[Cite as Cleveland v. Primm, 2017-Ohio-7242.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104963
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
SAMSON PRIMM
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2016 CRB 012452
BEFORE: Stewart, P.J., S. Gallagher, J., and Jones, J.
RELEASED AND JOURNALIZED: August 17, 2017
ATTORNEY FOR APPELLANT
James R. Willis
James R. Willis Attorney At Law
1144 Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
City of Cleveland
Kimberly Barnett-Mills
Chief City Prosecutor
Jennifer M. Kinsley
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} After conducting a traffic stop, an Ohio state highway patrol trooper cited
defendant-appellant Samson Primm for the minor misdemeanor offense of possession of
marijuana (he was not charged with any driving offense). An unstated amount of cash
was also seized (defense counsel told the court that “they took over $100,000 from this
young man.”). The citation was transferred to the city of Cleveland for prosecution.
Primm filed a motion to suppress the evidence seized in the traffic stop on grounds that
the trooper conducted an illegal stop based on “profile considerations.” He also sought
return of the cash seized during the traffic stop.
{¶2} On the day of trial, the city told the court that it wanted to dismiss the drug
charges because it would not have the laboratory results before the speedy trial time
expired. Primm objected to dismissal and offered to stipulate that the substance found in
his vehicle was marijuana. The court granted the motion to dismiss over Primm’s
objections. It also found Primm’s motion to suppress moot.
{¶3} Primm assigns four errors for review: that the court failed to conduct an
evidentiary hearing on his motion to suppress evidence; that the court erred by granting
the city’s motion to dismiss the prosecution without regard for the pending motion to
suppress evidence; that turning the seized property over to the federal government did not
deny the court jurisdiction to consider questions related to the property; and that the court
failed to articulate a basis for dismissal.
{¶4} The assignments of error are, for the most part, tangential to a larger issue
relating to the seizure of the cash and Primm’s desire to have it returned to him. During
a hearing on the motion to dismiss the citation, the city told the court that it has never
been in possession of the cash — immediately after the traffic stop the highway patrol
gave the cash directly to the federal government for adoptive forfeiture under federal law.
See R.C. 2981.14(A); 1 see generally Harris v. Mayfield Hts., 2013-Ohio-2464, 991
N.E.2d 1179 (8th Dist.). Primm told the court that he could get the money back by
showing that the seizure was unlawful for want of probable cause. To do that, he said
that he needed the court to rule on his motion to suppress evidence. Primm maintained
that the ruling finding his motion to suppress moot hampered his ability to contest the
federal asset forfeiture.
R.C. 2981.14(B) was amended, effective April 6, 2017, to allow law enforcement agencies
1
to transfer seized property for federal forfeiture only if the value of the seized property exceeds one
hundred thousand dollars.
{¶5} The parties agree that the court dismissed the citation under Crim.R. 48(A).
That rule states: “The state may by leave of court and in open court file an entry of
dismissal of an indictment, information, or complaint and the prosecution shall thereupon
terminate.” The rule embodies two different exercises of discretion: first, that the
prosecuting attorney has the discretion “to determine when and which charges should be
dropped,” State v. Jones, 8th Dist. Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 31; second,
that the court has the discretion to decide whether to grant leave to allow dismissal of an
indictment. State v. Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13.
The court’s discretion, however, is limited by the separation of powers — the decision
whether to prosecute, and the decision as to the charge to be filed, rests in the discretion
of the prosecuting attorney. State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661
N.E.2d 180 (1996) (“the decision whether to prosecute is discretionary, and not generally
subject to judicial review”); see also In re United States, 345 F.3d 450, 454 (7th
Cir.2003) (“[T]he plenary prosecutorial power of the executive branch safeguards liberty,
for, in conjunction with the plenary legislative power of Congress, it assures that no one
can be convicted of a crime without the concurrence of all three branches. * * * When a
judge assumes the power to prosecute, the number shrinks to two.”). Broadly
interpreting the Crim.R. 48(A) leave-of-court requirement could be an invitation for the
judiciary to exceed its constitutional role and breach the separation of powers by intruding
upon the plenary prosecution power of the executive branch.
