Both narcotic possessors made a feeble attempt to utilize the “not my bag” defense.

The facts of traffic stop on July 23, 1995 in Wyoming are eerily similar to the traffic stop conducted by Knox County Sheriff’s Sergeant David Devolld on March 27, 2021. 

 

State v. Schneider

2023 – Ohio – 3572

Fifth District Appellate Court

Knox County, Ohio

October 3, 2024

Anonymous Tip Initiates an Investigation

On Saturday March 27, 2021 Knox County Sheriff’s Sergeant David Devolld was working the day shift, when he received an anonymous tip that Ms. Jessica Sweet, an individual with an outstanding statewide warrant, would be in Knox County. Sergeant Devolld learned Ms. Sweet’s destination was the Ohio Bureau of Motor Vehicles Title Department (“BMV”) located at 671 North Sandusky Street, Mount Vernon, Ohio.

Ms. Jessica Sweet was arrested outside of the Ohio Bureau of Motor Vehicles Title Department, 671 North Sandusky Street, Mount Vernon, Ohio.  The narcotics in the felonious pink igloo lunch box would the subject of Mr. Brian Schneider conviction and appeal.

Jessica Sweet is Reminiscent of David Young

Sergeant Devolld, Knox County Sheriff’s Deputy Masen Gilbert, and officers from the Mount Vernon Police Department arrived at the BMV and made contact with Ms. Sweet. Ms. Sweet and Mr. Brian Schneider, who was a passenger, were removed from the vehicle. Ms. Sweet was placed under arrest. Mount Vernon Police Department Patrolman Patience Weiser conducted a search of Ms. Sweet, during which the officer located a loaded hypodermic needle in the pocket of Ms. Sweet’s coat.

*The comparison of Jessica Sweet and David Young will be provided in Lessons Learned.

Probable Cause to Search the Vehicle

After the hypodermic needle was discovered on Ms. Sweet’s person, Sergeant Devolld and Deputy Gilbert determined they had probable cause to search the vehicle. Deputy Gilbert conducted the search, during which he found a pink bag on the floorboard of the front passenger seat as well as a black bag behind the passenger’s seat. Inside the black bag, Deputy Gilbert discovered multiple syringes, rubber bands or tie-offs, two meth pipes, and an eyeglass case which contained multiple baggies of what he believed to be crystal methamphetamine. Deputy Gilbert also noticed the odor of vinegar emanated from the bag. The officer explained tar heroin has a vinegar scent to it.

Mr. Schneider Claims Thirty Days of Sobriety

Deputy Gilbert subsequently placed Mr. Schneider in handcuffs and advised him of his Miranda Rights. Mr. Schneider agreed to speak with Deputy Gilbert. When asked about his drug usage, Mr. Schneider admitted he used heroin, but had been clean for approximately one month.

Mr. Schneider is Reminiscent of Sandra Houghton

Mr. Schneider denied owning the black bag and stated he did not know to whom it belonged. Deputy Gilbert brought Mr. Schneider over to the vehicle. Mr. Schneider admitted the pink bag located on the floorboard of the front passenger’s seat belonged to him and Ms. Sweet. Mr. Schneider also indicated he owned the gray jacket found in the vehicle. Deputy Gilbert handed Mr. Schneider to another officer and proceed to speak with Ms. Sweet, who had been placed in a cruiser.

*The comparison of Mr. Schneider and Sandra Houghton will be provided in Lessons Learned.

Thirty Days of Sobriety Included Carrying Around a Digital Scale with Heroin Residue

After Deputy Gilbert advised Ms. Sweet of her Miranda Rights, Ms. Sweet answered a few questions before terminating the inquiry. During the questioning, Ms. Sweet advised Deputy Gilbert she and Mr. Schneider were homeless. Deputy Gilbert returned to the vehicle and searched the gray jacket, in which he found a wallet containing Mr. Schneider’s information and a black digital scale with white residue on it. Based upon the large quantity of drugs found, Sergeant Devolld and Deputy Gilbert decided to contact Detective Terry Wolfe, a narcotics detective with the Knox County Sheriff’s Office.

