[Cite as State v. Bailey, 2022-Ohio-4028.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

 Plaintiff-Appellee,

 VS.

RYAN BAILEY, 

 Defendant-Appellant.

:

:

:

:

:

:

APPEAL NO. C-210584

TRIAL NO. B-2004719

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 14, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant 

Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant 

Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

2

CROUSE, Judge.

{¶1} Defendant-appellant, Ryan Bailey, appeals the trial court’s denial of his 

motion to suppress. In this case, we are asked to determine whether Bailey, who had 

been stopped for a missing headlight, was surrounded and blocked-in by police 

officers, ordered out of his car, handcuffed, patted down, and told that a K-9 unit

would be walked around his car, was “in custody” when he was questioned by an officer

without being informed of his Miranda rights. Because we agree that a reasonable 

person in such a situation would have understood himself to be in custody, we hold 

that the trial court should have granted Bailey’s motion to suppress.

Facts and Procedure

{¶2} On September 12, 2020, defendant-appellant Ryan Bailey was stopped 

by Cincinnati Police in the parking lot of a Cincinnati Metropolitan Housing Authority

apartment complex in Cincinnati, Ohio. Officers searched his car and found 

marijuana and a firearm. 

{¶3} On September 17, 2020, Bailey was indicted on three counts: (1) 

receiving stolen property in violation of R.C. 2913.51(A); (2) carrying a concealed 

weapon in violation of R.C. 2923.12(A)(2); and (3) improperly handling a firearm in a 

motor vehicle in violation of R.C. 2923.16(B). Each charge is a fourth-degree felony. 

On July 7, 2021, Bailey filed a motion to suppress statements he made admitting to 

the marijuana in the vehicle, and the other evidence found based on those statements. 

{¶4} At the suppression hearing, Officer Tom Chiappone testified that 

members of the gun task force had been dispatched to the parking lot around 11:30 

p.m. to disperse “a large group gathering, [of people] using marijuana in the open.” 

Officer Chiappone’s partner, Trent Meucci, testified that Bailey caught the attention of 
OHIO FIRST DISTRICT COURT OF APPEALS

3

an officer because he was trying to exit the lot “in a hurry.” Suspecting his exit was 

precipitated by the police presence, an officer communicated this information over the 

radio. Officers Chiappone and Meucci heard the call, saw the car, activated their lights,

and positioned their cruiser to block Bailey from exiting the parking lot. The officers 

testified that they had observed a broken headlight on Bailey’s car prior to the stop. 

{¶5} After relaying Bailey’s information to dispatch, officers learned that 

Bailey had several open capiases for traffic offenses. Meucci asked Bailey to step out 

of his vehicle and he placed Bailey in handcuffs while the capiases were being 

investigated. Meucci testified that during the walk to his police cruiser, he:

advised [Bailey] that we were going to call and confirm the warrants; 

that he wasn’t necessarily going to go to jail * * * I did ask him, maybe 

twice, if there was anything in the vehicle. I made him aware that there 

was a K-9 officer that was on scene. And I simply asked, if the K-9 did 

an open-air sniff, would he hit on your vehicle? And he said, Yes, I have 

weed in the car.

The body-camera footage, which was played at trial, largely confirms Meucci’s account 

of the interaction and shows that there were at least three marked police cruisers and 

five uniformed officers at the scene. While handcuffing Bailey, Meucci can be heard 

saying, “Doesn’t mean you’re going to jail or anything, my friend. We gotta at least 

check everything out.” Then, Meucci led Bailey towards his police cruiser. On the way 

to the cruiser, Bailey was patted down as the following exchange occurred:

MEUCCI: You ain’t got anything on you, do you? Cause I’m going to 

be checking–just let me know.

BAILEY: No.
OHIO FIRST DISTRICT COURT OF APPEALS

4

MEUCCI: Anything in the car?

BAILEY: No.

MEUCCI: You’re the registered owner, right?

BAILEY: Yes.

MEUCCI: So if the dog walked around your car it wouldn’t hit on 

anything? Marijuana or anything like that?

BAILEY: I might – I have some weed in the car.

