[Cite as State v. Johnson, 2017-Ohio-8909.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27574
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-3164
                                                   :
 HAMPTON JOHNSON, III                              :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                              OPINION

                          Rendered on the 8th day of December, 2017.

                                              ...........

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

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




TUCKER, J.
                                                                                            -2-




       {¶ 1} Defendant-appellant, Hampton Johnson, III, appeals from his convictions for

one count of possession of less than five grams of cocaine, a fifth degree felony under

R.C. 2925.11(A) and (C)(4)(a); and one count of illegal possession of drug paraphernalia,

a fourth degree misdemeanor under R.C. 2925.14(C)(1) and (F)(1).               Johnson, who

pleaded no contest to the charges, argues in four assignments of error that the trial court

erred by overruling in part his motion to suppress evidence obtained as the result of an

unlawful traffic stop.   We concur with the trial court’s finding that the traffic stop in

question was constitutionally permissible, and we therefore affirm.

                             I. Facts and Procedural History

       {¶ 2} At approximately 2:36 a.m. on July 26, 2016, an officer with the Kettering

Police Department on routine patrol in a marked cruiser observed Johnson driving away

from the Budget Inn at 2700 South Dixie Drive, a location identified by the police as “a

known high crime area” associated with prostitution and “frequent[ed] [by] drug users and

people that sell drugs.” Tr. of Hr’g on Mot. to Suppress 9 and State’s Ex. 1, Feb. 3, 2015

[hereinafter Tr. of Hr’g]. The officer decided to pursue because Johnson drove off “at a

high rate of speed.” Id. at 9-10.

       {¶ 3} To close the distance between his cruiser and Johnson’s vehicle, the officer

had to accelerate to at least 53 miles per hour, well in excess of the “posted speed limit

[of] 35 miles per hour.”1 Id. at 9-10. While in pursuit, the officer saw Johnson commit

“several lane violations,” and when the officer “activated [the cruiser’s] overhead light bar,”


1The footage captured by the officer’s cruiser camera reflects a peak speed of 69 miles
per hour. Tr. of Hr’g, State’s Ex. 1.
                                                                                              -3-


Johnson appeared to throw something out of his car through the window on the driver’s

side. 2    Id. at 10.   Johnson turned left at the next intersection and stopped shortly

afterward. Id. at 10-11.

          {¶ 4} As the officer approached Johnson’s vehicle, Johnson seemed to be “shifting

around in his seat” and “reach[ing] * * * towards * * * his lap,” a behavior the officer

described as typical of a person “either trying to hide something or retrieve something.”

Id. at 11. The officer spoke briefly with Johnson and returned to his cruiser to run a

background check through the Law Enforcement Automated Data System. Id. at 12-13.

By that point, the officer’s observation of Johnson’s lane violations had caused him to

suspect that Johnson was “possibly * * * driving * * * while intoxicated,” and when the

background check revealed that Johnson had been convicted for possession of cocaine

and drug paraphernalia, the officer concluded that “Johnson [had been] reaching around

in the car” to conceal “some type of contraband in there.” Id. at 12-13. The officer then

returned to Johnson’s car and requested permission to conduct a search. Id. at 13.

          {¶ 5} In response, Johnson “said ‘sure’ and * * * immediately tried to get out of [his]

car,” but because Kettering Police Department protocol required that another officer be

present to assist, the officer instructed him to wait. Id. at 14. Once backup arrived, the

officer had Johnson exit his car and requested permission to search his person; Johnson

again consented. Id. at 15-16. The officer found nothing on Johnson’s person. Id. at

37.

          {¶ 6} Turning to Johnson’s car, the officer noticed “the odor of * * * burned



2The officer subsequently searched for whatever it was that Johnson might have thrown
out of the window. He did not find anything. Tr. of Hr’g 24-25.
                                                                                           -4-


marijuana” when he opened the driver’s side door, and on the floorboard in front of the

driver’s seat, he discovered “broken pieces of glass that looked like they had been [a]

crack pipe at one point in time.” Id. at 16-17. He eventually discovered other items

associated with the use of crack cocaine.3 Id. at 17. After completing the search, he

handcuffed Johnson, whom he secured in the rear of his cruiser, and then questioned

Johnson without reciting the obligatory Miranda warning.         Id. at 18.   Ultimately, the

officer issued Johnson a citation for violating Kettering Codified Ordinances § 432.08,

captioned “Driving Within Lanes or Continuous Lines of Traffic,” but not for speeding. Id.

at 20-21.

