State v. Hall , 114 N.E.3d 730 ( 2018 )

[Cite as State v. Hall, 2018-Ohio-2321.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27695
:
v. : T.C. NO. 2016-CR-553
:
MICHAEL J. HALL, III : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of June, 2018.
...........
MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARLO McGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
Attorney for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} Defendant-appellant, Michael J. Hall, III, appeals his conviction and sentence
for the following offenses, to wit: Count I: possession of criminal tools, in violation of R.C.
2923.24(A), a felony of the fifth degree; Count II: possession of cocaine, in violation of
R.C. 2925.11(A) and (C)(4)(e), a felony of the first degree, accompanied by a one-year
firearm specification; Count III: possession of drug paraphernalia, in violation of R.C.
2925.14(C)(1), a misdemeanor of the fourth degree; Count IV: improper handling of a
firearm in a motor vehicle, in violation of 2923.16(B), a felony of the fourth degree; and
Count V: carrying a concealed weapon, in violation of R.C. 2923.12(A)(1), a felony of the
fourth degree. Hall filed a timely notice of appeal with this Court on August 16, 2017.
{¶ 2} The incident which forms that basis for the instant appeal occurred on
December 7, 2015, at approximately 7:17 p.m., when Officer Eric Lane, a ranger for the
Five Rivers MetroParks, was on patrol in a marked police cruiser in the area near
Wesleyan MetroPark in Dayton, Ohio; he observed a Chevrolet Impala run a stop sign
located at the intersection of Wesleyan Road and Princeton Drive. The intersection
where Officer Lane observed the traffic infraction is an area that is adjacent to park
grounds. Officer Lane testified that, as a MetroParks ranger, he has jurisdiction over
criminal offenses committed on park grounds and on property adjacent to park grounds.
In order to avoid traffic congestion, Officer Lane did not initiate a traffic stop of the Impala,
driven by an individual later identified as Hall, until the vehicle reached the intersection of
Cornell Drive and Otterbein Avenue, one street over, at approximately 7:20 p.m.
{¶ 3} After running the license plate number through his computer, Officer Lane
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approached the vehicle’s front passenger window and obtained Hall’s license,
registration, and insurance information. Upon returning to his cruiser, Officer Lane
contacted dispatch and requested a K-9 unit to respond to the scene to perform a free-
air sniff around Hall’s vehicle. The dispatcher indicated that the K-9 unit was currently in
Huber Heights. Officer Lane testified that he informed dispatch that it would take too
much time for the K-9 unit to arrive. The dispatcher responded that he had located
another K-9 unit in west Dayton in Officer Lane’s immediate vicinity. Officer Lane’s
exchange with the dispatcher lasted from 7:22 to 7:24 p.m. Officer Lane requested that
the K-9 unit respond to his location. Officer Lane testified that he requested the K-9 unit
because Hall was acting overly nervous upon being stopped. Specifically, Officer Lane
observed that Hall slammed the glove box after removing his proof of insurance card, as
if he did not want Officer Lane to see what was inside. Officer Lane also testified that
Hall’s hands were shaking when he handed over his insurance card.
{¶ 4} After successfully requesting the K-9 unit, Officer Lane entered Hall’s
information into the LEADS database and the Dayton Police Department’s “MIS” system.
Officer Lane testified that entering Hall’s information took approximately three to four
minutes. Thereafter, Officer Lane testified that he began writing Hall’s citation for the
stop sign violation. The trial court found that Officer Lane began writing the citation at
approximately 7:25 p.m. Officer Lane testified that unlike other jurisdictions, Five Rivers
MetroParks does not provide its rangers with citations that contain template or “pre-
loaded” information. Thus, Officer Lane had to fill out all of the information in Hall’s
citation by hand. Furthermore, because he patrolled multiple jurisdictions, Officer Lane
testified that he had to verify that Hall’s citation referenced the correct court. Accordingly,
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Officer Lane testified that it generally takes him longer to complete a traffic citation than
it does for an officer from a municipal police department.
{¶ 5} At approximately 7:42 p.m., Officer Robert Cleaver of the Dayton Police
Department arrived at the scene with his K-9 unit, Phantom. When Officer Cleaver
arrived, Officer Lane was in the process of completing Hall’s citation. Officer Lane
testified that he stopped working on the uncompleted traffic citation at approximately 7:43
and removed Hall from his vehicle so that Officer Cleaver could perform a free-air sniff
with Phantom. At approximately 7:44 p.m., Phantom alerted to the presence of narcotics
in Hall’s vehicle. The trial court found that only nineteen minutes had passed between
the time Officer Lane began writing Hall’s citation and when Phantom began the free-air
sniff.
