STATE OF OHIO v. MIRANDA M. CASTEEL
Case No. 16CA19
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
Released: 10/18/17
[Cite as State v. Casteel, 2017-Ohio-8303.]
McFarland, J.
: Case No. 16CA19
Plaintiff-Appellee, :
: DECISION AND JUDGMENT
vs. : ENTRY
MIRANDA M. CASTEEL, :
: Released: 10/18/17
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Brian A. Smith, Brian A. Smith Law Firm, LLC, Akron, Ohio, for
Appellant.
Kevin A. Rings, Washington County Prosecuting Attorney, and Alison L.
Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Miranda Casteel appeals from her conviction for aggravated
possession of drugs, a charge to which she pleaded no contest after the trial
court denied her motion to suppress. On appeal, Appellant contends that 1)
the trial court erred in denying her motion to suppress; and 2) the trial
court’s decision to admit the audio recording of the conversation between
Sergeant Heddleston and herself that was recorded at a Rite Aid Store was
an abuse of discretion. Having found no merit to either of the assignments
the trial court’s decision denying Appellant’s motion to suppress.
FACTS
{¶2} Appellant was indicted on one count of aggravated possession of
drugs, a fifth degree felony in violation of
The indictment stemmed from an encounter between Appellant and law
enforcement that occurred on May 3, 2015, in which two pills, later
determined to be a controlled substance for which Appellant did not have a
prescription, were found after a search of Appellant’s purse. Appellant
pleaded not guilty to the charge and then filed a motion to suppress “all
evidence obtained as a result of the stop of Defendant by Sargent [sic]
Heddleston * * *.” The motion further stated that “[s]aid suppression is
warranted by the fact that the Defendant was detained and interviewed
without the benefit of Miranda Warnings.”1 No memorandum in support of
the motion was attached. A suppression hearing was held as a result.
{¶3} Sergeant Heddleston testified on behalf of the State at the
suppression hearing. He testified that on the date in question, as he was
beginning his patrol, he noted a car parked oddly and partially blocking the
entrance to a local Rite Aid store. He testified that the windows in the car
car. As he was inquiring with store employees regarding the car, he was
dispatched a few streets over to a report of a woman with a child looking
into car windows. Sergeant Heddleston testified that he found Appellant and
a child walking along a sidewalk a few streets away from the store and
stopped to speak with her. He testified that he got out of his car and
approached her on a public sidewalk and initially asked her is she was okay,
to which she responded yes.
{¶4} He testified that she denied looking in car windows, and then
said she was looking but had not taken anything. When asked if the car at
Rite Aid was hers she said no, however, the child that was with her said
“Quit lying Mommy.” Sergeant Heddleston testified he asked again and
advised Appellant she could be arrested for lying to a police officer. He then
asked her to step down to his cruiser to speak with him. According to
Sergeant Heddleston, Appellant said no and that she was fine to stay on the
sidewalk, which she did initially. Appellant then advised the sergeant that
the car was not hers, but that it belonged to her ex-boyfriend and that she
could call him. As she tried to access her purse for her phone, Sergeant
Heddleston asked her to put her purse on his cruiser and asked her if there
was anything illegal in her purse. She responded no. He testified that he
ahead.”
{¶5} Sergeant Heddleston testified that upon searching her purse he
found several prescriptions and also found two pills which were ultimately
determined to be a controlled substance for which Appellant did not have a
prescription. When he asked Appellant about the pills she stated she did not
know anything about them. Sergeant Heddleston testified that Appellant
was never placed under arrest, was never advised she was under arrest, was
never handcuffed, and that no other officers were present. In fact, Sergeant
Heddleston testified that he advised Appellant she was welcome to walk
back to the Rite Aid store, where her ex-boyfriend was coming to pick up
the car, and he would meet her there. At that point, Appellant left with the
child and walked back to the store. She was not at any point put into the
cruiser or driven there. The sergeant testified that he met her back at the
store and then took a recorded statement from her, in which he advised that
she was not under arrest, that she was free to leave and reaffirmed that she
had provided consent to search her purse. According to Heddleston’s
testimony, Appellant advised him at that time that although she did have
prescriptions for “ADH” (ADHD) drugs, she did not have a prescription for
Ritalyn. At that point, Appellant went on her way.