The Felonious Pink Igloo Lunch Box

Detective Wolfe arrived at the scene and spoke with Sergeant Devolld and Deputy Gilbert. Detective Wolfe conducted a second search of the vehicle, then assisted in sorting the evidence and transporting it back to the sheriff’s office. Once there, Detective Wolfe conducted a more thorough search of the items seized. Inside the pink bag, which was described as an Igloo lunch box, Detective Wolfe located a prescription bottle with Mr. Schneider’s name printed on the label, small packages of cotton balls, alcohol wipes, electric toothbrush heads, a Midol bottle containing a crystal-like substance, Mr. Schneider’s W-2 form, and multiple documents with Mr. Schneider and Ms. Sweet’s names on them. Inside the black bag, Detective Wolfe found a large amount of methamphetamine, tar heroin, two glass smoking pipes, multiple silver containers, 54 unused syringes, bags of cotton balls, 39 blue rubber bands or tie-offs, an electric toothbrush, hand cream, bandages, and alcohol wipes. Detective Wolfe explained how the silver containers, the cotton balls, syringes, and tie-offs are utilized by individuals using illegal substances such as meth, heroin, and tar heroin. The black digital scale found in Mr. Schneider’s gray jacket was sent to the Central Ohio Regional Crime Lab for testing. The white residue found on the scale was determined to be heroin.

Indicted

On April 5, 2021, the Knox County Grand Jury indicted Mr. Schneider on one count of aggravated possession of drugs, in violation of O.R.C. §2925.11(A), a felony of the second degree; one count of aggravated trafficking in drugs, in violation of O.R.C. §2925.03(A)(2), a felony of the second degree; one count of possession of heroin, in violation of O.R.C. §2925.11(A), a felony of the third degree; one count of trafficking in heroin, in violation of O.R.C. §2925.03(A)(2), a felony of the third degree; one count of possessing drug abuse instruments, in violation of O.R.C. §2925.12(A), a misdemeanor of the second degree; and one count of illegal use or possession of drug paraphernalia, in violation of O.R.C. §2925.14(C)(1), a misdemeanor of the fourth degree. The trial court issued a statewide warrant for Mr. Schneider’s arrest on April 5, 2021.

Ms. Sweet Testifies to Perpetrate a Fraud and Mr. Schneider’s Ignorance

Ms. Sweet testified on Mr. Schneider’s behalf. Ms. Sweet indicated she and Mr. Schneider traveled to the BMV in Mount Vernon to meet her niece in order to transfer a vehicle into her niece’s name. Ms. Sweet stated she and Mr. Schneider borrowed his brother’s vehicle that morning and, while Mr. Schneider was getting ready, she put the drugs into the car. Ms. Sweet added Mr. Schneider specifically told her not to have drugs in his brother’s vehicle. Ms. Sweet admitted she was involved in a similar incident in which she had drugs in her vehicle, the vehicle was impounded, and she was ultimately sentenced to prison. Ms. Sweet insisted Mr. Schneider had no knowledge that narcotics were in the vehicle. She added the drug paraphernalia also belonged to her. On cross-examination, Ms. Sweet acknowledged she was not permitted to have the vehicle in her own name due to an outstanding warrant. When asked, “So you came up here specifically to perpetrate a fraud on the BMV by putting the vehicle in [your niece’s] name because you couldn’t have it in your name,” Ms. Sweet responded, “I suppose.”

Guilty on All Counts

After hearing all the evidence and deliberating, the jury found Mr. Schneider guilty of aggravated possession of drugs (Count One), aggravated trafficking in drugs (Count Two), possession of heroin (Count Three), possessing drug abuse instruments (Count Four), and illegal use or possession of drug paraphernalia (Count Five). The trial court conducted a sentencing hearing on December 15, 2022. The trial court merged Count One with Count Two and Count Three with Count Four for purposes of sentencing. The trial court ordered Mr. Schneider serve an indefinite term of imprisonment of a minimum of five years to a maximum of seven and one-half years on Count Two, a definite term of imprisonment of 30 months on Count Four, and a definite term of imprisonment of three (3) months on Count Five, to be served concurrently. The trial court also imposed fines, but vacated such due to Mr. Schneider’s indigency. The trial court memorialized Mr. Schneider’s sentence via Sentencing Entry filed December 20, 2022.

