The constitutional right to remain silent does not confer upon a defendant the privilege to lie.

 

State v. Shine

2023 – Ohio – 2261

Eleventh District Appellate Court

Trumbull County, Ohio

June 30, 2023

Mr. Shine is Arrested on an Active Warrant

On Friday July 12, 2019, Officer Thomas Martin [unknown law enforcement agency] conducted a traffic stop at approximately 2:30 a.m. The officer stopped Mr. Ezra Shine for a license plate violation. Upon approaching the vehicle, Mr. Shine provided the officer with identification, which was relayed to dispatch. Officer Martin was informed that Mr. Shine had an outstanding warrant issued by the Warren Police Department. The officer returned to Mr. Shine’s vehicle and asked him to exit. He informed Mr. Shine he was under arrest for the outstanding warrant. Mr. Shine was searched incident to the arrest and the officer found no weapons or contraband on his person. Mr. Shine was placed in Officer Martin’s cruiser. At no point did the officer advise Mr. Shine of his Miranda rights.

Mr. Shine Lies Begin

Officer Martin transported Mr. Shine to the Warren city limits. On the way, Officer Martin asked Mr. Shine if he had anything illegal on his person that the officer may have missed during the pat down. The officer asks this question of anyone enroute to jail for safety reasons. He also advised Mr. Shine that if any contraband is taken into the jail it could lead to additional charges. Mr. Shine stated he may have a Percocet on him. The officer pulled over and had Mr. Shine exit the cruiser. The officer noticed what appeared to be a knotted baggy fall from Mr. Shine’s waist region. After placing Mr. Shine back in the cruiser, the officer searched the area, but could not locate the alleged bag. No Percocet was found on Mr. Shine’s person.

Mr. Shine is Transferred to the Warren Police Department

Officer Martin and Mr. Shine proceeded to the Warren city limits where they met with Detective Zach Jones of the Warren City Police Department. Officer Martin advised Det. Jones that he believed Mr. Shine had dropped a bag that potentially contained some contraband, but explained he was unable to retrieve the item. Det. Jones conducted an additional pat-down of Mr. Shine and placed him in his cruiser. At no point did either officer request Mr. Shine remove his shoes and socks.

Mr. Shine is Told for a Second Time that Entering Jail with Narcotics is Unlawful

Det. Jones took custody of Mr. Shine and proceeded to the Trumbull County Jail. The detective also asked Mr. Shine if he had any contraband on him. Similar to Officer Martin, Det. Jones noted he asks this question of all individuals being transported to jail for both officer and inmate safety. He additionally pointed out that transporting contraband into the jail would result in an additional charge. Mr. Shine denied having any contraband on him but, according to Det. Jones, he began to act nervously.

Contraband is Discovered in Mr. Shines Shoes

Upon arrival at the jail, a corrections officer (“CO”) took Mr. Shine into a pre- booking room and then Det. Jones followed the CO and Mr. Shine into the booking room. The CO had Mr. Shine remove his shoes and socks. Again, Det. Jones noted Mr. Shine acting nervously. After Mr. Shine removed his shoes and socks, Det. Jones noticed a baggy next to Mr. Shine’s foot. The detective emphasized that the baggy was not there when they entered the booking room and that he would have clearly noticed it if it had. Det. Jones additionally observed that the baggy and the substance in the bag were obviously flattened, as though it had been in a shoe and walked on.

Mr. Shine’s Shoes Were Filled with Cocaine

The baggy was retrieved and logged into evidence. The evidence was submitted to the Ohio Bureau of Criminal Investigation (“BCI”). After testing, BCI forensic scientist Anna Petro determined the substance contained cocaine.

Mr. Shine was Indicted for Illegal Conveyance

Mr. Shine was indicted on one count of illegal conveyance of drugs of abuse onto grounds of specified governmental facility, in violation of O.R.C. §2921.36(A)(2) and (G)(2), a felony of the third degree; he was also charged with one count of possession of cocaine, in violation of O.R.C. §2925.11(A) and (C)(4)(a), a felony of the fifth degree. 

