[Cite as Harris v. Mayfield Hts., 2011-Ohio-1943.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95601




                                   DEMETRIUS HARRIS

                                                           PLAINTIFF-APPELLANT

                                                     vs.

                   CITY OF MAYFIELD HEIGHTS, ET AL.
                                                           DEFENDANTS-APPELLEES




                                    JUDGMENT:
                              REVERSED AND REMANDED
                                         2


                             Civil Appeal from the
                       Cuyahoga County Common Pleas Court
                             Case No. CV-728167

     BEFORE:    E. Gallagher, J., Stewart, P.J., and Cooney, J.

     RELEASED AND JOURNALIZED:              April 21, 2011

ATTORNEY FOR APPELLANT

James R. Willis
323 W. Lakeside Avenue
420 Lakeside Place
Cleveland, Ohio 44113-1009

ATTORNEYS FOR APPELLEES

Leonard F. Carr
Bryan L. Carr
The Carr Law Firm
1392 S.O.M. Center Road
Mayfield Hts., Ohio 44124




EILEEN A. GALLAGHER, J.:
                                   3

      {¶ 1} Demetrius Harris appeals from the decision of the trial

court dismissing his action in replevin for lack of jurisdiction.

Harris argues the trial court erred when it dismissed his action,

when it ruled that it did not have jurisdiction, and    when it failed to

issue findings of fact and conclusions of law.         For the following

reasons, we reverse the decision of the trial court.

      {¶ 2} On June 1, 2010, Harris filed the instant complaint in

replevin as well as a motion for immediate return of seized property

against the city of Mayfield Heights, the Mayfield Heights Police

Department, the Mayfield Heights Chief of Police, and five unknown

law    enforcement     officers   (defendants-appellees,     hereinafter

“appellees”).   The trial court set a hearing date for June 21, 2010.

      {¶ 3} On June 16, 2010, the appellees filed a motion to dismiss

and a motion to adjourn the hearing, arguing that since agents of

the United States government took possession of the funds, the

court of common pleas was without jurisdiction to hear Harris’s

replevin action.   Harris opposed this motion.

      {¶ 4} On June 21, 2010, the trial court conducted a replevin

hearing and ordered Harris to file a brief within 14 days, showing

cause why his case should not be dismissed for lack of jurisdiction.
                                         4

Subsequently, Harris and the appellees filed their briefs on the issue

of jurisdiction.     On July 26, 2010, the trial court granted appellees’

motion to dismiss for lack of jurisdiction and ruled that Harris’s

motion for the immediate return of the seized property was moot.

Harris appeals, raising the three assignments of error contained in

the appendix to this opinion.

          {¶ 5} The underlying facts of this case began on May 24, 2010,

when Andrew Rocco, an off-duty Mayfield Heights police officer, was

driving on Mayfield Road in that city and observed a black Land

Rover driving beside him.          Rocco wrote in the police report, which

was attached to appellees’ motion to dismiss/motion to adjourn filed

in the trial court:        “I recognized the vehicle from a previous traffic

stop and recalled that the driver from the previous traffic stop was

currently suspended and had a warrant for his arrest.                  I looked at

the driver and noticed that he met the same physical description as

the driver that had been previously stopped.”1

          {¶ 6} Off-duty     Officer   Rocco      notified      Officer     Joseph


      1
       Harris’s reply brief reflects that the owner of the Land Rover in question was
a 40-year-old man who weighs approximately 340 pounds and that Harris was a
22-year-old man who, according to police reports attached to appellees’ motion to
dismiss, weighed 210 pounds.
                                  5

Mytrosevich via portable radio of his suspicions, and Mytrosevich

effected a traffic stop of the Land Rover.   Officer Rocco and Officer

Thomas Rovniak, who had arrived on the scene, assisted Officer

Mytrosevich with the stop.

     {¶ 7} Officer Mytrosevich spoke with Harris and asked for his

driver’s license.   Harris indicated that he did not have any

identification with him, but he provided his name and social

security number to Officer Mytrosevich.      During this conversation,

Officer Rovniak instructed Officer Mytrosevich to remove Harris

from the vehicle, which he did, and after patting him down for

weapons, Mytrosevich placed Harris in handcuffs.     According to the

police reports, which were made part of the record, Officer

Mytrosevich recovered approximately $600 from Harris’s person.

