Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Monday, December 30, 2019 9:17:39 AM
CASE NUMBER: 2019 CR 02660 Docket ID: 34158761
MIKE FOLEY
CLERK OF COURTS MONTGOMERY COUNTY OHIO
CASE_D SCR 2019 CR 026 60
CASE_ TYPE CR
DOCKET_ CODE
FORMSGEN YES
WORDDOC YES
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CRIMINAL DIVISION
STATE OF OHIO, CASE NO.: 2019 CR 02660
Plaintiff(s), JUDGE DENNIS J. ADKINS
Court
-vs-
Pleas
JEFFERY ALLEN WHITE II,
DECISION, ORDER, AND ENTRY
Defendant(s). OVERRULING DEFENDANT'S MOTION
TO SUPPRESS
Common
General Division
This matter is before the Court on a Motion to Suppress, filed by Jeffery Allen White II (“Defendant”)
on October 15, 2019. An evidentiary hearing was held on November 14, 2019. This matter is now properly
County
before the Court and, for the reasons contained herein, the Court OVERRULES Defendant’s Motion to
Suppress.
Montgomery
I. Facts and Procedural History
On September 10, 2019, Defendant was indicted on one count of Having Weapons While Under
Disability (prior offense of violence) and one count of Carrying Concealed Weapons (loaded/ready at hand).
See Docket. At the October 15, 2019 evidentiary hearing, the following testimony was presented:
Howard J. Wilson III, a park ranger for Five Rivers Metro Parks, testified that he was on duty on July
19, 2019 at 6:37 p.m. He was wearing a uniform and driving a marked cruiser at 101 Helena Street, Island
Metro Park, doing routine patrol. Officer Wilson stated that he observed Defendant fishing with four fishing
poles. He stated that this is a crime because, in Ohio, fishing with more than two poles is an arrestable and
citable offense. Officer Wilson then approached Defendant and explained to him that he could not fish with
more than two poles. Officer Wilson also asked Defendant to produce his fishing license, and Defendant stated
that he did not have any such license. Officer Wilson noted that a fishing license is required in the State of
Ohio and fishing without a license is an arrestable and citable offense. After Defendant failed to provide a
fishing license, Officer Wilson asked to see Defendant’s i.d. and told him that he would need to reel in his
poles. Defendant began to reel in his poles and gave Officer Wilson his Social Security Number. Officer
Wilson then went back to his cruiser and checked the Social Security Number Defendant had given, in order
to confirm Defendant’s identity. Officer Wilson noted that Defendant had prior weapons charges, and
proceeded to ask Defendant if he could check his person and equipment to make sure he did not have any
weapons. Officer Wilson stated that he did not threaten Defendant or yell at him. Defendant verbally
consented to Officer Wilson’s request to search both his person and his property. Officer Wilson noticed that
Defendant had a tackle box, a cooler, and a small backpack, and Defendant gave verbal consent to Officer
Wilson to search these items. Officer Wilson found a small handgun in a side pocket of Defendant’s backpack.
Officer Wilson then drew his weapon and ordered Defendant to the ground. Defendant looked at Officer
Wilson and Officer Wilson stated that Defendant looked as if he was going to try to run, but stopped and tried
to get down to the ground. Defendant then started to yell that he could not get to the ground very fast because
he had recently been shot, and kept telling Officer Wilson that he did not know the gun was in the backpack.
At this point, Officer Wilson testified that he had not asked Defendant any questions. Other officers eventually
arrived on the scene and Defendant was placed into the back of Officer Wilson’s cruiser. Officer Wilson then
goes to speak with Defendant after advising him of his Miranda rights. Officer Wilson testified that he used a
card with the Miranda warnings on it, and he read it verbatim to Defendant. After Officer Wilson read the
Miranda rights to Defendant, he asked Defendant if he understood his rights and Defendant responded
affirmatively. Officer Wilson then asked Defendant if he wanted to speak to him, and Defendant responded,
“yes.” Officer Wilson testified that he never promised Defendant anything, or threatened Defendant in any
way, in order to coerce Defendant into speaking to him, nor did he witness any other law enforcement officers
make any such threats or promises.
