STATE OF OHIO, Plaintiff-Appellee, - vs - CONNIE DEAN, Defendant-Appellant.
CASE NO. CA2013-03-007
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
2/10/2014
2014-Ohio-448
HENDRICKSON, P.J.; M. POWELL, J., concurs; PIPER, J., concurs separately.
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. 12CRI00173
Danielle Sollars-Creamer, 4222 Washington-Waterloo Road N.E., Washington C.H., Ohio 43160, for defendant-appellant
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Connie Dean, appeals from a decision of the Fayette County Court of Common Pleas denying her motion to suppress. For the reasons that follow, we affirm the decision of the trial court.
{¶ 2} On April 25, 2012, officers from the Washington Court House Police Department and deputies from the Fayette County Sheriff‘s Office went to the address of
{¶ 3} When Officer Chancey Scott arrived on the scene, he initially remained with a handcuffed Pendergraft outside. However, after entering the residence, he observed the drug-related items in plain view and asked Dean if there was “any more.” Dean responded affirmatively. When asked where, Dean motioned towards and then led Officer Scott to a bedroom. Dean then granted Officer Scott permission to enter the bedroom. When Officer Scott opened the door to the bedroom, he discovered approximately 20 marijuana plants. At this point, no one had given Dean or Pendergraft Miranda warnings.
{¶ 4} On November 21, 2012, Dean filed a motion to suppress alleging that the officers violated both the
{¶ 5} Dean now appeals, asserting as her sole assignment of error the following:
{¶ 6} THE TRIAL COURT ERRED IN NOT GRANTING [DEAN‘S] MOTION TO SUPPRESS EVIDENCE FOUND IN THE BEDROOM AS FRUIT OF THE POISONOUS TREE FROM AN UNLAWFUL SEARCH.
{¶ 7} On appeal, Dean asserts that an unreasonable warrantless search was performed by the officers in violation of the
{¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Preston, 12th Dist. Clermont No. CA2012-05-036, 2012-Ohio-6176, ¶ 15. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. Id. The appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Id., citing State v. Jimenez, 12th Dist. Warren No. CA2011-09-103, 2012-Ohio-3318, ¶ 8. After accepting the trial court‘s factual findings as true, the appellate court must then determine, as a matter of law, and without deferring to the trial court‘s conclusions, whether the trial court applied the appropriate legal standard. Jimenez at ¶ 8, citing State v. Forbes, 12th Dist. Preble No. CA2007-01-001, 2007-Ohio-6412, ¶ 29.
{¶ 9} The foundation of Dean‘s argument regarding whether her consent to search was voluntary rests in the
{¶ 10} The
{¶ 11} “The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined from all the circumstances.‘” Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417 (1996), citing Schneckloth at 248-249; State v. Oberding, 12th Dist. Warren No. CA2011-09-101, 2012-Ohio-3047, ¶ 14. A warrantless search based upon a suspect‘s consent while not in custody is valid if the “consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.” Schneckloth at 248. This principle has been extended to in-custody cases. See United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820 (1976) (finding that custody is only a factor to be considered under the totality of the circumstances); see also State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816. The
{¶ 12} “In Schneckloth, the United States Supreme Court set forth several factors that a trial court must consider in determining whether a consent was voluntary.” Christopher at ¶ 45. They include (1) the suspect‘s custodial status and the length of the initial detention, (2) whether the consent was given in public or at a police station, (3) the presence of threats, promises, or coercive police procedures, (4) the words and conduct of the suspect, (5) the extent and level of the suspect‘s cooperation with the police, (6) the suspect‘s awareness of his right to refuse to consent and his status as a “newcomer to the law,” and (7) the suspect‘s education and intelligence. Id.
{¶ 13} “The weight of authority holds that prior Miranda warnings are not required to validate consent searches, even when the consent is obtained after the defendant is effectively in custody.” State v. Clelland, 83 Ohio App.3d 474, 481 (4th Dist.1992). See State v. Reyes, 12th Dist. Preble No. CA2004-05-007, 2005-Ohio-2113. “While the test in consent cases relates to surrounding circumstances of which awareness of the right to refuse consent is a factor, * * * the absence of Miranda warnings [is] not dispositive of the voluntariness of the consent issue.” (Emphasis sic.) Reyes at ¶ 22.
