[W]e do not find that Off. Spears deceived Luther so as to render his consent less than free and voluntary. Accordingly, based on the circumstances here, there is no evidence of an illegal seizure of Luther’s person and thus no Fourth Amendment violation.
State v. Luther
2021 – Ohio – 2697
Second District Appellate Court
Montgomery County, Ohio
August 6, 2021
On Saturday February 15, 2020 a citizen found a memory card at the Eastown Bingo Hall, 1232 Falke Drive, Dayton, Ohio. The citizen placed the memory card in a device and discovered it contained child pornography. The citizen contacted Kettering Police and an officer discovered that the photos were taken in the City of Dayton. The memory card was turned over to Dayton Police who began an investigation.
In the parking lot at the the Eastown Bingo Hall, 1232 Falke Drive, Dayton, Ohio a citizen found a memory card that contained explicit sexual child abuse.
He DID WHAT?
Dayton Police Officer Joshua Spears was the lead investigator, and he examined the memory card and determined that it contained images and videos of a young girl who has Cerebral Palsy, is non-verbal and confined to a wheelchair. This young, vulnerable victim was forced to perform oral sex on an adult male. Officer Spears testified that the face of the adult male could not be seen in the images, but that the images did reveal an arm tattoo on the male sexual predator. This tattoo would lead to the identification and conviction of a heinous predator.
To identify a suspect, Officer Spears testified that he researched the corresponding address of a license plate that was depicted in some of the images on the memory card. Officer Spears testified that he went to the street of that address and, by referencing a fire hydrant, he determined that it was the area where some of the images had been taken. Officer Spears testified that he obtained the address of the home that was near the fire hydrant and then went to a local school and investigated whether any names were registered to that address. After further investigation, Officer Spears identified the suspect as Mr. Michael Luther.
After Mr. Luther became a suspect, Officer Spears learned that Luther was employed at the Chewy Facility 3280 Lightner Road, Vandalia, Ohio. Officer Spears testified that on the morning of Monday March 16, 2020, he and FBI Agent Andrea Kinzig made contact with Luther at the Chewy Facility while Luther was taking a smoke break. Officer Spears testified that he and Agent Kinzig were in plain clothes when they approached Mr. Luther. Officer Spears, however, testified that he was wearing a Dayton Police lanyard and his police badge on his belt. Officer Spears also testified that upon making contact with Mr. Luther, he informed Luther that he was with the Dayton Police Department and that Agent Kinzig was with the FBI.
Mr. Luther was on a smoke break at the Chewy animal food facility, 3280 Lightner Road, Vandalia, Ohio on a smoke break when Officer Joshua Spears and FBI Agent Andrea Kinzig began a consensual encounter with him. This consensual encounter would be at the center of Mr. Luther’s lifetime conviction.
After identifying himself and Agent Kinzig, Officer Spears testified that he told Mr. Luther that he was investigating a case “concerning the safety of the children that [Luther’s] been around * * * including his biological son.” Although Officer Spears told Mr. Luther that he was doing a background investigation, Officer Spears testified that he made it clear to Mr. Luther that he was investigating “[Luther’s] past involving the safety of all the kids * * * in his life.” Officer Spears testified that he asked Mr. Luther whether his emergency custody hearing in juvenile court was still going forward, and that Mr. Luther indicated it was. Officer Spears also testified that he asked Mr. Luther if he could check out his home and interview him, and that Luther consented to both of these requests.
Continuing, Officer Spears testified that Mr. Luther rode with him and Agent Kinzig to Mr. Luther’s residence in Dayton. Off. Spears testified that Mr. Luther was not handcuffed during this time and that Mr. Luther rode in the front-passenger seat of his unmarked vehicle. When they arrived at Mr. Luther’s residence, Officer Spears took pictures at the residence and spoke to Mr. Luther’s brother. Officer Spears testified that he was at Mr. Luther’s residence for approximately ten minutes. Thereafter, Officer Spears testified that he drove Mr. Luther to the Dayton Safety Building for purposes of conducting an interview. Other than small talk about the weather and leisure activities, Officer Spears testified that neither he nor Agent Kinzig asked Mr. Luther any questions during the transport.
Mr. Luther’s interview with the officers was video recorded and admitted into evidence as State’s Exhibit 1. The video recording established that Officer Spears, Agent Kinzig, and Mr. Luther were all present during the interview. The video also established that before asking Mr. Luther any questions, Officer Spears presented a pre-interview form to Mr. Luther that set forth Mr. Luther’s Miranda rights. The pre-interview form was admitted into evidence as State’s Exhibit 2. The following is a summary of the events depicted in the video of Mr. Luther’s interview.
