The Second District Court of Appeals ruled that the trial court should have suppressed evidence of drug possession obtained in a traffic stop for unpaid traffic tickets.

The Second District Court of Appeals ruled that the trial court should have suppressed evidence of drug possession obtained in a traffic stop for unpaid traffic tickets.

Evidence of drug possession against a Dayton man should have been suppressed by the trial court because it was obtained in a traffic stop not for a crime but for unpaid parking tickets, the Second District Court of Appeals has ruled.

Montgomery County Court of Common Pleas convicted Edward L. Dukes of a fifth degree felony and sentenced him to community control sanctions after Dayton police officer Jeff Hiber found crack cocaine in the car he was a passenger in.

The City of Dayton, in 2012, was owed more than $750,000 in unpaid parking tickets, so the Dayton Police Department issued a new rule where drivers who had two or more unpaid parking tickets were put on a “tow-in-list” and officers could pull the cars over and tow them.

When Hiber pulled over the car Dukes was a passenger in and went to explain why he pulled the vehicle over, he noticed an open container of alcohol. He then put the driver and Dukes into his cruiser and went back to the car where he noticed a bag of crack cocaine on the passenger side where Dukes was sitting. Hiber then arrested Dukes.

During the trial court proceedings, Hiber said he did not observe a traffic violation or criminal activity prior to pulling over the car Dukes was riding in. Dukes filed a motion to suppress saying it was an unlawful search and seizure.

The lower court denied his motion and said: “Observations of things in plain sight, made from a place where a police officer has a right to be, do not amount to a search in the constitutional sense … Here, Officer [Hiber] had authority to stop the car (and tow) pursuant to Dayton Police Department General Orders.”

Dukes appealed the decision. The state told the Second Court of Appeals that the trial court’s decision was correct and argued that the “public’s interest in obtaining the hundreds of thousands of dollars owed to the City for unpaid parking citations outweighed Dukes’ privacy interest as a passenger in a vehicle on the tow list.”

The Second District of Appeals disagreed and said in its opinion authored by Judge Mary E. Donovan that while seizures are allowed without a warrant if illegal contraband is immediately recognizable and in plain view of a police officer, “(Hiber) did not observe a traffic violation or testify that he possessed a reasonable articulable suspicion of criminal activity when he stopped (Dukes’) car.”

Judge Donovan said the appeals court has previously noted in State v. Davie that “the plain view exception authorizes the seizure, without a search warrant, of an illegal object or contraband that is immediately recognizable as such when it is in plain view of a law enforcement official.”

Judge Donovan said in the case of an unlawful traffic stop, evidence and statements obtained must be suppressed.

“Since Duke’s Fourth Amendment rights were violated by Hiber’s unlawful stop, the plain view doctrine does not apply to the crack cocaine which, along with Dukes’ admission that the crack cocaine was his, were subject to suppression,” Judge Donovan wrote.

The court also noted that “fines imposed for parking violations are civil in nature, and it is not a crime pursuant to … the City of Dayton’s Code of Ordinances to drive a vehicle while owing money on parking citations.”

Judge Donovan wrote: “The protections guaranteed by the Fourth Amendment cannot be altered by means of an Executive Order issued to police department personnel.”

Judges Jeffrey E. Froelich and Jeffrey M. Welbaum concurred in the April 26 opinion that reversed the judgment of the trial court and remanded the case for further proceedings.

State v. Dukes, 2013-Ohio-1691
Opinion: http://www.sconet.state.oh.us/rod/docs/pdf/2/2013/2013-ohio-1691.pdf
Criminal Appeal From: Montgomery County Court of Common Pleas
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: April 26, 2013

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