Additionally, Officers Rovniak and Rocco recovered approximately

$14,000 in U.S. currency from the front passenger seat where,

apparently, it was in plain view.       When asked about the money,

Harris related to the officers that $6,000 was his, which he planned

to use to purchase a 2002 Honda, and the balance of $7,500 was his

uncle’s, which was going to be used to post bond for an unidentified

person.
                                 6

     {¶ 8} It was at this point, after Harris’s detention and the

seizure of his property, that Mayfield Heights police dispatch

informed the officers that the social security number, which Harris

had provided, reflected that Harris was driving under suspension.

The officers placed Harris under arrest.    The officers ordered the

Land Rover towed and placed the seized U. S. currency into one of

three containers at police department headquarters.           Officers

deployed a K-9 dog to perform a “currency sniff” and the dog alerted

to the container into which the officers had placed the seized

money.   The officers then counted the seized monies, which totaled

$15,084.47 ($564.47 from Harris’s pocket and $14,520 from the front

passenger seat), all of which was presumably secured at the

Mayfield Heights Police Department.

     {¶ 9} Reports reflect that Mayfield Heights Police Sergeant,

Steve Brown, contacted an agent from the Drug Enforcement

Administration.   According to Officer Mytrosevich, who prepared

Mayfield Heights Police Department Incident Report number

10-03359, the agent “said that he would be coming in on Tuesday,

May 25, 2010 to pick up the U.S. currency that was seized.”

     {¶ 10} As stated above, Harris appeals the dismissal of his
                                   7

replevin action for lack of jurisdiction.     The three assignments of

error are contained in the appendix to this opinion.       Because we

find Harris’s second assignment of error dispositive, we shall

address it first.   In his second assignment of error, Harris argues

the trial court erred when it determined it did not have jurisdiction

to hear the instant replevin action.     For the following reasons, we

find Harris’s assigned error to have merit.

     {¶ 11} Initially, we note that based on the record before this

court, it is unclear whether the federal government now possesses

the funds at issue.     On May 24, 2010, Mayfield Heights Police

Department seized $15,084.47 from Harris.           On May 26, 2010,

Mayfield Heights completed a Request for Adoption of State or Local

Seizure form.    From that point on, the record is silent as to whether

the federal government approved the Request for Adoption and

whether the federal government actually took custody of the funds.

The appellees state in their brief that the DEA “took possession of

the currency.”      However, they cite no evidence in the record

supporting this allegation.

     {¶ 12} The United States Code outlines three options for

seizures, as follows:
                                  8

     “(2) Seizures pursuant to this section shall be made pursuant
     to a warrant obtained in the same manner as provided for a
     search warrant under the Federal Rules of Criminal
     Procedure, except that a seizure may be made without a
     warrant if

     (A) a complaint for forfeiture has been filed in the United
     States district court and the court issued an arrest warrant in
     rem pursuant to the Supplemental Rules for Certain Admiralty
     and Maritime Claims;

     (B) there is probable cause to believe that the property is
     subject to forfeiture and

           (i) the seizure is made pursuant to a lawful arrest or
      search; or

           (ii) another exception to the Fourth Amendment warrant
           requirement would apply; or

    (C) the property was lawfully seized by a State or local law
    enforcement agency and transferred to a Federal agency.”

    18 U.S.C. 981(b)(2).

     {¶ 13} Although it is not clear in the present case, it appears

that the appellees argue that under subsection (C), the money was

lawfully seized by local law enforcement and transferred to a federal

agency.   In particular, the appellees claim the seizure was an

adoptive forfeiture by the federal authorities.

     {¶ 14} Additionally, attached to appellees’ motion to dismiss

(Exhibit B) is a copy from the “Asset Forfeiture Policy Manual” of

unknown origin, “Appendix F      —      Equitable Sharing Attachments
                                    9

— Request for Adoption of State or Local Seizure.”      Page three of

that document reads as follows:

     {¶ 15} “Immediate Probable Cause Review needed if following

factors are not present:

           • seizure was based on judicial warrant

           • arrest made in connection with seizure

           • drugs or other contraband were seized from the person

           from whom the property was seized.”

     {¶ 16} Immediately below the above-quoted language is the

following statement: “Investigative Agency Headquarters Approval”

and then a signature and date line, both of which remain blank.

Accordingly, there is no evidence before this court that the federal

government ever granted approval of this seizure.

     {¶ 17} It is obvious and uncontroverted that the seizure in this

case was NOT based on a federal warrant and that drugs or other

contraband were NOT seized from the person from whom the

property was seized.       And, although the officers did place Harris

under arrest, the arrest was NOT made until after the seizure and

cannot possibly be asserted to have been made in connection to the

seizure as the officers only charged Harris with the offense of
                                     10

driving under suspension.      This court notes that the appellees make

gratuitous references in their briefs to criminal charges filed

against Harris for arrests in 2008 and 2009.              We find these

references to have no bearing to the stop and arrest on May 24, 2010

and find the references merely superfluous and        misleading.

