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State v. Myers6/8/1990
STEPHENSON, Judge.
This is an appeal from a judgment entered by the Marietta Municipal Court sustaining a motion to suppress filed by Gary E. Myers, defendant below and appellee herein. The state of Ohio, plaintiff below and appellant herein, assigns the following errors:
"The trial court erred in finding that the officer intercepted an attorney-client conversation and consequently erred in suppressing the refusal because of an alleged interception."
On November 14, 1988, appellee was stopped by Trooper T.L. McGill of the State Highway Patrol. Appellee had been driving in a very erratic manner. A strong odor of alcohol was present about appellee's person. He was subsequently charged with driving under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1) and failure to wear a seat belt in violation of R.C. 4513.263. Appellee was advised of his constitutional rights and was transported to the State Highway Patrol post.
Upon arrival at the post, appellee was again advised of his rights. Appellee then requested an attorney, i.e., Janet Fogel. After a short phone conversation with appellee, Fogel spoke with McGill and requested an opportunity to speak with appellee privately over the phone. McGill informed Fogel that it would not be possible to leave appellee alone with the phone because there were no secure areas within the post. Appellee spoke with Fogel again for a short period. After finishing his conversation with Fogel, appellee was shown an implied consent form of which he acknowledged understanding. Appellee then refused to take a breathalyzer test.
On December 8, 1988, appellee filed a motion to suppress evidence of his refusal to take the breathalyzer test. After three hearings, the Marietta Municipal Court granted appellee's motion,relying heavily upon the Ohio Supreme Court's decision in State v. Milligan (1988), 40 Ohio St.3d 341, 533 N.E.2d 724.
In its sole assignment of error, appellant asserts that the court bellow erred in granting appellee's motion to suppress his refusal to submit to the breathalyzer test. We agree with appellant's contention and, accordingly, reverse.
The basis for the lower court's opinion and judgment was the Supreme Court's holding in Milligan, supra. In that case, Milligan, the defendant, was in jail. He was removed from his cell so that he could contact an attorney. While Milligan was talking to his attorney, temporary jail director Robert Bartlett was in the room with him. Unbeknownst to Milligan, Bartlett was tape recording milligan's side of the conversation. The Supreme Court held that Milligan had an expectation of privacy while conversing with his attorneseven though Bartlett was in the same room. The court concluded that the evidence Bartlett procured through the unauthorized interception of a private conversation was obtained in violation of Milligan's constitutional rights to counsel.
The court went on to determine what remedy, i.e., suppression of the evidence illegally obtained or dismissal of the charges, is appropriate in cases involving an unlawful interception. The court adopted a balancing test formulated by the United States Supreme Court in Weatherford v. Bursey (1977), 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30. That test necessitates balancing the following factors:
"(1) whether the government deliberately intruded in order to obtain confidential and privileged information, (2) whether the government obtained directly or indirectly any evidence which was or could be used at trial as a result of the intrusion, (3) whether any information obtained was or could be used in any manner detrimental to the
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