State v. Dean , 2014 Ohio 448 ( 2014 )

[Cite as State v. Dean, 2014-Ohio-448.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-03-007
: OPINION
- vs - 2/10/2014
:
CONNIE DEAN, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. 12CRI00173
Jess C. Weade, Fayette County Prosecuting Attorney, James B. Roach, 110 East Court
Street, Washington C.H., Ohio 43160, for plaintiff-appellee
Danielle Sollars-Creamer, 4222 Washington-Waterloo Road N.E., Washington C.H., Ohio
43160, for defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Connie Dean, appeals from a decision of the Fayette
County Court of Common Pleas denying her motion to suppress. For the reasons that follow,
we affirm the decision of the trial court.
{¶ 2} On April 25, 2012, officers from the Washington Court House Police
Department and deputies from the Fayette County Sheriff's Office went to the address of
Fayette CA2013-03-007
Glenn Pendergraft. They had been informed that Pendergraft and Dean shared the
residence as boyfriend and girlfriend. The officers possessed warrants for both Pendergraft
and Dean on menacing charges. Upon arriving, the officers requested that Pendergraft and
Dean step outside. The officers informed Pendergraft and Dean that they were under arrest
and placed Pendergraft in handcuffs. Before handcuffs were put on Dean, she asked if she
could retrieve her shoes and also secure the residence. Washington Court House Officer
Jean Boone informed Dean that an officer must accompany her into the residence due to
department policy and concerns for officer safety. Dean agreed to Officer Boone
accompanying her and led Officer Boone into the residence. Once inside, Officer Boone
observed drug paraphernalia, specifically a grinder and pipe, and what Officer Boone
believed to be a marijuana cigarette.
{¶ 3} When Officer Chancey Scott arrived on the scene, he initially remained with a
handcuffed Pendergraft outside. However, after entering the residence, he observed the
drug-related items in plain view and asked Dean if there was "any more." Dean responded
affirmatively. When asked where, Dean motioned towards and then led Officer Scott to a
bedroom. Dean then granted Officer Scott permission to enter the bedroom. When Officer
Scott opened the door to the bedroom, he discovered approximately 20 marijuana plants. At
this point, no one had given Dean or Pendergraft Miranda warnings.
{¶ 4} On November 21, 2012, Dean filed a motion to suppress alleging that the
officers violated both the Fourth Amendment and the Fifth Amendment to the United States
Constitution. As a result, Dean argued that all evidence obtained from her residence by the
officers and statements made by her without the benefit of Miranda warnings should be
suppressed. The trial court overruled Dean's motion to suppress regarding the physical
evidence obtained but sustained the motion concerning statements made by Dean without
the benefit of Miranda warnings after the discovery of the marijuana plants. Following the
-2-
Fayette CA2013-03-007
trial court's partial overruling of Dean's motion to suppress, Dean pleaded no contest to illegal
cultivation of marijuana and possession of drug paraphernalia. The trial court sentenced
Dean to two years of community control with a reserved sentence of 12 months in a
correctional institution if she violates the terms of community control.
{¶ 5} Dean now appeals, asserting as her sole assignment of error the following:
{¶ 6} THE TRIAL COURT ERRED IN NOT GRANTING [DEAN'S] MOTION TO
SUPPRESS EVIDENCE FOUND IN THE BEDROOM AS FRUIT OF THE POISONOUS
TREE FROM AN UNLAWFUL SEARCH.
{¶ 7} On appeal, Dean asserts that an unreasonable warrantless search was
performed by the officers in violation of the Fourth Amendment to the United States
Constitution because no exception to the warrant requirement existed in this case.
Specifically, Dean argues that any consent given by Dean to search the bedroom was not
voluntary because she was not given warnings under Miranda and was unaware that refusing
to consent to the search was an option. Dean thus asserts that the evidence found in the
bedroom should have been suppressed because it was "fruit of the poisonous tree."
{¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question
of law and fact. State v. Preston, 12th Dist. Clermont No. CA2012-05-036, 2012-Ohio-6176,
¶ 15. When considering a motion to suppress, the trial court, as the trier of fact, is in the best
position to weigh the evidence in order to resolve factual questions and evaluate witness
credibility. Id. The appellate court must accept the trial court's findings of fact so long as
they are supported by competent, credible evidence. Id., citing State v. Jimenez, 12th Dist.
Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 8. After accepting the trial court's factual
findings as true, the appellate court must then determine, as a matter of law, and without
deferring to the trial court's conclusions, whether the trial court applied the appropriate legal
standard. Jimenez at ¶ 8, citing State v. Forbes, 12th Dist. Preble No. CA2007-01-001,
-3-
Fayette CA2013-03-007
2007-Ohio-6412, ¶ 29.
{¶ 9} The foundation of Dean's argument regarding whether her consent to search
was voluntary rests in the Fourth Amendment and Article I, Section 14 of the Ohio
Constitution. However, the extension of Dean's argument that the evidence should have
been suppressed due to a failure of the officers to give Dean her Miranda warnings falls
squarely within the Fifth Amendment and Article I, Section 10 of the Ohio Constitution. As
such, we first analyze Dean's argument under the Fourth Amendment and then analyze
Dean's argument under the Fifth Amendment.
{¶ 10} The Fourth Amendment guarantees that "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated * * *." A search is not unreasonable according to the Fourth
Amendment, as well as Article I, Section 14 of the Ohio Constitution, if it is based on a
search warrant that is supported by probable cause. However, an exception to the warrant
requirement exists when a person waives his Fourth Amendment protection by consenting to
a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041 (1973).
{¶ 11} "The Fourth Amendment test for a valid consent to search is that the consent
be voluntary, and '[v]oluntariness is a question of fact to be determined from all the
circumstances.'" Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417 (1996), citing
Schneckloth at 248-249; State v. Oberding, 12th Dist. Warren No. CA2011-09-101, 2012-
Ohio-3047, ¶ 14. A warrantless search based upon a suspect's consent while not in custody
is valid if the "consent was in fact voluntarily given, and not the result of duress or coercion,
express or implied." Schneckloth at 248. This principle has been extended to in-custody
cases. See United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820 (1976) (finding
that custody is only a factor to be considered under the totality of the circumstances); see
also State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816. The
-4-
Fayette CA2013-03-007
state has the burden of proving by clear and convincing evidence that a person's consent
was voluntarily given. Christopher at ¶ 43, citing Florida v. Royer, 460 U.S. 491, 497, 103
S.Ct. 1319 (1983).
{¶ 12} "In Schneckloth, the United States Supreme Court set forth several factors that
a trial court must consider in determining whether a consent was voluntary." Christopher at ¶
45. They include (1) the suspect's custodial status and the length of the initial detention, (2)
whether the consent was given in public or at a police station, (3) the presence of threats,
promises, or coercive police procedures, (4) the words and conduct of the suspect, (5) the
extent and level of the suspect's cooperation with the police, (6) the suspect's awareness of
his right to refuse to consent and his status as a "newcomer to the law," and (7) the suspect's
education and intelligence. Id.{¶ 13} "The 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. Clelland, 83 Ohio App.3d 474, 481 (4th Dist.1992). See
State v. Reyes, 12th Dist. Preble No. CA2004-05-007, 2005-Ohio-2113. "While the test in
consent cases relates to surrounding circumstances of which awareness of the right to refuse
consent is a factor, * * * the absence of Miranda warnings [is] not dispositive of the
voluntariness of the consent issue." (Emphasis sic.) Reyes at ¶ 22.
{¶ 14} In applying the voluntary consent factors set forth in Schneckloth, we find that
(1) Dean was in custody on an unrelated warrant and, although the record is silent as to the
length of the detention, it appeared to be reasonable and not drawn out; (2) Dean gave her
consent at her residence; (3) there were no words or actions on the part of the officers that
could be construed as intimidation, force, or pressure to coerce Dean to respond; (4) Dean's
words and conduct reveal that she was the one who asked whether she could reenter the
home to retrieve her shoes and secure the residence and, even though she knew she would
-5-
Fayette CA2013-03-007
be accompanied by a police officer and that drug paraphernalia was in plain view in the entry
room and a marijuana grow operation was located in one of the bedrooms, she told the
officer "fine" and proceeded to go back into the home; (5) Dean was described by Officer
Scott and other officers as being overly "cooperative" and "willing to talk," as shown by her
responses to questions and her willingness to lead Officer Scott to the bedroom; (6) while
there was no evidence that Dean was aware of her right to refuse consent, it appears from
her outstanding warrant that Dean has had some prior experience with the law; and (7) while
there was no evidence expressly detailing Dean's education and intelligence, it appears that
she possessed adequate intelligence to understand the circumstances as they occurred.
