Youngstown Daily Legal News

Court rules reasonable suspicion existed in drug investigation

ANNIE YAMSON
Special to the Legal News
Published: January 5, 2016

A panel of three judges in the 2nd District Court of Appeals recently considered whether police had reasonable suspicion to stop a vehicle on suspicion of drug activity in a case that ultimately led to weapons charges.

The defendant, Tiffany Cole, appealed from the judgment of the Montgomery County Court of Common Pleas, which found her guilty on a no contest plea to having weapons under disability.

The lower court had previously overruled Cole’s motion to suppress evidence that law enforcement officers found when they searched a hotel room that was registered in her name.

Case summary states that, on the morning of Nov. 1, 2013, as part of regular efforts to monitor drug activity at hotels along Interstate 75, Deputy Josh Walters of the Montgomery County Sheriff’s Department, and Special Narcotics Agent Robert Marchiny of the Bureau of Criminal Investigations, were conducting surveillance at the Hawthorn Suites hotel in Miamisburg.

Shortly after 9:30 a.m., the officers observed a white Chevy Malibu with tinted windows drive around the hotel parking lot and ultimately park in an adjoining Dayco lot.

The driver, later identified as Glenn Hayes, sat in the vehicle for a while then removed a backpack from his trunk and entered a room of the hotel.

The officers claimed that Hayes’ decision to park in the adjoining lot was suspicious due to the fact that the hotel lot had plenty of parking available.

Soon, the officers saw Hayes and Cole exit one hotel room and enter another, carrying black trash bags.

Again, the activity triggered suspicion due to the fact that the officers knew that drug dealers often move from room to room so as not to attract attention to one particular dwelling.

Around noon, Hayes and Cole left the hotel in the white Malibu and were stopped by Deputy Gust Teague for a window tint violation at the request of Deputy Walters.

Court documents state that nothing incriminating was found in the vehicle aside from small bits of marijuana found after a K-9 unit alerted on the vehicle.

After watching the traffic stop, Agent Marchiny approached Cole, introduced himself and asked if Cole would consent to a search of her hotel room. Cole agreed and informed the deputies that there was a gun in the room before they went in, though she claimed it did not belong to her.

The officers found the gun as well as cocaine and a scale in a trash bag that Hayes was seen carrying between rooms.

The search led to Cole’s indictment on one count of having weapons under disability.

Cole filed a motion to suppress the evidence, arguing that the officers did not have reasonable suspicion of criminal activity when they stopped the car and then took her back to the hotel. That motion was overruled and Cole ultimately pleaded no contest and was sentenced to 30 months in prison.

On direct appeal to the 2nd District court, Cole again asserted that the police lacked probable cause to stop the vehicle in which she was a passenger. According to her, the officers kept her for an extended period of time and were engaged in a “fishing expedition” for evidence of drug activity. The court of appeals disagreed.

“We have repeatedly held that a traffic stop for a suspected window tint violation is lawful,” Presiding Judge Jeffrey Froelich wrote on behalf of the court of appeals. “At the suppression hearing in Cole’s case, Deputy Teague, who effectuated the traffic stop, testified that he could not see inside the Chevy Malibu ‘at all’ although it was around noon on a sunny day.”

Cole also challenged the sufficiency and manifest weight of the evidence supporting her conviction.

She contended it was not reasonable to conclude that Hayes possessed the drugs and the scale found in the hotel room but that she possessed the gun and she asserted that there was no physical evidence linking her to the gun. Again, the court of appeals found otherwise.

“With respect to the sufficiency of the evidence, a no contest plea is an admission to the facts as laid out at the plea hearing,” Froelich wrote. “The trial court retains the discretion to consider a defendant’s contention that the admitted facts do not constitute the charged offense, but the defendant who pleads no contest waives the right to present additional affirmative factual allegations to prove that he is not guilty of the charged offense.”

Even though Cole argued that the gun more logically belonged to Hayes, the appellate panel noted that she admitted in her no contest plea that she “did knowingly acquire, have, carry or use any firearm or dangerous ordnance while she was under indictment for a felony of violence.”

Cole further contended that there was no evidence that the firearm was operable, but Froelich pointed out that, under the statutory definition of “firearm” there is no requirement that the gun be loaded or immediately operable.

Finding no merit to her claims on appeal, the reviewing court overruled Cole’s arguments and affirmed the judgment of the Montgomery County court.

Judges Mike Fain and Michael Hall concurred.

The case is cited State v. Cole, 2015-Ohio-5295.

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