[Cite as State v. Arguelles, 2012-Ohio-357.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96800




                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                  DANIEL ARGUELLES
                                                              DEFENDANT-APPELLEE




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-543000

        BEFORE:           Jones, J., Sweeney, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                       February 2, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Alison Foy
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Mark B. Marein
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114




LARRY A. JONES, J.:

      {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision to

grant defendant-appellee’s, Daniel Arguelles, motion to suppress. For the reasons that

follow, we affirm.

      {¶ 2} On October 12, 2010, Parma police officer Matt Daves approached a

vehicle that was sitting in the street with its engine on, but unattended. He proceeded to

write a ticket when Arguelles approached him and told the officer that the car was his.
The officer issued the citation and handed it to Arguelles. He first told Arguelles he was

free to go, but then asked if he could search the car to see if there was drug paraphernalia

in it.   Arguelles told the officer there was no reason to search the car, but the officer

persisted. Eventually Arguelles told the officer that he had just “smoked a blunt” and

the officer placed him in handcuffs. Another officer used his flashlight to look inside

the car and saw a “baggie” of suspected marijuana on the passenger-side floor.            The

officer then searched the car and found marijuana and pills.       Arguelles told the officers

the pills were Percocet and Valium.

         {¶ 3} Arguelles was charged with drug trafficking (methamphetamine) and two

counts of possession of drugs (methamphetamine and oxycodone). He filed a motion to

suppress evidence and statements.       The state opposed the motion and then dismissed the

drug trafficking charge and one count of drug possession because the substances charged

in those counts turned out not to be controlled substances.       The state proceeded on the

remaining count of the indictment: one count of drug possession (oxycodone).

         {¶ 4} At the hearing on the motion to suppress, the parties and the court agreed

that the court would make its decision based on the briefs and a dash cam video of the

incident. No testimony was taken.

         {¶ 5} The trial court granted the motion to suppress in part, suppressing all of

Arguelles’s statements to police officers.       The court further denied the motion in part,

not suppressing what the officers saw in plain view in Arguelles’s car. In so ruling, the

trial court stated in its journal entry, in part, as follows:
              At 1:25:19 [a.m.] the officer tells the defendant that he is free to leave but
      then begins to ask permission to search the interior of the defendant’s car. The
      defendant does not agree to allow the search and the officer continues to press the
      defendant to allow him to search the car. The officer begins to place handcuffs
      on the defendant at 1:25:55 [a.m.] and continues to interrogate the defendant. It
      was not until 1:27:00 [a.m.] that the officer advises the defendant of his Miranda1
      rights. The defendant provided admissions about items in his car both before and
      after receiving the Miranda warning. * * * The questioning of the defendant was
      improper as set forth in the Farris2 decision. Consistent with that holding by the
      Ohio Supreme Court, both the pre-Miranda and post-Miranda statements of the
      defendant are suppressed and may not be admitted at trial.

             However, due to noticing an odor of marijuana about the defendant, the
      officers had every right to make a plain view search of the defendant’s car and the
      questioning officer’s partner did so with a flashlight prior to the search of the
      interior of the car. All evidence viewed through the plain-view search is
      admissible for trial.

      {¶ 6} The state filed a notice of appeal pursuant to Crim.R. 12(K), raising one

assignment of error for our review, contending that the trial court erred in granting

Arguelles’s motion to suppress.

      {¶ 7} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8, the Ohio Supreme Court explained that

      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. Consequently, an
      appellate court must accept the trial court’s findings of fact if they are
      supported by competent, credible evidence. 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. (Internal citations omitted.)


           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1996).
      1




          State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.
      2
       {¶ 8} In Miranda, the United States Supreme Court held that an individual must

be advised of his or her constitutional rights when law enforcement officers initiate

questioning after that person has been taken into custody or otherwise deprived of his or

her freedom in any significant way.          Any statement given under custodial police

interrogation, without the Miranda warnings first being given, may later be excluded

from use by the State in any resulting criminal prosecution. Id.