II. Law and Analysis
The trial court serves as the trier of fact at a motion to suppress hearing, therefore the weight of the
evidence and the credibility of the witnesses at the suppression hearing is primarily for the trial court to decide.
State v. Bissaillon, 2nd Dist. No. 06-CA-130, 2007-Ohio-2349 ¶ 8, see also State v. Fanning, 1 Ohio St.3d 19,
20, 437 N.E.2d 583 (1982).
2
A. Stop
The Ohio Second District Court of Appeals has found the following on reasonable, articulable
suspicion to stop:
The Fourth Amendment to the United States Constitution protects individuals from
unreasonable searches and seizures. (Internal citation omitted.) Under Terry,
police officers may briefly stop and/or temporarily detain individuals in order to
investigate possible criminal activity if the officers have a reasonable, articulable
suspicion that criminal activity may be afoot. (Internal citations omitted.) *** We
determine the existence of reasonable suspicion by evaluating the totality of the
circumstances, considering those circumstances “through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” (Internal citations omitted.)
State v. Hardy, 2nd Dist. No. 24114, 2011-Ohio-241 ¶ 20. Pursuant to Section 1501:31-13-01(A)(1)
of the Ohio Administrative Code, it is unlawful for any person to engage in fishing with more than two hand
lines or more than two units of rod and line.
Here, Officer Wilson credibly testified that he observed Defendant fishing with four lines, in violation
of the Ohio Administrative Code. Officer Wilson further testified that he has been an officer for Five Rivers
Metro Park since 1992, and prior to that he was a park ranger, so it is reasonable to believe that Officer Wilson
would be well informed of the laws relating to park activities. Accordingly, the stop of Defendant was lawful
and based on sufficient probable cause.
B. Search
With respect to illegal searches, the Second District has stated the following:
Evidence obtained by police in the course of an illegal search is subject to
suppression. (Internal citation omitted.) That relief is not available when the
search was one to which the subject consented, however, because consensual
searches do not trigger Fourth Amendment protections. (Internal citation omitted.)
To be valid, a consent must be voluntary, and a consent is not voluntary if it is ‘the
result of duress or coercion, express or implied.’ (Internal citation omitted.)
Whether itwas is a question of fact to be determined from the totality of the
circumstances.
State v. Chancellor, 2d Dist. No. 17560, 2000 Ohio App. LEXIS 111 ** 3-4. Further, “[t]he State has
the burden of proving that the police had consent to conduct a search. (Internal citation omitted.) In order to
prove consent, the State must show, by clear and convincing evidence, that the consent was voluntary and that
the person who gives the consent was authorized to do so.” State v. Connors-Camp, 2d Dist. No. 20850, 2006-
Ohio-409 ¶ 29.
3
In the present case, Officer Wilson credibly testified that he asked Defendant whether he could search
Defendant’s person, as well as Defendant’s property, and that Defendant gave unambiguous consent to both
types of searches. Further, there has been no evidence or testimony presented that would indicate that
Defendant was coerced in any way to consent to the search of his person and belongings. Based upon Officer
Wilson’s testimony, the Court finds that the State presented clear and convincing evidence that Defendant’s
consent to the searches of his person and property was voluntary and, therefore, did not violate the Fourth
Amendment.
C. Arrest
Generally, there must be a warrant of arrest issued by a proper authority before one may be arrested.”
State v. Timson, 38 Ohio St.2d 122, 126, 311 N.E.2d 16 (1974). The court in Timson further noted that “[a]n
arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at
that time.” Id. at 127. The Second District has noted the following on probable cause to arrest:
Probable cause to arrest exists ‘if the facts and circumstances known to the officer
warrant a prudent man in believing that the offense has been committed.’ (Internal
citations omitted.) Probable cause is a ‘practical, nontechnical conception,’
(Internal citation omitted), that ‘turn[s] on the assessment of probabilities in
particular factual contexts.’ (Internal citation omitted.) The existence of probable
cause is determined by looking at the totality of the circumstances. (Internal
citation omitted.)
The State bears the burden of proof on whether a warrantless arrest was based on
probable cause. (Internal citation omitted.)
State v. Whitt, 2nd Dist. No. 2010 CA 3, 2010-Ohio-5291 ¶¶ 22-23.
