[Cite as State v. Nevarez-Reyes,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27047 : v. : T.C. NO. 14-CR-3659 : RENE NEVAREZ-REYES : (Criminal Appeal from Common : Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 28th day of April, 2017.

...........

LYNNE R. NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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

TUCKER, J. -2-

{¶ 1} After the trial court overruled his motion to suppress, Rene Nevarez-Reyes

pled no contest to aggravated possession of drugs (Schedule I or II, equal to or exceeding

100 times the bulk amount), a first-degree felony, and to a major drug offender

specification. The trial court sentenced Nevarez-Reyes to a mandatory term of eleven

years in prison and suspended his driver’s license for three years.

{¶ 2} Nevarez-Reyes appeals from his conviction, challenging the trial court’s

denial of his motion to suppress. For the following reasons, the trial court’s judgment will

be affirmed.

I. Factual and Procedural History

{¶ 3} In November 2015, the trial court held a hearing on the motion to suppress.

The testimony of Detectives Josh Walters and Jason Leslie and Deputy Joseph Caito,

which the trial court found to be credible, established the following facts.

{¶ 4} In October 2014, Detective Walters and Deputy Caito, both of the

Montgomery County Sheriff’s Office, and Detective Leslie of the Butler Township Police

Department were members of the multi-agency Miami Valley Bulk Smuggling Task Force.

Detective Walters was the lead investigator in this case.

{¶ 5} On Sunday, October 26, 2014, a confidential informant contacted the Task

Force about a suspected load of narcotics. The informant told Detective Walters that he

(the informant) had been contacted by a third-party in Mexico, who asked the informant

to “go to Miller Lane. Go to Sam’s Club. There’s a truck in the lot. Meet with that guy.

We need you to take the truck somewhere.” The informant did not provide further

information about the truck or the narcotics. According to Walters, the informant had -3-

previously provided verifiable information “hundreds of times” and the information had

proven reliable. Sometimes the tips were more specific, and other times, like this, the

tips were vague.

{¶ 6} Walters contacted other members of the Task Force and informed them that

there were “possibly drugs on Miller Lane.” Deputy Caito drove to the area in his marked

cruiser and with his canine partner, and he waited along Interstate 75. Detective Leslie

and other officers also responded to the call out.

{¶ 7} Detective Walters drove in an unmarked vehicle to Sam’s Club “to see if I

could find a truck that possibly matched a description of somebody that was concealing

narcotics or just hanging out, per se, waiting on somebody.” Few vehicles were in the

lot. Walters observed a red Ford Ranger “parked over all by itself,” far away from the

entrance, with one man inside “just looking around, constantly on the phone.” Walters

drove by the truck three times to read and reconfirm the license plate number. Walters

checked the plate using a program called Accurint; the results indicated that the plate was

registered to a 1998 Honda. Walters then asked via radio for another officer to check

the license plate; Detective Leslie and Deputy Caito separately ran the plate.

{¶ 8} Deputy Caito described how he ran the number, as relayed by Detective

Walters, through his onboard computer, which was referred to as his mobile data terminal

(MDT). Using LEADS, Caito entered the abbreviation for Illinois (IL), the plate’s numbers

(1567557), and the registration expiration date from the registration sticker. Caito stated

that if he had entered any information inaccurately, the system would have generated an

error message. However, in this case, the system indicated that the vehicle was a 1998

Honda four-door vehicle, that it was registered to an individual (not Nevarez-Reyes) in -4-

Elgin, Illinois, and that the registration had expired. Caito relayed the information to

Detective Walters, who indicated that the vehicle with that license plate was a red Ford

Ranger pickup truck.

{¶ 9} Detective Leslie also observed the license plate and heard the number as

relayed by Walters, and his LEADS search also identified a 1998 Honda. Leslie testified,

“I tried it a few different ways. There are a * * * few different parameters you can change

for truck plates, passenger car, date of expiration. I ran it a number of ways to see if it

came back different any other way.” Leslie stated that they all came back the same,

“except for I think I had the expiration date wrong on one, and it came back ‘Not in file’ or

something of that sort.”

{¶ 10} Detective Walters contacted his source, and asked the source to call his

contact in Mexico and ask the contact to have the truck go somewhere else. The source

called Walters back and said, “Hey, I told him.” The source told Walters that the Mexican

contact said, “It’s a truck. He’s on his way.” Walters then saw the Ford Ranger leave

the Sam’s Club parking lot. Detective Leslie and another officer in separate unmarked

vehicles began to follow the pickup. Detective Walters continued searching the Sam’s

Club lot to make sure that there was not another vehicle of concern. When no other

vehicle left the lot, Walters contacted Deputy Caito about stopping the pickup.