{¶ 6} Once Phantom alerted, Officer Lane testified that he had probable cause to
search Hall’s vehicle. Officer Lane also testified that he patted Hall down and recovered
approximately $700.00 from his person. The officers searched the passenger
compartment of Hall’s vehicle and ultimately discovered a loaded .22 caliber handgun in
the center console. Without being questioned, Hall admitted that he “keeps that [the gun]
for protection.” Officer Lane then asked if he had a CCW permit, and Hall stated that he
did not have a permit to carry a concealed weapon. Hall was arrested, handcuffed, and
placed in the back of Officer Lane’s cruiser. As he was being placed in the cruiser, Hall
spontaneously made the following statements, to wit: 1) “Lord, Lord, Lord, I done f*** up”;
2) “All my sh***, f***”; and 3) “I really f*** up.” The statements were recorded by audio
equipment inside the cruiser.
{¶ 7} Upon resuming their search of the vehicle, the officers discovered cocaine,
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pills, and various pieces of drug paraphernalia. Thereafter, Officer Lane read Hall his
Miranda rights, and Hall indicated to Officer Lane that he understood each right. While
Hall was being transported to the Montgomery County Jail, Hall made admissions
regarding the contraband found in his vehicle. While in jail, Hall was questioned by
Detective Jeremy Fritz. Detective Fritz testified that he provided Hall with his Miranda
warnings. Hall signed the pre-interview waiver of rights form and agreed to speak with
Detective Fritz. Detective Fritz testified that he questioned Hall for approximately thirty
minutes, during which Hall made several admissions. At no point during the interview
did Hall request an attorney.
{¶ 8} On April 25, 2016, Hall was indicted for the following offenses, to wit: Count
I: possession of criminal tools; Count II: possession of cocaine, accompanied by a one-
year firearm specification; Count III: possession of drug paraphernalia; Count IV: improper
handling of a firearm in a motor vehicle; and Count V: carrying a concealed weapon. At
his arraignment on June 7, 2016, Hall stood mute, and the trial court entered a plea of
not guilty on his behalf.
{¶ 9} On June 21, 2016, Hall filed a motion to suppress the statements he made
to the police before and after he was arrested. In a separate motion to suppress filed
the same day, Hall sought to exclude any evidence seized during the search of his person
and his vehicle. Hall also filed a motion to dismiss based upon pre-indictment delay and
a motion for independent analysis of the drugs seized from his vehicle. Shortly
thereafter, on June 26, 2016, Hall filed a motion for the appointment of a defense
investigator, which the trial court granted one day later on June 27, 2016. On June 28,
2016, the trial court granted Hall’s motion for independent drug analysis.
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{¶ 10} A hearing was held on Hall’s motions to suppress on July 6 and July 14,
2016. On July 19, 2016, Hall filed a supplemental motion to suppress in which he argued
that his statements to the police officers at the scene were involuntary and that he did not
validly waive his Miranda rights. On July 20, 2016, the trial court held a hearing on Hall’s
motion to dismiss.
{¶ 11} In a decision issued on August 17, 2016, the trial court sustained in part and
denied in part Hall’s motions to suppress. Specifically, the trial court found that the
statements made by Hall while in the back of the cruiser before the police informed him
of his Miranda rights were suppressed, while the statements he made after being read
his Miranda rights were admissible. Notably, the trial court found that the spontaneous
statements made by Hall after being arrested but before being placed in the cruiser were
admissible. Furthermore, the trial court found that the traffic stop and the subsequent
search of Hall’s vehicle were lawful and supported by probable cause. On the same day,
the trial court also denied Hall’s motion to dismiss, finding that he failed to adduce any
evidence that he suffered prejudice as a result of the pre-indictment delay.
{¶ 12} Hall filed additional supplemental motions to suppress on November 3 and
30, 2016, arguing that the evidence seized from his vehicle was only discovered after an
unreasonably prolonged detention because of the time it took for the K-9 unit to arrive at
the scene. On December 9, 2016, a hearing was held before the trial court on Hall’s
supplemental suppression motions. These motions were denied on March 6, 2017.
{¶ 13} On January 23, 2017, Hall filed a motion to dismiss Count II of the
indictment, possession of cocaine, based upon the Ohio Supreme Court’s decision in
State v. Gonzales, 150 Ohio St. 3d 261, 2016-Ohio-8319, 81 N.E.3d 405 (hereinafter
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referred to as “Gonzales I”) (holding that the offense level for possession of cocaine was
determined only by weight of actual cocaine, not by total weight of cocaine plus any filler).
Prior to the hearing on Hall’s motion to dismiss Count II, the State orally requested leave
to dismiss Count II without prejudice. Nevertheless, on February 14, 2017, the trial court
held a hearing on Hall’s motion to dismiss Count II. The parties filed post-hearing
memoranda on February 24, 2017. On March 6, 2017, the Ohio Supreme Court issued
an opinion vacating its previous decision in Gonzales I, holding that the entire compound,
mixture, preparation, or substance was to be considered in determining the appropriate
penalty for the offense of cocaine possession. State v. Gonzales, 150 Ohio St. 3d 276,
2017-Ohio-777, 81 N.E.3d 419 (hereinafter referred to as “Gonzales II”). On the same
day, the State withdrew its oral motion to dismiss Count II.
{¶ 14} Thereafter on June 14, 2017, Hall pled no contest to all of the offenses in
the indictment, and the trial court found him guilty on all counts. On June 21, 2017, Hall
filed an “affidavit of indigency.” At disposition on July 27, 2017, the trial court sentenced
Hall to a total mandatory term of four years in prison; it also imposed a mandatory fine of
$10,000.00 for his conviction of possession of cocaine.
