[Cite as State v. Browning, 2026-Ohio-3561.]
IN THE OHIO COURT OF APPEALS
FIFTH APPELLATE DISTRICT
FAIRFIELD COUNTY, OHIO
STATE OF OHIO, Case No. 2025 CA 00029
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Fairfield County Court of
Common Pleas, Case No. 2024CR00220
SHAY M. BROWNING,
Judgment: Reversed and Remanded
Defendant - Appellant
Date of Judgment Entry: September 11, 2026
BEFORE: Andrew J. King; Craig R. Baldwin; David M. Gormley, Judges
APPEARANCES: R. KYLE WITT, Prosecuting Attorney, CHRISTOPHER A. REAMER,
Assistant Prosecuting Attorney, for Plaintiff-Appellee; BRIAN A. SMITH, for DefendantAppellant.
Baldwin, J.
{¶1} The appellant, Shay M. Browning, appeals her convictions and sentence in the
Fairfield County Court of Common Pleas. The appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} In early 2024, the South Central Ohio Major Crimes Unit received information
that the appellant was involved in trafficking methamphetamine in Fairfield County. C.B., a
confidential informant, identified the appellant as a target and made a series of controlled
purchases from her at a Delmont Road property in Fairfield County on April 15, April 23,
April 24, and April 30, 2024. On each occasion, officers searched C.B. and his vehicle before and after the transaction, monitored the encounter by live audio, and collected the purchased
narcotics afterward.
{¶3} On April 30, 2024, some hours after the last controlled buy, law enforcement
determined that the appellant would be arrested in the field. Detective Miller of the Fairfield
County Sheriff’s Office, driving a marked cruiser and in uniform, stopped the appellant on
U.S. Route 33 as she travelled toward Fairfield County and took her into custody. The
appellant was the sole occupant and driver of an Acura that was not titled in her name. A
canine alerted on the vehicle, but no drugs or other contraband were recovered from it apart
from $718 in United States currency.
{¶4} Approximately five minutes into the stop, the appellant made a statement to
officers, captured on Detective Miller’s body camera, in which she told them to go ahead and
tear the car apart, that there was nothing in it, and that they had the wrong one on the wrong
day. Detective Miller testified that he administered warnings pursuant to Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), approximately thirty-six minutes into
the stop.
{¶5} At 7:50 p.m. that evening, a search warrant was issued for the appellant’s
residence in Lancaster, Ohio. Officers executed the warrant and recovered
methamphetamine, cocaine, and a .380 caliber Taurus firearm from a camper on the property.
{¶6} The following day, May 1, 2024, the appellant was interviewed at the Fairfield
County jail after receiving fresh Miranda warnings. The interview was recorded.
{¶7} On May 9, 2024, the Fairfield County Grand Jury indicted the appellant on
eleven counts of aggravated trafficking in drugs, aggravated possession of drugs, and
possession of cocaine, with attendant forfeiture specifications.
{¶8} On February 7, 2025, the appellant filed a motion to suppress “any and all
evidence against her, obtained as a result of the warrantless stop, search, seizure, and arrest
of the Defendant,” asserting that “any evidence acquired after this unlawful stop should be
suppressed based on being fruit from the poisonous tree.” The trial court held a hearing on
March 11, 2025, at which Detective Miller was the sole witness. In lieu of closing argument,
the parties submitted post-hearing briefs.
{¶9} By Entry filed April 8, 2025, the trial court granted the motion in part and
denied it in part. The court found that the sole basis of probable cause for the planned field
arrest was the series of controlled buys, that Miller observed no arrestable offense, that no
warrant had been obtained, and that a plan to arrest the appellant in the field had been in
place for at least a week. The court further found that the appellant “was to be arrested on
suspicion of drug trafficking regardless of whether the pre-arranged canine sniff resulted in a
positive alert on the vehicle, or whether any contraband was subsequently recovered from a
search of the vehicle.” Concluding that “no other lawful basis for the Stop was articulated,”
the court found “that the April 30, 2024, Stop of the Defendant was unlawful,” and ordered
the $718 suppressed.