{¶ 11} The pickup travelled south on Interstate 75. When the pickup truck passed

Deputy Caito’s location, Caito began to follow it. After visually confirming that the Ford

Ranger had the same license plate that he had run, Deputy Caito initiated a traffic stop

for “expired and fictitious registration.” Caito activated his overhead lights, and the

pickup truck pulled to the shoulder of the interstate. The driver, Nevarez-Reyes, was the -5-

sole occupant.

{¶ 12} Deputy Caito approached Nevarez-Reyes, and Nevarez-Reyes provided

his valid Illinois driver’s license, proof of insurance, and valid registration for the truck.

Upon inquiry, Nevarez-Reyes indicated that he was heading to his cousin’s house. Caito

noticed a small travel bag in the vehicle; the key to the vehicle was the only key on the

keyring. After speaking with Nevarez-Reyes, the deputy asked dispatch to send another

cruiser so that Caito’s canine, Gunner, could conduct a free-air sniff of the Ranger.

Within 10 to 12 minutes, Nevarez-Reyes was removed from his vehicle and patted down,

and Caito walked Gunner along the truck, starting at the front left driver’s side corner.

Gunner alerted at the rear passenger side of the vehicle, at the separation between the

bed and the cab of the truck.

{¶ 13} Caito participated in the search of Nevarez-Reyes’s vehicle. He did not

find contraband within the vehicle, but stated certain items were “flags,” such as the

presence of QuikSteel (a metal sealant) in the vehicle, tool marks on the bolts that hold

the straps for the gas tank, and the fact that the straps themselves were not in the “factory

position.” Caito also located rubber gloves and an air chisel bit. Deputy Caito believed

the vehicle was a “trap vehicle” used to transport drugs across the country. Detective

Leslie testified that these items “can be used to make hidden or false compartments inside

the vehicle.”

{¶ 14} Deputy Caito contacted Detectives Walters and Leslie about the alert and

what he had found, and Detective Walters decided to have the vehicle towed and to get

a search warrant to search it. Deputy Caito issued a citation for fictitious tags and

expired tags, and Nevarez-Reyes was transported by another officer to the sheriff’s office -6-

(District 7) so that he could be interviewed.

{¶ 15} Detective Leslie, with Walters’s supervision, prepared a search warrant for

the vehicle. After it was obtained, the gas tank was removed from the Ranger. Five

individually-wrapped packages of suspected methamphetamine were located in the gas

tank.

{¶ 16} Detectives Walters and Leslie interviewed Nevarez-Reyes at District 7

offices. Prior to questioning Nevarez-Reyes, Detective Walters informed Nevarez-

Reyes of his Miranda rights using a pre-interview form. Leslie testified that Nevarez-

Reyes agreed to speak with the officers, and he was not threatened or coerced.

Nevarez-Reyes did not ask to speak to an attorney.

{¶ 17} In February 2015, as the prosecution of Nevarez-Reyes proceeded, the

State discovered that Nevarez-Reyes’s vehicle had been validly registered and that his

registration had not expired. The State of Illinois maintains a vehicle registration system

such that plate number 1567557 is assigned to a 1998 Honda, whereas plate number

1567557 B was assigned to the red truck at issue here. The license plate on Nevarez-

Reyes’s vehicle showed 1567557, but in a smaller font to the side, the plate contained

the additional information of “B Truck.” (See Def.’s Ex. B-E.)

The rear license plate displayed a small

registration expiration tag showing an expiration in

July 2015 for vehicle registration “1567557B.”

The paper registration document for the truck

showed a current and valid registration for

1567557B. Nevarez-Reyes’s driver’s license and proof of insurance were in order. -7-

Deputy Caito’s testimony indicated that it is not typical or usual for officers at a traffic stop

to run the information on the paper registration form once the information on the tag has

been run.

{¶ 18} On February 27, 2015, Nevarez-Reyes was indicted for aggravated

possession of drugs (100 times the bulk amount or more), with a major drug offender

specification. Nevarez-Reyes subsequently moved to suppress the evidence seized

from the vehicle and all statements that he made to police. He claimed that (1) the

officers lacked a reasonable suspicion to stop his vehicle, (2) his detention after the stop

was excessive and unreasonable, (3) the search of his vehicle was based on a defective

warrant and exceeded the scope of the warrant; and (4) his statements were made in

violation of Miranda and were not voluntarily given.

