[Cite as State v. Banks-Harvey,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 26786 : v. : Trial Court Case No. 14-CR-2713 : JAMIE K. BANKS-HARVEY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 30th day of June, 2016.

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MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee

AMY E. FERGUSON, Atty. Reg. No. 0088397, Ferguson Law Office, LLC, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} Jamie K. Banks-Harvey appeals from her conviction and sentence following -2-

a no-contest plea to one count of heroin possession, a fifth-degree felony.

{¶ 2} In her sole assignment of error, Banks-Harvey contends the trial court erred

in overruling her motion to suppress her confession to possessing heroin and the

subsequent discovery of heroin in her possession.

{¶ 3} The sole witness at the suppression hearing was Ohio Highway Patrol

Trooper Kyle Pohlabel. He testified that he observed several traffic violations committed

by Shannon Halcomb, the driver of a vehicle in which Banks-Harvey was a passenger.

Pohlabel made a traffic stop as a result of what he saw. Approximately one minute into

the stop, he requested a K-9 unit. He did so based on his observation of what appeared

to be fresh needle marks on both women’s hands. Banks-Harvey subsequently was

placed in the back of a police cruiser, where she was Mirandized. A drug dog arrived

minutes later and alerted on Halcomb’s vehicle. As a result, Pohlabel and other officers

began searching it. They found a bloody rag and one empty capsule consistent with the

type used to package heroin. Pohlabel believed that the rag may have been used to wipe

away blood resulting from the recent use of a drug needle. The blood looked relatively

fresh because it was red rather than brown.

{¶ 4} Based on the foregoing facts, Pohlabel handcuffed Banks-Harvey, who was

still in the police cruiser, and began questioning her. He testified that she appeared to be

“on something,” but she was coherent and not disoriented. The questioning lasted two to

three minutes, and Banks-Harvey never invoked her Miranda rights. During that time,

Pohlabel told Banks-Harvey that he believed she had purchased drugs. He also told her

that he believed she had drugs on her person. He further advised Banks-Harvey that, in

his experience, women usually hid drugs up inside themselves. He explained that he was -3-

going to get a warrant and that she was going to be checked thoroughly. Specifically, he

told her that he was going to take her to a hospital, where she would be subjected to an

ultrasound scan for drugs inside of her. Pohlabel warned Banks-Harvey that if drugs were

found inside of her, she would be charged with evidence tampering, a third-degree felony,

which he told her was “borderline a prison term” offense. He also told her that if he had

to get a search warrant, she would be kept in jail for 48 hours and might become “dope

sick.” Conversely, Pohlabel advised Banks-Harvey that if she cooperated and admitted

having drugs in her possession, she probably would be charged with fifth-degree felony

possession, depending on the amount involved, and would be sleeping in her own bed

that night. At that point, Banks-Harvey admitted that she had drugs concealed “up inside”

of her vagina. She removed the drugs and gave them to the police. Pohlabel testified at

the suppression hearing that, if Banks-Harvey had not admitted possessing the drugs,

she would have been arrested for possession of drug paraphernalia (the empty capsule)

and he would have attempted to obtain a search warrant.

{¶ 5} Following her admission and her surrender of the drugs, Banks-Harvey was

charged with fifth-degree-felony heroin possession. She subsequently moved to suppress

her confession and the drugs she had concealed. She argued, among other things, that

her confession was involuntary and that police obtained the drugs as a result of that

involuntary confession. Following a hearing, the trial court overruled Banks-Harvey’s

motion. The trial court found her confession voluntary, reasoning:

* * * I note that Trooper Pohlabel, at least in my conclusion, in all

probability, inaccurately told Ms. Harvey that she would be taken to the

hospital to receive an ultrasound to determine if she was hiding contraband -4-

on her person.

Such a procedure would require a warrant and given the

circumstances it is unlikely that such a warrant would have been requested.

In fact, Trooper Pohlabel indicated that in his experience that’s occurred, to

his knowledge, on one occasion. And given the circumstances of this case,

in particular the fact that nothing happened in that regard as it relates to [the

driver] Ms. Halcomb, I conclude that Trooper Pohlabel was using that

statement about taking her to the hospital to get a scan as an inducement

to be cooperative and to admit to the possession of heroin.

I also note that Trooper Pohlabel, though he may have believed

otherwise, inaccurately informed Ms. Harvey that if drugs were found based

upon the issuance of a warrant she would be charged with tampering, a

third-degree felony, triggering, quote, borderline, end quote prison meaning,

of course, that [with] a third-degree tampering charge that a prison term

[was] considerably more likely.

I note that a tampering charge, since there’s no evidence concerning

when Ms. Harvey placed the heroin into her vagina would, to say the least,

be a stretch though it does appear that Trooper Pohlabel incorrectly but

nonetheless thought that a tampering charge in such a situation would be

or could be appropriate.

But in any event, that information was certainly conveyed to Ms.

Harvey as an inducement to get her to confess to her possession of heroin.