{¶10} As to the appellant’s statements, the trial court denied relief. The court observed
that “[t]he sole basis upon which the Defendant relies to suppress the statements is that they
were made following an unlawful stop,” and that “[t]he Defendant does not reference, and
the Court is not aware of, any controlling caselaw where statements given after properly
administered Miranda warnings were suppressed as fruit of the poisonous tree following an
earlier constitutional violation.” The court found that “the statements made by the Defendant
after the Stop were made after the waiver of proper Miranda warnings,” and concluded that they “were sufficiently separated from any violation from the underlying traffic stop due to a
valid waiver of the Defendant’s Miranda rights.”
{¶11} As to the search of the appellant’s residence, the parties had jointly asked the
court to conduct a four-corners review of the affidavit and warrant. The court found that
“[t]he Search Warrant Affidavit makes no reference to the April 30, 2024, traffic stop or any
evidence recovered therefrom,” that the affidavit set out the series of controlled buys
conducted at the residence over the prior month together with information from the
confidential informant and from other arrestees unrelated to the stop, and that probable cause
supported issuance of the warrant.
{¶12} The matter proceeded to jury trial from July 15 through July 18, 2025. The
State introduced, among other exhibits, State’s Exhibit 6, an approximately ten-second
excerpt of the body camera recording containing the appellant’s April 30, 2024, statement,
and State’s Exhibit 9, the recorded May 1, 2024, interview. The jury found the appellant guilty
on Counts One through Five and the attendant specifications, and not guilty on Counts Six
through Eleven.
{¶13} At sentencing on August 11, 2025, the trial court merged Count Two with
Count One and Count Five with Count Four. The court imposed a mandatory indefinite term
of seven to ten and one-half years on Count One, eleven months on Count Three, and a
mandatory term of three years on Count Four, to be served consecutively, for an aggregate
term of ten years and eleven months to a maximum of fourteen years and five months,
consecutive to the appellant’s sentence in Fairfield County Case No. 2022CR0417.
{¶14} The appellant filed a timely notice of appeal and raises four assignments of
error:
{¶15} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S
MOTION TO SUPPRESS, WITH RESPECT TO EVIDENCE DERIVED FROM THE
APRIL 30, 2024 TRAFFIC STOP OF APPELLANT, INCLUDING, BUT NOT LIMITED
TO EVIDENCE OBTAINED AS A RESULT OF THE APRIL 30, 2024 SEARCH
WARRANT, IN VIOLATION OF APPELLANT’S RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.”
{¶16} “II. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶17} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S OBJECTION AND ALLOWING INTRODUCTION OF THE
PHYSICAL CONTROLLED SUBSTANCES AND FIREARM AS EXHIBITS, IN
VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
{¶18} “IV. THE TRIAL COURT COMMITTED PLAIN ERROR IN IMPOSING
CONSECUTIVE SENTENCES ON APPELLANT, BECAUSE ITS FINDINGS UNDER
R.C. 2929.14(C)(4) WERE NOT SUPPORTED BY THE RECORD.”
I.
{¶19} In her first assignment of error, the appellant argues that the trial court erred in
denying the appellant’s motion to suppress, with respect to evidence derived from the April 30, 2024, traffic stop of the appellant, including, but not limited to, evidence obtained as a
result of the April 30, 2024, search warrant. We agree in part and disagree in part.
STANDARD OF REVIEW
{¶20} Appellate review of a ruling on a motion to suppress presents a mixed question
of law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. When ruling on a motion to suppress,
the trial court assumes the role of trier of fact and is in the best position to resolve questions
of fact and to evaluate witness credibility. Id.; State v. Fanning, 1 Ohio St.3d 19, 20 (1982). A
reviewing court must therefore accept the trial court’s findings of fact if competent, credible
evidence supports them. Burnside at ¶ 8; State v. Hill, 2024-Ohio-522, ¶ 16 (5th Dist.).
