[Cite as State v. Hobbs, 2011-Ohio-3192.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                           C.A. No.    25379

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
JILLIAN DENISE HOBBS                                    COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CR 09 09 2902

                                 DECISION AND JOURNAL ENTRY

Dated: June 29, 2011




        MOORE, Judge.

        {¶1}     Appellant, Jillian Denise Hobbs, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                   I.

        {¶2}     On September 16, 2009, after receiving a tip, three detectives from the Summit

County Sheriff’s Office visited Hobbs at her home to interview her regarding a recent burglary.

Detective Scott Plymire testified that Hobbs invited them into her home. They informed her that

they were investigating a burglary and that two witnesses had implicated her. Hobbs and her

boyfriend, identified only as Mr. Gowdy, went outside and spoke privately. They walked around

the side of the house in order to shield their conversation from the detectives. When they

returned to the front of the house, Hobbs tearfully confessed that she had committed the crime

because of her drug problem.             Two of the detectives re-entered the house with Hobbs,

Mirandized her, and inquired about the existence of drug paraphernalia in the home. Hobbs
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directed the detectives to some heroin-related drug paraphernalia in the bathroom. The detectives

placed Hobbs under arrest and transported her to the Summit County Jail. The detectives typed

out a complaint, which they took to Sergeant Glenn Stott, also of the Summit County Sheriff’s

Office, to be “clerked.”

       {¶3}    Sergeant Stott testified that he had taken a one-hour course in order to become a

deputy clerk for the Barberton Municipal Court. He stated that “Detective Plymire later came to

me with a typed affidavit that he had typed. I talked to him about the facts again. I asked if

anything on the complaint and all the facts were true, and he swore to it, he did, and I clerked it.”

He testified that he made an independent probable cause determination based on Hobbs’

confession.

       {¶4}    The complaint was filed with the Barberton Municipal Court the next morning.

Detective Plymire testified that “[w]hen I type the complaint and it’s clerked and it’s sent to - - it

becomes the warrant - - it becomes an arrest warrant once the Barberton clerk receives it.”

Hobbs was arrested on September 16, 2009, at approximately 6:30 p.m. On September 17, 2009,

at approximately 6:52 a.m. the complaint was filed with the Barberton Clerk of Courts.

       {¶5}    On October 1, 2009, the Summit County Grand Jury indicted Hobbs on one count

of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree.

       {¶6}    On November 5, 2009, Hobbs filed a motion to suppress evidence and dismiss the

charge on the basis that Sergeant Stott could not have acted as a neutral and detached magistrate.

On December 2, 2009, the court conducted a suppression hearing. On February 25, 2010, the

trial court denied the motion to suppress evidence and dismiss the charge.

       {¶7}    On March 29, 2010, Hobbs pleaded no contest to the burglary charge. The court

found her guilty and sentenced her to two years of incarceration.
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          {¶8}   Hobbs timely filed a notice of appeal, raising one assignment of error for our

review.

                                                II.

                                  ASSIGNMENT OF ERROR

          “THE TRIAL COURT ERRED IN DENYING [HOBBS’] MOTION TO
          SUPPRESS AND DISMISS BECAUSE IT DETERMINED FACTS AGAINST
          THE MANIFEST WEIGHT OF THE EVIDENCE, BECAUSE IT APPLIED
          THE WRONG TEST OF LAW AND BECAUSE IT INCORRECTLY DECIDED
          THE ULTIMATE ISSUES ON MOTION TO SUPPRESS AND DISMISS.”

          {¶9}   In her assignment of error, Hobbs contends that the trial court erred in denying

her motion to suppress and dismiss because it determined facts against the manifest weight of the

evidence, applied the wrong test of law, and incorrectly decided the ultimate issues. Although

her route is indirect, Hobbs essentially argues that the motion to suppress and dismiss should

have been granted. We do not agree.

          {¶10} The State contends that at the trial court Hobbs failed to assert the specific

grounds underpinning her motion to suppress and dismiss in violation of Crim.R. 47.

Accordingly, the State contends she waived her appellate arguments. Although Hobbs filed a

skeletal motion to suppress and dismiss with regard to several arguments, the State did not object

or otherwise contend that it was uninformed as to the basis for her motion. Accordingly, we will

address the merits of Hobbs’ arguments.

          {¶11} “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
                                                4


must then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.” (Internal citations omitted.) State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8.

       {¶12} In its order denying Hobbs’ motion to suppress and dismiss, the trial court found

the facts recounted above to be accurate. The court then observed that although the complaint

appeared to be supported by probable cause, Sergeant Stott could not, in light of his position as a

law enforcement officer, properly serve as a neutral and detached magistrate, citing Shadwick v.

Tampa (1972), 407 U.S. 345, 350. The court determined that the arrest warrant, issued after

Hobbs’ arrest, was improperly issued. The trial court further determined however, that no

evidence resulted from the improper procedure and thus, that there was no evidence to suppress.

All of the evidence was independently discovered prior to the arrest and issuance of the warrant.

Finally, the trial court ruled that dismissal of the burglary charge was inappropriate under this

Court’s holding in State v. Reymann (1989), 55 Ohio App.3d 222, 225, citing United States v.

