[Cite as State v. Sexton, 2012-Ohio-658.]


                                        COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                        Plaintiff-Appellee     :      Hon. W. Scott Gwin, J.
                                               :      Hon. William B. Hoffman, J.
-vs-                                           :
                                               :      Case No. 11-COA-033
DONALD S. SEXTON                               :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Ashland Municipal Court,
                                                   Case No. 11-CR-B-00339


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            February 7, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

TIMOTHY E. POTTS                                      DAVID M. HUNTER
Good & Potts, LLC                                     Acting Assistant Law Director
10 East Main Street                                   Ashland City Law Director’s Office
Ashland, OH 44805                                     1213 East Main Street
                                                      Ashland, OH 44805
[Cite as State v. Sexton, 2012-Ohio-658.]


Delaney, J.

        {¶1} Defendant-appellant Donald S. Sexton appeals from the July 8, 2011

judgment entry of the Ashland Municipal Court overruling appellant’s Motion to

Suppress. Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2} On April 8, 2011, appellant was a passenger in a vehicle which was

stopped by Officer Aaron Kline of the Ashland Police Division for a cracked

windshield. Upon identifying the individuals inside the vehicle, Kline discovered that a

Florida warrant existed for appellant’s arrest for narcotics, and requested that a K-9

officer be dispatched to the scene of the traffic stop.

        {¶3} A K-9 officer duly arrived and circled the vehicle as appellant and the

driver remained inside. In the meantime, Kline told the occupants not to move and to

keep their hands visible.

        {¶4} Kline noticed appellant’s left hand moving slowly, as though he was

trying to hide something, and ordered him out of the vehicle. As Kline handcuffed

appellant, he asked him what he was reaching for. Appellant advised that he had a

baggie of marijuana near his crotch. Kline uncuffed appellant, patted him down, told

appellant to retrieve the baggie, and then took possession of the baggie and

marijuana.

        {¶5} Appellant filed a motion to suppress the evidence from the motor vehicle

stop, arguing, in part, that appellant’s statement regarding the baggie of marijuana

was not voluntary and violated the procedural safeguards of Miranda v. Arizona, 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Ashland County, Case No. 11-COA-033                                                   3


      {¶6} The trial court held an evidentiary hearing at which the State presented

the testimony of Officer Kline. On July 8, 2011, the trial court overruled the Motion to

Suppress, noting that the patdown of appellant was justified for officer safety, and

Kline’s inquiry about what appellant was reaching for was a logical extension of the

patdown. The trial court held that the inquiry was justified, appellant’s response about

the baggie therefore should not be excluded, and appellant had voluntarily turned over

the marijuana.

      {¶7} It is from this decision that appellant now appeals.

      {¶8} Appellant raises one Assignment of Error:

      {¶9}    “THE ASHLAND MUNICIPAL COURT ERRED BY NOT SUPPRESSING

STATEMENTS            MADE         BY        DEFENDANT/APPELLANT                WHILE

DEFENDANT/APPELLANT WAS IN CUSTODY, PRIOR TO BEING ISSUED

MIRANDA WARNINGS, IN RESPONSE TO AN EXPANSIVE, OPEN-ENDED

QUESTION BY A LAW ENFORCEMENT OFFICER THAT WOULD BE REASONABLY

LIKELY       TO     ELICIT       AN      INCRIMINATING         RESPONSE          FROM

DEFENDANT/APPELLANT, AS WELL AS EVIDENCE SEIZED AS A RESULT

THEREOF, THEREFORE, IN VIOLATION OF DEFENDANT/APPELLANT’S FIFTH

AMENDMENT RIGHTS.”

      {¶10} Appellant asserts that the trial court erred in not suppressing his

statement and the resulting evidence of the baggie of marijuana because he was in

custody when Kline asked him what he was reaching for, and therefore he should

have been afforded Miranda protections. We disagree.
Ashland County, Case No. 11-COA-033                                                         4


        {¶11} There are three methods of challenging on appeal a trial court’s ruling on

a motion to suppress. First, an appellant may challenge the trial court’s findings of

fact.   In reviewing a challenge of this nature, an appellate court must determine

whether the findings are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d

726 (4th Dist.1993). Second, an appellant may argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an appellate court

can reverse the trial court for committing an error of law. See, State v. Williams, 86

Ohio App.3d 37, 619 N.E.2d 1141(4th Dist.1993). Finally, assuming the trial court’s

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue that trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court’s conclusion, whether the facts meet the appropriate legal standard in

any given case.     State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th

Dist.1994), State v. Claytor, 85 Ohio App.3d 623, 627, 620 N.E.2d 906 (4th Dist.1993),

and Guysinger at 594.

        {¶12} In a motion to suppress, the trial court assumes the role of trier of fact

and, as such, is in the best position to resolve questions of fact and evaluate witness

credibility. Guysinger at 594. Accordingly, an appellate court is bound to accept the

trial court’s findings of fact if they are supported by competent, credible evidence. Id.
Ashland County, Case No. 11-COA-033                                                     5


       {¶13} Appellant does not contest the trial court’s findings of fact but asserts

that the court below erred in applying the public safety exception to Miranda to the

facts of this case.

       {¶14} A defendant has a constitutional right against self-incrimination under

both the Fifth Amendment to the United State Constitution and Section 10, Article I of

the Ohio Constitution. In interpreting this right, it has been held that the state may not

use statements stemming from a custodial interrogation of the defendant unless it

demonstrates the use of certain procedural safeguards to secure the privilege against

self-incrimination. See Miranda, 384 U.S. 436. The well-known Miranda warnings

were thus created. Id.

       {¶15} The public safety doctrine is an exception to the Miranda requirement.

The public safety doctrine excuses compliance with Miranda where exigent

circumstances exist and where there is an immediate need to protect the general

public, an individual person, or the officer involved. In these public safety situations,

there is an overriding need to save a human life, or to rescue persons whose lives are

in danger. New York v. Quarels, 467 U.S. 649, 656, 104 S.Ct. 2626, 16 L.Ed.2d 694

(1984) (“ The doctrinal underpinnings of Miranda do not require that it be applied in all

its rigor to a situation in which police officers ask questions reasonably prompted by

concern for public safety.”)

       {¶16} In this case, Officer Kline observed appellant’s hand moving after he had

advised appellant to keep still and to keep his hands visible. Kline then removed

appellant from the vehicle and cuffed him to ensure that he was not reaching for a

weapon, simultaneously asking appellant what he was reaching for. Kline’s inquiry
Ashland County, Case No. 11-COA-033                                                    6


was reasonably prompted by his concern for officer safety, to which appellant admitted

possessing the baggie of marijuana. Additionally, the question asked by Officer Kline

was not designed solely to elicit testimonial evidence.

      {¶17} The trial court did not err in overruling appellant’s Motion to Suppress

because Kline’s inquiry and appellant’s resulting admission fall within the public safety

exception to Miranda.

      {¶18} The sole assignment of error is overruled.

      {¶19} The judgment of the Ashland Municipal Court is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN
[Cite as State v. Sexton, 2012-Ohio-658.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                        Plaintiff-Appellee     :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
DONALD S. SEXTON                               :
                                               :
                                               :   Case No. 11-COA-033
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Ashland Municipal Court is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. W. SCOTT GWIN



                                             HON. WILLIAM B. HOFFMAN
