We hold that the public safety exception, as analyzed above, did not apply because the officers’ cause for suspicion was dispelled after he frisked Mr. Keys, found no gun on his person, and had no other corroborating evidence that Mr. Keys had committed a crime. If not for Mr. Keys’ answers and statements made during interrogation, there would be no evidence that Mr. Keys committed a crime.
State v. Keys
2023 – Ohio – 1454
Seventh District Appellate Court
Mahoning County, Ohio
May 1, 2023
Shots Fired
Youngstown Police Officer Wharry and Officer Villaplana testified on behalf of the State. Officer Wharry testified that on April 19, 2021, he was in his patrol car waiting at a red light at South Avenue and East Lucious Avenue. He testified that he heard a gunshot coming from about a block away from his location. He turned on Auburndale and observed a black male, later identified as Mr. Aaron Keys, walking toward him wearing black clothing and orange shoes. He testified that as soon as Mr. Keys looked at him, Mr. Keys began running away from him south on Auburndale through yards in the neighborhood. Officer Wharry stated that he radioed the police station and he watched Mr. Keys run blocks south until he turned a corner heading back to South Avenue. Wharry pulled into Conroy’s Party Shop and stopped Mr. Keys.
Youngstown Police Officer Wharry and Officer Villaplana heard gunshots at an intersection and chased Mr. Aaron Keys to the Conrads Party Shop. The events that followed led to Mr. Keys arrest, conviction and appeals.
Officer Wharry stated that he notified Mr. Keys that he was a Youngstown Police Officer, he had Mr. Keys put his hands in the air, he asked Mr. Keys to turn around, and he patted Mr. Keys down for weapons. Officer Wharry walked Mr. Keys to his police car and told him that he was stopped because Wharry heard a gunshot and saw him take off running.
Why do Suspects ‘Lose’ So Many Items During a Foot Pursuit?
Officer Wharry testified that he sat Mr. Keys in the rear of his police car, but he did not put handcuffs on him. He waited for back up to arrive, and then he and Officer Villaplana retraced Mr. Keys’s steps and found a hat and a Bluetooth speaker. Officer Wharry identified the hat as the one that he saw Mr. Keys wearing while he was running. Officer Wharry stated that he and Officer Villaplana then went to talk to Mr. Keys. Officer Wharry agreed on cross-examination that when Mr. Keys was in the back of his police car, he was not free to leave. He also stated that numerous people were around the area at the time.
One Hour Investigative Detention
Officer Wharry testified on cross-examination that the ShotSpotter gunshot acoustic location system did not pick up the sound of a gunshot. He explained that it could have been during a maintenance window or it just did not pick up the shot. Officer Wharry also estimated that the time that Mr. Keys was in custody was under one hour, although he stated that Mr. Keys made a cell phone call while he was in the back seat and if the cell phone showed the call was made any time prior to 6:36, Mr. Keys would have been in custody for over one hour.
Officer Villaplana testified that after he heard Officer Wharry’s radio broadcast, he arrived at the scene and he and Wharry retraced Mr. Keys path when he ran away from Officer Wharry. He testified that they discovered the hat and Bluetooth speaker. He recalled that it was a sunny day and children and adults were outside as Conroy’s Party Shop is located in a residential area.
Pre-Miranda Questioning
Officer Villaplana further testified that when they returned from retracing Mr. Keys’s steps, they spoke to Mr. Keys. Officer Villaplana testified that he told Mr. Keys that since Wharry had heard a gunshot and saw Mr. Keys fleeing, “it would be in everyone’s best interest if he did drop a gun, to let us know where it would be” because children and adults were outside. Officer Villaplana indicated that Mr. Keys told him that “hypothetically if there was a gun, it was under these logs a few houses away from Conroy’s, where we were at.” Officer Villaplana and Officer Wharry found a gun under the logs with four live rounds and one spent casing loaded in the cylinder.
Officer Villaplana further testified that once the gun was secured, he reviewed the questions on the PD-11 Firearm Recovery Report with Mr. Keys. (He stated that Mr. Keys vaguely answered some of the questions. Officer Villaplana indicated that Mr. Keys’s statement about the gun did not appear on the Report because it was made prior to recovering the firearm. He explained that officers review the questions on the Recovery Report with suspects after they recover a firearm and after they give Miranda warnings. Officer Villaplana confirmed that Mr. Keys made his gun statement prior to receiving Miranda warnings. Mr. Keys did not admit to having a gun when he answered the questions on the firearm report.
On cross-examination, Officer Villaplana agreed that Mr. Keys was in police custody while he was sitting in the police car. He testified that before he asked Mr. Keys the questions on the Firearm Recovery Report, he had asked Mr. Keys whether he had handled fireworks that day because this helps establish whether gunshot residue would be found on a suspect’s hands. Officer Villaplana further testified that he also asked Mr. Keys if he had fired a gun that day because of possible residue findings. Officer Villaplana testified that Mr. Keys responded that he had fired a gun earlier that day.