{¶ 15} Considering the weight of the factors, the trial court found Dean's consent
voluntary. Whether consent is voluntary is a question of fact best determined by the trial
court. After reviewing the totality of the circumstances, we agree that Dean's consent was
voluntary. Furthermore, because the absence of Miranda warnings is not dispositive of the
consent issue, there was no violation of Dean's Fourth Amendment rights. Consequently, the
marijuana plants discovered after Dean gave her consent to the officers to enter the
residence and search the bedroom need not be suppressed under the basis of the Fourth
Amendment.
{¶ 16} With respect to her Fifth Amendment claims, Dean argues that the marijuana
plants should have been suppressed because she was not given Miranda warnings. There is
no dispute that Dean was not given Miranda warnings prior to being questioned by Officer
Scott. However, the state argues that Miranda warnings need not have been given to Dean
because she was not subject to custodial interrogation. The state asserts that Dean was not
subject to custodial interrogation because there is no reason Officer Scott should have
known that his question would likely elicit an incriminating response. Furthermore, the state
contends that even if Officer Scott should have known that his question would likely elicit an
-6-
Fayette CA2013-03-007
incriminating response, Miranda warnings were unnecessary because Officer Scott's inquiry
did not relate to menacing, the crime for which Dean was in custody. However, whether
Dean was subject to custodial interrogation rendering Miranda warnings mandatory is not
dispositive of whether the marijuana plants should have been suppressed.
{¶ 17} In United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620 (2004), the United
States Supreme Court had held that "the Miranda rule protects against violations of the Fifth
Amendment's Self-Incrimination Clause, but does not apply to nontestimonial physical
1
evidence." State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 37. The Ohio State
Supreme Court determined that Article I, Section 10 of the Ohio Constitution provides greater
protection to criminal defendants than the Fifth Amendment to the United States Constitution
in Farris. Id. at ¶ 48. In Farris, the Ohio Supreme Court held that the protections afforded by
Article I, Section 10 of the Ohio Constitution against self-incrimination extend to physical
1. {¶ a} In Patane, defendant was suspected of violating a restraining order and possibly being in possession
of a firearm. Id. at 635. After officers arrested defendant for a violation of a restraining order, an officer began to
advise defendant of his Miranda warnings, but was interrupted and defendant was never actually given his
Miranda warnings. Id. Subsequently, the officer asked defendant about a handgun. Id. Defendant told the
officer that the handgun was in his bedroom and gave the officer permission to retrieve the handgun. Id. The
United States Supreme Court stated:
{¶ b} [J]ust as the Self-Incrimination Clause primarily focuses on the criminal
trial, so too does the Miranda rule. The Miranda rule is not a code of police
conduct, and police do not violate the Constitution (or even the Miranda rule,
for that matter) by mere failures to warn. For this reason, the exclusionary rule
articulated in such cases as Wong Sun [v. United States (1963), 371 U.S. 471,
83 S.Ct. 407, 9 L.Ed.2d 441], which established the 'fruit of the poisonous tree'
doctrine does not apply.
{¶ c} Id. at 637.
{¶ d} Furthermore, the United States Supreme Court stated:
{¶ e} It follows that police do not violate a suspect's constitutional rights (or
the Miranda rule) by negligent or even deliberate failures to provide the
suspect with the full panoply of warnings prescribed by Miranda. Potential
violations occur, if at all, only upon the admission of unwarned statements into
evidence at trial. And, at that point, "[t]he exclusion of unwarned statements is
a complete and sufficient remedy" for any perceived Miranda violation.
Chavez [v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994 (2003)].
{¶ f} Id. at 641-642.
-7-
Fayette CA2013-03-007
evidence seized as a result of pre-Miranda statements. Id. However, "[o]nly evidence
obtained as the direct result of statements made in custody without the benefit of a Miranda
warning should be excluded." Id.
{¶ 18} In Farris, after being pulled over, defendant was placed in the front seat of the
cruiser. Id. at ¶ 3. The officer told defendant that he had smelled marijuana in the vehicle
and asked about the smell of marijuana without giving defendant Miranda warnings or asking
for consent to search the car. Id. Defendant stated that his housemates had been smoking.