{¶ 19} In January 2016, after a hearing on the motion to suppress, the trial court

denied the motion. The trial court reasoned:

The traffic stop on Defendant’s vehicle for false/expired tags, while

in factual error, was valid. The evidence presented at hearing, including

this Court’s assessment of witness credibility, demonstrates that the law

enforcement officers were acting in good faith under a mistake of fact.

There was no testimony indicating that the failure to include the letter B in

the tag number was other than an isolated mistake. The mistake was not

known to the officers until long after the stop.

Within approximately four to five minutes of the stop, Deputy Caito

had deployed his certified narcotics sniffing K9 which alerted on the vehicle.

The K9’s alert established probable cause for the vehicle search. Given -8-

the rapidity with which the K9 sniff and alert occurred, no prolongation of

the traffic stop occurred.

The Court has conducted a four corner review of the warrant.

Issuance of the warrant was based on significant evidence showing

probable cause for a search of the vehicle, particular and specific as to the

items sought and place to be searched.

Defendant’s Miranda advisement was delivered via a written rights

and waiver form. Defendant’s recorded interview was preceded by a

knowing, voluntary, and intelligent waiver of Miranda rights.

The initial questions posed to Defendant at the traffic stop, prior to

the K9 alert, do not trigger Miranda because the traffic stop did not place

Defendant in a custodial environment. On the totality of the circumstances

presented, the handful of questions posed to Defendant at the stop

regarding his past and future travel did not unduly prolong the stop and were

based on a reasonable and articulable suspicion of criminal conduct.

Deputy Caito knew of the reliable confidential informant’s tip and the truck’s

behavior consistent with that tip. Deputy Caito made observations about

Defendant’s travel kit and ignition key (the absence of a hatch/trunk key).

Those observations raised Deputy Caito’s suspicions of possible criminal

activity. With each vague or inaccurate piece of information supplied by

Defendant regarding his travel and plans, the justifiable basis for additional

investigation increased. The totality of the circumstances provided a

reasonable and articulable basis for the questions unrelated to the specifics -9-

of the traffic stop and those questions did not unduly prolong the stop.

(Citations omitted.)

{¶ 20} In March 2016, Nevarez-Reyes pled no contest to the charged offense and

specification. As stated above, the trial court sentenced him to a mandatory term of

eleven years in prison and suspended his driver’s license for three years.

{¶ 21} Nevarez-Reyes appeals from his conviction. His sole assignment of error

claims that the trial court erred in overruling his motion to suppress.

II. Motion to Suppress

{¶ 22} On appeal, Nevarez-Reyes challenges the trial court’s ruling in two

respects. First, he claims that the officers’ “mistake of fact” did not justify the initial stop

of his vehicle. Second, he asserts that promises made by Detective Walters during his

interrogation at the police station overbore his will, as there appeared to be a “plain-and-

simple quid pro quo – admissions in exchange for a reduced sentence, which would be

controlled by the Detective.” This second issue was not addressed by the trial court’s

decision.

{¶ 23} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford,

,

(2d Dist. 1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence.

. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable -10-

legal standard.”

A. Stop of the Vehicle

{¶ 24} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio,

,

,

(1968). Under Terry, a police officer may stop and detain a

motorist when he or she has a reasonable and articulable suspicion that the motorist has

committed, is committing, or is about to commit any criminal offense, including a traffic

offense, and no independent reasonable and articulable suspicion of other criminal

activity is required. State v. Stewart, 2d Dist. Montgomery No. 19961,

; Dayton v. Erickson,

,

(1996). A traffic violation

gives an officer a reasonable articulable suspicion justifying a traffic stop, notwithstanding

that the traffic stop may also have been a pretext to investigate suspected drug activity.

State v. Mays,

,

,

; State v.

Wilcox,

,

,

(2d Dist.); State v.

Cole, 2d Dist. Montgomery No. 26576,

.

{¶ 25} “ ‘Reasonable, articulable suspicion’ is a ‘less demanding standard than

probable cause and requires a showing considerably less than preponderance of the

evidence.’ ” State v. Fears, 8th Dist. Cuyahoga No. 94997,

, ¶ 5, citing

Illinois v. Wardlow,

,

,

(2000); State v.

