Case Number: 2017-P-0018

Judge: THOMAS R. WRIGHT

Court: IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

Plaintiff's Attorney: Victor V. Vigluicci
Portage County Prosecutor

Pamela J. Holder
Assistant Prosecutor

Defendant's Attorney: Barbara Rogachefsky

Description: Ferrell was a backseat passenger of a friend’s car when she was pulled
over for a marked lanes violation. Ferrell remained seated in the backseat while officers
removed the driver of the vehicle and conducted a pat down. She then authorized a
search of her vehicle.
{¶3} An officer then asked Ferrell to exit the car. She also asked him if he had
anything in his pockets. Ferrell responded in the negative, and the officer then asked if
Ferrell minded if the other officer checked. Ferrell agreed. A search of his pockets
revealed nothing. The officer proceeded to search his socks and found something
white. The officer then placed Ferrell in handcuffs. Upon questioning, Ferrell ultimately
informed the officer the item in his sock contained heroin, and upon further questioning,
he also admitted to having a “rig” in his backpack, which was still in the car.
{¶4} He was indicted and charged with possession of heroin, a fifth-degree
felony, in violation of R.C. 2925.11(A)(C)(6) and possession of drug abuse instruments,
a second-degree misdemeanor, in violation of R.C. 2925.12(A)(2).
{¶5} Ferrell moved to suppress evidence of the drugs as violative of the Fourth
Amendment right to be free from unreasonable searches. He also sought exclusion of
his statements after the search, including his admission that he had heroin in his sock
and a hypodermic needle in his backpack because he was not informed of his Miranda
rights in violation of the right against self-incrimination in the Fifth Amendment.
{¶6} Following a hearing, the trial court overruled his motion and found that
upon viewing the totality of the circumstances, the entire search was consensual. The
court explained that Ferrell did not limit or withdraw consent to have his socks searched.
The trial court likewise found that Ferrell’s statements were admissible, explaining that
because he consented to the search, any statements stemming from that search were
admissible. The trial court’s decision does not, however, address Ferrell’s Miranda
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argument and does not analyze whether his incriminating statements were the product
of a custodial interrogation.
{¶7} Ferrell raises one assigned error:
{¶8} “The trial court erred as a matter of law in overruling Appellant’s Motion to
Suppress Evidence.”
{¶9} Appellate review of a motion to suppress evidence involves mixed
questions of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th
Dist.1998). When ruling on a motion to suppress evidence, the trial court assumes the
role of trier of fact and is in the best position to resolve questions of fact and evaluate
the credibility of witnesses. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583
(1982). Thus, we defer to the trial court's findings of fact if they are supported by
competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d
1268 (4th Dist.1996). Appellate courts then independently assess as a matter of law
whether the trial court properly applied the substantive law to the facts of the case.
State v. Hoppert, 181 Ohio App.3d 787, 2009-Ohio-1785, 910 N.E.2d 1106, ¶11 (8th
Dist.).
{¶10} Ferrell’s alleged error consists of three sub-arguments. First, he claims
Officer Samantha Burton lacked a specific and articulable suspicion that Ferrell had a
weapon, sufficient to warrant his removal from the car and a pat down for weapons.
However, the court did not find that this was a pat down search for weapons authorized
pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Instead, the court found
that the search was consensual, and Officer Burton testified at the hearing that she did
not suspect or believe that Ferrell had a weapon. Thus, this sub-argument lacks merit.
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{¶11} Ferrell’s second sub-argument asserts that the scope of his consent to be
searched was limited to his pockets, and because the drugs were found in his sock, the
officers exceeded the scope of the consent and the contraband should have been
suppressed. We agree.
{¶12} The Fourth and Fourteenth Amendments to the United States Constitution
and Section 14, Article I of the Ohio Constitution, protect individuals against
unreasonable governmental searches and seizures. A search based on consent is one
exception to the Fourth Amendment's general warrant requirement. State v. Robinette,
80 Ohio St.3d 234, 243, 685 N.E.2d 762 (1997). When the state seeks to rely upon
consent to justify a search, it has the burden of establishing that the consent was
voluntary and freely given. Id.
{¶13} “The standard for measuring the scope of a suspect's consent under the
Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the
suspect?” (Citations omitted.) Florida v. Jimeno, 500 U.S. 248, 250–51, 111 S.Ct. 1801
(1991).
{¶14} A dashcam video recording of the stop was played at the suppression
hearing. It reveals that Ferrell was in the backseat of his friend’s car when she was