{¶ 15} It is from this judgment that Hall now appeals.
{¶ 16} Because they are interrelated, Hall’s first, third, fourth, fifth, and sixth
assignments of error will be discussed together as follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION(S) TO SUPPRESS.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
FOUND THAT OFFICER LANE DILIGENTLY PROCESSED THE
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SUBJECT TRAFFIC TICKET COMPLAINT.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
FOUND THAT THE SUBJECT DOG SNIFF TOOK PLACE WITHIN AN
ORDINARY TIME FRAME FOR PROCESSING A ROUTINE TRAFFIC
TICKET STOP.
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
FAILED TO FIND THAT ANY OF OFFICER LANE’S ACTIONS SERVED
TO PROLONG THE ROUTINE TRAFFIC STOP IN ORDER TO PROCESS
THE SUBSEQUENT DOG SNIFF.
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE
FRUITS OF A WARRANTLESS SEARCH AND THEREBY PRECLUDED
DEFENDANT’S CONSTITUTIONAL RIGHTS OF DUE PROCESS AND TO
BE FREE FROM UNREASONABLE SEARCHES UNDER THE FOURTH,
FIFTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO STATE
CONSTITUTION.
{¶ 17} In the foregoing assignments, Hall essentially contends that the trial court
should have granted his motions to suppress any physical evidence and/or statements
because the traffic stop was unreasonably extended for the sole purpose of a canine sniff.
{¶ 18} “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.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015–Ohio–
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1326, ¶ 13, quoting State v. Burnside, 100 Ohio St. 3d 152, 2003–Ohio–5372, 797 N.E.2d
71, ¶ 8. “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 must then independently determine, without deference to the conclusion
of the trial court, whether the facts satisfy the applicable legal standard.” Id. The
application of the law to the trial court's findings of fact is subject to a de novo standard
of review. State v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014–Ohio–5027, ¶ 14,
citing Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996).
{¶ 19} “When an officer detains a motorist for a traffic violation, the stop should
delay the motorist only for the amount of time necessary to issue a citation or warning.”
State v. Hill, 2d Dist. Montgomery No. 26345, 2016-Ohio-3087, ¶ 9, citing State v. Batchili,
113 Ohio St. 3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12. “The reasonable stop time
includes the amount of time it takes to conduct a computer check on the driver's license,
registration, and vehicle plates.” Id. “ ‘In determining if an officer completed these tasks
within a reasonable length of time, the court must evaluate the duration of the stop in light
of the totality of the circumstances and consider whether the officer diligently conducted
the investigation.’ ” Id., quoting Batchili.
{¶ 20} Nevertheless, official “conduct that does not ‘compromise any legitimate
interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes,
543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005), quoting United States v.
Jacobsen, 466 U.S. 109, 123, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). In United States
v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), the United States
Supreme Court held that the use of “a well-trained narcotics-detection dog” to examine
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unopened personal luggage “did not constitute a ‘search’ within the meaning of the Fourth
Amendment” because “the manner in which information is obtained through this
investigative technique is much less intrusive than a typical search,” and because such
an examination “discloses only the presence or absence of narcotics, a contraband item.”
See also Jacobsen, 466 U.S. at 121-123 (finding no legitimate privacy interest in the
possession of contraband). Relying on its holding in Place, the Court found in Caballes
that “conducting a dog sniff would not change the character of a traffic stop that is lawful
at its inception and otherwise executed in a reasonable manner.” Caballes, 543 U.S. at
408.
Length of Detention
{¶ 21} Hall’s overarching argument on appeal regarding the trial court’s denial of
his collective motions is that the traffic stop had been unreasonably prolonged by the time
the K-9 unit performed a free-air sniff and alerted to the presence of drugs inside his
vehicle.
{¶ 22} In Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d
492 (2015), a K–9 officer stopped Rodriguez for driving on the highway shoulder, a
violation of Nebraska law. After checking Rodriguez's and his passenger's identification
and issuing a warning to Rodriguez, the officer asked Rodriguez for permission to walk a
canine around the vehicle. When Rodriguez refused, the officer detained him until a
second officer arrived, and then the officer walked a canine around the vehicle. The dog
altered to the presence of drugs in the vehicle. Seven or eight minutes elapsed between
the issuance of the warning and when the dog alerted.
{¶ 23} The U.S. Supreme Court held that “a police stop exceeding the time needed
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to handle the matter for which the stop was made violates the Constitution's shield against
unreasonable seizures. A seizure justified only by a police-observed traffic violation,
therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to
complete th[e] mission’ of issuing a ticket for the violation.” Rodriguez, 135 S. Ct. at 1612,
citing Caballes, 543 U.S. at 407.
