April 19, 2014

Medina
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Bong statement ruled inadmissible

MEDINA — A judge has barred prosecutors from presenting at trial a 22-year-old Montville Township man’s admission to police that a glass water pipe found in his pickup had been stolen from a Brunswick tobacco shop.

Seth Cunningham

Seth Cunningham, of 3175 Central Park Lane, Montville Township, was arrested May 13 and charged with stealing the water “bong” from Twilight Boutique at gunpoint just after midnight. A University of Akron football player at the time, Cunningham was suspended from the team after his arrest.

He’s charged with aggravated robbery, a first-degree felony punishable by more than 11 years in prison.

Cunningham’s legal team — Joseph Salzgeber and father-daughter pair Gerald and Melissa Piszczek — filed a motion to suppress evidence in July, arguing that Brunswick police Officer Sam Gagliardi failed to inform Cunningham of his rights to an attorney and to remain silent before questioning him.

Gagliardi testified in November that Cunningham admitted he had the stolen bong in his pickup almost immediately after he pulled Cunningham from the driver’s seat. Gagliardi said he pulled his gun on Cunningham and arrested him after becoming suspicious that the truck was involved in the robbery, which had happened less than an hour earlier.

Cunningham’s attorneys argued the admission should be thrown out because their client hadn’t been informed of his rights, commonly referred to as Miranda rights.

Medina County Common Pleas Judge Christopher J. Collier granted the motion Friday.

“The court finds that Cunningham was in custody when he was pulled out of the vehicle at gunpoint and was not Mirandized,” Collier wrote. “Therefore, the statements made by Cunningham prior to his initial Miranda rights being given are hereby suppressed.”

But Collier rejected the defense attorneys’ argument that Gagliardi didn’t have reasonable suspicion to arrest their client and violated Fourth Amendment search and seizure laws by opening the truck door.

Gagliardi said a worker at the boutique, a 24-hour shop in Brunswick’s Archway Plaza, told police a man armed with a handgun and wearing a mask and camouflage jacket stole a “glass water bong.”

While one officer stayed to collect evidence, Gagliardi said he went to look for the robber.

He said he watched Cunningham’s truck pull into a driveway, but Gagliardi said he knew which vehicles belonged there because he had considered buying the house.

Gagliardi said he approached the vehicle and saw Cunningham crouched down “hiding” in the driver’s seat.

The judge said Gagliardi had all the evidence he needed.

“Officer Gagliardi had an abundance of evidence to support the opening of the passenger door of Cunningham’s truck,” Collier wrote. “Once he opened the door, he saw the gun, the camouflage clothing and the bong. At this point, seizure of Mr. Cunningham was proper.”

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