{¶21} Accepting those facts as true, the reviewing court must then independently
determine, without deference to the trial court’s conclusion, whether the facts satisfy the
applicable legal standard. Burnside at ¶ 8; State v. Castagnola, 2015-Ohio-1565, ¶ 32. The
application of the law to the trial court’s findings of fact is subject to de novo review. State v.
Starcher, 2026-Ohio-15, ¶ 7 (5th Dist.), citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct.
1657, 134 L.Ed.2d 911 (1996).
ANALYSIS
{¶22} The first assignment of error encompasses three distinct challenges: the
admission of State’s Exhibit 6, the statement the appellant made approximately five minutes
into the April 30, 2024, stop; the admission of State’s Exhibit 9, the recorded interview
conducted the following day at the Fairfield County jail; and the admission of the physical
evidence recovered from the camper during execution of the search warrant. Because they are
governed by different principles, we address them separately.
A. The Trial Court’s Finding That the Stop Was Unlawful
{¶23} The trial court found that the April 30, 2024, stop of the appellant was unlawful.
The State did not take an interlocutory appeal from that ruling under Crim.R. 12(K). On
appeal it nonetheless argues that the stop was lawful, both because probable cause supported
a warrantless felony arrest and because the appellant’s status as a felony probationer and as a
driver under suspension independently justified the stop. The appellant responds that the State
waived these arguments by failing to appeal, and that the law of the case doctrine bars them.
{¶24} We address the procedural objection first. Crim.R. 12(K) provides that the State
may appeal from an order granting a motion to suppress; it does not compel an appeal. The
decision not to take a permissive interlocutory appeal does not forfeit the State’s ability to
defend the judgment ultimately entered. Nor does the law of the case doctrine apply. That
doctrine binds a lower court to the mandate of a superior court upon remand. Nolan v. Nolan,
11 Ohio St.3d 1, 3 (1984). It does not bind a court of appeals, on first review, to a trial court’s
interlocutory ruling. Finally, no cross-assignment of error was required. App.R. 3(C)(2).
{¶25} Turning to the merits, the State identifies alternative bases for the stop but does
not develop an argument demonstrating why those bases require reversal of the trial court’s
contrary determination under the applicable standard of review. An appellate court may
disregard an assignment of error or argument not separately argued and supported by citation
to authority. App.R. 12(A)(2); App.R. 16(A)(7). The State cites State v. Jordan, 2021-Ohio3922, for the proposition that a warrantless public arrest supported by probable cause is
reasonable, but it neither identifies the standard governing probable cause nor applies that
standard to the facts the trial court found. Nor does it explain how the appellant’s status as a
probationer authorized a stop in the absence of any suspicion, or how a suspension unknown to the arresting officer could supply an objective basis for the stop. We decline to construct
the argument. See State v. Romy, 2021-Ohio-501, ¶ 36 (5th Dist.). The trial court’s
determination that the April 30, 2024, stop was unlawful stands.
B. Standing
{¶26} The State contends as a threshold matter that the appellant failed to establish
standing to challenge the stop because the Acura was not titled in her name and she offered
no evidence of permission to operate it. The trial court did not reach the question.
{¶27} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution protect the right of the people to be free from
unreasonable searches and seizures of their person or property. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Braucher, 2024-Ohio-811, ¶ 26 (5th Dist.). Fourth
Amendment rights are personal. Once the State challenges a defendant’s claim of a Fourth
Amendment interest, the defendant must establish that she herself had a privacy interest that
was violated. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
{¶28} The State relies upon State v. Carter, 69 Ohio St.3d 57 (1994), for the proposition
that a non-owner driver must demonstrate permission to possess the vehicle before standing
attaches. Carter does hold that “the driver of an automobile who demonstrates that he has the
owner’s permission to use the vehicle has a reasonable expectation of privacy in the vehicle
and standing to challenge its stop and search.” Id. at 63. But Carter holds separately, and in
the same passage, that “[b]oth passengers and the driver have standing regarding the legality
of a stopping because when the vehicle is stopped, they are equally seized, and their freedom
of movement is equally affected.” Id.; accord Brendlin v. California, 551 U.S. 249, 127 S.Ct.
