…And was it a Reasonable Defense for Douglas to Claim that Placing Contraband in his Rectum while in Jail was for Safekeeping rather than to Avoid Detection by Corrections Officers?
[W]e conclude that the affidavit set forth sufficient information such that the issuing judge had a substantial basis for concluding that probable cause existed to believe that Mr. Bedsole had committed a crime, and Mr. Bedsole’s real-time cell phone location information would assist in his apprehension.
State v. Bedsole
2022 – Ohio – 3693
Twelfth District Appellate Court
Warren County, Ohio
October 17, 2022
The facts and procedural history of this appeal stem from two different criminal cases which were consolidated. We will recite the facts of each case then address Mr. Bedsole’s respective assignments of error accordingly.
Was the Affidavit Sufficient?
Case No. 21CR37747
On Wednesday November 25, 2020, Detective Nicholas Behymer, of the Warren County Sheriff’s Office, was investigating a South Lebanon vehicle theft and a Deerfield Township burglary. When the stolen vehicle associated with the crimes was located, Detective Behymer recovered DNA from cigarette butts found in the vehicle. At some point after submitting the evidence for testing, Detective Behymer was informed of a DNA match with Mr. Douglas Bedsole. On February 1, 2021, Detective Behymer submitted an application for a search warrant for a buccal swab of Mr. Bedsole, as well as a supporting affidavit, in an effort to confirm Mr. Bedsole’s identity as the perpetrator.
On February 2, 2021, Detective Behymer submitted an additional application for a search warrant for real-time Global Positioning System (“GPS”) data from Mr. Bedsole’s cell phone, along with a supporting affidavit. Substantial portions of the facts section of the affidavit were copied directly from the February 1 affidavit. The judge approved the search warrant. Meanwhile, on January 24, 2021, an arrest warrant was issued for Mr. Bedsole based upon a charge of grand theft auto. Detective Behymer later testified that he had become aware of the arrest warrant at some point before applying for the cell phone data warrant. However, he failed to include this information in his affidavit.
Based upon information provided by AT&T pursuant to the cell phone data search warrant, Detective Behymer received historical cell phone location data that enabled him to determine that Mr. Bedsole was in the vicinity of Hyde Park or Oakley, in Hamilton County, Ohio. Officers determined that Mr. Bedsole’s sister lived in that area, and procured information including a description of her vehicle and residence. Lieutenant Chris Peters and Sergeant Brian Hounshell were dispatched to Mr. Bedsole’s sister’s address pursuant to both the historical cell phone GPS data and live cell phone GPS updates that were being sent to Detective Behymer. The officers observed an individual who appeared to match Mr. Bedsole’s description get into a vehicle with a woman and drive onto the interstate. Detective Behymer then received cell phone GPS data updates which matched the vehicle’s path up Interstate 71. Lieutenant Peters and Sergeant Hounshell followed the vehicle to Warren County.
The officers checked the vehicle’s license plate and determined that it was stolen. They directed other officers to initiate a traffic stop. When the law enforcement vehicle activated its lights, Lieutenant Peters testified that he saw an object flung from the passenger window of the vehicle being pursued. On stopping to investigate, he found that it was a handgun. Mr. Bedsole was arrested and subsequently indicted on two counts of having a weapon while under disability, two counts of tampering with evidence, one count of improperly handling a firearm in a motor vehicle, one count of carrying a concealed weapon, and one count of possessing drug abuse instruments.
On August 7, 2021, Mr. Bedsole filed a motion to suppress, alleging that the affidavit was deficient because it failed to connect Mr. Bedsole’s cell phone number to him. At the suppression hearing, Detective Behymer testified that he learned that the cell phone number belonged to Mr. Bedsole “through speaking with other people that know [Mr. Bedsole]” who “provided [him] with a phone number and the location of his sister’s residence.” However, he admitted that he failed to disclose that information or the identities of those who assisted him when obtaining the warrant. Lieutenant Peters, who was Detective Behymer’s supervisor, testified that Mr. Bedsole’s wife was the source of the cell phone number, but her involvement was intentionally withheld to protect her identity.
On September 1, 2021, the trial court issued a written decision denying the motion. The trial court found that there was probable cause to support the search warrant, noting that while the affidavit and search warrant were “inartful at times,” there was “ample evidence upon which to conclude [Mr. Bedsole] had committed a crime.” On September 9, 2021, Mr. Bedsole pled no contest to the offenses as charged. He was sentenced to a total of twenty-four months in prison, to be served consecutively to the sentence imposed in Case No. 21CR38007. Mr. Bedsole now appeals the denial of his suppression motion, raising one assignment of error.
Did Doug Secrete the Contraband in his Buttocks for Safekeeping or to Avoid Detection?
Case No. 21CR38007
On the evening of December 8, 2020, corrections officers Heilyse Ventura and Josh Hartmann were on duty at the “B pod” at the Warren County Jail, where Mr. Bedsole was then incarcerated. Following observation that aroused their suspicion, they conducted a drug investigation in cell 107, sending the inmates to have body scans administered. During a search of the cell, Officer Ventura received information that there were drugs in cell 117, where Mr. Bedsole was staying, and more specifically, that Mr. Bedsole had drugs. Cell 117 is directly across from cell 107 and visible therefrom. Following the tip, Mr. Bedsole and his cellmate were handcuffed and sent to have body scans administered. No drugs were subsequently found in Mr. Bedsole’s cell.
