104090261

104090261

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO
THE STATE OF OHIO Case No: CR-16-604473-A
Plaintiff
Judge: SHIRLEY STRICKLAND SAFFOLD

JAMES L LINDON
Defendant ■ INDICT: 2913.02 THEFT; AGGRAVATED THEFT
2925.11 DRUG POSSESSION
2921.12 TAMPERING WITH EVIDENCE

JOURNAL ENTRY

FINDINGS OF FACT AND CONCLUSION ORDER AND JOURNAL O.S.J.

06/04/2018
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 IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

STATE OF OHIO, )
) CASE NO.: CR-16-604473-A
Plaintiff, )
) JUDGE SHIRLEY STRICKLAND SAFFOLD
vs )
)
JAMES L. LINDON, . ) FINDINGS OF FACT AND CONCLUSION
)
Defendant. )

This case was remanded for the limited purpose of holding a testimonial hearing on a

motion to suppress. This Court held that hearing on May 2, 2018. Inspectors Ahmed Mohammed

and Robert Kwait of the Cleveland Clinic Protective Services testified at the hearing.

A. There w^as reasonable suspicion to detain Mr. Lindon.

To have reasonable suspicion to detain a person, a government agent must know of

“specific and articulable facts which, taken together with rational inferences from these facts,

reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). When determining

whether reasonable suspicion exists, “due weight must be given ... to the specific reasonable

inferences which [a law enforcement officer] is entitled to draw from the facts in light of his

experience.” Terry at 31. Information from an identified citizen can, without anything more,

support reasonable suspicion for a detention. See, e.g., State v. Portis, 2009-Ohio-32, fflf 19-24 (8th

Dist.).

In this case, Inspectors Mohamed and Kwait were notified that Mr. Lindon had recently

accessed a bottle of narcotic medication, and that after his access, five pills were missing from the
. •

bottle.
 Inspectors Mohammed and Kwait reviewed surveillance video that showed the

pharmacists’ work area, including Mr. Lindon’s work area. In the video, the inspectors observed

Mr. Lindon appear to place part of the contents of a pill bottle into his hand and then transfer the

contents from his hand into his left pocket. Based on their observations and the observations of

pharmacy personnel who notified them of the discrepancy, the inspectors went to confront Mr.

Lindon.

When the inspectors confronted Mr. Lindon, Mr. Lindon quickly turned away from them

and swallowed something that he withdrew from his left pocket. The inspectors believed that Mr.

Lindon had swallowed the narcotic medication that he had previously taken from a pill bottle as

seen on the video.

B. There was no search of Mr. Lindon’s pockets because Mr. Lindon consented
to reveal the contents of his pockets.

After Mr. Lindon swallowed the stolen pills in front of the inspectors, the inspectors went

with Mr. Lindon to the pharmacy supervisor’s desk. The desk was in an open and accessible area

in the rear of the pharmacy; it was not secured or in a separate room. Once they were there, the

inspectors asked Mr. Lindon to reveal the contents of his pockets. When Mr. Lindon did not

respond, they asked him again, at which point Mr. Lindon emptied his pockets onto the pharmacy

supervisor’s desk. This was a consensual act by Mr. Lindon. However, even if it were not

consensual, the inspectors could have searched Mr. Lindon’s pockets based on the exigency of

him swallowing evidence in front of them.

When a person consents to a search, neither probable cause nor even reasonable suspicion

are required, and suppression is hot available when evidence is found by consent. State v. Trotter,

21 l-Ohio-418, m 17-18 (8th Dist.). When reviewing whether an individual’s consent was
}
voluntarily given, a court should consider:

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 (1) the suspect’s custodial status and the length of the initial detention; (2) whether

the consent was given in public or at a police station; (3) the presence of threats,

promises, or coercive police procedures; (4) the words and conduct of the suspect;

(5) the extent and level of the suspect's cooperation with the police; (6) the suspect's

awareness of his right to refuse to consent and his status as a "newcomer to the

law"; (7) the suspect's education and intelligence; and (8) the suspect's belief that

no incriminating evidence will be found.

State v. Clark, 2012-0hio-2058, Tf 20 (8th Dist.).

Here, all of the factors weigh heavily and unequivocally in favor of voluntary consent.

First, Mr. Lindon’s detention—if any—prior to revealing the contents of his pockets was brief,

and he was never handcuffed nor told he was under arrest. Second, consent was given in public.