Scott, 2d Dist. Clark No. 2013 CA 104,

. The existence of

reasonable suspicion is determined by evaluating the totality of the circumstances,

considering those circumstances “through the eyes of the reasonable and prudent police

officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist. -11-

Montgomery No. 19323,

, ¶ 14, quoting State v. Andrews,

,

(1991).

{¶ 26} Deputy Caito stopped Nevarez-Reyes for having an expired and “fictitious”

vehicle registration. It is undisputed that, at the time of the stop, Neverez-Reyes’s

vehicle registration was not, in fact, expired and fictitious.

{¶ 27} Nevertheless, “the Fourth Amendment allows for some mistakes on the part

of government officials, giving them ‘fair leeway for enforcing the law in the community’s

protection.’ ” Heien v. North Carolina, __ U.S. __,

,

(2014), citing Brinegar v. United States,

,

,

(1949). The Supreme Court has long recognized that searches and seizures based on

a mistake of fact do not violate the Fourth Amendment, provided that the mistake was

reasonable. See id.; Illinois v. Rodriguez,

, 183–186,

,

(1990); Hill v. California,

, 802–805,

,

(1971).

{¶ 28} Here, three officers ran the out-of-state license plate number on Nevarez-

Reyes’s vehicle. Two of the officers – Detectives Walters and Leslie – separately viewed

the license plate before running the number of the plate. All of the officers ran the

number multiple times. For Detective Walters and Officer Caito, the information

repeatedly came back to a 1998 Honda. One of Detective Leslie’s searches resulted in

an error message, but his other searches also indicated that the plates were expired and

belonged on a 1998 Honda. It was not apparent to any of the officers that the “B” was a

necessary part of the search terms or that the Illinois vehicle registration system was

designed such that two vehicles could have the same plate number 1567557. The -12-

officers did not learn until several months later that Nevarez-Reyes’s vehicle registration

was not expired or fictitious.

{¶ 29} Based on the circumstances, Officer Caito did not act unreasonably when

he stopped the Ford Ranger that Nevarez-Reyes was driving. Caito had no reason to

believe that he had entered an incomplete license plate number into his computer; Caito

had not received an error message and he was unaware of the particularities of the Illinois

vehicle registration system. The deputy visually confirmed the license plate number prior

to stopping the Ranger; the “B” at the end on the number was smaller than the numbers,

and it was not an obvious part of the license plate number. Caito’s search result was

consistent with the results that both Detectives Walters and Leslie had also received when

they independently ran the license plate number. Although the result was, in fact,

erroneous, the officers reasonably relied on the result showing that the vehicle’s

registration was expired and fictitious. And, given that he and other officers had already

run the license plate prior to the stop, Deputy Caito did not act unreasonably when he

decided not to rerun the license plate based on the paperwork in the vehicle.

B. Statements Made to the Police at the Station

{¶ 30} Under the Fifth Amendment to the United States Constitution, no person

shall be compelled to be a witness against himself or herself. In order to ensure that this

right is protected, statements resulting from custodial interrogations are admissible only

after a showing that the procedural safeguards described in Miranda v. Arizona,

,

,

(1966), have been followed. In re R.L., 2014-

Ohio-5065,

, ¶ 17 (2d Dist.), citing In re Haubeil, 4th Dist. Ross No.

01CA2631,

, ¶ 9. -13-

{¶ 31} Whether a statement was made voluntarily and whether an individual

knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct

issues. State v. Eley,

,

(1996); State v. Kelly, 2d

Dist. Greene No. 2004-CA-20, 2005–Ohio–305. Regardless of whether Miranda

warnings were required and given, a defendant’s statement may have been given

involuntarily and thus be subject to exclusion. Kelly at ¶ 11.

{¶ 32} A defendant’s statements to police after a knowing, intelligent, and voluntary

waiver of the individual’s Miranda rights are presumed to be voluntary.

“The Miranda presumption applies to the conditions inherent in custodial interrogation that

compel the suspect to confess. It does not extend to any actual coercion police might

engage in, and the Due Process Clause continues to require an inquiry separate from

custody considerations and compliance with Miranda regarding whether a suspect’s will

was overborne by the circumstances surrounding his confession.” State v. Porter,

,

,

(2d Dist.), citing Dickerson v.

United States,

,

,

(2000).