The indication that—and it’s certainly true that a third-degree offense is -5-

more serious than a fifth-degree offense. I have no quibble with that. But I

do have a bit of a problem with then Trooper Pohlabel indicating that that

would make this a borderline prison term. That’s not really accurate

information to convey to a Defendant.

However, these misstatements are, in my opinion, akin to a police

officer informing a suspect that the evidence against him is stronger than it

actually is. That is, Trooper Pohlabel’s mischaracterizations are but one

factor bearing on whether Ms. Harvey’s admissions regarding possession

of heroin are suppressible or not.

This Court, upon evaluating the totality of circumstances, cannot

conclude that Trooper Pohlabel’s interrogation on the whole acted to

overbear Ms. Harvey’s will, thus rendering her confession involuntary. Ms.

Harvey confessed—and this is important—confessed within two to three

minutes of the commencement of the interrogation. Trooper Pohlabel did

not use harsh or coercive language. His tone was even and nonthreatening

throughout the encounter with Ms. Harvey. And Ms. Harvey, though she

likely had recently used heroin, was coherent and her thinking was clear.

These conclusions in the Court’s mind outweigh Trooper Pohlabel’s

inaccurate statements to Ms. Harvey so that when considering the totality

of circumstances, it cannot be concluded that Ms. Harvey’s will was

overborne so that her statement and her statement admitting to possession

of heroin was less than voluntary.

Again, I note that Ms. Harvey, again, within two to three minutes— -6-

and you can look at the video, it happened very quickly—she made the

initial denial and then Trooper Pohlabel went into and made the statements

regarding, and some accurate statements, some statements perhaps not

so accurate, he made those statements and then immediately thereafter

Ms. Banks or Ms. Harvey indicated that she did possess the heroin.

Trooper Pohlabel, though some of the statements he made may

have been inaccurate, was not overbearing; he was not harsh; he did not

yell; he did not use other coercive tactics. And I cannot say when

considering the inaccuracies as but one factor in the totality of

circumstances, I cannot come to the conclusion that that one factor creates

a situation where the admission by Ms. Harvey of her heroin possession

was made in a less than voluntary way.

And based upon that, the Court will overrule the motion to suppress.

And, of course, that also means since the statements are admissible then

the drugs themselves are admissible.

(Hearing Tr. at 60-63).

{¶ 6} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses. Consequently, an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence. Accepting these

facts as true, the appellate court must then independently determine, without deference

to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” -7-

(Internal citations omitted) State v. Burnside,

,

,

; see also State v. Greene, 2d Dist. Montgomery No. 26138, 2015-Ohio-

2060, ¶ 19.

{¶ 7} Here the facts, as set forth by Trooper Pohlabel, are undisputed. The issue

Banks-Harvey raises is a legal one, to wit: whether based on those facts her confession

to possessing heroin was involuntary. See, e.g., State v. Heisey,

,

, ¶ 8 (2d Dist.) (recognizing that the voluntariness of a confession is a question

of law subject to de novo review).

{¶ 8} “[C]oercive police activity is a necessary predicate to the finding that a

confession is not ‘voluntary’ within the meaning of the Due Process Clause of the

Fourteenth Amendment.” Colorado v. Connelly,

,

,

(1986). “Absent police conduct causally related to the confession, there is

simply no basis for concluding that any state actor has deprived a criminal defendant of

due process of law.”

. “Evidence of use by the interrogators of an inherently

coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or

sleep) will trigger [a] totality of the circumstances analysis.” State v. Clark,

,

(1988). A confession is voluntary “absent evidence that [the

defendant’s] will was overborne and his capacity for self-determination was critically

impaired because of coercive police conduct.” State v. Jackson, 2d Dist. Greene No.

02CA0001,

, ¶ 20. See also State v. Buk–Shul, 2d Dist. Montgomery

No. 23603, 2010–Ohio–3902, ¶ 9. The voluntariness test considers “the totality of all the

surrounding facts and circumstances, including the characteristics of the accused and the

details of the interrogation.” Jackson at ¶ 21. This includes factors like “the age, -8-

mentality, and prior criminal experience of the accused; the length, intensity and

frequency of the interrogation; the existence of physical deprivation or mistreatment; and

the existence of threats or inducements.”

{¶ 9} Banks-Harvey’s argument on appeal focuses on the last factor mentioned

above, namely the existence of coercion through threats or inducements. She contends

her will was overborne when Pohlabel (1) threatened to obtain a warrant and subject her

to a vaginal-cavity search if she did not confess, (2) threatened her with a third-degree

felony evidence-tampering charge if she did not confess, (3) threatened to have her jailed

for 48 hours if she did not confess, and (4) mentioned the possibility of her getting “dope

sick” if she spent 48 hours in jail.