{¶ 14} In applying the voluntary consent factors set forth in Schneckloth, we find that (1) Dean was in custody on an unrelated warrant and, although the record is silent as to the length of the detention, it appeared to be reasonable and not drawn out; (2) Dean gave her consent at her residence; (3) there were no words or actions on the part of the officers that could be construed as intimidation, force, or pressure to coerce Dean to respond; (4) Dean‘s words and conduct reveal that she was the one who asked whether she could reenter the home to retrieve her shoes and secure the residence and, even though she knew she would
{¶ 15} Considering the weight of the factors, the trial court found Dean‘s consent voluntary. Whether consent is voluntary is a question of fact best determined by the trial court. After reviewing the totality of the circumstances, we agree that Dean‘s consent was voluntary. Furthermore, because the absence of Miranda warnings is not dispositive of the consent issue, there was no violation of Dean‘s
{¶ 16} With respect to her
{¶ 17} In United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620 (2004), the United States Supreme Court had held that “the Miranda rule protects against violations of the Fifth Amendment‘s Self-Incrimination Clause, but does not apply to nontestimonial physical evidence.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 37.1 The Ohio State Supreme Court determined that
{¶ 18} In Farris, after being pulled over, defendant was placed in the front seat of the cruiser. Id. at ¶ 3. The officer told defendant that he had smelled marijuana in the vehicle and asked about the smell of marijuana without giving defendant Miranda warnings or asking for consent to search the car. Id. Defendant stated that his housemates had been smoking. Id. In response, the officer told defendant that he was going to search the car. Id. Then, the officer specifically asked defendant whether there were any drugs or drug devices in the car. Id. Defendant responded that there was a “bowl” in a bag located in the trunk. Id. The Ohio Supreme Court held that the discovery of the bowl was a direct result of a Miranda violation and thus should have been suppressed. Id. at ¶ 49.
{¶ 19} This case presents a situation markedly different from that in Farris. In Farris a warrantless, nonconsensual search was conducted based upon a pre-Miranda testimonial statement that there were drugs in the vehicle‘s trunk given by an “in custody” defendant. Because the search of the vehicle was nonconsensual, the exception of voluntary consent to the general
{¶ 20} Furthermore, in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1985), the United States Supreme Court held that an arrestee’s voluntary pre-Miranda incriminating statements did not invalidate subsequent incriminating statements made after the arrestee waived his Miranda rights. In doing so the Supreme Court observed, “This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver.” Elstad at 312. Although Elstad dealt with the efficacy of a Miranda waiver subsequent to a prior Miranda violation, there is no reason why the same logic ought not apply here, to a
{¶ 21} Though Dean claims that her consent to search was not voluntary and that her unwarned responses to Officer Scott’s questions violated Miranda, she does not claim that her responses to Officer Scott’s questions were not voluntary. On the contrary, Dean all but admits in her brief that her responses were voluntary (“the questioning was not coercive and [Dean] did not seem to be under duress“). The record reflects that, though Dean was not advised of her Miranda rights, her statements and consent were nonetheless, voluntary. Thus, Dean’s voluntary consent to search, consistent with Elstad and Farris, severed the connection between any alleged Miranda violation and the subsequent search and seizure of the marijuana plants. Consequently, the evidence was not obtained as a direct result of any statements made in custody without regard to whether the statements were the product of a Miranda violation.
{¶ 22} Accordingly, the trial court did not err in denying Dean‘s motion to suppress evidence found in the bedroom as fruit of the poisonous tree from an unlawful search. Dean‘s sole assignment of error is overruled.
{¶ 23} Judgment affirmed.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{¶ 25} In making its determination, the majority attempts to distinguish the Ohio Supreme Court case of Farris from the law applicable herein. In Farris, the Ohio Supreme Court extended the protection against self-incrimination found under
{¶ 26} The questioning by Officer Scott directly led to the discovery of the marijuana plants. Without Officer Scott‘s questions as to whether there was “any more?” and “where?,” Dean would not have directed him to the bedroom. Due to the short sequential chain of events, the marijuana plants were discovered as a direct result of statements made by Dean without the benefit of Miranda with or without Dean‘s subsequent consent. A voluntary consent to search does not cure the prejudice directly flowing from an immediately-preceding Miranda violation.
{¶ 27} Furthermore, with this short sequential chain of events, I fail to see how Elstad is analogous to this case. Elstad applies to situations in which a Miranda violation occurs and a subsequent Miranda waiver is obtained. The issue in this case does not involve a subsequent Miranda waiver that might sever the link between any Miranda violation and the statements leading to the discovery of the marijuana plants. In any event, in order for a subsequent Miranda waiver to be valid, the waiver cannot be a part of “a single, unwarned sequence of questioning.” Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004), fn. 4;
{¶ 28} However, I agree with the conclusion of the majority that the marijuana plants discovered in the bedroom need not have been suppressed. Contrary to the direction of the majority opinion, I agree with, and would expound upon, the trial court‘s rationale. As the majority correctly points out, the appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Jimenez at ¶ 8. The testimony was adequate for the trial court to make findings, and as such, must be accepted as true for purposes of our analysis. See State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, ¶ 26.