{¶ 33} “In deciding whether a defendant’s confession is involuntarily induced, the

court should consider the totality of the circumstances, including the age, mentality, and

prior criminal experience of the accused; the length, intensity, and frequency of

interrogation; the existence of physical deprivation or mistreatment; and the existence of

threat or inducement.” State v. Edwards,

,

(1976),

paragraph two of the syllabus, overruled on other grounds,

,

,

(1978). See also State v. Belton, Ohio Sup. Ct. Slip Opinion No. 2016-

Ohio-1581, ¶ 107. -14-

{¶ 34} “[F]alse promises made by police to a criminal suspect that he can obtain

lenient treatment in exchange for waiving his Fifth Amendment privilege so undermines

[sic] the suspect’s capacity for self-determination that his election to waive the right and

incriminate himself in criminal conduct is fatally impaired. His resulting waiver and

statement are thus involuntary for Fifth Amendment purposes. * * * The simple result is

that officers must avoid such promises, which are not proper tools of investigation.”

State v. Petitjean,

,

(2d Dist. 2000). See also

State v. Western,

,

, ¶ 39 (2d Dist.).

{¶ 35} In contrast to misstatements of law and false promises of leniency,

admonitions to tell the truth are not unduly coercive. State v. Cooey,

,

(1989);

. A police officer’s assertion to the suspect

that he or she is lying or that the suspect would not have another chance to tell his or her

side of the story does not automatically render a confession involuntary. State v. Knight,

2d Dist. Clark No. 2004 CA 35,

. “Similarly, assurances that a

defendant’s cooperation will be considered or that a confession will be helpful do not

invalidate a confession.” State v. Stringham, 2d Dist. Miami No. 2002-CA-9, 2003-Ohio-

1100, ¶ 16. Even a “mere suggestion that cooperation may result in more lenient

treatment is neither misleading nor unduly coercive, as people ‘convicted of criminal

offenses generally are dealt with more leniently when they have cooperated with the

authorities.’ ”

quoting State v. Farley, 2d Dist. Miami No. 2002-CA-2, 2002-Ohio-

6192; see Belton at ¶ 111 (“Officers may discuss the advantages of telling the truth,

advise suspects that cooperation will be considered, or even suggest that a court may be

lenient with a truthful defendant.”). -15-

{¶ 36} In general, the State has the burden to show by a preponderance of the

evidence that a defendant’s confession was voluntarily given. State v. Melchior,

,

(1978).

{¶ 37} We have reviewed the exhibits submitted by the parties, including the audio

recording of the interview at the sheriff’s office (State’s Exhibit 11). The entire recording

of the interview is approximately 20 minutes long. At the time of the interview, Nevarez-

Reyes was 22 years old and had completed high school. He was from the Chicago area.

Detective Walters noted during the interview that Nevarez-Reyes had only minor offenses

in the past.

{¶ 38} At the beginning of the interview, Detective Walters informed Nevarez-

Reyes that he and Detective Leslie wanted to talk about the drugs in the vehicle. Walters

told Nevarez-Reyes that this was a “no bull crap kind of case,” noting that Nevarez-Reyes

was the sole occupant of a vehicle found to contain drugs. Walters stated that the issue

came down to how much time Nevarez-Reyes wanted to “knock down” his sentence and

what could Nevarez-Reyes “put on the table” to help the officers. At that juncture,

Walters read Nevarez-Reyes his Miranda rights using a pre-interview form. Nevarez-

Reyes orally indicated that he understood his rights, and he initialed on the form next to

each right. Nevarez-Reyes agreed to speak with the officers, and he initialed next to the

waiver of rights paragraph on the form.

{¶ 39} After Nevarez-Reyes waived his Miranda rights (approximately 6 minutes

into the interview), Detective Walters stated, “I want to help you as much as I can,

because someone your age, I don’t want to see you go to prison for the rest of your life.”

He told Nevarez-Reyes that he (Nevarez-Reyes) had “a chance to help yourself out,” and -16-

that the officer would help him if Nevarez-Reyes wanted to help himself. The officers

told Nevarez-Reyes that he faced mandatory terms of 11 years for both drug possession

and drug trafficking, plus a potential additional 3 years for a major drug offender

specification. The officers indicated that Nevarez-Reyes was starting at 25 years and it

could “only go down” from there. Walters emphasized that he realized that Nevarez-

Reyes was paid to transport the drugs, and that the detectives wanted information about

the people in charge. Walters stated that he could not make an agreement for five years

or no prison time if Nevarez-Reyes cooperated; rather, the detective would “have to see

what [Nevarez-Reyes] can put on the table.”

