Does Miranda Warning Have to be Recorded?

How Should Narcotics be Weighed?  With or Without Filler?

Is Consent an Element of the Protective Sweep Doctrine?

 

State v. Mott

2023 – Ohio – 2268

Twelfth District Appellate Court

Warren County, Ohio

July 3, 2023

 

Mr. Mott is Sentenced to Fourteen to Nineteen and a Half Years

Mr. Derek Mott, appeals his convictions in the Warren County Court of Common Pleas on multiple counts of drug trafficking and drug possession. After the jury found Mr. Mott guilty, the trial court merged several counts, and sentenced Mr. Mott to a total mandatory prison term of 14 years to 19-and-one-half years.

Middletown Police Proactive Enforcement Begins with Drug Consumer

On Tuesday January 4, 2022, Middletown Police Officer Austin Renner and Officer Josh Singleton stopped an individual who was in possession of a syringe and suspected fentanyl. The individual told the officers that he got the drugs from Room 211 at the nearby Red Roof Inn.

Red Roof Inn Room 211 is Chock Full of Probable Cause

Officers Renner and Singleton went to Room 211 to make contact with the occupants. When the occupants answered the door, they identified themselves as Mr. Mott and Ms. Amanda Wright. The officers ran Mr. Mott and Wright’s information and learned that both had outstanding warrants. As a result, Mr. Mott and Wright were arrested and Officer Renner briefly entered Room 211 to conduct a protective sweep of the room. During the protective sweep, Officer Renner observed white powder on the nightstand and drug paraphernalia. Mr. Mott and Wright were then escorted to police cruisers.

The Red Roof Inn located at 3510 Commerce Drive Franklin Ohio 45005 – Room #211 was the location of Mr. Mott’s arrest.  Middletown Police discovered more drugs inside than in parts of the BCI Drug Lab … but was the discovery of the narcotics lawful?

Mr. Mott is Mirandized, Waives and Begins a Series of Inculpatory Statements

Officer Singleton testified that he read Mr. Mott his Miranda rights while Mr. Mott was seated in the back of a police cruiser. Mr. Mott waived his rights and informed Officer Singleton that there was approximately 11 ounces of fentanyl and 11 grams of methamphetamine in the hotel room.

A Search Warrant is Obtained for Room 211

Detectives with the Middletown Police Special Narcotics Division responded and began to prepare an application for a search warrant for Room 211. In an affidavit providing the factual basis for the search warrant Sergeant Wilcox averred:

On 01/04/2022 at approx. 2146 hrs. Uniformed Patrol Officers observed suspicious activity in the parking lot of the Red Roof Inn located at 3510 Commerce Drive Franklin Ohio 45005. Officers observed a vehicle to park [sic] in front of location and a subject to leave the vehicle in a hurried fashion. The vehicle then left the lot. Officers know that this location is a high crime/drug location. A [s]hort time later, the Officers observed the subject that left the vehicle walking at Commerce and SR 122. A consensual encounter with the subject resulted in a needle and a small amount of heroin being located on the subject. The subject stated that they had just purchased the heroin at room 211 at the Red Roof Inn. Further investigation at room 211, two subjects were found and detained from Room 211.  Mr. Mott was detained and found to be wanted by the Ohio Adult Parole Authority.  Mr. Mott stated that there was 11 grams of methamphetamine and 11 ounces of heroin in the room. Mr. Mott described where the drugs could be located in the room and stated that he was “fronted” the drugs.

The Plain View Doctrine Supports the Search Warrant

During a protective sweep of the room, a small mirror with residue was observed on the dresser of the room which the Officers identified as instruments and evidence of drug use.

A Second Miranda Warning and a Second Waiver

While waiting for the search warrant to be approved, Detective Mark Hoyle and Detective Jordan Wagers interviewed Mr. Mott at the Middletown Police Department. Detective Hoyle testified that he advised Mr. Mott of his Miranda rights, and that Mr. Mott waived those rights verbally and in writing.

