[Cite as State v. Roswell, 2022-Ohio-260.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - v - 

GARY A. ROSWELL, 

 Defendant-Appellant. 

CASE NO. 2021-P-0045

Criminal Appeal from the 

Court of Common Pleas 

Trial Court No. 2020 CR 00440 

O P I N I O N 

Decided: January 31, 2022 

Judgment: Affirmed 

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). 

James R. Eskridge, Megargel & Eskridge Co., LPA, 231 South Chestnut Street, 

Ravenna, OH 44266 (For Defendant-Appellant). 

MATT LYNCH, J. 

{¶1} Defendant-appellant, Gary A. Roswell, appeals the denial of his Motion to 

Suppress. For the following reasons, we affirm the decision of the court below. 

{¶2} On June 12, 2020, Roswell was indicted for Obstructing Justice, a felony of 

the fifth degree in violation of R.C. 2921.32. A second Obstructing Justice count was 

added in a supplemental indictment. 

{¶3} On November 12, 2020, Roswell filed a Motion to Suppress statements 

made as a result of roadside questioning, which was heard on November 30. 
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{¶4} On February 1, 2021, the trial court denied the Motion. The court made the 

following factual findings: 

On May 22, 2020, at approximately 10:21 p.m., Deputy 

Bradley of the Portage County Sheriff’s Department was on duty on 

Route 59 in Ravenna Township, Portage County, Ohio. 

The deputy saw the Defendant’s vehicle pull out of the drive 

of a known drug house. Deputy Bradley followed the vehicle and

was unable to observe a visible license plate. The officer observed 

the vehicle commit a marked lanes violation, which prompted the

deputy to pull the vehicle over. 

When the official initiated the stop, he saw the front-seat 

passenger crawl into the backseat. 

The vehicle was stopped on State Route 59 and Shorr Street. 

Deputy Diemert of the Portage County Sheriff’s Department arrived 

soon after the stop to assist Officer Bradley. 

Diemert approached the vehicle and determined Clifford 

Parham was the passenger in the backseat. The officer could not 

see the other individual who crawled into the backseat. 

The officers asked the driver to exit the vehicle. He was asked 

where he was going and what he was doing. The Defendant told the 

officers that he picked up Mr. Parham and was taking him to the

drive-through. When asked both Mr. Roswell and Mr. Parham 

claimed no one else was in the vehicle. 

Upon further questioning, the Defendant stated that they had 

pulled into the Dollar General on Rout[e] 59, as well, and the store 

was not open. 

The officer asked the Defendant for permission to search the 

vehicle, which was granted. The deputy found a me[t]al spoon in the 

front passenger side of Defendant’s vehicle. A female was located 

in the trunk area of the vehicle. She stated she crawled into the trunk 

because she had an outstanding warrant. 
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After locating the female passenger, Cherish Hill in the trunk 

of the vehicle, the officers handcuffed her and read her Miranda 

Rights. 

The officers then began to question Roswell again, asking him 

what was really going on. The Defendant told the officers that he 

picked Ms. Hill and Mr. Parham up to take them to the drive-through 

and then went to a house on State Route 59 and Shorr. The 

Defendant stated the person they were looking for was not home, so 

they left. Mr. Parham, when asked said, that they were going to pick 

up a friend, but he could not remember the person’s name. 

The officers, when questioned during the suppression 

hearing, admitted Miranda Warnings were not given to the 

Defendant, and that he was not free to leave the scene during their 

investigation. 

The court concluded that the questioning of Roswell did not constitute custodial 

interrogation: “A noncustodial situation does not become a custodial one simply because 

the person is questioned.” 

{¶5} On February 25, 2021, Roswell pled no contest to one count of Obstructing 

Justice. 

{¶6} On April 5, 2021, Roswell was sentenced to 12 months in the Intensive 

Supervision Program of the Portage County Adult Probation Department and 48 

additional months under the General Division of Adult Probation. 

{¶7} On April 27, 2021, Roswell filed a Notice of Appeal. On appeal, he raises 

the following assignment of error: “The Trial Court erred as a matter of law in overruling 

Appellant’s Motion to Suppress Evidence.” 

{¶8} “Appellate review of a motion to suppress presents a mixed question of law 

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. 

“[A]n appellate court must accept the trial court’s findings of fact if they are supported by 
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competent, credible evidence,” but “must then independently determine, without 

deference to the conclusion of the trial court [i.e., de novo], whether the facts satisfy the 

applicable legal standard.” Id.