{¶ 40} For the next 10 minutes or so, the detectives asked Nevarez-Reyes what

he knew about the drug transactions of which he was a part. Nevarez-Reyes answered

the questions. At the conclusion of the interview, Detective Walters told Nevarez-Reyes

that he (Walters) would inform the prosecutors that Nevarez-Reyes had been 100 percent

cooperative and had given as much information that he (Nevarez-Reyes) could. Walters

stated that he could not make any agreement today and that Nevarez-Reyes would need

to go to jail, but the detective would speak with prosecutors the following day. Walters

stated that he would tell Nevarez-Reyes’s attorney and the judge at sentencing that

Nevarez-Reyes had been cooperative and that Nevarez-Reyes would receive less time

than someone who had not cooperated.

{¶ 41} As an initial matter, other than the fact that Nevarez-Reyes was in police

custody, the circumstances of the interrogation were not inherently coercive. Nevarez-

Reyes was 22 years old and had a 12th-grade education. The interview started at

approximately 6:00 p.m., and the entire interview, including the reading and waiver of his -17-

Miranda rights, lasted just under 20 minutes.

{¶ 42} As for the detective’s statements that Nevarez-Reyes could “help himself”

and that the detective could not make an agreement for a five-year sentence or no prison

sentence, the detective’s statements did not promise a reduced sentence in exchange for

a confession by Nevarez-Reyes. As we stated in State v. Heisey,

,

(2d Dist):

[W]e have said that “assurances that a defendant’s cooperation will be

considered or that a confession will be helpful do not invalidate a

confession.” “[A] mere suggestion that cooperation may result in more

lenient treatment is neither misleading nor unduly coercive, as people

‘convicted of criminal offenses generally are dealt with more leniently when

they have cooperated with the authorities.’ ” “Likewise, an investigator’s

offer to ‘help’ if a defendant confesses is not improper.”

(Citations omitted.) Heisey at ¶ 15. Here, Detective Walters emphasized the importance

of Nevarez-Reyes’s cooperation and that Nevarez-Reyes may be able to receive more

lenient treatment, depending on the information that Nevarez-Reyes could provide. But

the detective did not promise that Nevarez-Reyes would receive leniency prior to

Nevarez-Reyes’s statements. At the conclusion of the interview, Walters did say that

Nevarez-Reyes would receive less time than someone who had not been cooperative,

but no further statements were made following this comment. Considering the totality of

the circumstances, the questioning of Nevarez-Reyes was not unlawfully coercive.

{¶ 43} It is further noted that at the suppression hearing, though raised in the

suppression motion, Nevarez-Reyes did not assert, through direct examination, cross -18-

examination, argument or otherwise, that his statements were the result of his will being

overborne by a false promise of lenient treatment. This supports the conclusion that

Nevarez-Reyes’ statements, under the totality of circumstances, including the difficult

factual situation Nevarez-Reyes faced, Walters’ mild, non-intimidating demeanor during

the less than 20 minute interview, and Nevarez-Reyes’ prompt cooperation, were not

induced by Walters’ reference to a reduced sentence. This record, in short, supports the

conclusion that Nevarez-Reyes’ Fifth Amendment waiver was voluntary.

{¶ 44} The sole assignment of error is overruled.

III. Conclusion

{¶ 45} The trial court’s judgment will be affirmed.

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

Hall, P.J., concurring.

{¶ 46} I agree with, and concur in, the lead opinion’s conclusions that the stop of

the appellant’s vehicle was supported by probable cause, though based on a later-

discovered mistake of fact. I also agree that the totality of the circumstances, after

consideration of all the evidence in the record, supports the trial court’s denial of the

motion to suppress. I write separately to note what was not developed by the record, not

addressed with evidence from the appellant, not argued before the trial court, not

transcribed into written form, most likely not reviewed by the trial court, and not included

in the trial court’s decision.