pulled over for a traffic violation. Three officers were present. The driver agreed to a
search of her vehicle.
{¶15} Thereafter, Officer Samantha Burton of the Kent Police Department asked
Ferrell his name and if he would mind stepping out of the car. He complied. Burton
then asked him, “got anything in your pockets?” to which he responded “nope.” Burton
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then directed him toward one of two male officers present at the scene and inquired, “do
you mind if this officer checks?” Ferrell says “ok,” and he walks into the grass where a
male officer is standing. Ferrell’s hands are in the air. The male officer, Officer Bowen,
then has Ferrell place his hands behind his back and asks him if he has “anything
illegal? Sharp? Needles? Knives?” Ferrell responds negatively to each inquiry. Bowen
is then seen searching Ferrell’s pockets for approximately two minutes. Bowen then
bends down and looks in Ferrell’s socks, and finds something white. Upon repeatedly
questioning Ferrell about what is in his sock, Ferrell responds “dope” and then confirms
that it is heroin.
{¶16} Bowen then asks Ferrell if he has a “rig” on him, which is slang for a
hypodermic needle and syringe used to inject heroin, or if he has one in the car. Ferrell
eventually admits that he has one in his backpack, which was still in the car.
{¶17} In Jimeno, the United States Supreme Court considered whether the
driver’s oral consent to search his car included consent to search a brown paper bag
found on the floor of the car. The Court decided it did and explained that objective
reasonableness dictates the scope of the authorized search, and “[t]he scope of a
search is generally defined by its expressed object * * *.” Id. at 251. In Jimeno, officers
were granted consent to search the car for narcotics. The court reasoned that this
reasonably included containers in the car that a reasonable person would believe would
contain drugs. Id. The court, however, noted that the scope of the search would not
have included a search of a locked suitcase in the car because it is unreasonable to
think that a suspect’s consent to search a vehicle includes locked containers. Id. at
252.
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{¶18} In State v. Arrington, 96 Ohio App.3d 375, 645 N.E.2d 96 (12th Dist.1994),
the 12th District Appellate Court held that the driver’s consent to an officer’s request to
search her purse for weapons did not permit the officer to search a cigarette case in her
purse because a search for weapons would not have reasonably included a cigarette
container. Id. at 378.
{¶19} In State v. Rodriguez, 83 Ohio App.3d 829, 615 N.E.2d 1094 (2d
Dist.1992), the Second Appellate District found that a defendant's agreement that police
may “look in his car” did not authorize police to remove interior panels. This overly
broad construction of his agreement to allow his car to be searched was not objectively
reasonable. Id. at 834.
{¶20} Here, the question is whether it was reasonable for the officers to consider
Ferrell’s consent to search his pockets as including consent to examine the contents of
his socks. It was not. Ferrell was asked if he had anything in his pockets and was then
almost immediately asked if he minded if the other officer checked. Ferrell responded
ok. Upon seeking consent to search, Officer Burton did not identify the object of the
search, and she limited her request to Ferrell’s pockets. His agreement to be searched,
and the scope of the search, was limited by the officer’s question.
{¶21} There was no further consent sought by the officers and Ferrell did not
volunteer to extend the scope of his consent. Contrary to the state’s argument and the
trial court’s finding, his failure to object and stop the search of his socks does not equate
with consent, and the typical reasonable person would understand by the exchange
between the officers and Ferrell that his consent to be searched was limited to his
pockets.
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{¶22} Furthermore, Officer Bowen’s inquiries as to whether Ferrell had anything
illegal, sharp, or if he had knives or needles did not extend the scope of Ferrell’s
consent because Bowen’s inquiries were not preceded by a request for Ferrell to agree
to be searched for these items. Our independent review of the undisputed evidence
depicted in the dashcam footage does not support the trial court’s determination that
Ferrell consented to a search of his socks.
{¶23} Thus, because the officer exceeded the scope of Ferrell’s consent to
search, the trial court should have suppressed the heroin in his sock found via the
unlawful search. Accordingly, Ferrell’s second sub-argument has merit.
{¶24} Ferrell’s third and final sub-argument asserts that his custodial statements
to the officers following his unlawful search should have been suppressed because he
was not advised of his Miranda warnings. He seeks suppression of his admission that
the substance in his sock was heroin as well as his statement to officers that he had a
“rig” in his backpack.
{¶25} The trial court found that Ferrell’s statements were admissible because
Ferrell consented to be searched. Consent to be searched, however, is not
