[Cite as State v. Whitten,
2023-Ohio-973.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Sylvania Court of Appeals No. L-22-1131
Appellee Trial Court No. TRC2003757
v.
William Whitten DECISION AND JUDGMENT
Appellant Decided: March 24, 2023
…
Joseph W. Westmeyer, III, for appellant.
…
OSOWIK, J.
{¶ 1} Appellant William Whitten appeals the April 22, 2022 judgment of the
Sylvania Municipal Court that sentenced him to 180 days, with 139 days suspended
upon certain terms and conditions of probation. The court also imposed a fine of
$375 and costs as well as a 12-month license suspension.
{¶ 2} Whitten presents a single assignment of error for our review:
The trial court erred in denying appellant’s motion to suppress
statements made prior to being properly mirandized.
Facts
{¶ 3} On November 21, 2020, at 12:50 a.m., Whitten was driving his vehicle
near the intersection of Holloway and Garden Road in Lucas County when he
encountered an OVI (Operating a Vehicle under the Influence of alcohol) checkpoint.
{¶ 4} When authorities approached his vehicle, appellant was unable to
produce a driver’s license. He was then directed to a diversion area. It is at this
point that he interacted with Lucas County Sheriff Deputy Bretzloff. The deputy was
assigned to work the diversion area of this checkpoint. The deputy ran Whitten’s
personal information through the LEADS (Law Enforcement Automated Data
System) system. It was discovered that his license was under suspension and it
appeared that he had two warrants for his arrest from the city of Toledo. Once the
warrants were verified, the deputy testified that he may not have arrested appellant
on these outstanding warrants. He further indicated that it was the sheriff’s
departmental policy sometimes to simply issue a summons to appear for these
outstanding warrants rather than to transport suspects, particularly during the
pandemic.
2.
{¶ 5} While another deputy checked on these warrants, Bretzloff asked
appellant if he had anything to drink that night. Whitten responded that he did not, to
which the deputy replied that “your eyes are really glossy and bloodshot.” Appellant
stated that he was tired.
{¶ 6} Based upon this interaction, Bretzloff administered the horizontal gaze
nystagmus test. The test did not reveal any clues of impairment.
{¶ 7} The deputy then asked Whitten to “spin around, I’m going to pat you
down for my safety.” The deputy told appellant to put his arms “straight back.” He
then conducted a cursory pat-down and simultaneously asked Whitten “is there
anything in the car I need to know about?” Appellant admitted that there was some
marijuana in the vehicle and further admitted, while being handcuffed, that he had
smoked a marihuana cigarette (joint) about three hours prior.
{¶ 8} In the video admitted into evidence, Bretzloff appears to place and lock
handcuffs on Whitten and states “right now I’m just going to detain you.” Then,
apparently satisfied with the pat-down, removes the handcuffs ten seconds later. He
then asks Whitten to perform more field sobriety tests.
{¶ 9} Ultimately, Whitten was charged with a violation of R.C.
4511.19(A)(1)(a) and (A)(2) operating a vehicle under the influence of alcohol or
drugs and with a violation of R.C. 4510.111, driving under suspension.
3.
Analysis
{¶ 10} Appellant filed a motion to suppress any statements and all evidence
obtained from the illegal and unconstitutional questioning as fruit of the poisonous
tree. More specifically, at the suppression hearing, appellant confined his challenge
to the encounter with the deputy prior to the walk-and-turn and one-leg stand test.
{¶ 11} Appellant contends that he was in custody when he made an
incriminating statement to the police and should have been given proper Miranda
warnings before he was questioned.
Standard of Review
{¶ 12} Appellate review of a trial court’s denial of a motion to suppress presents
mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372,
797 N.E.2d 71, ¶ 8. 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.
Id. Thus, an appellate court must
accept the trial court’s findings of fact if they are supported by competent, credible
evidence.
Id. 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.
4.
Investigatory Detention
{¶ 13} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, protects people against unreasonable searches
and seizures. Article I, Section 14 of the Ohio Constitution is almost identical to the
Fourth Amendment, and affords Ohioans coextensive protections against unreasonable
searches and seizures. See State v. Robinette, 80 Ohio St.3d 234, 245,
685 N.E.2d 762
(1997).
{¶ 14} For a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant. State v. Moore,
90 Ohio St.3d 47, 49,
734 N.E.2d 804 (2000). A search is unreasonable when police lack
a valid warrant and no exception to the warrant requirement applies. See Brigham City v.
Stuart,
547 U.S. 398, 403,
126 S.Ct. 1943,
164 L.Ed.2d 650 (2006). State v. Gregory, 6th
Dist. Lucas Nos. L-21-1106,
L-21-1107, 2023-Ohio-331, ¶ 72-75.
{¶ 15} At the outset, we note that appellant does not contest the constitutionality
of the OVI checkpoint. Highway checkpoint stops are designed to detect and deter drunk
driving and have been held to not violate the Fourth Amendment, even in the absence of
individualized suspicion, if it involves an initial stop and brief detention of all motorists.
