IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, Case No.: 3:18 CR 24

 

Plaintiff, Judge Rice

vs.

GABRIEL NEWMAN, MOTION TO SUPPRESS

STATEMENTS AND FRUITS OF

 Defendant. SEARCH WARRANTS

Now comes the Defendant in the above-captioned case, by and through undersigned 

counsel, Brock A. Schoenlein, and hereby moves this Honorable Court for an order 

suppressing any and all evidence/contraband and/or incriminating statements obtained during, 

or by virtue of, the execution of the 2 search warrants issued for the 834 Goodlow and 63 S. 

Plaza Avenue addresses on or about February 7, 2018. Defendant also independently 

challenges the constitutionality of the statements taken from him by investigators on 1/12/18.1

Threats and inducements appear to have been used to procure same. 

As Counsel will illustrate, the affidavits in support of the search warrants, for the 834 

Goodlow and 63 S. Plaza Avenue properties, are so lacking in evidence tending to establish 

probable cause that it must be said that the issuing magistrate lacked a substantial basis for 

finding probable cause to believe drugs or related contraband would be found inside each

address. Further the good faith exception to the substantial basis requirement will be 

inapplicable to the execution of these warrants. 

 

1 Which is the date the investigative report gives for this incident, however Counsel 

suspects that this date is inaccurate, as this date is before the February 7, 2018 execution of 

the search warrants, which apparently precipitated this event. 

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Defendant thus moves for the suppression of evidence including, but not limited to, 

the following: 

1. Any incriminating evidence and/or statements obtained when Defendant was 

initially detained and questioned in the absence of any probable cause as to any violation of 

law that may have served as the basis for said detention. 

2. Any incriminating evidence and/or statements obtained in the absence of a 

reasonable articulable suspicion, of any criminal activity whatsoever on the part of Defendant, 

that served as the underlying basis for the detention. 

3. Any incriminating evidence and/or statements obtained from Defendant during

his interrogation effectuated in the absence of truly voluntary and intelligent consent thereto. 

4. Any and all statements taken from the Defendant in violation of Miranda. 

5. Any and all custodial statements taken from the Defendant where proper 

Miranda Warnings were given but where the statements taken were not made voluntarily due 

to threats and promises made by the investigators present. 

6. Any incriminating evidence and/or contraband obtained from the execution of 

the search warrants on February 6, 2018 issued for the 834 Goodlow and 63 S. Plaza Avenue 

addresses, that investigators are attributing to Defendant Gabriel Newman, when the issuing 

judge lacked a substantial basis for finding probable cause to believe drugs or related 

contraband would be found inside those properties. 

7. Any incriminating evidence and/or contraband obtained from execution of the 

search warrants for the 834 Goodlow and 63 S. Plaza Avenue properties, that Police herein 

are attributing to Defendant Gabriel Newman, where items were taken that were not 

contemplated by or permitted by said search warrant. 

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8. Any incriminating evidence and/or contraband obtained from execution of the 

search warrants for the 834 Goodlow and 63 S. Plaza Avenue properties, where the affiant 

seeking said warrant made misrepresentations to the issuing judge, and/or where materially

exculpatory information was intentionally excluded from the affidavit in application for said 

warrant. 

9. Any incriminating evidence and/or contraband obtained from execution of the 

search warrants for the 834 Goodlow and 63 S. Plaza Avenue properties, where the issuing 

judge lacked a substantial basis for issuing the warrant and where the good faith exception to 

the substantial basis requirement is inapplicable. 

The Defendant submits that the burden is upon the United States to justify any 

warrantless seizure and interrogation of the Defendant, and/or to show cause why any such 

statement taken from Defendant should not be suppressed for constitutional defects. 

Defendant also seeks judicial review of the adequacy of the affidavits for the search 

warrants, a suppression hearing regarding any statements taken from Defendant, and a Franks 

hearing to investigate the existence of collateral evidence with relation to the warrant and 

whether the good faith exception to the substantial basis requirement applies. 

MEMORANDUM IN SUPPORT

It is, and always has been, the general rule that a home cannot be searched without a 

valid search warrant, legally served. Hobson v. U.S., 226 F. 2d, 890; Johnson v. U.S., 333 US 

10. In order for a search warrant to be valid, it must be supported by probable cause, a 

determination which must be made by a neutral and detached magistrate. The affidavit upon 

which the determination of probable cause is made must consist of more than mere 

affirmation of suspicion and belief without adequate supporting facts. Nathanson v. United 

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States, 290 U.S. 41, 46. 

When assessing the adequacy of an affidavit offered to support a request for a search 

warrant, a magistrate must make a "practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of 

knowledge' of persons supplying hearsay information, there is a fair probability that 

contraband or evidence of a crime will be found in a particular place." State v. George (1989), 

45 Ohio St. 3d 325, 544 N.E.2d 640, paragraph one of the syllabus, quoting Illinois v. Gates

(1983), 462 U.S. 213, 238-239, 76 L. Ed. 2d 527, 103 S. Ct. 2317. This approach is often 

called the "totality of the circumstances" test. Id.

