United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [Resolving ECF
Y. Pearson United States District Judge
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. At the hearing, the Court ruled that
Defendant's motion was denied. Additional reasons for the
denial are as follows.
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.
Aschbrenner was cautious about confronting Defendant, so he
called in the Hinckley Police Department to conduct a standby
assist. Three officers arrived to perform the
standby assist: Sergeant Bruce Linville, Patrolman James
Ascherl, and Patrolman Jeffrey Kinney.
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.
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
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.
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
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.
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
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
Fourth Amendment, which protects against unreasonable
searches, “is understood to refer to searches by, or
made possible by, government officers.” United