{¶9} “In Miranda [v. Arizona], 384 U.S. [436,] 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 

[(1966)], the United States Supreme Court established procedural safeguards for 

securing the privilege against self-incrimination guaranteed by the Fifth Amendment to 

the United States Constitution.” Cleveland v Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 

N.E.3d 810, ¶ 8; Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) 

(“[t]he Fourteenth Amendment secures against state invasion the same privilege that the 

Fifth Amendment guarantees against federal infringement–the right of a person to remain 

silent unless he chooses to speak in the unfettered exercise of his own will”); Ohio 

Constitution, Article I, Section 10 (“[n]o person shall be compelled, in any criminal case, 

to be a witness against himself”). 

{¶10} “The procedural safeguards identified in Miranda apply only when one is 

subjected to custodial interrogation.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio3430, 811 N.E.2d 48, ¶ 26. “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.’” Oles at ¶ 9, quoting Miranda at 444. 

{¶11} In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 

(1984), the United States Supreme Court addressed the issue of “whether the roadside 

questioning of a motorist detained pursuant to a routine traffic stop should be considered 

‘custodial interrogation.’” Id. at 435. The Court concluded that the “noncoercive aspect 

of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to 
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such stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440. Although the 

stopping of an automobile and the detention of its occupants constitutes a “seizure” within 

the meaning of the Fourth Amendment, the circumstances of the usual traffic stop are 

more akin to an investigative detention or “Terry stop” rather than to a formal arrest. Id.

at 436-439. “Typically, this means that the officer may ask the detainee a moderate 

number of questions to determine his identity and to try to obtain information confirming 

or dispelling the officer’s suspicions.” Id. at 439. However, “[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.” Id. at 440. 

{¶12} In reaching its conclusions, the Supreme Court in Berkemer noted the 

following: 

Two features of an ordinary traffic stop mitigate the danger 

that a person questioned will be induced to “speak where he would 

not otherwise do so freely,” Miranda v. Arizona, 384 U.S., at 467. 

First, detention of a motorist pursuant to a traffic stop is 

presumptively temporary and brief. The vast majority of roadside 

detentions last only a few minutes. A motorist’s expectations, when 

he sees a policeman’s light flashing behind him, are that he will be 

obliged to spend a short period of time answering questions and

waiting while the officer checks his license and registration, that he 

may then be given a citation, but that in the end he most likely will be 

allowed to continue on his way. In this respect, questioning incident 

to an ordinary traffic stop is quite different from stationhouse 

interrogation, which frequently is prolonged, and in which the 

detainee often is aware that questioning will continue until he

provides his interrogators the answers they seek. See id., at 451. 

Second, circumstances associated with the typical traffic stop 

are not such that the motorist feels completely at the mercy of the 

police. To be sure, the aura of authority surrounding an armed, 

uniformed officer and the knowledge that the officer has some 

discretion in deciding whether to issue a citation, in combination, 

exert some pressure on the detainee to respond to questions. But 
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other aspects of the situation substantially offset these forces. 

Perhaps most importantly, the typical traffic stop is public, at least to 

some degree. Passersby, on foot or in other cars, witness the 

interaction of officer and motorist. This exposure to public view both 

reduces the ability of an unscrupulous policeman to use illegitimate 

means to elicit self-incriminating statements and diminishes the 

motorist’s fear that, if he does not cooperate, he will be subjected to 

abuse. The fact that the detained motorist typically is confronted by 

only one or at most two policemen further mutes his sense of 

vulnerability. In short, the atmosphere surrounding an ordinary traffic 

stop is substantially less “police dominated” than that surrounding 

the kinds of interrogation at issue in Miranda itself, see 384 U.S., at 

445, 491-498, and in the subsequent cases in which we have applied 

Miranda. 

(Footnotes omitted.) Id. at 437-439. 

{¶13} Berkemer has been applied in several decisions of the Ohio Supreme Court 

as well as this court. In State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 

985, the Supreme Court determined that a motorist, detained pursuant to a routine traffic 

stop, was subjected to treatment that rendered him “in custody” for practical purposes 

and, therefore, was entitled to Miranda’s protections. The Court noted that Farris was 

subjected to an “extended detention * * * not based upon the purpose of the original stop, 

excessive speed, but * * * upon [Officer] Menges’s detection of the scent of burnt 

marijuana.” Id. at ¶ 12. Moreover, “Menges patted down Farris, took his car keys, 

instructed him to enter the cruiser, and told Farris that he was going to search Farris’ car 

because of the scent of marijuana.” Id. at ¶ 14. In light of these circumstances, the Court 

concluded that “a reasonable man in Farris’s position would have understood himself to 

be in custody of a police officer as he sat in the cruiser.” Id.