Defense counsel asked Officer Villaplana if his questions were designed to establish Mr. Keys’s guilt and Villaplana responded that his questions were designed to locate a firearm before a child or other person could find it. Officer Villaplana confirmed that Mr. Keys did not receive Miranda warnings prior to his questions about the firearm.
Motion to Suppress is Denied
On September 23, 2021, the trial court issued a judgment entry overruling Mr. Keys’s motion to suppress.
Trial
The matter proceeded to a bench trial on January 18, 2022, where the court heard testimony from Officer Wharry and Officer Villaplana.
Guilty Verdict
On January 18, 2022, the trial court issued a judgment entry finding Mr. Keys guilty of having a weapon while under disability with the enhanced firearm specification, and carrying a concealed weapon. The court held a sentencing hearing and sentenced Mr. Keys to a total prison term of sixty-three months: nine months of imprisonment on the weapon under disability conviction, to be served concurrently with nine months of imprisonment on the carrying a concealed weapon conviction; and a mandatory prison term of fifty-four months for the enhanced firearm specification.
Appeal
Mr. Keys filed the instant appeal on February 16, 2022, and asserts two assignments of error.
The trial court erred in denying Mr. Keys motion to suppress.
Mr. Keys contends that the trial court erred by denying his motion to suppress statements that he made prior to Officer Wharry and Officer Villaplana informing him of his Miranda rights and evidence obtained as a result of those statements.
Was Mr. Keys in Investigative Detention or Miranda Custody?
Mr. Keys asserts that he was in police custody when Officer Wharry placed him in the back of the cruiser. He contends that since he was subjected to a custodial interrogation and not informed of his Miranda warnings, the trial court should have suppressed any incriminating statements that he made to Officer Villaplana before he was Mirandized. These statements include Mr. Keys stating that he had fired a gun earlier on the day of his arrest and his statement that “hypothetically if there was a gun, it was under these logs a few houses away from Conroy’s.” He contends that the gun should also have been suppressed because it was discovered as a result of the illegally obtained statements.
Was Mr. Keys Statements Admissible Under the Public Safety Exception to Miranda?
The state agrees to the appellate standards of review set forth by Mr. Keys, but asserts that the trial court correctly denied the motion to suppress. The state concedes that Mr. Keys was in police custody. However, The state contends that officers were operating under the public safety exception to providing Miranda warnings before questioning Mr. Keys about the firearm. Citing New York v. Quarles, 467 U.S. 649, 659 (1984) and State v. Maxwell, 2014- Ohio-1019, The state submits that the public safety exception allows police officers to question defendants in custody before providing them Miranda warnings if the questions relate to protecting the police officers or the safety of others.
Appellate Court Holds that a Firearm Laying Under a Log Next to a Residential Area is Not a Danger
Applying the appropriate standards of review, we find that the public safety exception does not apply in this case. Moreover, we find that the trial court’s decision on the motion to suppress relied upon facts that do not exist in this case, rendering it lacking in competent, credible evidence.
In Quarles, the United States Supreme Court recognized “[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self- incrimination.” 467 U.S. at 659. Accordingly, the U.S. Supreme Court held that officers may ask defendants in custody necessary questions in order to ensure police safety and the safety of others without providing Miranda warning.
In State v. Maxwell 2014-Ohio-1019, the Supreme Court of Ohio adopted the Sixth Circuit Court of Appeals’ standard regarding the applicability of the public safety exception (citing U.S. v. Williams, 483 F.3d 425, 428 (6th Cir. 2007)). The Sixth Circuit held that in order for the Quarles public safety exception to apply, the officer must have had “a reasonable belief that he is in danger,” which is established by showing that the officer had “reason to believe (1) that the defendant might have (or recently have had) a weapon, and (2) that someone other than police might gain access to that weapon and inflict harm with it.” Williams, supra.
Seventh District Appellate Court Determines that Loaded Firearms are Not Dangerous
Neither party challenges whether Mr. Keys was in police custody. The issue is whether the public safety exception applies to the questioning of Mr. Keys before Officer Villaplana provided Miranda warnings. We find that it does not.
In Quarles, officers were on road patrol when a woman approached their car and told them that a black male had just raped her. She identified the male as six feet tall and wearing a black jacket with “Big Ben” in yellow letters on the back of the jacket. She told officers that the male had just entered a nearby supermarket and had a gun.
The victim drove with the officers to the supermarket and one of the officers went in while the other radioed for assistance. The officer inside located the defendant by the victim’s description, and he saw the defendant run immediately toward the back of the market upon seeing the officer. The officer was the first to approach the defendant,
and he frisked him for weapons. Upon doing so, he located an empty shoulder holster on the defendant. After the officer handcuffed the defendant, he asked the defendant where the gun was. The defendant nodded his head in the direction of some empty cartons and told the officer the location of the gun. He thereafter stated that he owned the gun.
