State v. Babineau ( 2014 )

[Cite as State v. Babineau, 2014-Ohio-3999.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
CASE NO. CA2013-07-020
Plaintiff-Appellee, :
OPINION
: 9/15/2014
- vs -
:
JAMES A. BABINEAU, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case No. 13CRI00087
Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., 110 East Court
Street, Washington C.H., Ohio 43160, for plaintiff-appellee
Susan R. Wollscheid, P.O. Box 841, Washington, C.H., Ohio 43160, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, James Babineau, appeals from the decision of the
Fayette County Court of Common Pleas denying his motion to suppress. For the reasons
outlined below, we affirm.
{¶ 2} A portion of the relevant facts of this case are identical to those found in State
v. McCullough, 12th Dist. Fayette No. CA2013-07-021, 2014-Ohio-1696, a case in which we
affirmed the trial court's decision overruling the motion to suppress filed by Babineau's co-
Fayette CA2013-07-020
defendant, Anndrea McCullough. As this court stated in McCullough:
On the afternoon of April 20, 2013, Detective Larry McGarvey of
the Fayette County Sheriff's Office received word from a
confidential informant that James Babineau would be traveling to
Dayton that day in order to pick up heroin and bring it back to
Fayette County. Detective McGarvey had used the confidential
informant intermittently since 2001 and had never known the
confidential informant to provide false information. Detective
McGarvey was also familiar with Babineau as he had dealings
with him in the past and knew he was involved in drug trafficking.
After receiving this information, Detective McGarvey drove his
unmarked vehicle to Babineau's residence where he observed
an unidentified male loading a flat screen television into a PT
Cruiser parked outside Babineau's mobile home. Not seeing
anything overly suspicious, Detective McGarvey contacted the
confidential informant who informed him that Babineau was
going to sell the television at a local pawn shop in order to raise
the money necessary to purchase the heroin in Dayton.
Detective McGarvey then drove to the pawn shop where the sale
was to take place. Once there, Detective McGarvey observed
the same unidentified male, as well as Babineau and Babineau's
mother, exit the pawn shop and get into the PT Cruiser.
Detective McGarvey then watched as the vehicle drove to a
nearby grocery store. While at the grocery store, Detective
McGarvey saw Babineau make contact with several individuals in
a blue vehicle. Detective McGarvey, however, was unable to
identify any of those individuals within the vehicle. Detective
McGarvey then watched as Babineau got into the PT Cruiser;
McGarvey then followed the PT Cruiser as it made its way back
to Babineau's mobile home.
Once he arrived back at Babineau's residence, Detective
McGarvey again contacted the confidential informant who told
him that Babineau needed $100 more to make the trip to Dayton
to purchase the heroin. Detective McGarvey then offered to give
the confidential informant $50 to give to Babineau. As Detective
McGarvey testified:
I sat in the area for a little while, I ended up contacting my source
again and asked if I could meet with them and give them 50.00
told them to make contact with Mr. Babineau and tell them they
could come up with 50.00. I figured that way I could get them out
of the trailer park and get to a place where I knew they would be
and that I could actually observed from that point[.]
After providing the confidential informant with the $50 to give to
Babineau, the confidential informant contacted Detective
-2-
Fayette CA2013-07-020
McGarvey and told him of where the exchange was going to take
place. The confidential informant also told Detective McGarvey
that immediately after the money was exchanged, Babineau
would travel to Dayton to purchase the heroin.
Upon arriving at the exchange site, Detective McGarvey saw a
blue Monte Carlo pull up with Babineau in the passenger seat.
The vehicle was driven by a female later identified as
McCullough. Detective McGarvey testified he knew McCullough
was involved in drug trafficking with Babineau, but had never had
any direct contact with her. Detective McGarvey, however, was
not sure if the blue Monte Carlo was the same blue vehicle that
he had seen outside the grocery store earlier that day.
Following this exchange, McCullough and Babineau drove the
blue Monte Carlo onto State Route 35 heading towards Dayton.
