State v. Benson , 2019 Ohio 3234 ( 2019 )

[Cite as State v. Benson, 2019-Ohio-3234.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-A-0054
- vs - :
LYNDEE A. BENSON, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018-
CR-0094.
Judgment: Reversed and remanded.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Marie Lane, Ashtabula County Public Defender, Inc., 4817 State Road, Suite 202,
Ashtabula, OH 44004 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Lyndee A. Benson, appeals her conviction for aggravated
possession of drugs following her no contest plea. Ms. Benson argues the Ashtabula
County Court of Common Pleas erred in denying her motion to suppress. We reverse
and remand, having determined from the totality of the circumstances that once Ms.
Benson admitted to having drugs in her purse and was removed from the vehicle, she
was, as any reasonable person would believe, in custody. Thus, her statements following
her initial admission to the police should have been suppressed. The trial court made no
factual findings as to the physical evidence from the search of Ms. Benson’s purse that
occurred at the same time she was removed from the vehicle. Thus, the trial court has
failed to provide us with a sufficient basis upon which to determine whether its decision
to not suppress the physical evidence was supported by competent, credible evidence.
We remand on this limited basis for the trial court to make findings of fact and conclusions
of law based on the evidence adduced at the suppression hearing as to whether the drugs
seized were the result of an unlawful search.
Substantive and Procedural History
{¶2} Ms. Benson’s conviction stems from a traffic stop of a targeted vehicle in
which she was a passenger. Upon the officer’s questioning, she admitted
methamphetamine was in her purse. A search of her purse discovered the drugs.
{¶3} Ms. Benson was indicted and charged with aggravated trafficking in drugs,
a felony of the fourth degree, and aggravated possession of drugs, a felony of the fifth
degree. She subsequently filed a motion to suppress, arguing her statements and the
substances found were inadmissible because she was subjected to a custodial
interrogation without any Miranda warnings.
The Suppression Hearing
{¶4} Ashtabula County Sheriff’s Deputy Scott Daniels (“Officer Daniels”) was the
sole witness at the hearing. He testified that he was on a special assignment as a “chase
car.” This meant he was assigned to a targeted drug residence and instructed to follow
any vehicle leaving the residence until the vehicle either committed a traffic violation or
led to other investigative sources.
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{¶5} An individual Officer Daniels was familiar with, Ryan Dougherty, was driving
the vehicle. Mr. Dougherty had been observed dropping off a female on West 38th Street
and circling the block while the female went into a residence. Officer Daniels was
instructed to follow the truck once the female returned to the vehicle.
{¶6} Once the truck left the area with the female inside, Officer Daniels followed
the vehicle for approximately one mile before observing Mr. Dougherty fail to signal while
changing lanes. Officer Daniels initiated a traffic stop, and several other cruisers
appeared on the scene, pulling up behind Mr. Dougherty’s vehicle. These cruisers, at
least one unmarked and two with K-9 officers, were involved in the chase car operation
and on standby in the area. Two of these officers, Sergeant Trader, an interdiction drug
officer with the Ohio State Highway Patrol, and Officer Hildebrand, an interdiction drug
officer with the Ashtabula City Police, were the first to approach the vehicle. The K-9
officers, while available, were never deployed.
{¶7} Officer Daniels then had a conversation with Ms. Benson, asking her “* * *
where she was coming from. If she knew the driver. I asked her if there was anything
illegal I should know about inside the vehicle or on her person.” She responded that
“There wasn’t.” He told her he had observed her moving around the vehicle before the
stop and that it was at that point, Officer Daniels testified, she “started breathing hard”
and became visibly nervous, failing to make eye contact.
The Body Cam Video
{¶8} The video from the body cam, worn by Officer Daniels and submitted into
evidence, was played during the hearing. The video is 14 minutes and 34 seconds in
length and begins without audio for approximately one minute. Ms. Benson is seen sitting
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in the front passenger seat. She gives her license to Officer Daniels. Only Officer Daniel’s
hands, which are holding her license, are visible. Ms. Benson’s face is obscured by the
officer until he reaches toward the body cam and turns on the audio, shifting his position.
{¶9} After audio recording begins, Officer Daniels can be heard telling Ms.
Benson, “I can already see how nervous you are getting. You got something on you.” At
that point, Ms. Benson states, “I do.” The officers can be heard asking Ms. Benson
“where’s it at,” and telling her to “tell the truth,” and “be honest.” It is not long before Ms.
Benson admits to having something in her purse. She is told to step out of the vehicle
and leave the purse on the seat.
{¶10} At this point, Ms. Benson is standing outside the vehicle. Sergeant Trader
opens the driver’s side of the vehicle and retrieves her purse. The other two officers are
surrounding Ms. Benson, and multiple police cruisers are behind the vehicle. She admits
to having “speed” in her purse, no needles, and “nothing else.” An officer asks her where
she got it and then tells her, “this is where your honesty is really going to help me out.”
{¶11} Ms. Benson tells the officers she “got it from a friend to give to a friend” and
was doing a favor for a “friend.” The officers inquire as to her driver, Mr. Dougherty, who
she disclaimed knowing, stating he was simply “a ride” and had “no idea what she was
doing.” The officers keep questioning who the friend was and how she knew where to
go, urging her “to be honest,” and stating, “this is the time to be honest, think about what
we are asking you.” Ms. Benson does not reply, appears visibly nervous and chokes
back tears.
{¶12} An officer then asks her how often she goes over “there” to do friends a
“favor.” Eventually, the officer’s questioning elicits an admission that the drugs belonged
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to the daughter of Ms. Benson’s aunt [Ms. Benson’s cousin], who told her to drop the
drugs off to an individual who would meet her in a nearby park. The unknown individual
would approach her, and no money would be exchanged.
{¶13} The officers interject statements with their questioning, such as: “you can
tell us who it was from,” “we won’t go run and tell them, that’s not what this is about,” and
“the best thing you can do is be honest, we already know a lot of what we are going to
find.” When asked about her personal drug use, she admits she smokes or did smoke
marijuana.
{¶14} Sargent Trader interrupts the questioning and again asks Ms. Benson how
she knows Mr. Dougherty. She repeats that Mr. Dougherty is simply giving her a ride.
Sergeant Trader informs Officer Daniels that one of them (Ms. Benson or Mr. Dougherty)
is lying since their stories are not the same. He continues to ask her how she knows Mr.
Dougherty and through which mutual acquaintances. Officer Daniels interjects with the
name, “Donny,” and the officers continue to interrogate her as to whether Mr. Dougherty
is friends with Donny, and “Donny who.”
{¶15} Ms. Benson raises her hands to her face and says, “I can’t even…I can’t
have both of you….” Officer Daniels says, “Okay, we will just let him talk to you,” pointing
to Sergeant Trader. After several more questions, Sergeant Trader walks away, saying
within earshot of Ms. Benson, “does she want to go to jail?” Officer Daniels asks her
again, “who did she get this methamphetamine from?”
