By Sarah Hogsed
Register News Writer
After a suppression hearing Friday morning, a Madison Circuit judge ruled that two Berea police officers acted within the bounds of law when they approached two men who had reportedly spilled pills on the ground outside Walmart.
On Sept. 13, 2012, James Young, 36, and Donnie Marcum, 54, were found to be in possession of methamphetamine along with several items used in to make the illegal drug, according to a Berea police report.
Marcum later was indicted by a Madison County grand jury on charges of manufacturing methamphetamine, first-degree possession of a controlled substance and first-degree persistent felony offender, which means he had previously been convicted of a felony.
The PFO enhances the manufacturing methamphetamine charge, which normally carries a sentence of 10 to 20 years in prison. If convicted, Marcum faces 20 to 50 years or life in prison.
Young could serve up to 20 years in prison if he is found guilty because he does not have a prior felony conviction.
At issue during the hearing, brought about by a motion from Marcum’s attorney Tim Despotes, was whether the two Berea police officers had probable cause to approach Marcum and Young’s vehicle and ask for their ID. If Judge William G. Clouse had ruled they did not have a legal basis to approach the truck, then evidence they found afterward would not be admissible.
“Is spilling pills a crime?” Despotes asked the hearing’s sole witness, BPD Detective Daniel McGuire.
Despotes said items the anonymous caller saw spill onto the ground could easily have been Tic Tac mints or Flintstone vitamins.
“Being clumsy is not a crime,” Despotes said.
McGuire testified that an anonymous caller had phoned BPD Capt. Ken Clark and said two men were seen in the Berea Walmart parking lot who had dropped pills on the ground. Clark then contacted dispatch, and McGuire and another officer were sent to investigate.
The officers were able to find a vehicle that matched the description and license plate provided by the caller. The truck was unoccupied, so the officers waited for the men to return.
McGuire said the call about the pills led him to believe the driver could be intoxicated, so he and the officer approached the men when they returned to the truck.
“(McGuire) can’t do his job as a police officer and let people get in vehicles possibly impaired,” Assistant Commonwealth’s Attorney Tom Smith said.
McGuire said the men were noticeably observant of their surroundings and had their “heads on a swivel,” which also made him suspicious.
The men gave police permission to search them and their vehicles. McGuire also said he noticed that Young was so nervous he was shaking when he handed the officer his driver’s license.
The officers found plastic bags with white residue on Young, which later was determined to be meth. Marcum had a vial with bags of meth inside, according to the BPD report.
Inside the car, the officers reported finding a stripped lithium battery and two boxes of Sudafed, items commonly used in the manufacture of methamphetamine.
Clouse said one of the standards he must use to form his judgement was whether the officer’s testimony seemed “genuine and believable.”
He said McGuire’s testimony did meet that standard.
Based on the totality of factors – the anonymous call, the description of the vehicle and license plate, and the unusually observant and nervous behavior of the men – the officers did have probable cause to approach Young and Marcum, the judge ruled.
The officers had “every right” to walk up to the parked truck and ask for ID, Clouse said.
Marcum and Young are set to stand trial Nov. 4. Neither defendant was present for the suppression hearing.
Sarah Hogsed can be reached at email@example.com or 624-6694.