determinative of whether one’s statements are admissible. Instead, Miranda warnings
are required when an individual is subject to a custodial interrogation even if the
attendant search is wholly consensual. The determinative issue governing whether
Miranda warnings are required is whether the suspect is “in custody.”
{¶26} “[T]he Fifth Amendment privilege * * * serves to protect persons in all
settings in which their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves. * * * [W]ithout proper safeguards the process of in
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custody interrogation of persons suspected or accused of crime contains inherently
compelling pressures which work to undermine the individual's will to resist and to
compel him to speak where he would not otherwise do so freely. In order to combat
these pressures and to permit a full opportunity to exercise the privilege against self
incrimination, the accused must be adequately and effectively apprised of his rights and
the exercise of those rights must be fully honored.” Miranda v. Arizona, 384 U.S. 436,
467, 86 S.Ct. 1602 (1966).
{¶27} Thus, Miranda warnings must be provided when a defendant is subject to
a custodial interrogation. Id. 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. at 444.
{¶28} The roadside questioning of a motorist detained pursuant to a routine
traffic stop does not usually constitute a custodial interrogation and invoke the
requirement that the driver be read his Miranda warnings. Berkemer v. McCarty, 468
U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The “noncoercive aspect of
ordinary traffic stops prompt us to hold that persons temporarily detained pursuant to
such stops are not ‘in custody’ for the purposes of Miranda.” Id. Instead, the Miranda
safeguards are implicated 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). “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.” State v. Wineberg,
2d Dist. Clark No. 97–CA–58, 1998 WL 409021 *5 (Mar. 27, 1998), citing Berkemer.
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{¶29} 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 case to assess whether an individual during a traffic stop is “in custody” such that
Miranda warnings are required. Cleveland v. Oles, __ Ohio St.3d __, 2017-Ohio-5834,
¶21.
{¶30} “[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 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,’ * * *. 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.
{¶31} “For purposes of the 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.’ * * * .” (Emphasis sic.) Id. at ¶30-31.
{¶32} Here, Ferrell was a backseat passenger in a car following a traffic stop.
The driver consented to a search of her vehicle. Ferrell agreed to a search of his
pockets, not his sock where the heroin was found.
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{¶33} Upon finding the item in his sock, Officer Bowen twice asks Ferrell what
was in his sock. Ferrell does not respond. Bowen then places handcuffs on Ferrell
and informs him he “has to” because he does not know what was in his sock. They are
still on the side of the road with two other officers present.
{¶34} After placing handcuffs on Ferrell, Bowen again asks him if he is going to
tell him what was in his sock. Bowen then asks Ferrell if he is, “gonna be honest with
me upfront, or are you gonna make it hard on yourself?” Bowen then says, “I’m a nice
guy as long as people are honest.” Ferrell then admits that the baggie contains “dope.”
Bowen asks what kind of dope, and in response, Ferrell tells him it is heroin.
{¶35} Bowen then asks, “got a rig on you?” Ferrell answers no. Bowen then
twice asks if Ferrell has a rig in the car and explains that the officers do not want to get
poked or pricked. He also tells Ferrell that a rig is the least of his worries. Ferrell
thereafter admits he has one in his backpack in the car, and a hypodermic needle is
later found in his backpack.
{¶36} As stated, Ferrell was subsequently indicted and charged with possession
of a drug abuse instrument to which he pleaded no contest.
{¶37} Considering the totality of the circumstances, Ferrell was “in custody” at
the time he admitted that the substance found in his sock was dope and heroin and
when he admitted to having a rig in his backpack. Although he was in a public place, he
was handcuffed after an officer found something hidden in his sock. The officer told him
he “had to” place him in handcuffs because he did not know what he had found, but the
officer did not inform him that he was not under arrest. And only after Ferrell was in
handcuffs, did he respond to the officer’s third request to tell him what was in his sock.
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The interaction at this point ceased to be an investigative traffic stop. A reasonable
person in Ferrell’s position would have understood himself to be in custody. Cleveland
v. Oles, __ Ohio St.3d __, 2017-Ohio-5834, ¶28 (finding Oles not in custody when he
was not in handcuffs and since police questioning was not overly repetitive or designed
to pressure an admission.) And because Ferrell’s statements were made in response to