Mr. Bedsole was in the Warren County Jail – B Pod when narcotics were discovered in his anus. He would later claim he kept it there for safekeeping.
Sergeant Larry Laird performed a body scan of Mr. Bedsole and detected an abnormality near his genitals that was inconsistent with “naturally occurring anatomy.” Lieutenant John Denniston agreed with Sergeant Laird’s finding and a strip search of Mr. Bedsole was then conducted. Mr. Bedsole was ordered to remove his clothing, squat, and cough. He did so and the officers observed a black object between his buttocks. At the officers’ request, Mr. Bedsole produced the object and informed the officers that it was marijuana. He was once again instructed to squat and cough, at which point the officers observed a green object emerge from his rectum. When he was asked what it was, Mr. Bedsole stood up, denied having anything, and was observed by the officers to push it back into his rectum using his middle finger.
Sergeant Laird continued to press Mr. Bedsole, who continued to deny having anything else. Mr. Bedsole was restrained, and Sergeant Laird contacted Detective Brian Lewis to prepare a search warrant to conduct a body cavity search. The jail’s policy dictates a two-hour limit on the use of the restraint chair for an inmate, so after two hours, Mr. Bedsole was removed from the chair. As Mr. Bedsole stood up, Sergeant Laird observed a small “silicone or plastic container” fall from Mr. Bedsole’s gown onto the ground. Following a second body scan and strip search, officers thought they saw an additional black object in Mr. Bedsole’s rectum. However, no further objects were discovered. Laboratory results confirmed that the contents of the first container removed from Mr. Bedsole’s rectum were cannabinoids and the contents of the second container, which had fallen, were opioids. Mr. Bedsole was transported to the hospital for the body cavity search, which did not produce any further drugs.
On May 3, 2021, Mr. Bedsole was indicted on one count of tampering with evidence, one count of aggravated possession of drugs, and one count of possession of drugs. The matter proceeded to a bench trial on August 26, 2021. At trial, the court heard testimony from Officer Ventura, Officer Hartmann, Sergeant Laird, and Mr. Bedsole himself. Mr. Bedsole took exception to the officers’ testimony that he pushed the green container into his anus, testifying “I did not shove nothing up my ass.” He testified that he had merely placed the drugs between his buttocks, as opposed to within his rectum, that he had done so “for safekeeping,” and that he had kept the drugs between his buttocks for at least a day before they were discovered by the officers. As such, he argued that because the drugs were concealed before the officers’ investigation began, the state was unable to prove they were placed there for the purpose of impeding an investigation.
The trial court found Mr. Bedsole guilty of all counts. Mr. Bedsole was sentenced to twelve months in prison on each count, to be served concurrently to each other and consecutively to the sentence imposed in Case No. 21CR37747, for a total of thirty-six months in prison between the two cases. Mr. Bedsole now appeals the verdict, raising one assignment of error.
Assignment of Error No. 1:
THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION TO SUPPRESS.
In his first assignment of error, Mr. Bedsole argues that the trial court erred by denying his motion to suppress the search of his cell phone in Case No. 21CR37747. In support of this claim, Mr. Bedsole argues that the search warrant affidavit submitted by Detective Behymer was insufficient to establish the requisite probable cause necessary for the issuance of the search warrant. Specifically, Mr. Bedsole argues that (1) the affidavit failed to establish the necessary nexus between the cell phone number and the and criminal behavior, and (2) the affidavit failed to provide any facts as to the veracity or basis of knowledge of the person supplying the cell phone number. We disagree.
Affidavit Analysis
The trial court found that there was probable cause to support the cell phone search warrant. “While the affidavit and search warrant are inartful at times,” the trial court concluded that “there is ample evidence upon which to conclude
the Defendant had committed a crime.” The trial court further found that “it is not necessary that the particular phone or phone number be associated with that crime,” but that “[i]t is sufficient that there is probable cause the Defendant has violated the law and the data associated with the cell phone number will assist in ascertaining the Defendant’s whereabouts.” We agree with the trial court’s reasoning.
Detective Behymer averred in his affidavit that “it is necessary to obtain the real-time GPS or cell site and sector location information, or location data demonstrating the physical whereabouts of any mobile electronic device associated with telephone number (513-496-8322) for a 60 day period.” In the same paragraph, Detective Behymer averred that such information was necessary “in order to ascertain the location of the individual in possession of (Douglas Bedsole) cell phone.”. While it is true that the affidavit does not contain information regarding how the cell phone number is connected with Mr. Bedsole, it makes clear that the cell phone number is associated with Mr. Bedsole. Earlier in the affidavit, Detective Behymer had already given sufficient information to establish probable cause that Mr. Bedsole had committed a crime, reciting the facts associated with the February 1 buccal swab search warrant affidavit which established that Mr. Bedsole stole multiple vehicles. Here, Detective Behymer made clear that the warrant would assist in the apprehension of a criminal suspect.