{¶6} The court thus has a limited ability to second-guess the government’s
decisions on whether and what to prosecute. As stated in the context of the similarly
worded portion of Fed.R.Crim.P. 48(a), 2 the principal purpose of the leave-of-court
requirement is “to protect a defendant against prosecutorial harassment, e.g., charging,
dismissing, and recharging, when the Government moves to dismiss an indictment over
the defendant’s objection.” Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 54
L.Ed.2d 207 (1977), fn. 15. Rinaldi also stated that the court could deny leave to dismiss
an indictment if the dismissal “is prompted by considerations clearly contrary to the
public interest.” Id. But Rinaldi made it clear that “the salient issue * * * is not
whether the decision to maintain the federal prosecution was made in bad faith but rather
whether the Government’s later efforts to terminate the prosecution were similarly tainted
with impropriety.” Id. at 30.
Fed.R.Crim.P. 48(a) states: “(a) By the Government. The government may, with leave of
2
court, dismiss an indictment, information, or complaint. The government may not dismiss the
prosecution during trial without the defendant’s consent.”
{¶7} In short, the court should show deference to the prosecutor’s decision to
terminate a criminal case, and because the court has the discretion to grant leave to
dismiss, we must likewise give deference to the court’s decision to grant leave.
Nevertheless, the “good cause” component of Crim.R. 48(A) means that a prosecuting
attorney does not have unbridled authority to terminate the proceedings. Akron v.
Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (9th Dist.1978). The Crim.R.
48(A) requirement of “good cause” requires “more then a cursory recitation that good
cause exists[.]” Lakewood v. Pfeifer, 83 Ohio App.3d 47, 51, 613 N.E.2d 1079 (8th
Dist.1992). And even though the court has discretion to grant leave, there is no exercise
of discretion by rubber-stamping a request for leave.
{¶8} At this juncture, we must consider the nature of the dismissal. The city
maintains that it dismissed the case with prejudice, but there is nothing in the record to
show that the court dismissed the citation with prejudice. When an indictment or citation
is dismissed without any indication of whether the dismissal is with or without prejudice,
we presume the dismissal to be without prejudice. State v. Miller, 7th Dist. Mahoning
No. 07 MA 215, 2008-Ohio-3085, ¶ 43. And more broadly, Crim.R. 48(A) dismissals
are considered to be without prejudice to refiling charges unless there is a deprivation of a
defendant’s constitutional or statutory rights, the violation of which would, in and of
itself, bar further prosecution. State v. Dixon, 14 Ohio App.3d 396, 397, 471 N.E.2d 864
(8th Dist.1984); Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, at ¶ 13.
{¶9} As good cause supporting its motion to dismiss the citation, the city told the
court that “we do not have the drug results back from the Ohio state highway patrol lab.”
It further stated that there was “one day of speedy trial time remaining, and we will not
have those lab results before the time of speedy trial is up.” While insufficiency of proof
is regarded as good cause to support dismissal of criminal charges under Crim.R. 48(A),
State v. Sutton, 64 Ohio App.2d 105, 107, 411 N.E.2d 818 (9th Dist.1979), Primm
vitiated that cause when he stipulated that the substance collected from his car was
marijuana. This stipulation negated the city’s reason for dismissal. On this basis, the
court did not have good cause to grant leave to dismiss the citation.
{¶10} Nevertheless, Primm made it clear to the court that his objections were that a
dismissal of the criminal charge would deprive him of a ruling on his motion to suppress
evidence, which if favorable to him could be used to challenge the asset forfeiture in
federal court. We accept that for purposes of Crim.R. 48(A), a pending motion to
suppress evidence invokes a constitutional right under the Fourth Amendment — a
favorable ruling on Primm’s claim that he had been illegally stopped could potentially bar
further prosecution despite his stipulation that the substance found in his car was
marijuana.3 State v. Carter, 69 Ohio St.3d 57, 67, 630 N.E.2d 355 (1994).
Primm also argued that highway patrol officers who failed to appear for a scheduled trial
3
despite being subpoenaed should be held in contempt. The court noted that the highway patrol
officers were present that day for trial and held the motion for contempt to be moot. With the
motion for contempt being moot, the dismissal did not affect any constitutional or statutory right for
purposes of Crim.R. 48(A).