Where it has been determined that the magistrate did not have a substantial basis for 

finding probable cause for the issuance of a search warrant, the applicability of the good faith 

exception turns on whether the police officer's reliance on the magistrate's probable cause 

determination and on the technical sufficiency of the warrant was objectively reasonable. 468 

U.S. at 922; see, also, State v. George (1989), 45 Ohio St. 3d 325, 544 N.E.2d 640, paragraph 

three of the syllabus. The state bears the burden of demonstrating that the officer acted in 

good faith in executing an invalid search warrant. Navarre, supra; United States v. Michaelian

(C.A.9, 1986), 803 F.2d 1042, 1048. 

The Defendant further contends that any custodial statements taken from him, either at 

the scene of the arrest or subsequent thereto, were obtained in violation of his Constitutional 

rights under the Fourth, Fifth, Sixth, and Fourteenth Amendment of the United States 

Constitution. See Miranda v. Arizona, 384 U.S. 436, (1966); Berkemer v. McMarty, 468 

U.S. 420, (1984); State v. Buchholz, 11 Oh. St. 3d 24, (1984). 

"When an individual is taken into custody or otherwise deprived of his freedom by the 

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authorities in any significant way and is subjected to questioning, the privilege against selfincrimination is jeopardized." Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L. 

Ed. 2d 694 (1966). "[T]he prosecution may not use statements, whether exculpatory or 

inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the 

use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 

444. Police are not required to administer Miranda warnings to everyone whom they question. 

State v. Biros, 78 Ohio St.3d 426, 440, 1997 Ohio 204, 678 N.E.2d 891 (1997), citing Oregon 

v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L. Ed. 2d 714 (1977). Rather, police are 

required to administer Miranda warnings where an individual is subject to "custodial 

interrogation." Id., citing Mathiason at 494.

"In order to determine whether a person is in custody for purposes of receiving 

Miranda warnings, courts must first inquire into the circumstances surrounding the 

questioning and, second, given those circumstances, determine whether a reasonable person 

would have felt that he or she was not at liberty to terminate the interview and leave." State v. 

Hoffner, 102 Ohio St.3d 358, 362, 2004 Ohio 3430, ¶ 27, 811 N.E.2d 48, citing Thompson v. 

Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L. Ed. 2d 383 (1995). The first inquiry is 

distinctly factual. Keohane at 112. "Once the factual circumstances surrounding the 

interrogation are reconstructed, the court must apply an objective test to resolve 'the ultimate 

inquiry' of whether there was a "formal arrest or restraint on freedom of movement' of the 

degree associated with a formal arrest.'" Hoffner at ¶ 27, citing California v. Beheler, 463 U.S. 

1121, 1125, 103 S.Ct. 3517, 77 L. Ed. 2d 1275 (1983), quoting Mathiason at 495. The 

subjective views harbored by either the interrogating officers or the person being questioned 

are of no consequence in the Miranda analysis. Stansbury v. California, 511 U.S. 318, 323, 

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114 S.Ct. 1526, 128 L. Ed. 2d 293 (1994). In resolving "the ultimate inquiry" courts must 

consider the totality of the circumstances surrounding the questioning. State v. Gumm, 73 

Ohio St.3d 413, 429, 1995 Ohio 24, 653 N.E.2d 253 (1995); Beheler at 1125.

However the inquiry does not end with Miranda. A confession which is the product 

of "coercive police activity" is involuntary and thus violative of both the United States and 

Ohio Constitutions. See Colorado v. Connelly (1986), 479 U.S. 157, 167, 93 L. Ed. 2d 473, 

107 S. Ct. 515; also see State v. Loza (1994), 71 Ohio St. 3d 61, 66, 641 N.E.2d 1082. Courts 

determine whether a confession was involuntary by examining the "totality of the 

circumstances" involved. See State v. Broom (1988), 40 Ohio St. 3d 277, 286, 533 N.E.2d 

682; State v. DePew (1988), 38 Ohio St. 3d 275, 277, 528 N.E.2d 542; State v. Maurer

(1984), 15 Ohio St. 3d 239, 257, 473 N.E.2d 768. Factors to be considered when reviewing 

the totality of the circumstances include the age, mentality and prior criminal experience of 

the accused; the length, intensity and frequency of interrogation; the existence of physical 

deprivation or mistreatment, and the existence of threat or inducement. See State v. Slagle

(1992), 65 Ohio St. 3d 597, 600, 605 N.E.2d 916; State v. Brewer (1989), 48 Ohio St. 3d 50, 

57, 549 N.E.2d 491; State v. Edwards (1976), 49 Ohio St. 2d 31, 358 N.E.2d 1051 at 

paragraph two of the syllabus.

Respectfully submitted,

s/Brock A. Schoenlein 

 Brock A. Schoenlein (0084707)

 Attorney for Defendant 

 371 West First Street

 Dayton, OH 45402

 (937) 224-0039 (Office)

 (937) 222-1050 (Fax)

 Basattorney@aol.com 

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served upon the applicable United 

States Attorney by standard efiling on the same date of filing.

s/Brock A. Schoenlein 

 Brock A. Schoenlein (#0084707)

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