[B]ecause the agent [deputy] was actively pursuing an alternate investigation, one untainted by any illegality and took place prior to the misconduct, the methamphetamine should not have been suppressed.
State v. Maffey
2021 – Ohio – 2460
Twelfth District Appellate Court
Clermont County, Ohio
July 19, 2021
On Sunday October 21, 2018, Clermont County Sheriff’s Deputy Robert Bailey was doing “drug interdiction work,” and was parked near the intersection of Inez Avenue and Airport Road in Tate Township. The deputy described the “general area” as a “high drug area.
While parked near the intersection, Deputy Bailey observed a vehicle commit two traffic violations during its turn at the intersection’s stop sign. Specifically, the driver failed to timely use his turn signal and the vehicle had a loud exhaust system hanging from the bottom of the vehicle. Deputy Bailey stated he made several traffic stops throughout his shift that day, and that it was common for him to initiate traffic stops due to such traffic violations, regardless of whether the violations occurred in high traffic areas or not.
The driver of the vehicle Mr. Maffey and is methamphetamine were passengers, failed to use his turn signal at the intersection of Inez Avenue and Airport Road in Tate Township, Ohio.
After observing the traffic violations, Deputy Bailey initiated a traffic stop at 5:01 p.m. The deputy then retrieved the driver’s identification, and noticed the passenger, later identified as Mr. Michael Maffey, was not wearing a seatbelt. At that point, Deputy Bailey asked Mr. Maffey for his identification, to which Mr. Maffey responded that his name was Michael Davis and his date of birth was March 29, 1960, but he could not recall his social security number. Spoiler alert – Mr. ‘Davis’ was lying. Deputy Bailey testified “it appeared to [him] * * * that [Maffey] was being reluctant or misleading about his – – who he was and his identification.” Specifically, Deputy Bailey was suspicious of Mr. Maffey’s response because, in his experience, “somebody that age usually knows their Social Security number.”
At that point, Deputy Bailey radioed the department’s communication center to”run” the information provided by Mr. Maffey and the driver. The purpose of radioing in the information was to check the driving status of the driver and to conduct a routine warrant check on the driver and Mr. Maffey. While the communication center was running the information, Deputy Bailey deployed his canine, Mox, for a free air sniff around the exterior of the vehicle. According to Deputy Bailey, Mox started at the front driver-side headlight and worked counterclockwise around the vehicle. During the canine sniff, Deputy Bailey observed that “[a]s [Mox] started rounding the passenger side – the rear passenger side of the vehicle, his respiration increased, there’s a change of behavior, he bracketed to a point where he centralized where an odor of illegal narcotics was emitting from the vehicle, and he gave a positive alert for the odor of narcotics inside of that vehicle at that point.” Deputy Bailey testified Mox’s positive alert indicated there was an odor of illegal narcotics inside the vehicle.
Clermont County Sheriff’s Office Canine Mox.
After observing Mox’s positive alert, Deputy Bailey secured Mox in his vehicle and returned to Mr. Maffey and the driver. At that point, dispatch informed the deputy that it could not find any information under the name and date of birth provided by Mr. Maffey. According to Deputy Bailey, this heightened his suspicion that Mr. Maffey provided him with false information.
At that point, the deputy removed Mr. Maffey from the vehicle and placed him in handcuffs. Mr. Maffey was not under arrest at that time but was secured for officer safety. Deputy Bailey explained that, on a prior occasion, he encountered a similar situation where a suspect provided false information to him during a traffic stop and then fled the scene. Deputy Bailey and another deputy engaged in a chase of the suspect, who ultimately stabbed both deputies. That incident, in addition to the fact that the deputy was dealing with Mr. Maffey and the driver by himself, led to the securing Mr. Maffey in handcuffs. For more on handcuffing suspects during an investigative detention see Can a Law Enforcement Officer Handcuff a Suspect During Investigative Detention?.
After securing Mr. Maffey, Deputy Bailey advised Mr. Maffey and the driver that he “was going to search the vehicle because of the positive [canine] alert.” At that point, the deputy conducted a pat down of Mr. Maffey’s, searching for weapons or contraband. During the pat down, Deputy Bailey discovered a wallet on Mr. Maffey’s person. According to Deputy Bailey, the wallet is a common source of concealment for illegal narcotics as it gives the suspect the ability to keep the product close on his person while keeping it concealed. Thus, upon discovering the wallet during the pat down, Deputy Bailey proceeded to search the wallet for weapons and contraband. During the search, Deputy Bailey discovered an Ohio identification card (“ID”) belonging to a Mr. Michael Maffey. The deputy testified he knew the identification card was not drugs and that it was not a weapon when he removed the card from Mr. Maffey’s wallet; however, he indicated there was a “possibility that there could have been drugs concealed underneath the ID card.”. The removal of the identification card would later be determined as unlawful. The deputy knew the identification card was not a weapon or drugs.
