[Cite as State v. Casteel, 2017-Ohio-8303.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                             WASHINGTON COUNTY

STATE OF OHIO,                  :
                                :   Case No. 16CA19
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
MIRANDA M. CASTEEL,             :
                                :
     Defendant-Appellant.       :   Released: 10/18/17
_____________________________________________________________
                          APPEARANCES:

Brian A. Smith, Brian A. Smith Law Firm, LLC, Akron, Ohio, for
Appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Alison L.
Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Miranda Casteel appeals from her conviction for aggravated

possession of drugs, a charge to which she pleaded no contest after the trial

court denied her motion to suppress. On appeal, Appellant contends that 1)

the trial court erred in denying her motion to suppress; and 2) the trial

court’s decision to admit the audio recording of the conversation between

Sergeant Heddleston and herself that was recorded at a Rite Aid Store was

an abuse of discretion. Having found no merit to either of the assignments
Washington App. No. 16CA19                                                     2

of error raised by Appellant, the judgment of the trial court is affirmed, as is

the trial court’s decision denying Appellant’s motion to suppress.

                                                 FACTS

           {¶2} Appellant was indicted on one count of aggravated possession of

drugs, a fifth degree felony in violation of R.C. 2925.11 on July 31, 2015.

The indictment stemmed from an encounter between Appellant and law

enforcement that occurred on May 3, 2015, in which two pills, later

determined to be a controlled substance for which Appellant did not have a

prescription, were found after a search of Appellant’s purse. Appellant

pleaded not guilty to the charge and then filed a motion to suppress “all

evidence obtained as a result of the stop of Defendant by Sargent [sic]

Heddleston * * *.” The motion further stated that “[s]aid suppression is

warranted by the fact that the Defendant was detained and interviewed

without the benefit of Miranda Warnings.”1 No memorandum in support of

the motion was attached. A suppression hearing was held as a result.

           {¶3} Sergeant Heddleston testified on behalf of the State at the

suppression hearing. He testified that on the date in question, as he was

beginning his patrol, he noted a car parked oddly and partially blocking the

entrance to a local Rite Aid store. He testified that the windows in the car


1
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
Washington App. No. 16CA19                                                     3

were down and that there was a child seat and an axe in the back seat of the

car. As he was inquiring with store employees regarding the car, he was

dispatched a few streets over to a report of a woman with a child looking

into car windows. Sergeant Heddleston testified that he found Appellant and

a child walking along a sidewalk a few streets away from the store and

stopped to speak with her. He testified that he got out of his car and

approached her on a public sidewalk and initially asked her is she was okay,

to which she responded yes.

      {¶4} He testified that she denied looking in car windows, and then

said she was looking but had not taken anything. When asked if the car at

Rite Aid was hers she said no, however, the child that was with her said

“Quit lying Mommy.” Sergeant Heddleston testified he asked again and

advised Appellant she could be arrested for lying to a police officer. He then

asked her to step down to his cruiser to speak with him. According to

Sergeant Heddleston, Appellant said no and that she was fine to stay on the

sidewalk, which she did initially. Appellant then advised the sergeant that

the car was not hers, but that it belonged to her ex-boyfriend and that she

could call him. As she tried to access her purse for her phone, Sergeant

Heddleston asked her to put her purse on his cruiser and asked her if there

was anything illegal in her purse. She responded no. He testified that he
Washington App. No. 16CA19                                                     4

then asked permission to search her purse, to which she responded “Go

ahead.”