At this point, approximately three minutes had elapsed since Bailey’s car had been 

stopped. A second officer, Officer Twehues, joined the pair, and asked: 

TWEHUES: You have some weed in the car?

BAILEY: Yes.

TWEHUES: Where’s it at?

BAILEY: Under my radio

Meucci continued:

MEUCCI: If we can get you re-cited on these we’ll work with you man. 

BAILEY: Okay 

MEUCCI: There’s nothing in the car is there?

BAILEY: Just the weed.

MEUCCI: Just the weed? Okay cause they’re gonna check, alright? I’ll 

get you in the car here in a second – [if it’s] something we can get you 

re-cited on, we’ll definitely take care of you.

{¶6} Bailey was then placed in the back of the police cruiser, still in 

handcuffs. Around the same time, police searched his vehicle and, in addition to the 

marijuana, found a handgun under the driver’s seat that was discovered to be stolen. 
OHIO FIRST DISTRICT COURT OF APPEALS

5

Approximately 90 seconds after being put in the backseat, he was advised of his 

Miranda rights. 

{¶7} In his motion to suppress, Bailey argued that his statements admitting 

to the marijuana in the vehicle, and any related evidence, must be suppressed pursuant 

to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because 

he made the statements during a period of custodial interrogation, and prior to being 

advised of his Miranda rights. He further argued that any evidence found based on 

those statements must also be suppressed as “fruit of the poisonous tree.” See Wong 

Sun v. United States, 371 U.S. 471, 484-489, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In 

denying Bailey’s motion to suppress the trial court reasoned that “a reasonable person 

would not conclude that the Defendant was in custody” because he was told that he 

was not necessarily going to jail, there were no threats or intimidating comments made 

to him, the intrusion was minimal, and the exchange was brief and to the point.1 

{¶8} On October 21, 2021, Bailey withdrew his not-guilty plea and pleaded 

no contest to all the charges. The court found him guilty as charged, and sentenced 

him to three years of community control, including a residential term at River City 

Correctional Center and postresidential community supervision. Bailey timely 

appealed, and his sentence was stayed pending the appeal.

Law and Analysis

{¶9} In Bailey’s sole assignment of error, he contends that the trial court 

erred when it denied his motion to suppress his statements about the marijuana in his 

vehicle. The state contends that the motion was properly denied because Bailey was

1 In reaching this conclusion, the trial court relied on ten factors set forth in State v. McCrary, 2d 

Dist. Montgomery No. 18885, 2002-Ohio-396.
OHIO FIRST DISTRICT COURT OF APPEALS

6

not subject to custodial interrogation at the time of his admission, and thus a Miranda 

warning was unnecessary.

{¶10} This court’s review of a motion to suppress is “ ‘a mixed question of law 

and fact. We must accept the trial court’s findings of fact as true if competent, credible 

evidence supports them. But we must independently determine whether the facts 

satisfy the applicable legal standard.’ ” State v. Thompson, 1st Dist. Hamilton No. 

C-200388, 2021-Ohio-3184, ¶ 10, quoting State v. Taylor, 174 Ohio App.3d 477, 

2007-Ohio-7066, 882 N.E.2d 945, ¶ 11 (1st Dist.). We review de novo “ ‘whether the 

facts satisfy the applicable legal standard.’ ” Id., quoting State v. Burnside, 100 Ohio 

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶11} Generally, when “police take a suspect into custody and then ask him 

questions without informing him of [his Miranda rights], his responses cannot be 

introduced into evidence to establish his guilt.” Berkemer v. McCarty, 468 U.S. 420, 

429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Derivative evidence when “obtained by 

exploitation of the illegal search or seizure,” known as fruit of the poisonous tree, also 

cannot be introduced. State v. Pies, 140 Ohio App.3d 535, 541, 748 N.E.2d 146 (1st

Dist.2000); see Wong Sun, 371 U.S. at 484-489, 83 S.Ct. 407, 9 L.Ed.2d 441.