{¶6} During the hearing, the State sought to admit the audio recording
for the trial court’s review. Although defense counsel stipulated that the
recording was in fact a recording between the sergeant and Appellant, he
objected based upon relevancy, explaining that the statements made on the
recording occurred after the initial encounter and were not the subject of the
suppression motion. The trial court allowed the recording to be submitted
over the objection of Appellant. After considering post-hearing briefs, the
trial court denied Appellant’s motion to suppress. Appellant thereafter
entered a plea of no contest to the charge. Appellant has now filed a timely
appeal from the trial court’s judgment, setting forth two assignments of error
for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION TO SUPPRESS.
II. THE TRIAL COURT’S DECISION TO ADMIT THE AUDIO
RECORDING OF THE CONVERSATION BETWEEN SERGEANT
HEDDLESTON AND APPELLANT, AT THE RITE AID STORE,
WAS AN ABUSE OF DISCRETION.”
{¶7} In her first assignment of error, Appellant contends the trial court
erred in denying her motion to suppress. “Appellate review of a motion to
suppress presents a mixed question of law and fact. When considering a
motion to suppress, the trial court assumes the role of trier of fact and is
therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003–
Ohio–5372, 797 N.E.2d 71, ¶ 8; citing State v. Mills, 62 Ohio St.3d 357,
366, 582 N.E.2d 972 (1992); See also State v. Codeluppi, 139 Ohio St.3d
165, 2014–Ohio–1574, 10 N.E.3d 691, ¶ 7; State v. Wesson, 137 Ohio St.3d
309, 2013–Ohio–4575, 999 N.E.2d 557, ¶ 40. “Consequently, an appellate
court must accept the trial court‘s findings of fact if they are supported by
competent, credible evidence.” Burnside at ¶ 8; citing State v. Fanning, 1
Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts as true, the
appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id. at ¶ 8; citing State v. McNamara, 124 Ohio App.3d 706, 707
N.E.2d 539 (4th Dist.1997). See also State v. Roberts, 110 Ohio St.3d 71,
2006–Ohio–3665, 850 N.E.2d 1168, ¶ 100.
warnings, the issue is whether she was in custody for Miranda purposes and
whether the trial court should have suppressed all evidence derived from the
police encounter. Appellant further contends that she was in custody for
purposes of Miranda, and thus argues that all evidence from the police
encounter should have been suppressed, including the search of her purse,
which she argues was “derived from police questioning.” Appellant argues
that her incriminatory statements should be suppressed because she was not
Mirandized, and that she was “in custody” because she did not feel free to
walk away from the police encounter. Finally, with regard to the search of
her purse, she argues that her consent to search was involuntary, citing in
support the fact that “there is no indication that [she] was aware of her right
to refuse to consent to Heddleston’s questioning, or to his demand that he be
allowed to search her purse.”
{¶9} The State contends that Appellant argues, for the first time on
appeal, that her consent to search was involuntary. The State points out that
Appellant “never alleged that the physical evidence should be suppressed
because her consent to search was coerced or involuntary.” The State
further argues that law enforcement officers are not constitutionally required
to issue Miranda warnings before asking for consent to search, and that
first assignment of error should be overruled. The State further posits that
the evidence found in Appellant’s purse was found after she consented to a
search of her purse, that Miranda warnings are not required for an officer to
request consent to search, and therefore, the questions of whether Appellant
was in custody, and whether she should have received Miranda warnings,
are irrelevant.
{¶10} With regard to the State’s waiver argument, this Court recently
noted in State v. Davis, 2016-Ohio-3539, 67 N.E.3d 33, ¶ 52 (4th Dist.2016)
as follows:
“ ‘It is well settled that issues not raised in an original motion to
suppress cannot be raised for the first time on appeal.’ ” State v.