2400, 168 L.Ed.2d 132 (2007).
{¶29} The distinction is between a challenge to the search of a vehicle and a challenge
to the seizure of the person. A showing of permission bears upon the former. It has no bearing
upon the latter, because every occupant of a stopped vehicle is seized when the stop is effected.
Carter at 63.
{¶30} The appellant does not challenge the search of the Acura. The only evidence
recovered from that search was the $718 in currency, which the trial court suppressed and
which is not before us. What the appellant challenges is the seizure of her person and the
evidence she contends derived from it. As the driver of the stopped vehicle, she was seized,
and she has standing to contest the legality of that seizure.
C. Preservation
{¶31} The State further contends that the appellant failed to raise the suppression of
her statements with sufficient particularity in the trial court and may not now assign as error
an issue she did not present below. See State v. Neale, 2014-Ohio-4368 (5th Dist.).
{¶32} A motion to suppress must state the legal and factual issues with particularity,
thereby placing the prosecutor and the trial court on notice of the issues to be heard and
decided. State v. Shindler, 70 Ohio St.3d 54, 58 (1994). The appellant’s motion sought
suppression of all evidence obtained as a result of the warrantless stop, search, seizure, and
arrest, and expressly invoked the fruit of the poisonous tree.
{¶33} We recognize that at the outset of the suppression hearing counsel stated that
he did not believe the motion contained anything regarding the statements made, and that no
allegation had been made that the appellant was improperly Mirandized. Read in isolation,
that statement might suggest the statements were not in issue. Read in context, it does not. Counsel’s remarks responded to the prosecutor’s characterization of the motion as presenting
two challenges – the lawfulness of the stop, and a four-corners review of the search warrant
documents. Immediately afterward, counsel identified the appellant’s primary objective as
establishing that there was no basis for the stop and that any arrest was therefore unlawful
and argued that anything obtained during the totality of the stop or the subsequent arrest,
“even if Miranda wasn’t deficient,” should be suppressed because everything flowed from the
illegal stop and would be fruits of the poisonous tree.
{¶34} What counsel disclaimed was an independent challenge to the adequacy of the
warnings. What he pressed, in the same colloquy, was the derivative claim that the statements
were fruit of an unlawful seizure. The trial court understood the distinction and ruled upon
the claim actually presented, stating that “[t]he sole basis upon which the Defendant relies to
suppress the statements is that they were made following an unlawful stop,” and denying the
motion “as to the remaining evidence, including the statements made.” Where the trial court
has identified and ruled upon the claim, the notice function of Shindler has been served. The
issue is properly before us.
D. The Search of the Delmont Road Property
{¶35} The appellant contends the trial court erred in denying suppression as to the
evidence recovered from the camper. She argues that because the affidavit and warrant were
executed within hours of the stop, and because she would not have been in custody but for
the arrest, the warrant and its fruits derived from the unlawful seizure.
{¶36} The exclusionary rule reaches not only primary evidence obtained as a direct
result of an unlawful search or seizure, but also evidence later discovered and found to be derivative of an illegality, or “fruit of the poisonous tree.” Carter at 67, citing Nardone v. United
States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); State v. Nowlin, 2012-Ohio-4923, ¶ 31
(5th Dist.). However, evidence is not excluded merely because it can be traced to earlier police
misconduct. Where the connection between the illegality and the discovery has become so
attenuated that the taint has dissipated, or where the police discovered the evidence through
an independent source, the rule does not apply. Carter at 67.
{¶37} Under Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472
(1988), evidence observed during an illegal entry need not be excluded if it is later discovered
during execution of a valid search warrant issued on information wholly unconnected to the
prior illegality. The State must establish that no information presented in the affidavit was
obtained during the unlawful conduct, and that the decision to seek the warrant was not
prompted by what was learned from it. Carter at 68, citing Murray.
{¶38} Both requirements are satisfied. As to the first, the trial court found that the
affidavit “makes no reference to the April 30, 2024, traffic stop or any evidence recovered
therefrom,” and that it rested instead upon the series of controlled buys conducted at the
residence over the prior month, together with information from the confidential informant
and from other arrestees unrelated to the stop. Competent, credible evidence supports that
finding and we accept it. Burnside at ¶ 8.