{¶12} The key issue in this case is whether Bailey was subject to custodial 

interrogation such that the protections afforded by Miranda were triggered. In 

Miranda, the Supreme Court 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, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694, first paragraph of the syllabus.
OHIO FIRST DISTRICT COURT OF APPEALS

7

{¶13} While not all traffic stops trigger Miranda, “[i]f a motorist who has been 

detained pursuant to a traffic stop thereafter is subjected to treatment that renders 

him ‘in custody’ for practical purposes, he will be entitled to the full panoply of 

protections prescribed by Miranda.” Berkemer at 440. In Berkemer, the United States 

Supreme Court reasoned that traffic stops are unlike other forms of police questioning 

because (1) the stops are “presumptively temporary and brief,” and (2) the stops are 

“substantially less ‘police dominated.’ ” Id. at 439. Ultimately, the court held that “the 

only relevant inquiry in determining whether a person is in custody is how a 

reasonable man in the suspect’s position would have understood his situation.” Id. at 

442 (holding that a defendant was not taken into custody where he was asked to step 

out of the vehicle, was questioned about his drinking, and failed a field-sobriety test,

because he did not demonstrate that he was subjected to “restraints comparable to 

those associated with a formal arrest.”); see City of Cleveland v. Oles, 152 Ohio St.3d 

1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 30 (holding that the relevant inquiry is not 

whether a person would have felt free to leave, but rather “whether a reasonable 

person in the suspect's position would have understood himself or herself to be in

custody.” (Emphasis sic.)).

{¶14} The Ohio Supreme Court applied these principles in State v. Farris, 109 

Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 14, when it held that a defendant 

was in custody after a routine traffic stop because the officer patted him down, took 

his car keys, instructed him to sit in the front seat of his police car, and told the subject 

that he was going to search his car because he smelled marijuana. Id. at ¶ 3. The court 

reasoned that the defendant was “in custody for practical purposes” because “he had 

no car keys and reasonably believed that he would be detained at least as long as it 
OHIO FIRST DISTRICT COURT OF APPEALS

8

would take for the officer to search his automobile.” Id. at ¶ 14. Thus, the defendant’s 

admission about drug paraphernalia in the car, along with the paraphernalia itself, 

was inadmissible. Id. at ¶ 48-49; compare State v. Leonard 1st Dist. Hamilton No. 

C-060595, 2007-Ohio-3312, ¶ 22 (“[c]ompared to the facts in Farris, the intrusion * * 

* was minimal” because the defendant sat in the front seat of the police cruiser, was 

not handcuffed or patted down, and he kept his own keys); see State v. Lukjare, 5th 

Dist. Ashland No. 15-COA-038, 2016-Ohio-4613, ¶ 37 (holding that defendant was not 

in custody, despite being in the back of a police car because he was not handcuffed, his 

keys were not taken, and he was not subject to lengthy detention); State v. Strozier, 

172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 19 (2d Dist.) (holding that 

the defendant was in custody where he was “ordered out of the vehicle by at least five 

officers at gunpoint, told to lie on the ground, and handcuffed”).

{¶15} The state points to the factors set out in Oles, 152 Ohio St.3d 1, 2017-

Ohio-5834, 92 N.E.3d 810, to demonstrate the Bailey was not subject to police 

interrogation. In Oles, the court synthesized prior decisions in Berkemer, Farris, and 

others, and identified three factors to consider when faced with custodial interrogation 

issues:

questioning a suspect during a traffic stop in the front seat of a police 

vehicle does not rise to the level of a custodial interrogation when (1) the 

intrusion is minimal, (2) the questioning and detention are brief, and 

(3) the interaction is nonthreatening or nonintimidating.

Id. at ¶ 24. 

{¶16} Notably though, Bailey was not yet in a police cruiser at the time of his 

admission. So, while these factors are helpful, we also consider the factors set out by 
OHIO FIRST DISTRICT COURT OF APPEALS

9

the Seventh District in State v. Withrow, 2022-Ohio-2850, 194 N.E.3d 804 (7th Dist.). 

