State v. Hobbs ( 2011 )

[Cite as State v. Hobbs, 2011-Ohio-3192.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25379
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JILLIAN DENISE HOBBS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 09 2902
DECISION AND JOURNAL ENTRY
Dated: June 29, 2011
MOORE, Judge.
{¶1} Appellant, Jillian Denise Hobbs, appeals from the judgment of the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} On September 16, 2009, after receiving a tip, three detectives from the Summit
County Sheriff’s Office visited Hobbs at her home to interview her regarding a recent burglary.
Detective Scott Plymire testified that Hobbs invited them into her home. They informed her that
they were investigating a burglary and that two witnesses had implicated her. Hobbs and her
boyfriend, identified only as Mr. Gowdy, went outside and spoke privately. They walked around
the side of the house in order to shield their conversation from the detectives. When they
returned to the front of the house, Hobbs tearfully confessed that she had committed the crime
because of her drug problem. Two of the detectives re-entered the house with Hobbs,
Mirandized her, and inquired about the existence of drug paraphernalia in the home. Hobbs
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directed the detectives to some heroin-related drug paraphernalia in the bathroom. The detectives
placed Hobbs under arrest and transported her to the Summit County Jail. The detectives typed
out a complaint, which they took to Sergeant Glenn Stott, also of the Summit County Sheriff’s
Office, to be “clerked.”
{¶3} Sergeant Stott testified that he had taken a one-hour course in order to become a
deputy clerk for the Barberton Municipal Court. He stated that “Detective Plymire later came to
me with a typed affidavit that he had typed. I talked to him about the facts again. I asked if
anything on the complaint and all the facts were true, and he swore to it, he did, and I clerked it.”
He testified that he made an independent probable cause determination based on Hobbs’
confession.
{¶4} The complaint was filed with the Barberton Municipal Court the next morning.
Detective Plymire testified that “[w]hen I type the complaint and it’s clerked and it’s sent to - - it
becomes the warrant - - it becomes an arrest warrant once the Barberton clerk receives it.”
Hobbs was arrested on September 16, 2009, at approximately 6:30 p.m. On September 17, 2009,
at approximately 6:52 a.m. the complaint was filed with the Barberton Clerk of Courts.
{¶5} On October 1, 2009, the Summit County Grand Jury indicted Hobbs on one count
of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree.
{¶6} On November 5, 2009, Hobbs filed a motion to suppress evidence and dismiss the
charge on the basis that Sergeant Stott could not have acted as a neutral and detached magistrate.
On December 2, 2009, the court conducted a suppression hearing. On February 25, 2010, the
trial court denied the motion to suppress evidence and dismiss the charge.
{¶7} On March 29, 2010, Hobbs pleaded no contest to the burglary charge. The court
found her guilty and sentenced her to two years of incarceration.
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{¶8} Hobbs timely filed a notice of appeal, raising one assignment of error for our
review.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING [HOBBS’] MOTION TO
SUPPRESS AND DISMISS BECAUSE IT DETERMINED FACTS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE, BECAUSE IT APPLIED
THE WRONG TEST OF LAW AND BECAUSE IT INCORRECTLY DECIDED
THE ULTIMATE ISSUES ON MOTION TO SUPPRESS AND DISMISS.”
{¶9} In her assignment of error, Hobbs contends that the trial court erred in denying
her motion to suppress and dismiss because it determined facts against the manifest weight of the
evidence, applied the wrong test of law, and incorrectly decided the ultimate issues. Although
her route is indirect, Hobbs essentially argues that the motion to suppress and dismiss should
have been granted. We do not agree.
{¶10} The State contends that at the trial court Hobbs failed to assert the specific
grounds underpinning her motion to suppress and dismiss in violation of Crim.R. 47.
Accordingly, the State contends she waived her appellate arguments. Although Hobbs filed a
skeletal motion to suppress and dismiss with regard to several arguments, the State did not object
or otherwise contend that it was uninformed as to the basis for her motion. Accordingly, we will
address the merits of Hobbs’ arguments.
{¶11} “Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and
is therefore in the best position to resolve factual questions and evaluate the credibility of
witnesses. Consequently, an appellate court must accept the trial court’s findings of fact if they
are supported by competent, credible evidence. Accepting these facts as true, the appellate court
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must then independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.” (Internal citations omitted.) State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8.
{¶12} In its order denying Hobbs’ motion to suppress and dismiss, the trial court found
the facts recounted above to be accurate. The court then observed that although the complaint
appeared to be supported by probable cause, Sergeant Stott could not, in light of his position as a
law enforcement officer, properly serve as a neutral and detached magistrate, citing Shadwick v.
Tampa (1972), 407 U.S. 345, 350. The court determined that the arrest warrant, issued after
Hobbs’ arrest, was improperly issued. The trial court further determined however, that no
evidence resulted from the improper procedure and thus, that there was no evidence to suppress.
All of the evidence was independently discovered prior to the arrest and issuance of the warrant.