Jones, 4th Dist. Highland No. 04CA9, 2005-Ohio-768, 2005
WL 433433, ¶ 18; see also State v. Markins, 4th Dist. Scioto
No. 10CA3387, 2013-Ohio-602, 2013 WL 658264, ¶ 25. As we
stated in Jones, this is no mere technicality. Id. Crim.R. 47
requires a motion to suppress to ‘state with particularity the
grounds upon which it is made and [to] set forth the relief or
order sought.’ State v. Rife, 4th Dist. Ross No. 11CA3276,
2012-Ohio-3264, 2012 WL 2928546, ¶ 17. ‘These requirements
exist because “the prosecutor cannot be expected to anticipate
the specific legal and factual grounds upon which the defendant
challenges the legality of a warrantless search.” ’ Id., quoting
Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889
(1988).”
{¶11} Here, Appellant’s motion to suppress sought suppression of “all
evidence obtained as a result of the stop of Defendant by Sargent [sic]
further specified that “[s]aid suppression is warranted by the fact that the
Defendant was detained and interviewed without the benefit of Miranda
Warnings.” There was no memorandum attached in support of the motion
and the motion alleged no other grounds for suppression of the evidence.
Importantly, the motion did not seek suppression of the evidence seized
during the search of Appellant’s purse on the basis that her consent to search
was involuntarily given. Based upon the foregoing, Appellant’s argument
that the physical evidence found during a search of her purse should be
suppressed has been waived to the extent that it is premised upon a
contention that her consent to search was involuntarily given. As such, we
will not address this argument for the first time on appeal. State v. Davis at ¶
53 (where this Court refused to consider the appellant’s argument that the
warrantless search of her passengers and her purse exceeded the scope of her
consent, where the issue was not raised before the trial court and was not
fully developed during the trial court proceedings).
{¶12} Additionally, Appellant contends that the physical evidence
recovered from her purse should be suppressed because she was not
provided with Miranda warnings during the police encounter, during which
time Appellant contends she was in custody. Thus, Appellant urges this
Miranda warning, and that the failure to provide her with Miranda warnings
mandates that the physical evidence recovered as a result of a consent search
of her purse must be suppressed. As set forth above, the State does not
concede that Appellant was in custody or that she should have been provided
with Miranda warnings. The State further contends that Miranda warnings
are not required to validate a consent to search. Based on the following
reasons, we agree with the State and therefore reject Appellant’s argument.
{¶13} The Fifth Amendment to the United States Constitution
provides that no person “shall be compelled in any criminal case to be a
witness against himself.” To safeguard a suspect‘s Fifth Amendment
privilege against self-incrimination, law enforcement officers seeking to
perform a custodial interrogation must warn the suspect “that he has the
right to remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.” Miranda v. Arizona, supra, at 479. In the
absence of these warnings, a suspect‘s incriminatory statements made during
a custodial interrogation are inadmissible at trial. Michigan v. Mosley, 423
U.S. 96, 99-100, 96 S.Ct. 321 (1975) (footnote and citation omitted)
questioning a person in custody, and follow certain specified procedures
during the course of any subsequent interrogation, any statement made by
the person in custody cannot over his objection be admitted in evidence
against him as a defendant at trial, even though the statement may in fact be
wholly voluntary.”); Miranda at 479 (stating that no evidence stemming
from the result of a custodial interrogation may be used against defendant
unless procedural safeguards employed); State v. Maxwell, 139 Ohio St.3d
12, 2014–Ohio–1019, 9 N.E.3d 930, ¶ 113 (stating that “the prosecution may
not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against selfincrimination.”). Moreover, under Section 10, Article I of the Ohio
Constitution “evidence obtained as the direct result of statements made in
custody without the benefit of a Miranda warning should be excluded.”
State v. Farris, 109 Ohio St.3d 519, 529, 2006-Ohio-3255, 849 N.E.2d 985,
996, ¶ 49) (Emphasis added); but see United States v. Patane, 542 U.S. 630,
124 S.Ct. 2620 (2004) (holding that violation of Miranda does not require
suppression of nontestimonial evidence).
subjected to police questioning. State v. Hoffner, 102 Ohio St.3d 358, 2004–
Ohio–3430, 811 N.E.2d 48, ¶ 26; State v. Biros, 78 Ohio St.3d 426, 440, 678
N.E.2d 891 (1997); citing Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct.
