State v. Roswell

[Cite as State v. Roswell, 2022-Ohio-260.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0045
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
GARY A. ROSWELL,
Trial Court No. 2020 CR 00440
Defendant-Appellant.
OPINION
Decided: January 31, 2022
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
James R. Eskridge, Megargel & Eskridge Co., LPA, 231 South Chestnut Street,
Ravenna, OH 44266 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Gary A. Roswell, appeals the denial of his Motion to
Suppress. For the following reasons, we affirm the decision of the court below.
{¶2} On June 12, 2020, Roswell was indicted for Obstructing Justice, a felony of
the fifth degree in violation of R.C. 2921.32. A second Obstructing Justice count was
added in a supplemental indictment.
{¶3} On November 12, 2020, Roswell filed a Motion to Suppress statements
made as a result of roadside questioning, which was heard on November 30.
{¶4} On February 1, 2021, the trial court denied the Motion. The court made the
following factual findings:
On May 22, 2020, at approximately 10:21 p.m., Deputy
Bradley of the Portage County Sheriff’s Department was on duty on
Route 59 in Ravenna Township, Portage County, Ohio.
The deputy saw the Defendant’s vehicle pull out of the drive
of a known drug house. Deputy Bradley followed the vehicle and
was unable to observe a visible license plate. The officer observed
the vehicle commit a marked lanes violation, which prompted the
deputy to pull the vehicle over.
When the official initiated the stop, he saw the front-seat
passenger crawl into the backseat.
The vehicle was stopped on State Route 59 and Shorr Street.
Deputy Diemert of the Portage County Sheriff’s Department arrived
soon after the stop to assist Officer Bradley.
Diemert approached the vehicle and determined Clifford
Parham was the passenger in the backseat. The officer could not
see the other individual who crawled into the backseat.
The officers asked the driver to exit the vehicle. He was asked
where he was going and what he was doing. The Defendant told the
officers that he picked up Mr. Parham and was taking him to the
drive-through. When asked both Mr. Roswell and Mr. Parham
claimed no one else was in the vehicle.
Upon further questioning, the Defendant stated that they had
pulled into the Dollar General on Rout[e] 59, as well, and the store
was not open.
The officer asked the Defendant for permission to search the
vehicle, which was granted. The deputy found a me[t]al spoon in the
front passenger side of Defendant’s vehicle. A female was located
in the trunk area of the vehicle. She stated she crawled into the trunk
because she had an outstanding warrant.
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After locating the female passenger, Cherish Hill in the trunk
of the vehicle, the officers handcuffed her and read her Miranda
Rights.
The officers then began to question Roswell again, asking him
what was really going on. The Defendant told the officers that he
picked Ms. Hill and Mr. Parham up to take them to the drive-through
and then went to a house on State Route 59 and Shorr. The
Defendant stated the person they were looking for was not home, so
they left. Mr. Parham, when asked said, that they were going to pick
up a friend, but he could not remember the person’s name.
The officers, when questioned during the suppression
hearing, admitted Miranda Warnings were not given to the
Defendant, and that he was not free to leave the scene during their
investigation.
The court concluded that the questioning of Roswell did not constitute custodial
interrogation: “A noncustodial situation does not become a custodial one simply because
the person is questioned.”
{¶5} On February 25, 2021, Roswell pled no contest to one count of Obstructing
Justice.
{¶6} On April 5, 2021, Roswell was sentenced to 12 months in the Intensive
Supervision Program of the Portage County Adult Probation Department and 48
additional months under the General Division of Adult Probation.
{¶7} On April 27, 2021, Roswell filed a Notice of Appeal. On appeal, he raises
the following assignment of error: “The Trial Court erred as a matter of law in overruling
Appellant’s Motion to Suppress Evidence.”
{¶8} “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
“[A]n appellate court must accept the trial court’s findings of fact if they are supported by
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competent, credible evidence,” but “must then independently determine, without
deference to the conclusion of the trial court [i.e., de novo], whether the facts satisfy the
applicable legal standard.” Id.{¶9} “In Miranda [v. Arizona], 384 U.S. [436,] 444, 86 S.Ct. 1602, 16 L.Ed.2d 694[(1966)], the United States Supreme Court established procedural safeguards for
securing the privilege against self-incrimination guaranteed by the Fifth Amendment to
the United States Constitution.” Cleveland v Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92
N.E.3d 810, ¶ 8; Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)
(“[t]he Fourteenth Amendment secures against state invasion the same privilege that the
Fifth Amendment guarantees against federal infringement–the right of a person to remain
silent unless he chooses to speak in the unfettered exercise of his own will”); Ohio
Constitution, Article I, Section 10 (“[n]o person shall be compelled, in any criminal case,
to be a witness against himself”).
