Viewing the circumstances as a whole, a reasonable officer would conclude that there was probable cause to believe Howell knew that there was a gun in his house. … Based upon the totality of the circumstances, the arrest of Howell for Having Weapons While Under Disability was supported by probable cause.
State v. Howell
2021 – Ohio – 1417
Fifth District Appellate Court
Richland County, Ohio
April 22, 2021
Mr. Lamar Howell’s 13-year-old son came to Mansfield, Ohio from his mother’s home Columbus, Ohio sometime in October 2019. He brought a firearm that was given to him by a friend and concealed it in his backpack. Mr. Howell picked up his son in Columbus and drove him to his home in Mansfield. Mr. Howell’s son did not tell Mr. Howell about the firearm.
Mr. Howell’s son made a video at Howell’s residence that showed the boy with the firearm. Essentially, everyone with access to the video knew Mr. Howell’s son had the firearm … except Mr. Howell … at least at this moment. This video was posted on the internet where some of the boy’s classmates watched it. Sometime on September 26, 2019, Mr. Howell was called to his son’s school concerning the video. The school resource officer, Mansfield Police Officer Matthew Brewster, contacted Detective Dave Scheurer to meet Mr. Howell at his residence.
Mr. Lamar Howell lived here at 416 Sherman Place in Mansfield, Ohio. The family laundry basket herein was the subject of his appeal.
At the residence Mr. Howell executed a written consent-to-search form provided to him by the officers. Mr. Howell then told Det. Scheurer that he could show him where the firearm was hidden. This affirmation would satisfy a legal element critical to the case, which will be reviewed later in this article. Mr. Howell then led the officers around the house purporting to look for the firearm. After approximately thirty minutes, Det. Scheurer believed that Mr. Howell was being evasive. Det. Scheurer contacted Mr. Howell’s parole officer for assistance. Eventually, Det. Scheurer found a box for the firearm in a dresser in the living room area. Mr. Howell told Det. Scheurer that Mr. Howell’s ex-girlfriend owned the handgun and had left the box at his residence.
Det. Scheurer called the school resource officer to see if Mr. Howell’s son knew the whereabouts of the handgun. Det. Scheurer was informed that the boy had stated the firearm was in the attic in a pink milk crate. Finding no pink milk crate in the attic, Det. Scheurer eventually located the handgun in a laundry basket underneath some clothing. He then arrested Mr. Howell for having a weapon while under disability. During the search incident to arrest the drugs in question were found in Howell’s pocket.
Mr. Howell filed a Motion to Suppress the firearm. Mr. Howell maintains his awareness of the firearm arose because he saw his son’s video at the school with the resource officer, and therefore, the officers did not have sufficient probable cause to arrest him for having unlawful possession of the firearm. The trial court overruled Howell’s motion to suppress by Judgment Entry filed April 13, 2020.
On August 28, 2020, Howell entered a plea of No Contest plea to Count One: Aggravated Possession of Drugs, a felony of the second degree, with forfeiture specification, and to Count Three: Possession of a Fentanyl-Related Compound, a felony of the fifth degree. The state dismissed Count Two: Having Weapons under Disability. On Count One, Howell was sentenced to four to six years mandatory time in prison, and on Count Three Howell was sentenced to twelve months in prison, sentences to be served concurrent to each other, with three years mandatory post-release control.
Mr. Howell appealed to the Fifth District Appellate Court on the basis of: Whether there was sufficient evidence to establish that the officers had probable cause to arrest Mr. Howell for Having Weapons While under Disability. At the center of his appeal is whether Mr. Howell “constructively possessed” the handgun in the laundry basket.
The Fifth District Appellate Court began the analysis with O.R.C. 2925.01(K) that defines possession as follows: “Possess’ or ‘possession’ means having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.” R.C. 2901.21 provides the requirements for criminal liability and provides that possession is a “voluntary act if the possessor knowingly procured or received the thing possessed or was aware of the possessor’s control of the thing possessed for sufficient time to have ended possession.” O.R.C. 2901.21(D)(1).
Mr. Howell’s son posted a video from Mr. Howell’s home in which the son displayed a firearm. Mr. Howell told Det. Scheurer that he could show him where the firearm was hidden. Mr. Howell claimed he forgot where he put the firearm as he led the officers around the home for over a half an hour, purporting to retrieve the weapon. Mr. Howell claimed he did not know about the firearm until he viewed the online video made by his son. However, upon, finding a box belonging to the handgun in the living room Mr. Howell claimed the firearm belonged to his girlfriend, suggesting that Mr. Howell was aware of the firearm’s presence. Mr. Howell’s misleading and evasive behavior gave the officers reason to discredit everything he had told them. For example, the officers could infer from Mr. Howell’s leading them around the home indicating his inability to remember where he had put the firearm that Mr. Howell was lying and that his lies suggested a guilty mind. Upon finding the box belonging to the firearm in the living room and Mr. Howell’s contention that the firearm was his ex-girlfriend’s the officers could infer that Mr. Howell was aware a firearm was in the home.
The Fifth District Appellate court determined that Mr. Howell did constructively possess the firearm based on a previous holding “The Supreme Court has held that knowledge of illegal goods on one’s property is sufficient to show constructive possession. State v. Hankerson, 70 Ohio St.2d 87, 91, (1982)”.
Mr. Howell’s appeal was denied as the court held “Viewing the circumstances as a whole, a reasonable officer would conclude that there was probable cause to believe Howell knew that there was a gun in his house. … Based upon the totality of the circumstances, the arrest of Howell for Having Weapons While Under Disability was supported by probable cause.”.
Information for this case was obtained from State v. Howell, 2021 – Ohio – 1417.
- Constructive possession, as opposed to actual possession, can be challenging, most especially when attempting to determine if contraband was constructively possessed in rapidly evolving incidents. In this case, Mr. Howell had lied more often than a politician using the word ‘reimagine’. These repetitive lies, when viewed in total, rose to Mr. Howell constructively possessing the firearm literally underneath his dirty laundry.
- The Fifth District Appellate Court applied State v. Hankerson, 70 Ohio St.2d 87 (1982) which was decided by the Supreme Court of Ohio. In that case the Supreme Court of Ohio had to evaluate if Mr. and Mrs. Hankerson could be convicted of Receiving Stolen Property – stolen stereo equipment – that their juvenile son had in his bedroom. The Supreme of Ohio held in pertinent part “It must also be shown that the person was conscious of the presence of the object.”. Id at 91. Here, Mr. Howell could not remember where he placed the firearm. This led to a feeble replication of an Easter egg hunt in his residence that produced the firearm nestled under the dirty laundry. Because Mr. Howell could not remember where HE had placed the firearm, this satisfied the legal element established in Hankerson; that he was conscious of the whereabouts of the firearm. and Mrs. Hankerson were conscious of the expensive stereo equipment their son had in his room.
- In another case, the Twelfth District Appellate Court held “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.”. State v. Graves, 2015-Ohio-3936. Contrasting the Graves holding with firearm in Mr. Howell’s dirty laundry basket, the analysis for the Fifth District Court in Howell was not challenging … conviction is upheld.
- For more on the Constructive Possession Doctrine see Why was Mickey’s Mouse Felonious?
Does your agency train on Constructive Possession?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!