{¶ 24} Recently, in State v. Hall, 2017-Ohio-2682, 90 N.E.3d 276 (2d Dist.), we
addressed whether the trial court had erred in suppressing drug-related evidence found
through a canine sniff during a traffic stop. In Hall, the officer requested a K-9 unit while
in the process of confirming Hall's identity. After confirming Hall's identity, the officer “did
nothing to process the traffic stop for approximately eight minutes,” even though he had
all of the information that he needed to complete a citation. After the dog arrived, it
alerted to the presence of drug-related contraband. The trial court suppressed the
evidence. On appeal, the State argued that the sniff had occurred within the amount of
time (12–13 minutes) deemed reasonable for a traffic stop. The State thus claimed that
the drug sniff did not unlawfully extend the stop. We rejected this argument and affirmed
the trial court’s suppression ruling.
{¶ 25} In rejecting the State's argument in Hall, we stated that the U.S. Supreme
Court “made clear in Rodriguez that an officer may not prolong a traffic stop to perform a
drug sniff even if the ‘overall duration of the stop remains reasonable in relation to the
duration of other stops involving similar circumstances.’ ” Hall at ¶ 13, quoting Rodriguez,
135 S. Ct. at 1616. We explained:
Notably, the Rodriguez majority explicitly rejected the government's
argument that an officer may “incrementally” prolong a stop to perform a
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drug sniff provided he “is reasonably diligent in pursuing the traffic-related
purpose of the stop, and the overall duration of the stop remains reasonable
in relation to the duration of other stops involving similar circumstances.”
[Rodriguez] at 1616. The Court emphasized that reasonableness
“depends on what the police in fact do,” and diligence is measured “by
noting what the officer actually did and how he did it.” Id. The “critical
question” in each case is “whether conducting the sniff ‘prolongs'—i.e., adds
time to—‘the stop.’ ” Id.
Hall at ¶ 10.
{¶ 26} In State v. Matheney, 2d Dist. Montgomery No. 26876, 2016-Ohio-7690, we
held that a canine sniff did not unreasonably extend the time for a traffic stop where the
dog alerted 24 to 26 minutes after the stop. Although the officer involved testified that it
normally took him 12 to 15 minutes to issue citations, the defendant's actions prolonged
the stop by forcing the officer to conduct a pat down for his safety. Id. at ¶ 30. In finding
the duration of the stop permissible, we reasoned:
* * * [I]n the time before the canine sniff was conducted, Officer Sanford
remained busy preparing Matheney's traffic citation, which he had not yet
completed when the canine unit arrived. Moreover, under the specific facts
of this case, we do not find that 24 to 26 minutes is an unusual length of
time for the traffic stop in question given that Matheney engaged in conduct
warranting a pat-down search.
Because Sanford was not simply waiting for the canine unit to arrive, but
rather running Matheney's information through his computer, patting down
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Matheney for weapons after his abrupt movement toward the back seat of
the vehicle, and preparing Matheney's traffic citations, we find that under
the circumstances, Sanford diligently conducted the investigation within a
reasonable amount of time. Accordingly, under the totality of the
circumstances, we do not find that Matheney's detention was extended
beyond what was reasonably necessary to resolve the issues associated
with the traffic stop and to issue a traffic citation.
{¶ 27} In the instant case, Officer Lane initiated the stop of Hall’s vehicle at
approximately 7:20 p.m. Officer Lane approached Hall’s vehicle approximately one
minute later and asked him for information. Officer Lane then returned to his cruiser,
began entering Hall’s information into his computer, and requested that a K-9 unit be
dispatched to the scene to perform a free-air sniff around Hall’s vehicle. The dispatcher
indicated that the K-9 unit was currently in Huber Heights. Officer Lane testified that he
informed dispatch that it would take too much time for the K-9 unit to arrive. The
dispatcher responded that he had located another K-9 unit in west Dayton in Officer
Lane’s immediate vicinity. Officer Lane’s exchange with the dispatcher lasted from 7:22
to 7:24 p.m. Officer Lane requested that the K-9 unit respond to his location. Officer
Lane testified that he requested the K-9 unit because Hall was acting overly nervous upon
being stopped. Specifically, Officer Lane observed that Hall slammed the glove box after
removing his proof of insurance card, as if he did not want Officer Lane to see what was
inside.
{¶ 28} After successfully requesting the K-9 unit, Officer Lane entered Hall’s
information into the LEADS database and the Dayton Police Department’s “MIS” system.
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Officer Lane testified that entering Hall’s information took approximately three to four
minutes. Thereafter, Officer Lane testified that he began writing Hall’s citation for the
stop sign violation. The trial court found that Officer Lane began writing the citation at
approximately 7:25 p.m. As previously stated, Five Rivers MetroParks does not provide
its rangers with citations that contain template or “pre-loaded” information, thereby
requiring Officer Lane to fill out all of the information in Hall’s citation by hand.
Furthermore, because he patrolled multiple jurisdictions, Officer Lane testified that he had
to verify that Hall’s citation referenced the correct court. Accordingly, Officer Lane
testified that it generally takes him longer to complete a traffic citation than it does for an
officer from a municipal department.