711 (1977). “ ‘Nor is the requirement of warnings to be imposed simply
because * * * the questioned person is one whom the police suspect.’ ”
Biros, 78 Ohio St.3d at 440; quoting Oregon at 494. Instead, “[o]nly
custodial interrogation triggers the need for Miranda warnings.” Id. at 440
(citations omitted).
{¶15} Miranda defined “custodial interrogation” as “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 at 444; accord Stansbury v. California, 511 U.S. 318, 322,
114 S.Ct. 1526 (1994); Oregon at 495 (stating that the Miranda protection
attaches “only where there has been such a restriction on a person‘s freedom
as to render him in ‘custody’ ”). In Ohio, it has consistently been stated that
“[i]n order to determine whether a person is in custody for purposes of
receiving Miranda warnings, courts must first inquire into the circumstances
surrounding the questioning and, second, given those circumstances,
determine whether a reasonable person would have felt that he or she was
Ohio St.3d 358, 2004–Ohio–3430, 811 N.E.2d 48, ¶ 27; citing Thompson v.
Keohane, 516 U.S. 99, 112, 116 S.Ct. 457 (1995); accord J.D.B. v. North
Carolina, 564 U.S. 261, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). As
set forth above, Appellant argues she did not feel free to leave the encounter
and she points to testimony during the suppression hearing by Sergeant
Heddleston in which he stated he could see where she may have felt, from
her perspective, that she was not free to leave.
{¶16} However, in a more recent decision, the Supreme Court of Ohio
has now held that the test is not whether a reasonable person believes
himself or herself to be free to leave, but rather the relevant inquiry is
“whether a reasonable person in the suspect’s position would have
understood himself or herself to be in custody.” Cleveland v. Oles, 2017-
Ohio-5834, -- N.E.3d –, ¶ 30 (2017). In announcing this new test, the Court
reasoned as follows:
“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 because ‘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,’ [Berkemer v. McCarty, 468 U.S. 420, 436,
104 S.Ct. 3138 (1984).] 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
custody’ are distinct concepts.” Id.
The Court further reasoned that:
“For purposes of constitutional privilege against self
incrimination, the test is not whether the individual feels free to
leave but 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. at ¶ 31; quoting Berkemer at
437.
Ultimately, in Cleveland v. Oles the Court found, based on the totality of the
circumstances, that the suspect was not in custody and that no constitutional
violation occurred where the suspect was stopped, asked to step out of the
vehicle and sit in the front seat of the patrol car, questioned regarding his
destination and how much alcohol he had consumed that evening, directed to
perform field sobriety tests, failed the tests, and was arrested, all without
receiving Miranda warnings. Id. at ¶ 2-4, 33.
{¶17} The Supreme Court of Ohio has held that an individual
temporarily detained as part of a routine traffic or investigatory stop
ordinarily is not “in custody” and is not, therefore, entitled to Miranda
warnings. State v. Farris, 109 Ohio St.3d 519, 2006–Ohio–3255, 849 N.E.2d
985, ¶ 13; citing Berkemer v. McCarty at 439–440 (noting that investigative
stops are not subject to Miranda requirements and holding that Miranda not
implicated during traffic stop for swerving when officer questioned driver
investigatory questioning do not constitute custodial interrogations
warranting the right to Miranda warnings.” State v. Brocker, 11th Dist.
Portage No. 2014–P–0070, 2015–Ohio–3412, ¶ 17 (citations omitted); see
State v. Jackson, 9th Dist. Summit Nos. 27132, 27200, 27133, 27158, 2015–
Ohio–5246 (determining that Miranda did not apply to traffic stop during
which officer asked defendant where he had been and whether he had
purchased any items at the store where he had been); State v. Campbell, 2nd
Dist. Montgomery No. 26497, 2015–Ohio–3381, (determining that Miranda
not implicated during investigative stop to ascertain whether eighteen-yearold defendant had been drinking when there was no evidence that defendant
was handcuffed, and the defendant was not informed that he was under
arrest or detained in police car); State v. Smoot, 2nd Dist. Montgomery No.
26297, 2015–Ohio–2717, 38 N.E.3d 1094, 1112–13, ¶ 41 (determining that
defendant was not in custody for purposes of Miranda when officer asked
defendant about the contents of his vehicle during traffic stop); State v.