      {¶5} Sergeant Heddleston testified that upon searching her purse he

found several prescriptions and also found two pills which were ultimately

determined to be a controlled substance for which Appellant did not have a

prescription. When he asked Appellant about the pills she stated she did not

know anything about them. Sergeant Heddleston testified that Appellant

was never placed under arrest, was never advised she was under arrest, was

never handcuffed, and that no other officers were present. In fact, Sergeant

Heddleston testified that he advised Appellant she was welcome to walk

back to the Rite Aid store, where her ex-boyfriend was coming to pick up

the car, and he would meet her there. At that point, Appellant left with the

child and walked back to the store. She was not at any point put into the

cruiser or driven there. The sergeant testified that he met her back at the

store and then took a recorded statement from her, in which he advised that

she was not under arrest, that she was free to leave and reaffirmed that she

had provided consent to search her purse. According to Heddleston’s

testimony, Appellant advised him at that time that although she did have

prescriptions for “ADH” (ADHD) drugs, she did not have a prescription for
Washington App. No. 16CA19                                                     5

the two pills found in her purse, which were ultimately determined to be

Ritalyn. At that point, Appellant went on her way.

      {¶6} During the hearing, the State sought to admit the audio recording

for the trial court’s review. Although defense counsel stipulated that the

recording was in fact a recording between the sergeant and Appellant, he

objected based upon relevancy, explaining that the statements made on the

recording occurred after the initial encounter and were not the subject of the

suppression motion. The trial court allowed the recording to be submitted

over the objection of Appellant. After considering post-hearing briefs, the

trial court denied Appellant’s motion to suppress. Appellant thereafter

entered a plea of no contest to the charge. Appellant has now filed a timely

appeal from the trial court’s judgment, setting forth two assignments of error

for our review.

                       ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED IN DENYING APPELLANT’S
      MOTION TO SUPPRESS.

II.   THE TRIAL COURT’S DECISION TO ADMIT THE AUDIO
      RECORDING OF THE CONVERSATION BETWEEN SERGEANT
      HEDDLESTON AND APPELLANT, AT THE RITE AID STORE,
      WAS AN ABUSE OF DISCRETION.”
Washington App. No. 16CA19                                                      6

                        ASSIGNMENT OF ERROR I

      {¶7} In her first assignment of error, Appellant contends the trial court

erred in denying her motion to suppress. “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. Burnside, 100 Ohio St.3d 152, 2003–

Ohio–5372, 797 N.E.2d 71, ¶ 8; citing State v. Mills, 62 Ohio St.3d 357,

366, 582 N.E.2d 972 (1992); See also State v. Codeluppi, 139 Ohio St.3d

165, 2014–Ohio–1574, 10 N.E.3d 691, ¶ 7; State v. Wesson, 137 Ohio St.3d

309, 2013–Ohio–4575, 999 N.E.2d 557, ¶ 40. “Consequently, an appellate

court must accept the trial court's findings of fact if they are supported by

competent, credible evidence.” Burnside at ¶ 8; citing State v. Fanning, 1

Ohio St.3d 19, 437 N.E.2d 583 (1982). “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. at ¶ 8; citing State v. McNamara, 124 Ohio App.3d 706, 707

N.E.2d 539 (4th Dist.1997). See also State v. Roberts, 110 Ohio St.3d 71,

2006–Ohio–3665, 850 N.E.2d 1168, ¶ 100.
Washington App. No. 16CA19                                                        7

      {¶8} Appellant contends that because she did not receive Miranda

warnings, the issue is whether she was in custody for Miranda purposes and

whether the trial court should have suppressed all evidence derived from the

police encounter. Appellant further contends that she was in custody for

purposes of Miranda, and thus argues that all evidence from the police

encounter should have been suppressed, including the search of her purse,

which she argues was “derived from police questioning.” Appellant argues

that her incriminatory statements should be suppressed because she was not

Mirandized, and that she was “in custody” because she did not feel free to

walk away from the police encounter. Finally, with regard to the search of

her purse, she argues that her consent to search was involuntary, citing in

support the fact that “there is no indication that [she] was aware of her right

to refuse to consent to Heddleston’s questioning, or to his demand that he be

allowed to search her purse.”

