Judge Kimbler Journal Entry on Motion to Suppress

On August 23, 2010, Judge Kimbler filed a journal entry denying a motion to suppress in the case of State of Ohio v. Michael A. McCarty, Case No. 10-CR-0163. A copy of the body of the motion appears below:


Case History

Mr. McCarty is charged with five crimes. He filed a motion to suppress on June 16, 2010 alleging that the State obtained both physical evidence and statements from Mr. McCarty by unconstitutional means. The Court heard Mr. McCarty’s motion on August 12, 2010. This entry sets forth the Court’s findings of fact, conclusions of law, and ruling on Mr. McCarty’s motion.

Findings of Fact

Early in the morning of April 19, 2010, Patrolman Matt Markley of the Wadsworth Police Department was on duty. That day he was working the 10 pm to 6 am shift. At approximately 1:20 am he made a traffic stop of a vehicle in which Mr. McCarty was a passenger.

Officer Markley made the stop after his cruiser’s radar unit clocked the car in which Mr. McCarty was a passenger doing 65 mph in a 50 mph zone. The car was driven by a Mary Moser.

At the start of his shift, Officer Markley was told that the day before there had been a series of car break-ins in Wadsworth. Property taken from the cars included electronic devices such as mp3 players and cell phones.

After making the stop, Officer Markley began to run the registration and license information for the vehicle and the driver. While he was running that information, he asked his dispatcher to contact a canine unit from Seville. Officer Markley wanted the canine unit to do a sniff around the car.

The request to dispatch the canine unit came in at 1:23 through the Medina County Sheriff’s Office Dispatch Center. The Seville Officer received the dispatch at 1:26 and he arrived at the scene at 1:31. When he arrived at the scene with his canine partner, Officer Markley briefed him on what he wanted done. The Seville officer then walked his canine partner around the stopped car. The dog alerted on the vehicle and the two officers began to search the car.

While they were searching the vehicle, Officer Markley discovered a bag with several cell phones in it, mp3 players, white wires, other electronic cords, and gloves. At that point Officer Markley gave both the driver and Mr. McCarty the warnings regarding their constitutional rights.

After receiving the warnings, Mr. McCarty told the Officer that he had bought the bag and its contents for $50.00 from a person in a park. He also said that he knew the items in the bag were stolen. At that point, Officer Markley arrested Mr. McCarty for receiving stolen property.

After arresting Mr. McCarty for receiving stolen property, Officer Markley took him down to the Wadsworth Police Station. Over the next few hours Mr. McCarty admitted to stealing the items in the bag on April 18 and 19. During this time he was not deprived of food or drink, wasn’t under the influence of drugs and/or alcohol, and the Officer didn’t make any promises or threats to get him to make statements.

Conclusions of Law

A stop is constitutional if it is supported by either a reasonable suspicion or probable cause." State v. Molek, 11th Dist. No. 2001-P-0147, 2002 Ohio 7159, at P25. In order to make an investigative stop within constitutional parameters, a police officer must be able to cite articulable facts that give rise to reasonable suspicion of criminal behavior. Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889.

The scope and duration of an investigative stop must not exceed what is necessary to complete the purpose for which the initial stop was made. Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229; State v. Robinette (1997), 80 Ohio St.3d 234, 1997 Ohio 343, 685 N.E.2d 762, paragraph one of the syllabus; State v. Chatton (1984), 11 Ohio St.3d 59, 63, 11 Ohio B. 250, 463 N.E.2d 1237.

"In conducting an investigative traffic stop, an officer may detain a motorist for a period of time sufficient to run a computer check on his license, registration, and vehicle plates and to issue him a warning or a citation." State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660.

An officer, however, cannot use the lawfulness of an initial stop to conduct a fishing expedition for evidence of another crime. State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099.

Whether or not a detention is reasonable depends upon the totality of the circumstances and the facts of each case. State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489.

Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, protects a defendant's Fifth Amendment right against self-incrimination by prohibiting admission of inculpatory statements resulting from custodial interrogation unless law enforcement officers have followed enumerated procedural safeguards.

Those safeguards include the arresting officer advising the arrested persons that he or she has a right to remain silent; a right to stop answering or talking to the police at any time; a right to have an attorney present during any interrogation; and the right to have a court-appointed attorney if the arrested person cannot afford to hire an attorney.

An officer may make a warrantless arrest if he has probable cause to believe that the person being arrested committed a crime. Probable cause exists if the facts and circumstances known to the officer warrant a prudent person in believing that the person being arrested had committed a crime. Beck v. Ohio (1964), 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142.

