[Cite as State v. Cody , 2022-Ohio-544.]

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

STATE OF OHIO Plaintiff-Appellee

v. AARON DARNELL CODY Defendant-Appellant : : : : : : : : : : Appellate Case No. 29219

Trial Court Case No. 2019-CR-797 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 25th day of February, 2022.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00844 70, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantow n, Ohio 45327 Attorney for Defendant-Appellant

. . . . . . . . . . . . . DONOVAN, J.-2-

{¶ 1} Aaron Cody appeals from his convictions for drug possession. He argues that his statements to police should have been suppressed because of ficers failed to provide

a Miranda warning before questioning him. We conclude that a warning was not required, because Cody was not in custody for Miranda purposes. And we conclude that drugs concealed on his person would have been inevitably discovered d uring a search incident to his arrest. Hence, we affirm. I. Factual and Procedural Background {¶ 2} On March 1, 2019, Sergeant Jason Rhodes and his partner were wo rking in plain clothes in an unmarked vehicle. Rhodes had worked for the Dayton Police Department for almost 13 years, had been in the drug unit as a detective for about 6 years, and had significant training involving the use of confid ential informants, typing search warrants, purchasing drugs in an undercover capacity, an d other drug operations. During undercover operations, Rhodes travelled through the city watching for drug transactions at various hot spots of criminal activity. On this day, he was watching the Bancroft Apartments, which Rhodes described as a “hotbed” of cr iminal activity, with the police receiving numerous calls about drug activity and violent crimes there. Sgt. Rhodes had personally seen drug activity there in the past, including hand-to-hand, car-to-car, and hand-to-car drug transactions in the parking lot. Most ofte n, a vehicle would pull into the parking lot and someone either standing outside or coming f rom one of the apartments would approach the car with the drugs and the buyer would drive away. According to Rhodes, it is quite common for people to come from outside the city or county to buy drugs.-3- {¶ 3} While watching the Bancroft Apartments parking lot at mid-after noon, Sgt. Rhodes saw a 2016 silver Kia Forte back into a parking space. U sing high-powered binoculars, Rhodes could see two people in the vehicle and read the vehicle’s Warren County, Ohio, license plate. A few minutes later, a male came o ut of one of the apartment buildings and made contact first with the driver, a female, and then with the passenger, later identified as Cody. Cody handed the man a “wad” of cash, which the man leafed through, appearing to count it. The man put the money in his po cket and handed Cody a clear plastic baggie containing a chunk of something white that looked to be larger than a golf ball but smaller than a baseball. The Kia driver then dr ove away. Based on his training and experience, Sgt. Rhodes believed that he had witne ssed a drug transaction. He radioed for a marked cruiser to perform a traffic stop on th e Kia, explaining his suspicions about what he had just seen. {¶ 4} Around 3:20 p.m., a marked cruiser stopped the Kia at the botto m of the Main Street exit off U.S. 35. The officers removed both Cody and the female driver from the car and placed them in the back seat of the cruiser for a short tim e. A second marked cruiser arrived, and the driver was removed and placed in that cruiser. Soon after, Cody was asked to step out and was patted down. Meanwhile, Sgt. Rhodes h ad arrived on scene, and officers began searching the Kia. Officers asked Cody where the drugs were, and he told them that the baggie was in a cigarette pack in the passen ger-side door. Sgt. Rhodes retrieved the cigarette pack and found a clear plastic bag cont aining what he suspected was fentanyl or cocaine. Cody was then handcuffed, placed under arrest, and put back

into the cruiser. {¶ 5} Notably, the drugs in the cigarette pack were significantly sma ller than the-4- amount Sgt. Rhodes had seen given to Cody at the Bancroft Apart ments, but the officers could not find any other drugs in the Kia. So while in the back of the cruiser, officers asked Cody where the drugs he had bought at the Bancroft Apartments w ere. Cody repeatedly denied he had any more drugs on him. Eventually, though Cody ad mitted that the drugs were hidden in his pants; he retrieved them and turned them ove r. {¶ 6} On May 30, 2019, Cody was indicted on one count of aggravated p ossession of drugs, in violation of R.C. 2925.11(A), a second-degree felo ny, and one count of possession of a fentanyl-related compound, in violation of R.C. 2925.11(A), a fifth-degree felony. Cody filed a motion to suppress all evidence obtained a s the result of an unlawful search and seizure and any statements he had made. Cody argued that the officers had no basis to extend the stop in order to search the car and had no justification for searching his person. Cody also argued that any statements he had made to the police officers must be suppressed as fruit of the poisonous tree or due to violatio ns of his Miranda rights, because he was not given a Miranda warning before being questioned about the location of the drugs. {¶ 7} A suppression hearing was held at which Sgt. Rhodes testified a nd video and audio from a cruiser camera were presented. On November 24, 202 0, the trial court sustained Cody’s motion to suppress in part and overruled it in part, but found that none

of the evidence would be excluded because it would have inevita bly been discovered. The court concluded that when Cody made the statements about th e drugs in the car, he had not been in custody for Miranda purposes, so both his statements and the drugs