{¶10} “The procedural safeguards identified in Miranda apply only when one is
subjected to custodial interrogation.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-
3430, 811 N.E.2d 48, ¶ 26. “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.’” Oles at ¶ 9, quoting Miranda at 444.
{¶11} In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317(1984), the United States Supreme Court addressed the issue of “whether the roadside
questioning of a motorist detained pursuant to a routine traffic stop should be considered
‘custodial interrogation.’” Id. at 435. The Court concluded that the “noncoercive aspect
of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to
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such stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440. Although the
stopping of an automobile and the detention of its occupants constitutes a “seizure” within
the meaning of the Fourth Amendment, the circumstances of the usual traffic stop are
more akin to an investigative detention or “Terry stop” rather than to a formal arrest. Id.
at 436-439. “Typically, this means that the officer may ask the detainee a moderate
number of questions to determine his identity and to try to obtain information confirming
or dispelling the officer’s suspicions.” Id. at 439. However, “[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.” Id. at 440.
{¶12} In reaching its conclusions, the Supreme Court in Berkemer noted the
following:
Two features of an ordinary traffic stop mitigate the danger
that a person questioned will be induced to “speak where he would
not otherwise do so freely,” Miranda v. Arizona, 384 U.S., at 467.
First, detention of a motorist pursuant to a traffic stop is
presumptively temporary and brief. The vast majority of roadside
detentions last only a few minutes. A motorist’s expectations, when
he sees a policeman’s light flashing behind him, are that he will be
obliged to spend a short period of time answering questions and
waiting while the officer checks his license and registration, that he
may then be given a citation, but that in the end he most likely will be
allowed to continue on his way. In this respect, questioning incident
to an ordinary traffic stop is quite different from stationhouse
interrogation, which frequently is prolonged, and in which the
detainee often is aware that questioning will continue until he
provides his interrogators the answers they seek. See id., at 451.
Second, circumstances associated with the typical traffic stop
are not such that the motorist feels completely at the mercy of the
police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some
discretion in deciding whether to issue a citation, in combination,
exert some pressure on the detainee to respond to questions. But
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other aspects of the situation substantially offset these forces.
Perhaps most importantly, the typical traffic stop is public, at least to
some degree. Passersby, on foot or in other cars, witness the
interaction of officer and motorist. This exposure to public view both
reduces the ability of an unscrupulous policeman 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. The fact that the detained motorist typically is confronted by
only one or at most two policemen further mutes his sense of
vulnerability. In short, the atmosphere surrounding an ordinary traffic
stop is substantially less “police dominated” than that surrounding
the kinds of interrogation at issue in Miranda itself, see 384 U.S., at
445, 491-498, and in the subsequent cases in which we have applied
Miranda.
(Footnotes omitted.) Id. at 437-439.
{¶13} Berkemer has been applied in several decisions of the Ohio Supreme Court
as well as this court. In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d
985, the Supreme Court determined that a motorist, detained pursuant to a routine traffic
stop, was subjected to treatment that rendered him “in custody” for practical purposes
and, therefore, was entitled to Miranda’s protections. The Court noted that Farris was
subjected to an “extended detention * * * not based upon the purpose of the original stop,
excessive speed, but * * * upon [Officer] Menges’s detection of the scent of burnt
marijuana.” Id. at ¶ 12. Moreover, “Menges patted down Farris, took his car keys,
instructed him to enter the cruiser, and told Farris that he was going to search Farris’ car
because of the scent of marijuana.” Id. at ¶ 14. In light of these circumstances, the Court
concluded that “a reasonable man in Farris’s position would have understood himself to
be in custody of a police officer as he sat in the cruiser.” Id.
{¶14} In Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, the Supreme
Court reached a contrary conclusion, despite the motorist being questioned inside a
police cruiser. The Court structured its analysis around three considerations. First, the
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intrusion was minimal: The stop occurred “in public view on the highway shoulder, and
the trooper preformed procedures typical of a traffic stop.” Id. at ¶ 26. Unlike the officer
in Farris, the trooper in Oles “did not perform a pat-down search,” “did not indicate that
he wanted to search Oles’s vehicle,” and “permitted Oles to keep the vehicle’s keys during
the traffic stop.” Id.