       {¶ 7} On November 4, 2016, a Montgomery County grand jury issued an

indictment charging Johnson with one count of possession of less than five grams of

cocaine, and one count of illegal possession of drug paraphernalia.4 Johnson filed his

motion to suppress on December 19, 2016, asking the trial court to suppress “all evidence

obtained * * * as a result of [his] stop and detention,” as well as “all evidence obtained * *

* as a result of [his] interrogation.” See Def.’s Mot. to Suppress 1. In its decision of

March 11, 2017, the court overruled Johnson’s motion with respect to all evidence other

than the statements he made after being handcuffed. Dec. & Entry Overruling in Part

and Granting in Part Def.’s Mot. to Suppress 11-12.

       {¶ 8} At his plea hearing on March 27, 2017, Johnson pleaded no contest to the


3 The other items included a glass rod coated with drug residue and steel wool scouring
pads. According to the officer, the glass rod would have been used to load the pipe with
crack cocaine, and the steel wool would have been used as a filter in the pipe. Tr. of
Hr’g 17.
4The recovery of the cocaine is not directly at issue in this appeal. See Tr. of Hr’g 39-
40.
                                                                                           -5-


two charges. Following his sentencing hearing, the court filed its termination entry on

April 26, 2017, and Johnson timely filed his notice of appeal on May 5, 2017.

                                        II. Analysis

       {¶ 9} Johnson presents four assignments of error, all of which relate to the trial

court’s ruling on his motion to suppress. Appellate “review of a motion to suppress

presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court “is in the best position to

weigh * * * evidence * * * and evaluate [the credibility of] witness[es],” so an “appellate

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

credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982);

State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing

State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting

the trial court’s findings of fact as true, “the appellate court must then independently

determine, without deference to the [trial court’s legal] conclusion[s],” whether the “facts

satisfy the applicable * * * standard.” Burnside, 2003-Ohio-5372, ¶ 8, citing Fanning, 1

Ohio St.3d 19, and State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (3d

Dist.1997).

       {¶ 10} For the first of his assignments of error, Johnson contends that:

              THE TRIAL COURT ERRED IN UPHOLDING THE STOP OF

       APPELLANT’S VEHICLE AND FAILED TO SUPPRESS EVIDENCE

       GAINED AS THE RESULT OF THE UNLAWFUL STOP.

       {¶ 11} Johnson argues that the Kettering Police officer had no constitutional basis

for stopping his vehicle, and by extension, that all evidence obtained as a result of the
                                                                                          -6-


stop should have been suppressed. Appellant’s Br. 11-12. He alleges that the officer’s

stated reason for making the stop—violation of Kettering Codified Ordinances § 432.08—

was “pretextual,” and he faults the trial court for approving the stop based upon the court’s

own, after-the-fact justification. See id. at 11-14.

       {¶ 12} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968); see also State v. Taylor, 138 Ohio App.3d 139, 145, 740 N.E.2d 704

(2d Dist.2000) (noting “the Fourth and Fourteenth Amendments to the United States

Constitution and Section 14, Article 1” of the Ohio Constitution “protect the same interests

in a consistent manner”). Warrantless searches and seizures violate this prohibition

unless conducted pursuant to one of the “few specifically established and well-delineated

exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967).       One of these exceptions “is commonly known as an

investigative or Terry stop,” which includes the temporary detention of motorists for the

enforcement of traffic laws. State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-

Ohio-2334, ¶ 17, citing Terry, 392 U.S. 1.

       {¶ 13} Though not necessarily requiring a warrant, the temporary “detention of

[persons] during the stop of an automobile by the police, even if only for a brief period

and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning” of the

Fourth Amendment. (Citations omitted.) Whren v. United States, 517 U.S. 806, 809-

810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). An “automobile stop is thus subject to the

constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Id. at

810. Generally, a police officer’s decision to stop an automobile will comport with this
                                                                                             -7-

requirement if the officer has a “reasonable suspicion” of criminal activity. United States

v. Lopez-Soto, 205 F.3d 1101, 1104-1105 (9th Cir.2000); State v. Mays, 119 Ohio St.3d

406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23.