The United States Supreme Court held that a narrow public safety exception exists to questioning suspects before informing them of their Miranda rights. 467 U.S. at 651, 104 S.Ct. 2626, 81 L.E.2d 550. The Court held that requiring officers to notify defendants of their Miranda rights before asking about the location of a gun may deter suspects from responding in a situation where officer safety or the public safety was threatened. Id. at 656. [This fact pattern is eerily similar to the actions of Mr. Keys on April 19, 2021]
The Quarles Court explained that “[T]he police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket.” Id. at 657. The Court held that “[I]f the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding.” Id. The Court concluded that, “[P]olice officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” Id. at 658-659.
Seventh District Appellate Court Holds that a Man in the Same Area as Shots Fired, at the Same Time who Runs from the Police is Not Reasonable Suspicion
Contrarily in this case, the only fact known to Officer Wharry and Officer Villaplana was that Officer Wharry observed Mr. Keys flee shortly after he heard what he believed to be a gunshot coming from one block away from the location where he was patrolling. ShotSpotter did not indicate a gunshot. Officer Wharry testified that he observed a black male walking towards him on Auburndale and watched him flee upon seeing him in his police car. The victim in Quarles identified the defendant as the man who raped her, approached officers with this information, described the defendant, and saw him enter the supermarket with a gun. The officer entered the grocery store, identified the defendant from the victim’s description, and saw an empty shoulder holster on the defendant after the victim had told him that she saw the defendant enter the store with a gun.
Further distinguishable in the instant case, Officer Wharry stopped Mr. Keys at Conroy’s, had Mr. Keys put his hands in the air, identified himself, and patted Mr. Keys down for weapons. He found no weapons. Unlike the statement by the victim in Quarles that she saw the defendant with a gun, and the empty gun holster that the police officer observed on the defendant, no such evidence or indication existed in this case that Mr. Keys had a gun. Officer Wharry nevertheless placed Mr. Keys in the back of his patrol car. At this point, there appeared to be no threat to Officer Wharry, he no longer had reasonable suspicion that Mr. Keys had a gun, and he detained Mr. Keys after assuring himself that Mr. Keys did not have a weapon.
Seventh District Appellate Court Holds that Since a Loaded Firearm Nestled Under a Log is Not a Threat to the Officers the Firearm is No Threat at All
Further, while he placed Mr. Keys in the back of the patrol car, Officer Wharry did not handcuff Mr. Keys. Officer Villaplana arrived and while Mr. Keys remained in the backseat of the police car, Officer Villaplana and Officer Wharry retraced Mr. Keys’s steps and found a Bluetooth speaker and the hat that Wharry saw Mr. Keys wearing. They returned to the police car. At this point, there was no threat to Officer Wharry and Officer Villaplana from Mr. Keys. He was seated in the back of the police car, had already been frisked, and no weapons were found.
Officer Villaplana then decided to question Mr. Keys before giving him Miranda warnings. He told Mr. Keys that Officer Wharry heard a gunshot and then saw Mr. Keys flee. Officer Villaplana testified that he then told Mr. Keys that due to the children and people outside near them, it would be in everyone’s best interest for Mr. Keys to let them know where the gun was, if he dropped a gun. Mr. Keys then stated that “[H]ypothetically if there was a gun, it was under these logs a few houses away from Conroy’s.”
Why Does the Court Repeatedly Re-State the Facts?
Again, at this point, no immediate threat existed toward the officers. They had not seen a gun on or near Mr. Keys, they had no information that Mr. Keys had a gun, and the only fact they had was that Officer Wharry believed he heard a gunshot and Mr. Keys fled upon seeing a police officer in a police car. Mr. Keys should have been Mirandized.
There is an argument that while Mr. Keys presented no immediate threat to the police, a threat to public safety existed because a gun was outside and unattended. However, in Quarles, the victim approached the police, identified the defendant as the
man who had just raped her, told officers that she saw the defendant with a gun, and she saw him enter a grocery store with a gun. The officer also observed the defendant with an empty shoulder holster on him once inside the store. Further, the gun was located in an empty carton inside the confines of the store. When asked, the defendant indicated that he owned the gun.
Court Re-Explains the Same Legal Analysis
Here, no one observed Mr. Keys do anything other than run the opposite way from a police officer after Officer Wharry drove near an area from which he believed he heard a gunshot. Officer Wharry’s pat down of Mr. Keys revealed no gun or weapon. Mr. Keys was nevertheless placed in the police car without handcuffs. Upon questioning without Miranda warnings, Mr. Keys admitted that he fired a gun earlier in the day and a gun was subsequently found hidden under some logs two houses away from Conroy’s Party Shop. Mr. Keys never took ownership of the gun and no one saw him with a gun.