Mr. Shine Files Motion to Suppress Filed, it is Denied, he is Found Guilty and Sentenced to Thirty Months in Prison

Mr. Shine filed a motion to suppress evidence asserting the officers, in the course of arresting and transporting Mr. Shine to the jail, engaged in custodial interrogations without issuing him necessary Miranda warnings. The trial court denied the motion and the matter proceeded to a jury trial. After hearing the evidence, Mr. Shine was found guilty on both counts. He was sentenced to serve a prison term of 30 months on the first count and six months on the second count. The trial court ordered the terms to be served concurrently. This appeal follows.

Two Appeals are Filed

Mr. Shine assigns two errors for our review. His first asserts:

“The trial court committed reversible error by denying Mr. Shine’s motion to suppress evidence in violation of Mr. Shine’s rights pursuant to the 4th and 14th Amendments to the United States Constitution and Article 1 Section 10 of the Constitution of the state of Ohio.”

 Miranda Case Law

[W]e must accept the trial court’s factual findings as true if supported by “What are now commonly known as Miranda warnings are intended to protect a suspect from the coercive pressure present during a custodial interrogation.” Cleveland v. Oles, 2017 – Ohio – 5834, citing Miranda v. Arizona 384 U.S. 436, 469 (1966). “A custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’” Oles at ¶ 9, quoting Miranda at 444. “If a suspect provides responses while in custody without having first been informed of his or her Miranda rights, the responses may not be admitted at trial as evidence of guilt.” Oles at ¶ 9, quoting Miranda at 479.

“Any statement, question or remark which is ‘reasonably likely to elicit an incriminating response’ is an interrogation.” State v. Knuckles, 65 Ohio St.3d 494, 495 (1992), quoting Rhode Island v. Innis, 446 U.S. 291, 301, (1980).

Mr. Shine was Not Given Miranda and was In Custody

It is uncontested that Mr. Shine was not given Miranda warnings by either officer. Moreover, it is also clear that Mr. Shine was in custody at the time any question the officers posed elicited an answer from Mr. Shine. With this in mind, Mr. Shine argues any statements Mr. Shine provided the officers regarding contraband in his possession should have been suppressed.

Initially, Mr. Shine does not elucidate which statements were elicited in violation of his right against self-incrimination. Hence, we must review the nature of the statements Mr. Shine offered and assess whether they were used in Mr. Shine’s prosecution. 

Officer Martin Asks an Un-Mirandized Question

Officer Martin asked Mr. Shine whether he had any contraband on his person. Mr. Shine stated he may have a Percocet. Although the officer observed what he thought was a bag dropping from Mr. Shine’s waist area, he was unable to find it and did not find a Percocet on Mr. Shine’s person. While Mr. Shine’s statement (even though apparently untrue) was used by the state, it was utilized as an aspect of the factual background of the case, not in aid of its prosecution of the underlying offenses. Mr. Shine was not charged with anything related to this exchange. In effect, Mr. Shine’s statement had nothing to do with the state’s proof of the charges for which Mr. Shine was convicted.

Det. Jones Asks an Un-Mirandized Question

Next, Det. Jones also asked Mr. Shine whether he had anything illegal on his person as the officer was transporting him to the Trumbull County Jail. Mr. Shine vehemently denied having any contraband. The detective emphasized that if Mr. Shine had anything illegal on his person and transports it into the jail, he would be charged with a third-degree felony. Mr. Shine repeatedly denied possessing any contraband. And, like Mr. Shine’s statement to Officer Martin, the state did not use Mr. Shine’s denial as a basis for its prosecution of the underlying charges. We discern no Miranda violation.

Neither Un-Mirandized Question Had Any Legal Impact

Moreover, Mr. Shine’s denial of possessing anything illegal does not implicate his right against self-incrimination.

