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United States v. Fortney

United States District Court, N.D. Ohio, Eastern Division

July 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES FORTNEY, Defendant.

          MEMORANDUM OF OPINION AND ORDER [Resolving ECF No. 8]

          Benita Y. Pearson United States District Judge

         Pending before the Court is Defendant Charles Fortney's Motion to Suppress. ECF No. 8. The Government has responded. ECF No. 9. On July 23, 2018, the Court heard oral argument.[1] At the hearing, the Court ruled that Defendant's motion was denied. Additional reasons for the denial are as follows.

         I. Background

         Defendant worked at the ALDI warehouse in Hinckley, Ohio until March 5, 2018. On that morning, Michael Aschbrenner, director of the warehouse, confronted Defendant about complaints that Defendant was harassing a female co-worker. While investigating the complaints against Defendant, Aschbrenner heard a rumor that Defendant kept a gun in the backpack he brought to work each day. Bringing a gun into the workplace is against ALDI policy.

         Therefore, Aschbrenner was cautious about confronting Defendant, so he called in the Hinckley Police Department to conduct a standby assist.[2] Three officers arrived to perform the standby assist: Sergeant Bruce Linville, Patrolman James Ascherl, and Patrolman Jeffrey Kinney.

         When Aschbrenner met with Defendant, John King, Defendant's immediate supervisor, was also present. The three individuals met in Aschbrenner's office behind closed doors. During the meeting, the officers were in an adjacent room. At the meeting, Aschbrenner decided to fire Defendant.

         After Aschbrenner informed Defendant that he was being terminated, Aschbrenner told Defendant that he was going to search Defendant's backpack to see if it contained a gun. Defendant objected to the search of his locker and backpack. The three police officers who were there on the standby assist went to the locker room with Aschbrenner and Defendant.

         Once at the locker, Aschbrenner asked Defendant to unlock his locker. Defendant complied. Defendant was free to leave, but, were he to leave, he would have had to leave his backpack in the locker room for Aschbrenner to conduct his search. Aschbrenner searched the compartments of Defendant's backpack. The police officers did not search the backpack, but Patrolman Ascherl was standing near the locker. And, Defendant felt that the other officers were blocking his path to leaving the room. Defendant's backpack contained Defendant's wallet and keys, but Defendant did not ask for his keys at any point during the exchange.

         While in the locker room, law enforcement officers asked Defendant questions. First, Sergeant Linvlle, one of the officers asked Defendant if the backpack contained a gun. Defendant answered in the negative, but noted that there was one .45 bullet casing in the backpack. Sergeant Linville also asked Defendant if he had a conceal carry permit. Defendant said that he did, and that the permit was in his wallet. During his search of Defendant's backpack, Aschbrenner found Defendant's wallet. Aschbrenner handed the wallet to Defendant, and Defendant handed his concealed carry permit to the police.

         Upon opening one of the pockets in the backpack, Aschrenner saw what he thought was a gun. He alerted the officers, and Patrolman Ascherl removed the weapon from the backpack. The weapon was a Kel Tec model PLR-16, 5.56mm. The backpack also contained three loaded thirty-round magazines.

         Defendant was indicted on one count: a violation of 26 U.S.C. § 5861(d), receiving or possessing firearm not registered in the national firearm registration. Defendant has filed his motion to suppress (ECF No. 8), arguing that the actions of Aschbrenner and the Hinckley police officers amounted to a warrantless search in violation of the Fourth Amendment. He seeks to suppress the all evidence and statements obtained from the search of his backpack.

         II. Discussion

         The parties dispute whether the events the actions of Aschbrenner and the police implicate the Fourth Amendment. Specifically, Defendant contends that he was seized by the police officers and that Aschbrenner's actions, in tandem with the police, constitute a private citizen engaging in state action. ECF No. 8 at PageID #: 36-41. In response, the Government asserts that, although the officers were present, they did not undertake any act that transformed Aschbrenner's private action into state action. ECF No. 9 at PageID #: 128-31. The Government also maintains Defendant was free to leave at any time, albeit without his backpack.

         The Fourth Amendment, which protects against unreasonable searches, “is understood to refer to searches by, or made possible by, government officers.” United ...


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