     {¶ 18} Appellees    do   not,   and    cannot,   indicate   how   the

requirement that the cash was lawfully seized was established prior

to forfeiture other than it was likely based on the K-9 positive

identification of narcotics on the currency and the police officer’s

inference of criminal activity.      Moreover, the officers’ inference of

criminal activity was not based on the activity of Harris, but on that

of a known driver of the black Land Rover, which Harris was

unfortunate enough to be driving at the time of his arrest.

     {¶ 19} We find the appellees’ reliance on the drug dog’s positive

hit on Harris’s currency insufficient to support an inference of

criminal activity.    In United States v. $5,000 in U.S. Currency (C.A.6,

1994), 40 F.3d 846, the court addressed the unreliability of using

narcotics-trained dogs in drug cases.        The court relied on studies

showing that most currency in this country is tainted with traces of

narcotics.   Id.     The court found “the evidentiary value of the
                                     11

narcotics dog’s alert to be minimal.”       Id. at 849.   The court reversed

the order of forfeiture because there was little other evidence to

connect the currency to drug activity.        Id. at 850; See United States

v. $53,082.00 in United States Currency (C.A.6, 1993), 985 F.2d 245,

250, citing United States v. $80,760.00 in United States Currency

(N.D.Texas 1991), 781 F.Supp. 462, 475, fn. 32 (“There is some

indication that residue from narcotics contaminates as much as 96%

of the currency currently in circulation.”); see, also, $5,000 in United

States Currency at 849; United States v. Carr (C.A. 3, 1994), 25 F.3d

1194; United States v. $639,558.00 in United States Currency (C.A.

D.C. 1992), 955 F.2d 712, 714.

     {¶ 20} In Six Hundred Thirty-Nine Thousand Five Hundred and

Fifty-Eight Dollars ($639,558) in United States Currency, the court

cited the testimony of an expert, Dr. James Woodford, who testified

that 90% of all cash in the United States contains sufficient

quantities of cocaine to alert a trained dog.         The court also noted

that there was at least one study indicating that up to 97% of all bills

in circulation are contaminated by cocaine, with an average of 7.3

micrograms of cocaine per bill.        Crime and Chemical Analysis 243

SCIENCE 1554 (1989).     Id.     At a footnote, the court wrote:
                                   12

     {¶ 21} “Why the nation's currency is so thoroughly corrupted

has been a topic of inquiry.    It has been estimated that one out of

every three circulating bills has been involved in a cocaine

transaction.   R. Siegel, Intoxication 293 (1989).   Cocaine attaches —

in a variety of ways — to the bills, which in turn contaminate others

as they pass through cash registers, cash drawers, and counting

machines at banks and commercial establishments, id.; Crime and

Chemical Analysis, supra note 2, at 1555; Tr. I at 28.     Dr. Woodford

testified that, as a result, bills may contain as little as a millionth of

a gram of cocaine, but that is many times more cocaine than is

needed for a dog to alert.    Officer Beard related that 10 percent of

the alerts he had witnessed were to cash alone, a phenomenon we

have encountered before.       United States v. Trayer, 898 F.2d 805,

808-09 & n. 3 (D.C.Cir.1990).    See generally Taslitz, Does the Cold

Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42

Hastings L.J. 15, 29 & n. 71 (1990).   If the information related above

proves accurate, a court considering whether a dog sniff provides

probable cause, see generally United States v. Colyer, 878 F.2d 469,

471 & n. 2, 483 (D.C.Cir.1989), may have to take into account the

possibility that the dog signaled only the presence of money, not
                                    13

drugs.”   Id. at fn 2.

     {¶ 22} Here, similar to the federal cases cited above, the city of

Mayfield Heights had no evidence, other than the positive drug sniff

of the narcotics dog, that the money found on Harris was related to

drug activity.   Additionally, they had no basis to seize the funds as

evidence of the crime for which Harris was being arrested, driving

under suspension.        Lastly, the appellees’ allegation that Harris’s

criminal history supports this seizure cannot be used as a basis to

seize the funds.   Harris’s criminal history has no bearing on the

seizure of the funds on May 24 as, on that date, the police arrested

him only for driving under suspension.         Moreover, Harris had a

reasonable explanation for his possession of the money.

     {¶ 23} The Fifth Amendment to the Constitution of the United

States made applicable to the several States through the Fourteenth

Amendment states:

     {¶ 24} “No person shall be * * * deprived of life, liberty or

property without due process of law.”