{¶ 47} I acknowledge that the appellant’s boilerplate motion to suppress generally

raised a potential issue of whether he properly was advised of his Miranda rights and

whether “because of coercive police questioning, [his] statements were not voluntarily -19-

given and must be suppressed.” But virtually the entire motion hearing, contained in 226

pages of transcript, focused on whether the traffic stop of the appellant’s vehicle was

constitutional. Only in three pages, 183 to 185, did the State introduce evidence that the

appellant was advised of his Miranda rights by use of a written form, that he was not

threatened or coerced, and that the interview was recorded on a DVD that was introduced

as an exhibit. There was no request, by either side, for the court actually to review the

video. The defense did not ask a single question, not one, about the rights or about the

interview. The appellant did not testify that his will was overborne by police tactics.

Defense counsel’s oral argument at the end of the hearing did not mention the rights

waiver or the interview. Consequently, the trial court’s decision did not address any factual

or legal issues that might arise in the video recording and the court did not even refer to

it.

{¶ 48} In my opinion, we need not address issues that were not tried before the

trial court. However, even if we do, the totality of the circumstances fails to show the

appellant’s will was overborne or that his statements were involuntary.

FROELICH, J., dissenting.

{¶ 49} I agree with the majority’s conclusion that Deputy Caito constitutionally

stopped Nevarez-Reyes’s vehicle based on his reasonable, but mistaken, belief that the

vehicle’s license plates were expired and fictitious. I dissent, however, from the

conclusion that Detective Walters’s statements to Nevarez-Reyes during the interrogation

at the police station did not overbear Nevarez-Reyes’s will and render his statements at

the police station involuntary.

{¶ 50} Nevarez-Reyes was a 22-year-old from Chicago with a high school -20-

education. Although his statements during the interview indicated that he previously had

driven drugs from Chicago to other states, Nevarez-Reyes had only minor criminal

offenses in the past.

{¶ 51} Prior to informing Nevarez-Reyes of his Miranda rights, Detective Walters

informed Nevarez-Reyes that he and Detective Leslie wanted to talk about the drugs in

the vehicle. Detective Walters pointed out that Nevarez-Reyes was the sole occupant

of a vehicle found to contain a large quantity of drugs. Walters told Nevarez-Reyes, “The

only thing we want from you is the amount of time you want to knock off your sentence,

okay, and what you can do, what you can put on the table, what you can produce,

because that’s what it’s gonna come down to as far as how much time you’re gonna get

reduced and where we’re gonna go from here.” Thus, prior to giving Navarez-Reyes his

Miranda rights, Detective Walters indicated to Nevarez-Reyes that making incriminating

statements would reduce any sentence that he would receive.

{¶ 52} Walters then informed Nevarez-Reyes of his Miranda rights using a waiver

of rights form. After explaining and ensuring Nevarez-Reyes’s understanding of each of

the rights, the detective read verbatim the waiver of rights paragraph at the bottom of the

page. Walters explained the term “coercion,” saying that no one in the interview room

was “holding a gun” to Nevarez-Reyes and that the officers were “not pressuring you to

talk.” However, the detective further said, “This can only help you; it can’t help us. * * *

Certainly it could, depending on what you can do.” Nevarez-Reyes agreed to waive his

Miranda rights and he signed the form.

{¶ 53} The United States Supreme Court has addressed the voluntary waiver of

Miranda rights, stating: -21-

* * * Miranda holds that “[t]he defendant may waive effectuation” of the rights

conveyed in the warnings “provided the waiver is made voluntarily,

knowingly and intelligently.” The inquiry has two distinct dimensions.

First, the relinquishment of the right must have been voluntary in the sense

that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it. Only if the “totality of

the circumstances surrounding the interrogation” reveal both an uncoerced

choice and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.

(Citations omitted.) Moran v. Burbine,

,

,

(1986); see Berghuis v. Thompkins,

,

,

(2010). Here, the detective’s statements to Nevarez-Reyes prior to and

during the issuance of Miranda warnings suggested that one consequence (in this case,

benefit) of a waiver of Nevarez-Reyes’s rights would be reduction in his sentence.

Although Nevarez-Reyes was accurately informed of his Miranda rights, the record does

not reflect, when considering the totality of the circumstances, that Nevarez-Reyes fully

understood the actual consequences of his waiver.

{¶ 54} After Nevarez-Reyes waived his Miranda rights, Detective Walters stated,

“I want to help you as much as I can, because someone your age, I don’t want to see you

go to prison for the rest of your life.” The detectives also incorrectly told Nevarez-Reyes

that he faced an aggregate 25 years in prison based on his conduct. The officers stated -22-

that Nevarez-Reyes was starting at 25 years and it could “only go down” from there.

