State v. Ware

• Decision Date: 23 September 2019
• Docket Number: No. 18CA3669,18CA3669
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Reginald WARE, Defendant-Appellant.
• Court: Ohio Court of Appeals

145 N.E.3d 973

2019 Ohio 3885

STATE of Ohio, Plaintiff-Appellee,

v.Reginald WARE, Defendant-Appellant.

No. 18CA3669

Court of Appeals of Ohio, Fourth District, Ross County.

Released: September 23, 2019

DECISION AND JUDGMENT ENTRY

McFarland, J.

{¶1} This is an appeal from a Ross County Court of Common Pleas judgment entry convicting Appellant, Reginald Ware, of tampering with evidence. Appellant asserts that the trial court erred when (1) it denied his motion to suppress the evidence, and (2) it denied his motion to exclude witness testimony at the suppression hearing after a violation of the court's order for separation of witnesses. After reviewing the law and the record, we find Appellant's first assignment of error has merit. Therefore, we vacate Appellant's conviction, reverse the trial court's judgment to the extent that it denied Appellant's motion to suppress, and remand the case to the trial court for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

{¶2} After being stopped for a Chillicothe ("City") traffic ordinance violation on April 26, 2017, officers arrested Appellant after he allegedly tried to conceal or ingest a baggie filled with white powder. Officers believed that he was trying to conceal contraband. Appellant allegedly spit out the bag onto the jail floor where its contents spilled. The baggie was confiscated by law enforcement.

{¶3} On June 16, 2017, the State returned an indictment charging Appellant with tampering with evidence in violation of R.C. 2921.12, a third degree felony.

{¶4} On September 6, 2017, Appellant filed a motion to suppress all evidence related to the traffic stop on April 26, 2017, which included the baggie and the results of a urine test. Appellant argued that the police lacked probable cause to initiate the traffic stop, detained Appellant longer than necessary to complete the traffic stop, and police did not have Appellant's consent to have his urine withdrawn and tested.

{¶5} On February 2, 2018, the trial court held a suppression hearing during which the following testimony was elicited.

{¶6} The State's first witness, Officer Christopher King, a canine officer for the Chillicothe Police Department, testified that on April 26, 2017 he headed to the Dairy Queen on North Bridge Street in Chillicothe after being informed that Appellant was at that location, and then was backup officer for the officer who initiated a traffic stop of Appellant. Officer King testified that he was the second officer on the scene and estimated that he arrived one to two minutes after the traffic stop by Officer Rhodes. Officer King testified that fellow Officer Short arrived shortly thereafter. Officer King testified that once he was at the scene, he was instructed to deploy his canine for a "free air sniff" around Appellant's vehicle. Officer King then narrated to the court his body camera video of his canine circling Appellant's vehicle and then sitting, which, according to Officer King, was an indication the canine had detected drugs. Officer King testified that Officer Rhodes then removed Appellant from his vehicle. Officer King testified that once Appellant was out of his vehicle, it appeared that he attempted to swallow something, and tried to "evade" the officers. Officer King testified that he observed Appellant using his fingers to "shove stuff down his throat," and consequently Officer King did not believe Appellant was choking, but instead was attempting to swallow contraband.

{¶7} Officer King testified that based on his canine's indication, he searched Appellant's vehicle and discovered marijuana. The court observed a portion of Officer King's body camera video of the incident during his testimony.

{¶8} On cross examination, Officer King testified that he was on his way to Appellant's location prior to the traffic stop because officers were aware of Appellant's criminal history, as Officer King explained: "Yes. You know, this - - we don't do this to ordinary citizens. We take totality of the circumstances from the tips we receive plus prior engagements and from the - - you know, any informant information. You know, I believe it's our duty to protect our city and these people are going to come to our attention and their [sic ] either going to confirm or dispel any of these tips." When asked about his reference to "tips," Officer King testified that the department had received tips that Appellant had trafficked drugs at "Beau Circle" and "Columbus Street," and while he had not followed up on any of the tips, his unit had. However, Officer King admitted that he had not received any tips that Appellant had engaged in trafficking that day.

