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City of Kettering v. Maston

Court of Appeals of Ohio, Second District, Montgomery

May 18, 2018

CITY OF KETTERING Plaintiff-Appellee
WILLIAM J. MASTON Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case No. 2016-CRB-677

          JOHN D. EVERETT, Attorney for Plaintiff-Appellee

          SCOTT N. BLAUVELT, Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} William J. Maston was convicted after a bench trial in the Kettering Municipal Court of possession of a controlled substance (Xanax), a third-degree misdemeanor, and possession of marijuana (less than 100 grams), a minor misdemeanor. For the possession of a controlled substance, the trial court sentenced him to 60 days in jail, of which 54 days were suspended, ordered him to pay a $25 fine and courts costs, and placed him on unsupervised probation for two years. The trial court ordered Maston to pay a $10 fine for possession of marijuana. The trial court stayed Maston's sentences pending appeal.

         {¶ 2} Maston raises three issues on appeal: (1) the trial court's denial of his pre-trial motion to suppress; (2) the State's use of a laboratory report in lieu of testimony from the analyst at trial; and (3) ineffective assistance of counsel. For the following reasons, Maston's conviction for possession of a controlled substance will be reversed, and the case will be remanded for further proceedings on that charge. His conviction for possession of marijuana will be affirmed.

         I. Background and Procedural History

         {¶ 3} At approximately 2:00 a.m. on March 28, 2016, Maston was a passenger in a vehicle driven by Hannah Tincher. As Tincher was driving on East Dorothy Lane in Kettering, Officer Devin Maloney initiated a traffic stop due to a traffic violation. After back-up arrived, Maloney conducted a free-air sniff by his canine partner, Jax. Jax alerted to an odor of narcotics, and the officer discovered a small amount of marijuana and some Xanax pills in the center console. Maston told the officer that the marijuana belonged to him, but he denied possession of the Xanax pills. Officer Maloney issued Maston a summons for both the marijuana and Xanax pills.

         {¶ 4} Maston moved to suppress the physical evidence against him and the statements he made to the officer. He argued that he was unlawfully detained, that the stop was unlawfully extended by the free-air canine sniff, and that the officer unlawfully searched the vehicle. Maston further claimed that he was entitled to Miranda warnings as a result of his detention and that any statements he made were subject to suppression. After a hearing during which Officer Maloney was the sole witness, the trial court overruled Maston's motion to suppress. The court found that (1) Maloney had a reasonable and articulable suspicion of a traffic violation to justify a stop of Tincher's vehicle, (2) the free-air sniff did not extend the length of the traffic stop beyond the normal time required to investigate and complete a traffic stop, and the alert on Tincher's vehicle by the police canine justified the search of the vehicle and Maston's continued detention, and (3) Maston was never "in custody" for purposes of Miranda, and there was no right to Miranda warnings during the encounter.

         {¶ 5} The matter proceeded to a bench trial on March 22, 2017. Officer Maloney was the sole witness for the State. The State also presented a laboratory report identifying the substance of the alleged Xanax pills (State's Exhibit A); the exhibit was admitted over Maston's objection. Maston presented no witnesses, but offered the judgment entry from Tincher's case regarding the marijuana (Defendant's Exhibit 1); Tincher had pled guilty to disorderly conduct. In his closing argument, Maston asserted that the State did not prove beyond a reasonable doubt that he constructively possessed the Xanax pills and, further, that regardless of what he had said at the scene about his ownership of the marijuana, the court should consider Tincher's guilty plea with respect to his alleged possession of the marijuana. In a written entry dated March 24, 2017, the trial court found Maston guilty of possession of both the marijuana and the Xanax pills.

         {¶ 6} Maston appeals from his convictions.

         II. Motion to Suppress

         {¶ 7} In his first assignment of error, Maston claims that the trial court erred in overruling his motion to suppress.

         {¶ 8} In deciding a motion to suppress, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court of appeals must accept the trial court's findings of fact if they are supported by competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, the appellate court must then determine as a matter of law, without deference to the trial court's legal conclusion, whether the applicable legal standard is satisfied. Id.

         {¶ 9} Officer Maloney's testimony at the suppression hearing established the following facts. At 2:09 a.m. on March 28, 2016, Maloney was driving near 2102 East Dorothy Lane in a marked cruiser with his canine partner, Jax, who is certified to detect heroin, marijuana, methamphetamines, and cocaine. Maloney observed a vehicle in the right lane that he recognized from a residence with a "known drug history." When Maloney moved behind the vehicle, the vehicle switched to the left lane and immediately turned left into a Taco Bell parking lot. Officer Maloney decided to stop the vehicle for a marked lanes violation.

         {¶ 10} Officer Maloney approached the vehicle and saw that Hannah Tincher was the driver and Maston was the front-seat passenger. Maloney was familiar with the couple; he testified that he had been to their residence on several occasions for domestic disputes and that Maston had been arrested on several of those occasions. Maloney asked if he could search the vehicle, but he did not get a clear affirmative response. Maloney called for back-up and then proceeded to look into the couple's "criminal history" and "call history" on Justice Web and to begin writing a traffic ticket. Maloney explained that he ran Tincher's and Maston's identifications and looked to see if Tincher's driver's license was valid and if either person had an outstanding warrant. Officer Anderson arrived at 2:16 a.m., while Officer Maloney was working on the traffic ticket.

         {¶ 11} Officer Maloney explained to Officer Anderson why he had called for back-up, and then Officer Maloney conducted a free-air sniff with Jax; Tincher and Maston stood with Officer Anderson while the free-air sniff occurred. As Maloney walked Jax around TIncher's vehicle counter-clockwise, Jax alerted to the presence of illegal drugs. Maloney returned Jax to his cruiser and began to search the interior of Tincher's car. Upon opening the center console, Officer Maloney observed a small baggie of marijuana and a small baggie with 11 Xanax pills.

         {¶ 12} After finding the drugs, Officer Maloney walked over to where Officer Anderson was standing with Tincher and Maston. Maloney testified, "Prior to being handcuffed, [Maston] admitted that the marijuana belonged to him, and he denied possession of the Xanax. He mentioned something about his brother or cousin being in the vehicle as a passenger prior to the stop. He said they could have been left in there by him, at which point Mr. Maston and Mrs. Tincher were both detained until we could figure out the possession of the Xanax." (Supp.Tr. at 15-16.)

         {¶ 13} Officer Maloney testified that neither Tincher nor Maston was arrested. He issued a summons for possession of Xanax and a traffic citation for the marked lanes violation to Tincher and issued a summons for possession of Xanax and marijuana to Maston. Maloney did not, at any point, inform Maston of his Miranda rights.

         {¶ 14} Maston raises two issues on appeal. First, Maston claims that he was unreasonably detained during the stop in order for the officer to conduct a free-air canine sniff and a search of the vehicle. Second, he claims that his statements should ...

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