Wednesday, Oct. 27, 2021
State of Ohio v. Delvonte Philpotts
, Case no. 2019-1215
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Darnell Eatmon, Jr.
, Case no. 2020-1018
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Kennedy M. Burroughs, Case no. 2020-1304
Third District Court of Appeals (Marion County)
Is Barring Gun Possession by Those Indicted for Violent Crimes Constitutional?
State of Ohio v. Delvonte Philpotts, Case No. 2019-1215
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Does Ohio’s law against having a weapon “while under a disability” violate the federal and state constitutions by prohibiting a person indicted for a felony offense of violence from having a firearm?
- Does Ohio’s having-weapons-under-disability law violate the constitutional due process rights of a person under indictment for a felony offense of violence for having a firearm?
BACKGROUND:
In March 2017, Delvonte Philpotts was indicted in Cuyahoga County for rape, kidnapping, and assault. The rape and kidnapping charges each included a firearm specification. He appeared for arraignment and pleaded not guilty. The trial court set a bond for Philpotts and required him to wear an electronic monitor, but imposed no restrictions regarding weapons. He posted bond and was released in April.
Three months later, members of the Cleveland Police Department discovered pictures Philpotts posted of himself on social media while out on bond. Some of the photos showed him standing outside his home with a handgun.
Police obtained a search warrant and went to his home. They located the gun seen in the photos. In August 2017, Philpotts was indicted for a violation of R.C. 2923.13(A)(2) by having a weapon “under disability” for possessing a firearm while under indictment for an offense of violence.
Gun Charge Challenged After Initial Charges Dropped
In November 2017, prosecutors asked to dismiss without prejudice the rape, kidnapping, and assault charges to allow for further investigation into the case. In January 2018, Philpotts asked the trial court to dismiss the weapons-under-disability charge, arguing it was unconstitutional when applied to people under indictment but not convicted of a violent crime, The trial court rejected the request. While his case was pending, Philpotts was arrested for having a loaded gun in his car.
In March 2018, he pleaded no contest to the weapons-under-disability charge and guilty to improperly handling a firearm in a motor vehicle. He was sentenced to three years of community control. Philpotts appealed his weapons-under-disability conviction to the Eighth District Court of Appeals. The Eighth District affirmed his conviction.
Philpotts appealed to the Ohio Supreme Court, which agreed to hear his case at the Court’s special off-site session in Akron.
Restrictions Without Actual Suspicion of Threat Unconstitutional, Accused Argues
Philpotts traces the history of weapons regulation from before the founding of the United States back to medieval times. He notes that, for centuries, authorities only have restricted the possession of weapons after a person has been found to have committed an offense.
In 1969, when Ohio first enacted what is now R.C. 2923.13, it became the first state to make it a crime for a person under indictment, but not yet convicted of a crime, to have a weapon while under a disability. His brief notes there are dozens of “disabling” events — such as being a minor, having a mental illness, or already being convicted of a crime — which authorize the state to restrict a person’s ability to carry a gun.
Philpotts maintains that the U.S. Supreme Court in its 2008 District of Columbia v. Heller decision affirmed that the Second Amendment to the U.S. Constitution secures a person’s “individual right to possess and carry weapons in case of confrontation.” He also notes that Article I, Section 4 of the Ohio Constitution directly secures a person’s individual right to bear arms. Philpotts acknowledges the Heller decision and subsequent legal rulings indicate the right to bear arms isn’t absolute and the government has the right to place reasonable restrictions on gun rights. He notes the Ohio Supreme Court has adopted a test used by many courts across the nation since Heller to determine whether a gun regulation is constitutional.
The test states that if a law places a burden on a “core” right protected by the Second Amendment, then it is subjected to the toughest standard of review by a court, known as “strict scrutiny,” Philpotts explains. Under strict scrutiny, the government must have a compelling interest to regulate a behavior and use the least-restrictive means possible, he continues. By applying R.C. 2923.13 to those indicted for a felony offense of violence, the law prohibits individuals from exercising their core right to have firearms in their own home for their personal protection, he argues. This prohibition affects a “core” right protected by the Second Amendment and there is no compelling reason to have a blanket ban on all persons indicted for a crime from merely “having” a gun, not for using, carrying, or acquiring a gun, he concludes.
Ohio easily could adopt a less-restrictive means of restricting those under indictment for illegally having a weapon, he notes. At a preliminary stage, such as a bond hearing, a court could assess the accused, who would be present and most likely have a lawyer, and could determine if the person poses a threat that should disqualify the accused from having a gun until the case is resolved, he maintains.