{¶16} After several more questions as to whom she was meeting, Officer
Hildeband asks her if “she would be willing to go back there to buy more ‘ice’ for the
police?” Ms. Benson replies this is her aunt’s house, so she does not know. He then
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asks her how much methamphetamine was at the house. She says, she “doesn’t know,”
and that “she [her aunt] had what was left and put it on a scale and handed it to her” and
said, “when I got kicked out of my ex’s house, she let me stay in Ohio Village and she just
said I owed her a favor.” Officer Daniels then asks, “What do you guys want to do with
her?”
{¶17} The officers discuss taking her to the station and charging her with
possession. They then again question Ms. Benson about whom she was meeting and
where. Dispatch can be heard over the questioning, “For clarity, they came out of a
different residence than our target residence, just so you guys know.” Officer Daniels
continues questioning her as to whom “she was meeting; what she was supposed to do,
and how it was that guy even now knows who she was even meeting?” She describes
what her aunt instructed her to do. Then an officer states, “And now you are getting
charged with possession of drugs * * * and trafficking * * *.”
{¶18} As two of the officers walk away, one asks Ms. Benson if she “knows where
her aunt is getting “it” [the drugs] from. The officer then shows the drugs to a woman in
the front seat of one of the cruisers, telling her it was “meth, crystal, it comes out of
Mexico.” The video ends with Ms. Benson with her head in her hands and the officers
standing around the scene discussing what they should do next.
{¶19} Ms. Benson was never placed under arrest, was never handcuffed, and was
never given Miranda warnings.
{¶20} The trial court denied Ms. Benson’s motion to suppress all evidence finding
that on review of the testimony and evidence presented, “it does not appear that this was
a custodial interrogation necessitating Miranda warnings.”
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{¶21} Ms. Benson entered a written plea of no contest to aggravated possession
of drugs, in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree. The
aggravated trafficking in drugs count was dismissed. The court sentenced Ms. Benson to
two years of community control, with conditions.
{¶22} Ms. Benson now timely appeals, raising the following assignment of error:
{¶23} “The trial court erred when overruling Appellant’s motion to suppress.”
Motion to Suppress Standard of Review
{¶24} We give due deference to the trial court’s assignment of weight and
inferences drawn from the evidence when ruling on a motion to suppress on appeal.
(Citations omitted.) State v. Starcovic, 11th Dist. Portage No. 2007-P-0081, 2008-Ohio-
2758, ¶10, citing State v. Wilson, 11th Dist. Ashtabula No. 2007-A-0044, 2007-Ohio-6557,
¶11.
{¶25} Thus, appellate review of a motion to suppress presents a mixed question
of law and fact. (Citations omitted.) Id. at ¶11, citing Wilson at ¶12. “The appellate court
must accept the trial court’s factual findings, provided they are supported by competent,
credible evidence. * * * Thereafter, the appellate court must independently determine
whether those factual findings meet the requisite legal standard. Id., citing Wilson at ¶12,
citing State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶8. We review the trial
court’s application of the law de novo. Id., citing State v. Zaken, 11th Dist. Ashtabula No.
2006-A-0036, 2007-Ohio-2306, ¶14.
Custodial Interrogations
{¶26} Ms. Benson raises a single issue in her assignment of error, contending that
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the trial court erred in ruling she was not subjected to a custodial interrogation that
required Miranda warnings.
{¶27} “In Miranda [v. Arizona, 384 U.S. 436], at 444, * * * 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. The
Fourteenth Amendment to the United States Constitution makes the privilege against self-
incrimination applicable to a witness in a state proceeding.” Cleveland v. Oles, 152 Ohio
St.3d 1, 2017-Ohio-5834, ¶8, citing Malloy v. Hogan, 378 U.S. 1, 3 (1964). “A similar
privilege is recognized in Article I, Section 10 of the Ohio Constitution.” Id.
{¶28} “What are now commonly known as Miranda warnings are intended to
protect a suspect from the coercive pressure present during a custodial interrogation.” Id.
at ¶9, citing Miranda at 469. “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.’” Id., quoting Miranda at 444. “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.,
quoting Miranda at 479.
{¶29} “Any statement, question or remark which is ‘reasonably likely to elicit an
incriminating response’ is an interrogation.” State v. Knuckles, 65 Ohio St. 3d 494, 495
(1992), citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The questions asked of
Ms. Benson were designed to elicit inculpatory responses.
{¶30} Ms. Benson was a suspect from the outset. Officer Daniels was instructed
to follow Mr. Dougherty’s truck once the female he dropped off at a target drug house
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returned to the vehicle. Officer Daniels had suspicions based on facts and circumstances
that occurred prior to the stop and which laid a legitimate foundation for the initial, basic
questions posed to Ms. Benson while she was in the passenger seat of the vehicle. The
same cannot be said of the questions posed after she was removed from the vehicle.
{¶31} While “[p]olice officers are not responsible for unforeseeable incriminating
responses,” the initial questions were designed and reasonably likely to elicit incriminating
statements. Ms. Benson was a target since she was seen in the vicinity of a known drug
house and was followed by the officers until they had probable cause to stop the vehicle
for a traffic law violation. State v. Strozier, 172 Ohio App. 3d 780, 2007-Ohio-4575, ¶20
(2d Dist).
{¶32} After Ms. Benson made her initial incriminating statements, she was
removed from the vehicle and her pursed immediately searched. At this point from the
video, it appears the only legitimate basis for this search was incident to arrest. And it is
at this point we determine the interrogation became a custodial interrogation.
When does questioning after a traffic stop become a custodial interrogation?
{¶33} A roadside motorist detained for questioning pursuant to a routine traffic
stop does not usually constitute a custodial interrogation requiring a driver [or passenger]
to be read his or her Miranda warnings. State v. Ferrell, 11th Dist. Portage No. 2017-P-
0018, 2017-Ohio-9341, ¶28, citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984).
{¶34} The Supreme Court of Ohio recently reviewed the development of the law
in the area of traffic stops and Miranda warnings in the Oles case, supra. Writing for the
majority, Chief Justice O’Connor began the analysis with two critical observations
underpinning the reasonable person in the suspect’s position test from the Supreme Court
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of the United States’ decision in Berkemer, which were then applied in State v. Farris,
109 Ohio St. 3d 519, 2006-Ohio-3255.
{¶35} The first observation was that “although a traffic stop ‘significantly curtails
the “freedom of action” of the driver and passengers, if any, of the detained vehicle,’ the
stop alone does not render a suspect “in custody” and therefore does not trigger the need
for Miranda warnings.’ * * * ‘[I]f a motorist who has been detained pursuant to a traffic
stop thereafter is subjected to treatment that renders him “in custody” for practical
purposes, he will be entitled to the full panoply of protections prescribed by Miranda.’”
Oles at ¶11, quoting Berkemer at 440.