Mr. Schneider Claims He Lacked Possession of the Narcotics Nestled Next to His Prescription Bottle and His W-2

Mr. Schneider argues he was merely a passenger in a vehicle he did not own, and Ms. Sweet, the driver, testified Mr. Schneider did not have knowledge of the narcotics or drug paraphernalia found in the vehicle. Mr. Schneider concludes there was no evidence to support a finding he knowingly possessed or trafficked the narcotics. We disagree. 

Established Case Law on the Constructive Possession Doctrine

To establish constructive possession, the evidence must prove the defendant was able to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351(1976).

Review of the Facts

Upon review of the evidence as set forth in our Statement of the Case and Facts as well as the testimony presented at trial, we find Mr. Schneider’s convictions were not against the manifest weight of the evidence or based upon insufficient evidence.

Detective Wolfe testified he discovered inside the pink bag, a prescription bottle with Mr. Schneider’s name printed on the label, Mr. Schneider’s W-2 form, and multiple documents with Mr. Schneider and Ms. Sweet’s names on them. Mr. Schneider admitted the pink bag located on the floorboard of the front passenger’s seat belonged to him and Ms. Sweet. Mr. Schneider also claimed ownership of the gray jacket found in the vehicle. A digital scale with heroin residue on it was found in the gray jacket. Although Mr. Schneider denied ownership of the black bag, the bag was located on the back passenger seat within his immediate reach.

“Multiple individuals may constructively possess a particular item simultaneously”

The fact Ms. Sweet was the driver and was convicted of possession of the narcotics found in the vehicle did not prohibit the jury from finding Mr. Schneider also constructively possessed the same items. Possession may be individual or joint. State v. Davis, 2022-Ohio-577. Multiple individuals may constructively possess a particular item simultaneously.

Mr. Schneider exercised Dominion and Control Over the Narcotics

We find the jury could reasonably infer from the evidence presented at trial Mr. Schneider exercised dominion and control over the drugs and drug paraphernalia found in the vehicle.

Appel is Denied

Mr. Schneider’s sole assignment of error is overruled.

The judgment of the Knox County Court of Common Pleas is affirmed.

Information for this article was obtained from State v. Schneider, 2023 – Ohio – 3572.

State v. Schneider, 2023 – Ohio – 3572 was issued by the Fifth District Appellate Court on October 3, 2023 and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Established Case law Wyoming v. Houghton, 525 U.S. 295 (1999) – On Sunday July 23, 1995 Wyoming Trooper Robert Baldwin stopped Mr. David Young for speeding and a burned-out brake light. Upon first approach he observed Mr. Young possessed a hypodermic needle in his shirt pocket.  Young admitted he used the needle to take drugs.  There were two female passengers in the car and one was Ms. Sandra Houghton.  Based on the needle Tr. Baldwin searched the vehicle and discovered a purse with Ms. Houghton’s driver’s license.    A search of the purse revealed narcotics and drug paraphernalia.  Ms. Houghton denied knowing anything about the narcotics in her purse. Ms. Houghton was convicted and appealed her case to the U.S. Supreme Court that on Monday April 5, 1999 upheld her conviction “We hold that police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.”.  Wyoming v. Houghton, 525 U.S. 295 (1999)  For more information on the Houghton case see: “Not my Bag!” Defense Fails AND Expands the Motor Vehicle Exception
  2. Eerily Similar – The facts of traffic stop on July 23, 1995 in Wyoming are eerily similar to the traffic stop conducted by Knox County Sheriff’s Sergeant David Devolld on March 27, 2021. Additionally, Ms. Sweet’s possession of a hypodermic needle is eerily similar to Mr. Young’s possession of his hypodermic needle … AND(!) … Ms. Houghton’s claim that she was unaware of narcotics in her purse is eerily similar to Mr. Brian Schneider’s denial of his narcotics in his pink igloo lunch box.  Devolld’s search of Mr. Schneider’s pink igloo lunch box was based on the probable cause established by Ms. Sweet’s possession of a hypodermic needle.  The scope of the vehicle’s interior is limited by the object of the search.  In this case the object of the search was for narcotic which is why opening a pink igloo lunch box was objectively reasonable.
  3. Pre-Sent Arms! Knox County Sheriff’s Sergeant David Devolld, Deputy Masen Gilbert, Detective Terry Wolfe and officers from the Mount Vernon Police Department should all be highly commended for their legal prowess in apply the Houghton case to the investigation of Mr. Brian Schneider. Well done!

Does your agency train on probable cause searches?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.