{¶11} The court recognized Primm’s concerns that a dismissal of the citation
would deprive him of an opportunity to challenge the adoptive forfeiture: “I’m just
thinking out loud that you can circumvent certain rights by seizing, then dismissing, and
then the property is left in limbo. I mean, that could be a strategy that could be utilized
by the prosecution or the police. You seize it, you then dismiss the case.” Nonetheless,
the court acknowledged that Primm had “an additional avenue in which to pursue the
interest [in the cash] now that the criminal aspect is gone, you still have the recourse of
suing civilly and demanding that the money be returned.” Defense counsel agreed that
Primm had the right to bring a federal court action against the city based on a violation of
his civil rights. This was an important point — the city represented that it “had never
been in possession of any money” and that even if the court were to order the money
returned to Primm, “the fight would be with the feds[.]”
{¶12} In fact, it appears that Primm has challenged the forfeiture in federal court.
That challenge has been unsuccessful. The United States District Court for the
Northern District of Ohio found that Primm failed to establish standing to object to the
forfeiture because he made only a “naked assertion of ownership” that did not suffice
under Supplemental Admiralty and Maritime Claim Rule G(5)(a)(i)(B) (which governs
federal judicial forfeiture proceedings) or Article III of the United States Constitution.
United States v. $99,500 in United States Currency, N.D.Ohio No. 1:16 CV 2422, 2017
U.S. Dist. LEXIS 1478, 11 (Jan. 5, 2017). It likewise appears that the district court has
ordered the cash forfeited to the federal government and that on April 27, 2017, Primm
appealed that ruling to the United States Court of Appeals for the Sixth Circuit.4
We are aware that the federal forfeiture proceedings occurred after the
4
court granted leave to dismiss the citation. But when the court granted the motion
to dismiss the citation, it acknowledged that “if it appears to be that [the dismissal]
is an effort to circumvent and deny the defendant the right to his property and
require him to go through a civil proceeding, I’m sure that would be included in the
[federal] claim against the city when it is filed.” With Primm having availed
himself of the opportunity to contest forfeiture in federal court, it is unclear how any
future ruling on his motion to suppress evidence would be of any assistance to him in a federal court
case that has already been decided.
{¶13} We detail this history to show that the court did not merely rubber-stamp
the city’s motion for leave to dismiss the citation, but gave it full and fair consideration.
The court considered Primm’s objections to the dismissal of the citation, particularly in
the context of the larger issue concerning the recovery of the cash. The court also
recognized that it should give deference to the city’s prosecutorial discretion (“I’m always
inclined, if the prosecution wishes, to terminate the pursuit of a criminal charge.”).
Finally, it noted that Primm had the ability to seek return of his money by way of civil
action. These were rational conclusions on the record before us. We conclude that the
court did not abuse its discretion by granting the motion to dismiss despite Primm’s
objections that the dismissal would violate his constitutional right to a hearing on his
motion to suppress evidence. We consider the dismissal in this case to be “without
prejudice.”5
{¶14} The dismissal of a criminal case without prejudice deprives us of a final
order. State v. G.D., 8th Dist. Cuyahoga Nos. 104317 and 104328, 2016-Ohio-8148, ¶
19; State v. Brown, 8th Dist. Cuyahoga No. 84229, 2004-Ohio-5587, ¶ 6-12; State v.
Jackson, 8th Dist. Cuyahoga No. 103035, 2016-Ohio-704, ¶ 6. Without a final order, we
cannot consider Primm’s substantive arguments on appeal.
A dismissal of the citation under Crim.R. 48(A) would return the parties “to
5
their same positions before institution of the prosecution.” State v. Tankersley, 8th
Dist. Cuyahoga Nos. 70068 and 70069, 1996 Ohio App. LEXIS 4791, at 8 (Oct. 31,
1996). And although it seems unlikely that the city will refile charges (the statute of
limitations for a minor misdemeanor is six months, see R.C. 2910.13(A)(1)(c)), if it
does, Primm will have the opportunity to raise the suppression issue again.