{¶36} Secondly, it is the “noncoercive aspects of a traffic stop that ‘mitigate the
danger that a person questioned will be induced ‘to speak where he would not otherwise
do so freely.’” Id. at ¶12, quoting Berkemer at 437. Using examples from Berkemer, the
court contrasted a station house interrogation to a traffic stop, noting the latter is generally
temporary with only a short period of questioning, which may result in a citation before
the driver is free to go, and generally a traffic stop is less “‘police dominated’ than
interrogations that require Miranda warnings because the law-enforcement officer's ‘aura
of authority’ over the driver is offset by the public nature of the stop and the typical one-
to-one ratio of officer to motorist.” Id. at ¶12, citing Berkemer at 437-439.
{¶37} Thus, the Berkemer court held that “the only relevant inquiry is how a
reasonable person in the suspect's position would have understood his or her situation.”
Id. at ¶13, citing Berkemer at 442.
{¶38} There is no bright-line rule to employ in determining whether Miranda
warnings are required. Instead, a fact-specific inquiry must be applied to the facts in each
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case to assess whether an individual during a traffic stop is “in custody” such that Miranda
warnings are required. Id. at ¶21-23.
{¶39} The Second District has consistently considered ten factors “* * * to assess
how a reasonable person in the defendant’s situation would understand his situation:
{¶40} “1. What was the location where the questioning took place—i.e., was the
defendant comfortable and in a place a person would normally feel free to leave? For
example, the defendant might be at home as opposed to being in the more restrictive
environment of a police station;
{¶41} “2. Was the defendant a suspect at the time the interview began (bearing in
mind that Miranda warnings are not required simply because the investigation has
focused);
{¶42} “3. Was the defendant’s freedom to leave restricted in any way;
{¶43} “4. Was the defendant handcuffed or told he was under arrest;
{¶44} “5. Were threats made during the interrogation;
{¶45} “6. Was the defendant physically intimidated during the interrogation;
{¶46} “7. Did the police verbally dominate the interrogation;
{¶47} “8. What was the defendant’s purpose for being at the place where
questioning took place? For example, defendant might be at a hospital for treatment
instead of being brought to the location for questioning;
{¶48} “9. Were neutral parties present at any point during the questioning;
{¶49} “10. Did police take any action to overpower, trick or coerce the defendant
into making a statement.” State v. McCrary, 2d Dist. Montgomery No. 18885, 2022 WL
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125760 (Feb.1, 2002), 2-3, citing State v. Estepp, 2d Dist. No. Montgomery App. 16279,
1997 WL 736501 (Nov. 26, 1997), 4.
The Trial Court’s Findings
{¶50} In this case, the trial court found the following facts determinative of a non-
custodial interrogation:
{¶51} “Defendant exits the vehicle at the direction of the officers. Five uniformed
officers including Deputy Daniels are visible on the body camera footage. The officers
continue to talk and ask the Defendant questions for approximately twelve minutes.
However, in the first two minutes of speaking with the Defendant, she provided her
identification and acknowledged she has an illegal substance. At no time on the video
was the Defendant advised of any Miranda rights warnings. During this time, the
Defendant is standing by the vehicle. She is not handcuffed, placed in a police cruiser,
or constrained in any way. She was not patted down. An officer tells her, ‘this is your
time to be honest with us.’ The Defendant voluntarily answers questions regarding the
alleged drugs. The Defendant was not arrested.”
{¶52} While the trial court correctly cited the Berkemer standard and considered
cases addressing the Fifth Amendment right under the United States Constitution, it failed
to consider the test set out in Oles and to consider the import of Article I, Section 10 of
the Ohio Constitution that provides greater protections than the Fifth Amendment
regarding the admissibility of physical evidence seized as the result of statements made
without the benefit of Miranda warnings. In fact, the trial court made no findings regarding
the evidence seized.
Applying the Oles Test to the Facts of This Case
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{¶53} When we apply the law to the facts presented, we find no reasonable
person, who upon questioning admits to possessing an illegal substance, is then asked
to step from the vehicle blocked in the rear by three police cruisers and is surrounded by
five officers, with three of those officers interrogating her regarding her possession of
drugs and what she intended to do with the drugs, would believe herself not to be “in
custody.” Her purse is not within reach; she is not asked whether she will voluntarily
consent to a search of her purse; a baggie is taken from inside her purse; and the
interrogation continues without Miranda warnings.
{¶54} These facts present a situation that “exerts upon a detained person
pressures that sufficiently impair his free exercise of his privilege against self-
incrimination to require that [she] be warned of [her] constitutional rights.” Ferrell at ¶31,
quoting Ole at ¶30-31.
{¶55} “It is not a detainee’s freedom of movement that makes a traffic stop
constitutionally unoffensive. It is, instead, the relative brevity, limited scope, and non-
threatening character of the police intrusion.” Ferrell at ¶28, quoting State v. Wineberg,
2d Dist. Clark No. 97-CA-58, 1998 WL 409021, 5 (Mar. 27, 1998), citing Berkemer. See
Ferrell at ¶37 (where we reversed the trial court’s denial of appellant’s motion to suppress,
holding that under the totality of the circumstances, the appellant was “in custody” at the
time he admitted the substances in his sock were “dope and heroin” and that he had a
“rig” in his backpack). See also Farris at ¶4 (where the Supreme Court of Ohio found the
appellant’s incriminating statements inadmissible because he was administered Miranda
warnings after admitting he had marijuana in the trunk of his car but was not told that his
previous admissions could not be used against him. The officer then asked the appellant
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the same questions and obtained the same responses regarding the location of the drug
paraphernalia).
{¶56} The questions from the outset of the stop were investigative as to Ms.
Benson’s crime of possession and possession for sale. Once Ms. Benson admitted to
having “speed,” and the police removed her from the vehicle, she was for all intents and
purposes “in custody.”
{¶57} She was then subjected to extended questioning by multiple officers as to
the possession of and her intent to deliver the drugs. As previously noted, from the video
it appears the only legitimate basis for this interrogation was incident to arrest. In fact,
the officers discussed whether to further detain Ms. Benson, but until that determination
was made, Ms. Benson was clearly not free to leave. Miranda advisements should have
preceded any questioning after Ms. Benson was removed from the vehicle.
{¶58} Ms. Benson’s case is quite like another drug interdiction case in the Second
District, State v. Jirac, 2d Dist. Montgomery No. 15-CR-756, 2016-Ohio-8187, which
affirmed the lower court’s grant of a suppression motion after a thorough consideration of
the ten factors. Law enforcement had intercepted nine kilos of a Schedule I drug in
Lexington, Kentucky and then decided to allow the drugs to continue to its destination at
the Centerville, Ohio UPS office in order to identify the recipient. Id. at ¶3.
{¶59} A team was assembled in and around the UPS store. Id. Mr. Jirac arrived,
collected the package, and was intercepted before he was able to leave the store. Id. He
was told why he was being detained and was taken out the back door for questioning
designed to obtain information about the supply chain in a more private setting. Id.
Without prior Miranda warnings and with comments from the interrogating officer that
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cooperation would be helpful to Mr. Jirac’s predicament, Mr. Jirac agreed to cooperate
and gave details of the operation. Id. Mr. Jirac was Mirand-ized later at the station and
once again made inculpatory statements. Id.