{¶ 29} At approximately 7:42 p.m., Officer Cleaver arrived with his K-9 unit,
Phantom. When Officer Cleaver arrived, Officer Lane testified that he was still
completing Hall’s citation. Officer Lane testified that he stopped working on the traffic
citation at approximately 7:43 and removed Hall from his vehicle so that Officer Cleaver
could perform a free-air sniff with Phantom. At approximately 7:44 p.m., Phantom
alerted to the presence of narcotics in Hall’s vehicle. The trial court found that only 19
minutes had passed between the time Officer Lane began writing Hall’s citation and when
Phantom began the free-air sniff.
{¶ 30} Unlike the police officer in Hall, 2017-Ohio-2682, 90 N.E.3d 276, who “did
nothing to process the traffic stop for approximately eight minutes” while he waited for a
K-9 unit to arrive, Officer Lane acted reasonably and diligently by confirming Hall’s
identification and working on his citation before, during, and after the K-9 unit began its
sniff around the vehicle. Officer Lane was not simply waiting for the K-9 unit to arrive nor
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did he stall for time; in fact, he recognized that the K-9 in Huber Heights would take too
long, thereby unreasonably extending the detention. Significantly, the evidence
adduced at the suppression hearings establish that Officer Lane was working on the
citation for essentially the entire duration of the stop and did not unreasonably extend the
duration of the stop by requesting that a K-9 unit be dispatched. See Matheny, 2d Dist.
Montgomery No. 26876, 2016-Ohio-7690, at ¶ 32. Rather, the record establishes that
Officer Lane did not unreasonably extend Hall’s detention beyond what was reasonably
necessary to resolve the issues associated with the traffic stop and to issue a traffic
citation. The 19-minute time period between when Officer Lane began writing the
citation and when the K-9 unit alerted on Hall’s vehicle was therefore reasonable under
the facts presented in the instant case.
{¶ 31} Hall’s first, third, fourth, fifth, and sixth assignments of error are overruled.
{¶ 32} Hall’s seventh assignment of error is as follows:
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION
TO SUPPRESS STATEMENTS AND EVIDENCE SEIZED INCIDENT TO,
AND SUBSEQUENT TO, HIS ARREST.
Statements Made by Hall Prior To and After His Arrest
{¶ 33} In his seventh assignment, Hall argues that the trial court erred by failing to
suppress all statements that he made to police before and after being arrested. We note
that the trial court ruled in its initial suppression decision issued on August 17, 2016, that
any statements made by Hall while he sat in the police cruiser prior to being Mirandized
would be suppressed. However, as previously stated, the trial court refused to suppress
the spontaneous statements made by Hall after he was arrested but prior to being placed
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in the back of the cruiser. The trial court also found that statements made to police by
Hall after he was Mirandized were not subject to suppression.
{¶ 34} “Under the Fifth Amendment to the United States Constitution, no person
shall be compelled to be a witness against himself. In order to ensure that this right is
protected, statements resulting from custodial interrogations are admissible only after a
showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have been followed.” State v. Western, 2015-
Ohio-627, 29 N.E.3d 245, ¶ 12 (2d Dist.). “[T]he State has the burden to show by a
preponderance of the evidence that a defendant's confession was voluntarily given.” Id.
at ¶ 16.
{¶ 35} “Whether a statement was made voluntarily and whether an individual
knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct
issues.” State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30.
Generally, statements made to police after a knowing, intelligent, and voluntary waiver of
an individual's Miranda rights are presumed voluntary. Id. at ¶ 31. However, “[t]he Miranda
presumption applies to the conditions inherent in custodial interrogation that compel the
suspect to confess. It does not extend to any actual coercion police might engage in,
and the Due Process Clause continues to require an inquiry separate from custody
considerations and compliance with Miranda regarding whether a suspect's will was
overborne by the circumstances surrounding his confession.” State v. Porter, 178 Ohio
App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.). Therefore, “[r]egardless
of whether Miranda warnings were required and given, a defendant's statement may have
been given involuntarily and thus be subject to exclusion.” State v. Kelly, 2d Dist. Greene
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No. 2004-CA-20, 2005-Ohio-305, ¶ 11.
{¶ 36} When making a determination regarding whether a valid waiver has
occurred, we must “consider the totality of the circumstances, including the age, mentality,
and prior criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the existence of
threat or inducement.” State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S. Ct. 3147,
57 L. Ed. 2d 1155 (1978).
Spontaneous Statements Made by Hall
{¶ 37} As previously stated, the trial court found that, as Hall was being placed in
the cruiser, he spontaneously made the following statements, to wit: 1) “Lord, Lord, Lord,
I done f*** up”; 2) “All my sh***, f***”; and 3) “I really f*** up.” Hall’s statements were
recorded by audio equipment inside the cruiser. A suspect who volunteers information,
and who is not even asked any questions, is not subject to a custodial interrogation and
is not entitled to Miranda warnings. State v. McGuire, 80 Ohio St. 3d 390, 401, 686 N.E.2d
1112 (1997), citing State v. Roe, 41 Ohio St. 3d 18, 22, 535 N.E.2d 1351 (1989). In other
words, “Miranda does not affect the admissibility of ‘[v]olunteered statements of any
kind.’ “ Id., citing Miranda, 384 U.S. at 478; State v. Montgomery, 2d Dist. Montgomery
No. 23870, 2010–Ohio–5047, ¶ 15.