Crews (1980), 445 U.S. 463, 474 (“[a]n illegal arrest, without more, has never been viewed as a

bar to subsequent prosecution, nor as a defense to a valid conviction”).

       {¶13} Upon review of the transcript, the trial court’s findings of fact are supported by

some competent, credible evidence. See Burnside at ¶8. The facts are not in dispute. Instead,

Hobbs’ contentions are more in the nature of challenges to the court’s legal conclusions. Hobbs

also contends that she was unfairly prevented from contesting the detective’s statements as to

what took place at her house. The record, however, reflects that Hobbs’ counsel was given the

opportunity to present evidence at the hearing. The following exchange took place between

counsel and the court:

       “[COUNSEL]:          Here’s the problem. I would call my client about the
       underlying circumstances of the arrest, but we’re not challenging that.
                                                  5


       “THE COURT:             No, I don’t think it’s really relevant.

       “[COUNSEL]:             So I just want to clear -- I’m sorry, Your Honor. I want to
       make it clear for the record, we’re not agreeing with that version that was given to
       you, but it’s been stated, and we’re not -- since we’re not trying to suppress that. I
       want to thank you, Your Honor.”

The exchange hardly reflects the trial court preventing Hobbs from contesting the underlying

circumstances of the arrest. At the hearing, Hobbs’ counsel seems to agree that her testimony is

irrelevant to the suppression issue and makes no effort to call her to testify.

A.     Suppression

       {¶14} With respect to suppression, Hobbs argues that “[a] strict chronological or linear

view that evidence to be suppressed can only come after a void arrest warrant is erroneous.”

(Emphasis sic.) She then suggests that the exclusionary rule, as a remedy for Fourth Amendment

violations, is a “circle of protection” as opposed to a horizontal line. Consequently, Hobbs

contends that the detective’s testimony before the grand jury should have been suppressed.

Hobbs does not support these contentions with citations to authority. App.R. 16(A)(7).

       {¶15} While the Eighth District Court of Appeals has held that a law enforcement

officer from the same department serving a dual-role as an officer and deputy clerk of the local

municipal court can properly serve as a neutral and detached magistrate, we are not persuaded by

that authority. See, e.g., State v. Garrett, 8th Dist. Nos. 87112 & 87123, 2006-Ohio-6020; State

v. Robinson (Oct. 24, 1985), 8th Dist. Nos. 49501, 49518 & 49577. Instead, we are inclined to

agree with the Sixth District Court of Appeals in holding that in order for an arrest warrant to be

valid, it must be issued by a neutral and detached magistrate. State v. Torres (Aug. 22, 1986),

6th Dist. No. WD-85-64, at *2, citing Shadwick, supra (holding that “[a] police dispatcher having

the dual function of a clerk is not a neutral and detached magistrate”).
                                                6


       {¶16} In this case, Sergeant Stott attempted to serve as a deputy sheriff and a deputy

clerk of the Barberton Municipal Court. The trial court determined that, as a law enforcement

officer “engaged in the often competitive enterprise of ferreting out crime,” Shadwick, 407 U.S.

at 350, citing Johnson v. United States (1948), 333 U.S. 10, 14, he was unable to serve as a

neutral and detached magistrate for the purpose of making probable cause determinations.

Additionally, we note that the Attorney General of Ohio has repeatedly advised prosecutors of

various counties that law enforcement officers cannot serve as deputy clerks. See, e.g., 1995

Ohio Att.Gen.Ops. No. 95-020 (reasoning that such an arrangement was inappropriate because

an employee of the county sheriff serving as a deputy municipal court clerk could be called upon

“to determine whether the county sheriff or a deputy sheriff had probable cause to make a

warrantless arrest”). Accordingly, the trial court determined, and we agree, that the arrest

warrant issued pursuant to Sergeant Stott’s probable cause determination was invalid. The trial

court did, however, emphasize that Sergeant Stott did not appear to act partially. Likewise, the

court did not find that probable cause was lacking to support the arrest. The trial court concluded

that exclusion of evidence was not the appropriate remedy. We agree.

       {¶17} The exclusionary rule has been applied by courts as an evidentiary remedy to

certain Fourth Amendment violations. Crews, 445 U.S. at 470 (“the exclusionary sanction

applies to any ‘fruits’ of a constitutional violation-whether such evidence be tangible, physical

material actually seized in an illegal search, items observed or words overheard in the course of

the unlawful activity, or confessions or statements of the accused obtained during an illegal

arrest and detention”). The exclusionary remedy, however, is not triggered by every infraction,

and when it is, it is limited to the “fruit of the poisonous tree.” Wong Sun v. United States

(1963), 371 U.S. 471, 488.
                                                 7


       {¶18} Hobbs contends that the exclusionary rule provides a circle of protection around

criminal defendants and that the fact that she confessed to the crime before she was arrested does

not preclude suppression and exclusion of evidence. We do not agree with this unsupported

contention. “In the typical ‘fruit of the poisonous tree’ case * * * the challenged evidence was

acquired by the police after some initial Fourth Amendment violation[.]”           (Emphasis sic.)