Third, there were no threats, promises, or coercive procedures: the inspectors were in plain clothes

and neither brandished nor displayed any weapons. Fourth, Mr. Lindon’s words and conduct do

not reveal any duress or coercion. Mr. Lindon did not say anything to the inspectors; his only

response was to empty his pockets. Fifth, Mr. Lindon’s cooperation was minimal because he

merely turned out his pockets. Sixth, Mr. Lindon was not a newcomer to the law, he was an

attorney. Seventh, Mr. Lindon was intelligent and highly educated: he was both an attorney and a

pharmacist. Eighth, Mr. Lindon apparently believed that no incriminating evidence would be found

because he had just swallowed at least some of the contents of his pocket.

C. Mr. Lindon was not in custody.

When determining whether a person is in custody for Miranda purposes, the relevant

inquiry is not whether a reasonable person in that situation would feel free to leave. City of

Cleveland v. Oles, 2017-Ohio-5834, 30 (Ohio). It is noted that Mr. Lindon is an experienced

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criminal trial lawyer. Instead, “the relevant inquiry is whether a reasonable person in the suspect’s

position would ’have understood himself or herself to be in custody.” Id. (emphasis in original).

“‘[N]ot free to leave’ and ‘in custody’ are distinct concepts.” Id. Even placing a suspect in the front

seat of a police vehicle during a traffic stop does not necessarily amount to a custodial

interrogation. City of Cleveland v. Oles, 2017-Ohio-5834, ^ 1 (Ohio).

Courts generally use a ten-factor test when determining whether a person is in custody for

Miranda purposes. State v. Martinez, 2016-Ohio-5515, ^ 20 (8th Dist.) (citing other cases); see
/’
also Ohio Arrest, Search and Seizure, § 22:9 (2016"ed.). The factors are:

1. the location of the questioning;

2. whether the suspect was a suspect when the interview began;

3. whether the suspect’s freedom to leave was restricted;

4. whether the suspect was handcuffed or told he was under arrest;

5. whether any threats were made during the interrogation;

i

6. whether the suspect was physically intimidated;

. 7. whether the police verbally dominated the suspect;

8. the suspect’s purpose for being at the location where the questioning

occurred;

9. whether any neutral parties were present; and

10. whether the police took any action to overpower, trick, or coerce the

suspect into making a statement.

Applied to the facts in the present case, the totality of these factors weigh against there

being a custodial interrogation.

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 Here, the communication took place in a hospital emergency department. Since the location

was not in a police car, police station, or other intimidating setting, this factor weighs against

custody.

Although Mr. Lindon was a suspect when the interview began, as will be shown, this

second factor is the only factor that weighs in favor of custody.

Mr. Lindon’s freedom to leave was not restricted. The relevant inquiry is not what the

Cleveland clinic inspectors may have done or planned to do if Mr. Lindon attempted to leave.

Rather, the inquiry is what a reasonable person in Mr. Lindon’s situation would have understood.

“A policeman’s unarticulated plan [to arrest a suspect] has no bearing on the question whether a

suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in

the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420,

442 (1984); see also state v. Raine, 2008-Ohio-5993, 22 (8th Dist.). Since Mr. Lindon was take

to the emergency department for observation after swallowing narcotics, his freedom to leave was
\
not restricted for purposes of Miranda custody.

Mr. Lindon was neither handcuffed nor told he was under arrest. The Cleveland Clinic

inspectors and emergency department personnel did not restrain, threaten, physically intimidate,

or verbally dominate Mr. Lindon. When Mr. Lindon evinced a desire to not answer questions, the

inspectors ceased asking him questions. They allowed him to make a phone call to his wife, and

they allowed him to leave the emergency department once he was medically cleared to do so.

Therefore, the fourth, fifth, sixth, and seventh factors all weigh against custody.

The Cleveland Clinic inspectors took Mr. Lindon to the emergency department because

they suspected that Mr. Lindon had stolen and then swallowed narcotic medication in the

pharmacy. The purpose of the visit was medical, not investigative. Multiple neutral parties were

5
present, including doctors, nurses, and other emergency department personnel. The eighth and

ninth factors weigh against custody.

The Cleveland Clinic inspectors did not take any actions to overpower, trick, or coerce Mr.

Lindon into making a statement. Their communication with him was brief and professional. The

tenth factor weighs against custody.

The totality of the investigation and the inspectors’ interactions with Mr. Lindon reflects a

diligent and professional process. Mr. Lindon was not in custody to purposes of Miranda.

IT IS SO ORDERED.

eIvsstrickland saffold
JUDGE SHIRL
Date: 3V*V*>