State v. Cody

[Cite as State v. Cody, 2022-Ohio-544.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29219
:
v. : Trial Court Case No. 2019-CR-797
:
AARON DARNELL CODY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 25th day of February, 2022.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
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DONOVAN, J.
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{¶ 1} Aaron Cody appeals from his convictions for drug possession. He argues that
his statements to police should have been suppressed because officers failed to provide
a Miranda warning before questioning him. We conclude that a warning was not required,
because Cody was not in custody for Miranda purposes. And we conclude that drugs
concealed on his person would have been inevitably discovered during a search incident
to his arrest. Hence, we affirm.
I. Factual and Procedural Background
{¶ 2} On March 1, 2019, Sergeant Jason Rhodes and his partner were working in
plain clothes in an unmarked vehicle. Rhodes had worked for the Dayton Police
Department for almost 13 years, had been in the drug unit as a detective for about 6
years, and had significant training involving the use of confidential informants, typing
search warrants, purchasing drugs in an undercover capacity, and other drug operations.
During undercover operations, Rhodes travelled through the city watching for drug
transactions at various hot spots of criminal activity. On this day, he was watching the
Bancroft Apartments, which Rhodes described as a “hotbed” of criminal activity, with the
police receiving numerous calls about drug activity and violent crimes there. Sgt. Rhodes
had personally seen drug activity there in the past, including hand-to-hand, car-to-car,
and hand-to-car drug transactions in the parking lot. Most often, a vehicle would pull into
the parking lot and someone either standing outside or coming from one of the apartments
would approach the car with the drugs and the buyer would drive away. According to
Rhodes, it is quite common for people to come from outside the city or county to buy
drugs.
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{¶ 3} While watching the Bancroft Apartments parking lot at mid-afternoon, Sgt.
Rhodes saw a 2016 silver Kia Forte back into a parking space. Using high-powered
binoculars, Rhodes could see two people in the vehicle and read the vehicle’s Warren
County, Ohio, license plate. A few minutes later, a male came out of one of the apartment
buildings and made contact first with the driver, a female, and then with the passenger,
later identified as Cody. Cody handed the man a “wad” of cash, which the man leafed
through, appearing to count it. The man put the money in his pocket and handed Cody a
clear plastic baggie containing a chunk of something white that looked to be larger than
a golf ball but smaller than a baseball. The Kia driver then drove away. Based on his
training and experience, Sgt. Rhodes believed that he had witnessed a drug transaction.
He radioed for a marked cruiser to perform a traffic stop on the Kia, explaining his
suspicions about what he had just seen.
{¶ 4} Around 3:20 p.m., a marked cruiser stopped the Kia at the bottom of the Main
Street exit off U.S. 35. The officers removed both Cody and the female driver from the car
and placed them in the back seat of the cruiser for a short time. A second marked cruiser
arrived, and the driver was removed and placed in that cruiser. Soon after, Cody was
asked to step out and was patted down. Meanwhile, Sgt. Rhodes had arrived on scene,
and officers began searching the Kia. Officers asked Cody where the drugs were, and he
told them that the baggie was in a cigarette pack in the passenger-side door. Sgt. Rhodes
retrieved the cigarette pack and found a clear plastic bag containing what he suspected
was fentanyl or cocaine. Cody was then handcuffed, placed under arrest, and put back
into the cruiser.
{¶ 5} Notably, the drugs in the cigarette pack were significantly smaller than the
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amount Sgt. Rhodes had seen given to Cody at the Bancroft Apartments, but the officers
could not find any other drugs in the Kia. So while in the back of the cruiser, officers asked
Cody where the drugs he had bought at the Bancroft Apartments were. Cody repeatedly
denied he had any more drugs on him. Eventually, though Cody admitted that the drugs
were hidden in his pants; he retrieved them and turned them over.
{¶ 6} On May 30, 2019, Cody was indicted on one count of aggravated possession
of drugs, in violation of R.C. 2925.11(A), a second-degree felony, and one count of
possession of a fentanyl-related compound, in violation of R.C. 2925.11(A), a fifth-degree
felony. Cody filed a motion to suppress all evidence obtained as the result of an unlawful
search and seizure and any statements he had made. Cody argued that the officers had
no basis to extend the stop in order to search the car and had no justification for searching
his person. Cody also argued that any statements he had made to the police officers must
be suppressed as fruit of the poisonous tree or due to violations of his Miranda rights,
because he was not given a Miranda warning before being questioned about the location
of the drugs.
{¶ 7} A suppression hearing was held at which Sgt. Rhodes testified and video and
audio from a cruiser camera were presented. On November 24, 2020, the trial court
sustained Cody’s motion to suppress in part and overruled it in part, but found that none
of the evidence would be excluded because it would have inevitably been discovered.
The court concluded that when Cody made the statements about the drugs in the car, he
had not been in custody for Miranda purposes, so both his statements and the drugs
found in the car were admissible. But the court concluded that Cody had been in custody
when he was subsequently asked about the drugs he had bought, so a Miranda warning
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had been needed, and his statements about the drugs in his pants must be suppressed.