Crews, 445 U.S. at 471. The goal is to exclude evidence that flows from, and is the result of, the

violation of a person’s constitutional rights.    We do not now endorse an application of the

exclusionary rule to pre-violation conduct.

       {¶19} At the suppression hearing, the State asked Detective Plymire about his testimony

before the grand jury. Hobbs’ counsel objected and the court sustained the objection. Even if

we were to assume that grand jury testimony is potentially subject to suppression, without

knowing what testimony was presented to the grand jury this Court can only speculate as to

whether it constitutes fruit of the poisonous tree. The real gist of Hobbs’ arguments before us

seems to be that all evidence, particularly Hobbs’ confession, should have been suppressed.

Having rejected Hobbs’ “circle of protection” theory, we conclude that the trial court correctly

refused to suppress Hobbs’ confession.

       {¶20} The trial court determined that the procedure used by the deputy sheriffs in this

case invalidated the warrant due to the lack of a probable cause determination by a neutral and

detached magistrate. However, the trial court also correctly determined that no evidence was

derived from the arrest and, accordingly, there was no evidence to suppress. Hobbs confessed to

the commission of the burglary prior to the arrest. In fact, according to the detective’s testimony,

the arrest was predicated primarily upon her confession. That is, the confession led to the arrest.

Therefore, the confession was not derived from the invalid arrest warrant.            Under these
                                               8


circumstances, the invalid arrest warrant could not flow back to invalidate a voluntary

confession.

       {¶21} Hobbs has argued, but has not separately assigned as error, App.R. 12(A)(2), that

her confession was the product of a Miranda violation. This argument is unavailing because

there is no evidence that she was subjected to custodial interrogation. “The circumstances

surrounding in-custody interrogation can operate very quickly to overbear the will of one merely

made aware of his privilege by his interrogators. Therefore, the right to have counsel present at

the interrogation is indispensable to the protection of the Fifth Amendment privilege under the

system we delineate today.” Miranda v. Arizona (1966), 384 U.S. 436, 469. “The cases since

Miranda have focused on whether the criminal defendant was in custody and whether the

defendant was subject to interrogation.” State v. Waibel (1993), 89 Ohio App.3d 522, 525.

       {¶22} In this case, the detectives visited Hobbs at her home and she invited them into

the house. They informed her that they were investigating a burglary. Eventually, she went

outside to smoke and to speak privately with Gowdy around the side of the house. At that time,

the detectives also left the home and stood far from the couple to allow them privacy. Without

prompting by the detectives, Hobbs returned from the side of the house and tearfully confessed

to the burglary. No evidence from the suppression hearing suggested that Hobbs was not free to

leave or otherwise terminate the conversation. Her confession was not, therefore, the result of

custodial interrogation and Miranda does not apply.

       {¶23} For the foregoing reasons, Hobbs’ contentions with regard to suppression are

overruled.
                                                9


B.     Dismissal

       {¶24} As a sub-argument of her motion to suppress, Hobbs contends that the trial court

should have also dismissed the indictment with prejudice.        Hobbs contends that Detective

Plymire’s grand jury testimony should have been, essentially, excluded from taking place and

that, as a result, “[n]o testimony before grand jury [sic] means no indictment means no case.

Dismissal follows.” Hobbs cites to State v. Lanser (1924), 111 Ohio St. 23, for the proposition

that “without the filing of a proper affidavit no jurisdiction is acquired.” Hobbs reasons that

dismissal must result due to the lack of jurisdiction. We do not agree.

       {¶25} Lanser is inapplicable because it addresses only the jurisdiction of mayor’s courts

over “one accused of an offense before a justice of the peace, mayor, or police judge.” Id. at 26.

This case involves the felony jurisdiction of the court of common pleas. “The Court of Common

Pleas is, by Section 2931.03, Revised Code, given original jurisdiction in felony cases. The

felony jurisdiction is invoked by the return of a proper indictment by the grand jury of the

county.” Click v. Eckle (1962), 174 Ohio St. 88, 89. “‘[I]t is now well established that even if an

arrest is illegal it does not affect the validity of subsequent proceedings based on a valid

indictment[.]’” State ex rel. Jackson v. Brigano (2000), 88 Ohio St.3d 180, 181, quoting Krauter

v. Maxwell (1965), 3 Ohio St.2d 142, 144.

       {¶26} “As to dismissal, the United States Supreme Court has stated that a criminal

defendant ‘cannot claim immunity from prosecution simply because his appearance in court was

precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a

bar to subsequent prosecution, nor as a defense to a valid conviction. * * *’” Reymann, 55 Ohio

App.3d at 225, quoting Crews, 445 U.S. at 474. Therefore, the invalid arrest warrant does not

require the dismissal of the indictment.
                                                10


       {¶27} Accordingly, Hobbs’ contentions with regard to dismissal are overruled.

                                                III.

       {¶28} Hobbs’ assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       CARLA MOORE
                                                       FOR THE COURT


WHITMORE, P. J.
DICKINSON, J.
CONCUR
                                         11



APPEARANCES:

MARK H. LUDWIG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
