Approximately ten feet from where Mr. Mickey had been arrested by Officer Ball and Sgt. Hirsch found an unusually heavy black computer mouse. The mouse could be opened, and once opened, it was revealed to be a digital scale with white residue all over it. Both the mouse and the bag of white powder were sent to the Hamilton County Crime Lab to be tested. The bag turned out to be 31.448 grams of fentanyl and the residue on the scale tested positive for cocaine and fentanyl. This is why Mickey’s Mouse was felonious.
State v. Mickey
2020 – Ohio – 1432
Twelfth District Appellate Court
Clermont County
April 13, 2020
On Saturday February 3, 2018, at 12:00 p.m. Miami Township Police Officer Todd Taylor was on patrol and had just driven through the Pebble Brooke Apartment complex in Milford, Ohio that was known for its high drug activity.
As he was leaving the apartment complex, Officer Taylor noticed a gray 2009 Honda Accord bearing Ohio HER6550 entering the complex. As the gray Accord passed by his cruiser, Officer Taylor detected an odor of burnt marijuana. Officer Taylor turned his cruiser around and followed the gray Accord back into the complex. Although Officer Taylor briefly lost sight of the vehicle, he located the vehicle parked in front of 1285 Pebble Brooke Trail.
Pebble Brooke Apartments, Milford, Ohio. The encounter began outside of 1285 Pebble Brooke Trail.
Officer Taylor parked 30 to 50 feet away from the vehicle and approached on foot. Officer Taylor noticed that the odor of burnt marijuana grew stronger the closer he got to the gray Accord. An individual, later identified as recidivist Mr. Randall Mickey, sat in the front passenger seat of the Accord, with the passenger door slightly ajar. There was no one in the driver’s seat of the vehicle. As Officer Taylor approached, Mr. Mickey tried to close the passenger door. However, Officer Taylor was able to grab the door to keep it open. Officer Taylor observed Mr. Mickey reach inside of the center console, and Officer Taylor instructed Mr. Mickey to keep his hands where they could be seen.
While this occurred, Officer Taylor observed a small bag of marijuana sitting in plain view in an open console space. Mr. Mickey became argumentative with Officer Taylor and repeatedly tried to exit the vehicle, stating that the Accord was not his car. For safety reasons, Officer Taylor attempted to keep Mr. Mickey from exiting the vehicle. Officer Taylor pointed out the baggie of marijuana in the console, and Mr. Mickey handed it over. Mr. Mickey’s action of handing Officer Taylor the marijuana would become a key point in the appeal.
Officer Taylor placed the marijuana on the car’s hood as Mr. Mickey once again attempted to exit the vehicle. After Mr. Mickey succeeded in exiting the vehicle, Officer Taylor attempted to detain Mr. Mickey. However, Mr. Mickey resisted Officer Taylor’s attempts to pat him down and place him in handcuffs. Mr. Mickey spun around, flailed his arms, and attempted to escape. This led to a lengthy scuffle. During the scuffle, Officer Taylor observed an unidentified man standing in the breezeway of an apartment building. The unidentified man watched Officer Taylor’s struggle with Mr. Mickey and refused Officer Taylor’s instructions to remove his hands from his pockets.
At some point during their struggle, Mr. Mickey broke free from Officer Taylor. Officer Taylor was able to grab the back of Mr. Mickey’s hoodie and the two ended up in the middle of the parking lot. While ignoring Officer Taylor’s repeated instructions to stop resisting, Mr. Mickey threw something in the air and screamed “Get this! Help!” to the unidentified man in the breezeway.
While Officer Taylor was struggling to detain Mr. Mickey, a second officer arrived on the scene to help. Officer Taylor and Mr. Mickey were struggling between a Black Mazda and a gold Honda CRV when Officer Kyle Ball reached them. Officer Ball saw Mr. Mickey break free from Officer Taylor and come towards him. Mr. Mickey was holding a white phone charger and a black computer mouse. Officer Ball quickly grabbed Mr. Mickey and took him to the ground to secure him. Officer Ball then conducted a pat down of Mr. Mickey and found the cell phone charger and $647 in cash in Mr. Mickey’s sock. Officer Ball could not locate the computer mouse.
Mr. Mickey was placed in a police cruiser and the officers went to search the gray Accord. Upon re-approaching the vehicle, Officer Taylor noticed there was a young woman in the back seat. Officer Taylor had not seen her earlier due to the vehicle’s heavily tinted windows. The woman, who was Mr. Mickey’s girlfriend who was nineteen years old, had a small amount of marijuana and alcohol in her purse. She was charged with marijuana possession and underage consumption before being driven home by officers. There is no indication that her name was Minnie.
During Officer Taylor’s search of the gray Accord, he found a loaded 9 mm Kahr handgun with a bullet in the chamber underneath the front passenger seat where Mr. Mickey had been sitting. Testing later revealed that the handgun was operable. Officer Taylor questioned Mr. Mickey about the firearm, and he admitted that the handgun was his and that he kept it for protection purposes as he had previously been shot.
In the center console of the gray Accord, Officer Taylor found a bag containing a white powdery substance that appeared to be cocaine, heroin, or fentanyl. Officer Taylor did not initially see it when he observed the baggie of marijuana, also in the center console, as the fentanyl was further inside the console and out of plain view. After testing by the Hamilton County Crime Lab, the powder was confirmed to be 31.448 grams of fentanyl. Officer Taylor explained the bag was accessible to someone sitting in the passenger seat and nothing had to be moved in order for him to see it sitting in the console. The bag was sitting on a large stack of Ohio lottery cards, which are often used as bindles to package drugs for sale. Mr. Mickey denied that the bag of white powder was his own though previously admitting the firearm under the seat was.
