448.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          FAYETTE COUNTY




STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :      CASE NO. CA2013-03-007

                                                :              OPINION
    - vs -                                                      2/10/2014
                                                :

CONNIE DEAN,                                    :

        Defendant-Appellant.                    :



      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                           Case No. 12CRI00173



Jess C. Weade, Fayette County Prosecuting Attorney, James B. Roach, 110 East Court
Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Danielle Sollars-Creamer, 4222 Washington-Waterloo Road N.E., Washington C.H., Ohio
43160, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Connie Dean, appeals from a decision of the Fayette

County Court of Common Pleas denying her motion to suppress. For the reasons that follow,

we affirm the decision of the trial court.

        {¶ 2} On April 25, 2012, officers from the Washington Court House Police

Department and deputies from the Fayette County Sheriff's Office went to the address of
                                                                  Fayette CA2013-03-007

Glenn Pendergraft.    They had been informed that Pendergraft and Dean shared the

residence as boyfriend and girlfriend. The officers possessed warrants for both Pendergraft

and Dean on menacing charges. Upon arriving, the officers requested that Pendergraft and

Dean step outside. The officers informed Pendergraft and Dean that they were under arrest

and placed Pendergraft in handcuffs. Before handcuffs were put on Dean, she asked if she

could retrieve her shoes and also secure the residence. Washington Court House Officer

Jean Boone informed Dean that an officer must accompany her into the residence due to

department policy and concerns for officer safety.       Dean agreed to Officer Boone

accompanying her and led Officer Boone into the residence. Once inside, Officer Boone

observed drug paraphernalia, specifically a grinder and pipe, and what Officer Boone

believed to be a marijuana cigarette.

      {¶ 3} When Officer Chancey Scott arrived on the scene, he initially remained with a

handcuffed Pendergraft outside. However, after entering the residence, he observed the

drug-related items in plain view and asked Dean if there was "any more." Dean responded

affirmatively. When asked where, Dean motioned towards and then led Officer Scott to a

bedroom. Dean then granted Officer Scott permission to enter the bedroom. When Officer

Scott opened the door to the bedroom, he discovered approximately 20 marijuana plants. At

this point, no one had given Dean or Pendergraft Miranda warnings.

      {¶ 4} On November 21, 2012, Dean filed a motion to suppress alleging that the

officers violated both the Fourth Amendment and the Fifth Amendment to the United States

Constitution. As a result, Dean argued that all evidence obtained from her residence by the

officers and statements made by her without the benefit of Miranda warnings should be

suppressed. The trial court overruled Dean's motion to suppress regarding the physical

evidence obtained but sustained the motion concerning statements made by Dean without

the benefit of Miranda warnings after the discovery of the marijuana plants. Following the

                                            -2-
                                                                       Fayette CA2013-03-007

trial court's partial overruling of Dean's motion to suppress, Dean pleaded no contest to illegal

cultivation of marijuana and possession of drug paraphernalia. The trial court sentenced

Dean to two years of community control with a reserved sentence of 12 months in a

correctional institution if she violates the terms of community control.

       {¶ 5} Dean now appeals, asserting as her sole assignment of error the following:

       {¶ 6} THE TRIAL COURT ERRED IN NOT GRANTING [DEAN'S] MOTION TO

SUPPRESS EVIDENCE FOUND IN THE BEDROOM AS FRUIT OF THE POISONOUS

TREE FROM AN UNLAWFUL SEARCH.

       {¶ 7} On appeal, Dean asserts that an unreasonable warrantless search was

performed by the officers in violation of the Fourth Amendment to the United States

Constitution because no exception to the warrant requirement existed in this case.

Specifically, Dean argues that any consent given by Dean to search the bedroom was not

voluntary because she was not given warnings under Miranda and was unaware that refusing

to consent to the search was an option. Dean thus asserts that the evidence found in the

bedroom should have been suppressed because it was "fruit of the poisonous tree."

       {¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Preston, 12th Dist. Clermont No. CA2012-05-036, 2012-Ohio-6176,

¶ 15. When considering a motion to suppress, the trial court, as the trier of fact, is in the best

position to weigh the evidence in order to resolve factual questions and evaluate witness

credibility. Id. The appellate court must accept the trial court's findings of fact so long as

they are supported by competent, credible evidence. Id., citing State v. Jimenez, 12th Dist.

Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 8. After accepting the trial court's factual

findings as true, the appellate court must then determine, as a matter of law, and without

deferring to the trial court's conclusions, whether the trial court applied the appropriate legal

standard. Jimenez at ¶ 8, citing State v. Forbes, 12th Dist. Preble No. CA2007-01-001,

                                               -3-
                                                                      Fayette CA2013-03-007

2007-Ohio-6412, ¶ 29.

       {¶ 9} The foundation of Dean's argument regarding whether her consent to search

was voluntary rests in the Fourth Amendment and Article I, Section 14 of the Ohio

Constitution. However, the extension of Dean's argument that the evidence should have

been suppressed due to a failure of the officers to give Dean her Miranda warnings falls

squarely within the Fifth Amendment and Article I, Section 10 of the Ohio Constitution. As

such, we first analyze Dean's argument under the Fourth Amendment and then analyze

Dean's argument under the Fifth Amendment.

       {¶ 10} The Fourth Amendment guarantees that "the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated * * *."     A search is not unreasonable according to the Fourth

Amendment, as well as Article I, Section 14 of the Ohio Constitution, if it is based on a

search warrant that is supported by probable cause. However, an exception to the warrant

requirement exists when a person waives his Fourth Amendment protection by consenting to

a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041 (1973).

       {¶ 11} "The Fourth Amendment test for a valid consent to search is that the consent

be voluntary, and '[v]oluntariness is a question of fact to be determined from all the

circumstances.'"    Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417 (1996), citing

Schneckloth at 248-249; State v. Oberding, 12th Dist. Warren No. CA2011-09-101, 2012-

Ohio-3047, ¶ 14. A warrantless search based upon a suspect's consent while not in custody

is valid if the "consent was in fact voluntarily given, and not the result of duress or coercion,

express or implied." Schneckloth at 248. This principle has been extended to in-custody

cases. See United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820 (1976) (finding

that custody is only a factor to be considered under the totality of the circumstances); see

also State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816. The

                                               -4-
                                                                     Fayette CA2013-03-007

state has the burden of proving by clear and convincing evidence that a person's consent

was voluntarily given. Christopher at ¶ 43, citing Florida v. Royer, 460 U.S. 491, 497, 103

S.Ct. 1319 (1983).

       {¶ 12} "In Schneckloth, the United States Supreme Court set forth several factors that

a trial court must consider in determining whether a consent was voluntary." Christopher at ¶

45. They include (1) the suspect's custodial status and the length of the initial detention, (2)

whether the consent was given in public or at a police station, (3) the presence of threats,

promises, or coercive police procedures, (4) the words and conduct of the suspect, (5) the

extent and level of the suspect's cooperation with the police, (6) the suspect's awareness of

his right to refuse to consent and his status as a "newcomer to the law," and (7) the suspect's

education and intelligence. Id.

       {¶ 13} "The weight of authority holds that prior Miranda warnings are not required to

validate consent searches, even when the consent is obtained after the defendant is

effectively in custody." State v. Clelland, 83 Ohio App.3d 474, 481 (4th Dist.1992). See

State v. Reyes, 12th Dist. Preble No. CA2004-05-007, 2005-Ohio-2113. "While the test in

consent cases relates to surrounding circumstances of which awareness of the right to refuse

consent is a factor, * * * the absence of Miranda warnings [is] not dispositive of the

voluntariness of the consent issue." (Emphasis sic.) Reyes at ¶ 22.

       {¶ 14} In applying the voluntary consent factors set forth in Schneckloth, we find that

(1) Dean was in custody on an unrelated warrant and, although the record is silent as to the

length of the detention, it appeared to be reasonable and not drawn out; (2) Dean gave her

consent at her residence; (3) there were no words or actions on the part of the officers that

could be construed as intimidation, force, or pressure to coerce Dean to respond; (4) Dean's

words and conduct reveal that she was the one who asked whether she could reenter the

home to retrieve her shoes and secure the residence and, even though she knew she would

                                              -5-
                                                                    Fayette CA2013-03-007

be accompanied by a police officer and that drug paraphernalia was in plain view in the entry

room and a marijuana grow operation was located in one of the bedrooms, she told the

officer "fine" and proceeded to go back into the home; (5) Dean was described by Officer

Scott and other officers as being overly "cooperative" and "willing to talk," as shown by her

responses to questions and her willingness to lead Officer Scott to the bedroom; (6) while

there was no evidence that Dean was aware of her right to refuse consent, it appears from

her outstanding warrant that Dean has had some prior experience with the law; and (7) while

there was no evidence expressly detailing Dean's education and intelligence, it appears that

she possessed adequate intelligence to understand the circumstances as they occurred.