{¶60} The Second District affirmed the trial court’s decision to suppress the
evidence considering the totality of the circumstances and the objective test of whether a
reasonable person, under similar circumstances, would have understood that he was in
custody at the time of the interrogation. Id. at ¶12. Both the trial court and the reviewing
court relied on evidence in the record to find that “by show of authority, Jirac was detained
from leaving the UPS Store, was told that the package contained illegal substances, was
directed to the back parking lot so that he could not flee, and was then questioned about
the drugs in the presence of multiple officers.” Id.
{¶61} In this case, as the body cam footage demonstrated, after Ms. Benson was
removed from the vehicle, she was subjected to police questioning that could only elicit
self-incriminating statements. There were no questions regarding the reason for the
traffic stop. The questions were “designed to pressure a suspect to confess to illegal
conduct.” Oles at ¶28. The officers were clearly using open-ended questions about the
drugs in Ms. Benson’s possession, her supplier, and what she intended to do with the
drugs. Indeed, this questioning elicited statements that formed the basis for not just an
aggravated possession count but an aggravated trafficking in drugs count as well.
{¶62} Further, they were exerting coercive pressure by telling her “to be honest,”
and that they would “not run and tell the person” from whom she was getting the drugs.
Not once did the officers advise her about her legal rights to silence and counsel.
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{¶63} Ms. Benson was physically in between an open vehicle door and two or
more officers, who surrounded her during the interrogation. The truck, in which she was
a passenger, was blocked in by multiple patrol cars. There were no neutral persons
present. The officers verbally dominated the interrogation. At one point she throws up
her hands at the barrage of questions from two officers at the same time and states, “I
can’t even…I can’t have both of you….” At which point, Officer Daniels instructs Sargent
Trader to solely pose questions to Ms. Benson.
{¶64} By any objective measure, the questioning by the police in this case was
“systematic, exhaustive, and managed with psychological skill.” Farris at ¶29. “These
circumstances must be seen as challenging the comprehensibility and efficacy of the
Miranda warnings to the point that a reasonable person in the suspect’s shoes would not
have understood them to convey a message that she retained a choice about continuing
to talk.” (Emphasis added.) (Citation omitted.) Id.
{¶65} This is not a case where the suspect admitted to possessing a substance
and then was informed of her rights before questioning resumed with an advisement that
the earlier statements could not be used against her (the voluntariness test). This is a
case where law enforcement completely failed to inform Ms. Benson of her right against
self-incrimination. Under these circumstances, Ms. Benson’s statements made after she
was removed from the vehicle should have been suppressed.
{¶66} The dissent takes issue with and misapprehends our consideration of the
Second District’s Estepp factors, arguing the factors are an “artificial test,” which will
“unnecessarily burden” an officer with considering as many as ten factors in order to
determine if a Miranda warning is required.
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{¶67} These factors are not an exhaustive and exclusive metric to be utilized in
law enforcement training or by a reviewing court when evaluating whether Miranda
warnings should be given at any point during questioning. These ten factors are
characteristics to consider together with all other facts and circumstances surrounding
the suspect’s encounter with law enforcement when applying the Oles “suspect position”
test—how a reasonable person in the suspect’s position would have understood his or
her situation.
The Trial Court Failed to also Consider the Enhanced
Protection Afforded by the Ohio Constitution.
{¶68} In Farris, supra, the Supreme Court of Ohio examined whether the
protections against self-incrimination under the Fifth Amendment of the United States
Constitution and Section 1, Article 10 of the Ohio Constitution prevent evidence to be
excluded that was obtained as a direct result of statements made in custody without the
benefit of Miranda warnings.
{¶69} The court reviewed the Supreme Court of the United States’ holding in
United States v. Patane, 542 U.S. 630 (2004), where the court rejected the argument that
physical evidence seized as a result of unwarned statements is the practical equivalent
of a statement, declining to extend the Fifth Amendment protection against self-
incrimination to direct evidence. Id. at ¶42-44, citing Patane at 643-44. This did not,
however, end the Supreme Courtof Ohio’s analysis since “[t]he Ohio Constitution ‘is a
document of independent force[,] * * * [and] state courts are unrestricted in according
greater civil liberties and protections to individuals and groups.’” Id. at ¶46, quoting Arnold
v. Cleveland, 67 Ohio St. 3d 35 (1993), paragraph one of the syllabus.
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{¶70} The Supreme Court of Ohio held that “Section 10, Article I of the Ohio
Constitution provides greater protection to criminal defendants than the Fifth Amendment
to the United States Constitution.” Id. at ¶48. “Only evidence obtained as the direct result
of statements made in custody without the benefit of a Miranda warning should be
excluded.” Id. at ¶49. The court expounded that to “hold otherwise would encourage law-
enforcement officers to withhold Miranda warnings and would thus weaken Section 10,
Article I of the Ohio Constitution.” Id.
{¶71} While we recognize the law in Farris, supra, we cannot say based on the
trial court’s determinations of fact if it applies to the case at hand. Ms. Benson was not
arrested at the scene. She was issued a citation. As a result, the failure of the trial court
to make any factual determinations and legal conclusions in its judgment entry regarding
the evidence seized is problematic because the record is not clear as to the state’s
justification for searching the purse given that she was not taken into custody.
{¶72} Crim.R. 12(F) mandates that a trial court state its essential findings on the
record when factual issues are involved in determining a motion to suppress. State v.
Brown, 2d Dist. Montgomery No. 24297, 2012-Ohio-195, ¶10. We note that Ms. Benson
did not specifically request findings of fact; however, the record, standing alone is
insufficient to allow a review of the search of Ms. Benson’s purse and the drugs seized.
Id.
{¶73} Because the trial court failed to provide us with a sufficient basis upon which
to determine whether its decision was supported by competent, credible evidence, we
remand for the trial court to make findings of fact and conclusions of law based on the
18
evidence adduced at the suppression hearing as to whether the drugs seized were the
result of an unlawful search.
{¶74} The procedural safeguards articulated over 50 years ago in Miranda v.
Arizona have been sometimes criticized as interfering with law enforcement’s ability to
effectively investigate crimes, but despite challenges to Miranda, the core principles
articulated in the decision have withstood the test of time and have not hamstrung crime
fighting. Many forget that after his conviction was overturned, Mr. Miranda was retried—
his confession was not introduced into evidence and he was convicted.
{¶75} The trial court’s decision is reversed, and the case remanded for the trial
court to make findings of fact and conclusions of law based on the evidence adduced at
the suppression hearing as to the search of Ms. Benson’s purse and the drugs seized.
TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion,
MATT LYNCH, J., dissents with a Dissenting Opinion.
____________________
TIMOTHY P. CANNON, J., concurring in judgment only.
{¶76} I respectfully concur in judgment only with regard to the lead opinion, as I
do not believe we need to address, adopt, or apply the ten factors outlined by the Second
District in Estepp and McCrary, supra. The Supreme Court of Ohio has held that 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 his or her situation under the totality of
the circumstances. See, e.g., State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255, ¶14
19
and Cleveland v. Oles, 152 Ohio St. 3d 1, 2017-Ohio-5834, ¶1 (following Berkemer v.