       {¶ 14} By Johnson’s account, the Kettering Police officer “testified unequivocally

that [the traffic stop was prompted] solely [by] perceived lane-change violations,” for which

the officer issued a citation.        Appellant’s Br. 7-8 and 12.           Building on this

characterization of the officer’s testimony, Johnson faults the trial court for determining

that the officer was not “credible [on the question of Johnson’s failure to] travel[] in marked

lanes” but concluding even so that the stop was justified by “a fair probability that

[Johnson] was speeding.” Dec. & Entry Overruling in Part and Granting in Part Def.’s

Mot. to Suppress 2 and 6. Given that the officer issued Johnson a citation for lane

violations, rather than speeding, Johnson argues that the trial court impermissibly

“substitute[d] its [own rationale] for that of [the officer] in order to supply” retroactive

justification for the traffic stop.5 See Appellant’s Br. 14. Johnson mischaracterizes the

officer’s testimony, as well as the court’s decision.

       {¶ 15} At the hearing on Johnson’s motion to suppress, the State had the following

exchange with the officer:

              THE STATE: Okay. Tell me about what the vehicle did when it left

       the Budget Inn that caused you to conduct the traffic stop?

              THE OFFICER: After it had left the Budget Inn, it continued



5 The citation referred to Kettering Codified Ordinances § 432.08(a), which states that
“[a] vehicle shall be driven, as nearly as is practicable, entirely within a single lane or line
of traffic and shall not be moved from such lane or line until the driver has first ascertained
that such movement can be made with safety.” See also Tr. of Hr’g 42-43.
                                                                                       -8-


       northbound on Dixie. I noticed it was going at a high rate of speed. I

       myself[] had to catch up to it[] driving 53 miles an hour.

                THE STATE: Was it—was it going faster than the posted speed limit?

                THE OFFICER: It was. The posted speed limit was 35 miles per

       hour there. And as the vehicle continued northbound, it made several lane

       violations, which ultimately caused me to conduct the traffic stop.

Tr. of Hr’g 9-10. Thus, the officer had more than one reason for stopping Johnson, but

his initial motivation was Johnson’s speeding. Later, on redirect examination, the officer

explained why he did not issue a speeding citation to Johnson:

                THE STATE: Okay.      You did not cite him for speeding, is that

       correct?

                THE OFFICER: Correct.

                ***

                THE STATE: Why did you not cite [him] for speeding?

                ***

                THE OFFICER: I did not get [him] with my radar unit, and I was also

       not able to pace him for a good distance. That’s why he was not cited for

       speed[ing].

Id. at 44-45.

       {¶ 16} Although the officer did not actually issue a speeding ticket, he witnessed

Johnson driving in excess of the posted speed limit, satisfying the reasonable suspicion

standard, and the cruiser camera video captured at the time substantiates the officer’s

observation. See, e.g., State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d
                                                                                          -9-

1204, ¶ 23; Tr. of Hr’g, State’s Ex. 1; State v. Mihelarakis, 7th Dist. Belmont No. 03 BE

39, 2004-Ohio-3047, ¶ 12; see also State v. Wineberg, 2d Dist. Clark No. 97-CA-58, 1998

WL 409021, *4 (Mar. 27, 1998). Based on the foregoing, we concur with the trial court’s

conclusion that the stop was constitutionally permissible. Johnson’s first assignment of

error is overruled.

       {¶ 17} For his second assignment of error, Johnson contends that:

              THE COURT ERRED IN UPHOLDING APPELANT’S LENGTHY

       DETENTION AND FAILING TO SUPPRESS EVIDENCE GAINED AS THE

       RESULT OF THIS UNLAWFUL DETENTION.

       {¶ 18} Johnson argues that the officer improperly expanded the scope of the Terry

stop by questioning him about his reason for being at the Budget Inn, his employment

and whether he had contraband items in his car. Appellant’s Br. 17. In Johnson’s view,

the officer should have completed the stop and released him once the officer “had

determined that [he] was validly licensed, had valid insurance and had no warrants for his

arrest.” See id. at 18.