       {¶ 15} Considering the weight of the factors, the trial court found Dean's consent

voluntary. Whether consent is voluntary is a question of fact best determined by the trial

court. After reviewing the totality of the circumstances, we agree that Dean's consent was

voluntary. Furthermore, because the absence of Miranda warnings is not dispositive of the

consent issue, there was no violation of Dean's Fourth Amendment rights. Consequently, the

marijuana plants discovered after Dean gave her consent to the officers to enter the

residence and search the bedroom need not be suppressed under the basis of the Fourth

Amendment.

       {¶ 16} With respect to her Fifth Amendment claims, Dean argues that the marijuana

plants should have been suppressed because she was not given Miranda warnings. There is

no dispute that Dean was not given Miranda warnings prior to being questioned by Officer

Scott. However, the state argues that Miranda warnings need not have been given to Dean

because she was not subject to custodial interrogation. The state asserts that Dean was not

subject to custodial interrogation because there is no reason Officer Scott should have

known that his question would likely elicit an incriminating response. Furthermore, the state

contends that even if Officer Scott should have known that his question would likely elicit an

                                             -6-
                                                                                       Fayette CA2013-03-007

incriminating response, Miranda warnings were unnecessary because Officer Scott's inquiry

did not relate to menacing, the crime for which Dean was in custody. However, whether

Dean was subject to custodial interrogation rendering Miranda warnings mandatory is not

dispositive of whether the marijuana plants should have been suppressed.

        {¶ 17} In United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620 (2004), the United

States Supreme Court had held that "the Miranda rule protects against violations of the Fifth

Amendment's Self-Incrimination Clause, but does not apply to nontestimonial physical
                                                                                               1
evidence." State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 37.                              The Ohio State

Supreme Court determined that Article I, Section 10 of the Ohio Constitution provides greater

protection to criminal defendants than the Fifth Amendment to the United States Constitution

in Farris. Id. at ¶ 48. In Farris, the Ohio Supreme Court held that the protections afforded by

Article I, Section 10 of the Ohio Constitution against self-incrimination extend to physical



1. {¶ a} In Patane, defendant was suspected of violating a restraining order and possibly being in possession
of a firearm. Id. at 635. After officers arrested defendant for a violation of a restraining order, an officer began to
advise defendant of his Miranda warnings, but was interrupted and defendant was never actually given his
Miranda warnings. Id. Subsequently, the officer asked defendant about a handgun. Id. Defendant told the
officer that the handgun was in his bedroom and gave the officer permission to retrieve the handgun. Id. The
United States Supreme Court stated:

                    {¶ b} [J]ust as the Self-Incrimination Clause primarily focuses on the criminal
                    trial, so too does the Miranda rule. The Miranda rule is not a code of police
                    conduct, and police do not violate the Constitution (or even the Miranda rule,
                    for that matter) by mere failures to warn. For this reason, the exclusionary rule
                    articulated in such cases as Wong Sun [v. United States (1963), 371 U.S. 471,
                    83 S.Ct. 407, 9 L.Ed.2d 441], which established the 'fruit of the poisonous tree'
                    doctrine does not apply.

{¶ c} Id. at 637.

     {¶ d} Furthermore, the United States Supreme Court stated:

                    {¶ e} It follows that police do not violate a suspect's constitutional rights (or
                    the Miranda rule) by negligent or even deliberate failures to provide the
                    suspect with the full panoply of warnings prescribed by Miranda. Potential
                    violations occur, if at all, only upon the admission of unwarned statements into
                    evidence at trial. And, at that point, "[t]he exclusion of unwarned statements is
                    a complete and sufficient remedy" for any perceived Miranda violation.
                    Chavez [v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994 (2003)].

{¶ f} Id. at 641-642.

                                                          -7-
                                                                                Fayette CA2013-03-007

evidence seized as a result of pre-Miranda statements. Id. However, "[o]nly evidence

obtained as the direct result of statements made in custody without the benefit of a Miranda

warning should be excluded." Id.

        {¶ 18} In Farris, after being pulled over, defendant was placed in the front seat of the

cruiser. Id. at ¶ 3. The officer told defendant that he had smelled marijuana in the vehicle

and asked about the smell of marijuana without giving defendant Miranda warnings or asking

for consent to search the car. Id. Defendant stated that his housemates had been smoking.

