CITY OF CLEVELAND v. PERSAUD

Reset A A Font size: Print

Cleveland Municipal Court, Ohio.

CITY OF CLEVELAND, Plaintiff v. Manikchand PERSAUD, Defendant.

No. 2013 TRC 042481.

Decided: February 10, 2014

Asst. City Prosecutor Bridget Hopp, for plaintiff. Atty. Thomas Perotti, for defendant.

OPINION

The defendant has challenged the authority of an Ohio State Highway Patrol (OSHP) trooper to enforce violations of the Ohio Revised Code on private property.

Both the City of Cleveland and defendant stipulated to the facts leading up to the defendant's arrest. The defendant backed into a dumpster at the BP gas station located at 10202 Lorain Avenue, Cleveland, Ohio. An employee of the gas station alerted a Highway Patrol trooper, who was at the station, of the incident. The trooper investigated and had the Cleveland Police Department contacted. Cleveland Police indicated it would be a lengthy wait because they were busy with other calls. Consequently, the trooper conducted field sobriety tests and eventually arrested and charged the defendant with violations of R.C. 4511.38(A), Care to be exercised in starting and backing of vehicle, and R.C. 4511.19(A)(1), Driving under the influence of alcohol and/or drugs. No Cleveland police officer was involved in the arrest and none responded.

The first issue before this court is whether a defendant can be convicted of violation of R.C. 4511.38(A) on private property. R.C. 4511.38(A) states in pertinent part:

No person shall start a vehicle ․ which is stopped, standing, or parked until such movement can be made with reasonable safety.

Before backing, operators of vehicle[s] ․ shall give ample warning, and while backing they shall exercise vigilance not to injure person or property on the street or highway.

The defendant was not on the street, but on the property of BP, a private gas station. The statute specifically states where the operation of the vehicle is regulated, i.e. on a street or highway. The application of R.C. 4511.38(A) does not extend to private property. The Eighth District Court of Appeals has held that this law is applicable to backing a motor vehicle on streets and highways, not on private property.1 Since the backing occurred on private property, defendant's argument is well taken. Consequently, the charge for violation of R.C. 4511.38(A) is dismissed. However, the dismissal of the charge does not preclude the defendant's conduct from being considered in regards to violation of R.C. 4511.19(A)(1).

Next, the defendant has argued that the authority of the OSHP does not extend to private property. OSHP is governed by R.C. 5503.02. Specifically, the duties and powers of OSHP, in pertinent part, are:

A. The state highway patrol shall ․ enforce on all roads and highways ․ the laws relating to the operation and use of vehicles in the highways ․ State Highway Patrol troopers shall investigate and report all motor vehicle accidents on all roads and highways outside of municipal corporations ․ may arrest, without a warrant ․ whom superintendent or trooper has reasonable cause to believe is guilty of a felony ․

B. In the event of riot, civil disorder, or insurrection or the reasonable threat of riot, civil disorder or insurrection and upon request, as provided in this section ․ the governor may order the state highway patrol to enforce the criminal laws within the area threatened ․

(D)(1) State highway patrol troopers have the same right and power of search and seizures as other peace officers ․

The OSHP was created by the Ohio General Assembly in 1933 to enforce laws pertaining to the licensing and registration of vehicles on highways and protection of highways.2 Since its creation, the duties of the OSHP have remained essentially unchanged.3 It was created to patrol areas not policed by other law enforcement agencies, i.e. municipal, village and township police departments and county sheriff offices.

It appears the legislature intended to limit the authority and arrest power of The Highway Patrol.4 In short, the OSHP is empowered to enforce vehicle and operation related laws on all roads and highways; enforce criminal laws on state property; and render emergency assistance under specific conditions outlined by statute. Other than in the locations and under the circumstances enumerated by statute, the OSHP has no authority. Consequently, the OSHP has no authority to enforce the law or make arrests on private property.5 The defendant's assertion that the trooper had no power to arrest him is valid. The trooper's violation of the statute which governs his powers is not challenged by the City of Cleveland.

