[Cite as State v. Knapp,
2017-Ohio-2808.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ANTHONY J. KNAPP : Case No. 16-CA-00009
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Case No. 15-CR-0068
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 15, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT JAMES S. SWEENEY
Prosecuting Attorney James Sweeney Law, LLC
111 North High Street 341 South Third Street, Suite 100
P.O. Box 569 Columbus, Ohio 43215
New Lexington, Ohio 43764-0569
Perry County, Case No. 16-CA-00009 2
Baldwin, J.
{¶1} Defendant-appellant Anthony J. Knapp appeals the overruling by the Perry
County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 20, 2015, the Perry County Grand Jury indicted appellant on
one count of aggravated possession of drugs in violation of R.C. 2925.11 (A) and
(C)(1)(a), a felony of the fifth degree, and one count of tampering with evidence in violation
of R.C. 2921.12(A)(1), a felony of the third degree. At his arraignment on January 21,
2016, appellant entered a plea of not guilty to the charges.
{¶3} On May 5, 2016, appellant filed a Motion to Suppress. Appellant, in his
motion, argued that the “statements obtained by law enforcement in their custodial
interrogation of him were obtained without following the required procedural safeguards
of Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.(2d) 694 (1966)…” A
hearing on appellant’s motion was held on June 14, 2016.
{¶4} At the hearing, Sergeant David Briggs of the Perry County Sheriff’s Office
testified that he was on patrol as a deputy on June 11, 2015 and was in uniform in a
marked cruiser. He testified that he observed a Pontiac Grand Prix that, a few months
earlier, he had observed at residences known for or suspected of narcotics trafficking.
Sergeant Briggs testified that he ran the vehicle registration and that while he was waiting
for information, he saw the vehicle pull into a Circle K and the driver and passenger exit
the same and walk into the store. He testified that appellant was the driver.
Perry County, Case No. 16-CA-00009 3
{¶5} After learning that the vehicle registration was expired, Sergeant Briggs
waited for appellant and his passenger to get back into the vehicle. He testified that he
followed the vehicle and that, after it came to a complete stop, the passenger jumped out
and began running towards the back of the vehicle. Sergeant Briggs then activated his
lights, ordered the passenger back into the vehicle and approached appellant. According
to him, appellant appeared to be nervous and his hands were trembling. Appellant
admitted that his driver’s license was suspended and further admitted to knowing that his
vehicle registration was expired. While appellant was under several license suspensions,
his passenger had a felony warrant out of Fairfield County on a narcotics violation. The
passenger was placed under arrest.
{¶6} Sergeant Briggs testified that he called Chief Ball to secure the passenger
and then retrieved his K-9 from his cruiser to conduct a free air search of appellant’s
vehicle. The Sergeant was unable to secure individuals in his own cruiser or transport
them due to having the K-9 in his cruiser. While the Sergeant was arresting the
passenger, appellant was in the driver’s seat of the vehicle. When asked the result of the
search, Sergeant Briggs testified that his K-9 indicated that there were illegal narcotics
on the driver’s side of appellant’s vehicle. The Sergeant then searched appellant’s vehicle
after having appellant exit the same and stand at the back of the vehicle. Appellant, who
was informed that the K-9 had alerted to the presence of illegal narcotics, was not told
that he was under detention or could not leave at that time. During a search of appellant’s
vehicle, Sergeant Briggs found two jewelry bags in the liquid contained within a polar pop
cup which was in the center console of the vehicle. He previously had seen appellant exit
the store with a polar pop cup in his hand. When asked if the polar pop cup was his,
Perry County, Case No. 16-CA-00009 4
appellant admitted that it was and told Sergeant Briggs that it contained
methamphetamines. Appellant told him that he had put the methamphetamines in the cup
when he was being pulled over.
{¶7} According to Sergeant Briggs, appellant, prior to the initial questioning, was
not told that he was being detained and was not free to leave and was not handcuffed.
He further testified that appellant was not placed in the back of his cruiser and never
asked if he could leave. Before interviewing appellant for the second time, Sergeant
Briggs advised appellant of his Miranda rights. After the second interview, appellant was
arrested.
{¶8} On cross-examination, Sergeant Briggs admitted that during the air search
of appellant’s vehicle, appellant, for reasons of officer safety, would not have been
allowed to get out of his vehicle.