Id. In response, the officer told defendant that he was going to search the car. Id. Then, the

officer specifically asked defendant whether there were any drugs or drug devices in the car.

Id. Defendant responded that there was a "bowl" in a bag located in the trunk. Id. The Ohio

Supreme Court held that the discovery of the bowl was a direct result of a Miranda violation

and thus should have been suppressed. Id. at ¶ 49.

        {¶ 19} This case presents a situation markedly different from that in Farris. In Farris a

warrantless, nonconsensual search was conducted based upon a pre-Miranda testimonial

statement that there were drugs in the vehicle's trunk given by an "in custody" defendant.

Because the search of the vehicle was nonconsensual, the exception of voluntary consent to

the general Fourth Amendment prohibition against unreasonable searches and seizures did

not apply. In contrast, as discussed above, Dean voluntarily gave her consent to Officer

Scott to search the bedroom. Prior to giving her consent, and upon seeing drug paraphilia in
                                                                                   2
plain sight, the officer asked Dean whether there was "any more."                       Dean then led the

officer to the bedroom where the officer asked, and was granted, permission to enter. Dean

thus consented to the search of the bedroom where the marijuana plants were found. Unlike



2. On appeal, Dean does not argue that any statements she made should have been suppressed. Rather, Dean
argues that evidence found in the bedroom should have been suppressed. Because we find the marijuana
plants found in the bedroom admissible due to Dean's voluntary consent to search, any error in the admission of
Dean's statements is harmless. Crim.R. 52(A).

                                                     -8-
                                                                     Fayette CA2013-03-007

Farris, Dean’s consent to search is nontestimonial and is, therefore, not subject to Miranda.

       {¶ 20} Furthermore, in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1985), the

United States Supreme Court held that an arrestee’s voluntary pre-Miranda incriminating

statements did not invalidate subsequent incriminating statements made after the arrestee

waived his Miranda rights. In doing so the Supreme Court observed, "This Court has never

held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state

compulsion or compromises the voluntariness of a subsequent informed waiver." Elstad at

312. Although Elstad dealt with the efficacy of a Miranda waiver subsequent to a prior

Miranda violation, there is no reason why the same logic ought not apply here, to a Fourth

Amendment waiver subsequent to a prior alleged Miranda violation.

       {¶ 21} Though Dean claims that her consent to search was not voluntary and that her

unwarned responses to Officer Scott’s questions violated Miranda, she does not claim that

her responses to Officer Scott’s questions were not voluntary. On the contrary, Dean all but

admits in her brief that her responses were voluntary ("the questioning was not coercive and

[Dean] did not seem to be under duress"). The record reflects that, though Dean was not

advised of her Miranda rights, her statements and consent were nonetheless, voluntary.

Thus, Dean’s voluntary consent to search, consistent with Elstad and Farris, severed the

connection between any alleged Miranda violation and the subsequent search and seizure of

the marijuana plants. Consequently, the evidence was not obtained as a direct result of any

statements made in custody without regard to whether the statements were the product of a

Miranda violation.

       {¶ 22} Accordingly, the trial court did not err in denying Dean's motion to suppress

evidence found in the bedroom as fruit of the poisonous tree from an unlawful search.

Dean's sole assignment of error is overruled.

       {¶ 23} Judgment affirmed.

                                              -9-
                                                                    Fayette CA2013-03-007


      M. POWELL, J., concurs.


      PIPER, J., concurs separately.


      PIPER, J., concurring separately.

      {¶ 25} In making its determination, the majority attempts to distinguish the Ohio

Supreme Court case of Farris from the law applicable herein. In Farris, the Ohio Supreme

Court extended the protection against self-incrimination found under Article 1, Section 10 of

the Ohio Constitution to physical evidence seized as a direct result of statements made by

criminal defendants prior to receiving Miranda warnings. We are obligated to follow the

precedent set forth by the Ohio Supreme Court in Farris.

      {¶ 26} The questioning by Officer Scott directly led to the discovery of the marijuana

plants. Without Officer Scott's questions as to whether there was "any more?" and "where?,"

Dean would not have directed him to the bedroom. Due to the short sequential chain of

events, the marijuana plants were discovered as a direct result of statements made by Dean

without the benefit of Miranda with or without Dean's subsequent consent. A voluntary

consent to search does not cure the prejudice directly flowing from an immediately-preceding

Miranda violation.