      {¶9} The State contends that Appellant argues, for the first time on

appeal, that her consent to search was involuntary. The State points out that

Appellant “never alleged that the physical evidence should be suppressed

because her consent to search was coerced or involuntary.” The State

further argues that law enforcement officers are not constitutionally required

to issue Miranda warnings before asking for consent to search, and that
Washington App. No. 16CA19                                                     8

because the issue of voluntariness of consent has been waived, Appellant’s

first assignment of error should be overruled. The State further posits that

the evidence found in Appellant’s purse was found after she consented to a

search of her purse, that Miranda warnings are not required for an officer to

request consent to search, and therefore, the questions of whether Appellant

was in custody, and whether she should have received Miranda warnings,

are irrelevant.

      {¶10} With regard to the State’s waiver argument, this Court recently

noted in State v. Davis, 2016-Ohio-3539, 67 N.E.3d 33, ¶ 52 (4th Dist.2016)

as follows:

      “ ‘It is well settled that issues not raised in an original motion to
      suppress cannot be raised for the first time on appeal.’ ” State v.
      Jones, 4th Dist. Highland No. 04CA9, 2005-Ohio-768, 2005
      WL 433433, ¶ 18; see also State v. Markins, 4th Dist. Scioto
      No. 10CA3387, 2013-Ohio-602, 2013 WL 658264, ¶ 25. As we
      stated in Jones, this is no mere technicality. Id. Crim.R. 47
      requires a motion to suppress to ‘state with particularity the
      grounds upon which it is made and [to] set forth the relief or
      order sought.’ State v. Rife, 4th Dist. Ross No. 11CA3276,
      2012-Ohio-3264, 2012 WL 2928546, ¶ 17. ‘These requirements
      exist because “the prosecutor cannot be expected to anticipate
      the specific legal and factual grounds upon which the defendant
      challenges the legality of a warrantless search.” ’ Id., quoting
      Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889
      (1988).”

      {¶11} Here, Appellant’s motion to suppress sought suppression of “all

evidence obtained as a result of the stop of Defendant by Sargent [sic]
Washington App. No. 16CA19                                                     9

Heddleston on May 3, 2015 in the City of Belpre, Ohio.” The motion

further specified that “[s]aid suppression is warranted by the fact that the

Defendant was detained and interviewed without the benefit of Miranda

Warnings.” There was no memorandum attached in support of the motion

and the motion alleged no other grounds for suppression of the evidence.

Importantly, the motion did not seek suppression of the evidence seized

during the search of Appellant’s purse on the basis that her consent to search

was involuntarily given. Based upon the foregoing, Appellant’s argument

that the physical evidence found during a search of her purse should be

suppressed has been waived to the extent that it is premised upon a

contention that her consent to search was involuntarily given. As such, we

will not address this argument for the first time on appeal. State v. Davis at ¶

53 (where this Court refused to consider the appellant’s argument that the

warrantless search of her passengers and her purse exceeded the scope of her

consent, where the issue was not raised before the trial court and was not

fully developed during the trial court proceedings).

      {¶12} Additionally, Appellant contends that the physical evidence

recovered from her purse should be suppressed because she was not

provided with Miranda warnings during the police encounter, during which

time Appellant contends she was in custody. Thus, Appellant urges this
Washington App. No. 16CA19                                                        10

Court to find that she was, in fact, in custody for purposes of triggering a

Miranda warning, and that the failure to provide her with Miranda warnings

mandates that the physical evidence recovered as a result of a consent search

of her purse must be suppressed. As set forth above, the State does not

concede that Appellant was in custody or that she should have been provided

with Miranda warnings. The State further contends that Miranda warnings

are not required to validate a consent to search. Based on the following

reasons, we agree with the State and therefore reject Appellant’s argument.