{¶ 38} Upon review, we conclude that the trial court did not err in denying Hall's
motion to suppress the volunteered statements that he made to Officer Lane after being
arrested and prior to being placed in the cruiser. The record establishes that the
statements were not elicited in response to any questions from Officer Lane; they were
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made spontaneously. See Montgomery at ¶ 15.
Statements Made by Hall After Being Mirandized
{¶ 39} Here, Hall argues that the record establishes that he did not validly waive
his Miranda rights. Initially, we note that Officer Lane testified that he read Hall his
Miranda rights directly from a printed card. Officer Lane further testified that Hall
indicated that he understood each right. Officer Lane then proceed to ask Hall questions
about the contraband found in the vehicle, which Hall freely answered. No evidence was
adduced that Hall was subjected to intimidation, deception, or coercion. “Where the
prosecution shows that a Miranda warning was given and that it was understood by the
accused, an accused's uncoerced statement establishes an implied waiver of the right to
remain silent.” State v. Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶
177, quoting Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S. Ct. 2250, 176 L. Ed. 2d
1098 (2010).
{¶ 40} Detective Fritz testified that he provided Hall with his Miranda warnings.
Hall signed the pre-interview waiver of rights form and agreed to speak with Detective
Fritz. Detective Fritz testified that he questioned Hall for approximately thirty minutes,
during which Hall made several admissions. At no point during the interview did Hall
request an attorney, and there is no evidence that Hall was subjected to intimidation,
deception, or coercion while being questioned by Detective Fritz. Accordingly, the trial
court did not err when it overruled Hall’s motion to suppress the spontaneous statements
he made after he was arrested but prior to being placed in the back of the cruiser, as well
as the admissions he made to police after being properly Mirandized.
{¶ 41} In light of the foregoing, Hall’s seventh assignment of error is overruled.
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{¶ 42} Hall’s second assignment of error is as follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION(S) TO DISMISS (DELAY IN PROSECUTION, MISTAKEN
INDICTMENT, AND GONZALES CASE RECONSIDERATION).
{¶ 43} In his second assignment, Hall argues that the trial court erred when it failed
to grant his motion to dismiss on the basis of preindictment delay.
{¶ 44} Delay between a defendant's involvement in alleged criminal conduct and
an indictment involving such conduct may deprive a defendant of his constitutionally
protected due process rights. State v. Luck, 15 Ohio St. 3d 150, 472 N.E.2d 1097 (1984),
paragraph two of the syllabus. In State v. Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105,
69 N.E.3d 688, the Ohio Supreme Court recently reiterated that “* * * preindictment delay
violates due process only when it is unjustifiable and causes actual prejudice.” Id. at ¶ 12.
The court also reaffirmed its firmly established “burden-shifting framework for analyzing
a due-process claim based on preindictment delay [which states that] [o]nce a defendant
presents evidence of actual prejudice, the burden shifts to the state to produce evidence
of a justifiable reason for the delay.” Id. at ¶ 13, citing State v. Whiting, 84 Ohio St. 3d 215,
217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 99.
{¶ 45} A reviewing court must scrutinize a defendant's claim of prejudice by
“consider[ing] the evidence as it exists when the indictment is filed and the prejudice the
defendant will suffer at trial due to the delay.” Jones at ¶ 20. “* * * [S]peculative prejudice
does not satisfy the defendant's burden.” Id. “Actual prejudice exists when missing
evidence or unavailable testimony, identified by the defendant and relevant to the
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defense, would minimize or eliminate the impact of the state's evidence and bolster the
defense.” Id. at ¶ 28.
{¶ 46} In the instant case, Hall argues that he has suffered “substantial prejudice
to his defense” as a result of the “considerable delays in time that chronologically took
place” in the prosecution of his case. Hall argues that he has suffered prejudice in the
form of loss of employment, loss of income as a result of having to fund his defense, and
“considerable uncertainty to the probability of the benefit and/or detriment of any issue
related legal maneuvers.” At the hearing on the motion to dismiss, when Hall’s counsel
was asked to articulate some evidence of “actual prejudice” suffered by his client, he
merely stated that the proceedings had put Hall’s life on “standstill.”
{¶ 47} Upon review, we conclude that Hall has failed to establish any “actual
prejudice” resulting from the six-month delay between his arrest and subsequent
indictment. Hall has failed to adduce any evidence to support a claim of actual prejudice
such as the death of a key witness, lost evidence, or faded memories which resulted from
the State’s delay in indicting him. See State v. Collins, 118 Ohio App. 3d 73, 691 N.E.2d
1109 (2d Dist.1997). Rather, the examples of prejudice advanced by Hall (loss of
employment, loss of income, general uncertainty) simply do not constitute the type of
prejudice envisioned by the Ohio Supreme Court. Thus, Hall has failed to prove that the
delay in commencing prosecution in this case resulted in any actual prejudice to him and
violated his right to due process of law thereby.