Id. In response, the officer told defendant that he was going to search the car. Id. Then, the
officer specifically asked defendant whether there were any drugs or drug devices in the car.
Id. Defendant responded that there was a "bowl" in a bag located in the trunk. Id. The Ohio
Supreme Court held that the discovery of the bowl was a direct result of a Miranda violation
and thus should have been suppressed. Id. at ¶ 49.
{¶ 19} This case presents a situation markedly different from that in Farris. In Farris a
warrantless, nonconsensual search was conducted based upon a pre-Miranda testimonial
statement that there were drugs in the vehicle's trunk given by an "in custody" defendant.
Because the search of the vehicle was nonconsensual, the exception of voluntary consent to
the general Fourth Amendment prohibition against unreasonable searches and seizures did
not apply. In contrast, as discussed above, Dean voluntarily gave her consent to Officer
Scott to search the bedroom. Prior to giving her consent, and upon seeing drug paraphilia in
2
plain sight, the officer asked Dean whether there was "any more." Dean then led the
officer to the bedroom where the officer asked, and was granted, permission to enter. Dean
thus consented to the search of the bedroom where the marijuana plants were found. Unlike
2. On appeal, Dean does not argue that any statements she made should have been suppressed. Rather, Dean
argues that evidence found in the bedroom should have been suppressed. Because we find the marijuana
plants found in the bedroom admissible due to Dean's voluntary consent to search, any error in the admission of
Dean's statements is harmless. Crim.R. 52(A).
-8-
Fayette CA2013-03-007
Farris, Dean’s consent to search is nontestimonial and is, therefore, not subject to Miranda.
{¶ 20} Furthermore, in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1985), the
United States Supreme Court held that an arrestee’s voluntary pre-Miranda incriminating
statements did not invalidate subsequent incriminating statements made after the arrestee
waived his Miranda rights. In doing so the Supreme Court observed, "This Court has never
held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state
compulsion or compromises the voluntariness of a subsequent informed waiver." Elstad at
312. Although Elstad dealt with the efficacy of a Miranda waiver subsequent to a prior
Miranda violation, there is no reason why the same logic ought not apply here, to a Fourth
Amendment waiver subsequent to a prior alleged Miranda violation.
{¶ 21} Though Dean claims that her consent to search was not voluntary and that her
unwarned responses to Officer Scott’s questions violated Miranda, she does not claim that
her responses to Officer Scott’s questions were not voluntary. On the contrary, Dean all but
admits in her brief that her responses were voluntary ("the questioning was not coercive and
[Dean] did not seem to be under duress"). The record reflects that, though Dean was not
advised of her Miranda rights, her statements and consent were nonetheless, voluntary.
Thus, Dean’s voluntary consent to search, consistent with Elstad and Farris, severed the
connection between any alleged Miranda violation and the subsequent search and seizure of
the marijuana plants. Consequently, the evidence was not obtained as a direct result of any
statements made in custody without regard to whether the statements were the product of a
Miranda violation.
{¶ 22} Accordingly, the trial court did not err in denying Dean's motion to suppress
evidence found in the bedroom as fruit of the poisonous tree from an unlawful search.
Dean's sole assignment of error is overruled.
{¶ 23} Judgment affirmed.
-9-
Fayette CA2013-03-007
M. POWELL, J., concurs.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{¶ 25} In making its determination, the majority attempts to distinguish the Ohio
Supreme Court case of Farris from the law applicable herein. In Farris, the Ohio Supreme
Court extended the protection against self-incrimination found under Article 1, Section 10 of
the Ohio Constitution to physical evidence seized as a direct result of statements made by
criminal defendants prior to receiving Miranda warnings. We are obligated to follow the
precedent set forth by the Ohio Supreme Court in Farris.
{¶ 26} The questioning by Officer Scott directly led to the discovery of the marijuana
plants. Without Officer Scott's questions as to whether there was "any more?" and "where?,"
Dean would not have directed him to the bedroom. Due to the short sequential chain of
events, the marijuana plants were discovered as a direct result of statements made by Dean
without the benefit of Miranda with or without Dean's subsequent consent. A voluntary
consent to search does not cure the prejudice directly flowing from an immediately-preceding
Miranda violation.