See Michigan v. Sitz, 496 U.S. 444, 453,
110 S.Ct. 2481,
110 L.Ed.2d 412 (1990).
{¶ 16} Since the United States Supreme Court issued its decision in Sitz, a
majority of state courts have followed the balancing analysis and have concluded that
5.
roadblocks may survive constitutional scrutiny if they are operated under guidelines
which minimize intrusiveness and limit officers’ discretion. Ohio is among the majority
of jurisdictions who have upheld the constitutionality of OVI checkpoints. State v. King,
6th Dist. Wood No. WD-19-013, 2020-Ohio-3065, ¶ 34.
Custodial interrogation
{¶ 17} In Miranda v. Arizona, 384 U.S. 436, 444,
86 S.Ct. 1602,
16 L.Ed.2d 694
(1966), the United States Supreme Court established procedural safeguards for securing
the privilege against self-incrimination guaranteed by the Fifth Amendment to the United
States Constitution. What are now commonly known as Miranda warnings are intended
to protect a suspect from coercive pressure present during a custodial interrogation.
Id. A
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.’ If a suspect provides responses while in custody without having first
been informed of his or her Miranda rights, the responses may not be admitted at trial as
evidence of guilt.
Id. at 479.
{¶ 18} Roadside questioning of a motorist detained pursuant to a routine traffic
stop does not usually constitute a “custodial interrogation” for purposes
of Miranda. State v. Reynolds, 6th Dist. Wood No. WD-21-084, 2022-Ohio-3506, ¶ 49-
52. In this respect, questioning incident to an ordinary traffic stop is quite different from
stationhouse interrogation, which frequently is prolonged.
6.
{¶ 19} The relevant inquiry is whether a reasonable person in the suspect’s
position would have understood himself or herself to be in custody. 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. 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 unless given permission.
But “not free to leave” and “in custody” are distinct concepts. State v. Ferrell, 2017-
Ohio-9341, 91 N.E.3d 766 (11th Dist.) ¶ 30.
{¶ 20} When officers ask questions necessary to secure their own safety or the
safety of the public as opposed to questions designed solely to elicit testimonial evidence
from a suspect, they do not need to provide the warnings required by Miranda. New York
v. Quarles, 467 U.S. 649, 659,
104 S.Ct. 2626,
81 L.Ed.2d 550 (1984). State v. Maxwell,
139 Ohio St.3d 12,
2014-Ohio-1019,
9 N.E.3d 930, ¶ 113.
{¶ 21} In Quarles, the U.S. Supreme Court applied this exception to the Miranda
requirement when an officer cuffed a suspect after a pursuit in a supermarket. The
suspect had an empty holster, and before reading him his rights, the officer asked him
where the gun was.
{¶ 22} In Maxwell, officers executing an arrest warrant found the suspect hiding in
a crawlspace and for their safety, inquired if he had a weapon or had one near him. The
Ohio Supreme Court held that the public safety exception to Miranda did not apply
7.
because the officers had already confirmed that no one else was in the home and Maxwell
was in handcuffs at the time of the inquiry. Id. Nevertheless, the court found that the
admission of his statements in response was harmless error.
Id. at ¶ 122–123.
{¶ 23} A pat-down search, without more, does not transform an investigatory stop
into custody for Miranda purposes. State v. Cross, 2d Dist., Montgomery, No. 25838,
2014-Ohio-1534, ¶ 12-14.
{¶ 24} In this case, the deputy told appellant to “spin around, I’m going to pat you
down for my safety.” The deputy told appellant to put his arms straight back. He
conducted a cursory pat-down while simultaneously asking Whitten “is there anything in
the car I need to know about?” As appellant is making an admission that there is a “little
bit of weed in the door” and having smoked a joint several hours earlier, Bretzloff places
handcuffs on him and tells Whitten that “for now, I’m just going to detain you.” Ten
seconds later, the deputy removes the handcuffs and asks appellant to perform more field
sobriety tests.
{¶ 25} The trial court found that, after consideration of the totality of the
circumstances, Whitten was not in custody at the time he encountered Deputy Bretzloff
and responded to his questions. The court further found that, under the circumstances of
this encounter, a reasonable motorist in appellant’s position at the time would understand
that he was simply being detained and not subject to arrest at the moment of the
encounter.
8.
{¶ 26} Considering the totality of the circumstances here, we conclude Whitten
was not in custody when asked about anything in his car that he should disclose to the
deputy and that no constitutional violation occurred.
{¶ 27} We find that these facts are supported by competent, credible evidence and
support a conclusion by the trial court that the questions posed by the deputy in this
encounter were not part of a custodial interrogation which would trigger rights
established under the Fifth Amendment to the United States Constitution.
{¶ 28} Therefore, we find appellant’s sole assignment of error not well-taken and
denied.
Conclusion
{¶ 29} On consideration whereof, the judgment of the Sylvania Municipal Court is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24(A)(4).
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
9.
State of Ohio/City of Sylvania
v. William Whitten
L-22-1131
Thomas J. Osowik, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
10.