     {¶ 25} Article I of the Ohio Constitution provides:

    “All men are, by nature, free and independent, and have certain
    inalienable rights, among which are those of * * * acquiring,
    possessing, and protecting property * * *.”
                                   14

     {¶ 26} In the present case, $15,084.47 was taken from Harris by

the State, without due process of law or probable cause.        It was,

pure and simple, an unconstitutional taking.

     {¶ 27} Primarily, there was no crime associated with this

seizure.    In fact, the officers charged Harris with only a

misdemeanor offense of driving under suspension.        Harris had no

opportunity to challenge the illegal taking of the money but for the

filing of this action in replevin as the State, after seizing the

currency, allegedly funneled it to the United States of America.

Within eight days of the State’s taking of his property, Harris did file

this action in replevin.   Harris asserted his rights immediately and

there is no evidence before this court that the appellees provided

Harris with any notice of a forfeiture action in any court(s); rather,

the record contains only a “request for adoption.”      Therefore, the

State effectively precluded Harris from asserting any claim in the

United States District Court.    Harris then properly filed this action

in the Common Pleas Court of Cuyahoga County.

     {¶ 28} The State’s arguments that they do not have the seized

property are disingenuous.      The State, by acting as a conduit from

the owner or possessor of the property to the United States of
                                      15

America is entitled, upon forfeiture, to the return of a substantial

amount of the monies seized.         Accordingly, the State has a genuine

pecuniary interest in any seized property.       The artificiality of their

specious claims that since they no longer are in possession of the

seized property, they cannot be held accountable in replevin, can be

viewed as an attempt by the State to knowingly circumvent the

replevin statutes.    The State levies a preposterous argument.        For

example, if a thief places stolen property in the home of a third

person, should he not be held accountable for its return when the

whereabouts of the property are discovered?          The mere deposit of

currency in a repository operated by the United States government

does not obviate the obvious, the depositor has rights to that which

has been deposited.

     {¶ 29} In Black v. Cleveland (1978), 58 Ohio App.2d 29, 387, 387

N.E.2d 1388, this court held that one in possession of property

sought to be replevied at the time the action is commenced may not

evade the action in replevin by transferring possession of property

to a third party.    Specifically:

    “Another reason exists for the decision reached herein. An
    action in replevin is founded upon an unlawful detention,
    regardless of whether an unlawful taking has occurred. The
    action ‘is strictly a possessory action, and it lies only in behalf
                                   16

    of one entitled to possession against one having, at the time the
    suit is begun, actual or constructive possession and control of
    the property.’ J. E. Cobbey, Replevin, Section 64 (2d ed. 1900).
    It has been held, however, that replevin will lie even though the
    defendant did not have actual possession of the property at the
    commencement of the action, where the defendant sold the
    property just prior to the actual filing of the action and the
    plaintiff was without knowledge of that fact. Tischler v. Seeley,
    12 C.D. 750, 14 C.C. (N.S.) 236, affirmed without opinion, 60 Ohio
    St. 629, 54 N.E. 1110 (1899); See also Helman v. Withers (1892), 3
    Ind.App. 532, 30 N.E. 5.” Id. at 32-33.

     {¶ 30} The Mayfield Heights Police Department may not have

actual possession of the $15,084.47 taken from Harris, but they most

certainly have constructive possession of that money.            Actual

possession   entails   ownership     or   physical   control,   whereas

constructive possession is defined as knowingly exercising dominion

and control over an object even though that object may not be

within one’s physical possession.    State v. Chandler, Cuyahoga App.

Nos. 93664 and 93665, 2011-Ohio-590, citing State v. Hankerson

(1982), 70 Ohio St.2d 87, 434 N.E.2d 1362.

     {¶ 31} Like our prior holding in Black, we find that the city of

Mayfield Heights has constructive possession of the funds and,

therefore, they cannot abdicate any and all responsibility for the

seized property in an action in replevin by transferring the funds to

the federal government.
                                   17

     {¶ 32} The separate concurring opinion to State v. Primm,

Cuyahoga App. No. 94630, 2011-Ohio-328, analyzed similar facts and

circumstances, and accordingly, we find it instructive on this case.

In Primm, the defendant was stopped for a traffic violation, and in

addition to the $26,318 in cash, police also seized approximately 155

grams of marijuana and a 9 millimeter handgun.              The record in

Primm reflects that the police transferred the $26,318 pursuant to 18

U.S.C. 981(b)(2).   Contemporaneous to the filing of the indictment,

the State filed a forfeiture petition against Primm on September 26,

2007, seeking the $26,318, a handgun, and two cell phones.

