Therefore, we hold that Mr. 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.


State v. Bailey

2022 – Ohio – 4028

First District Appellate Court

Hamilton County, Ohio

November 14, 2022

On Saturday September 12, 2020, defendant-appellant Mr. 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.

On September 17, 2020, Mr. 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, Mr. 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.

At the suppression hearing, Officer #1 from the First District Appellate Court 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 #1 partner, Officer #2, testified that Mr. Bailey caught the attention of 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 #1 and Officer #2 heard the call, saw the car, activated their lights, and positioned their cruiser to block Mr. Bailey from exiting the parking lot. The officers testified that they had observed a broken headlight on Mr. Bailey’s car prior to the stop.

After relaying Mr. Bailey’s information to dispatch, officers learned that Mr. Bailey had several open capiases for traffic offenses. Officer #2 asked Mr. Bailey to step out of his vehicle and he placed Mr. Bailey in handcuffs while the capiases were being investigated. Officer #2 testified that during the walk to his police cruiser, he: advised [Mr. 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 Officer #2’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 Mr. Bailey, Officer #2 can be heard saying, “Doesn’t mean you’re going to jail or anything, my friend. We gotta at least check everything out.” Then, Officer #2 led Mr. Bailey towards his police cruiser. On the way to the cruiser, Mr. Bailey was patted down as the following exchange occurred:

OFFICER #2: You ain’t got anything on you, do you? Cause I’m going to
be checking – just let me know.


OFFICER #2: Anything in the car?


OFFICER #2: You’re the registered owner, right?


OFFICER #2: 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 Mr. Bailey’s car had been
stopped. A second officer, Officer Twehues, joined the pair, and asked:

TWEHUES: You have some weed in the car?


TWEHUES: Where’s it at?

BAILEY: Under my radio

Officer #2 continued:
OFFICER #2: If we can get you re-cited on these we’ll work with you man.


OFFICER #2: There’s nothing in the car is there?

BAILEY: Just the weed.

OFFICER #2: 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.

Mr. 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. Approximately 90 seconds after being put in the backseat, he was advised of his Miranda rights.

In his motion to suppress, Mr. 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, (1966), because he made the statements during a period of custodial interrogation, and prior to being advised of his Mirandarights. In denying Mr. 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.

On October 21, 2021, Mr. 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 post residential community supervision. Mr. Bailey timely appealed, and his sentence was stayed pending the appeal


In Mr. 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 Mr. Bailey was not subject to custodial interrogation at the time of his admission, and thus a Miranda warning was unnecessary.

The key issue in this case is whether Mr. 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, first paragraph of the syllabus.

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 v. McCarty, 468 U.S. 420, 440 (1984) 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.’ ” 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.)).

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 would take for the officer to search his automobile.” Id. at ¶ 14.

The state points to the factors set out in Oles, 152 Ohio St.3d 1, 2017- Ohio-5834, to demonstrate that Mr. 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.

Here, it is undisputed that after Mr. 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 the scene. Mr. Bailey’s car was entirely blocked in. Despite the officer’s assurances that Mr. 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 Mr. Bailey’s admission.

The intrusion here was not minimal. Although the interaction was brief, Mr. 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.

The environment was also threatening and intimidating because the police presence at the scene was significant. Moreover, Mr. Bailey only admitted to having marijuana in the vehicle after he was threatened that police would run a K-9 unit around his car.  Similar to the custodial interrogations in Farris and Withrow, police suggested to Mr. 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?”).

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 Mr. 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, 2017-Ohio-5834, (noting that the police questioning in Farris, wherein an officer “made it known that he suspected illegal conduct, told [the 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).


Therefore, we hold that Mr. 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 Mr. 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.

Lessons Learned:

  1. At what point during a traffic stop does the detention develop into ‘Miranda detention’? The legal standard and the application can be very nuanced.  The legal standard was established by the Supreme Court of Ohio in 2017 in a three part test: 1) The intrusion is minimal; 2) The question and detention are brief; 3) The interaction is nonthreatening or intimidating. Cleveland v. Oles, 2017 – Ohio – 5834.  In this case was the intrusion minimal?  The officers placed the suspect in handcuffs prior to questioning. Therefore, the intrusion was not minimal.  Was the detention brief?  The interaction began with the officer immediately placing the suspect in handcuffs, patted him down and subsequently placed in the back seat of the cruiser.  Therefore, the interaction would be considered intimidating, that is being patted down, handcuffed and placed in the back seat of a cruiser.  The First District Appellate Court determined that this incident when applied to Oles standard that Mr. Bailey was in custody for purposes of Miranda.
  2. The case is silent about the capiases on which Mr. Bailey was originally detained. I can only surmise that the capiases were not valid, otherwise the marijuana and the firearm would have been inevitably discovered.
  3. The officers in this case had a series of events that most officers would have handled in much the same sequence.However, simply because the vehicle Mr. Bailey was driving was in the parking lot where marijuana consumers were consuming does not provide a legal foundation that Mr. Bailey or anyone else was THE marijuana consumer.  Reasonable suspicion must be established on any one individual for the person to be lawfully detained, not simply anyone in the area.  Here the officers had a ‘Gut Feeling’ that Mr. Bailey was involved in criminal activity and they were right!  However, the officers lacked enough reasonable suspicion to detain Mr. Bailey.  For more on detaining an individual in a high crime area where people are consuming marijuana see Can Law Enforcement Detain Twenty-Five People All at Once in a Very High Crime Gang-Infested Parking Lot?.  For more on utilization and application of a Gut Feeling see Officer Williams’ Gut Feeling was Scientifically Accurate But Was it Legally Justified?.

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