[Cite as State v. Brown, 2014-Ohio-3257.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 26035
v. : T.C. NO. 13CR2488
DECENTA D. BROWN : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 25th day of July , 2014.
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TIFFANY ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
VICTOR A. HODGE, Atty. Reg. No. 0007298, Assistant Public Defender, 117 S. Main
Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Decenta D. Brown appeals his conviction and sentence
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for one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the
third degree. Brown filed a timely notice of appeal with this Court on December 23, 2013.
{¶ 2} The incident which forms the basis for the instant appeal occurred on August
13, 2013, at approximately 8:00 a.m. when Montgomery County Sheriff’s Deputy John W.
Eversole was dispatched to Jefferson Township to investigate a shooting that occurred the
night before at the Olive Hills Apartment Complex (Olive Hills). Upon arriving at Olive
Hills, Dep. Eversole observed several motor vehicles which had been struck by gunfire.
Eventually, Dep. Eversole’s investigation led him to a residence located at 131 Pawtucket
Street which had been struck by gunfire on the previous night. Once there, Dep. Eversole
spoke to Olive Hills’ apartment manager, Nicole Sudah. Sudah provided Dep. Eversole
with information regarding one of the primary individuals involved in the shooting. Sudah
informed Dep. Eversole that the suspect had recently been seen standing in front of a
residence located at 7471 Bronson Street. Sudah described the individual as a black male
wearing a baseball cap emblazoned with a “Superman” logo.
{¶ 3} Acting on the information provided by Sudah, Dep. Eversole went to the
7471 Bronson Street where he observed an individual who matched the description provided
to him. Dep. Eversole and his partner, Dep. Prater, exited their cruiser and approached the
suspect, later identified as the appellant, Brown. Upon observing the deputies approaching,
Brown ran away in a southerly direction. Dep. Eversole chased Brown through the Olive
Hills complex. Shortly thereafter, Brown attempted to escape through a hole in a broken
section of a privacy fence. Dep. Eversole testified that Brown could not get through the
fence. At that point, Dep. Eversole observed Brown make “an underhand type motion”
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with his right arm towards the hole in the fence. Brown then stood up and began running
southbound along the fence again in an effort to elude Dep. Eversole. Dep. Eversole
ordered Brown to stop and lay on the ground. Brown complied, was handcuffed and
arrested, and placed in the back of Dep. Eversole’s cruiser.
{¶ 4} After securing Brown, Dep. Eversole returned to the hole in the fence where
he observed the appellant swinging his right arm. Upon investigation, Dep. Eversole
located a black cellular smartphone, two baggies containing gel capsules later found to
contain heroin, and a magazine from a .40 Glock handgun containing fourteen live rounds of
ammunition. Dep. Eversole testified that based on his training and experience, a magazine
is almost always accompanied by a gun. Dep. Eversole believed there was a strong
probability that Brown had discarded a handgun sometime during the foot chase. More
importantly, Dep. Eversole was concerned that there was an additional round chambered in
the handgun thrown away by Brown during the chase. Dep. Eversole called for backup to
search the area for the handgun. Several officers and canine units subsequently arrived and
searched the surrounding area where the loaded magazine was found.
{¶ 5} One of the officers to arrive to aid in the search for a handgun was
Montgomery County Sheriff’s Deputy Victoria Dingee. Dep. Eversole informed Dep.
Dingee the he was looking for a handgun that may have been thrown away and asked if she
could speak to Brown regarding its location. Dep. Dingee walked over to the cruiser where
Brown was being held and rolled the window down to speak with Brown. It is undisputed
that Dep. Dingee did not advise Brown of his Miranda rights before the following exchange
occurred:
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The State: Okay. Tell us about the conversation that you had with Mr. Brown.
Dep. Dingee: It was a pretty short conversation. I said to Mr. Brown, I said, “Where
is the gun?” I said, “There are a lot of kids and people walking around. It’s
dangerous.” And I said, “The problems that you have right now are going to be very
small if compared to what it’s going to be like if a child picks up that gun and shoots
himself or someone else in this apartment complex.”
Q: Okay. Did you say anything else to him?
A: No. I said – I think I said that twice and [Brown] said, “I don’t have the gun.” He
said, “I haven’t seen the gun since last night.” And he said, “I just had the
magazine.”
Q: Okay. And are you –
A: I said, “That doesn’t make sense.” I said, “You understand that doesn’t make
sense.” And he said, “I know. People probably lie to you all the time, but I don’t
have the gun.”
{¶ 6} The exchange between Dep. Dingee and Brown was captured by the video
recording system in the police cruiser and admitted at the suppression hearing as State’s
Exhibit 1. We note that no handgun was recovered during the search of the area where
Brown was arrested.
