IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 12 CR 110

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO THE STATE OF OHIO, : Plaintiff, : Case No. 12 CR 110 v. : Judge Berens CHARLES W. FURNISS, : ENTRY Overruling in Part and Sustaining in Part Defendant s Motion to Suppress Evidence Defendant. : This matter is before the Court upon the Defendant s Motion to Suppress, filed March 28, An oral hearing on this matter was held on May 14, The parties have filed posthearing briefs in this matter, which the Court has considered. For the following reasons, Defendant s motion is OVERRULED in part and SUSTAINED in part. FINDINGS OF FACT From the evidence adduced at the oral hearing, including the testimony of Lancaster Police Department officers James S. Hall ( Ofc. Hall) and Matt Mullett ( Ofc. Mullett ), and the exhibits admitted into evidence, the Court makes the following findings of fact: 1. On October 8, 2011, Ofc. Hall was working second shift on patrol in Lancaster, Ohio. As he was southbound on Memorial Drive, Ofc. Hall noticed a black vehicle travelling northbound on Memorial Drive at a high rate of speed. After verifying the speed by radar, Ofc. Hall determined the black vehicle was travelling more than 50 mph in a 35 mph zone. 2. Ofc. Hall turned to pursue the black vehicle. Because the vehicle made an unsignalled left turn from a restricted lane and almost collided with another vehicle, Ofc. Hall developed the belief that the driver was attempting to evade. Ofc. Hall radioed for backup. 1

2 3. The black vehicle stopped in a parking lot. After Ofc. Mullett arrived as backup, Ofc. Hall approached the driver s door as Ofc. Mullett approached from the passenger side. 4. Ofc. Hall noticed that the driver s hands were clutching the steering wheel tightly enough to turn the driver s knuckles white and that the driver was shaking. Still believing the driver might attempt to flee, Ofc. Hall ordered the driver to remove the key from the ignition and the driver complied. 5. The driver, who was later identified as Defendant, told Ofc. Hall he was travelling to see his girlfriend on her lunch break. Ofc. Hall requested Defendant s vehicle registration. 6. Defendant opened the glove compartment to retrieve his registration and quickly slammed it shut. Ofc. Hall and Mullett noticed an object fall from the glove compartment onto the floorboards of the vehicle. 7. From his perspective, Ofc. Mullett could see that the object was a padded case approximately 6 inches long. Ofc. Mullett had seen similar cases before in the course of his duties, including during an incident the previous night. In his experience, similar cases always contained a glass pipe used for smoking marijuana. 8. Ofc. Mullett asked Defendant, Can I see that? Defendant handed the padded case to Ofc. Mullett. Ofc. Mullett opened the case and discovered a glass pipe and a small amount of a substance that appeared to be marijuana. 9. At that point, Ofc. Hall ordered Defendant out of his vehicle and took Defendant to the rear of the vehicle and ordered him to place his hands on the vehicle. Ofc. Hall had determined he was going to arrest Defendant on suspicion of possession of marijuana and possession of drug paraphernalia. Ofc. Hall then asked Defendant for consent to search his person, which Defendant granted. 2

3 10. Ofc. Hall and Mullett conducted a search of Defendant s clothing and discovered a baggie of pills, a baggie of suspected marijuana, a film case containing more pills, and a hard shell glasses case so full of money that bills were holding the case open. 11. Ofc. Mullett stated to Ofc. Hall, It looks like he s been selling this stuff. At that time, Defendant made some incriminating statements, including identification of the pills and admissions to selling the pills. 12. Defendant was arrested, read the Miranda warnings, and placed in a patrol car. Defendant s vehicle was then searched and impounded according to LPD policy. 13. Defendant later gave written and taped statements to law enforcement. CONCLUSIONS OF LAW Defendant makes three arguments in support of his motion to suppress. First, Defendant asserts that Ofc. Mullett lacked probable cause to seize and open the object that fell from Defendant s glove compartment. Second, Defendant maintains that Ofc. Hall and Mullett lacked probable cause to search Defendant s person and that Defendant s consent to that search was the result of duress or coercion. Finally, Defendant argues that any oral or written statements obtained from Defendant were in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) or as fruit of statements obtained in violation of those rights. 1. Officer Mullett s Seizure and Search of the Padded Case was Supported by Probable Cause. The Fourth Amendment to the Constitution of the United States and Section 14, Article I of the Ohio Constitution protect the rights of the people to be free from unreasonable searches and seizures of their person or property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 3