{¶39} In reviewing a magistrate’s probable cause determination, neither a trial court
nor a reviewing court substitutes its judgment for that of the issuing magistrate; the inquiry is
confined to whether the magistrate had a substantial basis for concluding that probable cause
existed. State v. George, 45 Ohio St.3d 325 (1989), paragraph two of the syllabus, citing Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Doubtful or marginal
cases are resolved in favor of upholding the warrant. George at 329.
{¶40} The framework the trial court applied was the one both parties requested. The
State asked the court to conduct a four-corners review of the affidavit and warrant and to
determine, excising the stop, whether probable cause remained. Counsel for the appellant
agreed that no known false statements had been included in the affidavit and that a hearing
under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), was
unnecessary. A defendant is entitled to a Franks hearing only upon making a substantial
preliminary showing that the affiant knowingly and intentionally, or with reckless disregard
for the truth, included a false statement or material omission in the warrant affidavit, and that
the statement or omission was necessary to the finding of probable cause. State v. Khaliq, 2017-Ohio-7136, ¶¶ 23-25 (5th Dist.). The appellant made no such showing and sought no such
hearing.
{¶41} As to the second requirement, the record establishes that the decision to seek
the warrant preceded the stop rather than resulting from it. Detective Miller testified that the
plan was to stop the appellant and take her into custody “[b]ecause we were going to initiate
the search warrant on the residence.” The arrest did not supply information that prompted
the decision to seek the warrant; rather, Miller’s testimony establishes that officers had
decided to pursue the residential search before the stop occurred.
{¶42} The appellant’s contrary argument – that had officers not arrested her, the
affidavit would not have been executed because she might have returned to the property
during the search – inverts the sequence the testimony establishes. It also proves too much.
Under that reasoning, any warrant executed while a defendant is detained would be tainted by the detention, without regard to whether the affidavit drew upon anything the detention
produced. That is not the inquiry Murray prescribes.
{¶43} Carter illustrates the distinction. There, the affidavit recited cocaine discovered
during an unlawful stop, and the court concluded that the issuing judge would not have issued
the warrant absent that tainted information. Carter at 68. Here the affidavit contained no such
information, and the warrant was independently motivated by controlled buys that preceded
the stop by weeks. The trial court did not err in denying suppression as to the evidence
recovered during execution of the search warrant.
E. The Statements
{¶44} Having concluded that the April 30, 2024, stop was unlawful, we turn to
whether the appellant’s statements were nonetheless admissible. The trial court concluded
that they were, on the ground that they followed a valid waiver of Miranda rights and were
therefore “sufficiently separated” from the underlying violation.
{¶45} That reasoning cannot be sustained. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct.
2254, 45 L.Ed.2d 416 (1975), the Supreme Court considered and rejected the precise
proposition the trial court adopted. The Illinois courts had held that Miranda warnings alone
broke the causal connection between an unlawful arrest and a subsequent statement. The
Court reversed, reasoning that if warnings alone sufficed, arrests made without warrant or
without probable cause, for questioning or investigation, would be encouraged, and the
Fourth Amendment’s protection would be reduced to a form of words. Id. at 602-603.
Although the appellant does not separately identify the attenuation factors articulated in
Brown, attenuation is not a separate claim; it is the legal framework governing her preserved
contention that the statements were fruits of the unlawful seizure.
{¶46} A statement obtained after an unlawful arrest is subject to the exclusionary rule
to the same extent as physical evidence. State v. Cranford, 2005-Ohio-1904, ¶ 24 (2d Dist.);
Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Miranda
warnings remain an important factor, but they are not the only factor. A statement obtained
after an unlawful seizure is admissible only if it was sufficiently an act of free will to purge the
primary taint, and the burden of establishing admissibility is on the prosecution. Brown at 602,
604. The relevant considerations are the temporal proximity between the unlawful conduct
and the statement, the presence of intervening circumstances, and, particularly, the purpose
and flagrancy of the official misconduct. Brown at 603-604.