       {¶ 9} The warnings set forth in Miranda are only required when the individual is

subject to a “custodial interrogation.” California v. Beheler, 463 U.S. 1121, 1122, 103

S.Ct. 3517, 77 L.Ed.2d 1275 (1983).             A custodial interrogation is defined 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.

       The determination whether a custodial interrogation has occurred requires
       an inquiry into how a reasonable man in the suspect’s position would have
       understood his situation. * * * The ultimate inquiry is simply whether
       there is a formal arrest or restraint on freedom of movement of the degree
       associated with a formal arrest. State v. Ware, 8th Dist. No. 89945,
       2008-Ohio-2038, 2008 WL 1903993, ¶ 10, citing State v. Martin, 2d Dist.
       No. 19186, 2002-Ohio-2621, 2002 WL 1042066.

       {¶ 10} In this case, the trial court relied on the Ohio Supreme Court’s decision in

Farris, supra.    In Farris, a police officer noticed the odor of burnt marijuana coming

from inside the car during a traffic stop.   The officer asked the driver to step out of the

car, patted the driver down, and placed him in the front seat of the patrol car.   Without

providing Miranda warnings, the officer asked the driver about the smell of marijuana
and told him he was going to search the car.      At that point, the driver admitted that a

marijuana pipe was in a bag in the trunk.

       {¶ 11} The Farris Court found that “the officer’s treatment of Farris after the

original stop placed Farris in custody for practical purposes.”    Id. at ¶ 14.   The Court

held the only relevant inquiry in determining whether a person is in custody is “how a

reasonable [person] in the suspect’s position would have understood [their] situation.”

Id. The Court determined that a reasonable person in Farris’s position would have

understood himself to be in custody of a police officer, because the officer (1) patted

down Farris; (2) took his car keys; (3) instructed him to enter the cruiser; and (4) told

Farris that he was going to search Farris’s car because of the scent of marijuana. Id.

The Court concluded that the defendant’s pre-Miranda and post-Miranda statements were

inadmissible.

       {¶ 12} We agree with the trial court that the issue here is whether Arguelles was in

custody at the time the officer asked him to search his car.        The state distinguishes

Farris, citing the fact that the police took Farris’s keys and put him in a patrol car before

questioning him.    The difference in this case, the state contends, is that Officer Daves

told Arguelles he was free to go and then          proceeded to ask him a couple more

questions. According to the state, it is clear that Arguelles was not in custody at the

time; therefore, the officer did not err by questioning him prior to giving him his Miranda

warning.

       {¶ 13} Arguelles argues that he was in custody at the time the officer interrogated
him because, for nearly a minute, the officer repeatedly asked him if he could search the

car despite Arguelles’s repeated refusals.

       {¶ 14} Although, as the trial court noted, the facts of Farris are somewhat

distinguishable from the facts of this case, Arguelles was “in custody” for practical

purposes. Officer Daves told Arguelles he was free to go, but then immediately and

repeatedly asked him if he could search his car.    Arguelles told the officer that there was

no reason to search the car, but the officer persisted in asking if he could search that car

and questioned, “so if I call in a drug dog and have him take a sniff around the car * * *.”

 During the repeated questioning, Arguelles admits he had just “smoked a blunt,” and

raises his hands up. Officer Daves put Arguelles’s arms down, turned him around, and

held Arguelles’s hands together until his partner located the drugs in Arguelles’s car.

Once the drugs were located, Daves indicated to Arguelles that he was under arrest and

started to handcuff him.    He then continued to question him for nearly a minute before

finally administering the Miranda warning.

       {¶ 15} The officer’s continued questioning of Arguelles coupled with the physical

restraint, however slight, of holding Arguelles’s hands behind his back was improper

absent a Miranda warning.        Therefore, the trial court correctly suppressed Arguelles’s

statements to police officers.

       {¶ 16} The assignment of error is overruled.

       Judgment affirmed and case remanded to the trial court for proceedings consistent

with this opinion.
       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

JAMES J. SWEENEY, P.J., and
MARY EILEEN KILBANE, J., CONCUR
