A motion to suppress in an aggravated menacing case was tentatively overruled following a hearing in the Hillsboro Municipal Court on Thursday.
Charles Warner Jr., 34, Hillsboro, is charged with first-degree misdemeanor aggravated menacing, second-degree misdemeanor obstructing official business and minor misdemeanor disorderly conduct.
According to defense attorney Brock Schoenlein, the suppression hearing was focused on whether or not the involved Highland County Sheriff’s Office deputy had “reasonable suspicion” to search for a suspect on the Warner property.
Prosecutor Fred Beery called Deputy Justin Malone as a witness. During testimony, Malone said he was dispatched this past summer to investigate a disturbance near Sinking Spring Road. While en route, Malone reportedly received a call saying that the suspect had left in a red Chevy S-10.
Malone said he then passed a vehicle matching that description and began to pursue it. He added that he eventually stopped pursuing the vehicle due to the narrow roads and oncoming fog.
Malone said that when he informed dispatch that he had lost the vehicle, his sergeant informed him to check the Warner residence, as the suspect “frequented” that property.
Once he arrived, the deputy said that a man, later identified as Warner, “emerged from the darkness” with fresh injuries. The deputy said he offered to call a life squad, which Warner reportedly refused.
Malone said that Warner told him to get off the property. He also told the court that Warner had “highs and lows,” shifting between being cooperative and being aggressive.
Malone added that at one time, Warner allegedly “told me he was a passenger” in the suspect truck, but did not know who had been driving.
When later asked by the defense, the deputy said that Warner had also told him he “was trespassing and (he) might find himself shot.” Malone said he felt threatened by Warner’s statement. He added that the suspect he had been pursuing was later found “not too far away.”
During the defense’s questioning, Malone said the sergeant did not supply any details concerning the suspect “frequent(ing)” the Warner property.
“It could have been anything?” Schoenlein asked, providing once a month or once a year as possible examples.
“I was doing what I was told,” the deputy said.
When asked, the deputy said he had not seen Warner in the suspect vehicle. He also confirmed that the truck was not registered to Warner.
Schoenlein summarized Malone’s answers, saying that the “only reason” the deputy went to Warner’s residence was on the sergeant’s suggestion.
Schoenlein asked the deputy how much time had passed between losing the truck and then going to the Warner residence. Malone said between five to 10 minutes had elapsed.
He also asked if Malone could see the parked vehicles at the Warner residence from the road. Malone said he could not.
The deputy said that after making contact with Warner, he asked him to “just stay there” until another deputy arrived. When asked why he told Warner to stay, Malone said, “Safety.”
At that point, Schoenlein asked for Warner’s exact words concerning his alleged threat. Malone provided those, and Schoenlein asked if Warner could have asked that, if the deputy flew up a driveway at night, people could have guns and he could get shot.
Malone said he was “one hundred percent sure” that Warner did not say that, but said that the deputy was trespassing and “might find (himself) shot.”
Schoenlein then asked Malone if Warner had a gun, if he lunged at the deputy, or if he asked someone else to bring him a gun. Malone said Warner had not.
“Can you help me understand your concern?” Schoenlein asked.
“If you follow the news lately, more and more officers have been a target,” Malone said.
After Malone left the stand, the defense called a relative of Warner’s as a witness. Schoenlein showed her photographs that she had taken of the involved property, both at night and during the day. He asked her if, from the road, cars parked at the property could be seen. She said they could not.
Schoenlein then asked if there was a trespassing sign. She said there was, on a fence at the entrance to the driveway. When asked if it could be seen at night by a car’s headlights, she said, “Absolutely.”
During closing statements, Schoenlein said the “only reason” the deputy went to the Warner property was because the sergeant said the suspect “frequented” the location.
“We don’t know what that means,” Schoenlein said. He added, “Our position is that (the) standard of reasonable suspicion cannot be met.”
Beery then said, “If the court rules that the deputy did not have the right to come to that property” and knock on doors while looking for a suspect “the police might as well give up.” He added that the owner of the property, a different relative of Warner’s, had given the deputy consent for a search.
Schoenlein then added that no crime had occurred on the property in question and therefore there had not been reasonable suspicion. He added that without that reasonable suspicion, a deputy could “go on to every property in a 10-mile radius” while looking for the suspect.
Hillsboro Municipal Court Judge David H. McKenna said that the case was “not a matter” of going to every door, but was about the deputy following his supervisor’s instructions. He added that this case involved “old-fashioned police work.”
McKenna also referenced the deputy’s testimony, in which he said Warner told him he was a passenger in the vehicle that had been fleeing and eluding him.
Schoenlein then asked the judge if he could be permitted to provide case law to the court. McKenna said he could.
The motion to suppress was overruled pending the review of case law submitted within 48 hours.
Reach Sarah Allen at 937-393-3456, ext. 1680, or on Twitter @SarahAllenHTG.