{¶14} In Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, the Supreme 

Court reached a contrary conclusion, despite the motorist being questioned inside a 

police cruiser. The Court structured its analysis around three considerations. First, the 
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intrusion was minimal: The stop occurred “in public view on the highway shoulder, and 

the trooper preformed procedures typical of a traffic stop.” Id. at ¶ 26. Unlike the officer 

in Farris, the trooper in Oles “did not perform a pat-down search,” “did not indicate that 

he wanted to search Oles’s vehicle,” and “permitted Oles to keep the vehicle’s keys during 

the traffic stop.” Id.

{¶15} Second, the questioning and detention were brief: “The trooper had a brief 

conversation with Oles to discern whether the odor of alcohol originated from Oles himself 

or from somewhere else in his car.” Id. at ¶ 27. 

{¶16} Third, the interaction was nonthreatening or nonintimidating: Oles was not 

handcuffed and did not object to the trooper’s requests or questions which, in turn, were 

not “overly repetitive.” Id. at ¶ 28. In Farris, by contrast, the officer “made it known that 

he suspected illegal conduct (i.e., that he smelled marijuana), told Farris that he would 

search the car, and the asked about illegal drugs and drug paraphernalia that he might 

find in the car.” Id.

{¶17} In State v. Serafin, 11th Dist. Portage No. 2011-P-0036, 2012-Ohio-1456, 

this court held that Miranda warnings were not required when a trooper questioned a 

motorist, seated in the officer’s vehicle, about how much he had had to drink. We noted 

that “Serafin was allowed to keep his keys and to keep his vehicle running and Trooper 

Ganley gave no indication that the detention would extend beyond the purposes of the 

initial stop for Speeding.” Id. at ¶ 35. As in Farris, the motorist in Serafin was subjected 

to a pat-down search but we found this did not alter the non-custodial nature of the 

questioning: The search was nominally consensual – the trooper asked if he could 
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conduct a pat-down search for weapons – and concluded the search in a few seconds. 

Id. at ¶ 38. 

{¶18} In State v. Brocker, 11th Dist. Portage No. 2014-P-0070, 2015-Ohio-3412, 

this court again found Miranda warnings were not warranted despite the motorist being 

questioned in a patrol car: “the detention was brief”; “the questioning was neither lengthy 

nor intimidating”; and “[t]he trooper did not take appellant’s keys and did not search 

appellant’s vehicle.” Id. at ¶ 18. 

{¶19} In State v. Ferrell, 2017-Ohio-9341, 91 N.E.3d 766 (11th Dist.), this court 

found that the passenger in a vehicle was entitled to Miranda warnings in the course of a 

traffic stop. The passenger was removed from the vehicle and, during a non-consensual 

pat-down search1, a white substance was found in his socks. Id. at ¶ 3 and 32. With 

three officers present, Ferrell was asked twice what the substance was but did not 

respond. Id. at ¶ 33. He was then handcuffed and asked by one of the officers: are you 

“gonna be honest with me upfront, or are you gonna make it hard on yourself” since “I’m 

a nice guy as long as people are honest.” Id. at ¶ 34. At this point, when Ferrell admitted 

the substance was dope, he was deemed in custody for the purposes of Miranda. Id. at 

¶ 37. 

{¶20} Finally, in State v. Benson, 11th Dist. Ashtabula No. 2018-A-0054, 2019-

Ohio-3234, this court found that a passenger in a vehicle was entitled to Miranda warnings 

after admitting to the possession of drugs. While she was still a passenger in the vehicle, 

the officers’ questioning of Benson reflected their suspicions that she was in possession 

of drugs: “I can already see how nervous you are getting”, “[y]ou got something on you”, 

1. Ferrell gave consent for a search of his pockets, but officers expanded the scope of the search to include 

his socks where drugs were found. Id. at ¶ 21. 
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“where’s it at?”, “tell the truth,” and “be honest.” Id. at ¶ 9. The vehicle in which she was 

a passenger was “blocked in the rear by three police cruisers” and she was confronted 

by five officers upon exiting. Id. at ¶ 53. This court relied heavily on the nature of the 

officers’ questioning of Benson in concluding that the Miranda warnings should have been 

given. “The questions from the outset of the stop were investigative as to Ms. Benson’s 

crime of possession and possession for sale. Once Ms. Benson admitted to having 

‘speed,’ and the police removed her from the vehicle, she was for all intents and purposes 

‘in custody.’” Id. at ¶ 56. 

{¶21} Roswell argues that the following circumstances compelled the 

administration of the Miranda warnings before questioning him: “1) Appellant was 

detained by the side of the road during a traffic stop in which he was the driver of his own 

vehicle, 2) at the time Appellant was questioned, he was a criminal suspect as the vehicle 

he was driving was leaving a ‘known drug house’ in the City of Ravenna and a female 

passenger was observed jumping from the front passenger seat into the rear seats of the 

car and thereafter investigating officers could not see her person anymore because she 

was hiding in the trunk, 3) Appellant’s freedom to leave was restricted as his driver’s 

license was in the possession of the investigating deputy and the investigating deputy 

stated [during the suppression hearing] that he was not free to leave * * *[,] 4) there were 

3 law enforcement officers there in total, 5) and he was not free to disobey the Deputies[’] 

command to exit the vehicle upon the Deputy initially approaching his car.” Brief of 

appellant at 11. 