{¶47} Ohio courts apply the same framework. State v. Wintermeyer, 2017-Ohio-5521,
¶ 40 (10th Dist.), aff’d, 2019-Ohio-5156; Columbus v. Shepherd, 2011-Ohio-3302, ¶ 42 (10th
Dist.), citing Carter at 67. Evidence obtained as a result of unconstitutional police conduct is
admissible where the causal connection between the offending conduct and the resulting
discovery is remote or has been interrupted by an intervening event, such that the interest
protected by the constitutional guarantee that has been violated would not be served by
suppression. Wintermeyer at ¶ 40; Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165
L.Ed.2d 56 (2006).
The Purpose and Flagrancy of the Official Misconduct
{¶48} The third Brown factor is the one the Supreme Court has identified as
particularly significant. Brown at 604. Here the trial court’s own findings are decisive. A plan
to conduct a field arrest of the appellant had been in place for at least a week before the stop.
No warrant was sought. Detective Miller followed the appellant for several miles and observed no traffic violation or other arrestable offense. And the appellant was to be arrested
on suspicion of drug trafficking regardless of whether the pre-arranged canine sniff resulted in
an alert, and regardless of whether any contraband was recovered from the vehicle.
{¶49} The concern is the one the Second District Court of Appeals identified in State
v. Couch, 1999 Ohio App. LEXIS 2913 (2d Dist. Jun. 25, 1999). While few officers would
make an unlawful arrest on the chance that an officer of another force, investigating a different
crime, might later obtain a confession, an officer may well make an unlawful arrest in the
hope that an interrogating officer of the same force, investigating the same crime, will obtain
one. The Couch court found no such concern on its facts, where the arresting officers were
unaware of the defendant’s status as a suspect in the offenses he later confessed to and the
interrogating officer was unaware of the illegality of the arrest. Here the officers who planned
and executed the arrest and the officers who interviewed the appellant the following day were
engaged in the same investigation, and the arrest was undertaken in furtherance of it.
{¶50} This was not negligence, nor was it reliance upon erroneous information
supplied by a third party. Compare Utah v. Strieff, 579 U.S. 232, 241, 136 S.Ct. 2056, 195
L.Ed.2d 400 (2016) (officer “was at most negligent” and made “two good-faith mistakes”);
Wintermeyer at ¶ 45 (flagrancy factor favored suppression where the officer acted upon “his
own inchoate suspicion”). It was a deliberate and pre-planned decision to arrest without a
warrant and without regard to what any search might produce – the investigatory arrest that
Brown identified as the conduct the exclusionary rule exists to deter. Brown at 602-603. If an
officer’s spontaneous and inchoate suspicion weighs in favor of suppression, a plan formed a
week in advance and executed without regard to what the search would reveal does so more
strongly still. The third factor weighs heavily in favor of suppression as to both statements.
State’s Exhibit 6
{¶51} State’s Exhibit 6 captures a statement the appellant made approximately five
minutes into the stop, roughly thirty-one minutes before Detective Miller administered
Miranda warnings. The trial court’s stated rationale does not reach it. The court’s analysis
addressed statements “made after the waiver of proper Miranda warnings”; it made no finding
as to a statement made before any warnings were given and supplied no basis for its
admission.
{¶52} As to temporal proximity, the question is whether sufficient time elapsed
between the unlawful seizure and the statement to permit the taint of the illegality to dissipate.
Wintermeyer at ¶ 43; Kaupp v. Texas, 538 U.S. 626, 633, 123 S.Ct. 1843, 155 L.Ed.2d 814
(2003). Approximately five minutes elapsed here. That is not a substantial period, and,
therefore, this factor favors suppression.
{¶53} As to intervening circumstances, there were none. The appellant remained
detained at the roadside, in the continuing presence of the officers who had seized her, and
nothing in the record separates the seizure from the statement. This factor favors suppression.
Wintermeyer at ¶ 44.