{¶9} After the conclusion of Officer King's testimony, the judge asked several questions. The judge noted that Appellant was charged with destroying evidence. He then asked the prosecutor what evidence she was referring to and prosecutor responded that the baggie that Appellant had in his mouth contained cocaine. The prosecutor stated that the baggie was recovered once Appellant was at the jail after he vomited, and that the substance in the baggie tested positive for cocaine. She testified that after Appellant arrived at the jail they took him to the hospital because they feared he might have consumed some of the cocaine. The prosecutor further stated that Appellant was treated and released back to jail. The prosecutor stated that a urinalysis confirmed that cocaine was in Appellant's urine. Finally, the prosecutor stated that the baggie was in evidence "to be sent off."

{¶10} The State's next witness, Sargent Short, testified that at the time of Appellant's arrest, he was working in the Drug Interdiction Unit. Sargent Short testified that he heard over the radio that Officer Rhodes had made a traffic stop and he proceeded to the Dairy Queen as backup. The State proceeded to show the video from Sargent Short's body camera. Sargent Short testified that upon arriving he was informed by Officer King that he had recovered drugs from Appellant's vehicle on another occasion. Sargent Short testified that because Officer Rhodes was having a conversation with Appellant on the driver side of the vehicle, he positioned himself near the passenger side of the vehicle when he noticed Appellant was breathing heavily and putting a lot of food in his mouth. Sargent Short testified that because of Officer King's information and Appellant's actions, he ordered Officer King to "run" his canine around Appellant's vehicle while Officer Rhodes was verifying Appellant's information.

{¶11} Sargent Short testified that after Officer's King's canine alerted to Appellant's vehicle, the officers asked Appellant to exit his vehicle. Sargent Short testified that he noticed a strong odor of an air fresher as Appellant exited his vehicle, which is often used to cover drug odors, and that Appellant had a "bulge" in his mouth and was chewing. Sargent Short testified that after Appellant spit out some food, he asked Appellant to open his mouth wider, but Appellant stuck his fingers in his throat and started gagging and coughing. Sargent Short testified that he told Appellant to cough

thinking Appellant might be choking. However, he testified that Appellant was pulling away and continuing to stick his fingers in his mouth until he pulled out a baggie that contained a white substance, then Appellant's demeanor changed and he fled. Sargent Short testified that the officers caught Appellant and handcuffed him. Sargent Short testified that Appellant still had a "bulge" in his mouth and he was still chewing.

{¶12} On cross examination, Sargent Short testified that he saw Appellant pull a baggie with a white substance out of his mouth, but admitted that it could not be seen in his body camera video.

{¶13} After the conclusion of Sargent Short's testimony, defense counsel moved to strike any testimony from the State's witnesses "moving forward from anybody that was outside" based on the State's violation of the court's witness separation order. Defense counsel asserted that the prosecutor spoke to Sargent Short outside the courtroom after he was finished testifying about his testimony, within earshot of potential witnesses. Counsel alleged he could hear the discussion in the courtroom and therefore assumed that witnesses were within earshot of that discussion.

{¶14} In response, the prosecutor admitted to talking to Sargent Short, but asserted the officer closest to her was not testifying in Appellant's case. The prosecutor further asserted that she did not believe that the two officers who had already testified, Officer King and Sargent Short, would have had time to discuss their testimony and neither testified differently from what their video showed. The court then summoned the State's additional witnesses, Detectives Wallace and Taczak, and Officer Rhodes, into the courtroom. The court notified the witnesses of the witness separation order and its purpose of keeping witnesses from corroborating their testimony. The court told the witnesses not to discuss their testimony with the other witnesses and to leave the court once their testimony was complete. The court then asked defense counsel "is that sufficient, counsel, or do you want something else?" Counsel responded: "At this time, your honor, that's sufficient."

{¶15} The State then called Detective Taczak of the Chillicothe Police Department, who was part of the drug unit. Detective Taczak testified that she was familiar with Appellant from another case, and heard of Appellant's traffic stop over the radio and observed it from a nearby parking lot until Appellant fled. She testified that she approached Appellant once he had been apprehended and asked him to spit out whatever was in his mouth. She testified that Appellant's mouth was bleeding and his head was face down so she could not tell if there was anything in his mouth.

{¶16} Detective Taczak testified that when she arrived at the jail, Sargent Short advised...