Fuhry Denies Motion to Suppress Lane's Family's Statements
Friday, December 28, 2012
Yet another motion to suppress has been denied.
Geauga County Court of Common Pleas Judge David Fuhry ruled Friday morning in favor of the state regarding the motion to suppress statements the family of accused Chardon High School gunman T.J. Lane made at the Chardon police station the morning of the Feb. 27 shooting.
“There is no reasonable expectation that conversations outside the presence of police officers will be private when they are conducted in what is obviously a police interrogation room,” Fuhry said in his ruling, which denied the motion to suppress, allowing the statements in question to be used in court if the prosecution decides to.
The motion, made by Lane’s attorney Mark DeVan, contended the family believed their conversations while waiting to be interviewed by police were private and were “unlawfully intercepted” with recording devices, based on Ohio wire tap laws.
Fuhry said in this case, the exception would exist if the police had assured Lane’s family their conversations were private.
“In such a case, any recorded statements are subject to suppression because the recorded statements are obtained by deception,”?the judge said in his ruling. “However, that situation did not occur here.”
The wire tap laws say, in part, “no part of the contents and no evidence derived from the contents of any intercepted wire, oral or electronic communication shall be received in evidence in any trial, hearing or other proceedings ... if the disclosure of that information is in violation of (the Ohio) Revised code.”
During the suppression hearing Dec. 19, where Lane’s family — sister, Sadie; mother, Sarah Nolan; father, Thomas Lane Jr.; and grandparents, Jack and Carole Nolan — took the stand to testify, DeVan argued all of them were surprised when they learned their conversations were taped.
“They would stop their conversations whenever a policeman would enter the room,” DeVan had said, adding the family fully expected those conversations would be kept private and no one had advised them they would be recorded.
Geauga County Assistant Prosecutor Nick Burling argued the Lane family did not have a reasonable expectation of privacy.
During the hearing, he candidly contested,“all of these statements that were recorded occurred in a police interview room at a police station, filled with police, responding to a shooting that happened on Feb. 27.”
He added, “There is no basis for anyone to believe they can have a private conversation in an interview room in a police station and expect that no one would be able to overhear that."
Fuhry said there is a “two-prong test” to determine if intercepted communications violate wire tap laws.
First off, the person whose statements are intercepted must have a subjective expectation of privacy; and secondly, that expectation must be one that society recognizes as reasonable.
If the answer to both is yes, then the state has violated the law and said statements should be suppressed, Fuhry wrote.
In this case, however, Fuhry said DeVan and the family’s testimonies did not “seriously” dispute they subjectively believed their conversations to be private.
DeVan had also argued during the hearing two weeks ago that a police cruiser is not the same as an interrogation room.
However, Fuhry disagreed.
“If the interrogation room is the equivalent of a police car, which this court believes it is for purposes of this analysis, the Lane family members had no reasonable or objective expectation of privacy,” he said. “It may well be that their statements are not admissible in the case for other reasons. However, they are not suppressed on the ground that the recording of those statements was improper under Ohio wire tap laws or State of Ohio constitutions."
Fuhry said there was no deception on the part of the police and the Lane family members "voluntarily submitted to questioning."
"They conversed among themselves in an interrogation room and the questioning was incident to an intense police investigation," he wrote. "They knew or should have known that this was an interrogation room and not a private area where private conversations can take place. They knew that a family member was suspected of a serious crime. The motion to suppress is denied.”
Lane, who has been charged with three counts of aggravated murder, two counts of felonious assault and one count of attempted felonious assault, has a trial date set for Jan. 14.
He is accused of opening fire in the high school cafeteria Feb. 27, killing three students — Daniel Parmertor, 16, Russell King Jr., 17, and Demetrius Hewlin, 16 — and wounding three others.
Those wounded were Nick Walczak, 18 — who is paralyzed from the chest down — Joy Rickers, 18, and Nathan Mueller, 17, whose ear was grazed by one of Lane’s bullet.
If convicted, Lane could face up to life in prison without parole.