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Rejecting appeal, judges rule secret recording of drug deal was admissible as evidence
JESSICA SHAMBAUGH
Special to the Legal News
Published: April 2, 2014
A 2nd District Court of Appeals panel recently rejected a man’s arguments that an audiovisual recording was improperly admitted as evidence against him and instead affirmed his drug convictions.
Noel Mangan appealed to the court after he claimed the Greene County Court of Common Pleas erroneously dismissed his motion to suppress evidence against him.
He claimed that incorrect dates on the recordings created questions about their authenticity.
Upon review, the appellate judges found that the recordings were taken by an undercover police officer in the early months of 2012.
In February 2012, Yellow Springs police detective Naomi Penrod and a confidential informant entered Mangan’s residence to purchase methamphetamine.
At the time, Penrod had “a surreptitious miniature recording device in the form of a car key fob” on her person.
The device recorded the transaction and showed that after the sale, Penrod observed Mangan manufacturing methamphetamine in a pole barn on his property.
Penrod then turned the device over to a Sugarcreek Township police detective who uploaded the file to a computer.
The detective testified that the key fob had a limited storage capacity so after he uploaded the information he deleted it from the recording device so it could be reused.
The following month, Penrod and the informant returned to Mangan’s home to purchase methamphetamine once more.
The transaction was recorded and, again, Penrod turned over the footage to the detective.
It was uploaded onto a computer and Mangan was charged with two counts of illegal manufacture of drugs, two counts of illegal assembly or possession of chemicals for the manufacture of drugs, three counts of aggravated trafficking in drugs and one count of possession of criminal tools.
Following a jury trial, the common pleas court acquitted Mangan of one count of illegal manufacture of drugs.
He presented no evidence and the jury found him guilty of all remaining counts.
The trial court merged several of the counts and sentenced Mangan to a total of five years in prison, suspended his driver’s license for five years and ordered him to pay court costs.
On direct appeal, Mangan argued that the audiovisual recordings should not have been admitted as evidence.
He claimed the recordings were duplicates and subjected to evidence rules that required them to be suppressed if there was a genuine question about their authenticity.
He stated that such a question existed because the times and dates on the recordings were not correct.
The three-judge appellate panel found that Penrod testified she was present when the recordings were made and that they accurately depicted the events.
“Therefore, the only question raised as to the authenticity of the original recordings is the time and date ‘stamped’ on the recordings,” Judge Mike Fain wrote for the court.
The state acknowledged during the trial that the times and dates listed on the recordings were not correct and instead offered other evidence to establish when the transactions took place.
Therefore, the judges ruled, the recordings were not offered to show when the alleged offenses happened.
“But it is common knowledge that time and date stamps on recording devices, unless the devices are connected to the Internet, must be correctly set up by a user initially, and must be maintained, so that inaccuracies in a time and date stamp on an audiovisual recording device often occur without impugning in any way the accuracy of the audiovisual recordings underlying the time and date stamps,” Judge Fain stated.
“We conclude, therefore, that the trial court did not err in admitting the audiovisual recordings in evidence.”
In a second assignment of error, Mangan claimed that Penrod unlawfully entered his residence without his consent because he was unaware that she was a police officer and she lacked a warrant.
In reviewing similar cases, the judges found the Ohio Supreme Court previously ruled that “When an individual gives consent to another to enter a private area wherein illegal activities are being conducted, the consent does not lose its status of being freely and voluntarily given merely because it would not have been given but for the fact that the other person failed to identify himself as a police officer or agent.”
Finding other similar rulings from the United States Supreme Court, the judges overruled Mangan’s assignment of error.
“Both of Mangan’s assignments of error having been overruled, the judgment of the trial court is affirmed.”
Judge Jeffrey Froelich and 11th District Judge Thomas Wright concurred. Judge Wright sat for the case by assignment of the chief justice of the Supreme Court of Ohio.
The case is cited State v. Mangan, 2014-Ohio-960.
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