Mr. Mott Explains his Business Model

During the course of the interview, Mr. Mott made multiple incriminating statements. When Detective Hoyle asked Mr. Mott what was in Room 211, Mr. Mott responded that he had crack cocaine, cocaine, methamphetamine, heroin, and marijuana. [He admitted to having more narcotics than some parts of the BCI drug laboratory.] Mr. Mott indicated that the drugs were in the drawer of the nightstand next to the bed and admitted that they were his. He informed the detectives that he had obtained the drugs about an hour before authorities arrived and that the drugs had been “fronted,” meaning that he was provided the drugs up-front to sell and that he would have to pay for them “on the back end.”

The Search Warrant is Executed

After speaking with Mr. Mott for approximately thirty minutes, the detectives learned that a judge had authorized a search warrant for Room 211 and therefore they halted the interview to execute the warrant. When they searched the nightstand, the detectives found the drugs as described by Mr. Mott. Throughout the room, the detectives also found a digital scale, foil wrapping cut into one-inch squares, a blender, Narcan, suspected cutting agents, and additional baggies of white powder.

Additional Inculpatory Statements about the Mott Business Model

After the search, the detectives returned to the Middletown Police Department to resume the interview with Mr. Mott. Detective Wagers testified that he reminded Mr. Mott of his Miranda rights, and that Mr. Mott agreed to continue the interview. During the follow-up interview, Mr. Mott again admitted ownership of the items found during the search. He also told the detectives that the one-inch foil pieces were used to package small amounts of drugs for sale.

Forensic Chemist Testifies to Pharmacy-Level Drugs Discovered

The drugs found in Room 211 were transmitted to the Miami Valley Crime Laboratory for analysis. A forensic chemist, Mr. Todd Yoak, tested and identified the substances recovered during the search. Mr. Yoak produced a laboratory report identifying the substances and weight of each found in the room. The result included: 304.18 grams of a mixture containing fentanyl, heroin, and MDMB-en-PINACA (a synthetic cannabinoid), 1.13 grams of cocaine, 3.76 grams of cocaine noted as being “off-white chunky material” and 11.35 grams of methamphetamine.

Indictment and Procedural History

On February 7, 2022, Mr. Mott was indicted on eight felony counts:

Count 1: Trafficking in a fentanyl-related compound, a felony of

the first degree;

Count 2: Possession of a fentanyl-related compound, a felony of the first degree;

Count 3: Trafficking in heroin, a felony of the first degree;

Count 4: Possession of heroin, a felony of the first degree;

Count 5: Aggravated trafficking in drugs (MDMB-en-PINACA), a felony of the second degree;

Count 6: Aggravated possession of drugs (MDMB-en-PINACA), a felony of the second degree;

Count 7: Aggravated possession of drugs (methamphetamine), a felony of the first degree;

Count 8: Possession of cocaine, a felony of the fifth degree.

In addition, Counts 1, 3, and 5, included specifications that Mr. Mott was a major drug offender.

Motion to Suppress Hearing

On March 15, 2022, Mr. Mott filed a motion to suppress. During the suppression hearing, Officer Renner and Officer Singleton testified that Mr. Mott was orally advised of his Miranda rights, that he indicated that he understood those rights, and that he agreed to speak with them. Similarly, Detective Wagers testified that Mr. Mott was orally advised of his Miranda rights at the Middletown Police Department and that Mr. Mott agreed to speak with him and Detective Hoyle. Detective Wagers stated that Mr. Mott was also provided with a card listing his Miranda rights in writing and that Mr. Mott signed the card. The card stated that Mr. Mott had been “advised of all my rights as contained on this card and I understand all of them and I wish to talk to you without having a lawyer present.” A copy of the signed card was admitted as Exhibit 3. Mr. Mott testified on his own behalf, denying that he was advised of his Miranda rights in Officer Renner’s cruiser. However, he admitted that Exhibit 3 contained his signature. Mr. Mott then stated that he had not slept or eaten prior to the interview at the Middletown Police Department.

Motion to Suppress is Overruled

After the hearing, the trial court overruled Mr. Mott’s motion to

suppress.

The case proceeded to a trial on September 27, 2022, during which the

relevant facts were submitted to the jury. Following deliberations, the jury found Mr. Mott guilty as charged. Mr. Mott filed a timely appeal, raising five assignments of error for review.

Does a Mixture of Narcotics Have to be Segregated in Weight?

