City of Cleveland Heights v. Stross

461 N.E.2d 935, 10 Ohio App. 3d 246, 10 Ohio B. 343, 1983 Ohio App. LEXIS 11156

• Court: Ohio Court of Appeals
• Decided: August 15, 1983
• Docket: 45768
• Status: Published

Opinions

Pryatel, J.

The lower court granted appellee’s motion to suppress a written confession because the statement had not been made voluntarily. The city of Cleveland Heights appealed.

At approximately noon, defendant-appellee, Anthony Stross, who was nineteen years old and a stock clerk for Gold Circle in Cleveland Heights, was detained by security for questioning concerning the alleged theft of a radio. An alleged accomplice was also detained in a separate room. Appellee had been at work since 6:00 a.m. and was about to take a lunch break when security took him to an upstairs office, where he was held until approximately 5:00 p.m.

For the first two and one-half hours, appellee waited in the office with Ed Warzwik who was doing his paperwork and who was instructed to watch appellee. Jeff Melnick, a security guard, told ap-pellee to “write down what happened.” Appellee wrote a statement denying any involvement in or knowledge of the theft.

Appellee was scheduled to leave work at 3:00 p.m. when he planned to pick up his fiancee’s grandmother at the airport. He requested permission to telephone his fiancee and was allowed to make one call, but he was unable to reach his fiancee. Appellee was then forbidden to make any more telephone calls. Appellee’s sister, who also worked at Gold Circle, was not informed as to what was going, on; however, she learned that her brother was being detained and called his fiancee.

Appellee asked Warzwik why there was such a long wait. Warzwik replied that he did not know. At about 2:30 p.m., Tim Leslie, the head of security for that store, entered the office, read the statement written by appellee, and left. Leslie returned around 3:00 p.m., and, in response to appellee’s inquiry as to what was happening, he informed appellee that they were waiting for the security supervisors, Mr. Ancil of the Akron store and for Mr. Downey of the Canton store.

Ancil and Downey arrived between 4:00 p.m. and 4:30 p.m. and asked Warz-wik to leave the office. Ancil read the statement written by appellee, wadded it up, threw it away and told appellee that he didn’t believe it. Ancil then advised ap-pellee that it would be to his (appellee’s) benefit to be truthful, and that he (Ancil) and Downey already had enough evidence to call the police. Ancil waved papers, purported to be statements by witnesses implicating appellee, in front of him. He then implied that unless appellee made a “true” statement the police would be called. Ancil then left the room, and Downey told appellee that he should have cooperated and that he would now get into deeper trouble. Appellee asked if it was too late, and if the police had been called yet. He was told he had made the right decision. Ancil returned and prepared a written statement, which said that ap-pellee had assisted in trying to steal a radio. He also signed a statement, again prepared by Ancil, implicating himself (appellee) in other thefts. Appellee was arrested.

These statements were signed after appellee had been detained for five hours. Appellee had not eaten since the previous evening. Nor was he given anything to eat or drink. He was not allowed to leave the room or phone anyone after the one call he tried to make at 2:30 p.m.

After hearing the evidence and evaluating the witnesses, the trial court sustained the motion to suppress. The city of Cleveland Heights appealed, assigning a single error:

“I. The trial court’s judgment sustaining appellee’s motion to suppress statements because [they were allegedly] obtained involuntarily was clearly erroneous.”

Appellant argues that the statements were voluntarily made by appellee. The city must prove by a preponderance of the evidence that the statements were voluntary. Lego v. Twomey (1972), 404 U.S. 477.

In determining whether a confession was made voluntarily, the court is to consider the totality of the circumstances surrounding the confession. State v. Barker (1978), 53 Ohio St. 2d 135 [7 O.O.3d 213], certiorari denied (1978), 439 U.S. 913. Physical mistreatment is not the only circumstance to be considered; the length of detention as well as isolation from family and counsel are also factors. Reck v. Pate (1961), 367 U.S. 433, at 441-444. Refusing to allow the accused to make telephone calls to family or counsel is a factor to be considered. Haynes v. Washington (1963), 373 U.S 503, at 513-514. The court must also consider the age of the accused, Haley v. Ohio (1948), 332 U.S. 596, as well as the psychological impact of any coercive influences on the accused’s ability to make a free choice. State v. Cowans (1967), 10 Ohio St. 2d 96, at 101 [39 0.0.2d 97], Other circumstances to be considered include the prior criminal experience of the accused, the existence of physical deprivation, and the existence of threat or inducement. State v. Edwards (1976), 49 Ohio St. 2d 31, at 40-41 [3 O.O.3d 18].

There was sufficient evidence in the record to support the trial court’s ruling that the confession drawn by representatives of the employer was not voluntary. Appellee was detained in a small office for five hours, without food, drink, use of the restroom, or contact with family or counsel. At the time of his confession, ap-pellee had not eaten for nearly twenty-four hours. He was not informed as to why he was being detained for such a length of time until he had been waiting for two and one-half hours, only to learn that they were awaiting supervisors who were coming from out of town. Appellee was only nineteen years old and had no criminal record. Although his sister worked in an office near the one appellee was restricted to, she was not allowed to see him. Appellee was induced to believe that if he confessed he would only lose his job but, if he did not confess, he would be arrested and would serve time in jail. Furthermore,, the conduct by the representatives of appellee’s employer was not in line with the requirements of R.C. 2935.041, which provides in pertinent part as follows:

“(A) A merchant, or his employee or agent, who has probable cause to believe that items offered for sale by a mercantile establishment have been unlawfully taken by a person, may, for the purposes set forth in division (C) of this section, detain the person in a reasonable manner for a reasonable length of time within the mercantile establishment or its immediate vicinity.

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“(C) An officer, agent, or employee of a library, museum, or archival institution pursuant to division (B) of this section or a merchant or his employee or agent pursuant to division (A) of this section may detain another person for any of the following purposes:

“(1) To recover the property that is the subject of the unlawful taking, criminal mischief, or theft;

“(2) To cause an arrest to be made by a peace officer;

“(3) To obtain a warrant of arrest.”

In our judgment, appellee was not detained in a reasonable manner or for a reasonable length of time.

Nor will we substitute our judgment for that of the trial judge, who saw and heard the witnesses and concluded that the statements were involuntary. The motion to suppress the confession as involuntary was properly granted. The decision of the trial court is affirmed.

Judgment affirmed.

Ann McManamon, J., concurs. Parrino, P.J., dissents.