State v. Montgomery , 2022 Ohio 4030 ( 2022 )

[Cite as State v. Montgomery, 2022-Ohio-4030.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220063
TRIAL NO. 21TRC-10998A
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ANTONIO MONTGOMERY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Amber H. Daniel, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Antonio Montgomery appeals from the trial
court’s entry convicting him upon a no-contest plea of operating a motor vehicle while
under the influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a). In a single
assignment of error, Montgomery argues that the trial court erred in denying his
motion to suppress. Finding Montgomery’s argument to be without merit, we affirm
the trial court’s judgment.
Factual and Procedural Background
{¶2} On May 20, 2021, several Cincinnati police officers were dispatched to
a home on Glenway Avenue in response to a report of domestic violence. When they
arrived at the home, Leprecious Turner, Montgomery’s wife, told the officers that
Montgomery had assaulted her earlier in the evening outside of a White Castle
restaurant in Northside. While the officers were speaking to Turner, Montgomery
arrived on the scene. After speaking to Montgomery, the officers suspected that he
was under the influence of alcohol. Montgomery agreed to perform field-sobriety
tests. Following his performance on those tests, Montgomery was placed under arrest
and transported to Cincinnati Police Station District Three. At the station, he was read
his Miranda rights and voluntarily submitted to a breath test and a urinalysis test.
{¶3} Montgomery was charged with three OVI related violations: a violation
of R.C. 4511.19(A)(1)(a) for operating a motor vehicle while under the influence of
alcohol or drugs, a violation of R.C. 4511.19(A)(1)(d) for operating a vehicle with a
prohibited concentration of alcohol per liters of breath, and a violation of R.C.
4511.19(A)(1)(j) for operating a motor vehicle with a prohibited concentration of a
controlled substance.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Montgomery filed a motion to suppress. He argued, as relevant to this
appeal, that he was subject to a custodial interrogation at the scene without being read
his Miranda rights and that the officers lacked reasonable suspicion to ask him to
perform field-sobriety tests. He sought to suppress any statements he made, the
results of his field-sobriety tests, and the results of the breathalyzer and urinalysis
tests.
{¶5} At the suppression hearing, Cincinnati Police Officer Randall Bryant
testified that while he was speaking with Turner about the domestic-violence incident,
Montgomery arrived on the scene at approximately 12:15 a.m. and parked across the
street. At the time Montgomery arrived, Officer Bryant believed, after speaking with
Turner and observing her visible injuries, that there was probable cause to arrest
Montgomery for domestic violence, but he did not convey this to Montgomery when
they spoke.
{¶6} According to Officer Bryant, Montgomery scraped his wheels on the
curb as he parked his vehicle and seemed unsteady as he walked across the street, “like
he was swaying back and forth.” Officer Bryant and two other officers approached
Montgomery and began questioning him about the domestic-violence incident with
his wife. Montgomery seemed very excited, and it was difficult for the officers to
initiate questioning. Officer Bryant detected a mild odor of alcohol emanating from
Montgomery and noticed that he had “a bit of slurring to his speech,” as well as
bloodshot and watery eyes. Montgomery continually laughed as the officers spoke
with him.
{¶7} When Officer Bryant asked him if he had been in a physical altercation
with his wife, Montgomery stated that he had been drinking that night and could not
3
OHIO FIRST DISTRICT COURT OF APPEALS
remember getting into a physical altercation. In response to the officer’s follow-up
questions, Montgomery indicated that he had consumed too much alcohol to be able
to remember the physical incident, but he “had not drank too much alcohol to be able
to drive a vehicle.” Montgomery eventually shared more details about the altercation
with his wife, stating that they had drunk “a little bottle” and argued. Montgomery
indicated that he had scratches on his face and hands from the altercation and that he
had been punched in the head.
{¶8} Officer Bryant believed that Montgomery was impaired and asked him
to submit to field-sobriety tests. Officer Bryant testified in detail about all three field-
sobriety tests that Montgomery performed and, ultimately, failed. He stated that at
the conclusion of the field-sobriety tests, Montgomery was placed under arrest and
transported to the police station, where he was read his Miranda rights and voluntarily
submitted to breath and urinalysis tests. Upon further questioning at the station,
Montgomery admitted that he drank red wine that evening, and that he had stopped
drinking between 9:00 p.m. and 11:00 p.m.
{¶9} Officer Bryant’s body-worn camera video, which captured his entire
interaction with Montgomery, including the field-sobriety tests, was admitted into
evidence and played for the court.
{¶10} On cross-examination, Officer Bryant was questioned thoroughly about
exactly when he believed that he had probable cause to arrest Montgomery for
domestic violence. Officer Bryant again stated that he believed he had probable cause
to arrest for that offense when Montgomery arrived on the scene. He also
acknowledged that he was aware of a Cincinnati Police Department policy favoring the
immediate arrest of a domestic-violence offender when probable cause exists.