{¶ 27} Furthermore, with this short sequential chain of events, I fail to see how Elstad
is analogous to this case. Elstad applies to situations in which a Miranda violation occurs
and a subsequent Miranda waiver is obtained. The issue in this case does not involve a
subsequent Miranda waiver that might sever the link between any Miranda violation and the
statements leading to the discovery of the marijuana plants. In any event, in order for a
subsequent Miranda waiver to be valid, the waiver cannot be a part of "a single, unwarned
sequence of questioning." Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004), fn. 4;
- 10 -
Fayette CA2013-03-007
Farris at ¶ 21. Here, Officer Scott's questions as to whether there was "any more?" and
"where?," constituted a single sequence of questioning leading directly to the request for
consent to search.
{¶ 28} However, I agree with the conclusion of the majority that the marijuana plants
discovered in the bedroom need not have been suppressed. Contrary to the direction of the
majority opinion, I agree with, and would expound upon, the trial court's rationale. As the
majority correctly points out, the appellate court must accept the trial court's findings of fact
so long as they are supported by competent, credible evidence. Jimenez, 12th Dist. Warren
No. CA2011-09-103, 2012-Ohio-3318, at ¶ 8. The testimony was adequate for the trial court
to make findings, and as such, must be accepted as true for purposes of our analysis. See
State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, ¶ 26.
{¶ 29} The trial court specifically did not suppress statements made by Dean prior to
the discovery of the marijuana plants indicating that it did not find Dean to be subject to
custodial interrogation at that point in time. The heart of the inquiry as to whether or not a
suspect has been interrogated such that Miranda warnings are required focuses on whether
or not the suspect has been the subject of police coercion and whether the individual has
been compelled to speak by virtue of pressures from that coercion. State v. Tucker, 81 Ohio
St.3d 431, 437 (1998). "In determining whether an individual was in custody, the court must
examine the totality of the circumstances surrounding the interrogation." Durham, 12th Dist.
Warren No. CA2013-03-023, 2013-Ohio-4764, at ¶ 17, citing State v. Coleman, 12th Dist.
Butler No. CA2001-10-241, 2002-Ohio-2068, ¶ 23. Thus, it is necessary to determine the
nature of the interrogation as well as the nature of custody in place. Both contribute to the
totality of the circumstances that may result in an individual's response or the need to give
Miranda warnings. A planned or designed questioning of a suspect is very different than a
spur of the moment or spontaneous question produced by the unexpected observation of
- 11 -
Fayette CA2013-03-007
contraband. See Durham at ¶ 24 ("routine on-the-scene questioning does not constitute
'custodial interrogation' requiring the recitation of Miranda warnings").
{¶ 30} Miranda warnings may be given as a safeguard to protect an individual's right to
remain silent; however, Miranda warnings are not always necessary nor are they
independent of the surrounding circumstances. Miranda warnings are not designed to
protect a suspect from making statements, but rather are designed to protect a suspect from
making statements involuntarily. Questioning within the confinement of an interview room in
a police station is not automatically custodial interrogation. See State v. Biros, 78 Ohio St.3d
426, 440-442 (1997); State v. Watts, 12th Dist. Butler No. CA2005-08-364, 2007-Ohio-221.
Similarly, questioning of an inmate while in the custody and care of the state is also not
automatically custodial interrogation requiring Miranda warnings. See State v. Porter, 178
Ohio App.3d 304, 2008-Ohio-4627, ¶ 16 (2d Dist.); State v. Simpson, 10th Dist. Franklin No.
01AP-757, 2002-Ohio-3717, ¶ 34-35. One must look at the circumstances to determine what
restrictions of liberty or restraint of freedom has taken place such that the circumstances are
coercive and pressures flowing therefrom produced responses that were involuntary.
{¶ 31} In general, if a reasonable person in an individual's position would have
believed that he or she was not free to leave given the totality of the circumstances, then it
will be determined that the individual is in custody and any questioning is "custodial
interrogation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138 (1984); State v.
Gumm, 73 Ohio St.3d 413, 429 (1995). However, the restraint of freedom or "freedom to
leave" analysis becomes inapplicable when the individual being questioned is already in
custody for other reasons. State v. Bradley, 4th Dist. Scioto No. 1583, 1987 WL 17303, *8
(Sept. 22, 1987), citing Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978); United States v.
