[Cite as State v. Brown, 2012-Ohio-5532.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellant                     :    C.A. CASE NO. 25204

vs.                                             :    T.C. CASE NO. 2011 CR 2613

RODERICK BROWN                                  :    (Criminal appeal from the
                                                      Common Pleas Court)
        Defendant-Appellee                      :

                                            .........

                                            OPINION

                         Rendered on the 30th day of November, 2012.

                                            .........

Mathias H. Heck, Jr., Prosecuting Attorney, by Andrew T. French, Assistant
Prosecuting Attorney, Atty. Reg. No. 0069384, P.O. box 972, 301 West Third Street,
Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

Charles L. Grove, Atty. Reg. No. 0029144, 117 South Main Street, Suite 400, Dayton,
Ohio 45422
      Attorney for Defendant-Appellee

                                            .........

GRADY, P.J.:

        {¶ 1} This appeal is brought by the State pursuant to R.C. 2945.67(A) and Crim.R.

12(K) from an order granting Defendant Roderick Brown’s motion to suppress evidence.

        {¶ 2} The parties stipulated to the following facts:
[Cite as State v. Brown, 2012-Ohio-5532.]
        {¶ 3} Early on the morning of August 2, 2011, Grandview Hospital Police Officers

Sult and Simon were on foot patrol in the City of Dayton, within the area surrounding the

hospital. The Grandview officers patrolled the surrounding area in accordance with a Mutual

Aid Agreement between their department and the City of Dayton Police Division.

        {¶ 4} The officers saw Defendant riding his bicycle without lights, which they

believed was a minor misdemeanor violation of a Dayton City ordinance. The officers

stopped Defendant and asked him for identification. As was Officer Sult’s practice with

anyone he stopped, Officer Sult asked Defendant if he had any weapons. Defendant admitted

that he did, and Officer Sult immediately ordered Defendant to the ground at gunpoint.

Officer Simon removed an unloaded handgun from Defendant’s back pocket. A magazine

and ammunition were found in another pocket.

        {¶ 5} Defendant was charged with carrying a concealed weapon. He filed a motion

to suppress, which the trial court granted. The State appeals, raising one assignment of error.

        {¶ 6}      “STOPPING BROWN FOR NOT HAVING A LIGHT ON HIS BICYCLE

WAS EQUIVALENT TO A ROUTINE TRAFFIC STOP. ROADSIDE QUESTIONING

DURING A ROUTINE TRAFFIC STOP DOES NOT CONSTITUTE CUSTODIAL

INTERROGATION REQUIRING MIRANDA WARNINGS, AND SO THE OFFICERS

WERE NOT REQUIRED TO ADVISE BROWN OF HIS MIRANDA WARNINGS BEFORE

ASKING HIM IF HE HAD ANY WEAPONS ON HIS PERSON. THE TRIAL COURT

ERRED, THEREFORE, IN FINDING DIFFERENTLY AND IN SUSTAINING BROWN’S

MOTION TO SUPPRESS.”
[Cite as State v. Brown, 2012-Ohio-5532.]
        {¶ 7} When considering a motion to suppress, the trial court assumes the role of the

trier of facts and is therefore in the best position to resolve factual questions and evaluate the

credibility of the witnesses. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850

N.E.2d 1168. Consequently, an appellate court must accept the trial court’s findings of fact if

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

appellate court must then independently determine, without deference to the trial court’s

conclusion, whether those facts satisfy the applicable legal standard. Id.

        {¶ 8} The underlying facts of this case are not in dispute. The trial court accepted as

true the facts summarized above and as stipulated to by the parties. On appeal, the State

challenges the trial court’s legal finding that Miranda warnings were required prior to

Defendant’s being asked if he had a weapon, because officers lacked a particularized

suspicion that Defendant was armed and dangerous.

        {¶ 9} “A police officer may lawfully stop a vehicle, motorized or otherwise, if he has

a reasonable, articulable suspicion that the operator has engaged in criminal activity, including

a minor traffic violation.”           State v. Roberts, 2d Dist. Montgomery No. 23219,

2010-Ohio-300, ¶ 14 (Defendant stopped for traffic violations while riding his bicycle).

Here, the officers properly stopped Defendant for failing to have a light on his bicycle, in

violation of both Dayton R.C.G.O. 74.03 and R.C. 4511.56(A)(1).

        {¶ 10} The United States Supreme Court held that the “noncoercive aspect of ordinary

traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are

not ‘in custody’ for the purposes of Miranda.” Berkemer v. McCarty, 468 U.S. 420, 440, 104

S.Ct. 3138, 82 L.Ed.2d 317 (1984). Therefore, routine roadside questioning of a driver
                                                                                             4

during an ordinary traffic stop does not constitute a custodial interrogation requiring Miranda

warnings. Id.; Pennsylvania v. Bruder, 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed.2d 172

(1984).

          {¶ 11} Additionally, we have held that it is permissible for a police officer to ask

someone stopped for a traffic violation if he is armed, even absent a reasonable suspicion that

the person is armed and presents a danger to the officer or others. State v. Lenoir, 2d Dist.

Montgomery No. 12646, 1997 WL 309370 (June 6, 1997). As we explained in Lenoir,

officers have a legitimate concern for their safety when conducting traffic stops. Although

any search for weapons must be based on reasonable, articulable suspicion that a weapon is

present, “a simple inquiry as to whether the person stopped has a weapon is not a search or a

seizure.” Id.

          {¶ 12} As occurred in this case, the detainee’s response to such a question may

provide the reasonable, articulable suspicion that the person is armed. When Defendant

admitted that he possessed a weapon, officers were presented with a particularized and

reasonable, articulable suspicion that justified their patdown of Defendant for weapons

pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The gun that

was discovered in the course of the patdown was properly seized as evidence of the CCW

offense with which Defendant was charged. The trial court erred in suppressing the gun

recovered from Defendant’s person.

          {¶ 13} The State’s sole assignment of error is sustained. The decision of the trial

court granting Defendant’s motion to suppress is reversed, and the case is remanded to the

trial court for further proceedings consistent with this opinion.
                                  5




Fain, J., and Hall, J., concur.




Copies mailed to:

Andrew T. French, Esq.
Charles L. Grove, Esq.
Hon. Barbara P. Gorman