Current Process Violates Rights, Gun Owner Asserts
Philpotts asserts R.C. 2923.13(A)(2), which applies to those indicted for a violent felony is unconstitutional because it impacts a core Second Amendment right of a person who hasn’t been judged to have committed a crime. He notes the prosecution has maintained that the grand jury determined there was probable cause he committed the violent crimes and indicted him, so that process doesn’t make the prohibition an arbitrary decision. However, he counters, the accused isn’t involved in the secret process of the grand jury, which lacks procedural safeguards to protect the rights of the innocent.
Philpotts argues that the law not only is unconstitutional because it is arbitrarily imposed on those who haven’t been proven to commit a crime, but also lacks the due process protections required by the federal constitution. He notes the Eighth District found the law didn’t violate his due process rights because, under R.C. 2923.14(D), anyone under a firearm disability can request a hearing to restore the right to possess a firearm.
But Philpotts maintains the process is backward and the state should hold a hearing before, not after, taking away the accused’s rights to have a gun. A less-restrictive method would be to conduct a hearing when considering the pretrial release of the accused to determine whether the person should be able to have a gun, he concludes.
Law Constitutionally Applied to Risky Individuals, Prosecution Maintains
The Cuyahoga County Prosecutor’s Office notes the Heller decision specifically applies to “law-abiding citizens” and the high court permitted restrictions on those who “pose a risk to public safety.” The office notes Philpotts was indicted by a grand jury after the prosecution presented evidence of his likely guilt in committing violent crimes. The prosecutor argues the legislature is empowered to pass laws that regulate a class of people who pose a risk to the public, and that the indictment provision in the weapons-under-disability law applies only to a limited group of individuals who are accused of committing an offense of violence.
The prosecutor asserts the law is sufficiently limited to the state’s reasonable interest in restricting the most dangerous people from possessing a firearm prior to trial. The office notes similar laws in other states adopted since Ohio first passed the restriction have been upheld because the laws are tailored to apply only to those who have been found through the legal process to pose a great danger to the public.
The office also rejects Philpotts due process claim, noting the constitution requires notice of the law and an opportunity for a hearing. Philpotts had notice that the statute applies to those under indictment, and while under indictment, he had the right under R.C. 2923.14(D) to request a hearing to have his gun rights restored, which he didn’t do, the prosecutor argues.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Delvonte Philpotts from the Cuyahoga County Public Defender’s Office: Robert McCaleb, 216.443.7223
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Kevin Filiatraut, 216.443.8139
Did Prosecutor Establish Need for Warrants to Make Witnesses Appear in Court?
State of Ohio v. Darnell Eatmon Jr., Case No. 2020-1018
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Must a trial court issue a material witness warrant when one side shows probable cause that the witness is material to the case, the witness is uncooperative and refuses to appear, and detention of the witness is necessary to ensure attendance at trial?
BACKGROUND:
The Cuyahoga County prosecutor alleges that on Sept. 9, 2017, Darnell Eatmon Jr. shot his uncle – Khaalis Miller – numerous times after an argument on a Cleveland street. Miller was hospitalized and underwent surgery for his injuries. The prosecutor states that Miller’s mother, Lisa Ford, called Cleveland police two days later to report the shooting and police talked with Miller and his mom.
In December 2017, Eatmon was indicted on charges of attempted murder, felonious assault, discharging a firearm on or near a prohibited premises, and illegally having a weapon. Eatmon was arrested in February 2019. At his arraignment, he pled not guilty.
State Requests Warrants for Material Witnesses
In April, the prosecutor asked the Cuyahoga County Common Pleas Court for material witness warrants to compel Miller and Ford to appear in court. The prosecutor didn’t think Miller would appear unless he was arrested. In the motions requesting the warrants, the prosecutor stated that investigators attempted to call multiple phone numbers for Miller, leaving messages and receiving no return calls. They visited an East Cleveland residence, two Euclid residences, and one Painesville apartment, looking for Miller. They left letters at some locations and mailed letters to other addresses asking Miller to call the prosecutor about the case – with no response.
The trial court denied the requests for material witness warrants for Miller and Ford.
The prosecutor refiled a request a few weeks later, adding information about further attempts to contact Miller and his mother – by phone, letters, and visits to Ford’s home and workplace – without success. The prosecutor stated in the motion that Ford called a detective and yelled at him for visiting her home and workplace, saying she wanted nothing to do with the case and her son didn’t want to prosecute Eatmon.