Vineyard, 2nd Dist. Montgomery No. 25854, 2014–Ohio–3846 (determining
that defendant not in custody during traffic stop even though officer asked
defendant to exit his vehicle and asked defendant whether he had any
weapons); State v. Ware, 8th Dist. Cuyahoga No. 89945, 2008–Ohio–2038
which officer asked defendant if he had any weapons, drugs, or contraband
in the vehicle); State v. Leonard, 1st Dist. Hamilton No. C–060595, 2007–
Ohio–3312 (holding that Miranda warnings were not required when an
officer removed defendant from his vehicle and placed defendant in front
passenger seat of officer‘s patrol vehicle for questioning). However, during
a traffic or investigative stop circumstances may change and render an
individual “in custody” for practical purposes and, thus, “ ‘entitled to the full
panoply of protections prescribed by Miranda.’ ” Farris at ¶ 13; quoting
Berkemer at 440.
{¶18} Here, a review of the record reveals that the evidence presented
at the suppression hearing failed to establish that Appellant was in custody at
any point during the encounter with law enforcement. And, Appellant was
approached by law enforcement during daylight hours, while she was on
foot in a public place. There is no evidence in the record that suggests
Appellant’s interaction with law enforcement was anything but consensual
and importantly, when the officer requested Appellant step down to his
cruiser to speak with him she refused and stated she was fine to stay on the
sidewalk, which she did. In fact, she did not step down to his cruiser until
afterwards, when the officer asked if he could search her purse as she was
the officer requested to search her purse, Appellant stated “Go ahead.”
{¶19} Further, and notably, after thoroughly reviewing the record,
including the motion to suppress, post-hearing briefs, transcript from the
suppression hearing and appellate briefs, this Court has been unable to
identify any allegedly incriminatory statement made by Appellant during the
encounter. At the time when Appellant was being questioned on the
sidewalk and beside the cruiser, she simply denied having anything illegal in
her purse, provided consent to search, and then stated she did not know
anything about the pills that were found. There were no incriminatory
statements made by Appellant at the time that even related to the drugs
found in her purse. The trial court noted as much in its decision denying
Appellant’s motion to suppress, stating as follows:
“Taking the evidence in its entirety, the Court finds that the
Defendant was not in custody, was free to leave at any time and
ultimately walked away; that there are not statements being
used by the State, and finally, that the discovery of the illegal
drugs was the result of a consensual search.” (Emphasis added).
Thus, the illegal drugs recovered from Appellant’s purse were not linked
with any statement made by Appellant and thus were not “derived” from the
questioning of Appellant by law enforcement. Also, of importance and as
referenced by the State in its brief, this Court has previously held that
required to validate consent searches, even when the consent is obtained
after the defendant is effectively in custody.’ ” State v. Henson, 4th Dist.
Highland No. 05CA13, 2006-Ohio-2861, ¶ 30 (in response to an argument
that the appellant’s consent was invalid because Miranda warnings were not
given prior to obtaining consent to search); quoting State v. Clelland, 83
Ohio App.3d 474, 481, 615 N.E.2d 276 (1992); citing State v. Austin, 52
Ohio App.2d 59, 368 N.E.2d 59 (1976).
{¶20} Further, despite Appellant’s argument that because she did not
feel free leave she was thus in custody for purposes of Miranda, as set forth
above, the newer test announced by the Supreme Court of Ohio in Cleveland
v. Oles does not focus on that particular question, but instead focuses on
whether the situation exerted upon Appellant pressure sufficient to impair
her free exercise of her privilege against self-incrimination to require that
she be warned of her constitutional rights. We cannot conclude, based upon
these facts, that such a situation existed. Additionally, with respect to
Appellant’s argument that law enforcement had a duty to affirmatively
inform her that she was not under arrest and was free to leave, the Supreme
Court of Ohio has stated in State v. Robinette, 80 Ohio St.3d 234, 245, 685
N.E.2d 762 (1997) that the “Ohio Constitution does not require a police
is free to go before the officer may attempt to engage in a consensual
interrogation.” Admittedly, Appellant was not stopped for a traffic violation
but the reasoning is nevertheless applicable. Finally, as this Court noted in
State v. Davis, supra, at ¶ 41, “ ‘an individual’s knowledge of the right to
refuse consent ‘is not a prerequisite of a voluntary consent.’ ” Quoting State
v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 24; in turn
quoting Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041
(1973).