{¶15} Appeal dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., CONCURS (SEE SEPARATE CONCURRING OPINION);
LARRY A. JONES, SR., J., DISSENTS (SEE SEPARATE DISSENTING OPINION)
SEAN C. GALLAGHER, J., CONCURRING:
{¶16} I concur with the majority opinion and agree with the determination that the
trial court did not abuse its discretion by granting the motion dismiss, which is deemed to
be without prejudice.
{¶17} I write separately to express concerns surrounding the interplay of state and
federal forfeiture law. Once again, we are presented with a case that highlights the legal
loophole that effectively permits local law enforcement to circumvent the procedural
protections contained in the state forfeiture statute, R.C. 2981.03(A), by merely turning
the seized property over to federal authorities pursuant to 18 U.S.C. 981(b)(2), governing
federal forfeitures. “The cumulative effect of this practice is to reduce Ohio’s forfeiture
statute to a functional nullity.” State v. Scott, 7th Dist. Mahoning No. 98 CA 174, 2000
Ohio App. LEXIS 1221, 8 (Mar. 22, 2000).
{¶18} This case arose from a traffic stop initiated by an Ohio state highway patrol
trooper. Primm was given a citation for possession of marijuana, and a large sum of cash
was seized. Defense counsel conceded that the federal government had issued a seizure
warrant for the money, and it was not disputed that the money was turned over to federal
authorities on the scene. As recognized in Scott, a defendant’s conviction is not required
as a condition precedent and “there is an apparent financial incentive for a local police
department to seek the implementation of federal forfeiture proceedings as opposed to its
state law counterpart.” Id. at 7-8.
{¶19} Along with his motion to suppress, Primm filed a motion for the return of
illegally seized property. Pursuant to R.C. 2981.03(A)(4), a person aggrieved by an
alleged unlawful seizure of property may seek relief from the seizure by filing a proper
motion in the appropriate court. However, the Ohio Supreme Court has made clear that
when property or money is forfeited under federal law, the state forfeiture provisions are
rendered immaterial. State ex rel. Chandler v. Butler, 61 Ohio St.3d 592, 593, 575
N.E.2d 833 (1991). We are bound to follow the Supremacy Clause codified under
Article IV of the United States Constitution and the Ohio Supreme Court’s holding in
Chandler. State v. Primm, 8th Dist. Cuyahoga No. 94630, 2011-Ohio-328, ¶ 18 (S.
Gallagher, J., concurring); Scott at 8. Thus, any remedy Primm may have lies with the
federal court system.
LARRY A. JONES, SR., J., DISSENTING:
{¶20} Respectfully, I dissent. As the majority aptly notes, the larger issue in this
case relates to the seizure of the cash from Primm, and his desire to have it returned.
{¶21} The majority decision intimates that the only avenue for Primm to have
challenged the seizure of his money would be if he were under indictment and if he filed
his challenge in federal court. I disagree. Ohio law allows a person claiming unlawful
seizure to pursue his or her claim and it can be done regardless if he or she is under
indictment:
(4) A person aggrieved by an alleged unlawful seizure of property may seek
relief from the seizure by filing a motion in the appropriate court that shows
the person’s interest in the property, states why the seizure was unlawful,
and requests the property’s return. If the motion is filed before an
indictment, information, or a complaint seeking forfeiture of the property is
filed, the court shall schedule a hearing on the motion not later than
twenty-one days after it is filed. * * *
R.C. 2981.03(A)(4).
{¶22} Further, I am not persuaded by any argument that the issue was “moot”
because the funds were transferred to the federal government after seizure. The record
before us is devoid of any evidence that (1) the federal government seized Primm’s
money, (2) the city transferred money to the federal government, or (3) that Primm was
notified of a forfeiture action. See, e.g., Jenkins v. Cleveland, 8th Dist. Cuyahoga No.
104768, 2017-Ohio-1054, ¶ 23. As the majority recognizes, exhibit A, a federal
forfeiture complaint relative to the monies at issue here, and which was attached to the
city’s brief before this court, was not before the trial court (it had not yet been issued);
therefore, it should not be part of our review. Id. at ¶ 24.
{¶23} In light of the above, I dissent.
Cleveland v. Primm
Combined Opinion