The trial court again denied the requests for the material witness warrants, and Eatmon’s trial was moved to July 2019. On the first day of the trial, the prosecutor again asked for warrants, which the judge denied. The prosecutor’s office stated it couldn’t proceed with the trial without the witnesses, and the court dismissed the case without prejudice – meaning the state could resubmit the charges against Eatmon later.
The prosecutor appealed to the Eighth District Court of Appeals, which upheld the trial court’s decision. The prosecutor appealed to the Ohio Supreme Court, which agreed to hear the case at the Court’s special off-site session in Akron.
Witness Warrants Necessary to Compel Victim and Mother to Appear, State Asserts
The Cuyahoga County Prosecutor’s Office explains that the General Assembly, by enacting laws, and the Ohio Supreme Court, through its authority to make rules for courts, give prosecutors and courts the power to force witnesses to be present at a trial and to testify.
“In a perfect world, victims and witnesses of violent crime would gladly come to [c]ourt and offer testimony,” the prosecutor’s brief states. “Police, prosecutors, victims and witnesses do not operate in a perfect world. There are many reasons victims and witnesses do not want to testify[.]”
A witness may be served a subpoena, which orders the person to show up and testify. If the witness doesn’t appear in court, the witness can be found in “contempt of court” and possibly put in jail until giving testimony. However, the prosecutor maintains, receiving a subpoena doesn’t always ensure that a witness will show up for court. To make certain that a witness attends a trial, prosecutors can obtain a material witness warrant, which permits the state to hold the witness in confinement prior to and during the trial.
The prosecutor’s office maintains that it made numerous attempts to compel Miller and Ford to attend Eatmon’s trial and that witnesses who don’t want to testify know how to avoid personally receiving a subpoena. However, the trial court in this case focused on whether each witness had received the subpoena in person, and the Eighth District determined that “the state’s failure to obtain personal service contributed to its failure to demonstrate probable cause, by oath or affirmation, that detention was necessary to procure the witnesses’ attendance at trial.”
The language refers to the Fourth Amendment to the U.S. Constitution, which states in part that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, ….”
The prosecutor disagrees with the lower courts, countering that the relevant Ohio statutes don’t require a subpoena to be personally served on a witness nor that the prosecutor establish probable cause with an affirmation such as an affidavit. The prosecutor argues that a material witness warrant isn’t a warrant as meant in the Fourth Amendment.
The prosecutor adds that the state recited a long list of facts in court to show the unlikelihood that the witnesses would appear at Eatmon’s trial without the material witness warrants. That explanation to the court established any needed probable cause, the prosecutor maintains.
Oath or Affirmation Required for Warrants, Alleged Perpetrator Argues
Eatmon argues that the Fourth Amendment, and the identical language in the Ohio Constitution, explicitly require that the court receive sworn affidavits or sworn testimony to secure a warrant.
“The plain meaning of the two constitutional provisions ends the inquiry in this case – no oath means no warrant,” his brief states.
In addition, the facts the prosecutor presented to the court didn’t support issuing the material witness warrants, Eatmon maintains. He argues that no effort was made to serve Miller with a subpoena at his Painesville address. And apparently the best the state could do was a phone conversation with Ford, he states. Even if a witness doesn’t respond to the prosecutor’s informal attempts at contact – such as phone calls, letters, and mailing the subpoena – that doesn’t mean the witness wouldn’t show up in court had the witness received a properly served subpoena, Eatmon asserts.
“If in the months preceding trial, the prosecution, with all of its resources, could not find a way to personally serve these two witnesses, what was the likelihood that they would have any more success arresting them as the trial was proceeding[?]” Eatmon asks.
Had the witness warrants been granted, the trial moved forward, and the prosecutor failed to locate the witnesses, Eatmon might have been acquitted, his brief notes. It concludes that by dismissing the case without prejudice, the court was allowing the state to refile the charges later, avoiding double jeopardy and stopping the speedy-trial clock.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: John Kosko, 216.443.6956
Representing Darnell Eatmon Jr. from the Cuyahoga County Public Defender’s Office: John Martin, 216.443.7583
Could Police Search Book Bag Suspected of Containing Drugs Without Warrant?
State of Ohio v. Kennedy M. Burroughs, Case No. 2020-1304
Third District Court of Appeals (Marion County)
ISSUE: When law enforcement officers seize a book bag in a person’s home, must they obtain a search warrant to search the book bag when there are no apparent officer-safety concerns at the scene or the possibility of destruction of evidence?