{¶21} Because Appellant has waived the argument that her consent to
search was involuntary, and because we have determined that Appellant was
not in custody for purposes of triggering a Miranda warning and that
Appellant made no incriminating statements during the part of the encounter
in question, we reject the arguments raised under Appellant’s first
assignment of error. Accordingly, Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
{¶22} In her second assignment of error, Appellant contends that the
trial court’s decision to admit the audio recording of the conversation
between Sergeant Heddleston and herself, which occurred at the Rite Aid
recording was not relevant under Evid.R. 401 and 402, and that it was more
prejudicial than probative and should have been excluded under Evid.R. 403.
The State contends that the Rules of Evidence are not applicable in
suppression hearings and that Appellant’s assignment of error should be
overruled on that basis. The State further argues that the audio tape was
relevant to the trial court’s totality of the circumstances analysis in
determining whether Appellant was in custody during the earlier portion of
the police encounter.
{¶23} The admission or exclusion of evidence generally rests within
the trial court‘s sound discretion. State v. Minton, 2016-Ohio-5427, 69
N.E.3d 1108, ¶ 45; State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199,
921 N.E.2d 276, ¶ 14 (4th Dist.). Thus, an appellate court will not disturb a
trial court‘s ruling regarding the admissibility of evidence absent a clear
showing of an abuse of discretion with attendant material prejudice to
defendant. Id. “ ‘A trial court abuses its discretion when it makes a decision
that is unreasonable, unconscionable, or arbitrary.’ ” State v. Williams, 4th
Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 17, quoting State v. Keenan,
143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7; quoting State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
the sidewalk and then by the police cruiser, Sergeant Heddleston later met
Appellant back at the Rite Aid store, where she had left her ex-boyfriend’s
car parked, and proceeded to take a recorded statement from Appellant. At
the suppression hearing, defense counsel stipulated that the audio recording
was a recording between the officer and his client, but objected on relevance
grounds, explaining that the suppression motion related to statements
obtained prior to the recording being made. The court allowed the recording
to be submitted and stated it would review it to determine if it was relevant.
In its decision denying the motion to suppress, the trial court simply stated
“[a] tape of at least portions of the stop was provided to the Court.” The trial
court did not cite or quote any portion of the recording in its entry. Further,
there is no indication that the audio recording was transcribed, and it was not
transmitted to this Court with the rest of the record. Thus, it is not part of
the record on appeal.
{¶25} We conclude, albeit after a limited review based upon the fact
that we are not able to actually review the audio recording, that even if the
recording was made after the initial encounter with police in which
Appellant is complaining, that the recording was relevant to the totality of
the circumstances analysis undertaken by the trial court. Thus, we find no
relevant to the trial court’s determinations below, the trial court correctly
accepted it into evidence for review as to whether it would ultimately be
admissible.
{¶26} Additionally and importantly, as argued by the State, “ ‘the
Rules of Evidence do not apply to suppression hearings.’ ” State v. Ulmer,
4th Dist. Scioto No. 09CA3283, 2010-Ohio-695; ¶ 10; quoting State v.
Bozcar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17, citing
Evid.R. 101(C)(1) & 104(A); see also State v. Norman, 4th Dist. Ross Nos.
08CA3059 & 66, 2009–Ohio–5458. Therefore, “ ‘[a]t a suppression
hearing, the court may rely on * * * evidence, even though that evidence
would not be admissible at trial.’ ” Maumee v. Weisner, 87 Ohio St.3d 295,
298, 720 N.E.2d 507 (1999); quoting United States v. Raddatz (1980), 447
U.S. 667, 679, 100 S.Ct. 2406 (1980). Accordingly, Appellant‘s argument
fails as a matter of law.
{¶27} Having found no merit in Appellant’s second assignment of
error, it is also overruled. Accordingly, we affirmed the judgment of the
trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.