In Withrow, the defendant was ordered out of the vehicle, patted down, and asked if

there was any contraband on his person. Id. at ¶ 4-5. Withrow denied having anything 

on him, but apparently not believing him, the officer repeated back to him, “No?” Id. 

at ¶ 4- 5. Withrow then admitted to having marijuana on his person. Id. at ¶ 5. He 

was then handcuffed, taken away from his car, and told, “You’re not under arrest, 

you’re being detained.” Id. at ¶ 46. The officer then asked, “Nothing else is on you but 

the weed?” and told Withrow that “he intended to search every pocket and every 

crevice of his body, and gave him what he referred to as the chance for ‘honesty hour,’ 

an opportunity to admit that he possessed any contraband that might be found in a 

search.” Id. at ¶ 6. The officer then conducted a thorough search of his person and 

found additional drugs, a methamphetamine pipe, and $287. Id. at ¶ 7. Based on these 

statements and the evidence, his car was subsequently searched, and additional 

contraband was found. Id. at ¶ 9. On appeal, the court reasoned that relevant factors 

to consider when determining whether a subject was in custody for purposes of 

Miranda included “whether the subject was handcuffed at time of the statement,” the 

number of police officers on the scene, and how many times a specific question is 

asked. Id. at ¶ 45. Considering all these factors, the court held that Withrow was in 

custody at the time of his first admission—even before being handcuffed. Id. at ¶ 57. 

Thus “all evidence, whether verbal or physical, obtained from the moment [the officer]

asked his first question [was] inadmissible.” Id. 

{¶17} Here, it is undisputed that after Bailey exited his vehicle, he was 

handcuffed, searched, and taken away from his vehicle to a police cruiser. At the time 

of this interaction, there were at least five police officers and three police cruisers at 
OHIO FIRST DISTRICT COURT OF APPEALS

10

the scene. Bailey’s car was entirely blocked in. Despite the officer’s assurances that 

Bailey was not necessarily going to jail, we hold that, considering the totality of the 

circumstances, a reasonable person would have understood themselves to be in 

custody at the time of Bailey’s admission. 

{¶18} The intrusion here was not minimal. Although the interaction was brief, 

Bailey was handcuffed, patted down, led away from his vehicle, and subjected to 

repeated questioning about the contents of his vehicle, while headed for a police 

cruiser. 

{¶19} The environment was also threatening and intimidating because the 

police presence at the scene was significant. Moreover, Bailey only admitted to having 

marijuana in the vehicle after he was threatened that police would run a K-9 unit

around his car.2 Similar to the custodial interrogations in Farris and Withrow, police 

suggested to Bailey that additional effort would be made to locate contraband in his 

vehicle. (“So if the dog walked around your car it wouldn’t hit on anything? Marijuana 

or anything like that?”). 

{¶20} While the state contends that a K-9 open-air sniff is not the same as a

search, it is still reasonable to conclude that it would evoke a similar response from 

someone in Bailey’s position. Unlike a typical traffic stop, this was precisely the “kind 

of interrogation—designed to pressure a suspect to confess to illegal conduct—that was 

of particular concern to the Supreme Court in Miranda.” See Oles, 152 Ohio St.3d 1, 

2017-Ohio-5834, 92 N.E.3d 810, at ¶ 28 (noting that the police questioning in Farris, 

wherein an officer “made it known that he suspected illegal conduct * * *, told [the 

2 The trial court’s entry denying the motion to suppress noted that “the drug dog was on scene and 

ready to be used,” so we note that this was not an empty threat.
OHIO FIRST DISTRICT COURT OF APPEALS

11

suspect] that he would search the car, and then asked about [contraband] that he 

might find in the car” exemplified a threatening and intimidating interaction).

{¶21} Similar to the defendant in Withrow, Bailey was handcuffed at the time 

of his statement, at least five police officers were on the scene, and he was asked about 

the presence of contraband multiple times before making his admission. See Withrow,

2022-Ohio-2850, 194 N.E.3d 804, at ¶ 45.

{¶22} Therefore, we hold that Bailey’s statement about the marijuana in his

vehicle was obtained in violation of Miranda and should have been suppressed, along

with the firearm found during the subsequent search. Consequently, we sustain

Bailey’s assignment of error, reverse the judgment of the trial court, and remand the

matter for further proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

MYERS, P. J., andWINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.