{¶ 29} The trial court specifically did not suppress statements made by Dean prior to the discovery of the marijuana plants indicating that it did not find Dean to be subject to custodial interrogation at that point in time. The heart of the inquiry as to whether or not a suspect has been interrogated such that Miranda warnings are required focuses on whether or not the suspect has been the subject of police coercion and whether the individual has been compelled to speak by virtue of pressures from that coercion. State v. Tucker, 81 Ohio St.3d 431, 437 (1998). “In determining whether an individual was in custody, the court must examine the totality of the circumstances surrounding the interrogation.” Durham, 12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 17, citing State v. Coleman, 12th Dist. Butler No. CA2001-10-241, 2002-Ohio-2068, ¶ 23. Thus, it is necessary to determine the nature of the interrogation as well as the nature of custody in place. Both contribute to the totality of the circumstances that may result in an individual‘s response or the need to give Miranda warnings. A planned or designed questioning of a suspect is very different than a spur of the moment or spontaneous question produced by the unexpected observation of
{¶ 30} Miranda warnings may be given as a safeguard to protect an individual‘s right to remain silent; however, Miranda warnings are not always necessary nor are they independent of the surrounding circumstances. Miranda warnings are not designed to protect a suspect from making statements, but rather are designed to protect a suspect from making statements involuntarily. Questioning within the confinement of an interview room in a police station is not automatically custodial interrogation. See State v. Biros, 78 Ohio St.3d 426, 440-442 (1997); State v. Watts, 12th Dist. Butler No. CA2005-08-364, 2007-Ohio-221. Similarly, questioning of an inmate while in the custody and care of the state is also not automatically custodial interrogation requiring Miranda warnings. See State v. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, ¶ 16 (2d Dist.); State v. Simpson, 10th Dist. Franklin No. 01AP-757, 2002-Ohio-3717, ¶ 34-35. One must look at the circumstances to determine what restrictions of liberty or restraint of freedom has taken place such that the circumstances are coercive and pressures flowing therefrom produced responses that were involuntary.
{¶ 31} In general, if a reasonable person in an individual‘s position would have believed that he or she was not free to leave given the totality of the circumstances, then it will be determined that the individual is in custody and any questioning is “custodial interrogation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138 (1984); State v. Gumm, 73 Ohio St.3d 413, 429 (1995). However, the restraint of freedom or “freedom to leave” analysis becomes inapplicable when the individual being questioned is already in custody for other reasons. State v. Bradley, 4th Dist. Scioto No. 1583, 1987 WL 17303, *8 (Sept. 22, 1987), citing Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978); United States v. Conley, 779 F.2d 970 (4th Cir.1985); United States v. Ozuna, 170 F.3d 654 (6th Cir.1999). In instances where the individual is already in custody, courts have examined whether or not the
{¶ 32} There is a vast difference between statements which are coerced by methods employed or intended to break a suspect‘s will and overcome the voluntariness of the suspect‘s desire not to respond and those incriminating statements which are freely given in response to an unwarned but noncoercive question. Peeples at 43. The officer‘s reaction to unexpectedly seeing drug paraphernalia was a reasonable and natural response, “is there more?”4 We have recognized that general fact-gathering is not necessarily a part of custodial interrogation, saying, “‘[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process ordinarily does not fall within the ambit of custodial interrogation.‘” Durham at ¶ 23, quoting State v. Rivera-Carrillo, 12th Dist. Butler No. CA2001-03-054, 2002 WL 371950, *3 (Mar. 11, 2002). Neither immediately before nor after this question, were there any words or actions that could in any way be construed as being additional intimidation, force, or pressure upon Dean to respond. The police were cooperative with Dean and she in turn was voluntarily cooperative with them.
{¶ 33} The initial arrest upon the menacing warrant was continuing in progress and did
{¶ 34} The officer‘s simple question “is there more?” was also not coercive, nor was there any evidence such question was employed to gain an incriminating response. After hearing the testimony, the trial court found, and I agree, there was nothing to suggest the officer was attempting to elicit an incriminating response. The officer may well have been hoping to put an end to his initial investigation of the minor contraband so that Dean could retrieve her shoes, leave the trailer, and the officer could eventually return to his daily duties. There are no facts to support any type of coercion or psychological pressure, which produced a custodial interrogation. Within these unusually unique and narrow facts, a “custodial interrogation” did not take place as determined by the trial court.
{¶ 35} Custodial interrogations by their very nature produce compelling pressures which work to undermine an individual‘s will to resist and compel him or her to speak where they otherwise would not do so freely. Miranda, 384 U.S. 436, 86 S.Ct. 1602. Miranda conceptualized the circumstances “‘must reflect a measure of compulsion above and beyond that inherent in custody itself’ before it will be considered a custodial interrogation.” Durham at ¶ 16, quoting State v. Brumley, 12th Dist. Butler No. CA2004-05-114, 2005-Ohio-5768, ¶ 10. Serious questioning within the required confinement of an interview room at a police station is very different from the situation at hand, wherein Dean was walking about in her own home (looking for shoes) and
Notes
1. {¶ a} In Patane, defendant was suspected of violating a restraining order and possibly being in possession of a firearm. Id. at 635. After officers arrested defendant for a violation of a restraining order, an officer began to advise defendant of his Miranda warnings, but was interrupted and defendant was never actually given his Miranda warnings. Id. Subsequently, the officer asked defendant about a handgun. Id. Defendant told the officer that the handgun was in his bedroom and gave the officer permission to retrieve the handgun. Id. The United States Supreme Court stated:
{¶ b} [J]ust as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in such cases as Wong Sun [v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441], which established the ‘fruit of the poisonous tree’ doctrine does not apply.
{¶ c} Id. at 637.
{¶ d} Furthermore, the United States Supreme Court stated:
{¶ e} It follows that police do not violate a suspect‘s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements is a complete and sufficient remedy” for any perceived Miranda violation. Chavez [v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994 (2003)].
{¶ f} Id. at 641-642.