{¶ 48} Finally, we note that although Hall mentioned “mistaken indictment” and
“Gonzales case reconsideration” in his assignment of error, he failed to provide any
support for those arguments in the body of his appellate brief. Therefore, we will not
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speculate as to what Hall’s arguments may have been regarding those issues.
{¶ 49} Hall’s second assignment of error is overruled.
{¶ 50} Hall’s eighth assignment of error is as follows:
THE TRIAL ERRED BY DENYING APPELLANT’S MOTION THAT THE
SUBJECT MANDATORY FINE WOULD NOT BE APPROPRIATE UNDER
THE CIRCUMSTANCES.
{¶ 51} In his final assignment, Hall argues that the trial court erred when it imposed
a mandatory fine of $10,000.00 as part of his sentence for Count II, possession of
cocaine. We note that on June 21, 2017, Hall filed a “Financial Disclosure/Affidavit of
Indigency” form. The affidavit stated that Hall was currently employed with a monthly
gross income of $900.00 and monthly expenses totaling $723.62. Hall did not object to
the imposition of the mandatory fine at the time of sentencing, nor did he file a motion to
waive the fine with the trial court.
{¶ 52} R.C. 2929.18(B)(1) provides:
For a first, second, or third degree felony violation of any provision of
Chapter 2925, 3719, or 4729 of the Revised Code, the sentencing court
shall impose upon the offender a mandatory fine * * *. If an offender
alleges in an affidavit filed with the court prior to sentencing that the offender
is indigent and unable to pay the mandatory fine and if the court determines
the offender is an indigent person and is unable to pay the mandatory fine
described in this division, the court shall not impose the mandatory fine
upon the offender.
{¶ 53} “For purposes of the statute, being ‘indigent’ and being ‘unable to pay’ are
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not the same. Indigency concerns a defendant's current financial situation, whereas an
inability to pay encompasses his future financial situation as well.” State v. Plemons, 2d
Dist. Montgomery Nos. 26434, 26435, 26436 & 26437, 2015–Ohio–2879, ¶ 7. The
defendant bears the burden of proving that he or she is indigent and unable to pay the
mandatory fine. Id. at ¶ 8.
{¶ 54} “[A] hearing is not required on a defendant's ability to pay a mandatory fine,
and a trial court need not make specific findings on the issue. A trial court need only
consider the issue, which it frequently can do by reviewing a pre-sentence investigation
report that contains enough pertinent information.” (Citation omitted). Id. We review the
trial court's decision for an abuse of discretion. Id.
{¶ 55} In Plemons, we emphasized that the fine was mandatory unless the
defendant alleged in a presentence affidavit that he was indigent and was unable to pay
the mandatory fine. Id. at ¶ 9. As with Hall in the instant case, Plemons had completed
a financial disclosure/affidavit of indigency form utilized for determining whether the
defendant was entitled to appointment of counsel. The form did not mention Plemons's
ability to pay the mandatory fine. We found the affidavit in Plemons to be insufficient,
stating the following:
Merely alleging indigency and an inability to afford private counsel does not
establish an inability to pay a fine. Indeed, “[a] finding of indigence for
purposes of appointed counsel does not shield the defendant from paying
a fine.” “ ‘This is because the ability to pay a fine over a period of time is
not equivalent to the ability to pay legal counsel a retainer fee at the onset
of criminal proceedings.’ ” Plemons' failure to file a pre-sentence affidavit
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alleging that he is indigent and is unable to pay the mandatory fine is, alone,
a sufficient reason to affirm the trial court's decision. Absent such an
affidavit, R.C. 2929.18(B)(1) made the fine mandatory.
{¶ 56} Hall's presentence affidavit filed shortly before he was sentenced
addressed his current indigence, but failed to indicate that he was unable to pay the
mandatory fine. Based on this deficiency alone, we could affirm the trial court's
imposition of a fine. Id.; see also State v. Donley, 2d Dist. Montgomery Nos. 26654,
26655, 26656, 2017–Ohio–562.
{¶ 57} Additionally, at Hall’s sentencing hearing, the trial court made the following
findings:
Trial Court: Likewise, the Court on all charges, except the F-1, will
impose no fine in this matter.
The Court is very aware of the Plemons case, finds it directive in this
case as far as mandatory statutory fines are concerned.
Mr. Hall, from the very beginning, you and I have had conversations
about you working because and you being in my court so much you know
how much working means to this Court.
Hall: Yes, sir.
Trial Court: And you’ve maintained that ever since you’ve been in
and we’ve gone to lengths to make sure that you can work. So, to me, you
have demonstrated that you do have the future ability to pay a fine and that’s
probably why you’ve elected to go forward today is because you know that
you do. And there’s no sense in putting up anything against that. And I
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respect that.
So the Court will order – the fine is anywhere from $10,000.00 to
$20,000.00 mandatory fine. I’ll do the minimum at $10,000.00.
(Emphasis added.) Tr. 231.
