MARVIN LONG v. STATE OF OHIO, ET AL.
No. 97044
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 2, 2012
[Cite as Long v. State, 2012-Ohio-366.]
Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-754989
MARVIN LONG, PLAINTIFF-APPELLANT VS. STATE OF OHIO, ET AL., DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
BEFORE: E. Gallagher, J., Jones, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: February 2, 2012
James R. Willis
Myron P. Watson
420 Lakeside Place
323 Lakeside Avenue, N.W.
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
William D. Mason
Cuyahoga County Prosecutor
By: Reno J. Oradini, Jr.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{1} Marvin Long appeals from the decision of the trial court dismissing his petition for rеturn of seized property for lack of jurisdiction. Long argues the trial court erred when it dismissed his action, that the search warrant forming the basis of the seizure was invalid on its face, and that the trial court erred when it failed to hold a prompt hearing on his petition for return of seized property. Finding merit in the instant appeal, we reverse the deсision of the trial court and remand for an evidentiary hearing.
{3} On May 11, 2011, Long filed a petition for the return of seized property in the common рleas court pursuant to
{4} At the hearing, the state argued that the common pleas court did not have jurisdiction over Long‘s petition because the property seized had been, or remained, with federal authorities. Additionally, thе state suggested that the money seized by the officers had been returned to Long prior to the hearing and that the two handguns that had been seized would also be returned, if they pаssed criminal history checks. In response, attorneys for Long argued that the common pleas court did have jurisdiction to
{5} Long appeals, raising the three assignments of error contained in the appendix to this opinion.
{6} In his first assignment of error, Long argues the trial court erred when it dismissed his petition for the return of seized property.
{7} In putting forth this assigned error, Long fails to cite to any legal authority in support of his argument. The first assigned error lacks any legal authority supporting Long‘s contention that the trial court erred, a failure that allows this court to disregard his arguments.
{8} However, we will address the merits of Long‘s first assigned error. The record is devoid of any evidence establishing which entity maintained jurisdiction over
{9} Based on the record before this court, we are unsure which agency actually seized the property, federal authorities оr the Cuyahoga County Sheriff‘s Department. If the state seized the property, and the federal authorities adopted the property as alleged by the state in its brief, this cоurt has no evidence of the manner in which this adoption was procured or finalized. See Harris v. Mayfield Hts., 8th Dist. No. 95601, 2011-Ohio-1943, 2011 WL 1584579, appeal not allowed by Harris v. Mayfield Hts., 129 Ohio St.3d 1489, 2011-Ohio-5129, 954 N.E.2d 662. There is simply no evidence in the record for this court to make that determination.
{10}
{11} Based on the fоregoing, we sustain Long‘s first assignment of error.
{12} In his second assigned error, Long argues that the search warrant was facially defective and, therefore, the court erred in dismissing his petition. The crux of Long‘s argument is that Special Agent Joseph Harper, the individual who requested the search warrant from the common pleas court, was not a law enfоrcement officer within the meaning of Ohio‘s Criminal Rules. This assigned error lacks merit.
{13}
{14} Accordingly, Long‘s challenge to the search warrant is without merit. His second assignment of error is overruled.
{15} In his third and final assignment of error, Long argues the trial court erred in failing to hold a prompt hearing on his petition for return of seizеd property. We disagree.
{16} In the present case, Long filed his petition for the return of seized property on May 11, 2011 and on June 15, 2011, the trial court conducted a hearing, whiсh Long failed to attend. Nowhere in his brief does Long argue that a lapse of 35 days does not constitute a prompt hearing. Instead, Long reiterates his arguments that the state had jurisdiction over the matter and that the search warrant was defective, arguments which we addressed, in full, above.
{17} Accordingly, Long‘s third and final assignment of error is overruled.
{18} The judgment of the trial court is reversed and remanded for further
It is ordered that appellant recover of said appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court to carry this judgment into execution.
A сertified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, P.J., and
KENNETH A. ROCCO, J., CONCUR
Appendix
Assignments of Error:
- Given the common pleas court has jurisdiction to entertain a “petition for the return of seized property” that was filed when there were no charges lodged in the wake of an assailed seizure, it follows the court erred when it dismissed the appellant‘s action filed under fаvor of
Revised Code of Ohio, 2981.03(A)(4) . - Given the search warrant, on the basis of which the appellant‘s property was seized, was patently defective, indeed on its face, it follows the court nоt only erred, but due process was offended when
the court dismissed this statutory cause of action. - Given due process, independent of the state statutes and rules (including those cited above), requires the state once it seizes private property in the name of the state to provide the person (or persons) from whom the property was seized a prompt hearing in which the state must establish its right to maintain possession of such property.