Further, Officer Villaplana is asked by the prosecution at the suppression hearing if he had any other discussion with Mr. Keys pre-Miranda warnings. He testified: “I – not really, no.” However, later in direct examination, he testified that pre-Miranda warnings, he had also asked Mr. Keys if he had fired a gun at any time during that day and Mr. Keys affirmatively responded.
On cross-examination, Officer Villaplana testified that three statements were made by Mr. Keys in response to questions he had asked prior to administering Miranda warnings to Mr. Keys. The first was whether he had handled fireworks that day, which Villaplana explained may show up as gunshot residue on a residue test. The second question was whether Mr. Keys had fired a gun that day, and the third question was in response to Officer Villaplana stating that it would be in everyone’s best interest to tell him where the gun was, if Mr. Keys had dropped the gun. [It was if the officers believed a loaded firearm in a residential area was dangerous! These front line law enforcement officers clearly did not see the harmlessness that the Seventh District Appellate Court did.]
A further issue with the motion to suppress is the trial court’s judgment entry denying the motion. The trial court set forth the following in its decision: Officer Wharry testified that a gun was noticed in the rear of the vehicle in plain view. Further, he testified that this raised his awareness regarding public safety, given the fact that he was responding to hearing a gun shot and that the Defendant ran when Officer Wharry attempted to talk to him, the Court finds that the public safety of the officer and of the public warrants additional questions as asked in this matter.
No facts exist in this case about a gun found in plain view in a car. Mr. Keys was on foot when stopped and he was placed in Officer Wharry’s police car. No other car was involved in this case and the only gun found here was located under some logs. Accordingly, the trial court’s factual findings are not supported by competent, credible evidence. Some of them are clearly incorrect.
A Fruit of the Poisonous Tree
Consequently, we find merit to Mr. Keys’s first assignment of error. Since Mr. Keys’s statements concerning a firearm were made in response to an unlawful interrogation in violation of Miranda, Mr. Keys’s statements about the location of the gun, that he had fired a gun that day, and the gun itself, were obtained illegally and are therefore fruit of the poisonous tree.
We hold that the public safety exception, as analyzed above, did not apply because the officers’ cause for suspicion was dispelled after he frisked Mr. Keys, found no gun on his person, and had no other corroborating evidence that Mr. Keys had committed a crime. If not for Mr. Keys answers and statements made during interrogation, there would be no evidence that Mr. Keys committed a crime.
Accordingly, we find that Mr. Keys first assignment of error has merit.
This case was issued by the Seventh District Appellate Court and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.
Information for this article was obtained from State v. Keys, 2023 – Ohio – 1454.
Lessons Learned:
- The Seventh District Appellate Court utilized a lot of words to justify the position that a loaded firearm nestled under a log in a residential area is not a threat. The court focused on the fact that when Officer Wharry heard the gunshots, he did not immediately see Mr. Keys at the exact spot as where the shots originated and when he patted down Mr. Keys that no firearm was discovered. Based on these two facts the U.S. Supreme Court holding in New York v. Quarles, 467 U.S. 649 (1984) did not apply. In the Quarles case the U.S. Supreme Court held recognized “[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self- incrimination.” 467 U.S. at 659. If this case holding in Quarles does not apply to Mr. Keys’ behavior on April 19, 2021, I am unclear as to what the Seventh District would apply this clear, reasonable standard.
- To contrast the unreasonable decision reached by the Seventh District Appellate Court one only needs to look at Illinois v. Wardlow 528 U.S. 199 (2000). In that case Chicago Police were conducting a narcotics investigation when Mr. Sam Wardlow saw the officers driving the down the street, got the ‘deer in the headlights’ look and ran away from the officers. In that moment the officers were not even approaching Mr. Wardlow, yet he ran. The U.S. Supreme Court would describe Mr. Wardlow’s actions as ‘headlong flight’. Approximately one block away Mr. Wardlow was detained and patted down. The officers discovered a handgun in the bag Mr. Wardlow was carrying. The U.S. Supreme Court determined that the Chicago officers had enough Reasonable Suspicion to stop and pat down Mr. Wardlow. There are more facts in Mr. Keys’ behavior on April 19, 2021, then there was to detain Mr. Wardlow on September 9, 1995, yet the Seventh District Appellate Court determined that it was unreasonable to chase Mr. Keys. For more on Illinois v. Wardlow see Why Did Sam Run Like a Felon in Possession of a Firearm?.
- Youngstown Police Officer Wharry and Officer Villaplana should be commended for their actions on April 19, 2021. Though the Seventh District Appellate Court did not determine there was a threat to public safety when Officer Wharry asked about the discarded firearm, the firearm was recovered, and no innocent Youngstown residents were maimed or killed.
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