4 889 (1968); State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991). A traffic stop constitutes seizure of the vehicle and all occupants, but is not unreasonable if the officer initiating the traffic stop has witnessed a traffic violation. State v. Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330 (1977). The duration of a traffic stop is limited; such a seizure may last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct (1983). But an officer may expand the scope of a traffic stop when the officer observes articulable facts giving rise to a suspicion of criminal activity. Robinette at 241. The officer may then search the vehicle if he or she develops probable cause, which exists when the officer has reasonable, articulable grounds to believe a crime is being committed or contraband is present. State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000). Defendant argues that the fact that Ofc. Hall and Mullett could not recall a detailed description of the padded case during the evidentiary hearing and that they gave slightly different descriptions of the object points to a lack of probable cause. Defendant further asserts that, although Defendant handed the object to Ofc. Mullett, he did not give Ofc. Mullett permission to open the case. Viewing the totality of the circumstances, the Court finds that Ofc. Mullett did have probable cause to open and search the padded case. Although the details of the case s appearance were no longer clear to Ofc. Mullett at the time of the evidentiary hearing, Ofc. Mullett clearly referenced the same object as described in the incident report he completed just after the incident and described by Ofc. Hall in his testimony. More importantly, Ofc. Mullett credibly articulated specific grounds that he reasonably believed a crime was being committed or that contraband was present in the case. Specifically, Ofc. Mullett testified that he had encountered similar cases 4

5 in the course of his duties and that such a case had contained a glass marijuana pipe every time that he had encountered one. Although there might be other uses for such a case, it was not unreasonable for Ofc. Mullett to draw the conclusion that possession of such a case indicated that Defendant was in possession of marijuana or drug paraphernalia. Therefore, Defendant s motion to suppress is OVERRULED as it relates to the padded case and its contents. 2. Defendant Voluntarily Consented to the Search of His Person. The Ohio Supreme Court has stated, every search situation is unique unto itself and no set of fixed rules will be sufficient to cover every situation. State v. Robinette, 80 Ohio St.3d 234, 242, 685 N.E.2d 762. When consent to a noncustodial search is at issue, the State must demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances[.] Id. at 243, quoting Schneckloth v. Bustamonte, 412 U.S. 218, , 93 S.Ct (1973). The Supreme Court of the United States has stated that the State s burden cannot be met by showing mere submission to a claim of lawful authority. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct (1983). Additionally, the Fifth District Court has enunciated six factors that are important to determining the voluntariness of consent: (1) The voluntariness of the defendant's custodial status; (2) The presence of coercive police procedures; (3) The extent and level of the defendant's cooperation with the police; (4) The defendant's awareness of his right to refuse to consent; (5) The defendant's education and intelligence; and (6) The defendant's belief that no incriminating evidence will be found. State v. Damron, 5th Dist. No. 06CV-150, 2007-Ohio-5808, at 17. In Robinette, the Ohio Supreme Court found that Robinette s consent was mere 5

6 submission to a claim of lawful authority. In that case, Robinette was detained in a traffic stop and ordered out of his vehicle. After being told he was going to be released with only a warning, Robinette was faced with further questions, one of which was a request to search his vehicle. The Ohio Supreme Court held that the totality of the circumstances indicated that Robinette had submitted to a claim of lawful authority and had not validly consented. In so holding, the Robinette Court specifically noted a police officer s superior position of authority and the officer s power to issue a ticket rather than a warning if Robinette had become uncooperative. Considering all of the facts and circumstances, the Court finds that Defendant s consent to a search of his person was voluntary and not mere acquiescence to a claim of authority. Even considering Defendant s evident fear during his encounter with officers Hall and Mullett, the Court finds that officer s Hall and Mullett did not take any unusual or coercive actions to cause Defendant to experience that fear. In addition, unlike in Robinette, Defendant did not face the implicit threat that he would be subject to an increased sanction if he did not comply with the request for a search. At the time of the request, Defendant knew that Officer Mullett had discovered his marijuana pipe and a small amount of marijuana. He had every reason to expect that he would be arrested soon and may have reasonably believed that he was in the process of being arrested. There was nothing for Defendant to gain by consenting to a search of his person before that apparently impending arrest. Further, throughout the encounter Defendant had been cooperative with the police, taking the keys out of his ignition, promptly identifying himself, and handing over his pipe case. Considering the encounter as a whole, the Court finds that the State met its burden to establish consent by a preponderance of the evidence. Therefore, Defendant s motion to suppress is OVERRULED as it relates to the search of Defendant s person. 6

7 3. Defendant s Identification of the Pills Found On His Person and Admissions to Trafficking Activities Must Be Suppressed. Finally, Defendant seeks to suppress any statements he made before his arrest as having been obtained without the warnings required under Miranda v. Arizona and its progeny and any statements made thereafter as the fruit of his previously obtained statements. The Supreme Court of the United States held in Miranda that a person subjected to a custodial interrogation has a number of rights and must be advised as to those rights. The Court went on to explain, By custodial interrogation, we mean 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. Id. at 444. The Court must determine what were the circumstances surrounding the interrogation and given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (footnote omitted). That inquiry is an objective one; the appropriate standard is whether a reasonable person would have felt free to leave and not whether the specific individual seeking to suppress a statement felt free to leave or stop answering questions. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L.Ed.2d 317 (1984). Conversely, if a person is not in custody, the rights explained in Miranda do not attach. State v. Fry, 61 Ohio App.3d 689, 692, 573 N.E.2d 1108 (1988). Therefore, the first question the Court must consider is whether the interview of Defendant was custodial. When a defendant files a motion to suppress statements made to police that were products of custodial interrogation, the state has the burden to prove that law enforcement respected the defendant s Miranda rights by a preponderance of the evidence. See Colorado v. Connelly, 479 7