found in the car were admissible. But the court concluded that Cody had been in custody when he was subsequently asked about the drugs he had bought, s o a Miranda warning-5- had been needed, and his statements about the drugs in his pant s must be suppressed. Nevertheless, the court concluded that the drugs concealed in C ody’s pants were admissible, because they would have been inevitably discovered during a search incident to his arrest for the drugs found in the car. {¶ 8} In June 2021, Cody pleaded no contest to the indicted charges. The trial court sentenced him to a total of two years in prison. {¶ 9} Cody appeals. II. Analysis {¶ 10} Cody’s sole assignment of error alleges that the trial court er red by refusing to suppress evidence. {¶ 11} “Appellate review of a ruling on a motion to suppress presents a mixed question of fact and law. An appellate court must accept the tr ial court’s findings of fact if they are supported by competent, credible evidence. The appella te court must decide questions of law de novo, without deference to the lower court’ s legal conclusions.” (Citations omitted.) State v. Tidwell , 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 18. {¶ 12} Cody argues that the statement he gave about the drugs in the c igarette pack should have been suppressed because it was elicited during custodial interrogation

without a Miranda warning. He argues that, had he been given the warning, none o f the drugs would have been discovered. No custodial interrogation {¶ 13} Custodial interrogation for Miranda purposes is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of-6- his freedom of action in any significant way.” Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “The relevant inquiry is whe ther, under the totality of the circumstances, a reasonable person in the suspect’s positio n would have understood himself or herself to be in custody,” Cleveland v. Oles , 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 33, that is, subjected to “restraints comparab le to those associated with a formal arrest,” Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). {¶ 14} A person temporarily detained during an investigatory traffic s top is not “in custody” for purposes of Miranda

. Berkemer at 440. The Ohio Supreme Court has held that “[t]he placement of a suspect in the front seat of a police vehicle during a traffic stop is not alone determinative of whether the suspect has been subj ected to a custodial interrogation.” (Emphasis added.) Oles at ¶ 33. And we have held that being placed in the back of a police cruiser for a short time does not render a suspect in custody. See

State v. Foxx , 2014-Ohio-235, 7 N.E.3d 615, ¶ 17 (2d Dist.), citing State v. Lozada , 92 Ohio St.3d 74, 76, 748 N.E.2d 520 (2001) (“asking a driver or o ccupant of a vehicle to sit in the officer’s cruiser to facilitate a traffic stop is not it self illegal”). See also State v. Polen , 1st Dist. Hamilton Nos. 0050959, C-050960, 2006-Ohio-5599, ¶ 13 (holding that a police officer was justified in placing a defendant in the cruiser to ensure safety). As we have explained, “[t]he mere fact that a n individual is sitting in th e back seat of a police cruiser, with rear doors that do not open from the inside, without more, is not sufficient to establish custody. But if the police take actions that would lead a reaso nable person in the defendant’s position to believe that he was going to be detaine d indefinitely, the encounter is custodial.” (Citations omitted.) State v. Moody , 2012-Ohio-3390, 974 N.E.2d 1273, ¶ 13-7- (2d Dist.). {¶ 15} When Cody was first asked where the drugs were, he was standing outside the police cruiser. He had not been arrested, and his detention did not resemble a formal

arrest. He was not in handcuffs and had not been told that he c ould not leave or that he was under arrest. The questioning was very brief and was not th reatening or intimidating, it occurred only about four minutes after Cody was stopped. Whi le it is likely that Cody did not feel free to leave, that is not the test. See Oles at ¶ 31 (“the test is not whether the individual feels free to leave”). Rather, the test is “whether the situation ‘exerts upon a detained person pressures that sufficiently impair his free exe rcise of his privilege against self-incrimination to require that he be warned of his constitu tional rights.’ ” Id . The totality

of the circumstances in this case established that this was not Cody’s situation. Hence,

no Miranda warning was required. Discovery of the drugs was inevitable {¶ 16} We agree with the trial court’s conclusion that, as a result of drugs having been found in the cigarette pack, the drugs that Cody was conce aling in his pants would inevitably have been discovered. Under the doctrine of inevitab le discovery, “illegally obtained evidence may be admitted in a proceeding once the stat e establishes that the evidence would inevitably have been discovered in the course of a lawful investigation.” State v. Banks-Harvey , 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 27. Here, once the drugs in the cigarette pack were found, which Cody adm itted were his, officers had probable cause to believe that Cody had committed drug offe nses and could lawfully arrest him, which they did. Incident to the arrest, officers wo uld have been permitted to perform a search of his person. See State v. Klase , 2019-Ohio-3392, 131 N.E.3d 1054,-8- ¶ 24 (2d Dist.). A search incident to arrest is not simply a pa t-down for weapons but “ ‘a full search of the arrestee’s person for contraband or evidence of a crime.’ ” State v. Todd , 2d Dist. Montgomery No. 23921, 2011-Ohio-1740, ¶ 31, quoting State v. Gagaris , 12th Dist. Butler No. CA2007-06-142, 2008-Ohio-5418, ¶ 16. When offi cers did a full search of Cody, they would have inevitabl y discovered the drugs concea led in his pants.

III. Conclusion {¶ 17} The trial court correctly concluded that Cody was not in custod y for Miranda purposes and that the drugs found on his person would have been inevitably discovered. The sole assignment of error is o verruled. The trial court’s ju dgment is affirmed.

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

WELBAUM, J. and EPLEY, J., concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Kirsten Knight Hon. Michael W. Krumholtz