Finally, the trial court ruled that dismissal of the burglary charge was inappropriate under this
Court’s holding in State v. Reymann (1989), 55 Ohio App.3d 222, 225, citing United States v.
Crews (1980), 445 U.S. 463, 474 (“[a]n illegal arrest, without more, has never been viewed as a
bar to subsequent prosecution, nor as a defense to a valid conviction”).
{¶13} Upon review of the transcript, the trial court’s findings of fact are supported by
some competent, credible evidence. See Burnside at ¶8. The facts are not in dispute. Instead,
Hobbs’ contentions are more in the nature of challenges to the court’s legal conclusions. Hobbs
also contends that she was unfairly prevented from contesting the detective’s statements as to
what took place at her house. The record, however, reflects that Hobbs’ counsel was given the
opportunity to present evidence at the hearing. The following exchange took place between
counsel and the court:
“[COUNSEL]: Here’s the problem. I would call my client about the
underlying circumstances of the arrest, but we’re not challenging that.
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“THE COURT: No, I don’t think it’s really relevant.
“[COUNSEL]: So I just want to clear -- I’m sorry, Your Honor. I want to
make it clear for the record, we’re not agreeing with that version that was given to
you, but it’s been stated, and we’re not -- since we’re not trying to suppress that. I
want to thank you, Your Honor.”
The exchange hardly reflects the trial court preventing Hobbs from contesting the underlying
circumstances of the arrest. At the hearing, Hobbs’ counsel seems to agree that her testimony is
irrelevant to the suppression issue and makes no effort to call her to testify.
A. Suppression
{¶14} With respect to suppression, Hobbs argues that “[a] strict chronological or linear
view that evidence to be suppressed can only come after a void arrest warrant is erroneous.”
(Emphasis sic.) She then suggests that the exclusionary rule, as a remedy for Fourth Amendment
violations, is a “circle of protection” as opposed to a horizontal line. Consequently, Hobbs
contends that the detective’s testimony before the grand jury should have been suppressed.
Hobbs does not support these contentions with citations to authority. App.R. 16(A)(7).
{¶15} While the Eighth District Court of Appeals has held that a law enforcement
officer from the same department serving a dual-role as an officer and deputy clerk of the local
municipal court can properly serve as a neutral and detached magistrate, we are not persuaded by
that authority. See, e.g., State v. Garrett, 8th Dist. Nos. 87112 & 87123, 2006-Ohio-6020; State
v. Robinson (Oct. 24, 1985), 8th Dist. Nos. 49501, 49518 & 49577. Instead, we are inclined to
agree with the Sixth District Court of Appeals in holding that in order for an arrest warrant to be
valid, it must be issued by a neutral and detached magistrate. State v. Torres (Aug. 22, 1986),
6th Dist. No. WD-85-64, at *2, citing Shadwick, supra (holding that “[a] police dispatcher having
the dual function of a clerk is not a neutral and detached magistrate”).
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{¶16} In this case, Sergeant Stott attempted to serve as a deputy sheriff and a deputy
clerk of the Barberton Municipal Court. The trial court determined that, as a law enforcement
officer “engaged in the often competitive enterprise of ferreting out crime,” Shadwick, 407 U.S.
at 350, citing Johnson v. United States (1948), 333 U.S. 10, 14, he was unable to serve as a
neutral and detached magistrate for the purpose of making probable cause determinations.
Additionally, we note that the Attorney General of Ohio has repeatedly advised prosecutors of
various counties that law enforcement officers cannot serve as deputy clerks. See, e.g., 1995
Ohio Att.Gen.Ops. No. 95-020 (reasoning that such an arrangement was inappropriate because
an employee of the county sheriff serving as a deputy municipal court clerk could be called upon
“to determine whether the county sheriff or a deputy sheriff had probable cause to make a
warrantless arrest”). Accordingly, the trial court determined, and we agree, that the arrest
warrant issued pursuant to Sergeant Stott’s probable cause determination was invalid. The trial
court did, however, emphasize that Sergeant Stott did not appear to act partially. Likewise, the
court did not find that probable cause was lacking to support the arrest. The trial court concluded
that exclusion of evidence was not the appropriate remedy. We agree.
{¶17} The exclusionary rule has been applied by courts as an evidentiary remedy to
certain Fourth Amendment violations. Crews, 445 U.S. at 470 (“the exclusionary sanction
applies to any ‘fruits’ of a constitutional violation-whether such evidence be tangible, physical
material actually seized in an illegal search, items observed or words overheard in the course of
the unlawful activity, or confessions or statements of the accused obtained during an illegal
arrest and detention”). The exclusionary remedy, however, is not triggered by every infraction,
and when it is, it is limited to the “fruit of the poisonous tree.” Wong Sun v. United States
(1963), 371 U.S. 471, 488.
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{¶18} Hobbs contends that the exclusionary rule provides a circle of protection around
criminal defendants and that the fact that she confessed to the crime before she was arrested does
not preclude suppression and exclusion of evidence. We do not agree with this unsupported
contention. “In the typical ‘fruit of the poisonous tree’ case * * * the challenged evidence was
acquired by the police after some initial Fourth Amendment violation[.]” (Emphasis sic.)
