[Cite as State v. Montgomery,

.]

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,

,

,

. 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.

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,

,

,

(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,

.

{¶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.”

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,

. “Determining what constitutes custody for Miranda

purposes depends on the facts of each case.” State v. Neely,

, 2005-

Ohio-2342,

(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,

,

,

(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,

,

,

(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,

,

,

, 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,

,

,

. 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.’

, quoting

.

{¶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,

, *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,

,

,

. 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