As relevant here, the penalty sections of the drug trafficking and drug possession statutes establish a sentencing scheme where the degree of the offense is determined by the amount of the controlled substance. R.C. 2925.03; R.C. 2925.11. In Gonzalez II, the supreme court held that the total weight of the mixture of substances, including any applicable filler, controls the appropriate felony level. State v. Gonzales (“Gonzales II“), 2017-Ohio-777.  Accordingly, the state is not required to separate the controlled substance from the fillers, or other substances, and weigh only the pure drug. State v. Pendleton, 2020-Ohio-6833, citing Gonzales II at ¶ 9; State v. Tingler, 2023-Ohio- 834. Therefore, in a case where a mixture of both heroin and fentanyl are found in the approximate amount of 133 grams, a defendant may be found guilty of possessing both 133 grams of heroin and 133 grams of fentanyl.

Whether Mr. Mott could be sentenced for both offenses based upon the weight of a singular quantity of drugs is a different matter entirely than whether the jury could find him guilty.

Mr. Mott’s Legal Argument is Misstated

On appeal, Mr. Mott argues the trial court’s instructions as to the weight of the controlled substances were incorrect and misleading. However, in so doing, Mr. Mott misstates the applicable rulings from the supreme court. In his brief, Mr. Mott cites the supreme court’s decision in Pendleton, which involves the merger of drug sentences. In Pendleton, the supreme court determined that a criminal defendant’s right against Double Jeopardy is violated through the imposition of two punishments for the same, singular quantity of drugs where each drug is calculated as filler for the other offense. Pendleton, 2020-Ohio-6833. However, Pendleton does not state that the defendant could not be charged or found guilty of possessing multiple controlled substances contained in one mixture. Moreover, Pendleton does not overrule Gonzales II and, in fact, references the decision multiple times, favorably, and applies its “reasoning.” Id. at ¶ 15-16.

Does the State have to Prove What Affect Narcotics Would Have on a Person?

Without full appreciation for the supreme court’s ruling in Gonzales II, Mr. Mott argues that the jury should have been instructed that it could consider that the forensic chemist only tested a portion of the drugs. He points out that Yoak “merely took one sample of the 277-gram compound from the edge, rather than taking more sample … from the middle or bottom of the powder.” He further argues that some of the baggies “had negative results” and that “Yoak never testified that any of the seized items were, in fact, ‘drugs,’ or that the compound would have any affect [sic] on a person if ingested.”4

Footnote #4: As addressed in more detail in Mr. Mott’s second assignment of error, the state provided more than sufficient evidence that Mr. Mott possessed and trafficked fentanyl, heroin, MDMB-en-PINACA, cocaine, and methamphetamine. Furthermore, it was also not necessary for the state to show what effect the controlled substance would have on a person if ingested.

The State Did NOT Have to Prove What Was Narcotics and What was Filler in the Total Weight

Following review, we find the trial court did not commit error, much less plain error, by instructing the jury on the weight of the drugs. As stated above, the amount of the controlled substance is determined by the total weight of the mixture which may include fillers or other drugs. Gonzales II, 2017-Ohio-777. The trial court’s decision fully and accurately conveys the applicable law, which clearly states that total weight includes filler, adulterants, or other drugs. It also states that the total weight of the substance is applicable to each drug individually. Thus, the jury was provided with a full and complete instruction that allowed the jury to weigh the evidence and discharge its duty as the factfinder. As a result, Mr. Mott fails to show there was a “deviation from a legal rule” for purposes of establishing plain error because the jury was provided with fair and correct statement of the law. Barnes, 94 Ohio St.3d at 27. Therefore, we overrule Mr. Mott’s first assignment of error.

Mr. Mott Claims there was Insufficient Evidence to Convict Him

Mr. Mott’s second assignment of error argues that his convictions for trafficking in drugs and possession of drugs were based upon insufficient evidence. Mr. Mott’s argument mainly focuses on his claim that “[t]he government failed to prove beyond a reasonable doubt that Appellant-Defendant knowingly possessed distributed, trafficked, or sold any “Drugs”.

What Did the State Have to Prove?

