Fact That Prisoner Was Under Arrest Did Not Make Conveyance of Illegal Drug Into Jail ‘Involuntary’
2008-1452. State v. Cargile, Slip Opinion No. 2009-Ohio-4939.
Cuyahoga App. No. 89964, 2008-Ohio-2783. Judgment reversed and cause remanded.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4939.pdf 
View oral argument video of this case.
(Sept. 24, 2009) The Supreme Court of Ohio ruled today that a person who is taken to a detention facility after being arrested and who enters that facility while knowingly in possession of an illegal drug has voluntarily conveyed a drug of abuse into a detention facility and can therefore be found guilty of violating R.C. 2921.36(A)(2), the state law that prohibits such conduct.
The Court’s 7-0 decision, written by Justice Robert R. Cupp, reversed a ruling of the 8th District Court of Appeals.
The case involved the March 2007 arrest and incarceration of Cleveland Cargile for robbery. The arresting officer performed a pat-down search at the time of the arrest and later conducted a second pat-down before Cargile was placed in the officer’s police car for transport to a detention facility. Neither search turned up any illegal weapons or drugs in Cargile’s possession. Prior to taking Cargile into the detention facility for processing, the arresting officer warned Cargile twice that he should tell the officer if he had any drugs or weapons on him because bringing such items into the jail would likely cause him to be charged with a separate felony offense. Cargile responded that he did not possess anything that the officer needed to be concerned about.
After Cargile entered the detention facility, an officer conducted another search before he was placed in a jail cell. Suspicious of Cargile’s evasive leg movements during this search, the officer discovered marijuana hidden inside one of Cargile’s pants cuffs. Cargile was indicted on two counts of robbery and one count of illegal conveyance of prohibited items onto the grounds of a detention facility. A jury found Cargile not guilty of both robbery counts, but returned a guilty verdict on the illegal-conveyance count. The trial court sentenced Cargile to two years in prison.
Cargile appealed, and the 8th District Court of Appeals vacated his conviction. The court held that because Cargile had entered the detention facility only as a result of his arrest, and not through his own affirmative conduct, his conveyance of drugs into that facility was not voluntary for the purposes of R.C. 2921.36(A)(2). The state, represented by Cuyahoga County prosecutor’s office, sought and was granted Supreme Court review of the 8th District’s ruling.
Writing for the Court in today’s decision, Justice Cupp rejected the court of appeals’ reasoning that because Cargile entered the detention facility only as a result of being arrested, his presence there in possession of an illegal drug was a wholly involuntary act.
“We disagree with the court’s analysis and conclude that Cargile’s conduct constituted a voluntary act,” wrote Justice Cupp. Conscious and aware of the physical presence of the drugs hidden in his pants cuff, Cargile did not reveal his possession of the drugs during any of the searches. Moreover, Cargile affirmatively concealed the drugs by stating to the arresting officer that he did not possess anything the officer needed to be concerned about, despite the warning Cargile received that if he brought drugs into the detention facility he would be committing a felony. Cargile declined opportunities to end his possession of the drugs before entering the facility. Accordingly, Cargile’s possession of the drugs when he entered the detention facility was a voluntary act and thus, he was criminally liable under R.C. 2921.36(A)(2).”
Justice Cupp acknowledged Cargile’s argument that requiring him to affirmatively disclose his possession of an illegal drug to the arresting officer would violate his constitutional right to remain silent after being placed under arrest. He noted that, as a procedural matter, Cargile was barred from raising this argument on appeal because he failed to assert at trial that his right against self-incrimination had been violated. But notwithstanding the procedural defect, Justice Cupp wrote, Cargile’s self-incrimination argument lacks merit.
“Cargile’s argument is based on a faulty premise: that the right to remain silent and avoid self-incrimination also includes the privilege of lying or providing false responses to direct questions. Despite the several warnings the officer gave Cargile about bringing drugs into a detention facility, Cargile actively denied possessing any drugs. The constitutional right to remain silent does not confer upon a defendant the privilege to lie, Brogan v. United States (1998) … or the right to be protected from having to make difficult choices regarding whether to invoke the right to remain silent, State v. Canas (Iowa, 1999) … Thus, this constitutional protection does not apply to Cargile’s conduct.”
“Cargile additionally asserts that R.C. 2921.36 is not aimed at prisoners. He claims that the intent of R.C. 2921.36 is to prevent visitors, employees, or other nonprisoners from bringing drugs or other contraband into a detention facility and because he was not a visitor, employee, or other nonprisoner, R.C. 2921.36 does not apply to him. … We find no language within the statute to support Cargile’s interpretation. R.C. 2921.36 applies uniformly to all persons and provides a blanket prohibition: ‘No person shall knowingly convey’ weapons or drugs onto the grounds of a detention facility. (Emphasis added.) This statute is broadly written. We reject Cargile’s interpretation, which would not only change the language of the statute but would also limit the purposes to be accomplished by its proscriptions.”
Noting that the court of appeals did not review several additional claims of trial court error raised by Cargile because it dismissed his conviction on other grounds, the Court remanded the case to the 8th District for consideration of the assignments of error not addressed in its earlier decision.
Contacts
Kristen L. Sobieski, 216.698.2226, for the state and Cuyahoga County prosecutor’s office.
Jerome Emoff, 216.861.4211, for Cleveland Cargile.
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