Reasonable suspicion of drug-related activity is not required, prior to subjecting an otherwise lawfully-detained vehicle to a canine sniff. State v. Ramirez, (2004) Ohio 6541 (9th District, Dec. 8, 2004); State v. Lynn (2000), 137 Ohio App.3d 402, syllabus at paragraph six; State v. Rusnak (1997), 120 Ohio App.3d 24, 28-29; and State v. Carlson (1995),102 Ohio App. 3d 585 (9th District, April 19, 2005); State v. Blednick (1997), Ohio App. LEXIS 4884 (9th District, Nov. 5, 1997); State v. Ray (2004), Ohio App. LEXIS 3045 (9th District, June, 30 2004).

A canine sniff by a well-trained narcotics detection dog is sui generis and does not constitute a "search" under the Fourth Amendment to the United States Constitution or under the Ohio Constitution. United States v. Place (1983), 462 U.S. 696, 707, (canine sniff of luggage at airport); see also United States v. Reed (6th Cir. 1998), 141 F.3d 644, 649-50 (canine sniff of dresser while police were lawfully present inside residence); State v. Lynn
(2000), 137 Ohio App.3d 402 (canine sniff of inoperable and undetained vehicle); State v. French (1995), 104 Ohio App.3d 740, syllabus at paragraph nineteen; State v. Carlson (1995), 102 Ohio App. 3d 585; State v. Palicki (1994), 97 Ohio App.3d 175, syllabus at paragraphs four and five; and State v. Riley (1993), 88 Ohio App.3d 468, syllabus at paragraph one (canine sniffs of lawfully detained vehicles).

Once the drug sniffing dog had “hit” on the vehicle, the trooper had probable cause to search the vehicle without a warrant. See State v. Carlson (1995), 102 Ohio App.3d 585.

The United States Supreme Court has held that the constitutional right to due process of law is violated when a conviction is founded upon an involuntary or coerced confession, even if there is ample evidence apart from the confession to support the conviction. Jackson v. Denno (1964), 378 U.S. 368, 376, 12 L. Ed. 2d 908, 84 S. Ct. 1774; Lynumn v. Illinois (1963), 372 U.S. 528, 537, 9 L. Ed. 2d 922, 83 S. Ct. 917. A suspect's waiver of his right not to incriminate himself and his subsequent confession must be made voluntarily, knowingly, and intelligently. Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602.

Absent evidence that a suspect's will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct, the decision of a suspect to waive his Fifth Amendment privilege is made voluntarily. State v. Dailey (1990), 53 Ohio St. 3d 88, 91-92, 559 N.E.2d 459.

To determine voluntariness, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the defendant; the length, intensity, and frequency of the interrogation; and the existence of physical deprivation or mistreatment, or the existence of any threat or inducement. State v. Edwards (1976), 49 Ohio St. 2d 31, 40-41, 358 N.E.2d 1051, vacated as to death penalty (1978), 438 U.S. 911, 98 S. Ct. 3135, 57 L. Ed. 2d 1154.

After a suspect is arrested the police must advise of the suspect of the constitutional right not to incriminate himself; that anything the suspect says can and will be used against the suspect; that if the suspect starts talking, the suspect can stop at any time; that the suspect has the right to an attorney; and that if the suspect can’t afford one, one will be appointed to represent the suspect. Miranda v. Arizona (1966), 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 1966 U.S. LEXIS 2817; 10 A.L.R.3d 974.

Holding

The Court finds that the motion to suppress should be overruled. Officer Markley had a reasonable and articulable suspicion that the driver of the car in which Mr. McCarty was a passenger was violating the traffic laws of Ohio. This suspicion was based on the reading he got from his cruiser’s radar unit.

Once he stopped the vehicle, he had the right to ask for a drug sniffing dog, provided that he did not drag out the stop in order to get the dog to the car. Since the dog arrived at the scene within about 10 minutes of the stop, and since a stop under 20 minutes is presumed reasonable, the sniff was constitutionally permissible.

Once the dog alerted on the vehicle, Officer Markley had probable cause to search the vehicle. Finding the bag gave him the basis to interrogate Mr. McCarty concerning the bag’s contents. Mr. McCarty’s statements about buying the bag and knowing the contents were stolen then gave Officer Markley probable cause for a warrantless arrest.

Officer Markley’s interrogation of Mr. McCarty was constitutional. He advised Mr. McCarty of his constitutional rights and did not apply unconstitutional coercion to obtain the statements.

Order
Mr. McCarty’s motion to suppress is denied.

SO ORDERED.