{¶ 7} On September 11, 2013, Brown was indicted for one count of tampering
with evidence and one count of possession of heroin. Brown filed a motion to suppress the
statements he made to Dep. Dingee on September 18, 2013. A hearing was held on said
motion on October 21, 2013. The trial court overruled Brown’s motion to suppress on
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November 12, 2013, announcing its findings of fact and conclusions of law from the bench.
On the same day, Brown entered a plea of no contest to one count of tampering with
evidence, and the State dismissed the remaining count in the indictment for possession of
heroin. The trial court found Brown guilty of tampering with evidence and sentenced him
to up to five years of community control.
{¶ 8} It is from this judgment that Brown now appeals.
{¶ 9} Brown’s sole assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S
MOTION TO SUPPRESS STATEMENTS TAKEN PURSUANT TO CUSTODIAL
INTERROGATION WITHOUT PRIOR MIRANDA WARNINGS.”
{¶ 11} In his sole assignment, Brown contends that the trial court erred when it
overruled his motion to suppress the statements he made to Dep. Dingee after he was
arrested. Specifically, Brown points out that he was not apprised of his Miranda rights
before being interrogated by Dep. Dingee, and this situation does not fall under the “public
safety exception” to the Miranda rule.
{¶ 12} As this Court has previously noted:
“Appellate courts give great deference to the factual findings of the
trier of facts. (Internal citations omitted) . At a suppression hearing, the trial
court serves as the trier of fact, and must judge the credibility of witnesses
and the weight of the evidence. (Internal citations omitted). The trial court is
in the best position to resolve questions of fact and evaluate witness
credibility. (Internal citations omitted). In reviewing a trial court’s decision
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on a motion to suppress, an appellate court accepts the trial court’s factual
findings, relies on the trial court’s ability to assess the credibility of
witnesses, and independently determines whether the trial court applied the
proper legal standard to the facts as found. (Internal citations omitted). An
appellate court is bound to accept the trial court’s factual findings as long as
they are supported by competent, credible evidence.” State v. Hurt,
Montgomery App. No. 21009, 2006-Ohio-990.
State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.
{¶ 13} Initially, we note that the only two witnesses who testified at the hearing
held on Brown’s motion to suppress were Dep. Eversole and Dep. Dingee. The trial court
found their testimony to be credible and adopted it as the court’s factual findings. We also
note that it is undisputed that Brown was under arrest at the time Dep. Dingee questioned
him regarding the location of the handgun.
{¶ 14} The Fifth Amendment to the United States Constitution provides that “[n]o
person *** shall be compelled in any criminal case to be a witness against himself.” “The
Fifth Amendment privilege against compulsory self-incrimination ‘protects against any
disclosures that the witness reasonably believes could be used in a criminal prosecution or
could lead to other evidence that might be so used.’” Hiibel v. Sixth Judicial Dist. Ct. of
Nev., Humbolt Cty., 542 U.S. 177, 190, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004), quoting
Kastigar v. United States, 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Ohio v.
Reiner, 532 U.S. 17, 20, 121 S.Ct. 1252, 149 L.E.2d 158 (2001).
{¶ 15} The right to Miranda warnings are grounded in the Fifth Amendment’s
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prohibition against compelled self-incrimination. Moran v. Burbine, 475 U.S. 412, 420, 106
S.Ct. 1135, 89 L.E2d 410 (1986). It is well-established, however, that the police are not
required to administer Miranda warnings to every individual they question. State v. Biros, 78
Ohio St.3d 426, 440, 678 N.E.2d 891 (1997). Rather, only custodial interrogations trigger
the need for Miranda warnings. Id., citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.
711, 50 L.Ed.2d 714 (1977); State v. Wenzler, 2d Dist. Greene No. 2003-CA-16,
2004-Ohio-1811, ¶15. “An individual is in custody when there has been a formal arrest or a
restraint of freedom of movement such that a reasonable man would believe that he is under
arrest.” Wenzler at ¶15.
{¶ 16} “Under the ‘public safety’ exception, a suspect’s answers to questions from a
police officer are admissible in the absence of a Miranda warning so long as the questions
asked of the suspect are ‘reasonably prompted by a concern for the public safety.’ New York
v. Quarles (1984), 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.E.2d 550.” State v. Morgan, 2d
Dist. Montgomery No. 20987, 2005-Ohio-6542, ¶14. In other words, “[t]he public safety
exception allows the police, under certain circumstances, to temporarily forgo advising a
suspect of his Miranda rights in order to ask questions necessary to securing their own
immediate safety or the public’s safety.” State v. Strozier, 172 Ohio App.3d 780,
2007-Ohio-4575, 876 N.E.2d 1304, ¶ 23 (2d Dist.), citing State v. Santiago, 9th Dist. Lorain
No. 01CA7798, 2002-Ohio-1114.