      {¶13} The Fifth Amendment to the United States Constitution

provides that no person “shall be compelled in any criminal case to be a

witness against himself.” To safeguard a suspect's Fifth Amendment

privilege against self-incrimination, law enforcement officers seeking to

perform a custodial interrogation must warn the suspect “that he has the

right to remain silent, that anything he says can be used against him in a

court of law, that he has the right to the presence of an attorney, and that if

he cannot afford an attorney one will be appointed for him prior to any

questioning if he so desires.” Miranda v. Arizona, supra, at 479. In the

absence of these warnings, a suspect's incriminatory statements made during

a custodial interrogation are inadmissible at trial. Michigan v. Mosley, 423

U.S. 96, 99-100, 96 S.Ct. 321 (1975) (footnote and citation omitted)
Washington App. No. 16CA19                                                   11

(“[U]nless law enforcement officers give certain specified warnings before

questioning a person in custody, and follow certain specified procedures

during the course of any subsequent interrogation, any statement made by

the person in custody cannot over his objection be admitted in evidence

against him as a defendant at trial, even though the statement may in fact be

wholly voluntary.”); Miranda at 479 (stating that no evidence stemming

from the result of a custodial interrogation may be used against defendant

unless procedural safeguards employed); State v. Maxwell, 139 Ohio St.3d

12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 113 (stating that “the prosecution may

not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-

incrimination.”). Moreover, under Section 10, Article I of the Ohio

Constitution “evidence obtained as the direct result of statements made in

custody without the benefit of a Miranda warning should be excluded.”

State v. Farris, 109 Ohio St.3d 519, 529, 2006-Ohio-3255, 849 N.E.2d 985,

996, ¶ 49) (Emphasis added); but see United States v. Patane, 542 U.S. 630,

124 S.Ct. 2620 (2004) (holding that violation of Miranda does not require

suppression of nontestimonial evidence).
Washington App. No. 16CA19                                                    12

      {¶14} However, Miranda does not protect every individual who is

subjected to police questioning. State v. Hoffner, 102 Ohio St.3d 358, 2004–

Ohio–3430, 811 N.E.2d 48, ¶ 26; State v. Biros, 78 Ohio St.3d 426, 440, 678

N.E.2d 891 (1997); citing Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct.

711 (1977). “ ‘Nor is the requirement of warnings to be imposed simply

because * * * the questioned person is one whom the police suspect.’ ”

Biros, 78 Ohio St.3d at 440; quoting Oregon at 494. Instead, “[o]nly

custodial interrogation triggers the need for Miranda warnings.” Id. at 440

(citations omitted).

      {¶15} Miranda defined “custodial interrogation” as “questioning

initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant

way.” Miranda at 444; accord Stansbury v. California, 511 U.S. 318, 322,

114 S.Ct. 1526 (1994); Oregon at 495 (stating that the Miranda protection

attaches “only where there has been such a restriction on a person's freedom

as to render him in ‘custody’ ”). In Ohio, it has consistently been stated that

“[i]n 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
Washington App. No. 16CA19                                                    13

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 Thompson v.

Keohane, 516 U.S. 99, 112, 116 S.Ct. 457 (1995); accord J.D.B. v. North

Carolina, 564 U.S. 261, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). As

set forth above, Appellant argues she did not feel free to leave the encounter

and she points to testimony during the suppression hearing by Sergeant

Heddleston in which he stated he could see where she may have felt, from

her perspective, that she was not free to leave.

      {¶16} However, in a more recent decision, the Supreme Court of Ohio

has now held that the test is not whether a reasonable person believes

himself or herself to be free to leave, but rather the relevant inquiry is

“whether a reasonable person in the suspect’s position would have

understood himself or herself to be in custody.” Cleveland v. Oles, 2017-

Ohio-5834, -- N.E.3d –, ¶ 30 (2017). In announcing this new test, the Court

reasoned as follows:

      “This nuance is important and well reasoned. If the inquiry
      were whether the driver felt free to leave, then every traffic stop
      could be considered a custodial interrogation because ‘few
      motorists would feel free either to disobey a directive to pull
      over or to leave the scene of a traffic stop without being told
      they might do so,’ [Berkemer v. McCarty, 468 U.S. 420, 436,
      104 S.Ct. 3138 (1984).] And a law-enforcement officer, in the
      midst of investigating a traffic stop and performing all its
      attendant procedures, would not consider a driver free to leave
Washington App. No. 16CA19                                                      14

      unless given permission. But ‘not free to leave’ and ‘in
      custody’ are distinct concepts.” Id.