       {¶ 19} A Terry stop is subject to the Fourth Amendment requirement that a

detention “not be ‘unreasonable’ under the circumstances.” Whren v. United States, 517

U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Hence, a “seizure justified only

by a police-observed traffic violation” becomes “ ‘unlawful if it is prolonged beyond the

time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”

Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015),

quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

After “the reasonable * * * time for issuing [a] citation has [elapsed], an officer must have
                                                                                          -10-

a reasonable articulable suspicion of illegal activity to continue the detention.” State v.

Ramos, 155 Ohio App.3d 396, 2003-Ohio-6535, 801 N.E.2d 523, ¶ 13 (2d Dist.).

       {¶ 20} Here, the officer’s initial contact with Johnson lasted scarcely one minute.

Id. at State’s Ex. 1. Johnson did not have his driver’s license with him, so he provided

his Social Security Number.      Id.   The officer then returned to his cruiser to verify

Johnson’s identity and run a background check, which revealed that Johnson had been

convicted for possession of cocaine and drug paraphernalia in the past. Id. at 12-13.

Having completed the background check, the officer approached Johnson again at 2:44

a.m., approximately six minutes after the stop began. Id. at State’s Ex. 1.

       {¶ 21} When he returned to Johnson’s car, the officer asked Johnson for proof of

insurance and permission to search his car, and Johnson consented. 6              Id. at 13.

Though Johnson’s answer is inaudible in the cruiser camera recording, the officer testified

that Johnson “said ‘sure’ and * * * immediately tried to get out of [his] car.” Id. at 14 and

State’s Ex. 1. In the recording, the officer can be heard to respond by telling Johnson to

“just hang out here for a second” and, as he returned to his cruiser, he added, “we’ll get

you out of here in just a second.” Id. at State’s Ex. 1. The officer then returned to his

cruiser to check Johnson’s insurance. Id.

       {¶ 22} Johnson maintains that the officer unreasonably prolonged the stop by

asking him about his purpose for being at the Budget Inn, his employment and whether

he had contraband in his car, but the cruiser camera recording establishes that the officer

was still in the process of completing the traffic-based mission when Johnson consented


6
  The officer made the request at 2:45 a.m. Tr. of Hr’g, State’s Ex. 1. The trial court
stated incorrectly that the officer made the request at 2:46 a.m. Dec. & Entry Overruling
in Part and Granting in Part Def.’s Mot. to Suppress 11.
                                                                                          -11-

to a search. Id. Moreover, the record includes no evidence of dilatory conduct on the

part of the officer.7 State v. Matheney, 2d Dist. Montgomery No. 26876, 2016-Ohio-

7690, ¶ 22 (noting that an officer’s diligence is a factor for evaluating whether the duration

of a traffic stop is reasonable); Tr. of Hr’g, State’s Ex. 1. Consequently, Johnson’s

consent stopped the clock, so to speak, for purposes of the rule articulated by the U.S.

Supreme Court in Caballes and Rodriguez. See, e.g., State v. Scarberry, 2016-Ohio-

7065, 72 N.E.3d 173, ¶ 39 (10th Dist.), citing Rodriguez, 135 S.Ct. at 1614, and Caballes,

543 U.S. at 407, and State v. Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997);

see also State v Bartone, 2d Dist. Montgomery No. 25299, 2013-Ohio-2228, ¶ 17

(mentioning case law that a police officer may request a motorist’s consent for a vehicle

search in the interval of time reasonably necessary to complete a traffic stop and issue a

citation). Johnson’s second assignment of error is overruled.

       {¶ 23} For his third assignment of error, Johnson contends that:

              THE TRIAL COURT ERRED IN FINDING THAT OFFICER HALL

       OBTAINED A VALID CONSENT TO SEARCH AND FAILED TO

       SUPPRES[S] EVIDENCE GAINED AS THE RESULT OF AN INVALID

       CONSENT AND AN UNLAWFUL SEARCH.