officer inquiries while he was in custody, Miranda warnings were required.
{¶38} The state urges us to find that there is an officer and public safety
exception to the Miranda warning requirement that applies here, yet it cites no authority
for this proposition of law. It likewise did not raise this exception at the suppression
hearing.
{¶39} Under Miranda, supra, “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 self-incrimination.” Id. at 444. “However, when officers ask ‘questions
necessary to secure their own safety or the safety of the public’ as opposed to
‘questions designed solely to elicit testimonial evidence from a suspect,’ they do not
need to provide the warnings required by Miranda. New York v. Quarles, 467 U.S. 649,
659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).” State v. Maxwell, 139 Ohio St.3d 12,
2014-Ohio-1019, 9 N.E.3d 930, ¶113.
{¶40} Both the U.S. and Ohio Supreme Courts have applied the public and
officer safety exception to the Miranda warning requirement in cases in which police
asked a suspect if he has a weapon. In Quarles, the U.S. Supreme Court applied this
exception to the Miranda requirement when an officer cuffed a suspect after a pursuit in
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a supermarket. The suspect had an empty holster, and before reading him his rights,
the officer asked him where the gun was. New York v. Quarles, 467 U.S. 649, 652, 104
S.Ct. 2626 (1984).
{¶41} In Maxwell, officers executing an arrest warrant found the suspect hiding
in a crawlspace and for their safety, inquired if he had a weapon or had one near him.
The Ohio Supreme Court held that the public safety exception to Miranda did not apply
because the officers had already confirmed that no one else was in the home and
Maxwell was in handcuffs at the time of the inquiry. Id. Nevertheless, the court found
that the admission of his statements in response was harmless error. Id. at ¶122-123.
{¶42} The Maxwell court adopted the following test to employ upon considering
whether the public-safety exception to the Miranda requirement applies:
{¶43} “In United States v. Williams, 483 F.3d 425, 428 (6th Cir.2007), the United
States Court of Appeals for the Sixth Circuit set forth the standard that the government
must satisfy in order for custodial statements made before any Miranda warnings to be
admissible under the Quarles public-safety exception. ‘For an officer to have a
reasonable belief that he is in danger,’ and thus for the exception to apply, ‘he must
have reason to believe (1) that the defendant might have (or recently have had) a
weapon, and (2) that someone other than police might gain access to that weapon and
inflict harm with it.’ Id. at 428. Williams stated that this evaluation of the applicability of
the Quarles exception ‘takes into consideration a number of factors, which may include
the known history and characteristics of the suspect, the known facts and
circumstances of the alleged crime, and the facts and circumstances confronted by the
officer when he undertakes the arrest.’ Id.” (Footnote omitted.) Maxwell at ¶117.
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{¶44} Here, Officer Bowen asked Ferrell if he had a needle used for
administering heroin because the officers did not want to get stuck or pricked.
{¶45} In State v. Strozier, 172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d
1304, ¶10 (2nd Dist.), the Second District Court of Appeals applied the officer and
public safety exception when officers were asking a suspect about possession of
dangerous drug paraphernalia that may have pricked or stuck the officer. The court
explained that the officer testified about his concern about being stuck or pricked while
conducting the pat-down search. Id. at ¶11. The court found the public safety
exception should apply to situations in which officers inquire about needles that may
cause them harm, but that the officer’s inquiry in the case before it was too broad since
he had asked “Do you have anything on you I need to know about? Anything that might
stick me?” Id. at ¶10.
{¶46} Strozier, however, was decided before the Ohio Supreme Court’s decision
in Maxwell in which it adopted the Sixth Circuit’s two-part test. And upon applying the
test to the instant case, there was no testimony that Ferrell had a weapon and no
testimony that someone other than the police would gain access to a weapon. In fact,
Officer Burton testified that she did not suspect that Ferrell was armed. Thus, the public
safety exception to Miranda does not apply. Maxwell, supra.
{¶47} Accordingly, a constitutional violation occurred when officers failed to
advise Ferrell of his Miranda rights once they placed him in handcuffs, and as such, his
subsequent admissions that his sock contained dope and that the dope was heroin
should have been suppressed. Ferrell’s other admission that he had a hypodermic
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needle in his backpack was also in violation of his right against self-incrimination. Thus,
Ferrell’s third sub-argument has merit.

Outcome: The trial court’s decision is reversed and the case is remanded.

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