Initially, while explaining the pre-interview form to Mr. Luther, Officer Spears advised Mr. Luther that he was being interviewed regarding the crimes of child endangering, pandering obscenity, sexual assault, and anything regarding the safety of children. All of these offenses were written down on the pre-interview form that Officer Spears presented to Mr. Luther. See State’s Exhibit 2. Luther then asked Officer Spears whether he had been accused of the aforementioned offenses. Officer Spears answered affirmatively and explained that they were criminal allegations that would be discussed with Mr. Luther during the interview. Mr. Luther thereafter asked Officer Spears who was accusing him of the offenses. Officer Spears responded by telling Mr. Luther that he could not discuss that information until he read Mr. Luther his rights. Officer Spears then went over all the Miranda rights on the pre-interview form with Mr. Luther. Mr. Luther indicated that he understood each right on the pre-interview form. Mr. Luther also indicated that he understood that anything he said during the interview could and would be used against him in a court of law. Later, Mr. Luther would feebly argue that his Miranda rights were violated.
After Officer Spears went over all the rights on the pre-interview form, Officer Spears asked Mr. Luther to place his initials next to each right on the form in order to indicate Luther’s understanding of his rights. As Mr. Luther was initialing the pre-interview form, Mr. Luther asked Officer Spears whether he needed a lawyer. Officer Spears responded by saying that he could not answer that question and then reiterated that Mr. Luther had the right to get a lawyer and that whether Mr. Luther wanted a lawyer was entirely Mr. Luther’s choice. Mr. Luther then asked: “If I’m being accused of stuff then should I probably have one?” Off. Spears responded: “Again, I can’t give you legal advice, that’s totally up to you. If you want one, you can ask for one. Umm, if you want to talk first and then you change your mind and say ‘I do want a lawyer now,’ you can always change your mind later. If you start talking and change your mind you can always go back, your rights are never taken away. So if you want one that’s totally fine, it’s up to you, we’ll have to stop talking now[.]”
Following that discussion, Mr. Luther did not ask to have an attorney present atthe interview. Mr. Luther did, however, ask Officer Spears whether he was going to be arrested. Officer Spears responded by telling Mr. Luther that he needed to finish going over the pre- interview form in order to ensure that Mr. Luther understood his rights. Officer Spears then began to review the waiver of rights portion of the pre-interview form, which Mr. Luther stated he understood. Officer Spears then asked Mr. Luther if he wanted to talk to him. Mr. Luther responded by saying that his answer to that question depended on whether he was actually in any sort of trouble. Mr. Luther also said that he did not want to waive his rights until he knew what he was facing. To this, Officer Spears told Mr. Luther that Mr. Luther was going to be arrested for the offenses of pandering obscenity involving a minor and sexual assault. Officer Spears testified that he knew he was going to arrest Luther for these offenses when Mr. Luther removed his jacket at the Safety Building and revealed an arm tattoo that matched the arm tattoo of the adult male in the pornographic images at issue.
After learning that he was going to be arrested, Mr. Luther inquired about the identity of the victim. Officer Spears responded by saying that he could not provide that information unless Mr. Luther agreed to speak with him. Mr. Luther then confirmed with Officer Spears that if he agreed to speak with him that he could stop talking at any point in order to get a lawyer, if necessary. Following that confirmation, Mr. Luther agreed to speak with Officer Spears and signed the waiver of rights, which states as follows:
The above statement of rights has been read to me. I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. I have completed twelve (12) years of schooling. Belmont High School. State’s Exhibit 2.
Once the pre-interview form was signed, Officer Spears and Agent Kinzig questioned Mr. Luther for approximately fifty-five minutes. The interview was calm with no threats or promises made. During the interview, the officers explored Mr. Luther’s relationships with women and obtained information about Mr. Luther’s children. The officers also explored Mr. Luther’s interactions with the children of the women he had had relationships with over the past six years. When Officer Spears presented Mr. Luther with the child pornography at issue, Mr. Luther confessed to being the adult male shown in the images and to producing the images. At this moment Mr. Luther sealed the the majority of the rest of his life would be spent in prison. Mr. Luther also admitted to visiting child pornography websites and to downloading pornographic images depicting children. At the end of the interview, Mr. Luther was handcuffed and taken into custody.