Detective McGarvey then followed McCullough and Babineau
into downtown Dayton when he lost sight of their vehicle after it
exited into an area known for high drug and criminal activity.
Unable to locate the car, Detective McGarvey exited the
downtown Dayton area and looped back around onto State
Route 35. He then stopped his unmarked vehicle near the
Bickett Road exit in hopes of spotting McCullough and Babineau
as they traveled back towards Fayette County.
After some time, Detective McGarvey spotted McCullough and
Babineau in the same blue Monte Carlo traveling towards
Fayette County on State Route 35. After locating the vehicle,
Detective McGarvey radioed ahead to Deputy Clint Sines and
Deputy Bruce Stolsenberg who were stationed on State Route
35 conducting road patrol. Detective McGarvey then began
following the blue Monte Carlo, which he testified was traveling at
speeds ranging between 65 to 85 m.p.h.
Once McCullough and Babineau crossed into Fayette County,
Deputy Stolsenberg clocked the blue Monte Carlo traveling at 67
m.p.h., two m.p.h. over the posted speed limit. Detective
McGarvey then instructed Deputy Stolsenberg to initiate a traffic
stop on the vehicle. As Detective McGarvey testified, "[t]hat with
the information we had and we had a 67 let's get them pulled
over."
After the car was stopped, McCullough and Babineau were
removed from the vehicle and placed in separate police cruisers
so that Deputy Sines could conduct a canine sniff of their vehicle.
They were also read their Miranda rights. Although the canine
alerted on the blue Monte Carlo, the subsequent search of the
vehicle did not uncover any narcotics. Deputy Sines then
conducted a canine sniff of the two police cruisers where
McCullough and Babineau were sitting. The canine alerted on
-3-
Fayette CA2013-07-020
both cruisers. The canine also conducted a sniff on a third police
cruiser that was empty, but it did not alert on the vehicle. It is
undisputed that no narcotics were found in the two police
cruisers either before or after the canine sniff of the cruisers was
conducted. Following the search of the vehicles, McCullough
and Babineau were taken to the Fayette County Sheriff's Office
so that a search warrant could be obtained for their persons.
Once they arrived at the sheriff's office, McCullough was taken to
the jail, whereas Babineau was taken to the annex building.
When asked why the two were separated, Detective McGarvey
testified he did not want the two together and that McCullough
was taken to the jail so that a female corrections officer could
check her for weapons. As Detective McGarvey testified, "it
becomes difficult with females when we don't have a female
deputy available we can't do a proper pat down of them or any
kind of search." In addition, Deputy Stolsenberg testified, "I am
much more comfortable when I have the circumstances to take
someone and to transport them into an office and let a female
officer take care of a search [for weapons] if one is needed."
Upon arriving at the jail, McCullough, although merely being held
under an investigative detention, was ordered to change out of
her street clothes and into proper jail attire. As she was
changing out of her clothes, McCullough produced two baggies
containing heroin that she had concealed on her body. It is
undisputed that Detective McGarvey was actively typing out a
search warrant for both McCullough and Babineau when
McCullough turned over the drugs. According to Deputy
Stolsenberg, this occurred approximately 30 minutes after
McCullough was taken to the jail.
McCullough, 2014-Ohio-1696 at ¶ 2-12.
{¶ 3} Once McCullough turned over the drugs, Babineau was placed under arrest for
complicity to commit possession of heroin. Babineau was then taken from the annex building
to the jail, where a search of his person uncovered a small baggie containing heroin.
{¶ 4} As a result of this discovery, Babineau was subsequently indicted on charges of
complicity to commit possession of heroin, complicity to commit trafficking in heroin,
possession of heroin and illegal conveyance of weapons or prohibited items onto grounds of
a detention facility. Babineau then filed a motion to suppress, which, after holding a hearing
on the matter, the trial court denied in its entirety. In so holding, the trial court found the initial
-4-
Fayette CA2013-07-020
stop of the vehicle for which Babineau was a passenger was proper. The trial court also
found that there was "nothing unreasonable or unconstitutional about the search incident to
the lawful arrest of Mr. Babineau."
