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State v. Noller

Court of Appeals of Ohio, Sixth District

July 19, 2013

State of Ohio Appellee
v.
Mark A. Noller, Jr. Appellant

Trial Court No. CRI-2011-1060

Russell V. Leffler, Huron County Prosecuting Attorney, and Dina Shenker, Assistant Prosecuting Attorney, for appellee.

David J. Longo, Huron County Public Defender, for appellant.

DECISION AND JUDGMENT

SINGER, P.J.

{¶ 1} Appellant, Mark A. Noller, Jr., appeals from the June 8, 2012 judgment of the Huron County Court of Common Pleas convicting and sentencing appellant, after accepting his no contest plea, to charges of theft of a credit card, a violation of R.C. 2913.02(A)(1) and 2913.71(A), and receiving stolen property (a credit card), a violation of R.C. 2913.51(A) and 2913.71(A). For the reasons which follow, we affirm.

{¶ 2} On appeal, appellant asserts the following single assignment of error: The trial court erred to the prejudice of the Defendant-Appellant when it overruled his motion to suppress evidence, where such evidence was obtained through a warrantless, unreasonable seizure, in violation of his rights under the U.S. and Ohio Constitutions.

{¶ 3} The following evidence was admitted at the motion to suppress hearing. Seth Fry, a Norwalk police sergeant, testified he was investigating appellant with respect to the theft of a stolen credit card/ATM/debit card on September 23, 2011, and several withdrawals, totaling $674.

{¶ 4} Appellant was arrested on that charge in November 2011, but the arresting officer did not seize any money from appellant at that time. The officer was familiar with appellant because of his lengthy criminal record. During the investigation appellant had indicated a desire to work as a confidential informant for drug buys from a specific person the department was interested in investigating, and an agreement was drafted and approved. Appellant agreed to pay $674 in restitution and the charge would be reduced to a misdemeanor and dismissed in exchange for his assistance. By making this agreement, appellant was released without having to go to jail. The agreement expired December 31, 2011, without appellant ever making a drug buy for the police department. As a result, a warrant was issued for his arrest and he was arrested January 24, 2012, around midnight.

{¶ 5} When appellant was taken into custody, appellant was found to be carrying $684 on his person. Sergeant Fry learned of the money and discussed the seizure of the money with Lieutenant Chris Stanfield. A determination was made that Sergeant Fry should seize the money appellant had been carrying because Sergeant Fry believed it was the money obtained with the stolen ATM card. By the time Sergeant Fry arrived at the jail on January 25, 2012, appellant had already been arraigned, a bond had been set, and appellant was in the housing unit. Sergeant Fry met with appellant to give him a receipt for the money and explain the purpose for the seizure of the money. When appellant became upset and started making statements, Sergeant Fry read appellant his Miranda rights and then informed appellant the money would be seized. Lieutenant Stanfield, who was present throughout the interview, was not certain that appellant heard the rights because he was yelling and was argumentative. Neither officer testified as to the details of appellant's statements made at this point.

{¶ 6} Appellant repeatedly objected to the seizure of the money. At some point when Sergeant Fry was about to leave, appellant asked to speak with Sergeant Fry alone. Lieutenant Stanfield joined them in an interview room. Appellant kept asking about the seizure and Sergeant Fry told appellant that the money found on him was close to the $700 he had been accused of stealing with the stolen ATM card in the case that had been dismissed pursuant to their agreement. Stanfield heard appellant immediately yell back "I didn't take that much." Fry, who did not testify as to the exact phrase, testified he heard something to the effect that appellant did not take that much money, which led Fry to believe appellant knew exactly how much was taken ($674). Appellant immediately recanted his statement and stated that he had just been paid. Having known appellant for years, the sergeant had never known appellant to have a steady job. Sergeant Fry stopped appellant and inquired again whether he was understood his rights. Lieutenant Stanfield intervened to stop appellant from yelling long enough to obtain a statement from appellant that he understood his rights. The warnings were given several times as they talked.

{¶ 7} Appellant testified the money he was carrying on the night of his arrest was a portion of the $700 he had been paid for a painting job. He admitted on cross-examination that he never filed a W-2 for this job reporting the income for tax purposes. He recalled having spent $13. At the time he was booked, he recognized the officer and indicated to her that he intended to use the money to pay his bond to be released that night. He testified the booking officer called Sergeant Fry to let him know of appellant's intentions. Appellant was unable to post bond, however, because Sergeant Fry took appellant's money. Appellant testified that Sergeant Fry told appellant that because he did not make any controlled drug buys for them, the police would seize the money. Appellant denied ever having been read his Miranda rights prior to their conversation becoming heated. But, appellant admitted that he did request to continue the conversation privately with Sergeant Fry. Appellant kept asking why they were taking the money. He recalled Sergeant Fry stating it was because of the prior $700 theft charge. Appellant denied ever saying that he did not take that much money. He testified that he denied taking the money after the officers started accusing him of having said he did.

{¶ 8} Appellant argues that his motion to suppress should have been granted for two reasons. First, the warrantless seizure of the money was unreasonable and violated appellant's constitutional rights.

{¶ 9} The trial court held that no Fourth Amendment issue was raised in this case because the money was seized from the jail where it was being stored on appellant's behalf after his arrest. Since appellant had no expectation of privacy in his jail locker contents, the court reasoned the Fourth Amendment was not applicable.

{¶ 10} We begin by addressing the issue of the initial seizure of appellant's money at the time of his arrest. The Fourth Amendment to the United States Constitution provides that: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This privilege is ...


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