Supreme Court of Ohio Case Law on Same Fact Pattern

There is No Constitutional Right to Lie

In State v. Cargile, 2009-Ohio-4939 the Supreme Court of Ohio determined that once an individual is arrested, and an officer admonishes the individual that he should tell the officer if he has any contraband on his person because he could be charged with an additional crime, the person’s denial does not implicate his or her right against self-incrimination. The Court determined the Mr. Shine’s argument, that a denial, which is false, triggers Miranda, was based on a faulty premise; namely:

“[T]hat the right to remain silent and avoid self-incrimination also includes the privilege of lying or providing false responses to direct questions. Despite the several warnings the officer gave Cargile about bringing drugs into a detention facility, Cargile actively denied possessing any drugs. The constitutional right to remain silent does not confer upon a defendant the privilege to lie … or the right to be protected from having to make difficult choices whether to invoke the right to remain silent. Thus, this constitutional protection does not apply to Cargile’s conduct.” Id. at ¶ 16.

State v. Cargile and the Inevitable Discovery Doctrine

Here, the trial court, in part, relied upon Cargile in denying Mr. Shine’s motion to suppress. Mr. Shine’s representation that he had a Percocet was apparently false; his repeated denial that he had no contraband was also false. Pursuant to Cargile, Mr. Shine’s right to remain silent and avoid self-incrimination was not implicated.1 The trial court did not err in premising its judgment on Cargile.

Footnote: 1. It is worth noting that, even if Mr. Shine invoked his right to avoid self-incrimination and remained silent, the result, in this case would be the same. Upon a more thorough search during the booking process, the incriminating evidence would have been inevitably discovered.

Public Safety Exception to Miranda

Moreover, the trial court also grounded its denial of Mr. Shine’s motion upon the “public-safety” exception to Miranda. Both the United States Supreme Court and the Supreme Court of Ohio have applied the public and officer safety exception to the Miranda warning requirement in cases in which police asked a suspect if he has a weapon. In New York v. Quarles, 467 U.S. 649, 652, 655-656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), the United States Supreme Court applied this exception to the Miranda requirement when an officer handcuffed a suspect after a pursuit in a supermarket. The suspect had an empty holster, and before reading him his rights, the officer asked him where the firearm was. Id. at 652. The Court held the officer’s question, under the circumstances of that case, was sufficient to trigger the public-safety exception. Id. at 655-656. The court reasoned:

The 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. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.  Id. at 657

Thus, even if the public-safety exception does not apply on this record, any error in failing to Mirandize Mr. Shine was harmless.

Mr. Shine’s first assignment of error lacks merit.
Mr. Shine’s second assignment of error asserts:
“Mr. Shine’s convictions are against the manifest weight of the evidence.”

Mr. Shine Contends He Did Not ‘Voluntarily’ Convey Narcotics Into the Trumbull County Jail

Mr. Shine contends that because the officers who conducted roadside searches of Mr. Shine testified they found no contraband on Mr. Shine and Mr. Shine denied possessing any illegal substances upon his conveyance to the Trumbull County Jail, “it is simply incomprehensible how Mr. Shine could be convicted of voluntarily conveying the substance to the facility.” This argument lacks merit.

A Search Incident to Arrest Does Not Typically Include a Search of Shoes and Socks

Officer Martin testified that, upon determining Mr. Shine had an outstanding warrant, he patted Mr. Shine down. The pat-down, however, was somewhat cursory and executed to make sure Mr. Shine had no weapons or obvious contraband on his person. Det. Jones similarly testified that his roadside search consisted of a simple pat down to ensure Mr. Shine was not armed or had no contraband. Both officers testified the roadside search did not entail a thorough search of Mr. Shine’s shoes and socks – searches which would inevitably occur upon his conveyance to the Trumbull County Jail on the outstanding warrant.

The roadside searches which, by both officers’ testimony, did not entail a full search of Mr. Shine’s shoes and socks, yielded no evidence that Mr. Shine possessed the contraband. This, however, does not preclude the reasonable inference that Mr. Shine knowingly possessed the cocaine in his shoe and/or sock and voluntarily transported the substance into the jail.

Mr. Shine Contends that Because the Correction Officer Did not Observe the Narcotics Come Out of His Sock It Did Not Happen

Mr. Shine additionally claims that because neither Det. Jones nor the CO, both of whom were present in the booking room at the time the cocaine was discovered, specifically witnessed Mr. Shine discard the contraband, there was inadequate, credible evidence to support the conclusion that the substance was in his shoe or sock. Again, this argument lacks merit.