BACKGROUND:
In January 2019, Marion police officers went to the home of Kennedy Burroughs to serve her with an arrest warrant for a misdemeanor charge of obstruction of justice. When Officer Chris Coburn knocked on the door, Burroughs closed and locked it. Through a window, Coburn could see Burroughs grab several plastic baggies and run to a room in the back of the house. Coburn later testified that the baggies looked like “things that people keep drugs in,” and he believed Burroughs was going to flush drugs down her toilet to destroy evidence.
Coburn contacted Lieutenant Mark Elliot, who was on his way to the scene. Elliot instructed Coburn to break into the house. Coburn saw a green book bag on the bathroom floor, zipped closed, but with one plastic baggie hanging out of it. He discovered Burroughs in the back bedroom with a juvenile. Burroughs was in possession of marijuana. Coburn put Burroughs in a police cruiser and sent the juvenile home.
Coburn seized the book bag. With everyone out of the house, he testified that he had no reason to believe evidence would be destroyed, and that he believed he needed a search warrant to open the book bag.
Elliot testified that when he arrived, he saw more than one baggie sticking out of the book bag. Elliot told the other officers at the scene that he unzipped the book bag to determine if it contained “weapons or anything else that could hurt” the officers. He found marijuana and marijuana edibles in the book bag.
Based on the amount of marijuana discovered, Burroughs was charged with a fifth-degree felony for possession of marijuana. She asked the trial court to suppress the evidence of marijuana found in the book bag, arguing the warrantless search violated her rights under the Fourth Amendment of the U.S. Constitution. Unless an exception applies, the Fourth Amendment requires law enforcement officers obtain a search warrant by demonstrating to a judicial official that they have probable cause the search will reveal criminal activity. The trial court determined that Elliot’s protective-sweep justification for the search was improper. However, the court found the book bag was in plain view and that the officers had probable cause to believe the bag contained contraband. The court denied Burrough’s suppression request.
She then pleaded no contest to the charge, stating she intended to appeal the suppression decision. She was sentenced to two years of community control.
In a split decision, the Third District Court of Appeals affirmed the conviction, finding the search was valid under a different exception to the Fourth Amendment’s warrant requirement. The appellate court ruled the police could search the book bag because it was a “single-purpose container.”
Burroughs appealed to the Ohio Supreme Court, which agreed to hear her case at the Court’s special off-site session in Akron.
No Warrant Exception Permitted Book bag Search, Offender Argues
Burroughs argues the police and the lower courts presented no rationale that would allow for a warrantless search of the book bag. First, she notes, Elliot stated he opened the book bag because it might contain weapons. The U.S. Supreme Court has never allowed a container to be seized merely on the speculation that it might contain weapons, she explains, and the trial court correctly rejected this rationale.
Next, the trial court’s rationale about the bag being in plain view and likely containing contraband — allowing it to be lawfully searched — misreads the rule on plain-view searches, she maintains. Even when a container is seized legally by law enforcement, as was the case with the book bag, police still need a warrant to open it, according to the plain-view rule, she concludes.
Burroughs also argues the Third District’s “single-purpose container” argument fails. She notes the U.S. Supreme Court has established that certain containers — such as a gun case or a pill bottle with a label describing the pills — leave little doubt as to their contents, so obtaining a warrant before a search of the container isn’t required. But a book bag is a multi-purpose container that can hold an endless variety of personal items, she argues. The single-purpose container rationale cannot be applied to book bags, and a warrant was needed to complete the search, she maintains.
Bag in Plain View Can Be Searched, Prosecutor Argues
The Marion County Prosecutor’s Office explains the plain-view rule applies to containers when their outward appearance infers its content. It isn’t the shape or type of container that dictates what is inside, but whether the police, using their experience and observations, can deduce the contents of the container, the office argues.
In this case, the police watched Burroughs flee to the back of the house after grabbing baggies from the front room. When they detained Burroughs in the back bedroom, they discovered marijuana and detected the smell of recently burned marijuana. When the officers saw the book bag in the bathroom, the book bag wasn’t completely sealed, but partially open with a baggie sticking out from it, the office notes.
The prosecutor argues the U.S. Supreme Court has stated that the reasonableness of a warrantless search must be assessed by the “totality of the circumstances.” Having observed Burroughs’ behavior and seeing the book bag sitting in plain view in the bathroom, it was reasonable to believe the bag contained marijuana, the office maintains. Because the baggies sticking out of the book bag were likely the ones Burroughs rushed to grab when police came to her door, the police reasonably believed they contained drugs, the office asserts. Viewed in context, the search of the book bag was reasonable and met the plain-view standard, the prosecutor concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Kennedy M. Burroughs from the Ohio Public Defender’s Office: Craig Jaquith, 614.644.1568