     {¶ 33} As a condition of his plea, Primm agreed to forfeit a

firearm and two cellular phones.          The court signed the order of

forfeiture, which included the seized funds, on October 1, 2007, and

it was not until June 6, 2008 that Primm filed a motion for the return

of the monies seized.   In the Primm case, as distinguished from the

instant case, the monies had been turned over to the United States

and, in April 2007, the Department of Justice issued a “Declaration

of Administrative Forfeiture.”     No claims were filed, and the funds

were officially forfeited.

     {¶ 34} Nonetheless,     the   separate    concurring     opinion   in
                                     18

Primm analyzed the applicable U.S. Code and determined that

although the federal government possessed the currency, the police

effectively acted preemptively and forfeited the money independent

of   judicial   review.      Id.    Although     the   opinion   in    Primm

acknowledges that once the federal government lawfully seizes

currency, a defendant’s remedy no longer lies with the state court

system, the facts in the instant case are distinguishable.            Id., see,

also, 18 U.S.C. 983(e)(5); State v. Scott (Mar. 22, 2000), Mahoning App.

No. 98 CA 174; State ex rel. Chandler v. Butler (1991), 61 Ohio St.3d

592, 575 N.E.2d 833.      Here, this court has no evidence before it that

the federal authorities ever adopted Mayfield Heights’ Request for

Adoption of State or Local Seizure and, therefore, the State never

lawfully transferred the seized property.

      {¶ 35} The local law enforcement’s immediate transfer of the

funds, without any proper determination as to whether the seizure

was lawful, is tantamount to hiding the funds with the federal

government and washing their hands of any responsibility for

control or refund of the currency.          Although distinguishable, it is

analogous to Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215, where the United States Supreme Court determined
                                  19

that suppression by the prosecution of evidence favorable to an

accused upon request violates due process where evidence is

material either to guilt or to punishment, irrespective of good faith

or bad faith of the prosecution.           This court analyzed the

requirements   of   Brady   in   the   context    of   newly   discovered

exculpatory evidence in State v. Russell, Cuyahoga App. No. 94345,

2011-Ohio-592, and determined that the prosecutor’s argument that

it did not have access to the exculpatory evidence was not good

enough.   Specifically, the Russell court held that prosecutors have a

duty to learn of any favorable evidence known to others acting on

the government’s behalf in the case and that failure to turn over

exculpatory evidence violates their constitutional duty.

     {¶ 36} Accordingly, like Russell, we find that “it is not good

enough” that the appellees in this case merely argue that they no

longer have possession of the currency at issue.               Especially

because the record is conspicuously silent as to whether the federal

authorities possess the funds at issue and whether the local

government lawfully seized the funds on May 24, 2010.

     {¶ 37} Based on the foregoing, we find that the trial court erred

when it dismissed Harris’s replevin action.      Our analysis of Harris’s
                                   20

second assignment of error renders his first and third assignments

of error moot.

     {¶ 38} The decision of the trial court is reversed, and the case

remanded for further proceedings consistent with this opinion.

     It is ordered that appellant recover from 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 common pleas court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

     Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., CONCURS IN
JUDGMENT ONLY;
COLLEEN CONWAY COONEY, J., CONCURS
IN JUDGMENT ONLY (WITH SEPARATE
OPINION ATTACHED)


COLLEEN CONWAY COONEY, J., CONCURRING IN JUDGMENT
ONLY:
   {¶39}I concur in judgment only.

    {¶40}Harris’s    replevin    action    was      improperly   dismissed
                                  21

because, unlike the situation in State v. Primm, Cuyahoga App. No.

94630, 2011-Ohio-328, there is no evidence of a forfeiture in the

instant case.   Defendants’ Ex. B., the request for adoption of state or

local seizure form, specifically indicates no state forfeiture action

was initiated and denies that another federal agency has been

contacted and declined to proceed with this forfeiture.        On this

record, the trial court has jurisdiction under R.C. 2981.03(A)(4) to

hear Harris’s petition that alleges the unlawful seizure of his

property.



                              Appendix A

Assignments of Error:

    “I. The trial court erred, or abused its discretion, when it
    summarily dismissed the appellant’s replevin action.

    “II. Given the insuperable tenet that possession obtained
    through an invalid seizure neither strips the first court of its
    jurisdiction nor vests it in the second court, it follows the court
    erred when it inferentially ruled it lacked jurisdiction.

    “III. The court erred, and the appellant was denied due
    process, when the court summarily dismissed the appellant’s
    replevin action, indeed without making any findings of fact or
    articulating any conclusions of law.”