After Deputy Bailey pulled the identification card from the wallet, Mr. Maffey admitted, without being questioned, that his name was Mr. Mike Maffey and he had a warrant for his arrest. Deputy Bailey confirmed this information with the communication center, which advised that Mr. Maffey had a felony warrant for his arrest for drugs. After learning of the warrant, Deputy Bailey advised Mr. Maffey of his Miranda rights and asked him if he had anything illegal inside the vehicle. At that time, Mr. Maffey informed Deputy Bailey that he had a cigarette pack containing methamphetamine above the sun visor on the passenger side.
Deputy Bailey then removed the driver from the vehicle and conducted a pat down for weapons. After removing the driver from the vehicle, the deputy conducted a search of the interior of the vehicle, wherein he discovered a cigarette pack above the passenger-side visor. The cigarette pack contained a crystal substance, which later tested positive for methamphetamine. According to Deputy Bailey, he would have found the cigarette pack regardless of whether Mr. Maffey informed him of the contraband or not. Around the time Deputy Bailey discovered the methamphetamine, another deputy arrived on the scene and transported Mr. Maffey to the Clermont County jail.
After consideration of written closing arguments, the trial court granted Mr. Maffey’s motion to suppress, and suppressed the statements made by Mr. Maffey after the pat down, as well as the methamphetamine found in the vehicle after Mr. Maffey’s statements were made. In its decision, the trial court found that Deputy Bailey’s decision to conduct a pat down of Mr. Maffey was reasonable and justified, given the totality of the circumstances, both as a search for drugs and weapons, but concluded Deputy Bailey’s examination of the identification card exceeded the limited scope of a warrantless search of the person as set forth in Terry v. Ohio, 392 U.S. 1 (1968). The trial court also concluded the Inevitable Discovery Doctrine did not apply in this case, as the state failed to prove the deputy was actively pursuing an alternative line of investigation prior to the misconduct.
The State of Ohio/Clermont County Prosecutor’s Office appealed and the Twelfth District Appellate Court reversed the trial court on the basis that Mr. Maffey’s methamphetamine would inevitably be discovered as it held “[B]ecause the agent [deputy] was actively pursuing an alternate investigation, one untainted by any illegality and took place prior to the misconduct, the methamphetamine should not have been suppressed.”.
Information for this article was obtained from State v. Maffey, 2021 – Ohio – 2460.
State v. Maffey was issued by the Twelfth District Appellate Court of Ohio and is binding in Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren Counties.
- The Inevitable Discovery Doctrine was established in Nix v. Williams, 467 U.S. 431 (1984), in that case law enforcement was looking for the body of a ten year old girl in a field and the prosecution proved that they were looking in adjacent fields and would have ‘inevitably discovered’ the body even without the previous tainted confession of the suspect. Law enforcement had coerced the suspect into a confession, often called the Christian Burial Speech. The U.S. Supreme Court held “[T]he evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Id at 448.
- Deputy Bailey’s stop of the car in which Mr. Maffey was a passenger, was lawful, because the driver failed to use his turn signal and had a loud exhaust. Deputy Bailey testified that he used the traffic violations as a pre-text as a drug interdiction stop as the specific area of Tate, Ohio was a robust narcotic trafficking area. Deputy Bailey should be commended for making a focused effort on suppressing drug sales in his county. Deputy Bailey recognized that Mr. Maffey was lying at the point he was unable to provide his social security number. Maffey began to play the “name-game” which was short-lived. After Mr. Maffey was detained and Canine Mox alerted on the vehicle, Deputy Bailey had probable cause to search the entire car. However, removal of an identification card from a wallet exceeded the scope of the search which led to the trial suppressing the methamphetamine later discovered above the visor. The court opined “The record is clear that during the “pat down,” Agent [Deputy] Bailey did not believe the wallet was a weapon. Rather, he immediately identified the item as a “billfold,” and proceeded to search the wallet because, in his experience, individuals typically hide contraband in their wallets. It is well settled that a Terry search is limited in scope to a pat down search of an individual’s outer clothing for weapons. Because a protective pat down is limited to the purpose of protecting the officer, it cannot be employed by the searching officer to search for evidence of a crime. Id. citing State v. Evans, 67 Ohio St.3d 405, 414 (1993). Consequently, because Agent [Deputy] Bailey was not conducting a protective pat down limited to the search for concealed weapons, the search of Maffey’s wallet, and the subsequent inspection of the ID, must be supported by probable cause to be reasonable pursuant to the Fourth Amendment.” The Twelfth District Appellate Court viewed this search through the lens of the Inevitable Discovery Doctrine where Deputy Bailey would have eventually searched the vehicle and found the methamphetamine.
- 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: Living the Life of Reilly … Now Means Living With People He Never Met at the Ohio Department of Rehabilitation and Corrections and California Mike ‘Inevitably Discovers’ He Will be in Ohio for Eleven Years.
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