McCarty, 468 U.S. 420, 442 (1984)). In this case, the circumstances are clear and
straightforward.
{¶77} The dissenting opinion also merits a response. While there are many
interesting comments in the dissent, I cannot agree with describing this as a “routine traffic
stop.” It was anything but. The officers observed Benson exiting from what they believed
was a drug house. They were mistaken. The drug house was next door to the house
from which Benson exited. The vehicle in which Benson was a passenger was then pulled
over by officers from (1) the Ashtabula City Police, (2) the Ashtabula County Sheriff’s
Department, and (3) the Ohio State Patrol. They literally surrounded the vehicle. When
the officers approached passenger Benson, there was no discussion regarding any
reason for a traffic stop—they were immediately focused on drug possession. The cases
cited by the dissent that permit an officer to question the driver regarding the basis for a
traffic stop simply do not apply here.
{¶78} Based on the officers’ mistake of fact and Benson’s admissions, the nature
of the encounter was one of an extended detention, not a routine traffic stop. See Farris,
supra, at ¶12 (“Here, Farris’s extended detention was not based upon the purpose of the
original stop, excessive speed, but was based upon Menges’s detection of the scent of
burnt marijuana.”). “Although a motorist who is temporarily detained as the subject of an
ordinary traffic stop is not ‘in custody’ for the purposes of Miranda * * *, if that person
‘thereafter is subjected to treatment that renders him “in custody” for practical purposes,
he will be entitled to the full panoply of protections prescribed by Miranda.’” Id. at ¶13,
quoting Berkemer, supra, at 440.
20
{¶79} Also, the dissenting opinion states that the lead opinion “takes issue only
with the questioning by police that took place after Benson exited the vehicle.
Presumably, had Benson not been asked to move a few feet to the right in order to leave
the car, the majority would find no necessity to Mirandize her.” This characterization
misses the point of the holding in this case. While Benson was still in the car, she admitted
to having drugs in her purse. Up to that point, the officers had no reason to detain her.
After she admitted to having drugs in her purse, an officer told Benson to exit the vehicle
and leave her purse. As she exited, Benson watched another officer retrieve her purse
from the driver’s side and begin to search for the drugs. At that time, she was surrounded
by at least three police officers. No reasonable person, knowing she had just admitted to
having drugs and that the drugs were now in possession of the police, would believe she
was free to go.
{¶80} Our holding today follows very clear precedent from the Supreme Court of
Ohio. It is not in any way, as the dissent suggests, an expansion or a loose interpretation
of Miranda. Further, the case against Benson is not dismissed as a result of this opinion:
it is remanded for the trial court to proceed, but without the (very limited) incriminating
statements made in response to questions posed by officers after Benson had been
detained for possessing drugs. The outcome of the proceedings thus far, i.e., Benson’s
plea to one count of drug possession, may not change on remand.
____________________
MATT LYNCH, J., dissents with a Dissenting Opinion.
21
{¶81} I respectfully dissent from the majority’s decision to reverse the trial court’s
denial of Benson’s motion to suppress on the ground that statements elicited from Benson
occurred during an interrogation while she had not been Mirandized. A review of the
totality of the circumstances indicates that the police questioning of Benson occurred
during a traffic stop at which time she was not in custody. Since the facts do not support
a conclusion that a custodial interrogation took place, suppression is unwarranted.
{¶82} A fair and thorough review of whether Miranda warnings were necessary in
the present matter cannot be completed without first considering the underlying rationale
of the Miranda decision and whether it has been expanded in a manner that provides
protections to defendants that were not anticipated and are more detrimental than
beneficial to society as a whole. Considering both the majority’s holding in Miranda v.
Arizona, 384 U.S. 436, 545, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), as well as the opinions
of the dissenting justices provides necessary context, lest this court or others fail to
appreciate the concerns that arise when interpreting Miranda rights too broadly and
expanding rights beyond what were anticipated by the framers of the Fifth Amendment.
{¶83} In 1966, the majority in Miranda expressed concern with the current police
tactics utilized in obtaining confessions, emphasizing that in each of the cases before the
court on appeal, “the defendant was questioned by police officers, detectives, or a
prosecuting attorney in a room in which he was cut off from the outside world,” being
“thrust into an unfamiliar atmosphere and run through menacing police interrogation
procedures.” Miranda at 445, 457. The court sought to address the dangers inherent in
this secret and private form of interrogation. It further examined police officers’ use of
physical and psychological coercion, emphasizing the utilization of questioning tactics
22
specifically designed to coerce suspects, such as asking questions designed to minimize
moral blame, create insecurity, and trick the subject of the questioning. Id. at 450-455.
These concerns greatly influenced the Supreme Court’s now well-known holding that a
person facing a custodial interrogation must be advised of his right to remain silent and
right to the presence of an attorney and warned that his statements can be used against
him.
{¶84} The Miranda court adopted this standard in light of concerns where police
questioning was often a secretive practice conducted in the private confines of an
interrogation room. However, this standard has been interpreted over the following
decades to encompass questioning of suspects that is far less likely to be coercive. At
the time Miranda was decided, several justices expressed alarm with its scope and
breadth in interpreting and applying the Fifth Amendment, noting: “for all the Court’s
expounding on the menacing atmosphere of police interrogation procedures, it has failed
to supply any foundation for the conclusions it draws or the measures it adopts.” Miranda
at 537 (White, J., dissenting).
{¶85} While there may be legitimate concerns about improper questioning by
police in some scenarios, there is little proof that creating an expansive interpretation of
the Fifth Amendment is the proper method to address such issues. Studies conducted
after the Miranda decision have demonstrated negative consequences associated with
providing Miranda warnings. One study, which collected and analyzed statistics from
multiple cities, concluded that confession rates fell approximately 16 percent post-
Miranda. Cassell and Fowles, Still Handcuffing the Cops? A Rev. of Fifty Years of
Empirical Evidence of Miranda’s Harmful Effects on Law Enforcement, 97 B.U.L.Rev.
23
685, 691-692, 695 (2017) (also noting that the National Research Council of the National
Academy of Sciences has found that studies suggest Miranda warnings “may have
resulted in a reduction of confessions of between 4 and 16 percent”).
{¶86} Further, it was recognized Miranda constituted a significant deviation from
the Supreme Court’s prior holdings. As Justice Clark emphasized in a
dissenting/concurring opinion in Miranda, custodial interrogation had long been accepted
as an important tool of law enforcement and was evaluated under a general totality of the
circumstances rule rather than requiring additional, burdensome requirements such as
an affirmative waiver, the burden of proving waiver placed on the prosecution, the
required presence of counsel during questioning, and the ability to withdraw waiver.
Noting the history of case law to the contrary, Justice Clark concluded that “[t]o require
all those things at one gulp should cause the Court to choke over more cases than” only
the two it expressly overruled. Miranda at 502 (Clark, J., concurring in part and dissenting
in part).