The jury found Mr. Mott guilty of multiple counts of trafficking and possession of drugs in violation of O.R.C. §2925.03(A)(2) and §2925.11(A). To secure a guilty verdict against Mr. Mott for trafficking in drugs, the state was required to prove beyond a reasonable doubt that Mr. Mott knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed a controlled substance … when he knew or had reasonable cause to believe that the controlled substance … was intended for sale or resale by either himself or another person. O.R.C. §2925.03(A)(2). To secure a guilty verdict against Mr. Mott for possession of drugs, the state was required to prove beyond a reasonable doubt that Mr. Mott knowingly obtained, possessed, or used a controlled substance. O.R.C. §2925.11(A).

The State had Sufficient Evidence to Prove Guilt

After reviewing the record, we find Mr. Mott’s convictions are supported by sufficient evidence. The state presented testimony and evidence which the jury could have found all the essential elements of the offense proven beyond a reasonable doubt. Evidence established that Mr. Mott possessed multiple controlled substances that were found in his hotel room. Testimony from Mr. Todd Yoak identified the substances found as fentanyl, heroin, MDMB-en-PINACA, cocaine, and methamphetamine, and described the respective schedules for those substances. The lab report identifying the substances and their respective weights was admitted into the record.

Mr. Motts Inculpatory Statements and Drug Instrumentalities were Sufficient to Prove Guilt

The state also produced evidence that Mr. Mott was trafficking in those controlled substances. The state presented evidence that Mr. Mott possessed instrumentalities of trafficking, such as the blender, a digital scale, suspected cutting agents. Mr. Mott himself admitted that the drugs were his and that he was “pushing them.” Mr. Mott further indicated that the foil packets were “his thing” and that the drugs were “fronted” and would need to be paid for on “the back end.”

Mr. Mott Emphasizes Facts of ‘Little Relevance’

On appeal, Mr. Mott argues that the state was required to prove that the controlled substances were “drugs” as defined in O.R.C. §4729.01(E)(3), which states that a drug is “any article, other than food, intended to affect the structure or any function of the body of humans or animals.” He suggests the state was required to prove that the drug had a concentration that “negates accidental contamination and was prepared with the intent to ‘effect the structure or any function’ of the human body.” Mr. Mott further addresses other perceived deficiencies in the record and criticizes the manner in which the state proved its case. For example, Mr. Mott emphasizes collateral points of little relevance such as there was no DNA or fingerprint evidence linking him to the seized items and that he “had no cash” and did not “rent” the room.

Did the State Have to Prove the Purity of the Narcotics?

However, Mr. Mott’s arguments are without merit. The state was required to prove that Mr. Mott possessed and trafficked “controlled substances,” which it did. The determination of whether a specific substance is a controlled substance is a question of law for the court, not a question of fact for the jury. In this case, the state presented testimony from the forensic chemist, Mr. Yoak, who testified that the substances he tested were positive for heroin, fentanyl, MDMB-en- PINACA, cocaine, and methamphetamine. He further stated that fentanyl, cocaine, and methamphetamine are Schedule II substances and heroin and MDMB-en-PINACA are Schedule I substances. By law, those substances are controlled substances. Furthermore, contrary to Mr. Mott’s arguments otherwise, the state was not required to demonstrate the purity of the substance or the substance’s impact on the function of the human body. 

Mr. Mott Makes a Series of Feeble Claims in His Defense

In addition, the criticism of the manner in which the state presented its case goes more to the weight of the evidence rather than sufficiency. The state was not required to prove that Mr. Mott had “drugs, weapons, or other incriminating items” on his person. Nor was the state required to present DNA or fingerprint evidence.5

Footnote #5: Mr. Mott raises a variety of other issues that have no bearing on whether his conviction is supported by sufficient evidence. For example, Mr. Mott argued that law enforcement did not obtain security footage and there was no attempt to determine whether another individual was seen fleeing the scene.

The Twelfth District Nestles the Feeble Claims in the Jurisprudential Waste Basket

In this case, the state presented overwhelming evidence of Mr. Mott’s guilt. Mr. Mott himself admitted to possessing and trafficking in the controlled substances that were found in his hotel room. It was Mr. Mott who told the authorities where exactly the drugs would be found and that he was “pushing” them. The identity and amount of those substances were then confirmed through laboratory testing. The state presented more than sufficient evidence to support Mr. Mott’s convictions.

