[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.