The Court further reasoned that:

      “For purposes of constitutional privilege against self
      incrimination, the test is not whether the individual feels free to
      leave but whether the situation ‘exerts upon a detained person
      pressures that sufficiently impair his free exercise of his
      privilege against self-incrimination to require that he be warned
      of his constitutional rights.” Id. at ¶ 31; quoting Berkemer at
      437.

Ultimately, in Cleveland v. Oles the Court found, based on the totality of the

circumstances, that the suspect was not in custody and that no constitutional

violation occurred where the suspect was stopped, asked to step out of the

vehicle and sit in the front seat of the patrol car, questioned regarding his

destination and how much alcohol he had consumed that evening, directed to

perform field sobriety tests, failed the tests, and was arrested, all without

receiving Miranda warnings. Id. at ¶ 2-4, 33.

      {¶17} The Supreme Court of Ohio has held that an individual

temporarily detained as part of a routine traffic or investigatory stop

ordinarily is not “in custody” and is not, therefore, entitled to Miranda

warnings. State v. Farris, 109 Ohio St.3d 519, 2006–Ohio–3255, 849 N.E.2d

985, ¶ 13; citing Berkemer v. McCarty at 439–440 (noting that investigative

stops are not subject to Miranda requirements and holding that Miranda not

implicated during traffic stop for swerving when officer questioned driver
Washington App. No. 16CA19                                                    15

about his drinking). Thus, “most traffic stops and accompanying

investigatory questioning do not constitute custodial interrogations

warranting the right to Miranda warnings.” State v. Brocker, 11th Dist.

Portage No. 2014–P–0070, 2015–Ohio–3412, ¶ 17 (citations omitted); see

State v. Jackson, 9th Dist. Summit Nos. 27132, 27200, 27133, 27158, 2015–

Ohio–5246 (determining that Miranda did not apply to traffic stop during

which officer asked defendant where he had been and whether he had

purchased any items at the store where he had been); State v. Campbell, 2nd

Dist. Montgomery No. 26497, 2015–Ohio–3381, (determining that Miranda

not implicated during investigative stop to ascertain whether eighteen-year-

old defendant had been drinking when there was no evidence that defendant

was handcuffed, and the defendant was not informed that he was under

arrest or detained in police car); State v. Smoot, 2nd Dist. Montgomery No.

26297, 2015–Ohio–2717, 38 N.E.3d 1094, 1112–13, ¶ 41 (determining that

defendant was not in custody for purposes of Miranda when officer asked

defendant about the contents of his vehicle during traffic stop); State v.

Vineyard, 2nd Dist. Montgomery No. 25854, 2014–Ohio–3846 (determining

that defendant not in custody during traffic stop even though officer asked

defendant to exit his vehicle and asked defendant whether he had any

weapons); State v. Ware, 8th Dist. Cuyahoga No. 89945, 2008–Ohio–2038
Washington App. No. 16CA19                                                     16

(concluding that Miranda was not applicable during a routine traffic stop in

which officer asked defendant if he had any weapons, drugs, or contraband

in the vehicle); State v. Leonard, 1st Dist. Hamilton No. C–060595, 2007–

Ohio–3312 (holding that Miranda warnings were not required when an

officer removed defendant from his vehicle and placed defendant in front

passenger seat of officer's patrol vehicle for questioning). However, during

a traffic or investigative stop circumstances may change and render an

individual “in custody” for practical purposes and, thus, “ ‘entitled to the full

panoply of protections prescribed by Miranda.’ ” Farris at ¶ 13; quoting

Berkemer at 440.