The affidavit in support of a search warrant must “name or describe the person to be searched or particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantially the offense in relation thereto, and state the factual basis for the affiant’s belief that such property is there located.” Crim.R. 41(C)(1). Detective Behymer does exactly that in his affidavit. The affidavit to the warrant identified with specificity the placed to be searched, i.e., the cell phone associated with the number 513-496-8322. It described with particularity the property to be seized, i.e., “the real-time GPS or cell site and sector location information, or location data demonstrating the physical whereabouts of any mobile electronic device associated” with that number. It described in detail Mr. Bedsole’s connection to the crime being investigated and the specific facts supporting his identity as the perpetrator of that crime. And it represented that Detective Behymer had good cause to believe that real-time GPS or cell site and sector location information would demonstrate the physical whereabouts of the cell phone “in order to ascertain the location of the individual in possession of (Douglas Bedsole) cell phone,” and that AT&T was in possession of that information.
However, after reviewing the affidavit, we find there was a lack of particularity as to the reliability of the complainant, specifically with regard to the source or basis of the complainant’s information regarding the cell phone number. See State v. Adkins, 12th Dist. Butler Nos. CA2014-02-036 and CA2014-06-141, 2015-Ohio-1698, ¶ 66. It is unclear why Detective Behymer did not note in his affidavit that he received the source from Mr. Bedsole’s wife, or at least from a confidential informant. Nonetheless, the failure to note the source of the phone number does not defeat probable cause as we are unconcerned with whether individual facts supply probable cause. Id. Rather, it is the totality of the circumstances which control. State v. Risner, 2018-Ohio-1569, at ¶ 17. Having reviewed the information set forth in Detective Behymer’s affidavit, we conclude that the affidavit set forth sufficient information such that the issuing judge had a substantial basis for concluding that probable cause existed to believe that Mr. Bedsole had committed a crime, and Mr. Bedsole’s real-time cell phone location information would assist in his apprehension.
We find that there is no evidence that Detective Behymer was acting deliberately in his failure to note the source of his knowledge regarding Mr. Bedsole’s cell phone number. As such, the exclusionary rule does not apply, and consideration of the Good-Faith exception to that rule is immaterial to our analysis.
Tampering With Evidence Analysis
Mr. Bedsole’s argues that he had kept the drugs between his buttocks for at least a day before they were discovered by the officers, and therefore, the state was unable to prove they were placed there for the purpose of impeding an investigation. Although Mr. Bedsole may have placed the drugs between his buttocks or within his rectum prior to the officers instituting their investigation, the very fact of appellant’s incarceration in a jail where officers testified that drug searches regularly occur means that Mr. Bedsole knew an investigation was “likely to be instituted.” This is corroborated by appellant’s own testimony that he placed the drugs between his buttocks “for safekeeping and to prevent anyone else from getting them.” “Anyone else” in this instance includes officers conducting routine investigations.
Additionally, viewing the evidence in the light most favorable to the prosecution, even supposing Mr. Bedsole’s initial concealment of drugs in his rectum or between his buttocks does not constitute tampering, his reinsertion of the drugs as they began coming out does. Officers testified that during their investigation, a second container of drugs emerged from appellant’s anus, and when he was asked what it was, appellant stood up, denied having anything, and was observed by the officers to push it back into his rectum using his middle finger. While Mr. Bedsole denies this occurred, “[I]t is well-established that when conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the trier of fact believed the prosecution testimony.” State v. Lunsford, 2011-Ohio-6529.
Information for this article was obtained from State v. Bedsole, 2022 – Ohio – 3693.
This case was issued by the Twelfth District Appellate Court and is only binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
Lessons Learned:
- The Fourth Amendment’s Particularity clause states in pertinent part “…and particularly describing the place to be searched and the persons or things to be seized.”. Here, Mr. Bedole’s legal team challenged the sufficiency of the affidavit because the detective failed to identify the source of Mr. Bedsole’s phone number. However, the Twelfth District Court dismissed this single factor when it opined “It is unclear why Detective Behymer did not note in his affidavit that he received the source from Mr. Bedsole’s wife, or at least from a confidential informant. Nonetheless, the failure to note the source of the phone number does not defeat probable cause as we are unconcerned with whether individual facts supply probable cause. Rather, it is the totality of the circumstances which control. State v. Risner, 2018-Ohio-1569, at ¶ 17.”. The key here is that this court, like most, rely on the totality of the circumstances rather than one single factor.
- To improve on the good work of these detectives is for law enforcement to include the sources of information on affidavits. Sometimes the sources want or need anonymity. In those circumstances, law enforcement can be specifically-ambiguous and list the person as a confidential source or similar language.
- Bedsole’s legal team made a unique argument that he placed cannabis and opioids in his rectum for safekeeping rather than to avoid detection by corrections officers. This argument goes beyond the bounds of any reasonableness and thankfully the court dismissed it quicker than Mr. Bedsole excreted the contraband from his body.
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