Accordingly, Mr. Mott’s second assignment of error is overruled.

Was there a Miranda Violation and Unreasonable Protective Sweep of Room 211?

In his third assignment of error, Mr. Mott argues the trial court erred by denying his motion to suppress. He argues that the search warrant relied upon statements taken in violation of Miranda and the “nonconsensual search of Room 211.” Mr. Mott maintains the drugs seized from Room 211 should have been suppressed as fruit from “unconstitutional statements.” He also argues that the statements he made “in violation of Miranda” should have been suppressed.

Must a Miranda Warning be Recorded?

On appeal, Mr. Mott claims that he was not provided with Miranda warnings and that the advisement of his Miranda rights should have been recorded. He states there is “no record of the Miranda warning because none was given in the first place.” He also argues that he was not in “a proper mental state” when he was interrogated by the detectives at the Middletown Police Department because he was sleep deprived and had “not eaten in over 24 hours.” He mentions that Officer Renner testified that he searched the hotel room “without any mention of consent,” even though he does not address that the initial entry into the hotel room by Officer Renner was for a “protective sweep.” Mr. Mott concludes by arguing that the evidence used to support the issuance of the search warrant was the product of the “fruit” of an “unconstitutional interview and protective sweep.” He claims that drugs seized from Room 211 should have been suppressed “as a fruit of the unconstitutional statements” and “the statements obtained in violation of Miranda and the due process clause of the XIV Amendment should have been suppressed.”

Facts Get in the Way of Mr. Mott’s Legal Argument

Following review, we find Mr. Mott was provided with his Miranda rights and the waiver of his Miranda rights was done knowingly, intelligently, and voluntarily. As an initial point, no Ohio law requires that Miranda waivers must be signed or recorded in order to be valid. Officers Renner and Singleton both testified that Mr. Mott was provided with his Miranda rights and that Mr. Mott indicated that he understood his rights and agreed to speak with Officer Singleton. The conversation he had with Officer Singleton was brief. During that time, Mr. Mott stated that there was approximately 11 ounces of fentanyl and 11 grams of methamphetamine in the hotel room. Both officers testified that Mr. Mott was not promised anything nor threatened, and that Mr. Mott did not ask to stop the conversation or request an attorney.

Mr. Mott Claims he was in Discomfort During his Police Station Interview

When Mr. Mott was taken to the Middletown Police Department, he was again advised of his Miranda rights both before the first portion of the interview and before the interview resumed following the execution of the search warrant. Mr. Mott was also provided with a card listing the Miranda rights in writing that he signed, and which stated that Mr. Mott had been “advised of all my rights as contained on this card and I understand all of them and I wish to talk to you without having a lawyer present.” While Mr. Mott claims that he was sleep-deprived and hungry, the law enforcement officers and detectives who spoke with him did not notice Mr. Mott to be experiencing discomfort or exhaustion. At one point during the suppression hearing Mr. Mott answered affirmatively that he was “comfortable and aware of what was going on” while he was being interviewed at the Middletown Police Department.6

Footnote #6: Detective Wagers remembered hearing Mott’s stomach make a noise but stated that Mott was provided with food and drink and was allowed to consume them. He also indicated that Mott would have been permitted a bathroom break if he had requested one. Mott acknowledged that he was provided with food and drink and stated during the suppression hearing that “[t]hey brought me a pop and some snacks, that’s about it. But I didn’t – – I didn’t eat anything.” It is unclear what other accommodation Mott could have been requesting.

Court Holds Mr. Mott was Properly Mirandized and Gave a Valid Waiver

Upon review of the record, we find competent, credible evidence to support the trial court decision that Mr. Mott was advised of his Miranda rights and that he provided a valid waiver of those rights.

Did Middletown Police Search Room 211 or Did the Officers Conduct a Protective Sweep?

Furthermore, Mr. Mott mentions, but does not address in detail, that Officer Renner searched his hotel room “without any mention of consent.” He later claims that the search warrant relied upon the “nonconsensual search of Room 211.” However, this argument ignores the fact that Officer Renner only conducted a protective sweep of Room 211 following Mr. Mott’s arrest. A “protective sweep” is a quick and limited survey of premises conducted to protect the safety of police officers or protect destruction of evidence by unknown, potential occupants. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Maryland v. Buie, 494 U.S. 325, 327, (1990).