{¶ 58} Upon review, we see no abuse of discretion in the trial court's imposition of
the fine. At the time of his PSI, Hall was thirty-four years old, and we find that the trial
court acted within its discretion in reasoning, based in part on Hall's good physical and
mental health, that he could obtain employment and make payments toward his fine upon
his release from prison at age thirty-eight. Hall reported that he graduated from West
Carrolton High School on May 29, 2003. Hall also reported that he obtained a
certification in construction craft in 2007, and another certification as a home health aide
in 2012. At the time that he was sentenced, Hall was employed at Volunteers of America
in Dayton, Ohio, since March of 2017. Prior to that, Hall reported that he was employed
at Choice in Community Living, Blue Green Home Health, Home Health Quality, and
Walmart.
{¶ 59} “Obviously, neither this court nor the trial court can predict the future.”
Plemons at ¶ 10. On the record before us, however, we cannot say the trial court abused
its discretion in declining to find that Hall, an able-bodied, relatively young man who was
employed when he was arrested and charged in the instant case, would be unable to pay
his mandatory fine in the future.
{¶ 60} Hall’s eighth assignment of error is overruled.
{¶ 61} Hall’s ninth and final assignment of error is as follows:
THE TRIAL COURT ERRED BY FAILING TO DETERMINE
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WHETHER OR NOT THERE WAS APPROPRIATE VENUE AND/OR
JURISDICTION FOR THE SUBJECT STOP INVESTIGATION AND
ARREST OF APPELLANT, BY VIRTUE OF OFFICER LANE’S STATUS AS
OFF-SITE FIVE RIVERS METRO PARK RANGER.
{¶ 62} Initially, we note that Hall argues in his ninth assignment that “the trial court
erred by failing to determine whether or not there was appropriate venue and/or
jurisdiction for the subject stop *** by virtue of Officer Lane’s status as [an] off-site Five
Rivers Metro Park Ranger.” At the close of the second motion to suppress hearing, the
following exchange occurred between the trial court and the parties:
Trial Court: *** I can also tell you, [defense counsel], that based on
what I saw in the – on the video I believe it’s a good stop. Make your
argument if you want to, but the video, at least from what I could see,
showed the Defendant’s vehicle not stopping. I could see the headlights
coming and going right – making a right-hand turn at that intersection that
was testified that there was a stop sign. So I think it’s a good stop.
The Court is aware of the jurisdictional requirements for park rangers
and property adjacent to, as I understand, Princeton and Westland, which I
do know very well, having attended Colonel White High School in that
jurisdiction. So that’s – anything that I’m saying now, so that if I’m saying
something and you’re sitting there thinking I’m dead wrong, either of you,
which Lord knows my better half straightens me out on that every day of my
life, so I’m used to that. And I don’t hold any airs about it or cares about it.
Please feel free to, but I’m at least giving you the heads up as to what I am
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seeing as the issues so that respond accordingly.
{¶ 63} As previously stated, on August 17, 2016, the trial court issued a decision
sustaining in part and denying in part Hall’s separate motions to suppress statements and
evidence obtained during the search respectively, which were both filed on June 21, 2016.
Thereafter, Hall filed additional supplemental motions to suppress on November 3 and
30, 2016, arguing that the evidence seized from his vehicle was only discovered after an
unreasonably prolonged detention because of the time it took for the K-9 unit to arrive at
the scene. Significantly, Hall did not raise in any of his written suppression motions a
challenge to the propriety of the initial stop based upon any jurisdictional defect stemming
from Officer Lane’s status as a ranger for the Five Rivers MetroParks.
{¶ 64} Even if Hall did not waive his argument regarding the jurisdiction of the park
ranger to initiate a stop, his assignment still fails. Pursuant to R.C. 1545.13(B), park
district law enforcement officers are authorized to “exercise all the powers of a police
officer within and adjacent to the lands under the jurisdiction and control of the board” of
park commissioners. State v. Tooson, 2d Dist. Montgomery No. 23290, 2009-Ohio-6269,
¶ 11. Here, Officer Lane testified that he observed Hall run a stop sign located at the
intersection of Wesleyan Road and Princeton Drive, an area which is adjacent to park
grounds. Pursuant to R.C. 1545.13(B), Officer Lane has jurisdiction over criminal
offenses committed on park grounds and on property adjacent to park grounds. In order
to avoid traffic congestion, Officer Lane testified that he did not initiate a traffic stop of Hall
until they reached the intersection of Cornell Drive and Otterbein Avenue, an area not
“within and adjacent to” park land. Pursuant to R.C. 2935.03(D)(2), a law enforcement
officer can conduct an “extraterritorial” stop of a suspect who has committed an offense
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if the pursuit of the suspect began within the officer’s territorial jurisdiction. In fact, the
trial court had previously found a stop sign violation had occurred thereby generating a
traffic stop. Further, the trial court noted the vehicle “not stopping” in the video.
Accordingly, Officer Lane had jurisdiction to initiate a traffic stop of Hall after observing
him fail to stop at a stop sign located at an area which is adjacent to park grounds.
{¶ 65} Hall’s ninth and final assignment of error is overruled.
{¶ 66} All of Hall’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Michael Scarpelli
Carlo McGinnis
Hon. Richard Skelton