{¶22} Upon due consideration, we conclude that Roswell was not “in custody” for 

the purposes of requiring Miranda warnings prior to questioning. The stop in the present 
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case was a traffic stop and so, under Berkemer, Miranda warnings were not necessary 

unless Roswell were subjected to treatment that rendered him “in custody” for practical 

purposes. He was stopped for license plate and marked lanes violations, but further 

suspicions were immediately raised when one of the three passengers in the vehicle 

crawled into the backseat and disappeared. Two officers approached the vehicle. 

Bradley primarily engaged with Roswell while Diemert focused on the other passenger, 

Parham. A third officer arrived at the scene, but nothing in the record indicates what 

interaction, if any, she had with Roswell. 

{¶23} The questioning of Roswell was neither intrusive, extended, nor

threatening/intimidating. Officer Bradley asked for his license and had him exit the 

vehicle. But Roswell was not searched, handcuffed, or placed in a police cruiser and his 

vehicle remained running during the encounter. Roswell was asked about where he was 

coming from and going to and whether there was anyone else in the vehicle. He then 

gave consent to search his vehicle. After Hill was discovered in the trunk, Bradley 

returned to Roswell, still standing outside his vehicle, and asked, “what was really going 

on?”.2

{¶24} Several points should be made in support of the holding that Miranda

warnings were not necessary. The fact that Roswell drew the attention of law 

enforcement because he was observed leaving a known “drug house” is of no import in 

the present case as that fact had no discernable influence on the officer’s conduct. 

Roswell was not questioned about narcotics and his person was not searched. Roswell 

2. We acknowledge that Roswell distinguishes between the questioning that occurred before and after the 

discovery of Hill. In the present case, however, neither the discovery of Hill nor the question “what was 

really going on” materially alter the analysis as to whether Miranda warnings were required. 
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may have been the subject of a narcotics investigation at the time of the stop, but this did 

not render him “in custody” for the purposes of Miranda. As the United States Supreme 

Court recognized: “A policeman’s unarticulated plan has no bearing on the question [of] 

whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a 

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

Berkemer, 468 U.S. at 442, 104 S.Ct. 3138, 82 L.Ed.2d 317. 

{¶25} The officers’ observation of a third person in the vehicle and request to 

search the vehicle did not alter the nature of the stop. The Supreme Court compared the 

typical traffic stop to a Terry stop in which an officer may ask “a moderate number of 

questions * * * to try to obtain information confirming or dispelling the officer’s suspicions.” 

Id. at 439. Roswell and Parham were asked if anyone else was in the vehicle and then 

consent to search the vehicle was requested and given. The additional intrusion 

occasioned by the suspicions regarding a third passenger was relatively minimal and 

wholly justified by concern for the officers’ safety. Moreover, there is nothing inherently 

illegal about hiding a passenger in the trunk unlike, by contrast, there is about hiding 

weapons or narcotics. Hiding a person is highly suspicious but not necessarily 

incriminating. 

{¶26} The fact that Roswell was not free to leave the scene or disobey the officers’ 

commands did not render him “in custody.” The United States Supreme Court in 

Berkemer recognized that, “[u]nder the law of most States, it is a crime either to ignore a 

policeman’s signal to stop one’s car or, once having stopped, to drive away without 

permission,” and that “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.” Id. at. 
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436. Nevertheless, the Court concluded that the typical traffic stop did not trigger Miranda

warnings. The Ohio Supreme Court further clarified this point by noting the distinction 

between being “free to leave” and being “in custody”: 

[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 * * *. 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. 

Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, at ¶ 30. 

{¶27} In conclusion, this is not the situation in Benson where the suspect was 

confronted by five officers asking pointed questions about her already admitted drug 

possession. Nor is it the situation in Ferrell where the suspect was subjected to a nonconsensual search, handcuffed, and questioned repeatedly in a threatening manner. In 

the present case, Roswell was not subjected to pressures in the course of the traffic stop 

that sufficiently impaired the free exercise of his privilege against self-incrimination to 

require that he be warned of his constitutional rights. Berkemer at 437. 

{¶28} The sole assignment of error is without merit. 

{¶29} For the foregoing reasons, the denial of Roswell’s Motion to Suppress is 

affirmed. Costs to be taxed against the appellant. 

THOMAS R. WRIGHT, P.J., 

MARY JANE TRAPP, J., 

concur.