{¶87} The majority herein now takes another large swig from the chalice of
unintended consequences by expanding the meaning of being in custody.
{¶88} Concerns raised regarding the expansion of Miranda have been borne out
by the application of Miranda in this state, with questioning performed during roadside
traffic stops interpreted as custodial interrogations even in instances where there has
been no arrest. In State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255, 849 N.E.2d
985, a routine traffic stop was conducted for speeding. Upon the officer noticing the odor
of marijuana, Farris was instructed to enter the police cruiser while a search of his vehicle
was conducted. The court held that statements made while Farris was questioned inside
24
of the cruiser amounted to a custodial interrogation. Id. at ¶ 12-15. However, Farris was
not handcuffed, not told he was under arrest, nor otherwise placed into formal custody.
The Ohio Supreme Court has reaffirmed its application of Miranda in Farris in a
subsequent decision as well, Cleveland v. Oles, 152 Ohio St. 3d 1, 2017-Ohio-5834, 92
N.E.3d 810, ¶ 23, confirming its expansion of the definition of custodial interrogation under
Miranda.
{¶89} Any expansion of the definition of custodial interrogation under Miranda is
especially troubling because of its overall impact on society. The defendant is not the
only person impacted by the decisions made by the courts in this arena. As adeptly
summarized in Justice White’s Miranda dissent: “The Court’s duty to assess the
consequences of its action is not satisfied by the utterance of the truth that a value of our
system of criminal justice is ‘to respect the inviolability of the human personality’ and to
require government to produce the evidence against the accused by its own independent
labors. * * * More than the human dignity of the accused is involved; the human
personality of others in the society must also be preserved. Thus the values reflected by
the privilege are not the sole desideratum; society’s interest in the general security is of
equal weight.” Miranda at 537 (White, J., dissenting).
{¶90} Justice White expanded upon the “undesirable impact” of extending Fifth
Amendment rights too far, using the example of the need to protect society from the
danger of a murderer and the impact of releasing such an offender due to a failure to
provide Miranda warnings has on society. Id. at 539.
{¶91} The interest in protecting society raised by Justice White is perhaps
nowhere more applicable than in the present case involving drug trafficking and drug
25
dealing. Removing a drug trafficker from the streets by an arrest and conviction provides
a significant benefit to society while also protecting potential victims from the dangers
arising from drug use, a danger which cannot be overstated. Particularly noteworthy is
the fact that a conviction also serves the interests of the offender, holding her accountable
for the crime and providing the ability to return to society improved. This is especially
relevant in our current court system, where programs such as drug courts provide
rehabilitative functions that serve a defendant far better than being returned to the
streets.1
{¶92} Removal of options to treat those suffering from drug addiction is a
legitimate concern in the application of Miranda. Ohio Supreme Court Chief Justice
Maureen O’Connor recently emphasized the necessity of utilizing the criminal justice
system to treat drug offenders when discussing a proposed constitutional amendment to
reclassify lower level drug offenses. She observed that the proposed amendment would
“take away the incentive from people who are suffering from substance abuse disorders
to carry out the terms of probation, especially the term of treatment.” This would prevent
judges from utilizing tools such as the imposition of a prison term for a parole or probation
violation, which can successfully push the defendant toward drug rehabilitation. Toledo,
Ohio Chief Justice Takes Hardline Stance Against Issue 1, The Observer,
http://observer.case.edu/ohio-chief-justice-takes-hardline-stance-against-issue-1/ (Nov.
2, 2018). The Chief Justice recognized: “We also know that through long-term treatment
1. According to the National Institute of Justice, drug court programs have been shown to decrease
recidivism, with one county showing that the felony re-arrest rate decreased from 40 percent before the
drug court program to 12 percent after the drug court was instituted. National Institute of Justice, Do Drug
Courts Work? Findings from Drug Court Research, https://www.nij.gov/topics/courts/drug-
courts/pages/work.aspx (accessed August 1, 2019).
26
and therapy, those addicted can lead law-abiding, productive lives.” O’Connor, The
Hidden Disaster of State Issue 1, http://ohiopa.org/oconnor1.pdf (Aug. 28, 2018).
{¶93} The deterrent function of our justice system is eviscerated by loosely
interpreting Miranda to allow an addicted defendant to evade punishment and miss the
opportunity for treatment. Rather than failing to hold a defendant accountable while
exercising an overabundance of caution in protecting against perceived improper
behavior by officers, it would be wise to consider that accountability for offenders provides
a better outcome for society and for the offender.
{¶94} Expanding Miranda may serve to return drug dealers and traffickers to the
streets of their communities although there is reasonable evidence to demonstrate that
they have committed a crime. Courts may claim to have upheld the rights of the defendant
but this overzealous protection comes at the expense of the right of the public to feel safe
and secure and may actually lead to the overdose of a defendant who might have
otherwise escaped the death sentence of addiction. The expansion of the duty to use
Miranda requirements may serve to provide even more protections to the accused but we
must ask “at what cost?”
{¶95} With the foregoing in mind, it is necessary to consider whether Miranda
warnings were required under the facts of the present case. It has been consistently held
that routine traffic stops ordinarily do not give rise to concerns regarding custodial
interrogations or require Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 436,
104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Steerman, 11th Dist. Ashtabula No. 2007-
A-0054, 2008-Ohio-1691, ¶ 44; State v. Stone, 11th Dist. Portage No. 2007-P-0048,
2008-Ohio-2615, ¶ 18. This is the case for a multitude of reasons, including that such
27
stops are brief and take place in public, allowing others to observe the interactions
between the officer and motorist. “This reduces the ability of policemen to use illegitimate
means to elicit self-incriminating statements and diminishes the motorist’s fear that if he
does not cooperate, he will be subjected to abuse.” Steerman at ¶ 45. While there are
some instances where a traffic stop can progress to a custodial interrogation, “[t]he
relevant inquiry is whether, under the totality of the circumstances, a reasonable person
in the suspect’s position would have understood himself or herself to be in custody.” Oles,
152 Ohio St. 3d 1, 2017-Ohio-5834, 92 N.E.3d 810, at ¶ 1.
{¶96} It warrants emphasis that Miranda warnings are only necessary in the case
where a defendant is in custody. 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.” Miranda, 384 U.S. at 444, 86 S. Ct. 1602,
16 L. Ed. 2d 694. As to roadside detention of a motorist or passenger, the United States
Supreme Court has explained that the “noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in
custody’ for the purposes of Miranda.” Berkemer, 468 U.S. at 440, 104 S. Ct. 3138, 82
L. Ed. 2d 317. Miranda becomes applicable only when “a suspect’s freedom of action is
curtailed to a ‘degree associated with formal arrest.’” Id. quoting California v. Beheler,
463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983).