{¶ 17} In Quarles, “[t]he police *** were confronted with the immediate necessity
of ascertaining the whereabouts of a gun which they had every reason to believe the suspect
had just removed from his empty holster and discarded in the supermarket. So long as the
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gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it
obviously posed more than one danger to the public safety: an accomplice might make use of
it, a customer or employee might later come upon it.” Quarles, 467 U.S. at 657.
Recognizing a “narrow exception” to the Miranda rule, the Court held that “the need for
answers to questions in a situation posing a threat to the public safety outweighs the need for
the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”
Id. at 657. The Court declined “to place officers *** in the untenable position of having to
consider, often in a matter of seconds, whether it best serves society for them to ask the
necessary questions without the Miranda warnings and render whatever probative evidence
they uncover inadmissible, or for them to give the warnings in order to preserve the
admissibility of evidence they might uncover but possibly damage or destroy their ability to
obtain that evidence and neutralize the volatile situation confronting them.” Id. at 657-658.
The Court indicated that this limited exception will not be difficult for police officers to
apply “because in each case it will be circumscribed by the exigency which justifies it.” Id.
at 658.
{¶ 18} The public safety exception does not apply to all situations in which a
suspect is believed to have used a weapon in the commission of a crime, and it does not
permit officers to ask questions which are not necessary to secure their safety or that of the
public. Strozier, at ¶ 25; Quarles, 467 U.S. at 658-59. “In order to establish that the
exception is warranted in any given case, the State must show that: (1) there was an
objectively reasonable need to protect the police or the public, (2) from an immediate danger,
(3) associated with a weapon, and that (4) the questions asked were related to that danger
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and reasonably necessary to secure public safety. Clearly, this analysis involves an
examination of the circumstances of each case.” State v. Jergens, 2d Dist. Montgomery No.
13294, 1993 WL 333649 (September 3, 1993); see, also, State v. Prim, 134 Ohio App.3d
142, 154, 730 N.E.2d 455 (8th Dist.1999).
{¶ 19} Upon review, we conclude that the facts of the instant case fall squarely
under the public safety exception to the Miranda rule. First, Dep. Eversole testified that he
was dispatched to Olive Hills to investigate a shooting that occurred during the previous
night. When he arrived at the apartment complex, Dep. Eversole observed several vehicles
which had sustained gunfire. Moreover, when he arrived at 131 Pawtucket Street, Dep.
Eversole observed that the residence had also been struck by gunfire. The complex
manager informed Dep. Eversole that a suspect in the shooting, a black male wearing a
Superman baseball cap, was standing in front of a nearby residence located at 7471 Bronson
Street.
{¶ 20} Dep. Eversole immediately went to that location and observed an individual
matching the description provided by the complex manager. Upon observing the deputies
approaching, Brown fled the scene. The deputies pursued Brown on foot. In light of the
shooting that occurred the previous night and the fact that Brown fled, Dep. Eversole
possessed a reasonably objective belief that Brown was armed with a gun. This belief was
reinforced when Dep. Eversole observed Brown discard, among other things, a magazine
from a .40 caliber Glock handgun. Dep. Eversole counted fourteen live rounds of
ammunition in the magazine, leading to a concern that the handgun may have been discarded
during the foot pursuit with a live round still chambered in the gun. Dep. Eversole testified
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that he also observed approximately twenty to thirty people in the nearby vicinity, including
children, who could have picked up the handgun and harmed themselves or others. The
presence of the handgun presented an immediate danger to the deputies and the people who
resided at the apartment complex which was comprised of approximately 250 units.
{¶ 21} After initial unsuccessful attempts to locate the handgun, Dep. Eversole
directed Dep. Dingee to speak to Brown regarding the location of the handgun which
potentially posed a direct threat to residents of the apartment complex, as well as the
deputies who were searching the area. Dep. Dingee’s custodial interrogation was proper
under the public safety exception as it was limited in scope and length. Dep. Dingee
specifically asked Brown to tell her the location of the handgun. Dep. Dingee also properly
informed him that the handgun, if still loaded, posed a grave threat to people in the area.
Clearly, the questions asked by Dep. Dingee were directly related to that danger and
reasonably necessary to secure public safety. Similar to the circumstances in Quarles, Dep.
Dingee’s primary purpose in questioning Brown was to locate the handgun before anyone
was injured, not to gather incriminating evidence against him. The four-part test enunciated
in Jergens has been met. Accordingly, the trial court did not err when it overruled Brown’s
motion to suppress because his statements regarding the location of the handgun were clearly
admissible under the public safety exception to the Miranda rule.
{¶ 22} Brown’s sole assignment of error is overruled.
{¶ 23} Brown’s sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
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FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Tiffany Allen
Victor A. Hodge
Hon. Mary Katherine Huffman
State v. Brown
Combined Opinion