Detective Walters told Nevarez-Reyes that he understood that Nevarez-Reyes was paid

to transport the drugs, just like many other people they stop under similar circumstances,

and the detective indicated that law enforcement could potentially “use” Nevarez-Reyes,

but only if Nevarez-Reyes did not lie. The detective stated, “There’s a chance -- I can’t

make the agreement that, you know, I’m gonna give you five years if you cooperate or

I’m gonna give you no time, okay? But I gotta look and see exactly what you can put on

the table, how much you can put on the table, and we can go from there.”1 Nevarez-

Reyes proceeded to tell the detectives what he knew about the drug transactions of which

he was a part.

{¶ 55} The detective’s statements that Nevarez-Reyes could “help himself” and

obtain a reduced sentenced if Nevarez-Reyes provided information induced Nevarez-

Reyes to make incriminating statements. After Nevarez-Reyes waived his Miranda

rights, Walters inaccurately made statements about the sentence Nevarez-Reyes faced,

first saying that the detective did not want to see him “go to prison for the rest of your life”

and later saying that Nevarez-Reyes faced a mandatory 25 years. Even assuming that

it were reasonable for Walters to state that Nevarez-Reyes faced separate, consecutive

sentences for aggravated possession and trafficking in drugs, there is no separate penalty

for a major drug offender specification. R.C. 2925.11(C)(1)(e).

1 The audio recording of the interview was not transcribed, and it is unclear whether Detective Walters stated, “There’s a chance I can make the agreement [for five years or no time] * * *,” or whether he said, “There’s a chance -- I can’t make the agreement [for five years or no time] * * *.” Under either interpretation, the detective implied that Nevarez-Reyes would receive leniency of some amount, but the specific deal depended on what Nevarez-Reyes had to say. -23-

{¶ 56} Moreover, Detective Walters’s statements to Nevarez-Reyes were not

merely “assurances that a defendant’s cooperation will be considered,” an offer of help,

or statements that cooperation may result in more lenient treatment. Detective Walters

indicated to Nevarez-Reyes that he (Nevarez-Reyes) would receive more lenient

treatment if he (Nevarez-Reyes) provided information; the quality of the information would

affect the amount of the sentence reduction. Although the detective stated that he could

not make an agreement for a five-year sentence or no prison sentence, Walters

unequivocally stated that Nevarez-Reyes would receive some benefit by providing

helpful, i.e. incriminating, information. Walters stated to Nevarez-Reyes that if Nevarez-

Reyes wanted to help himself, Walters would help him.

{¶ 57} By the end of the conversation, the detective told Nevarez-Reyes that he

(Nevarez-Reyes) would have to go to jail, but that he would review the matter with

prosecutors the next day and would say that Nevarez-Reyes had been “100 percent

cooperative” and had told the detectives “everything you could.” Walters further said

that, when it comes time for sentencing, he would tell “the court and your attorney that

you were cooperative” and that he would “ask for a reduced sentence.”2 The officer did

not state, until after Nevarez-Reyes had already confessed and provided additional

information, that he (Walters) lacked the authority to make any deal regarding Nevarez-

Reyes’s sentence. To the contrary, Walters’s implied that he – not the prosecutor --

2 The trial court proceeded directly to sentencing after the plea, because, as defense counsel stated, “[t]here’s really no option for the Court as far as sentencing except for the fine.” No presentence investigation was conducted. There is no indication that Detective Walters was present at the plea and sentencing hearings; neither the prosecutor nor the detective made any statement to the court regarding Nevarez-Reyes’s cooperation with law enforcement officers. -24-

could make an agreement if Nevarez-Reyes cooperated, but that Walters could not make

a specific deal for five years or no time until after he heard what Nevarez-Reyes “put on

the table.” It was only after Nevarez-Reyes has said “everything [he] could” that the

detective said, “I can’t make an agreement today” and that he would talk to the prosecutor.

{¶ 58} Considering the totality of the circumstances, Detective Walters told

Nevarez-Reyes, both prior to and after Miranda warnings, that Nevarez-Reyes would

receive leniency – as opposed to a recommendation by Walters to the prosecutor for

leniency − if Nevarez-Reyes provided incriminating and additional information. I would

conclude that Nevarez-Reyes’s will was overborne by the detective’s statements

regarding leniency, rendering Nevarez-Reyes’s statements involuntary.

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

Copies mailed to:

Lynne R. Nothstine Brock A. Schoenlein Hon. Mary L. Wiseman