[Cite as State v. Hampton , 2021-Ohio-1834.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

STATE OF OHIO Plaintiff-Appellant

v. STACY W. HAMPTON Defendant-Appellee : : : : : : : : : : Appellate Case No. 2020-CA-5

Trial Court Case No. 2020-CR-64 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of May, 2021.

. . . . . . . . . . . DEBORAH QUIGLEY, Atty. Reg. No. 0055455, Assistant Prosecuting Attorney, Darke County Prosecutor’s Office, 504 South Broadway Street, Greenvil le, Ohio 45331 Attorney for Plaintiff-Appellant DAVID ROHRER, Atty. Reg. No. 0042428, 537 South Broadway, Suite 204, Greenville, Ohio 45331 Attorney for Defendant-Appellee

. . . . . . . . . . . . .

TUCKER, P.J.-2- {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the trial court’s final order of October 29, 2020, in which the court sustained a motion to s uppress filed by Defendantappellee, Stacy W. Hampton. Raising one assignment of error, t he State argues that the trial court erred by ordering the suppression of evidence obtai ned by police officers during a traffic stop because the officers took Hampton into custody a nd interrogated him without delivering a Miranda warning. We hold that the trial court erred by finding that t he officers subjected Hampton to a custodial interrogation, and therefore, the court’s order is

reversed. I. Facts and Procedural History {¶ 2} At 1:11 a.m. on May 8, 2020, Officers Monnin and Jones of the G reenville Police Department stopped Hampton in his vehicle on East Main S treet in Greenville, after they observed Hampton driving the vehicle in excess of th e posted speed limit. The officers requested a K-9 unit when they initiated the stop. {¶ 3} Officer Monnin approached, verified Hampton’s identity and aske d Hampton whether he had anything illegal in his vehicle. Hampton answer ed that he did not know and asked whether Officer Monnin planned to conduct a search. Officer Monni n rejoined that Hampton should have been aware of the contents of his own vehicle, prompting Hampton to deny that the vehicle contained anything illegal. B y Officer Monnin’s account, Hampton “was stumbling over his words, [appearing to b e] very nervous,” and “[h]is hands were shaking,” which led the officer to ask Hampto n to step out of his vehicle and stand on the adjacent sidewalk. Transcript of Suppression Hearing 13:15-13:22, Oct. 15, 2020. At that point, Officer Monnin returned to his v ehicle to prepare a traffic citation, while Officer Jones stood on the sidewalk with Hampto n. The officers did not-3- place Hampton in handcuffs or otherwise restrain him, and altho ugh they did not conduct a pat-down search, they did relieve him of a knife that was vis ibly protruding from a pants pocket. {¶ 4} Officer Monnin began writing the traffic citation at approximat ely 1:15 a.m. At 1:22 a.m., a dispatcher informed Officer Monnin that the K-9 unit was still several minutes from the scene. The K-9 unit arrived approximately fiv e minutes later, as Officer Monnin was completing the traffic citation. {¶ 5} Officer Monnin then approached Hampton and asked him again, twi ce, whether he had anything illegal in his vehicle. Hampton admitt ed that he did have “all kinds” of illegal items in the vehicle, including illicit metha mphetamines. At approximately 1:28 a.m., the officers placed Hampton in handcuf fs and delivered a

Miranda warning. In light of Hampton’s admission, the officers did no t have the K-9 unit perform a free air sniff-search. The officers, instead, search ed Hampton’s vehicle themselves, discovering quantities of marijuana and methampheta mines, as well as various drug paraphernalia. {¶ 6} Hampton was indicted on May 14, 2020, for one count of aggravat ed possession of drugs in violation of R.C. 2925.11(A). On Septem ber 23, 2020, Hampton moved to suppress the evidence obtained during the traffic stop , and the trial court sustained the motion in its decision of October 29, 2020. The State timely filed a notice of appeal on November 2, 2020. II. Analysis {¶ 7} For its assignment of error, the State contends that:

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT-4- FOUND THAT AN OFFICER REQUESTING A LAWFULLY STOPPED DRIVER TO STEP OUT OF THEIR [sic] VEHICLE DURING THE COURSE