Given that the City of Cleveland and defendant agree that the trooper acted outside of the scope of his authority when he arrested the defendant, the issue is what impact this violation has on the criminal charge brought against the defendant. In addressing statutory and/or constitutional violations by the government, the court must determine what relief, if any, is appropriate. The first relief the defendant has requested is to find the trooper incompetent to testify. Pursuant to R.C. 4549.13 and R.C. 4549.15, an officer on duty for the exclusive or main purpose of traffic enforcement must use a marked police car and must wear a distinctive uniform, respectively. Otherwise, the officer is incompetent to testify.6 Here, the General Assembly sets forth the consequence for a violation of the statute. It is clear that the legislature does not want officers enforcing the traffic laws in plainclothes or in unmarked cars. If the officers do, they are prohibited from testifying. Clearly, a built-in deterrent is in place. The purpose of these requirements is to promote uniformity in traffic enforcement across the state and to prevent speed traps and other similar abuses in the enforcement of traffic laws.7 The defendant has requested that this remedy be applied in this case. The problem with the request is that this remedy is not set forth by statute for the circumstances in this case. The General Assembly clearly limits the authority of the OSHP; however, it does not create a specified consequence when it acts beyond its authority. If the General Assembly had intended to render the trooper incompetent to testify, it would have mandated it. Consequently, this court cannot declare the trooper incompetent to testify.

The defendant has argued that since the OSHP did not have “basic jurisdiction” to act, then the case must be dismissed. The defendant's argument has required this court to identify from where this principle was derived and how has it been applied. It appears that the defendant's use of “basic jurisdiction” should have more than likely been “subject-matter jurisdiction.” Jurisdiction is a vague term and has many meanings.8 Additionally, those meanings are defined in the context in which the word “jurisdiction” is used. For example, “subject-matter jurisdiction” is used when referring to a court's authority to act. “Subject-matter jurisdiction” of a court connotes the power to hear and decide a case upon its merits, and defines the competency of a court to render a valid judgment in a particular action.9 “Subject-matter jurisdiction” must be demonstrated in order for a municipal court to hear a specific case.10 Failure to demonstrate “subject-matter jurisdiction” by a court results in the dismissal of a case.11

An examination of this principle puts the defendant's argument in perspective. The principle was applied in Cheap Escape Company, Inc. where the plaintiff, a business, wrongfully secured a judgment against the defendant in Franklin County Municipal Court. The defendant, Haddox L.L.C., was a construction company located in Summit County. The only reason the breach of contract action was filed in Franklin County Municipal Court was because a provision in the contract designated that court as the proper venue for litigation purposes. Tessman, a guarantor, challenged the judgment on the ground the court lacked “subject-matter jurisdiction.” The Supreme Court of Ohio affirmed a decision to vacate the judgment on the ground that the municipal court does not have “subject-matter jurisdiction” over extraterritorial matters except in limited, statutorily-created circumstances.12

It appears that the defendant has attempted to argue as to the “basic” jurisdiction of OSHP as if it were the same principle as the “subject-matter jurisdiction” of municipal courts. The terms “basic jurisdiction” and “subject-matter jurisdiction” are not interchangeable. Additionally, the application of “subject-matter jurisdiction” is in courts and not in law enforcement agencies. Consequently, “subject-matter jurisdiction” cannot be viewed in the context of OSHP's authority and powers.

Municipal courts and OSHP are both statutorily created.13 Within their respective statutes, the ranges of their territorial jurisdictions are specifically defined. However, the manner in which the courts have addressed instances in which they have acted outside of their territorial jurisdiction are different. Upon review, the defendant's argument for dismissal due to the OSHP's trooper's alleged lack of “basic jurisdiction” is unsupported and must be denied.