{¶ 5} After the trial court denied his motion to suppress, Babineau agreed to enter a
plea of no contest to the above named charges. The trial court accepted Babineau's plea.
The trial court then merged the charges for purposes of sentencing, and, following the state's
election of charges, sentenced Babineau to a total aggregate mandatory six-year prison term.
Babineau now appeals from the trial court's decision denying his motion to suppress, raising
three assignments of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT PREJUDICIALLY ERRED BY FINDING DET. MCGARVEY
HAD AN ARTICULATE REASONABLE SUSPICION TO CONDUCT A STOP OF THE
VEHICLE THAT JAMES BABINEAU WAS RIDING.
{¶ 8} In his first assignment of error, Babineau argues the trial court erred by denying
his motion to suppress by finding Detective McGarvey was justified in initially stopping the
vehicle driven by McCullough in which Babineau was a passenger. This court, however, has
already affirmed the trial court's decision regarding the initial stop of the vehicle. See
McCullough, 2014-Ohio-1696 at ¶ 18-20. Specifically, as this court held in McCullough:
In this case, the record indicates the officers observed
McCullough traveling on State Route 35 at a speed of 67 m.p.h.,
two miles over the posted speed limit. Although de minimus, this
traffic violation provided the officers with probable cause to
initiate a traffic stop of McCullough's vehicle. As the officers had
probable cause to stop McCullough for speeding, the initial stop
of her vehicle was not unreasonable under the Fourth
Amendment to the United States Constitution. This is true even
though the officers may have had an ulterior motive for making
the stop, such as their suspicion that McCullough and Babineau
were engaged in more serious criminal drug activity.
(Internal citation omitted.) Id. at ¶ 20.
-5-
Fayette CA2013-07-020
{¶ 9} Therefore, as this court has already determined that the initial stop of the
vehicle driven by McCullough was proper, Babineau's first assignment of error is overruled.
{¶ 10} Assignment of Error No. 2:
{¶ 11} THE TRIAL COURT PREJUDICIALLY ERRED BY FINDING DET. MCGARVEY
HAD PROBABLE CAUSE TO ARREST JAMES BABINEAU.
{¶ 12} In his second assignment of error, Babineau argues the trial court erred by
denying his motion to suppress because he was "placed under arrest when the vehicle he
was riding in was stopped." It is well-established, however, that the stop of a motor vehicle,
even if for a limited purpose or a brief amount of time, merely constitutes a "seizure" of a
person under the Fourth Amendment, not an "arrest." State v. Layne, 12th Dist. Clermont
No. CA2009-07-043, 2010-Ohio-2308, ¶ 44, citing United States v. Martinez-Fuerte, 428 U.S.
543, 556-558, 96 S.Ct. 3074 (1976). An "arrest" and a "seizure" of a person are entirely two
different legal concepts. State v. Ramsey, 12th Dist. Warren No. 87-08-061, 1988 WL
102416, *3 (Sept. 30, 1988).
{¶ 13} As the record reveals, neither Babineau nor McCullough were placed under
arrest until after they were transported to the sheriff's office and two baggies of heroin were
discovered on McCullough's person. Although Babineau claims otherwise, the fact that he
was read his Miranda rights, handcuffed, and placed into a police cruiser shortly after the
initial stop does not automatically escalate his investigative detention into that of an arrest.
See State v. Wilson, 3d Dist. Hancock No. 5-07-47, 2008-Ohio-2742, ¶ 22 (finding placement
in a police cruiser, handcuffing, and Mirandizing of appellant did not elevate an investigatory
detention into an arrest), citing State v. Pickett, 8th Dist. Cuyahoga No. 76295, 2000 WL
1060653 (Aug. 3, 2000); State v. Mays, 104 Ohio App.3d 241 (2d Dist.1995); and State v.