{¶54} The third factor favors suppression for the reasons stated above. All three
factors therefore point in the same direction, and the connection between the unlawful seizure
and the statement was not sufficiently attenuated to dissipate the taint. Carter at 67. State’s
Exhibit 6 should have been suppressed.
State’s Exhibit 9
{¶55} State’s Exhibit 9 is the recorded interview conducted at the Fairfield County
jail on May 1, 2024, the day after the arrest and following fresh Miranda warnings.
{¶56} As to temporal proximity, approximately one day separated the unlawful arrest
from the interview. A lapse of time is relevant, but it does not carry the State’s burden standing
alone. In Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), the
defendant’s confession followed his unlawful arrest by six hours, during which an arrest
warrant was belatedly obtained, he was given Miranda warnings three times, and he was
permitted a visit with his girlfriend and a companion; the Court nonetheless found the
confession inadmissible for lack of attenuation. The significance of the interval depends upon
what occurred within it. The appellant remained in continuous custody from the moment of
the unlawful arrest until the interview. The interval was not a period of restored liberty; it was
a continuation of the seizure itself.
{¶57} As to intervening circumstances, we find none. Officers obtained and executed
a search warrant for the Delmont Road property in the interim, and for the reasons stated in
Part D that warrant establishes that the physical evidence recovered from the camper was not
fruit of the unlawful stop. But the intervening-circumstances inquiry asks a different question:
whether some event broke the causal connection between the unlawful seizure and the
statement, such that the statement became an act of free will. Execution of a warrant against
the appellant’s property, by the same officers, while she remained detained by force of the
unlawful arrest, did nothing to alter the relationship established between the appellant and
the officers by that arrest. Brown at 604. Compare State v. Russell, 1994 Ohio App. LEXIS 4797
(5th Dist. Oct. 11, 1994) (arrest on unrelated outstanding warrants was an intervening
circumstance attenuating any impropriety in the stop); Strieff at 240 (discovery of a valid, preexisting arrest warrant wholly independent of the illegal stop was a critical intervening
circumstance). In each of those cases the intervening event was a lawful basis for detention that existed independently of the illegal stop. No such circumstance is present here. In Taylor,
by contrast, the State pointed to an arrest warrant obtained after the illegal arrest and while
the defendant was being interrogated. The Court held the warrant irrelevant to whether the
confession was fruit of the illegal arrest, distinguishing cases in which a defendant is brought
before a committing magistrate. Taylor at 692-693. The warrant here likewise issued after the
appellant was in custody. The administration of fresh warnings is the very circumstance Brown
holds insufficient standing alone. Brown at 603.
{¶58} The third factor favors suppression for the reasons stated above. The burden of
demonstrating attenuation rested with the State. Brown at 604. The State did not undertake
that showing, arguing instead that the stop was lawful and that the administration of warnings
rendered the statements admissible. On this record the State has not established that the
appellant’s May 1, 2024, statement was sufficiently an act of free will to purge the taint of the
unlawful arrest. State’s Exhibit 9 should have been suppressed.
{¶59} The appellant’s first assignment of error is sustained as to State’s Exhibits 6 and
9 and overruled as to the evidence recovered during execution of the April 30, 2024, search
warrant.
II., III., and IV.
{¶60} Where a court of appeals finds error prejudicial to the appellant, the judgment
shall be reversed and the cause remanded to the trial court for further proceedings. App.R.
12(D); State v. Jones, 2024-Ohio-2719, ¶¶ 19-20. Our disposition of the first assignment of error
requires reversal of the appellant’s convictions and sentence and a remand for further
proceedings. The appellant’s second, third, and fourth assignments of error are overruled as
moot.
CONCLUSION
{¶61} For the foregoing reasons, the first assignment of error is sustained in part and
overruled in part. The remaining assignments of error are overruled as moot. The judgment
of the Fairfield County Court of Common Pleas is reversed, and the matter is remanded to
the trial court for further proceedings consistent with this opinion.
{¶62} Costs to the appellee.
By: Baldwin, J.
King, P.J. and
Gormley, J. concur.