{¶15} Second, the questioning and detention were brief: “The trooper had a brief
conversation with Oles to discern whether the odor of alcohol originated from Oles himself
or from somewhere else in his car.” Id. at ¶ 27.
{¶16} Third, the interaction was nonthreatening or nonintimidating: Oles was not
handcuffed and did not object to the trooper’s requests or questions which, in turn, were
not “overly repetitive.” Id. at ¶ 28. In Farris, by contrast, the officer “made it known that
he suspected illegal conduct (i.e., that he smelled marijuana), told Farris that he would
search the car, and the asked about illegal drugs and drug paraphernalia that he might
find in the car.” Id.
{¶17} In State v. Serafin, 11th Dist. Portage No. 2011-P-0036, 2012-Ohio-1456,
this court held that Miranda warnings were not required when a trooper questioned a
motorist, seated in the officer’s vehicle, about how much he had had to drink. We noted
that “Serafin was allowed to keep his keys and to keep his vehicle running and Trooper
Ganley gave no indication that the detention would extend beyond the purposes of the
initial stop for Speeding.” Id. at ¶ 35. As in Farris, the motorist in Serafin was subjected
to a pat-down search but we found this did not alter the non-custodial nature of the
questioning: The search was nominally consensual – the trooper asked if he could
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conduct a pat-down search for weapons – and concluded the search in a few seconds.
Id. at ¶ 38.
{¶18} In State v. Brocker, 11th Dist. Portage No. 2014-P-0070, 2015-Ohio-3412,
this court again found Miranda warnings were not warranted despite the motorist being
questioned in a patrol car: “the detention was brief”; “the questioning was neither lengthy
nor intimidating”; and “[t]he trooper did not take appellant’s keys and did not search
appellant’s vehicle.” Id. at ¶ 18.
{¶19} In State v. Ferrell, 2017-Ohio-9341, 91 N.E.3d 766 (11th Dist.), this court
found that the passenger in a vehicle was entitled to Miranda warnings in the course of a
traffic stop. The passenger was removed from the vehicle and, during a non-consensual
pat-down search1, a white substance was found in his socks. Id. at ¶ 3 and 32. With
three officers present, Ferrell was asked twice what the substance was but did not
respond. Id. at ¶ 33. He was then handcuffed and asked by one of the officers: are you
“gonna be honest with me upfront, or are you gonna make it hard on yourself” since “I’m
a nice guy as long as people are honest.” Id. at ¶ 34. At this point, when Ferrell admitted
the substance was dope, he was deemed in custody for the purposes of Miranda. Id. at
¶ 37.
{¶20} Finally, in State v. Benson, 11th Dist. Ashtabula No. 2018-A-0054, 2019-
Ohio-3234, this court found that a passenger in a vehicle was entitled to Miranda warnings
after admitting to the possession of drugs. While she was still a passenger in the vehicle,
the officers’ questioning of Benson reflected their suspicions that she was in possession
of drugs: “I can already see how nervous you are getting”, “[y]ou got something on you”,
1. Ferrell gave consent for a search of his pockets, but officers expanded the scope of the search to include
his socks where drugs were found. Id. at ¶ 21.
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“where’s it at?”, “tell the truth,” and “be honest.” Id. at ¶ 9. The vehicle in which she was
a passenger was “blocked in the rear by three police cruisers” and she was confronted
by five officers upon exiting. Id. at ¶ 53. This court relied heavily on the nature of the
officers’ questioning of Benson in concluding that the Miranda warnings should have been
given. “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.’” Id. at ¶ 56.
{¶21} Roswell argues that the following circumstances compelled the
administration of the Miranda warnings before questioning him: “1) Appellant was
detained by the side of the road during a traffic stop in which he was the driver of his own
vehicle, 2) at the time Appellant was questioned, he was a criminal suspect as the vehicle
he was driving was leaving a ‘known drug house’ in the City of Ravenna and a female
passenger was observed jumping from the front passenger seat into the rear seats of the
car and thereafter investigating officers could not see her person anymore because she
was hiding in the trunk, 3) Appellant’s freedom to leave was restricted as his driver’s
license was in the possession of the investigating deputy and the investigating deputy
stated [during the suppression hearing] that he was not free to leave * * *[,] 4) there were
3 law enforcement officers there in total, 5) and he was not free to disobey the Deputies[’]
command to exit the vehicle upon the Deputy initially approaching his car.” Brief of
appellant at 11.