{¶97} This court has previously addressed the same concerns that arise in the
present case in State v. Brocker, 11th Dist. Portage No. 2014-P-0070, 2015-Ohio-3412,
conducting a review of case law recognizing the limited applicability of Miranda to
roadside traffic stops:
28
In State v. Rice, 1st Dist. Hamilton Nos. C-090071-C-090073, 2009-
Ohio-6332, the First District reversed the trial court’s suppression of the
motorist’s admissions made while he was in the back seat of the police
cruiser before he was read his Miranda warnings during a traffic violation
stop. It held that the defendant was not in custody for Miranda purposes. *
* * The court emphasized that the driver was not handcuffed at the time
and that the officer’s questioning was neither lengthy nor intimidating. Id.
at ¶ 10-15.
In State v. Serafin, 11th Dist. Portage No. 2011-P-0036, 2012-Ohio-
1456, this court held that the motorist was not in custody for Miranda
purposes during a routine traffic stop. * * * The officer explained that Serafin
smelled of alcohol and that his eyes were glassy. * * * Serafin admitted to
having a couple beers over dinner, and the officer then initiated the field
sobriety tests. * * * Serafin was subsequently arrested and read his
Miranda warnings at that time. On appeal, we upheld the denial of the
motion to suppress * * *.
Other appellate courts have considered comparable facts and
agreed that most traffic stops and accompanying investigatory questioning
do not constitute custodial interrogations warranting the right to Miranda
warnings. State v. Engle, 2d Dist. Montgomery No. 25226, 2013-Ohio-1818;
State v. Barnett, 2d Dist. Montgomery No. 14019, 1994 Ohio App. LEXIS
4767 * * * (Aug. 31, 1994) (holding that roadside questioning of motorist
while in the rear of the police cruiser for a short period of time does not
constitute a custodial interrogation); State v. Leonard, 1st Dist. Hamilton No.
C-060595, 2007-Ohio-3312, ¶ 22-23 (holding that the intrusion was minimal
based on the short length of the detention and the fact that the officer did
not take the defendant’s keys or search his vehicle); State v. Wineberg, 2nd
Dist. Clark No. 97-CA-58, 1998 Ohio App. LEXIS 1159 * * * (Mar. 27, 1998)
(holding in part that the detention of a driver in the back seat of a cruiser
during a traffic stop does not invoke Miranda protection).
Id. at ¶ 15-17.
{¶98} Based on the case law cited above, this court in Brocker determined that
questioning during the traffic stop did not rise to the level of a custodial interrogation since
the detention was brief (less than six minutes) and incriminating statements were made
during the course of the traffic stop. Id. at ¶ 18. Brocker is instructive in the present
matter where the statements were made by Benson during the course of a routine traffic
stop, not while she was handcuffed, arrested, or subjected to a lengthy detention or
29
removed from the roadside where the vehicle had been stopped.
{¶99} It is noteworthy that this court takes issue only with the questioning by police
that took place after Benson exited the vehicle. Presumably, had Benson not been asked
to move a few feet to the right in order to leave the car, the majority would find no necessity
to Mirandize her. This creates a slippery slope and may lead to the requirement that
officers give Miranda warnings whenever they simply approach a citizen for a traffic stop.
This would burden police by requiring a reading of Miranda rights where the risk of
coercive questioning is minimal at best.
{¶100} An evaluation of the entirety of the facts and circumstances of this matter
warrants a conclusion that Benson was not in custody. She was in a vehicle stopped by
police for a valid reason and volunteered information about having an illegal substance in
her purse. While she was then asked to exit the car and was further questioned by officers
about her possession of drugs, she was never handcuffed, told she was under arrest,
placed in a police cruiser, or touched by any of the police officers. She and the officers
were parked in an area near both businesses and homes and all discussions occurred
while they were clearly visible to the public. The aspects that prohibit police abuse, as
discussed above, were present. Steerman, 2008-Ohio-1691, at ¶ 45. While this writer
recognizes that several officers were present during this stop, this fact alone does not
render the interrogation custodial, especially when taking into consideration that Benson
spoke primarily with only one or two officers while the others were occupied with tasks
such as searching the vehicle. Thus, under the reasonable person standard, there is no
custodial interrogation. As discussed earlier, this court has held there was a lack of
custodial interrogation in potentially more restrictive conditions, where the defendant was
30
detained in the police cruiser during questioning. Brocker, 2015-Ohio-3412, at ¶ 18.
{¶101} The majority, while recognizing that there is no bright-line rule for
determining when Miranda warnings are required, nonetheless proceeds to set forth a
ten-factor test for such a decision, outlined by the Second District in State v. McCrary, 2d
Dist. Montgomery No. 18885, 2002 WL 125760, *2-3 (Feb. 1, 2002). This test or list of
factors has not previously been applied by this court or recognized as the method for
evaluating whether Miranda warnings are required. This writer’s concern is that it is
entirely unclear how much weight to give any of the factors or why review should be
constrained to these factors. Applying such a test places too much emphasis on these
factors to the exclusion of other relevant considerations which may not be on the
majority’s list. While the majority contends that the list of factors is “not an exhaustive
and exclusive metric,” such a list, by its very nature, encourages officers and reviewing
courts to give more weight to these factors in particular.
{¶102} The McCrary court recognized that it “do[es] not mean to suggest the
analysis is a simple counting exercise,” but then proceeded to conclude that a custodial
interrogation did not occur when six of the ten factors weighed in the State’s favor. Id. at
*3. As outlined above, a general examination of the totality of the circumstances when
viewed through the eyes of a reasonable person gives the courts appropriate leeway to
take into account any potential factors that may be relevant. The majority’s opinion
alludes to the existence of some of the factors in the ten-step test, but does not address
each factor, leaving law enforcement guessing as to when a Miranda warning is actually
required. This court should not adopt an artificial test as a manner of determining
custodial interrogation issues. By doing so the majority unnecessarily burdens an officer
31
with considering as many as ten factors in order to determine if a Miranda warning is
required. Such a burden is both unreasonable and impractical and may lead to the
exclusion of otherwise proper evidence. Expecting officers to run the gauntlet of the
majority’s ten factors is to set up law enforcement for failure as certain as the Kobayashi
Maru test.
{¶103} Nonetheless, even when considering the McCrary factors as part of an
overall evaluation of this case, there are no grounds to find a custodial interrogation
occurred. Although this court should not adopt a specific set of factors even the analysis
suggested by the majority reinforces the conclusion above that this was not a custodial
interrogation since a majority of the factors weigh against a finding that Benson was in
custody.
{¶104} As to the first McCrary factor, the location of the questioning, it is quite clear
this is favorable to finding a noncustodial interrogation for the reasons discussed at length
above. Simply put, Benson was in a public area, clearly in the open and near businesses
and homes, preventing police abuse.
{¶105} The second factor, whether a defendant is a suspect at the time the
questioning began, also does not weigh in Benson’s favor. The majority emphasizes that
Benson was a suspect from the beginning of the stop, rendering the questions
“investigative” and designed to elicit incriminating statements. Here, the questioning
began while Benson was merely the passenger in a traffic stop. While the questioning
did continue when officers began to suspect Benson of a crime, it is noteworthy that
McCrary’s statement of this factor specifies that Miranda warnings are not required simply
because “the investigation has focused.” Regardless, even if Benson was immediately a
32
suspect, it does not follow that Miranda warnings were required. If an officer suspects
someone has committed a crime and detains that person to investigate the circumstances
provoking suspicion, he “is not required to give the person Miranda warnings before
asking questions, because of the ‘comparatively nonthreatening character of detentions
of this sort.’” State v. Campbell, 2d Dist. Montgomery No. 26497, 2015-Ohio-3381, ¶ 10,
citing Berkemer, 468 U.S. at 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317.