Conley, 779 F.2d 970 (4th Cir.1985); United States v. Ozuna, 170 F.3d 654 (6th Cir.1999). In
instances where the individual is already in custody, courts have examined whether or not the
- 12 -
Fayette CA2013-03-007
surroundings and circumstances resulted in additional restrictions on the freedom of
movement or restraint of freedom. The context of this analysis is often when the individual is
already a prisoner or in custody of the state; however, the same rationale is applicable to the
facts before us. See Simpson at ¶ 34-35; State v. Peeples, 94 Ohio App.3d 34, 41-43 (4th
Dist.1994); State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999 WL 812249, *4 (Oct. 8,
1999).3
{¶ 32} There is a vast difference between statements which are coerced by methods
employed or intended to break a suspect's will and overcome the voluntariness of the
suspect's desire not to respond and those incriminating statements which are freely given in
response to an unwarned but noncoercive question. Peeples at 43. The officer's reaction to
unexpectedly seeing drug paraphernalia was a reasonable and natural response, "is there
more?"4 We have recognized that general fact-gathering is not necessarily a part of custodial
interrogation, saying, "'[g]eneral on-the-scene questioning as to facts surrounding a crime or
other general questioning of citizens in the fact-finding process ordinarily does not fall within
the ambit of custodial interrogation.'" Durham, 12th Dist. Warren No. CA2013-03-023, 2013-
Ohio-4764, at ¶ 23, quoting State v. Rivera-Carrillo, 12th Dist. Butler No. CA2001-03-054,
2002 WL 371950, *3 (Mar. 11, 2002). Neither immediately before nor after this question,
were there any words or actions that could in any way be construed as being additional
intimidation, force, or pressure upon Dean to respond. The police were cooperative with
Dean and she in turn was voluntarily cooperative with them.
{¶ 33} The initial arrest upon the menacing warrant was continuing in progress and did
3. While Dean was informed she was being placed under arrest outside her trailer and technically in custody,
she certainly had the extended, unrestrained freedom to move about inside her trailer. Dean was not formally
placed under arrest in a traditional sense.
4. Such observation would require a minimal, initial investigation which may reasonably include "what is this?";
"is this what I think it is?"; "is there more?" The officer did not attempt to obtain Dean's admission that the minor
drug paraphernalia was hers.
- 13 -
Fayette CA2013-03-007
not maintain restraint over Dean but actually gave Dean additional freedom of movement.
Upon her request and with her consent, she was accompanied back inside her residence.5
She was not handcuffed or in any way physically or psychologically pressured. Other than
the initial custody for the menacing warrant, there was nothing restrictive or coercive in the
circumstances subsequent to being served with the warrant.
{¶ 34} The officer's simple question "is there more?" was also not coercive, nor was
there any evidence such question was employed to gain an incriminating response. After
hearing the testimony, the trial court found, and I agree, there was nothing to suggest the
officer was attempting to elicit an incriminating response. The officer may well have been
hoping to put an end to his initial investigation of the minor contraband so that Dean could
retrieve her shoes, leave the trailer, and the officer could eventually return to his daily duties.
There are no facts to support any type of coercion or psychological pressure, which produced
a custodial interrogation. Within these unusually unique and narrow facts, a "custodial
interrogation" did not take place as determined by the trial court.
{¶ 35} Custodial interrogations by their very nature produce compelling pressures
which work to undermine an individual's will to resist and compel him or her to speak where
they otherwise would not do so freely. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Miranda
conceptualized the circumstances "'must reflect a measure of compulsion above and beyond
that inherent in custody itself' before it will be considered a custodial interrogation." Durham,
12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, at ¶ 16, quoting State v. Brumley,
12th Dist. Butler No. CA2004-05-114, 2005-Ohio-5768, ¶ 10. Serious questioning within the
required confinement of an interview room at a police station is very different from the
situation at hand, wherein Dean was walking about in her own home (looking for shoes) and
5. The majority opinion determines that before reentering the residence, Dean knew the officer would observe
the minor marijuana paraphernalia. I was unable to locate support for such a finding in the record.
- 14 -
Fayette CA2013-03-007
confronted with minor drug paraphernalia in plain view which in all likelihood could only result
in a citation. The custodial interrogation protections associated with Miranda are not
applicable. Thus, there was no Fifth Amendment claim arising from a Miranda violation
immediately preceding Dean's voluntary consent to the search. Consequently, the trial court
did not err in failing to suppress statements made by Dean or the marijuana plants
discovered in the bedroom and I would adopt the trial court's rationale.
- 15 -