      {¶18} Here, a review of the record reveals that the evidence presented

at the suppression hearing failed to establish that Appellant was in custody at

any point during the encounter with law enforcement. And, Appellant was

approached by law enforcement during daylight hours, while she was on

foot in a public place. There is no evidence in the record that suggests

Appellant’s interaction with law enforcement was anything but consensual

and importantly, when the officer requested Appellant step down to his

cruiser to speak with him she refused and stated she was fine to stay on the

sidewalk, which she did. In fact, she did not step down to his cruiser until

afterwards, when the officer asked if he could search her purse as she was
Washington App. No. 16CA19                                                     17

reaching into it to obtain her identification and later her cell phone. When

the officer requested to search her purse, Appellant stated “Go ahead.”

      {¶19} Further, and notably, after thoroughly reviewing the record,

including the motion to suppress, post-hearing briefs, transcript from the

suppression hearing and appellate briefs, this Court has been unable to

identify any allegedly incriminatory statement made by Appellant during the

encounter. At the time when Appellant was being questioned on the

sidewalk and beside the cruiser, she simply denied having anything illegal in

her purse, provided consent to search, and then stated she did not know

anything about the pills that were found. There were no incriminatory

statements made by Appellant at the time that even related to the drugs

found in her purse. The trial court noted as much in its decision denying

Appellant’s motion to suppress, stating as follows:

      “Taking the evidence in its entirety, the Court finds that the
      Defendant was not in custody, was free to leave at any time and
      ultimately walked away; that there are not statements being
      used by the State, and finally, that the discovery of the illegal
      drugs was the result of a consensual search.” (Emphasis added).

Thus, the illegal drugs recovered from Appellant’s purse were not linked

with any statement made by Appellant and thus were not “derived” from the

questioning of Appellant by law enforcement. Also, of importance and as

referenced by the State in its brief, this Court has previously held that
Washington App. No. 16CA19                                                      18

“ ‘[t]he 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. Henson, 4th Dist.

Highland No. 05CA13, 2006-Ohio-2861, ¶ 30 (in response to an argument

that the appellant’s consent was invalid because Miranda warnings were not

given prior to obtaining consent to search); quoting State v. Clelland, 83

Ohio App.3d 474, 481, 615 N.E.2d 276 (1992); citing State v. Austin, 52

Ohio App.2d 59, 368 N.E.2d 59 (1976).

      {¶20} Further, despite Appellant’s argument that because she did not

feel free leave she was thus in custody for purposes of Miranda, as set forth

above, the newer test announced by the Supreme Court of Ohio in Cleveland

v. Oles does not focus on that particular question, but instead focuses on

whether the situation exerted upon Appellant pressure sufficient to impair

her free exercise of her privilege against self-incrimination to require that

she be warned of her constitutional rights. We cannot conclude, based upon

these facts, that such a situation existed. Additionally, with respect to

Appellant’s argument that law enforcement had a duty to affirmatively

inform her that she was not under arrest and was free to leave, the Supreme

Court of Ohio has stated in State v. Robinette, 80 Ohio St.3d 234, 245, 685

N.E.2d 762 (1997) that the “Ohio Constitution does not require a police
Washington App. No. 16CA19                                                     19

officer to inform an individual stopped for a traffic violation, that he or she

is free to go before the officer may attempt to engage in a consensual

interrogation.” Admittedly, Appellant was not stopped for a traffic violation

but the reasoning is nevertheless applicable. Finally, as this Court noted in

State v. Davis, supra, at ¶ 41, “ ‘an individual’s knowledge of the right to

refuse consent ‘is not a prerequisite of a voluntary consent.’ ” Quoting State

v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 24; in turn

quoting Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041

(1973).

      {¶21} Because Appellant has waived the argument that her consent to

search was involuntary, and because we have determined that Appellant was

not in custody for purposes of triggering a Miranda warning and that

Appellant made no incriminating statements during the part of the encounter

in question, we reject the arguments raised under Appellant’s first

assignment of error. Accordingly, Appellant’s first assignment of error is

overruled.