{¶9} At the hearing, appellant testified that after the K-9 alerted to drugs and he
was ordered to get out of his vehicle, he did not feel like he had a choice. He testified that
he thought that he would have been “jerked out of the vehicle” if he did not listen and
expected to be put in the back of the cruiser. Transcript at 32. Appellant further testified
that he did not feel that he could have walked away.
{¶10} The trial court, as memorialized in a Judgment Entry filed on July 12, 2016,
denied appellant’s Motion to Suppress, finding that appellant was not in custody at the
time of the initial questioning and that, therefore, Sergeant Briggs’ initial questioning of
appellant did not require Miranda warnings.
{¶11} Thereafter, on July 14, 2016, appellant withdrew his former not guilty plea
and entered a plea of no contest to both charges. The trial court found appellant guilty.
Perry County, Case No. 16-CA-00009 5
Pursuant to a Judgment Entry filed on July 29, 2016, appellant was placed on community
control for a period of four (4) years with the condition that he attend and successfully
complete the program at the SEPTA Center in Nelsonville, Ohio. Appellant was also fined
$1,000.00, his driver’s license was suspended for a period of six (6) months and he was
ordered to perform 100 hours of community service.
{¶12} Appellant now raises the following assignment of error on appeal:
{¶13} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
OVERRULING APPELLANT’S MOTION TO SUPPRESS STATEMENTS MADE WHILE
APPELLANT WAS IN CUSTODY.
I
{¶14} Appellant, in his sole assignment of error, argues that the trial court erred in
failing to suppress statements that appellant made to Sergeant Briggs while appellant
was in custody. We disagree.
{¶15} Appellate review of a trial court's decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,
713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks,
75 Ohio St.3d 148, 154,
1996-Ohio-134,
661
N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they
are supported by competent, credible evidence. State v. Medcalf,
111 Ohio App.3d 142,
145,
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court
must independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
Perry County, Case No. 16-CA-00009 6
v. Williams,
86 Ohio App.3d 37, 42,
619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶16} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact 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). 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,
Williams, supra.
{¶17} Finally, an appellant may argue the trial court has incorrectly decided the
ultimate or final issues raised in a 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,
620 N.E.2d 906 (8th Dist.1994).
{¶18} Appellant, in the case sub judice, argues that his Motion to Suppress should
have been granted because he was in custody at the time of his initial interrogation by
Sergeant Briggs and was not Mirandized at such time. The State 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. Miranda v. Arizona, 384 U.S. 436, 444, 86 S .Ct.
1602,
16 L.Ed.2d 694 (1966). Not all questioning, however, rises to the level of “custodial
interrogation.”
Perry County, Case No. 16-CA-00009 7
{¶19} Custodial interrogation is “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. State v. McKinley, 5th Dist. Delaware No. 15 CAA 06 0048, 2016–
Ohio–191, ¶ 17, citing Miranda, supra, 384 U .S. at 444. In Thompson v. Keohane, the
Court offered the following description of the Miranda custody test:
Two discrete inquiries are essential to the determination: first, what
were the circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave. Once the scene is set
and the players' lines and actions are reconstructed, the court must apply
an objective test to resolve the ultimate inquiry: was there a formal arrest or
restraint on freedom of movement of the degree associated with a formal
arrest.
{¶20} Thompson v. Keohane, 516 U.S. 99, 112,
116 S.Ct. 457,
133 L.Ed.2d 383
(1995); accord, Yarborough v. Alvarado,
541 U.S. 652, 653,
124 S.Ct. 2140,
158 L.Ed.2d
938 (2004).
{¶21} The police and courts must “examine all of the circumstances surrounding
the interrogation,” Stansbury v. California, 511 U.S. 318, 322,
114 S.Ct. 1526,
128
L.Ed.2d 293 (1994), including those that “would have affected how a reasonable person”
in the suspect's position “would perceive his or her freedom to leave,”
Id. at 325. However,
the test involves no consideration of the particular suspect's “actual mindset.”