Circumstantial Evidence Case Law

“[C]ircumstantial evidence and direct evidence inherently possess the same probative value.” State v. Fasline, 2015-Ohio-715, citing State v. Biros, 78 Ohio St.3d 426, 447, (1997). “Circumstantial evidence has been defined as testimony not grounded on actual personal knowledge or observation of the facts in controversy, but of other facts from which inferences are drawn, showing indirectly the facts sought to be established.”  State v. Payne, 2014 – Ohio – 4304.

Mr. Shine’s Narcotics Discovery is Textbook Circumstantial Evidence

Once inside the booking room, the CO had Mr. Shine sit down and remove his shoes and socks. Det. Jones was addressing some paperwork in the room, but noticed Mr. Shine began acting nervously. Once Mr. Shine removed his shoes and socks, the detective noticed a small plastic baggy on the floor next to Mr. Shine’s foot. The baggy was not there when the officers and Mr. Shine entered the room, and the detective testified that the baggy would have been “an elephant in the room” if it was on the floor upon their entry. Det. Jones emphasized that he always scans the floor of the booking room when he enters and there was nothing on the floor until Mr. Shine removed his shoes and socks. Furthermore, the detective testified that the baggy and the substance were flattened, as though someone was walking on the bag inside of a shoe. The substance was ultimately collected and tested positive for cocaine.

Although the detective did not directly witness the contraband falling from Mr. Shine’s shoe and/or sock, there was sufficient, credible circumstantial evidence that it was in Mr. Shine’s shoe when he entered the jail. The jury did not lose its way in convicting Mr. Shine of illegal conveyance of drugs of abuse onto grounds of specified governmental facility and possession of cocaine. Mr. Shine’s convictions are consistent with the manifest weight of the evidence.

Mr. Shine’s second assignment of error lacks merit.

For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.

Information for this article was obtained from State v. Shine, 2023 – Ohio – 2261.

State v. Shine, 2023 – Ohio – 2261 was issued by the Eleventh District Appellate Court and is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.

Lessons Learned:

  1. No Miranda Violation – The key takeaway from this case is that when law enforcement is transporting a suspect to jail and asks if he has anything else on his person that the officer has not discovered, then that question is not violative of the Fifth Amendment. Obviously the suspect is in custody and is being ‘questioned’ the two elements to the Miranda Warning.  However, the Eleventh District Court concluded that this question does not have be asked after a Miranda waiver.  The Eleventh District Court relied on a Supreme Court of Ohio case with the same fact pattern that it decided in State v. Cargile, 2009-Ohio-4939 “The constitutional right to remain silent does not confer upon a defendant the privilege to lie … or the right to be protected from having to make difficult choices whether to invoke the right to remain silent. Thus, this constitutional protection does not apply to Cargile’s conduct.”.
  2. Circumstantial Evidence – In State v. Todd, 2023 – Ohio – 2139 the First District Appellate Court opined “Circumstantial evidence and direct evidence have the same probative value.” See Is Probable Cause and Circumstantial Evidence Enough to Prove Proof Beyond a Reasonable Doubt?. Shine’s feeble argument that because the Corrections Officers did not specifically witness the narcotics fall out of his shoe or sock it was not his own. Jail changing rooms are constantly under observation during and between prisoners.  A baggie of cocaine on the ground would stick out like a rookie at roll call.  Mr. Shine’s legal argument that his cocaine must have been directly witnessed to be successfully prosecuted for Illegal Conveyance – O.R.C. §2921.36(A)(2) ‘knowingly convey … onto the grounds of a detention facility … any drug of abuse.” It was quickly dismissed by both the trial and appellate courts “Although the detective did not directly witness the contraband falling from Mr. Shine’s shoe and/or sock, there was sufficient, credible circumstantial evidence that it was in Mr. Shine’s shoe when he entered the jail.”.
  3. Pre-Sent Arms! Both Officer Tom Martin and Det. Zach Jones should be highly commended for their work on this case. Well done!

 

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