      {¶ 27} Furthermore, with this short sequential chain of events, I fail to see how Elstad

is analogous to this case. Elstad applies to situations in which a Miranda violation occurs

and a subsequent Miranda waiver is obtained. The issue in this case does not involve a

subsequent Miranda waiver that might sever the link between any Miranda violation and the

statements leading to the discovery of the marijuana plants. In any event, in order for a

subsequent Miranda waiver to be valid, the waiver cannot be a part of "a single, unwarned

sequence of questioning." Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004), fn. 4;


                                            - 10 -
                                                                      Fayette CA2013-03-007

Farris at ¶ 21. Here, Officer Scott's questions as to whether there was "any more?" and

"where?," constituted a single sequence of questioning leading directly to the request for

consent to search.

       {¶ 28} However, I agree with the conclusion of the majority that the marijuana plants

discovered in the bedroom need not have been suppressed. Contrary to the direction of the

majority opinion, I agree with, and would expound upon, the trial court's rationale. As the

majority correctly points out, the appellate court must accept the trial court's findings of fact

so long as they are supported by competent, credible evidence. Jimenez, 12th Dist. Warren

No. CA2011-09-103, 2012-Ohio-3318, at ¶ 8. The testimony was adequate for the trial court

to make findings, and as such, must be accepted as true for purposes of our analysis. See

State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, ¶ 26.

       {¶ 29} The trial court specifically did not suppress statements made by Dean prior to

the discovery of the marijuana plants indicating that it did not find Dean to be subject to

custodial interrogation at that point in time. The heart of the inquiry as to whether or not a

suspect has been interrogated such that Miranda warnings are required focuses on whether

or not the suspect has been the subject of police coercion and whether the individual has

been compelled to speak by virtue of pressures from that coercion. State v. Tucker, 81 Ohio

St.3d 431, 437 (1998). "In determining whether an individual was in custody, the court must

examine the totality of the circumstances surrounding the interrogation." Durham, 12th Dist.

Warren No. CA2013-03-023, 2013-Ohio-4764, at ¶ 17, citing State v. Coleman, 12th Dist.

Butler No. CA2001-10-241, 2002-Ohio-2068, ¶ 23. Thus, it is necessary to determine the

nature of the interrogation as well as the nature of custody in place. Both contribute to the

totality of the circumstances that may result in an individual's response or the need to give

Miranda warnings. A planned or designed questioning of a suspect is very different than a

spur of the moment or spontaneous question produced by the unexpected observation of

                                              - 11 -
                                                                     Fayette CA2013-03-007

contraband. See Durham at ¶ 24 ("routine on-the-scene questioning does not constitute

'custodial interrogation' requiring the recitation of Miranda warnings").

       {¶ 30} Miranda warnings may be given as a safeguard to protect an individual's right to

remain silent; however, Miranda warnings are not always necessary nor are they

independent of the surrounding circumstances. Miranda warnings are not designed to

protect a suspect from making statements, but rather are designed to protect a suspect from

making statements involuntarily. Questioning within the confinement of an interview room in

a police station is not automatically custodial interrogation. See State v. Biros, 78 Ohio St.3d

426, 440-442 (1997); State v. Watts, 12th Dist. Butler No. CA2005-08-364, 2007-Ohio-221.

Similarly, questioning of an inmate while in the custody and care of the state is also not

automatically custodial interrogation requiring Miranda warnings. See State v. Porter, 178

Ohio App.3d 304, 2008-Ohio-4627, ¶ 16 (2d Dist.); State v. Simpson, 10th Dist. Franklin No.

01AP-757, 2002-Ohio-3717, ¶ 34-35. One must look at the circumstances to determine what

restrictions of liberty or restraint of freedom has taken place such that the circumstances are

coercive and pressures flowing therefrom produced responses that were involuntary.

       {¶ 31} In general, if a reasonable person in an individual's position would have

believed that he or she was not free to leave given the totality of the circumstances, then it

will be determined that the individual is in custody and any questioning is "custodial

interrogation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138 (1984); State v.

Gumm, 73 Ohio St.3d 413, 429 (1995). However, the restraint of freedom or "freedom to

leave" analysis becomes inapplicable when the individual being questioned is already in

custody for other reasons. State v. Bradley, 4th Dist. Scioto No. 1583, 1987 WL 17303, *8

(Sept. 22, 1987), citing Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978); United States v.