{¶106} The third factor relates to whether Benson’s freedom to leave was
restricted. While there were officers surrounding Benson, it must also be emphasized
that the majority’s contention that she lacked a “choice” about whether to answer police
questions is not supported by the facts. The body cam video indicates that Benson was
freely cooperating with the officers and was standing comfortably by the truck during the
entirety of the questioning.
{¶107} The fourth factor asks the court to consider whether a defendant was
handcuffed or under arrest. During the questioning, Benson was not handcuffed and
officers mentioned her going to jail only after much of the questioning was complete and
she had admitted to having “speed.” Only toward the end of the conversation did the
officers discuss charging her with possession, which carries little weight when analyzing
whether she was in custody at the time she made the incriminating statements. The
fourth factor does not support a finding of custodial interrogation.
{¶108} The fifth factor is also unfavorable to Benson, as it inquires whether there
were threats made during the interrogation. It is evident that officers made no threats to
Benson but merely questioned her about her drug possession and the details surrounding
how she acquired the drugs. Further, their tone and demeanor, while authoritative, was
33
not overly aggressive or otherwise verbally intimidating.
{¶109} Next, the sixth factor relates to whether the defendant was physically
intimidated during the interrogation, which the evidence demonstrates was not the case.
During the questioning the officers were not standing in Benson’s personal space or, from
what can be seen in the video, physically intimidating her in any manner. As noted above,
Benson was permitted to comfortably stand by the truck and was not taken aside, moved,
or otherwise touched by the officers.
{¶110} The seventh factor relates to whether the officers “verbally dominated the
interrogation.” While the majority answers this in the affirmative, such a conclusion is
contrary to the evidence presented. The majority points to the emotional state of Benson,
noting that she appeared nervous and “choke[d] back tears,” further stating that when she
was questioned by multiple officers she threw her hands up, stating “I can’t even … I can’t
have both of you…” Benson herself also points to her personal characteristics in
addressing the impact of the questioning, noting that she is “petite” in comparison to the
officers. Emphasis on Benson’s feelings or interpretation of the questioning is misplaced.
A “determination of custody depends on the objective circumstances of the interrogation,
not on the subjective views harbored by either the interrogating officers or the person
being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 128
L. Ed. 2d 293 (1994). Whether a person is more sensitive or more easily unsettled than
another individual is not the pertinent inquiry. Again, this court must consider whether a
“reasonable person” would have understood himself to be in custody. Oles, 152 Ohio
St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, at ¶ 1. A standard that is grounded in the
suspect’s sensitivity ignores the reality that any person who has committed a crime is
34
likely to be more upset when questioned by the police. By that measure the majority
effectively sets up two standards: one for the innocent, who are presumably less sensitive
to police questioning, and a separate, stricter standard for the guilty who are predictably
upset at any inquiry by an officer.
{¶111} Further, it is improper to characterize officers asking a variety of questions
as “verbal domination” since making such inquiries would not be uncommon in any
interaction between police and the general public, especially in a traffic stop. Benson was
fully permitted time to answer the questions and engaged in a dialogue with the officers.
In fact, the video in this case actually supports the view that Benson was not intimidated
or dominated by the questioning officers. When Benson protested to taking questions
from the two officers simultaneously, the officers acquiesced and complied with her
request, indicating that Benson, not the officers, was controlling the dialogue.
{¶112} The eighth McCrary factor asks what the defendant’s purpose was for being
at the location where questioning took place. Benson was in the location of the
questioning as a result of a traffic stop and suspicion of drug activity, rather than taken
into a police cruiser or the police station. There is nothing about the location that would
weigh in favor of Benson being in police custody.
{¶113} The ninth factor questions whether any neutral parties were present. Here,
there were several officers and the only other party that was present during the stop was
the driver. It is difficult to determine, however, what role the driver played since, while he
was present during the initial stop, he is not shown in the videotaped footage of the
questioning.
{¶114} The final factor to consider in completing a thorough analysis in this matter
35
is whether the police took action to trick or coerce Benson into making a statement or
confessing. Although the majority again emphasizes Benson’s “emotional reaction,” this
does not demonstrate coercion. State v. Powe, 9th Dist. Summit No. 21026, 2002-Ohio-
6034, ¶ 10. Furthermore, if the measure of the coerciveness of police questions was
whether a defendant became upset during questioning, such a tactic could be adopted
by anyone interacting with police.
{¶115} Additionally, officers’ requests for Benson to “be honest” on multiple
occasions do not amount to coercion. That a police officer would request a person
suspected of a crime to make honest statements is hardly unusual or manipulative.
“Admonitions to tell the truth” have been held to be “permissible” and are not coercive or
“police overreaching.” State v. Cooey, 46 Ohio St. 3d 20, 28-29, 544 N.E.2d 895 (1989);
State v. Jett, 11th Dist. Portage No. 97-P-0023, 1998 WL 258166, *4 (Mar. 31, 1998).
Thus, simply put, there is no evidence of coercion that would allow for the application of
the tenth factor in favor of Benson.
{¶116} Although the majority offers no guidance on how much weight to give each
factor or how many must be met, an analysis of all of the evidence present in this case,
regardless of the applicability of any specific test or list of factors, strongly weighs in favor
of finding no custodial interrogation occurred. Even when utilizing the McCrary factors,
the evidence does not support the conclusion reached by the majority and weighs heavily
against suppression.
{¶117} It is important to recognize any questioning by a police officer is by its very
nature dynamic and precarious. Police officers by necessity simultaneously seek to elicit
information from a person being questioned while maintaining awareness/vigilance of all
36
the surrounding circumstances including any danger which may develop from that person,
other parties in the area, and even the risks from road traffic.
{¶118} Judges have the privilege to consider these issues in the calm and
protected environment of our chambers, while a police officer must often act under
extreme circumstances or danger. The majority should not impose upon law enforcement
additional burdens likely to result in the exclusion of reliable evidence. Such a ruling is
both unwarranted and unwise.
{¶119} Finally, while the majority holds that it is necessary for the lower court on
remand to make a determination as to whether the drugs were properly seized, Benson’s
argument regarding suppression hinges upon this court’s determination as to whether the
police questioning violated Miranda. Since the questioning of Benson was valid at all
points, she freely admitted to having drugs in her purse, and police conducted the search
after this admission, there can be no legitimate dispute that police had probable cause to
search for and seize the drugs.
{¶120} For the foregoing reasons, since Benson was not in custody and Miranda
warnings were not required, the trial court properly denied her motion to suppress. Thus,
I must respectfully dissent.
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