       {¶ 24} Johnson argues essentially that he was coerced into consenting to the

search of his vehicle. See Appellant’s Br. 22-24. He complains that the officer “did not

clearly articulate the extent of the [intended] search,” that his knowledge of the



7 Perhaps, the officer could have obtained Johnson’s insurance information when he first
spoke with Johnson. Yet, even if the officer’s failure to do so could be described as
marginally dilatory, the amount of time thereby added to the stop would not have
prolonged the stop’s total duration beyond that which was reasonably necessary.
                                                                                            -12-


“contraband concealed inside [his] vehicle” weighed against a finding of voluntary

consent, and that at the moment he “allegedly granted [consent], [he] was not free to

leave.” Id. at 23.

       {¶ 25} Consent “is an exception to the warrant requirement, [pursuant to which]

the State [must] show by clear and positive evidence that * * * consent was freely and

voluntarily given.” State v. George, 2d Dist. Montgomery No. 25945, 2014-Ohio-4853, ¶

28, citing State v. Black, 2d Dist. Montgomery No. 23524, 2010-Ohio-2916, ¶ 33.

Whether “consent to search was voluntary or was the product of duress or coercion,

express or implied, is a question of fact to be determined from the totality of all of the facts

and circumstances.” Id., citing Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136

L.Ed.2d 347 (1996).

       {¶ 26} In its discussion of this issue, the trial court noted that “the request for * * *

consent [to search] was [made] during the [interval] reasonably necessary to process a

traffic citation,” meaning that Johnson “was lawfully detained” at that time. Dec. & Entry

Overruling in Part and Granting in Part Def.’s Mot. to Suppress 11. Citing our holding in

Bartone, the court accordingly concluded that Johnson validly consented to the search of

his vehicle.   Id. at 12.    The record, particularly the officer’s cruiser camera video,

supports the court’s conclusion. Johnson’s third assignment of error is overruled.

       {¶ 27} For his fourth assignment of error, Johnson contends that:

               THE TRIAL COURT ERRED IN INAPPROPRIATELY LIMITING

       THE SUPPRESSION OF STATEMENTS APPELLANT MADE IN THE

       ABSENCE OF A MIRANDA WARNING.

       {¶ 28} Not disputing the trial court’s determination “that all of [the] statements [he
                                                                                          -13-


made] after [being] handcuffed and detained should be suppressed,” Johnson asserts

that he “was ‘in custody’ well before” he was secured in the back of the officer’s cruiser.

Appellant’s Br. 25. He argues that, as a result, the “statements he made [when the

officer] approach[ed] * * * his vehicle [for the second time],” along with the statements he

made while the officer searched his vehicle, should likewise have been suppressed. Id.

at 25-26.

       {¶ 29} Law enforcement officers need not “give Miranda warnings to every person

that they question, even if the person being questioned is a suspect.” (Citations omitted.)

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

“Miranda warning[] [is] only required for [a] custodial interrogation[],” an example of which

is “questioning initiated by [a] police [officer] after [a] person has been taken into custody

or otherwise deprived of his freedom to the degree associated with a formal arrest.”

(Citations omitted.) Id.

       {¶ 30} Based upon our review of the officer’s cruiser camera video, we concur with

the trial court’s finding that Johnson was “taken into custody or otherwise deprived of his

freedom to the degree associated with a formal arrest” only once he was “placed in

handcuffs in the company of two [police] officers” and was “escorted by one” of them to

the back of a cruiser. Vineyard, 2014-Ohio-3846, ¶ 32; Dec. & Entry Overruling in Part

and Granting in Part Def.’s Mot. to Suppress 12. Concomitantly, we concur with the

court’s conclusion that the statements Johnson made before being handcuffed were not

subject to suppression. Johnson’s fourth assignment of error is overruled.

                                      III. Conclusion

       {¶ 31} We hold that the Kettering Police officer had reasonable suspicion
                                                                                        -14-

warranting a Terry stop, that the officer did not prolong the stop beyond the time

reasonably required to complete the mission of issuing a traffic citation, and that Johnson

validly consented to the search of his vehicle. Furthermore, we hold that the trial court

appropriately limited the suppression of Johnson’s statements to those he made after

being handcuffed and secured in a police cruiser. Therefore, we affirm.



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



DONOVAN, J. and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michael J. Scarpelli
Ben M. Swift
Hon. Timothy N. O’Connell