After considering Officer Spears’ suppression hearing testimony, the video recording of Mr. Luther’s interview, and the pre-interview form, the trial court issued a decision overruling Mr. Luther’s motion to suppress. Concerning Mr. Luther’s Fifth Amendment claim, the trial court found that Officer Spears Mirandized Mr. Luther prior to the interview and that Mr. Luther understood his rights. The trial court also found that Mr. Luther knowingly, intelligently, and voluntarily waived his rights and made voluntary statements to the officers during the interview.
Mike Can’t Miranda His Way Out of Prison
The trial court found that although Officer Spears was initially vague about the investigation, Officer Spears nevertheless advised Mr. Luther, before Mr. Luther waived his rights, that Mr. Luther was being accused of child endangering, pandering obscenity, and sexual assault, and that Mr. Luther was going to be questioned regarding those offenses. The trial court additionally found that because the officers did not threaten Mr. Luther, provide false statements to Mr. Luther, overbear Mr. Luther’s will, impair Mr. Luther’s capacity for self- determination, or make promises in exchange for Mr. Luther’s statements, there was no coercive police conduct that rendered Mr. Luther’s statements to the officers involuntary. In short, Officer Spears was a professional and Mr. Luther only made feeble legal arguments.
With regard to Mr. Luther’s Sixth Amendment claim, the trial court found that Officer Spears advised Mr. Luther of his right to counsel, and that Mr. Luther indicated his understanding of that right. The trial court further found that Mr. Luther’s act of simply asking Officer Spears whether he needed an attorney was not an unequivocal, unambiguous invocation of his right to counsel. The trial court therefore determined that Mr. Luther was not denied his Sixth Amendment right to counsel.
After the trial court overruled Mr. Luther’s motion to suppress, Mr. Luther entered a no contest plea to all the charges in the indictment. The trial court accepted Mr. Luther’s no contest plea and found Mr. Luther guilty as charged. The trial court then sentenced Mr. Luther to an aggregate term of twenty-six years to life in prison … which may not be long enough.
Mr. Luther appealed his conviction to the Second District Appellate Court, based in part, that Officer Spears unlawfully detained him at the Chewy facility and therefore all evidence obtained thereafter should be suppressed. Specifically, his Mirandized statement that he sexually molested a girl with Cerebral Palsy who was non-verbal and confined to a wheelchair whom he sexually molested, should be suppressed.
The Second District Appellate Court held “[W]e do not find that Off. Spears deceived Luther so as to render his consent less than free and voluntary. Accordingly, based on the circumstances here, there is no evidence of an illegal seizure of Luther’s person and thus no Fourth Amendment violation.”.
Information for this article was obtained from State v. Luther, 2021 – Ohio – 2697 and news articles about Mr. Luther’s conviction.
News article: https://www.wdtn.com/news/local-news/dayton-man-sentenced-for-child-rape-convictions/
- Luther had a sentence of twenty-six years to life imprisonment to make any argument that would inhibit his incarceration. He and his legal team focused on the initial seizure at the Chewy facility. Officer Spears told Mr. Luther that he was investigating the safety of all children in his life. Mr. Luther subsequently decided he would travel voluntarily with Officer Spears and Agent Kinzig to the police headquarters for an interview. How Mr. Luther was transported is critical to the voluntariness analysis. Mr. Luther was not handcuffed, physically controlled by law enforcement or placed in the backseat of the unmarked car were all critical to the conclusion that Mr. Luther was not detained at all. Rather, he voluntarily rode with law enforcement to headquarters. For more on Miranda see Miranda Both a Noun and a Verb. For more on the Voluntariness Doctrine see Why Didn’t Sylvia’s Heroin Filled Underwear Make it to Pittsburgh?.
- Even if the trial court or Second District Appellate Court had found any wrongdoing on the part of law enforcement, I am not sure Mr. Luther would not still remain in prison for the better part of his life. The fact that the memory card showed that he had actually molested the handicapped girl should have been enough for his conviction. His arm tattoo, which is not specifically described in the case, was strong inculpatory evidence that he was THE sexual predator.
- One question that remains is how the memory card was discarded in the parking lot of a bingo hall. Not only was the memory card found in the parking lot, but it was not destroyed by being run over by a car or stepped on by a bingo contestant.
- As a child my Uncle Dave in Detroit, Michigan always told me when we left his home, “Bobby keep your eyes on the ground for money”. On February 15, 2020, a bingo contestant kept her eyes on the ground but instead of finding money … she found a small electronic memory card that now made her community a lot more safe! Whoever this unidentified bingo contestant is should be repeatedly thanked for her efforts.
- Both Officer Spears and Agent Kinzig should be highly commended for their diligence and investigative skills to find and ultimately convict a vile human being.
Does your agency train on Consensual Encounters?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!