Broomfield, 2d Dist. Clark No. 95-CA-0103, 1996 WL 537478 (Sept. 13, 1996).
-6-
Fayette CA2013-07-020
{¶ 14} Furthermore, based on the totality of the circumstances here, we find the
officers were justified in detaining Babineau until they could obtain a search warrant for his
person. As noted above, Detective McGarvey received information from a confidential
informant that Babineau was planning to travel to Dayton to pick up heroin and bring it back
to Fayette County. Based upon this information, Detective McGarvey followed Babineau for
a period of several hours before he met up with McCullough and drove to Dayton. Detective
McGarvey then watched as the pair exited the freeway into an area known for high drug and
criminal activity. Although he lost sight of their vehicle while in Dayton, Detective McGarvey
later spotted McCullough and Babineau traveling back towards Fayette County from Dayton
where they were pulled over for speeding.
{¶ 15} After the traffic stop was initiated, a canine sniff was then conducted, wherein
the canine alerted to the presence of drugs in the Monte Carlo, as well as in the two police
cruisers in which McCullough and Babineau were seated. As we stated in McCullough:
Once the canine alerted on the cruisers in which McCullough and
Babineau were seated, the officers were provided with even
further justification to support their reasonable and articulable
suspicion that criminal activity was afoot. These facts also serve
as a pertinent factor in the officers' probable cause inquiry in
support of the search warrant for their persons.
Id., 2014-Ohio-1696 at 22. In fact, as this court explicitly found in reviewing this matter
previously, "the facts and circumstances of this case provides more than enough evidence to
support a probable cause finding to issue a search warrant." Id. at ¶ 33. Babineau's second
assignment of error is therefore overruled.
{¶ 16} Assignment of Error No. 3:
{¶ 17} THE TRIAL COURT PREJUDICIALLY ERRED BY OVERRULING JAMES
BABINEAU'S MOTION TO SUPPRESS BASED UPON A FINDING THAT HE LACKED
STANDING TO CHALLENGE THE SEARCH OF ANNDREA MCCULLOUGH WHEN THAT
-7-
Fayette CA2013-07-020
WAS NOT THE BASIS FOR HIS MOTION.
{¶ 18} In his third assignment of error, Babineau argues the trial court erred by
denying his motion to suppress by finding he lacked standing to challenge the search of
McCullough's person. Specifically, Babineau argues the trial court "treated the motion as it
were based solely upon the illegal search of [McCullough] at the jail and dismissed it for lack
of standing." However, after a simple review of the record, we find that is simply not the
case.
{¶ 19} In this case, after initially overruling the state's objection arguing Babineau had
no standing to challenge the search of McCullough after she was transported to jail, the trial
court stated:
Counsel I am going to reverse my ruling I think on the motion on
the objection lodged by the State was that Mr. Babineau has no
standing to challenge the search legal or illegal of Ms.
McCullough and I sustain that motion. This defendant has not
(sic) standing to do that what effect any evidence that might be
suppressed has in Mr. Babineau's case I guess I don't have to
decide that at this point. But as far as standing he has no
standing to object to her search.1
Thereafter, in reaching its decision denying Babineau's motion to suppress, the trial court
explicitly stated that it overruled Babineau's "motion in each and every particular." Therefore,
Babineau's claim that the trial court denied his motion to suppress based solely on its finding
he lacked standing to challenge the search of McCullough's person is simply not supported
by the record. Accordingly, Babineau's third assignment of error is overruled.
{¶ 20} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
1. Although not at issue here, we note that the trial court correctly determined Babineau lacked standing to
challenge the search of McCullough's person. "The Fourth Amendment right to be free from unreasonable
searches and seizures cannot be vicariously asserted." State v. Smith, 117 Ohio App.3d 656, 667 (8th
Dist.1997), quoting State v. Steele, 2 Ohio App.3d 105, 107 (8th Dist.1981).
-8-