Crews, 445 U.S. at 471. The goal is to exclude evidence that flows from, and is the result of, the
violation of a person’s constitutional rights. We do not now endorse an application of the
exclusionary rule to pre-violation conduct.
{¶19} At the suppression hearing, the State asked Detective Plymire about his testimony
before the grand jury. Hobbs’ counsel objected and the court sustained the objection. Even if
we were to assume that grand jury testimony is potentially subject to suppression, without
knowing what testimony was presented to the grand jury this Court can only speculate as to
whether it constitutes fruit of the poisonous tree. The real gist of Hobbs’ arguments before us
seems to be that all evidence, particularly Hobbs’ confession, should have been suppressed.
Having rejected Hobbs’ “circle of protection” theory, we conclude that the trial court correctly
refused to suppress Hobbs’ confession.
{¶20} The trial court determined that the procedure used by the deputy sheriffs in this
case invalidated the warrant due to the lack of a probable cause determination by a neutral and
detached magistrate. However, the trial court also correctly determined that no evidence was
derived from the arrest and, accordingly, there was no evidence to suppress. Hobbs confessed to
the commission of the burglary prior to the arrest. In fact, according to the detective’s testimony,
the arrest was predicated primarily upon her confession. That is, the confession led to the arrest.
Therefore, the confession was not derived from the invalid arrest warrant. Under these
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circumstances, the invalid arrest warrant could not flow back to invalidate a voluntary
confession.
{¶21} Hobbs has argued, but has not separately assigned as error, App.R. 12(A)(2), that
her confession was the product of a Miranda violation. This argument is unavailing because
there is no evidence that she was subjected to custodial interrogation. “The circumstances
surrounding in-custody interrogation can operate very quickly to overbear the will of one merely
made aware of his privilege by his interrogators. Therefore, the right to have counsel present at
the interrogation is indispensable to the protection of the Fifth Amendment privilege under the
system we delineate today.” Miranda v. Arizona (1966), 384 U.S. 436, 469. “The cases since
Miranda have focused on whether the criminal defendant was in custody and whether the
defendant was subject to interrogation.” State v. Waibel (1993), 89 Ohio App.3d 522, 525.
{¶22} In this case, the detectives visited Hobbs at her home and she invited them into
the house. They informed her that they were investigating a burglary. Eventually, she went
outside to smoke and to speak privately with Gowdy around the side of the house. At that time,
the detectives also left the home and stood far from the couple to allow them privacy. Without
prompting by the detectives, Hobbs returned from the side of the house and tearfully confessed
to the burglary. No evidence from the suppression hearing suggested that Hobbs was not free to
leave or otherwise terminate the conversation. Her confession was not, therefore, the result of
custodial interrogation and Miranda does not apply.
{¶23} For the foregoing reasons, Hobbs’ contentions with regard to suppression are
overruled.
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B. Dismissal
{¶24} As a sub-argument of her motion to suppress, Hobbs contends that the trial court
should have also dismissed the indictment with prejudice. Hobbs contends that Detective
Plymire’s grand jury testimony should have been, essentially, excluded from taking place and
that, as a result, “[n]o testimony before grand jury [sic] means no indictment means no case.
Dismissal follows.” Hobbs cites to State v. Lanser (1924), 111 Ohio St. 23, for the proposition
that “without the filing of a proper affidavit no jurisdiction is acquired.” Hobbs reasons that
dismissal must result due to the lack of jurisdiction. We do not agree.
{¶25} Lanser is inapplicable because it addresses only the jurisdiction of mayor’s courts
over “one accused of an offense before a justice of the peace, mayor, or police judge.” Id. at 26.
This case involves the felony jurisdiction of the court of common pleas. “The Court of Common
Pleas is, by Section 2931.03, Revised Code, given original jurisdiction in felony cases. The
felony jurisdiction is invoked by the return of a proper indictment by the grand jury of the
county.” Click v. Eckle (1962), 174 Ohio St. 88, 89. “‘[I]t is now well established that even if an
arrest is illegal it does not affect the validity of subsequent proceedings based on a valid
indictment[.]’” State ex rel. Jackson v. Brigano (2000), 88 Ohio St.3d 180, 181, quoting Krauter
v. Maxwell (1965), 3 Ohio St.2d 142, 144.
{¶26} “As to dismissal, the United States Supreme Court has stated that a criminal
defendant ‘cannot claim immunity from prosecution simply because his appearance in court was
precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a
bar to subsequent prosecution, nor as a defense to a valid conviction. * * *’” Reymann, 55 Ohio
App.3d at 225, quoting Crews, 445 U.S. at 474. Therefore, the invalid arrest warrant does not
require the dismissal of the indictment.
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{¶27} Accordingly, Hobbs’ contentions with regard to dismissal are overruled.
III.
{¶28} Hobbs’ assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR
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APPEARANCES:
MARK H. LUDWIG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.