Finally, the defendant asserts that OSHP's operation outside its legal authority was unreasonable and in violation of the Fourth Amendment of the United States Constitution and Article I, Sec. XIV of the Ohio Constitution. As a result of said violations, the defendant demands that the evidence be suppressed as “fruit of the poisonous tree.” This court has already found that the trooper violated R.C. 5503.02. However, there is no statutory penalty for violation of the jurisdictional statute.14 The question becomes, “Since the trooper can testify, should there be any restrictions to what the trooper can say since he went beyond the scope of his authority as allowed by statute, i.e. use of exclusionary rule?” It has been established that a statutory violation by a law enforcement officer acting outside his territorial jurisdiction does not automatically require exclusion of the evidence obtained when a stop occurs.15 In order for the exclusionary rule to be applicable, the unlawful stop must also rise to the level of a constitutional violation.16

Alleged violations of Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the Ohio Constitution are separate issues which require the applications of two separate rules of law.17 It is well-established that the Ohio Constitution may afford greater protection than the United States Constitution.18

In regards to the U.S. Constitution, the issue is whether the stop was based upon probable cause.19 The OSHP trooper in this case approached the defendant in response to an alert he received from an employee of the gas station. The employee was concerned because he was alarmed by the defendant's conduct, causing him to believe the defendant was impaired and was operating a motor vehicle. Defendant's continued impaired driving, if true, might have endangered him as well as others. The trooper's own subsequent observations were consistent with those of the employee. Given these facts, there is no question that the trooper had probable cause to arrest the defendant.

The standard review for an alleged violation of the Ohio Constitution requires probable cause and a determination that the government's interest in allowing unauthorized officers to make this type of stop outweighs the intrusion upon individual privacy.20 Certainly, if the employee observed the defendant's behavior and he was a mere passenger in the vehicle, then the response upon review would be totally different. However, the defendant was operating a vehicle while allegedly impaired. Clearly, the government's interest in protecting defendant and others from potential harm due to the operation of a motor vehicle while allegedly impaired is greater than the defendant's individual privacy interests. Yes, the General Assembly has drawn limited lines of authority for the OSHP, but there are times when the lines may be crossed without repercussions, in the public interest. This is one of those times.

Consequently, the defendant's motion to suppress is denied.

FOOTNOTES

1.  Luong v. Schultz, 97 Ohio App.3d 472, 474–75, 646 N.E.2d 1164, 1165–66 (1994), citing Buell v. Brunner (1983), 10 Ohio App.3d 41, 460 N.E.2d at 649.

2.  Ohio State Highway Patrol Mission Review Task Force, 2010, p. 7.

3.  Id.

4.  Durbin v. OSHP (1992), Ohio App.3d 695, 83 Ohio App.3d 693, 615 N.E.2d 694.

5.  Id. at 699.

6.  R.C. 4549.14.

7.  City of Euclid v. Baines 2002 WL 1767395, citing South Euclid v. Varasso–Burgess (Oct. 12, 1995), Cuya.App. No. 68409, 1995 Ohio App. Lexis 4517 at 6, citing Dayton v. Adams (1967), 9 Ohio St. 89, 90 223 N.E.2d 822.

8.  Cheap Escape Company, Inc., d.b.a. J B Dollar Stretcher v. Haddox, LLC; Tessman (2008) 120 Ohio St.3d 493 at 494, 900 N.E.2d 601, citing Steel v. Citizens For a Better Environment (1988), 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210, quoting U.S. v. Vaness (C.A.D.C.1996) 85 F.3d 661, 663, fn. 2.

9.  Id at 495. citing Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 610 Ohio O.2d 335, 290 N.E.2d 841

10.  Id.

11.  Id.

12.  Id.

13.  R.C.1901 and R.C. 5503.01, respectively.

14.  State v. Brown, 2013 Ohio 5351, (6 th Dist. Wood County), ––– N.E.2d ––––. See also Atwater v. Lago Visto, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); State v. Wilmoth, 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986), and City of Kellering v. Hollen, 64 Ohio St.2d 232, 235, 416 N.E.2d 598 (1980).

15.  Id.

16.  Id.

17.  Id., citing Atwater v. U.S. and State v. Brown, 99 Ohio St.3d 323, 2003–Ohio–393, 792 N.E.2d 175, syllabus.

18.  Id., citing California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).

19.  Id.

20.  Id.

JUDGE EMANUELLA GROVES.