Consent is NOT an Element to a Protective Sweep

As a result, not only is Mr. Mott’s cursory argument with regard to “consent” lacking, because consent is not necessary for a brief protective sweep of premises, but it also is an argument that cannot now be raised for the first time in this appeal.

Court Determines that the Protective Sweep was Lawful

Upon review of the record, we find the trial court did not err in denying Mr. Mott’s motion to suppress. The trial court’s decision was supported by competent, credible evidence. The statement Mr. Mott made following his arrest was appropriately included in the application for the search warrant and all the statements and admissions he made were admissible at trial. Furthermore, Mr. Mott failed to challenge the validity of the protective sweep below and now only argues that it was without proper consent. Mr. Mott’s third assignment of error is overruled.

There was an additional appeal of Ineffective Assistance of Counsel that too was overruled.

Information for this article was obtained from State v. Mott, 2023 – Ohio – 2268.

State v. Mott, 2023 – Ohio – 2268 was issued by the Twelfth District Appellate Court and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.

Lessons Learned:

  1. When do Custodial Interrogation Interviews have to be Recorded? All custodial interrogation of a suspect for aggravated murder, murder, voluntary manslaughter, first or second-degree involuntary manslaughter or vehicular homicide, rape, attempted rape or sexual battery that occur in a place of detention and are recorded are presumed voluntary. See O.R.C. §2933.81. Here Drug Trafficking is not one of the crimes that requires recording.  Though it is always best to record a Miranda Warning and subsequent interview, the Middletown Police did not violate any legal requirement to record Mr. Mott’s interview. For more on Custodial Interrogation see: https://www.objectivelyreasonable.com/category/custodial-interrogation/
  2. Can Filler be Included in the Total Weight of Cocaine? In 2017 the Supreme Court of Ohio decided State v. Gonzales, 2017 – Ohio – 777 as it held “Giving effect to the statute as a whole and to the intent of the legislature as expressed in the words of the statute, we conclude that the applicable offense level for cocaine possession under O.R.C. §2925.11(C)(4) is determined by the total weight of the drug involved, including any fillers that are part of the usable drug.”. Id at 18. Here Mr. Mott’s narcotics weight properly included the fillers for purposes of his sentencing that resulted in him being titled a Major Drug Offender.
  3. Protective Sweep Doctrine – In the past few years several thousand Ohio law enforcement officers have received my training on the Protective Sweep Doctrine. As trained and briefly discussed in State v. Mott, the doctrine was established in Maryland v. Buie, 494 U.S. 325 (1990)  “We … hold that as incident to the arrest the officer could, as a precautionary matter and without probable cause or reasonable suspicion look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.”.  In this case Mr. Mott was arrested in a Red Roof Inn hotel room on a valid, verified, active warrant and consequently, the only room that would be ‘immediately adjoining’ the hotel room would be the bathroom.  The protective sweep conducted by Middletown Police Officer Austin Renner comported with the Protective Sweep Doctrine and the white powder and drug paraphernalia were observed under the Plain View Doctrine.  Mott made a feelbe attempt to challenge the Officer Renner’s protective sweep because Mr. Mott did not consent to the sweep.  However, consent is not an element to the Protective Sweep Doctrine. For more information on the Protective Sweep Doctrine see: Does this Red Jogging Suit Make Me Look Felonious?.
  4. Plain View Doctrine – The three prong Plain View Doctrine was established by the U.S. Supreme Court in 1990. 1) The officer must be legally on the premises from where the observation is made; 2) The officer must not violate the Fourth Amendment to make the observation and 3) The incriminating nature of the item must be immediately apparent. Horton v. California, 469 U.S. 128 (1990). Consequently, Officer Renner conducted a textbook example of the Plain View Doctrine.  For more information on the Plain View Doctrine see: https://www.objectivelyreasonable.com/category/plain-view/
  5. Pre-Sent Arms! Officer Austin Renner, Officer Josh Singleton, the unnamed Middletown detectives and the Warren County Prosecutors Office should be highly commended for investigating, arresting and successful prosecution of a Major Drug Offender. Well done!

 

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Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.