4
OHIO FIRST DISTRICT COURT OF APPEALS
According to Officer Bryant, Montgomery was not under arrest upon his arrival at the
scene, but he would have been detained if he had attempted to leave. Officer Bryant
attempted to clarify, stating that “So our probable cause is based on the fact that we
only have a one sided statement. When he showed up that gave us the opportunity to
talk to both sides to determine if we still had probable cause to make the arrest,” and
“I wanted to give him the opportunity to give his side of the story before I arrested
him.”
{¶11} Cincinnati Police Officer Vernon Hiatt testified that he read
Montgomery his Miranda rights at the police station and witnessed Montgomery
execute a waiver of those rights. Officer Hiatt witnessed Montgomery provide a urine
sample and administered a breathalyzer test to Montgomery. He testified that the
results of the breathalyzer test indicated that Montgomery’s blood alcohol content was
.081.
{¶12} In an oral decision issued from the bench, the trial court denied the
motion to suppress. In relevant part, it found that the statements challenged by
Montgomery were not the product of a custodial interrogation. In support, the court
stated that “He was not in handcuffs. He was not at the police station. He was not in
the police cruiser. He was on the sidewalk and voluntarily provided a great deal of
information to the police in regards to both the reason for the initial encounter and
ultimately to—they found it to be relevant to this OVI charge.”
{¶13} Montgomery subsequently pled no contest to OVI in violation of R.C.
4511.19(A)(1)(a), and the two remaining charges were dismissed. He was sentenced to
180 days in jail. Montgomery received seven days of credit for time served, and the
remaining 173 days were suspended. The trial court additionally imposed a six-month
5
OHIO FIRST DISTRICT COURT OF APPEALS
period of community control, financial sanctions, and a one-year driver’s license
suspension.
{¶14} Montgomery now appeals, arguing in a single assignment of error that
the trial court erred in denying his motion to suppress.
Standard of Review
{¶15} 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. We must accept the trial court’s factual findings if they are supported by
competent, credible evidence, but we review de novo the trial court’s application of the
law to those facts. Id.Denial of Motion to Suppress
{¶16} Montgomery contends that the trial court erred in denying his motion
to suppress because he was subject to a custodial interrogation without having had
Miranda rights administered. He argues that his statements should have been
suppressed because of the Miranda violation, and that the results of his field-sobriety,
breath, and urinalysis tests should have been suppressed as fruit of the poisonous tree.
{¶17} The Fifth Amendment to the United States Constitution provides that
no person “shall be compelled in any criminal case to be a witness against himself.”
To protect a person’s Fifth Amendment privilege against self-incrimination, the
United States Supreme Court announced in Miranda v. Arizona, 384 U.S. 436, 444,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the prosecution may not use statements
stemming from a custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards. The law is well-settled that in the absence of Miranda
6
OHIO FIRST DISTRICT COURT OF APPEALS
warnings, statements obtained during a custodial interrogation are inadmissible.
State v. Hill, 1st Dist. Hamilton No. C-170507, 2018-Ohio-3130, ¶ 45.
{¶18} An accused is subject to a custodial interrogation where she or he “has
been taken into custody or deprived of his freedom, and a law enforcement officer
questions that person.” Id. An objective test is used to determine whether an accused
was subject to a custodial interrogation. State v. Durgan, 1st Dist. Hamilton No. C-
170148, 2018-Ohio-2310, ¶ 14. “Determining what constitutes custody for Miranda
purposes depends on the facts of each case.” State v. Neely, 161 Ohio App.3d 99, 2005-
Ohio-2342, 829 N.E.2d 718, ¶ 26 (1st Dist.). “Whether a custodial interrogation has
occurred depends on how a reasonable person in the suspect’s position would have
understood the situation.” State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893,
817 N.E.2d 411, ¶ 40 (1st Dist.). An officer’s intent to arrest does not dictate whether
a custodial interrogation occurred. As the United States Supreme Court set forth in
Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), “[a]
policeman’s unarticulated plan has no bearing on the question 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 his situation.”
{¶19} The Supreme Court of Ohio clarified this reasonable-person test in
Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 30, holding that
the test to be applied when determining whether a suspect was subject to a custodial
interrogation is whether a reasonable person in the suspect’s position would have
understood herself or himself to be in custody, and not whether a reasonable person
in the suspect’s position would have felt free to leave. The court stated:
7
OHIO FIRST DISTRICT COURT OF APPEALS
Oles contends that his belief that he was not free to leave should be
dispositive. The court of appeals also articulated the test this way,
finding that a reasonable person would not have felt free to leave. But
the 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 because ‘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,’ Berkemer, 468 U.S. at
436, 104 S.Ct. 3138, 82 L.Ed.2d 317. 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.
For purposes of the constitutional privilege against self-incrimination,
the test is not whether the individual feels free to leave but whether the
situation ‘exerts upon a detained person pressures that sufficiently
impair his free exercise of his privilege against self-incrimination to
require that he be warned of his constitutional rights.’
Oles at ¶ 30-31, quoting Berkemer at 436-437.
{¶20} With this relevant law in mind, we turn to Montgomery’s arguments.
