November 1, 2014

Medina
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Motion: Miranda rights violated

MEDINA — Attorneys for a 22-year-old Montville Township man accused of robbing a tobacco supplies store at gunpoint in May say his statements to a police officer should be thrown out because he wasn’t informed of his right to remain silent.

Seth Cunningham, of 3175 Central Park Lane, is charged with aggravated robbery, a first-degree felony, and two gun specifications. If convicted, he could face more than 11 years in prison.

Cunningham’s legal team — Joseph Salzgeber and father-daughter pair Gerald and Melissa Piszczek — filed the motion to suppress evidence in July.

They seek to have all police testimony barred from court proceedings. They accuse the arresting officer of having no reasonable suspicion that Cunningham was breaking the law, of failing to inform Cunningham promptly of his rights to an attorney and to remain silent, and of violating search-and-seizure laws.

Medina County Common Pleas Judge Christopher J. Collier said he’d make a decision by next Friday whether to grant the motion for suppression.

Brunswick Officer Sam Gagliardi said on the stand Friday during the suppression hearing he responded to a 911 call just after midnight May 13. A worker at Twilight Boutique, a 24-hour shop in the city’s Archway Plaza, said a man armed with a handgun and wearing a ski mask and camouflage jacket stole a “glass water bong” from the store.

Gagliardi said another officer stayed to collect evidence, so he went to look for the suspect.

He said he was driving down the 1700 block of Clemson Road, about a quarter-mile from the shop, when he saw a black pickup pull abruptly into a driveway and park illegally over the sidewalk, in violation of a city ordinance.

Gagliardi said he found that suspicious because he didn’t recognize the vehicle as belonging to someone in that house. He said knew what vehicles belonged there because he had thought about buying the house.

“I thought that was unusual,” Gagliardi said. “I ran the plate, and I saw it belonged to a Seth Cunningham out of Medina.”

He said he stopped his cruiser behind the truck and approached the vehicle.

Gerald Piszczek questioned whether Gagliardi’s suspicion was reasonable.

“It’s not unusual for Medina residents to visit people in Brunswick, right?” Piszczek said. “Mr. Cunningham could have been there for any number of legal purposes, correct?”

“Correct,” Gagliardi said. “At this point, I didn’t know if I had the robbery suspect, if whoever was driving was having a medical emergency, or if it was just a drunk guy who passed out in his car.”

As he approached, Gagliardi said he noticed the driver’s window was blacked out, which made him uneasy. He went around to the front of the vehicle and saw Cunningham inside, slouched down trying to “hide.”

Gagliardi said he pulled his gun and ordered Cunningham out of the vehicle.

“Would parking on a sidewalk normally result in pulling a gun?” Piszczek asked.

“In other circumstances, no,” Gagliardi said. “But there had just been a robbery and I was looking for a suspect. When I saw him trying to hide, I drew my sidearm.”

He said he opened one of the truck’s doors and saw a camouflage jacket, a 9 mm handgun on the passenger seat, and a glass water bong on the floor.

Piszczek said opening the door violated Fourth Amendment search and seizure laws.

“Why did you open the door?” county Assistant Prosecutor Michael McNamara asked.

“Because I couldn’t see him,” Gagliardi said. “I didn’t know if he was armed.”

He said he arrested Cunningham after he saw what was inside.

“I asked if there was anything illegal in the vehicle,” Gagliardi said. “He said there was a bong. I then asked if it was stolen from Twilight Boutique, and he said yes.”

Gagliardi said he then twice read Cunningham his Miranda rights, informing him of his right not to answer questions— once at the time the arrest and again at the Police Department. A recording of the initial warning was played in court Friday.

Piszczek said he wasn’t read his rights soon enough.

“It was not until Mr. Cunningham’s rights were violated multiple times that the officer finally advised Mr. Cunningham of his rights under Miranda,” Piszczek said in court documents.

In the written response opposing the suppression motion, the prosecutor argued that Cunningham did not have to be told of his right to remain silent until he was taken into custody.

“Cunningham was not in ‘custody’ when he was initially seized or when asked to exit his vehicle,” McNamara wrote. “Cunningham was only taken into custody when he was formally arrested following the observation of items used or taken in the commission of the robbery — the digital camouflage army jacket, the gun and the clear glass bong.”

Contact reporter Nick Glunt at (330) 721-4048 or nglunt@medina-gazette.com.