While Officer Taylor was searching the gray Accord, additional officers arrived on scene. Sergeant Robert Hirsch and Officer Murray attempted to locate “breezeway man” that Officer Taylor had seen standing previously. Despite knocking on apartment doors and searching the nearby area, the officers were unsuccessful in locating the male.
Sgt. Hirsch also helped process the crime scene. Approximately ten feet from where Mr. Mickey had been arrested by Officer Ball and Sgt. Hirsch found an unusually heavy black computer mouse.
The computer mouse was found next to a parked car on the ground. Photo is courtesy of Lt. Robert Hirsch.
The mouse could be opened, and once opened, it was revealed to be a digital scale with white residue all over it. Both the mouse and the bag of white powder were sent to the Hamilton County Crime Lab to be tested. The bag turned out to be 31.448 grams of fentanyl and the residue on the scale tested positive for cocaine and fentanyl. This is why Mickey’s Mouse was felonious.
Mr. Mickey’s mouse was actually a digital scale and the Hamilton County Crime Lab determined the white powder seen here was fentanyl. Photo is courtesy of Lt. Robert Hirsch.
The day after the crime scene was processed and Mr. Mickey was arrested, the police received a phone call from a man claiming to be the driver of the gray Accord. The man stated that his name was that of famed UFC fighter Mr. Demetrious Johnson whose nickname is ‘Mighty Mouse’. Though this man stated he would come in for questioning, he never reported to the police department. *Sigh – Mickey’s friend did not turn out be Mighty Mouse.
Mr. Mickey was indicted for:
Resisting Arrest 2921.33(A) M-2
Aggravated Possession of Drugs [fentanyl] 2925.11(A) F-3
Aggravated Trafficking in Drugs [fentanyl] – Bulk Amount 2925.03(A)(2) F-3
Weapons Under Disability O.R.C. 2923.13(A)(3) F-3
Improper Transportation of a Firearm in a Motor Vehicle 2923.16(B) F-4
Aggravated Possession of Drugs [cocaine] 2925.11(A) F-5
Mr. Mickey did not file a Motion to Suppress but did opt for a bench trial in front of a judge. The trial lasted two days and on February 19, 2019 Mr. Mickey was found guilty and sentenced to five years in prison. He appealed his conviction, in part, on whether or not he possessed the drugs in the center console of the Honda. The court held “[A]s the bag of fentanyl was visible to appellant and was within close proximity to his reach, there was evidence to support the trial court’s conclusion that appellant was conscious of the drugs and that he had the ability to exercise dominion and control over the drugs.”. The court reached this conclusion by stating that Mr. Mickey, though he did not have actual possession of the fentanyl he did have Constructive Possession “Constructive possession exits when one is conscious of the presence of the object and able to exercise dominion and control over it, even if it is not within one’s immediate physical possession.”. See State v. Graves, 2015-Ohio-3936.
Mr. Mickey is mouse-free while serving his sentence at Lebanon Correctional Institute.
Information for this case was obtained from State v. Mickey, 2020 – Ohio – 1432 and a phone interview with Lt. Robert Hirsch [at the time of the arrest he held the rank of sergeant] and Corporal Todd Taylor [at the time of the arrest he held the rank of officer] on January 28, 2021.
This case was issued on April 13, 2020 by the Twelfth District Court of Appeals which is binding in the following counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
Lessons Learned:
- In this case the Twelfth District Appellate Court determined that even though Mr. Mickey had left the Accord and fought with Officer Taylor in the parking lot, he had been in Constructive Possession of the fentanyl when he was seated in the Accord. Mickey alleged that his rear-seated girlfriend could have placed the fentanyl in the center console during his fight with Officer Taylor. The court rejected this argument “Furthermore, in finding appellant guilty of aggravated possession of drugs, the trial court was entitled to reject appellant’s defense that the drugs were his girlfriend’s or belonged to the owner of the gray Accord. As the trial court noted, it was unlikely that appellant’s girlfriend placed the fentanyl in the open console after appellant exited the car, as “[t]he woman was found with marijuana in her purse, which she received charges for. It seems unlikely that she would [have] hid[den] some, but not all, of her contraband during the scuffle.“”
- When Officer Taylor approached the Accord and Mr. Mickey was seated in the passenger seat, Mr. Mickey initially tried to shut the door which Officer Taylor prevented. Thereafter, Mr. Mickey made attempts to exit the car. As the court stated “Appellant became argumentative with Officer Taylor and repeatedly tried to exit the vehicle, stating that the Accord was not his car. For safety reasons, Officer Taylor attempted to keep appellant from exiting the vehicle.”. Often times, suspects will attempt to separate themselves from a vehicle when the vehicle contains contraband. Here, Officer Taylor did well to try and keep Mr. Mickey and his mouse inside the Accord for officer safety. If a suspect attempts to exit a vehicle officers should always document this specific behavior of the suspect in arrest, use of force or administrative reports.
- Officer Taylor is to be commended for identifying a vehicle in a high crime, narcotics area, suspecting that it may be involved in the drug trade and initiating an investigation that led to the arrest of Mr. Mickey. Officer Taylor may have saved countless lives by his Objectively Reasonable actions and the removal of over 31 grams of fentanyl off the street on February 3, 2018.
Does your agency train on the Constructive Possession?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!