Yarborough, supra,541 U.S. 652 at 667; accord, State v. Mason, 82 Ohio St .3d 144,
Perry County, Case No. 16-CA-00009 8
153, 1998–Ohio–370,
694 N.E.2d 932; State v. Gumm,
73 Ohio St.3d 413, 429, 1995–
Ohio–24,
653 N.E.2d 253.
{¶22} Traffic stops such as the one at issue here do not rise to the level of “formal
arrest.” Thus, generally in the course of an ordinary traffic stop, Miranda rights are not
implicated because custodial interrogation does not occur. In Berkemer v. McCarty, 468
U.S. 420,
104 S.Ct. 3138,
82 L.Ed.2d 317 (1984), the Supreme Court held that roadside
questioning of a motorist detained pursuant to a routine traffic stop does not constitute
“custodial interrogation” under the rule announced in
Miranda, supra. However, once a
traffic stop evolves beyond the “ordinary,” questioning may rise to the level of custodial
interrogation under certain circumstances. In Pennsylvania v. Bruder,
488 U.S. 9,
109
S.Ct. 205,
102 L.Ed.2d 172 (1988), the Supreme Court held that an ordinary traffic stop
during which the police officer asked the driver a modest number of questions at a location
visible to passing motorists did not involve custody for purposes of Miranda. The Court
noted its holding in Berkemer applied only to ordinary traffic stops, but observed a motorist
“might properly” be found to have been placed “in custody” for purposes of Miranda
safeguards where he was detained for over one-half hour and subjected to questioning
while in a patrol car.
Bruder, supra, at 11, f.n. 2. The Court noted that Berkemer applies
only to “ordinary traffic stops” and not to the “unusual traffic stop” where a motorist is
subjected to “prolonged detention” while in a patrol car.
{¶23} The Ohio Supreme Court has noted a suspect need not be under arrest to
be “in custody” for Miranda purposes. State v. Farris, 109 Ohio St.3d 519, 2006–Ohio–
3255,
849 N.E.2d 985, ¶ 13, citing
Berkemer, supra,468 U.S. at 420. In Farris, after
stopping a driver for speeding, a police officer noticed the odor of burnt marijuana coming
Perry County, Case No. 16-CA-00009 9
from inside the car. 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.
{¶24} The Ohio Supreme Court held “the officer's treatment of Farris after the
original stop placed Farris in custody for practical purposes”. Id. at ¶ 14. The Court,
quoting Berkemer, 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 found that a reasonable person in Farris's position would
have understood himself to be in custody of a police officer, because (1) the officer patted
down Farris; (2) took his car keys; (3) instructed him to enter the cruiser; and (4) he told
Farris that he was going to search Farris's car because of the scent of marijuana. Id. The
Court held that the driver's pre-warning and post-warning statements were inadmissible.
{¶25} We find the recent case of State v. Lukjare, 5th Dist. Ashland No. 15–COA–
038, 2016-Ohio-4613 to be instructive. In Lukjare, after the appellee was stopped for
speeding, the Trooper noticed a strong odor of cologne or deodorizer emanating from the
vehicle and that the appellee was nervous and wouldn't make eye contact. The Trooper
asked the appellee to exit the vehicle and placed him in the rear of the patrol car for the
purpose of separating the appellee from the strong odor in the vehicle. The appellee was
patted down but not handcuffed before being placed in the cruiser.
{¶26} A Deputy arrived on the scene approximately 13 minutes into the traffic stop
with K–9 officer Nicky, opened the back door of the patrol car to speak to the appellee
Perry County, Case No. 16-CA-00009 10
and told him he was a narcotics officer there to walk his dog around the vehicle. The
appellee then stated there were drugs in the vehicle. Marijuana and drug paraphernalia
were located in bags in the rear hatch of the car. The appellee said the drugs were his.
{¶27} The appellee, who was not Mirandized at any time throughout the stop and
remained seated in the rear of the patrol car, filed a Motion to Suppress, arguing that he
was in custody. The trial court granted the motion and the State of Ohio appealed. This
Court reversed the judgment of the trial court, finding that the appellee was not in custody
and that the Motion to Suppress should not have been granted. This Court noted that the
appellee was not handcuffed, his keys were not taken away, and he was not subjected to
a lengthy detention.
{¶28} In the case sub judice, the stop was an ordinary traffic stop. Appellant was
asked to exit his vehicle prior to the search and was not placed in a police cruiser.
Appellant was not handcuffed; his keys were not taken away; nor was he subjected to a
lengthy detention. Moreover, appellant was not told that he was being detained and was
not free to leave.
{¶29} Based on the foregoing, we conclude that appellant’s statements to law
enforcement are admissible because appellee was not subject to custodial interrogation
during the time of the initial interrogation. We find, therefore, that the trial court did not
err in denying the Motion to Suppress.
{¶30} Appellant’s sole assignment of error is, therefore, overruled.
Perry County, Case No. 16-CA-00009 11
{¶31} Accordingly, the judgment of the Perry County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.
