Plain View Pocket Peek-a-Boo with Mr. Metz’s Meth

Deputy Jacob had a concern for officer safety and recognized the baggie as an immediately apparent indication of illegal drugs, we find no error in application of the “plain view” doctrine in this instance.

State v. Metz

2021 – Ohio – 3060

Sixth District Appellate Court

Williams County, Ohio

September 3, 2021

On Tuesday August 20, 2019, the combined assets of the Williams County Sheriff’s Office, the Ohio Highway Patrol, the Village of Edon Police, and the six-county Multi-Area Narcotics Task Force responded to reports of a potential abduction and hostage situation, identifying the alleged suspect as Mr. Anthony Arquette. The search for the alleged victim and Arquette included several cell phone “pings,” an IP location trace on the alleged victim’s computer, and alerts on several vehicles linked to Mr. Arquette. Two of those vehicles, a blue suburban and silver minivan, were titled to appellant, but the investigation yielded information that appellant had loaned the suburban to Mr. Arquette.

Police eventually narrowed their search to the area north of Pulaski Township, Ohio, and after several hours, Williams County Sheriff Deputy Doug Moser spotted the blue suburban and the silver minivan at the Graziani residence in Pulaski Township. Deputy Moser called for backup, and was instructed to remain on scene and prevent anyone from leaving. As he waited, he observed a man and a woman leave the house, enter a silver minivan, and begin exiting the driveway in the vehicle. Activating his lights, Deputy Moser blocked the minivan’s exit from the driveway, near the road.

Williams County Sheriff Lieutenant Greg Ruskey responded to the scene soon after, along with numerous other law enforcement officers. Lt. Ruskey assisted Deputy Moser in detaining the man and woman, identified as Mr. Joshua Metz and his wife, Cindy. Lt. Ruskey and Deputy Moser secured the two under investigative detention, and advised them they were not free to go. Deputy Moser removed objects from appellant’s pockets and placed him in the back of his cruiser, in handcuffs. [For additional information on when a suspect can be handcuffed during an investigative detention see Can a Law Enforcement Officer Handcuff a Suspect During Investigative Detention?] The objects were later determined to be tattoo tools.  The deputies questioned appellant and his wife, separately, trying to locate the alleged abduction victim. They learned that the alleged victim and her boyfriend, Arquette, were inside the house. Mr. Brian Graziani exited the house during this questioning, and he, too, was detained.

For the next fifteen to thirty minutes, Mr. Metz, Cindy, and Mr. Graziani were detained at the scene while the gathered law enforcement engaged in negotiations to remove the targets of their manhunt from the home. Eventually, it became clear that no abduction had occurred, but Mr. Arquette had active warrants. This is very common – law enforcement is directed to a residence for some serious crime in progress only to discover that the original crime did not occur or occur as originally dispatched.  Only later to discover the area was chock full of other probable cause.

Deputy Moser was assigned to take Mr. Arquette into custody and transport him to the jail. Deputy Moser then removed Mr. Metz from the back of his cruiser, removed appellant’s handcuffs, returned the tattoo tools removed earlier and told Mr. Metz he was free to go. Cindy was released, as well.

Mr. Metz and Cindy returned to their minivan and waited for the cruisers to move so they could leave. As soon as Deputy Moser drove off, clearing the way to the road, Mr. Graziani’s mother arrived and pulled in right behind appellant’s vehicle. Law enforcement vehicles were parked on either side of appellant, and he did not feel he could ask Mrs. Graziani to move or ask permission to drive through the grass to reach the road. Why Mr. Metz was afraid of his friend’s mother remains unclear.  Mr. Metz remained at the scene, seated in the driver’s seat of his minivan while Cindy sat in the shade of a nearby tree.

At this point, while Mr. Metz was free to go but blocked by vehicles, the focus of law enforcement turned to the Graziani’s home. In the course of negotiating Mr. Arquette’s surrender, Lt. Ruskey and others smelled the odor of burnt marijuana emanating from the house. He requested consent to search the home, but the Grazianis declined at first, consenting only after learning a warrant would be obtained. Lt. Ruskey also learned that Mr. Metz wished to leave, but had been asked for consent to search his minivan first, to “make sure nothing illegal from the house was leaving the property.” Mr. Metz gave consent and signed a consent-to-search card, but deputies did not search his vehicle.