Conley, 779 F.2d 970 (4th Cir.1985); United States v. Ozuna, 170 F.3d 654 (6th Cir.1999). In

instances where the individual is already in custody, courts have examined whether or not the

                                             - 12 -
                                                                                     Fayette CA2013-03-007

surroundings and circumstances resulted in additional restrictions on the freedom of

movement or restraint of freedom. The context of this analysis is often when the individual is

already a prisoner or in custody of the state; however, the same rationale is applicable to the

facts before us. See Simpson at ¶ 34-35; State v. Peeples, 94 Ohio App.3d 34, 41-43 (4th

Dist.1994); State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999 WL 812249, *4 (Oct. 8,

1999).3

        {¶ 32} There is a vast difference between statements which are coerced by methods

employed or intended to break a suspect's will and overcome the voluntariness of the

suspect's desire not to respond and those incriminating statements which are freely given in

response to an unwarned but noncoercive question. Peeples at 43. The officer's reaction to

unexpectedly seeing drug paraphernalia was a reasonable and natural response, "is there

more?"4 We have recognized that general fact-gathering is not necessarily a part of custodial

interrogation, saying, "'[g]eneral on-the-scene questioning as to facts surrounding a crime or

other general questioning of citizens in the fact-finding process ordinarily does not fall within

the ambit of custodial interrogation.'" Durham, 12th Dist. Warren No. CA2013-03-023, 2013-

Ohio-4764, at ¶ 23, quoting State v. Rivera-Carrillo, 12th Dist. Butler No. CA2001-03-054,

2002 WL 371950, *3 (Mar. 11, 2002). Neither immediately before nor after this question,

were there any words or actions that could in any way be construed as being additional

intimidation, force, or pressure upon Dean to respond. The police were cooperative with

Dean and she in turn was voluntarily cooperative with them.

        {¶ 33} The initial arrest upon the menacing warrant was continuing in progress and did


3. While Dean was informed she was being placed under arrest outside her trailer and technically in custody,
she certainly had the extended, unrestrained freedom to move about inside her trailer. Dean was not formally
placed under arrest in a traditional sense.

4. Such observation would require a minimal, initial investigation which may reasonably include "what is this?";
"is this what I think it is?"; "is there more?" The officer did not attempt to obtain Dean's admission that the minor
drug paraphernalia was hers.

                                                       - 13 -
                                                                              Fayette CA2013-03-007

not maintain restraint over Dean but actually gave Dean additional freedom of movement.

Upon her request and with her consent, she was accompanied back inside her residence.5

She was not handcuffed or in any way physically or psychologically pressured. Other than

the initial custody for the menacing warrant, there was nothing restrictive or coercive in the

circumstances subsequent to being served with the warrant.

        {¶ 34} The officer's simple question "is there more?" was also not coercive, nor was

there any evidence such question was employed to gain an incriminating response. After

hearing the testimony, the trial court found, and I agree, there was nothing to suggest the

officer was attempting to elicit an incriminating response. The officer may well have been

hoping to put an end to his initial investigation of the minor contraband so that Dean could

retrieve her shoes, leave the trailer, and the officer could eventually return to his daily duties.

There are no facts to support any type of coercion or psychological pressure, which produced

a custodial interrogation. Within these unusually unique and narrow facts, a "custodial

interrogation" did not take place as determined by the trial court.

        {¶ 35} Custodial interrogations by their very nature produce compelling pressures

which work to undermine an individual's will to resist and compel him or her to speak where

they otherwise would not do so freely. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Miranda

conceptualized the circumstances "'must reflect a measure of compulsion above and beyond

that inherent in custody itself' before it will be considered a custodial interrogation." Durham,

12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, at ¶ 16, quoting State v. Brumley,

12th Dist. Butler No. CA2004-05-114, 2005-Ohio-5768, ¶ 10. Serious questioning within the

required confinement of an interview room at a police station is very different from the

situation at hand, wherein Dean was walking about in her own home (looking for shoes) and



5. The majority opinion determines that before reentering the residence, Dean knew the officer would observe
the minor marijuana paraphernalia. I was unable to locate support for such a finding in the record.

                                                   - 14 -
                                                                     Fayette CA2013-03-007

confronted with minor drug paraphernalia in plain view which in all likelihood could only result

in a citation. The custodial interrogation protections associated with Miranda are not

applicable. Thus, there was no Fifth Amendment claim arising from a Miranda violation

immediately preceding Dean's voluntary consent to the search. Consequently, the trial court

did not err in failing to suppress statements made by Dean or the marijuana plants

discovered in the bedroom and I would adopt the trial court's rationale.




                                             - 15 -