                        ASSIGNMENT OF ERROR II

      {¶22} In her second assignment of error, Appellant contends that the

trial court’s decision to admit the audio recording of the conversation

between Sergeant Heddleston and herself, which occurred at the Rite Aid
Washington App. No. 16CA19                                                      20

store, was an abuse of discretion. Appellant specifically argues that the

recording was not relevant under Evid.R. 401 and 402, and that it was more

prejudicial than probative and should have been excluded under Evid.R. 403.

The State contends that the Rules of Evidence are not applicable in

suppression hearings and that Appellant’s assignment of error should be

overruled on that basis. The State further argues that the audio tape was

relevant to the trial court’s totality of the circumstances analysis in

determining whether Appellant was in custody during the earlier portion of

the police encounter.

      {¶23} The admission or exclusion of evidence generally rests within

the trial court's sound discretion. State v. Minton, 2016-Ohio-5427, 69

N.E.3d 1108, ¶ 45; State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199,

921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, an appellate court will not disturb a

trial court's ruling regarding the admissibility of evidence absent a clear

showing of an abuse of discretion with attendant material prejudice to

defendant. Id. “ ‘A trial court abuses its discretion when it makes a decision

that is unreasonable, unconscionable, or arbitrary.’ ” State v. Williams, 4th

Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 17, quoting State v. Keenan,

143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7; quoting State v.

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
Washington App. No. 16CA19                                                       21

      {¶24} As set forth above, after the initial encounter with Appellant on

the sidewalk and then by the police cruiser, Sergeant Heddleston later met

Appellant back at the Rite Aid store, where she had left her ex-boyfriend’s

car parked, and proceeded to take a recorded statement from Appellant. At

the suppression hearing, defense counsel stipulated that the audio recording

was a recording between the officer and his client, but objected on relevance

grounds, explaining that the suppression motion related to statements

obtained prior to the recording being made. The court allowed the recording

to be submitted and stated it would review it to determine if it was relevant.

In its decision denying the motion to suppress, the trial court simply stated

“[a] tape of at least portions of the stop was provided to the Court.” The trial

court did not cite or quote any portion of the recording in its entry. Further,

there is no indication that the audio recording was transcribed, and it was not

transmitted to this Court with the rest of the record. Thus, it is not part of

the record on appeal.

      {¶25} We conclude, albeit after a limited review based upon the fact

that we are not able to actually review the audio recording, that even if the

recording was made after the initial encounter with police in which

Appellant is complaining, that the recording was relevant to the totality of

the circumstances analysis undertaken by the trial court. Thus, we find no
Washington App. No. 16CA19                                                      22

error or abuse of discretion in its admission. Further, because we find it was

relevant to the trial court’s determinations below, the trial court correctly

accepted it into evidence for review as to whether it would ultimately be

admissible.

       {¶26} Additionally and importantly, as argued by the State, “ ‘the

Rules of Evidence do not apply to suppression hearings.’ ” State v. Ulmer,

4th Dist. Scioto No. 09CA3283, 2010-Ohio-695; ¶ 10; quoting State v.

Bozcar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17, citing

Evid.R. 101(C)(1) & 104(A); see also State v. Norman, 4th Dist. Ross Nos.

08CA3059 & 66, 2009–Ohio–5458. Therefore, “ ‘[a]t a suppression

hearing, the court may rely on * * * evidence, even though that evidence

would not be admissible at trial.’ ” Maumee v. Weisner, 87 Ohio St.3d 295,

298, 720 N.E.2d 507 (1999); quoting United States v. Raddatz (1980), 447

U.S. 667, 679, 100 S.Ct. 2406 (1980). Accordingly, Appellant's argument

fails as a matter of law.

       {¶27} Having found no merit in Appellant’s second assignment of

error, it is also overruled. Accordingly, we affirmed the judgment of the

trial court.


                                                  JUDGMENT AFFIRMED.
Washington App. No. 16CA19                                                     23

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge


                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