Instead, just after Mr. Metz signed the consent card in preparation for leaving, Williams County Sheriff Deputy Michelle Jacob arrived. Deputy Jacob observed Mr. Metz, sitting in his car with the door open. As she approached, she noticed Mr. Metz reach toward his waistband or pocket area, and it caused her concern for officer safety. Deputy Jacob asked Mr. Metz to step out of the minivan, voicing her safety concerns. When Mr. Metz complied, Deputy Jacob saw the top of a Ziploc bag sticking out of the same pocket to which appellant had been reaching. Deputy Jacob pulled the Ziploc the rest of the way out and observed “dirty looking meth,” later tested and confirmed as methamphetamine.

Mr. Metz was charged with aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(a). Mr. Metz filed a Motion to Suppress the methamphetamine which the trial court denied, holding that the Ziploc baggie was admissible under the Plain View Doctrine.  He was sentenced to three years of Community Control, 180 days in jail, with all 180 days stayed and a $1,000 fine.

Mr. Metz filed an appeal to the Sixth District Appellate Court.  He alleged that the trial court should have suppressed his methamphetamine because he was detained unlawfully when Deputy Jacob approached Mr. Metz’s minivan and should not have seized Mr. Metz’s Meth baggie. The Sixth District Appellate Court denied his appeal as it held “Deputy Jacob had a concern for officer safety and recognized the baggie as an immediately apparent indication of illegal drugs, we find no error in application of the “plain view” doctrine in this instance.”.   For more on the Plain View Doctrine see Can an Incomplete Search Warrant Create a New Legal Doctrine?.

Information for this article was obtained from State v. Metz, 2021 – Ohio 3060.

This case was issued by the Sixth District Appellate Court and is binding in the following Ohio Counties: Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood.

Lessons Learned:

1. The scene on Tuesday August 20, 2019 is indicative of the type of chaotic scene where law enforcement has limited information and expected to have a reasonable response. A potential abduction raises the critical nature of the response as a human life may have been in danger. Ultimately the officers were able to determine there was no abduction but thereafter a new investigation began based on the actions of Mr. Metz.  Here, Deputy Jacob observed Mr. Metz making movements inside the minivan.  These movements should have raised an officer safety concern and she acted quickly, accurately and as two courts determined … objectively reasonably.   Thank you Deputy Jacob!
2. When Mr. Metz made a movement to his pocket the court describes this as a furtive movement. Law enforcement should always avoid using the word furtive.  The word furtive simply means ‘secretive movement’.  Because the statute of limitations for civil suits in Ohio is two years and often it is another several months to a year until depositions begin, describing someone’s movement with the generalized term ‘furtive’ should not be used.  Any officer trying to recall what occurred three years ago in finite detail is at-best challenging.  Law enforcement should simply describe exactly what the suspect did … such as Metz kept grabbing at his waist and twisting his torso in a manner where I could not see what he was fondling.  I am ad-libbing descriptive words to this explanation for purposes of an example.  What is described in this example is much better than summarizing Mr. Metz actions as afurtive movement.
3. The initial detention of Mr. and Mrs. Metz in the driveway, where a phone was pinged that may have been used in an abduction, is reasonable. Once Deputy Moser moved his cruiser and unblocked Mr. Metz’s minivan the detention ended.  Thereafter Mrs. Graziani re-blocked the minivan, law enforcement was no longer detaining Mr. Metz.  The fact that Mr. Metz lacked the courage to ask his friend’s mother to move did not create a detention by law enforcement.  To date, there is no Momma Graziani Amendment to the U.S. or Ohio Constitution.  However, once Mr. Metz played pocket peek-a-boo with his methamphetamine baggie, he initiated the Plain View Doctrine for Deputy Jacob.  Both the Williams County Court of Common Pleas and the Sixth District Appellate Court held that Deputy Jacob’s removal of the methamphetamine Ziploc was objectively reasonable.

Does your agency train on the Plain View Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.