Montgomery contends that because the officers at the scene had probable cause to
arrest him for domestic violence and intended to arrest him for that offense, he was
subject to a custodial interrogation as soon as they began questioning him. He urges
8
OHIO FIRST DISTRICT COURT OF APPEALS
this court to adopt a bright-line rule that Miranda warnings must be given any time
officers have probable cause to arrest. We reject Montgomery’s proposition and
decline to adopt such a rule. Rather, we continue to apply the well-settled law that
whether an offender was subject to a custodial interrogation depends upon whether a
reasonable person in the offender’s position would have understood herself or himself
to be in custody. See id. at ¶ 30.
{¶21} In determining whether a reasonable person in the offender’s situation
would have understood herself or himself to be in custody, the Second District has
relied on the following factors:
1) What was the location where the questioning took place -- i.e., was
the defendant comfortable and in a place a person would normally feel
free to leave? For example, the defendant might be at home as opposed
to being in the more restrictive environment of a police station;
2) Was the defendant a suspect at the time the interview began (bearing
in mind that Miranda warnings are not required simply because the
investigation has focused);
3) Was the defendant’s freedom to leave restricted in any way;
4) Was the defendant handcuffed or told he was under arrest;
5) Were threats were (sic) made during the interrogation;
6) Was the defendant physically intimidated during the interrogation;
7) Did the police verbally dominate the interrogation;
8) What was the defendant’s purpose for being at the place where
questioning took place? For example, the defendant might be at a
9
OHIO FIRST DISTRICT COURT OF APPEALS
hospital for treatment instead of being brought to the location for
questioning;
9) Were neutral parties present at any point during the questioning;
10) Did police take any action to overpower, trick, or coerce the
defendant into making a statement.
State v. Estepp, 2d Dist. Montgomery No. 16279, 1997 Ohio App. LEXIS 5279, *10-11
(Nov. 26, 1997). While this court has not formally adopted these factors, we find them
instructive.
{¶22} As we consider whether a reasonable person in Montgomery’s situation
would have understood herself or himself to be in custody, we are mindful of the trial
court’s factual findings that Montgomery was not handcuffed by the officers, and was
questioned on a sidewalk outside his home, rather than in a police cruiser or at a police
station. As the trial court found, Montgomery was not questioned in a restrictive
environment. He voluntarily returned to his home without being summoned there,
and he approached the officers upon arriving on the scene. Although three officers
formed somewhat of a perimeter around him for questioning, they did not engage in
coercive tactics, intimidate, or threaten Montgomery. Nor did they dominate the
questioning. The record indicates that Montgomery voluntarily answered the officers’
questions and engaged in conversation with them. Upon his arrival at the scene, the
officers suspected Montgomery of committing domestic violence, but he was not a
suspect in any alcohol-related offenses.
{¶23} Following our review of the record, we hold that a reasonable person in
Montgomery’s situation would not have understood herself or himself to be in custody,
10
OHIO FIRST DISTRICT COURT OF APPEALS
and therefore, that Montgomery was not subject to a custodial interrogation. Because
he was not subject to a custodial interrogation, Miranda warnings were not required.
{¶24} Montgomery additionally relies on Ohio’s preferred arrest policy set
forth in R.C. 2935.03 to argue that Miranda warnings were required in this situation
where officers had probable cause to arrest him for domestic violence. R.C.
2935.03(B)(3)(b) provides in relevant part:
If pursuant to division (B)(3)(a) of this section a peace officer has
reasonable grounds to believe that the offense of domestic violence or
the offense of violating a protection order has been committed and
reasonable cause to believe that a particular person is guilty of
committing the offense, it is the preferred course of action in this state
that the officer arrest and detain that person pursuant to division (B)(1)
of this section until a warrant can be obtained.
{¶25} We find this statute irrelevant to an analysis of whether a suspect’s
constitutional rights were violated as the result of a custodial interrogation. As clearly
established in Berkemer, an officer’s unarticulated intent to arrest an offender has no
bearing on whether a suspect was in custody. Berkemer, 468 U.S. at 442, 104 S.Ct.
3138, 82 L.Ed.2d 317. Rather, the focus remains on whether a reasonable person in
the suspect’s situation would have understood herself or himself to be in custody. Like
an officer’s unarticulated intent to arrest, Ohio’s statutory preference for the arrest of
offenders believed to have committed domestic violence similarly has no bearing on
whether a custodial interrogation has occurred. And in any event, it is simply a
preference.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Because Montgomery was not subject to a custodial interrogation,
Miranda warnings were not required. And because Miranda warnings were not
required, Montgomery’s statements were not inadmissible and the results of the field-
sobriety, breath, and urinalysis tests were not subject to exclusion as fruit of the
poisonous tree.1
{¶27} The trial court did not err in denying the motion to suppress.
Montgomery’s assignment of error is overruled, and the judgment of the trial court is
affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
1 We note that even if Montgomery had been subject to a custodial interrogation rendering his
statements inadmissible, the record establishes that even with the exclusion of any statements
made by Montgomery, the officers had reasonable suspicion to request that he perform field-
sobriety tests. Officer Bryant’s testimony established that Montgomery struck the curb when
parking, seemed unsteady and swayed as he walked across the street, laughed at inappropriate
times during the questioning, slurred his speech to an extent, had bloodshot and watery eyes, and
had a mild odor of alcohol emanating from him.
12