{¶22} Upon due consideration, we conclude that Roswell was not “in custody” for
the purposes of requiring Miranda warnings prior to questioning. The stop in the present
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case was a traffic stop and so, under Berkemer, Miranda warnings were not necessary
unless Roswell were subjected to treatment that rendered him “in custody” for practical
purposes. He was stopped for license plate and marked lanes violations, but further
suspicions were immediately raised when one of the three passengers in the vehicle
crawled into the backseat and disappeared. Two officers approached the vehicle.
Bradley primarily engaged with Roswell while Diemert focused on the other passenger,
Parham. A third officer arrived at the scene, but nothing in the record indicates what
interaction, if any, she had with Roswell.
{¶23} The questioning of Roswell was neither intrusive, extended, nor
threatening/intimidating. Officer Bradley asked for his license and had him exit the
vehicle. But Roswell was not searched, handcuffed, or placed in a police cruiser and his
vehicle remained running during the encounter. Roswell was asked about where he was
coming from and going to and whether there was anyone else in the vehicle. He then
gave consent to search his vehicle. After Hill was discovered in the trunk, Bradley
returned to Roswell, still standing outside his vehicle, and asked, “what was really going
on?”.2
{¶24} Several points should be made in support of the holding that Miranda
warnings were not necessary. The fact that Roswell drew the attention of law
enforcement because he was observed leaving a known “drug house” is of no import in
the present case as that fact had no discernable influence on the officer’s conduct.
Roswell was not questioned about narcotics and his person was not searched. Roswell
2. We acknowledge that Roswell distinguishes between the questioning that occurred before and after the
discovery of Hill. In the present case, however, neither the discovery of Hill nor the question “what was
really going on” materially alter the analysis as to whether Miranda warnings were required.
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may have been the subject of a narcotics investigation at the time of the stop, but this did
not render him “in custody” for the purposes of Miranda. As the United States Supreme
Court recognized: “A policeman’s unarticulated plan has no bearing on the question [of]
whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a
reasonable man in the suspect’s position would have understood the situation.”
Berkemer, 468 U.S. at 442, 104 S.Ct. 3138, 82 L.Ed.2d 317.
{¶25} The officers’ observation of a third person in the vehicle and request to
search the vehicle did not alter the nature of the stop. The Supreme Court compared the
typical traffic stop to a Terry stop in which an officer may ask “a moderate number of
questions * * * to try to obtain information confirming or dispelling the officer’s suspicions.”
Id. at 439. Roswell and Parham were asked if anyone else was in the vehicle and then
consent to search the vehicle was requested and given. The additional intrusion
occasioned by the suspicions regarding a third passenger was relatively minimal and
wholly justified by concern for the officers’ safety. Moreover, there is nothing inherently
illegal about hiding a passenger in the trunk unlike, by contrast, there is about hiding
weapons or narcotics. Hiding a person is highly suspicious but not necessarily
incriminating.
{¶26} The fact that Roswell was not free to leave the scene or disobey the officers’
commands did not render him “in custody.” The United States Supreme Court in
Berkemer recognized that, “[u]nder the law of most States, it is a crime either to ignore a
policeman’s signal to stop one’s car or, once having stopped, to drive away without
permission,” and that “few motorists would feel free either to disobey a directive to pull
over or to leave the scene of a traffic stop without being told they might do so.” Id. at.
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436. Nevertheless, the Court concluded that the typical traffic stop did not trigger Miranda
warnings. The Ohio Supreme Court further clarified this point by noting the distinction
between being “free to leave” and being “in custody”:
[T]he relevant inquiry is whether a reasonable person in the
suspect’s position would have understood himself or herself to be in
custody. This nuance is important and well reasoned. If the inquiry
were whether the driver felt free to leave, then every traffic stop could
be considered a custodial interrogation * * *. And a law-enforcement
officer, in the midst of investigating a traffic stop and performing all
its attendant procedures, would not consider a driver free to leave
unless given permission. But “not free to leave” and “in custody” are
distinct concepts.
Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, at ¶ 30.
{¶27} In conclusion, this is not the situation in Benson where the suspect was
confronted by five officers asking pointed questions about her already admitted drug
possession. Nor is it the situation in Ferrell where the suspect was subjected to a non-
consensual search, handcuffed, and questioned repeatedly in a threatening manner. In
the present case, Roswell was not subjected to pressures in the course of the traffic stop
that sufficiently impaired the free exercise of his privilege against self-incrimination to
require that he be warned of his constitutional rights. Berkemer at 437.
{¶28} The sole assignment of error is without merit.
{¶29} For the foregoing reasons, the denial of Roswell’s Motion to Suppress is
affirmed. Costs to be taxed against the appellant.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
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