[W]e find that the crack pipe and cocaine would have been inevitably discovered.
State v. Nichols
2020 – Ohio – 6960
Fifth District Appellate Court
Richland County, Ohio
December 29, 2020
On Friday August 24, 2018 Richland County Sheriff Deputy Bryce Ernsberger was assigned to second shift, 2p – 10p. He pulled into a parking lot of a market after he ran a license plate on a truck in the parking lot and the learned that the owner of the vehicle, Ms. Brinda Nichols, had an outstanding warrant for failure to appear. Ms. Nichols was in the passenger seat of the truck. Deputy Ernsberger had her step out of the truck and arrested her. He testified that no contraband was found in her purse, but that he did find an empty baggie consistent with the packaging of drugs.
After arresting Ms. Nichols, Deputy Ernsberger made contact with Mr. David Nichols, who was standing about 20 or 30 feet from the truck. Mr. Nichols had been in the driver’s seat and while Ms. Nichols was being arrested/searched, he walked over to the market.
Deputy Ernsberger testified that while his body camera was on at the point, the audio was not recording because he either bumped it or turned it off, but did not recall. He testified that he questioned Ms. Nichols when he initially made contact with Mr. Nichols. Mr. Nichols had been fidgeting around in the truck, and was “[C]ontinually moving his hands around the truck, making me believe something might be illegal in the truck.” Mr. Nichols, when asked what was in the truck, told Deputy Ernsberger that there was a crack pipe in the ashtray in the middle of the truck.
Deputy Ernsberger searched the truck and located the crack pipe in the ashtray and three baggies of what appeared to be cocaine in the center console. Mr. Nichols told Deputy Ernsberger that the substance in the bag was his and his wife’s cocaine but later said that the cocaine was his. Deputy Ernsberger testified that the audio portion of the body camera stopped when he walked from his cruiser up to appellant when Mr.Nichols was standing near the market and then after he was placed in the cruiser. Deputy Ernsberger testified that he did not realize that the audio was not recording during his conversation with appellant until several days later.
On cross-examination, Deputy Ernsberger testified that Ms. Nichols matched his description of the owner of the vehicle. He testified that Mr. Nichols got out of the truck as he was arresting Ms. Nichols and left the immediate area and that he only approached appellant again after he found the empty baggie in Ms. Nichol’s purse.
Deputy Ernsberger testified that he did not recall purposefully muting his body camera. He testified that when he was dealing with Ms. Nichols, he did not think that he had a reason to keep Mr. Nichols there at that time. After finding the baggie, he re- approached Mr. Nichols. The audio of his body camera was off at the time. He testified that he put Mr. Nichols into his cruiser but did not Mirandize him. When asked whether he then searched the truck without permission, Deputy Ernsberger testified that Mr. Nichols had advised that there was an illegal item in the truck, so he had probable cause at that time. The statements made by Mr. Nichols to Deputy Ernsberger are in dispute but the court would later hold any statements made by Mr. Nicols would be suppressed because it was a Miranda violation.
On redirect, Deputy Ernsberger testified that once Mr. Nichols told him that the crack pipe was in the ashtray, Mr. Nichols was not under arrest at that time. He testified that he had not made up his mind that he was going to arrest Mr. Nichols once told of the crack pipe. He testified that Mr. Nichols told him of the crack pipe before they even walked over to Mr. Nichol’s truck. He testified that was when it changed to a detention.
Mr. Nichols testified that he and his wife were sitting in a parking lot at a corner market when Deputy Ernsberger arrested his wife. He testified that they were sitting in the parking lot while his wife rolled cigarettes for him. Mr. Nichols testified that he left the truck and went into the market and that when he came out, Deputy Ernsberger called over to him. He did not recall telling Deputy Ernsberger that there was a crack pipe in the truck. Mr. Nichols testified that Deputy Ernsberger did not ask if he could search Mr. Nichols’ person and that when Deputy Ernsberger had him get up against the truck, he did not feel that he could leave the area. He also testified that he did not give permission for the truck to be searched.
On cross-examination, Mr. Nichols testified that his wife had been the driver of the truck and that they switched seats so that she could roll cigarettes for him. He testified that as his wife was getting arrested, he went into the market to buy cigarettes. Evidently Mr. Nichols did not want to roll his own cigarettes. He testified that he probably could have stayed in the market, but Deputy Ernsberger called him back over and told him to “Come here”. Deputy Ernsberger never went into the market. Mr. Nichols testified that he was going to have to walk home once his wife was arrested, this was in addition to having his cigarettes rolling interrupted. Mr. Nichols testified that he complied with Deputy Ernsberger’s order because he did not know that he had the right to refuse to talk to him. He denied telling Deputy Ernsberger that there was a crack pipe in the truck and denied admitting to Deputy Ernsberger that he had smoked crack a couple of hours before or that the baggies had contained cocaine. He denied voluntarily talking to Deputy Ernsberger. Mr. Nichols did not recall saying that the cocaine was his.
On redirect, Mr. Nichols testified that he did not feel that he could walk away when Deputy Ernsberger called him over or when he was searched. He testified that he was never Mirandized.
Mr. Nichols filed a Motion to Suppress the cocaine and crack pipe. The motion was denied and Mr. Nichols plead No Contest, was found guilty and sentenced to twenty-four months of Community Control and fined $250.00. Mr. Nichols filed an appeal and on December 29, 2020 the Fifth District Appellate Court held “[W]e find that the crack pipe and cocaine would have been inevitably discovered. The inevitable-discovery rule allows the admission of illegally obtained evidence where “it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation.” State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 syllabus (1985) … appellant did not have a driver’s license and his wife had been arrested. Thus, the truck would have been searched prior to being impounded. The crack pipe was in the ashtray in the middle of the truck. We find that the crack pipe and the cocaine would have been inevitably discovered.”.
Information for this article was obtained from State v. Nichols, 2020 – Ohio – 6960.
This case was issued by the Fifth District Appellate Court which is binding in the following counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned:
- Deputy Ernsberger is to be complimented for running tags at a business parking lot. This keen law enforcement officer discovered the owner of the vehicle had an active warrant. Rarely is good law enforcement, passive law enforcement.
- Whenever the Inevitable Discovery Doctrine is applied there has been some error by law enforcement. Here, the statements by Mr. Nichols were made after he was in custody for purposes of Miranda. Though Mr. Nichols stated he did not say anything, the court viewed it in his favor. The court determined that he was in custody and any statements would have to be made in accordance with the Miranda The vehicle was going to be impounded because Ms. Nichols was arrested and Mr. Nichols did not have a valid license. The cocaine would have been ‘inevitably discovered’ because the vehicle would have been impounded and an inventory completed.
- Law enforcement should not rely on the Inevitable Discovery Doctrine in the course of their duties. This is a legal argument that should be reserved for prosecutors. For more on the Inevitable Discovery Doctrine see California Mike ‘Inevitably Discovers’ He Will be in Ohio for Eleven Years.
Does your agency train on the difference between Consensual Encounters and Investigative Detention stops?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!
Robert H. Meader Esq.