{¶ 10} In response, the State contends Pohlabel mentioned “dope sickness” out of

compassion for Banks-Harvey. With regard to obtaining a warrant for a body-cavity

search, the State contends he had probable cause to do so and informing Banks-Harvey

of that fact was not improper. The State further asserts that it was not improper for

Pohlabel to warn her about additional jail and prison time or an additional charge if she

did not cooperate by confessing. The State appears to concede that Banks-Harvey could

not have been charged with evidence tampering because Pohlabel did not know when

she had concealed the drugs in her vagina. The State argues, however, that she still could

have been charged with a third-degree felony for illegally conveying drugs onto the

grounds of a correctional facility if Pohlabel had arrested her and the heroin had been

discovered at the jail.

{¶ 11} Upon review, we conclude that the statements Pohlabel made to her were

not sufficient to cause her free will to be overborne, resulting in an involuntary confession. -9-

Having reviewed the record, including the audio and video recording, we see nothing

about circumstances of Banks-Harvey’s confession that is indicative of unlawful coercion.

Pohlabel’s questioning was brief, only two (2) or three (3) minutes. The trial court

described his tone as “even,” and Banks-Harvey appeared to be thinking clearly even if

she was under the influence of something. She was 37 years old, had prior experience

with law enforcement and had previously been charged with possession of heroin. The

trooper did not use harsh or coercive language and his tone was not threatening. The

only salient questions are whether any information supplied by Pohlabel amounted to

threats or improper inducement, and if so, were they sufficient under the totality of

circumstances to conclude the Appellant’s will was overborne.

{¶ 12} Given the brevity of the encounter and the moderate tone of the trooper,

we do not believe any of the trooper’s communication amounted to threats sufficient to

overcome Appellant’s free will. That leaves only the question whether the communication

could be characterized as improper inducement sufficient to overcome Appellant’s

voluntary choice and to coerce her to admit she possessed heroin. Admonitions to tell the

truth are not coercive. State v. Cooey,

,

(1989).

“Similarly, assurances that a defendant's cooperation will be considered or that a

confession will be helpful do not invalidate a confession.” State v. Stringham, 2d Dist.

Miami No. 2002–CA–9,

, ¶ 16. A “suggestion that cooperation may result

in more lenient treatment is neither misleading nor unduly coercive, as people ‘convicted

of criminal offenses generally are dealt with more leniently when they have cooperated

with the authorities.’ ”

quoting State v. Farley, 2d Dist. Miami No. 2002–CA–2, 2002–

Ohio–6192. We conclude the communications by the trooper in this case do not constitute -10-

improper inducement and were insufficient to coercively overcome Appellant’s voluntary

admission that she possessed heroin.

{¶ 13} We note that we might apply a different analysis if this were a consent-to-

search case. If Pohlabel’s announcement to Banks-Harvey was that he would

undoubtedly obtain a warrant and compel her to undergo a body-cavity search if she did

not consent to a search for drugs inside her body, but he did not have probable cause for

a warrant, his incorrect representation could vitiate the voluntariness of a subsequent

consent for a search to be performed. On several occasions, this court has addressed

the issue of coercing consent by threatening to obtain a warrant. In State v. Wilcoxson,

2d Dist. Montgomery No. 15928,

(July 25, 1997), for example, this court

reasoned:

Consent is involuntary if it is the product of coercion or duress applied

to induce it. For example, if police seek permission to conduct a search, but

upon being denied permission announce that they will obtain a warrant and

conduct the search anyway, any consent to search that their statement

induces is involuntary and ineffective to waive Fourth Amendment rights. *

* * If the officers lacked probable cause to obtain a warrant, then the consent

is a product of duress and is invalid to justify the search. However, the fruits

of a search need not be suppressed if the police possessed probable cause

sufficient for issuance of the warrant they threatened to obtain. * * *

Id. at *6.

{¶ 14} Similarly, in State v. Berg, 2d Dist. Montgomery No. 15313,

(Oct. 4, 1996), this court reasoned: -11-

It has been expressly held that if “in fact there were grounds for the

issuance of a search warrant,” then “the well founded advice of a law

enforcement agent that absent a consent to search,” a warrant can be

obtained does not constitute coercion. United States v. Faruolo (2nd

Cir. 1974),

. This proposition rests upon the conclusion that the

“threat” does not involve any deceit or trickery; but instead accurately

informs the individual of his precise legal situation. LeFave, Search and

Seizure, Third Edition. But this means that under the better view the police

act at their peril in threatening to obtain a search warrant. It is not enough

that their interest was made in good faith expectation that a warrant would

issue, there must be probable cause.

Id. at *3.

{¶ 15} However, the case before us is not a voluntariness-of-consent case, it is a

voluntariness-of-confession case. Although evaluation of the totality of the circumstances

applies in both circumstances, the applicable case law, and even the standard of proof

(clear and convincing as opposed to preponderance of the evidence) are different.

Accordingly we apply the law and the standard applicable to voluntariness of a confession

to conclude that the trial court was correct to overrule the motion to suppress.

{¶ 16} Banks-Harvey’s assignment of error is overruled. The trial court’s judgment

is affirmed.

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FAIN, J., and WELBAUM, J., concur.

Copies mailed to:

Mathias H. Heck, Jr. Meagan D. Woodall Amy Ferguson Hon. Michael Tucker