Nevertheless, the court concluded that the drugs concealed in Cody’s pants were
admissible, because they would have been inevitably discovered during a search incident
to his arrest for the drugs found in the car.
{¶ 8} In June 2021, Cody pleaded no contest to the indicted charges. The trial court
sentenced him to a total of two years in prison.
{¶ 9} Cody appeals.
II. Analysis
{¶ 10} Cody’s sole assignment of error alleges that the trial court erred by refusing
to suppress evidence.
{¶ 11} “Appellate review of a ruling on a motion to suppress presents a mixed
question of fact and law. An appellate court must accept the trial court’s findings of fact if
they are supported by competent, credible evidence. The appellate court must decide
questions of law de novo, without deference to the lower court’s legal conclusions.”
(Citations omitted.) State v. Tidwell, 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527,
¶ 18.
{¶ 12} Cody argues that the statement he gave about the drugs in the cigarette
pack should have been suppressed because it was elicited during custodial interrogation
without a Miranda warning. He argues that, had he been given the warning, none of the
drugs would have been discovered.
No custodial interrogation
{¶ 13} Custodial interrogation for Miranda purposes is “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
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his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). “The 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,” Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834,
92 N.E.3d 810, ¶ 33, that is, subjected to “restraints comparable to those associated with
a formal arrest,” Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 82 L.Ed.2d
317 (1984).
{¶ 14} A person temporarily detained during an investigatory traffic stop is not “in
custody” for purposes of Miranda. Berkemer at 440. The Ohio Supreme Court has held
that “[t]he placement of a suspect in the front seat of a police vehicle during a traffic stop
is not alone determinative of whether the suspect has been subjected to a custodial
interrogation.” (Emphasis added.) Oles at ¶ 33. And we have held that being placed in
the back of a police cruiser for a short time does not render a suspect in custody. See
State v. Foxx, 2014-Ohio-235, 7 N.E.3d 615, ¶ 17 (2d Dist.), citing State v. Lozada, 92
Ohio St.3d 74, 76, 748 N.E.2d 520 (2001) (“asking a driver or occupant of a vehicle to sit
in the officer’s cruiser to facilitate a traffic stop is not itself illegal”). See also State v. Polen,
1st Dist. Hamilton Nos. 0050959, C-050960, 2006-Ohio-5599, ¶ 13 (holding that a police
officer was justified in placing a defendant in the cruiser to ensure safety). As we have
explained, “[t]he mere fact that an individual is sitting in the back seat of a police cruiser,
with rear doors that do not open from the inside, without more, is not sufficient to establish
custody. But if the police take actions that would lead a reasonable person in the
defendant’s position to believe that he was going to be detained indefinitely, the encounter
is custodial.” (Citations omitted.) State v. Moody, 2012-Ohio-3390, 974 N.E.2d 1273, ¶ 13
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(2d Dist.).
{¶ 15} When Cody was first asked where the drugs were, he was standing outside
the police cruiser. He had not been arrested, and his detention did not resemble a formal
arrest. He was not in handcuffs and had not been told that he could not leave or that he
was under arrest. The questioning was very brief and was not threatening or intimidating,
it occurred only about four minutes after Cody was stopped. While it is likely that Cody
did not feel free to leave, that is not the test. See Oles at ¶ 31 (“the test is not whether the
individual feels free to leave”). Rather, the test is “whether the situation ‘exerts upon a
detained person pressures that sufficiently impair his free exercise of his privilege against
self-incrimination to require that he be warned of his constitutional rights.’ ” Id. The totality
of the circumstances in this case established that this was not Cody’s situation. Hence,
no Miranda warning was required.
Discovery of the drugs was inevitable
{¶ 16} We agree with the trial court’s conclusion that, as a result of drugs having
been found in the cigarette pack, the drugs that Cody was concealing in his pants would
inevitably have been discovered. Under the doctrine of inevitable discovery, “illegally
obtained evidence may be admitted in a proceeding once the state establishes that the
evidence would inevitably have been discovered in the course of a lawful investigation.”
State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 27. Here,
once the drugs in the cigarette pack were found, which Cody admitted were his, officers
had probable cause to believe that Cody had committed drug offenses and could lawfully
arrest him, which they did. Incident to the arrest, officers would have been permitted to
perform a search of his person. See State v. Klase, 2019-Ohio-3392, 131 N.E.3d 1054,
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¶ 24 (2d Dist.). A search incident to arrest is not simply a pat-down for weapons but “ ‘a
full search of the arrestee’s person for contraband or evidence of a crime.’ ” State v. Todd,
2d Dist. Montgomery No. 23921, 2011-Ohio-1740, ¶ 31, quoting State v. Gagaris, 12th
Dist. Butler No. CA2007-06-142, 2008-Ohio-5418, ¶ 16. When officers did a full search
of Cody, they would have inevitably discovered the drugs concealed in his pants.
III. Conclusion
{¶ 17} The trial court correctly concluded that Cody was not in custody for Miranda
purposes and that the drugs found on his person would have been inevitably discovered.
The sole assignment of error is overruled. The trial court’s judgment is affirmed.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Kirsten Knight
Hon. Michael W. Krumholtz