OF A ROUTINE TRAFFIC STOP PLACES THE DRIVER “IN CUSTODY” AND THEREBY REQUIRING [sic] THE DRIVER BE ADVISED OF HIS

CONSTITUTIONAL RIGHTS PURSUANT TO MIRANDA V. ARIZONA

. {¶ 8} According to the State, the trial court mischaracterized Office r Monnin and Jones’s permissible exercise of discretion as a display of auth ority equivalent to taking Hampton into custody. The State maintains that the officers di d not take Hampton into custody merely by ordering him to exit his vehicle or by reliev ing him of a weapon he carried visibly on his person, and because Hampton was not in c ustody at the time he made certain incriminating statements, the State argues that th e trial court erred by ordering the suppression of the statements in reliance on Miranda

. {¶ 9} The Fourth Amendment to the United States Constitution prohibit s unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Taylor , 138 Ohio App.3d 139, 145, 740 N.E.2d 704 (2d Dist.2000) (noting “the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article 1” of the Ohio Constitutio n “protect the same interests in a consistent manner”). Warrantless searches and seizures vi olate this prohibition unless conducted pursuant to one of the “few specifically estab lished and well-delineated exceptions.” (Citations omitted.) Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One of these exceptions “is common ly known as an investigative or Terry stop,” which includes the temporary detention of motorists for the

enforcement of traffic laws. State v. Dorsey , 10th Dist. Franklin No. 04AP-737, 2005--5- Ohio-2334, ¶ 17, citing Terry

. {¶ 10} Though not necessarily requiring a warrant, the temporary “dete ntion of [persons] during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning” of the Fourth Amendment. (Citations omitted.) Whren v. United States , 517 U.S. 806, 809- 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). An “automobile sto p is thus subject to the constitutional imperative that it not be ‘unreasonable’ under t he circumstances.” Id. at 810. Generally, a police officer’s decision to stop an automob ile will comport with this requirement if the officer has a “reasonable suspicion” of crim inal activity. United States v. Lopez-Soto , 205 F.3d 1101, 1104-1105 (9th Cir.2000); State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. {¶ 11} Interactions among police officers and citizens take one of thr ee forms: consensual encounters, investigatory detentions, and arrests. See, e.g. , State v.

Millerton , 2015-Ohio-34, 26 N.E.3d 317, ¶ 20 (2d Dist.). An “encounter between a police officer and a member of the public is consensual if a reasonabl e person would feel free to disregard the officer’s questions or [to] terminate the enco unter and go about his * * *

business.” City of Columbus v. Beasley , 2019-Ohio-719, 132 N.E.3d 1201, ¶ 41 (10th Dist.), citing Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also State v. Weisgarber , 2017-Ohio-8764, 88 N.E.3d 1037, ¶ 16 (2d Dist.) (stating that a consensual encounter “occur[s] when [a] police [officer] merely approach[es] a person in a public place and engage[s] the perso n in conversation, [with] the person remain[ing] free * * * to [refuse to] answer and * * * walk away”). By contrast, a person is “subject to an investigatory detention when, in vie w of all the [attendant]-6- circumstances * * *, a reasonable person” would believe “that h e [is] not free to leave or is [otherwise] compelled to respond to questions.” State v. Lewis , 2d Dist. Montgomery No. 22726, 2009-Ohio-158, ¶ 22, citing U.S. v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). {¶ 12} A Miranda warning is “intended to protect a suspect from the coercive pressure [associated with] a custodial interrogation.” City of Cleveland v. Oles , 151 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 9, citing Miranda v. Arizona , 384 U.S. 436, 444 and 469, 86 S.Ct. 1602, 15 L.Ed.2d 694 (1966); Lewis at ¶ 22. If a “suspect [answers questions] while in custody without first [being] informed of h is * * * Miranda rights, [then] the [answers] may not be admitted at trial as evidence of [his] guilt.” Oles at ¶ 9, citing