Here, Officer Wilson observed Defendant violating the Ohio Administrative Code, which gave him
probable cause to stop and arrest Defendant. Further, during the lawful stop, Defendant admitted to Officer
Wilson that he did not have a fishing license, which is also a violation of Ohio Administrative Code Section
1501:31-13-01. Accordingly, the Court finds that Defendant’s arrest was lawful.
C. Statements
The Second District has noted that “the Supreme Court held that a defendant who is subjected to
custodial interrogation must be advised of his or her constitutional rights and make a knowing and intelligent
waiver of those rights before statements obtained during the interrogation will be admissible.” State v. Alford,
2nd Dist. No. 23332, 2010-Ohio-2493 ¶ 9. “Miranda defines custodial interrogation as questioning initiated by
4
law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.” State v. West, 2nd Dist. No. 23547, 2010-Ohio-1786 ¶ 9.
Here, Officer Wilson credibly testified that he advised Defendant of his Miranda rights and asked
Defendant if he understood those rights. Further, Officer Wilson recalled that he specifically asked Defendant
whether he wished to speak to Officer Wilson, and Defendant answered, “yes.” The Court finds that this
testimony establishes that Defendant’s statements were made knowingly, intelligently, and voluntarily.
Moreover, there is no evidence to suggest that Defendant’s decision to speak to Officer Wilson was the result
of any coercion.
III. Conclusion
Based upon all of the foregoing, the Court OVERRULES Defendant’s Motion to Suppress.
SO ORDERED:
JUDGE DENNIS J. ADKINS
This document is electronically filed by using the Clerk of Courts e-Filing system. The system will
post a record of the filing to the e-Filing account "Notifications" tab of the following case participants:
KELSIE CARSON
ASSISTANT PROSECUTING ATTORNEY
301 WEST THIRD STREET, 5TH FLOOR
P.O. BOX 972
DAYTON, OH 45422
(937)-225-5757
MATTHEW ARNTZ
ATTORNEY(S) AT LAW
117 SOUTH MAIN STREET, SUITE 400
DAYTON, OH 45422
(937)-225-4652
Attorney for Defendant(s),
Jeffery Allen White II
ROBERT SCHMIDT, Bailiff (937) 496-7951 Robert.Schmidt@montcourt.oh.gov
5
General Divison
Montgomery County Common Pleas Court
41 N. Perry Street, Dayton, Ohio 45422
Case Number: Case Title:
2019 CR 02660 STATE OF OHIO vs JEFFERY ALLEN WHITE
Type: Decision
So Ordered,
Electronically signed by dadkins on 12/30/2019 09:18:13 AM Page 6 of 6
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Monday, December 30, 2019 9:17:39 AM CASE NUMBER: 2019 CR 02660 Docket ID: 34158761 MIKE FOLEY CLERK OF COURTS MONTGOMERY COUNTY OHIO CASE_D SCR 2019 CR 026 60 CASE_ TYPE CR DOCKET_ CODE FORMSGEN YES WORDDOC YES IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO, CASE NO.: 2019 CR 02660 Plaintiff(s), JUDGE DENNIS J. ADKINS Court -vs- Pleas JEFFERY ALLEN WHITE II, DECISION, ORDER, AND ENTRY Defendant(s). OVERRULING DEFENDANT'S MOTION TO SUPPRESS Common General Division This matter is before the Court on a Motion to Suppress, filed by Jeffery Allen White II (“Defendant”) on October 15, 2019. An evidentiary hearing was held on November 14, 2019. This matter is now properly County before the Court and, for the reasons contained herein, the Court OVERRULES Defendant’s Motion to Suppress. Montgomery I. Facts and Procedural History On September 10, 2019, Defendant was indicted on one count of Having Weapons While Under Disability (prior offense of violence) and one count of Carrying Concealed Weapons (loaded/ready at hand). See Docket. At the October 15, 2019 evidentiary hearing, the following testimony was presented: Howard J. Wilson III, a park ranger for Five Rivers Metro Parks, testified that he was on duty on July 19, 2019 at 6:37 p.m. He was wearing a uniform and driving a marked cruiser at 101 Helena Street, Island Metro Park, doing routine patrol. Officer Wilson stated that he observed Defendant fishing with four fishing poles. He stated that this is a crime because, in Ohio, fishing with more than two poles is an arrestable and citable offense. Officer Wilson then approached Defendant and explained to him that he could not fish with more than two poles. Officer Wilson also asked Defendant to produce his fishing license, and Defendant stated that he did not have any such license. Officer Wilson noted that a fishing license is required in the State of Ohio and fishing without a license is an arrestable and citable offense. After Defendant failed to provide a fishing