8 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). When considering a motion to suppress, the trial court assumes the role of trier of fact. State v. Burnside, 100 Ohio St.3d 152, , 797 N.E.2d 71, 2003-Ohio-5372, at 8, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Considering all of the facts and circumstances, the Court finds that Defendant was in custody for the purposes of the Miranda analysis from the point Defendant was removed from his vehicle and ordered to place his hands on the back of his vehicle. At that point, Defendant had been ordered to stop, ordered to remove his keys from the ignition, and removed from his vehicle by two armed officers. He had already handed over a glass pipe of the type commonly used for smoking marijuana and a substance that would appear to be marijuana to one of the officers. He was then subjected to a search by both officers, who located what appeared to be controlled substances and a large amount of cash from his person. Even if the pipe was only used for smoking tobacco, the green leafy material was oregano, and Defendant had a prescription for all of the pills, it is a matter of common knowledge that such discoveries will arouse the greatest suspicion of law enforcement officers. Under those circumstances, the Court finds that a reasonable person would not feel at liberty to terminate his encounter with the police and leave. Although he was not yet under formal arrest, a reasonable person in Defendant s position would have known that was almost certainly the next step. Having determined that Defendant was in custody, the Court must determine whether Defendant s statements were the result of interrogation or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct Statements and actions by law enforcement other than direct questions may still constitute interrogation when those statements or actions are reasonably likely to elicit an incriminating response. 8

9 Officers Hall and Mullett did not describe the circumstances under which Defendant identified the pills found during the search of his person. However, it strains credibility to assert that Defendant saw that the officers had recovered pills from his pockets and began giving them an inventory without some prompting from the officers. Considering the evidence, the Court finds that the State has not met its burden to prove by a preponderance of the evidence that law enforcement respected Defendant s Miranda rights with respect to his statements identifying the pills. Further, although officers Hall and Mullett differed slightly on exactly what Ofc. Mullett said when he recovered the glasses case of cash from Defendant s pockets it was reported variously as It appears you are selling these pills or It looks like he s been selling this stuff the Court finds that either statement is reasonably likely to elicit an incriminating response. Therefore, the Court finds that Defendant s statements identifying the pills discovered during the search of his person and Defendant s statements admitting to selling drugs were the product of interrogation. Because Defendant s statements identifying the pills discovered during the search of his person and Defendant s statements admitting to selling drugs were the product of custodial interrogation and the State did not prove by a preponderance of the evidence that law enforcement respected Defendant s Miranda rights, Defendant s motion to suppress is SUSTAINED as to those statements. 4. The Connection Between Defendant s Suppressed Statements and His Later Statements Was Sufficiently Attenuated As to Dissipate the Taint of His Suppressed Statements. Generally, the exclusionary rule requires the suppression not only of evidence directly obtained through illegal search or seizure, but also of derivative evidence or fruit of the poisonous tree. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); 9

10 State v. Carter, 69 Ohio St. 3d 57, 67, 630 N.E.2d 355 (1994). However, evidence need not be suppressed if the connection with the unlawful search becomes so attenuated as to dissipate the taint of the illegality. Murray v. U.S., 487 U.S. 533, , 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988), quoting Nardone, 308 U.S. at 341. Defendant argues that but for his prior statements, he would not have made written and taped statements after his arrest. Between the time of his suppressed statements and the later written and taped statements, Defendant was formally arrested, given Miranda warnings, and taken to a different location by police. Defendant was also aware that officers had searched his vehicle and discovered further evidence that would tend to support the theory that Defendant was engaged in the use and trafficking of illegal drugs and controlled substances. According to the evidence adduced at the hearing, Defendant had also had the time to reflect on his situation and offer his assistance to law enforcement in investigating drug offenses. Considering all of that, and considering that modern jurisprudence warns that suppression of evidence should be a last resort 1 the Court finds that the connection between Defendant s suppressed statements and subsequent written or taped statements was sufficiently attenuated as to dissipate the taint of his suppressed statements. Therefore, Defendant s motion to suppress those statements is OVERRULED. For the forgoing reasons, Defendant s motion to suppress is OVERRULED in part and SUSTAINED in part. IT IS SO ORDERED. Judge Richard E. Berens 1 Davis v. U.S., 131 S.Ct. 2419, 2427 (2011). 10

11 Copies to: Fairfield County Prosecuting Attorney, Courthouse mailbox Defense Counsel Aaron Conrad, Courthouse mailbox Filed July 3,