Miranda at 479. {¶ 13} Here, the trial court held that Hampton “was in detention and [ was] not free

to leave” once Officer Monnin directed him “to leave his vehicl e and stand on the sidewalk.” Decision and Entry on Defendant’s Motion to Suppres s 6, Oct. 29, 2020 [ hereinafter Decision]. The court reasoned that Officer Monnin had asserte d his authority over Hampton, thereby taking Hampton into custody, be cause Hampton “was continually under the supervision of Officer Jones” while he st ood on the sidewalk, and because the officers had removed Hampton’s knife from his perso n when he exited his

vehicle. Id. Additionally, the court noted that “directing a driver to exi t his car is not customary or generally necessary for a minor traffic violation. ” Id. {¶ 14} Regardless of whether Officer Monnin customarily asked motorist s to exit their vehicles during traffic stops, a police officer may requi re a motorist to exit a vehicle during a traffic stop without implicating the Fourth Amendment, and although a traffic stop-7- “significantly curtails the ‘freedom of action’ of the driver,” the driver is “not ‘in custody’ for the purposes of Miranda ” solely as a result of being stopped. Berkemer v. McCarty , 468 U.S. 420, 436 and 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Once “ ‘a motor vehicle has been lawfully detained for a traffic violation,’ ” police o fficers “ ‘may order the driver to get out of the vehicle without violating the Fourth Amendmen t’s proscription of

unreasonable seizures.’ ” Maryland v. Wilson , 519 U.S. 408, 412, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), quoting Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), fn.6; see also State v. Chase , 2d Dist. Montgomery No. 25322, 2013- Ohio-2346, ¶ 33. {¶ 15} Furthermore, despite the fact that Hampton “was continually und er the supervision of Officer Jones” while he stood on the sidewalk, O fficer Jones’s supervision did not restrict Hampton’s “freedom of action” any more than th e traffic stop itself or Officer Monnin’s order that he exit his vehicle. Not only would “few m otorists * * * feel free either to disobey * * * directive[s] to pull over [their vehicles] or to leave [afterward] without being told [that] they might do so,” in “most [s]tates, it is [actual ly] a crime either to ignore a policeman’s signal to stop [or] to drive away without permissio n.” Berkemer at 436, citing

R.C. 4511.02. 1 The “supervision” to which the trial court referred is thus i nherent in any traffic stop, meaning that Hampton was not taken into custody b y virtue of being supervised any more than he would have been taken into custody had he been allowed stand on the sidewalk unsupervised; we note, too, that although Hampton was being supervised, the officers did not place him in handcuffs or othe rwise restrain him.

1 R.C. 4511.02 has since been amended and renumbered as R.C. 292 1.331. Under R.C. 2921.331(A), “[n]o person shall fail to comply with any la wful order or direction of any police officer invested with authority to direct, control, or regulate traffic.-8- {¶ 16} The officers’ removal of Hampton’s knife likewise did not const itute an assertion of authority such that Hampton was effectively taken into custody. As part of a traffic stop, a police officer “may conduct a limited protect ive [pat-down] search [of a motorist’s person] for concealed weapons if the officer reasona bly believes that the [motorist] may be armed or [otherwise pose] a danger to the off icer or to others.” State

v. Broaddus , 2d Dist. Montgomery No. 23525, 2010-Ohio-490, ¶ 20. The top of Hampton’s knife protruded visibly from a shallow pants pocket, and the officers merely removed the knife without conducting a pat-down search. {¶ 17} In addition, Officer Monnin did not truly interrogate Hampton b etween the time that Hampton exited his vehicle and the time that the K-9 unit responded to the scene. As the trial court observed, the questions that Officer Monnin asked during this interval related to Hampton’s “ownership of the vehicle, [Hampt on’s] driving behavior[,] and the weather.” These questions were, contrary to the trial court’s characterization, at least tangentially relevant to the traffic citation that Office r Monnin was preparing, yet irrespective of relevance, the questions were not “ ‘reasonably likely to elicit an incriminating response’ ” from Hampton. State v. Strozier , 172 Ohio App.3d 780, 2007- Ohio-4575, 876 N.E.2d 1304, ¶ 19 (2d Dist.), quoting Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). For all of the for egoing reasons, the State’s assignment of error is sustained.

III. Conclusion {¶ 18} We hold that Hampton was not subjected to a custodial interroga tion during the traffic stop on May 8, 2020. The trial court’s final order of October 29, 2020, is therefore reversed, and the case is remanded to the trial court for further proceedings-9- consistent with this opinion.

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HALL, J. and EPLEY, J., concur.

Copies sent to: Deborah Quigley David Rohrer Hon. Jonathan P. Hein