license, Officer Wilson asked to see Defendant’s i.d. and told him that he would need to reel in his poles. Defendant began to reel in his poles and gave Officer Wilson his Social Security Number. Officer Wilson then went back to his cruiser and checked the Social Security Number Defendant had given, in order to confirm Defendant’s identity. Officer Wilson noted that Defendant had prior weapons charges, and proceeded to ask Defendant if he could check his person and equipment to make sure he did not have any weapons. Officer Wilson stated that he did not threaten Defendant or yell at him. Defendant verbally consented to Officer Wilson’s request to search both his person and his property. Officer Wilson noticed that Defendant had a tackle box, a cooler, and a small backpack, and Defendant gave verbal consent to Officer Wilson to search these items. Officer Wilson found a small handgun in a side pocket of Defendant’s backpack. Officer Wilson then drew his weapon and ordered Defendant to the ground. Defendant looked at Officer Wilson and Officer Wilson stated that Defendant looked as if he was going to try to run, but stopped and tried to get down to the ground. Defendant then started to yell that he could not get to the ground very fast because he had recently been shot, and kept telling Officer Wilson that he did not know the gun was in the backpack. At this point, Officer Wilson testified that he had not asked Defendant any questions. Other officers eventually arrived on the scene and Defendant was placed into the back of Officer Wilson’s cruiser. Officer Wilson then goes to speak with Defendant after advising him of his Miranda rights. Officer Wilson testified that he used a card with the Miranda warnings on it, and he read it verbatim to Defendant. After Officer Wilson read the Miranda rights to Defendant, he asked Defendant if he understood his rights and Defendant responded affirmatively. Officer Wilson then asked Defendant if he wanted to speak to him, and Defendant responded, “yes.” Officer Wilson testified that he never promised Defendant anything, or threatened Defendant in any way, in order to coerce Defendant into speaking to him, nor did he witness any other law enforcement officers make any such threats or promises. II. Law and Analysis The trial court serves as the trier of fact at a motion to suppress hearing, therefore the weight of the evidence and the credibility of the witnesses at the suppression hearing is primarily for the trial court to decide. State v. Bissaillon, 2nd Dist. No. 06-CA-130, 2007-Ohio-2349 ¶ 8, see also State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). 2 A. Stop The Ohio Second District Court of Appeals has found the following on reasonable, articulable suspicion to stop: The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. (Internal citation omitted.) Under Terry, police officers may briefly stop and/or temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity may be afoot. (Internal citations omitted.) *** We determine the existence of reasonable suspicion by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” (Internal citations omitted.) State v. Hardy, 2nd Dist. No. 24114, 2011-Ohio-241 ¶ 20. Pursuant to Section 1501:31-13-01(A)(1) of the Ohio Administrative Code, it is unlawful for any person to engage in fishing with more than two hand lines or more than two units of rod and line. Here, Officer Wilson credibly testified that he observed Defendant fishing with four lines, in violation of the Ohio Administrative Code. Officer Wilson further testified that he has been an officer for Five Rivers Metro Park since 1992, and prior to that he was a park ranger, so it is reasonable to believe that Officer Wilson would be well informed of the laws relating to park activities. Accordingly, the stop of Defendant was lawful and based on sufficient probable cause. B. Search With respect to illegal searches, the Second District has stated the following: Evidence obtained by police in the course of an illegal search is subject to suppression. (Internal citation omitted.) That relief is not available when the search was one to which the subject consented, however, because consensual searches do not trigger Fourth Amendment protections. (Internal citation omitted.) To be valid, a consent must be voluntary, and a consent is not voluntary if it is ‘the result of duress or coercion, express or implied.’ (Internal citation omitted.) Whether itwas is a question of fact to be determined from the totality of the circumstances. State v. Chancellor, 2d Dist. No. 17560, 2000 Ohio App. LEXIS 111 ** 3-4. Further, “[t]he State has the burden of proving that the police had consent to conduct a search. (Internal citation omitted.) In order to prove consent, the State must show, by clear and convincing evidence, that the consent was voluntary and that the person who gives the consent was authorized to do so.” State v. Connors-Camp, 2d Dist. No. 20850, 2006- Ohio-409 ¶ 29. 3 In the present case, Officer Wilson credibly testified that he asked Defendant whether he could search Defendant’s person, as well as Defendant’s property, and that Defendant gave unambiguous consent to both types of searches. Further, there has been no evidence or testimony presented that would indicate that Defendant was coerced in any way to consent to the search of his person and belongings. Based upon Officer Wilson’s testimony, the Court finds that the State presented clear and convincing evidence that Defendant’s consent to the searches of his person and property was voluntary and, therefore, did not violate the Fourth Amendment. C. Arrest Generally, there must be a warrant of arrest issued by a proper authority before one may be arrested.” State v. Timson, 38 Ohio St.2d 122, 126, 311 N.E.2d 16 (1974). The court in Timson further noted that “[a]n arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at that time.” Id. at 127. The Second District has noted the following on probable cause to arrest: Probable cause to arrest exists ‘if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.’ (Internal citations omitted.) Probable cause is a ‘practical, nontechnical conception,’ (Internal citation omitted), that ‘turn[s] on the assessment of probabilities in particular factual contexts.’ (Internal citation omitted.) The existence of probable cause is determined by looking at the totality of the circumstances. (Internal citation omitted.) The State bears the burden of proof on whether a warrantless arrest was based on probable cause. (Internal citation omitted.) State v. Whitt, 2nd Dist. No. 2010 CA 3, 2010-Ohio-5291 ¶¶ 22-23. Here, Officer Wilson observed Defendant violating the Ohio Administrative Code, which gave him probable cause to stop and arrest Defendant. Further, during the lawful stop, Defendant admitted to Officer Wilson that he did not have a fishing license, which is also a violation of Ohio Administrative Code Section 1501:31-13-01. Accordingly, the Court finds that Defendant’s arrest was lawful. C. Statements The Second District has noted that “the Supreme Court held that a defendant who is subjected to custodial interrogation must be advised of his or her constitutional rights and make a knowing and intelligent waiver of those rights before statements obtained during the interrogation will be admissible.” State v. Alford, 2nd Dist. No. 23332, 2010-Ohio-2493 ¶ 9. “Miranda defines custodial interrogation as questioning initiated by 4 law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” State v. West, 2nd Dist. No. 23547, 2010-Ohio-1786 ¶ 9. Here, Officer Wilson credibly testified that he advised Defendant of his Miranda rights and asked Defendant if he understood those rights. Further, Officer Wilson recalled that he specifically asked Defendant whether he wished to speak to Officer Wilson, and Defendant answered, “yes.” The Court finds that this testimony establishes that Defendant’s statements were made knowingly, intelligently, and voluntarily. Moreover, there is no evidence to suggest that Defendant’s decision to speak to Officer Wilson was the result of any coercion. III. Conclusion Based upon all of the foregoing, the Court OVERRULES Defendant’s Motion to Suppress. SO ORDERED: JUDGE DENNIS J. ADKINS This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the filing to the e-Filing account "Notifications" tab of the following case participants: KELSIE CARSON ASSISTANT PROSECUTING ATTORNEY 301 WEST THIRD STREET, 5TH FLOOR P.O. BOX 972 DAYTON, OH 45422 (937)-225-5757 MATTHEW ARNTZ ATTORNEY(S) AT LAW 117 SOUTH MAIN STREET, SUITE 400 DAYTON, OH 45422 (937)-225-4652 Attorney for Defendant(s), Jeffery Allen White II ROBERT SCHMIDT, Bailiff (937) 496-7951 Robert.Schmidt@montcourt.oh.gov 5 General Divison Montgomery County Common Pleas Court 41 N. Perry Street, Dayton, Ohio 45422 Case Number: Case Title: 2019 CR 02660 STATE OF OHIO vs JEFFERY ALLEN WHITE Type: Decision So Ordered, Electronically signed by dadkins on 12/30/2019 09:18:13 AM Page 6 of 6