[Cite as Long v. State,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97044

MARVIN LONG

PLAINTIFF-APPELLANT

vs.

STATE OF OHIO, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-754989

BEFORE: E. Gallagher, J., Jones, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: February 2, 2012 2

ATTORNEYS FOR APPELLANT

James R. Willis Myron P. Watson 420 Lakeside Place 323 Lakeside Avenue, N.W. Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

William D. Mason Cuyahoga County Prosecutor

By: Reno J. Oradini, Jr. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Marvin Long appeals from the decision of the trial court dismissing his

petition for return of seized property for lack of jurisdiction. Long argues the trial court

erred when it dismissed his action, that the search warrant forming the basis of the

seizure was invalid on its face, and that the trial court erred when it failed to hold a

prompt hearing on his petition for return of seized property. Finding merit in the instant

appeal, we reverse the decision of the trial court and remand for an evidentiary hearing. 3

{¶ 2} On May 6, 2011, members of the Cuyahoga County Sheriff’s Department

and the United States Department of Justice Drug Enforcement Administration,

Cleveland Office, executed a search warrant at 2994 Ripley Road, Cleveland, Ohio

44120. The warrant was issued by a judge of the Cuyahoga County Court of Common

Pleas. Pursuant to the warrant, officers seized two handguns, an undetermined amount

of cash, and miscellaneous papers that belonged to Marvin Long. The record does not

include a search warrant returned to any court. However, a search warrant inventory

receipt upon which the plaintiff ostensibly has signed his name as a witness reflects the

seizure of two (2) handguns, an unknown amount of U.S. currency, a bag of receipts, and

miscellaneous documents.

{¶ 3} On May 11, 2011, Long filed a petition for the return of seized property in

the common pleas court pursuant to R.C. 2981.03. On May 26, 2011, the state filed a

motion to dismiss Long’s petition and, on June 15, 2011, the trial court conducted a

hearing on the motion.

{¶ 4} At the hearing, the state argued that the common pleas court did not have

jurisdiction over Long’s petition because the property seized had been, or remained, with

federal authorities. Additionally, the state suggested that the money seized by the

officers had been returned to Long prior to the hearing and that the two handguns that

had been seized would also be returned, if they passed criminal history checks. In

response, attorneys for Long argued that the common pleas court did have jurisdiction to 4

hear Long’s petition and that the Drug Enforcement Agency agent could not apply for a

warrant in common pleas court. Regardless of whether the money had been returned,

Long’s attorneys sought a ruling on Long’s petition. At the close of the hearing, the

trial court dismissed Long’s petition, finding that it did not have jurisdiction to hear the

matter, and that jurisdiction rested with the federal court.

{¶ 5} Long appeals, raising the three assignments of error contained in the

appendix to this opinion.

{¶ 6} In his first assignment of error, Long argues the trial court erred when it

dismissed his petition for the return of seized property.

{¶ 7} In putting forth this assigned error, Long fails to cite to any legal authority

in support of his argument. The first assigned error lacks any legal authority supporting

Long’s contention that the trial court erred, a failure that allows this court to disregard

his arguments. App.R. 12(A)(2); App.R. 16(A)(7); State v. Martin, 12th Dist. No.

CA99-01-003,

(July 12, 1999), citing Meerhoff v. Huntington Mtge.

Co.,

,

(1995); Siemientkowski v. State Farm Ins.,

8th Dist. No. 85323,

,

. “If an argument exists that

can support this assigned error, it is not this court’s duty to root it out.” Cardone v.

Cardone, 9th Dist. Nos. 18349 and 18673,

(May 6, 1998).

{¶ 8} However, we will address the merits of Long’s first assigned error. The

record is devoid of any evidence establishing which entity maintained jurisdiction over 5

the seized property. The only evidence before this court that references the United

States government are two pieces of paper: (1) a U.S. Department of Justice-Drug

Enforcement Administration Receipt for Cash or Other Items, which lists the six items

seized on May 6, 2011; and (2) a U.S. Department of Justice-Drug Enforcement

Administration Receipt for Cash or Other Items, which lists the “undetermined United

States Currency” as being turned over to the owner, Marvin Long, on May 24, 2011.

Neither of these documents establishes whether state or federal authorities had actually

seized or maintained possession of the seized property.

{¶ 9} Based on the record before this court, we are unsure which agency actually

seized the property, federal authorities or the Cuyahoga County Sheriff’s Department.

If the state seized the property, and the federal authorities adopted the property as alleged

by the state in its brief, this court has no evidence of the manner in which this adoption

was procured or finalized. See Harris v. Mayfield Hts., 8th Dist. No. 95601,

,

, appeal not allowed by Harris v. Mayfield Hts.,

,

,

. There is simply no evidence in the

record for this court to make that determination.

{¶ 10} R.C. 2981.03 does not limit actions in replevin from only specified

defendants. Irrespective of whether the property is in the possession of the state of

Ohio or the United States of America, Long may go forward with this replevin action.

There is no evidence for the prosecutor’s argument that the state of Ohio has never had 6

possession of the property. The two federal documents referenced by the prosecutor

that he claims demonstrate the lack of possession on the part of the state do not reflect

that proposition at all. They are merely receipts on U.S. Department of Justice-Drug

Enforcement Administration pre-printed forms.

{¶ 11} Based on the foregoing, we sustain Long’s first assignment of error.

{¶ 12} In his second assigned error, Long argues that the search warrant was

facially defective and, therefore, the court erred in dismissing his petition. The crux of

Long’s argument is that Special Agent Joseph Harper, the individual who requested the

search warrant from the common pleas court, was not a law enforcement officer within

the meaning of Ohio’s Criminal Rules. This assigned error lacks merit.

{¶ 13} Crim.R. 41(A) states in pertinent part: “A search warrant * * * may be

issued * * * upon the request of a *** law enforcement officer.” Crim.R. 2(J) defines

“law enforcement officer” and absent from this definition is a federal agent. In the

present case, if Special Agent Joseph Harper had acted alone, Long’s argument would

have some merit. The search warrant itself, however, clearly shows that it was

addressed to both the Cuyahoga County Sheriff’s Department and the city of Cleveland,

Chief of Police, entities that are authorized by Crim.R. 41(A) to execute a search

warrant. As stated by this court in State v. Joiner, 8th Dist. No. 81394,

,

, “[f]ederal and state officers often work in

conjunction in criminal cases and their cooperating in the execution of a search warrant 7

is acceptable provided they are searching for the same contraband.” See also State v.

Siegrist, 11th Dist. No. 10-088,

(Sept. 28, 1984) (upholding warrant

allegedly requested by DEA agent but executed by local police); State v. Miller, 9th Dist.

No. 12198,

(Jan. 22, 1986) (stating that if officers from the jurisdiction

where the search took place are present, the presence of unauthorized officers is

immaterial); State v. Ridgeway, 4th Dist. No. 00CA19,

,

(holding that DEA agent could participate in search on local warrant).

{¶ 14} Accordingly, Long’s challenge to the search warrant is without merit. His

second assignment of error is overruled.

{¶ 15} In his third and final assignment of error, Long argues the trial court erred

in failing to hold a prompt hearing on his petition for return of seized property. We

disagree.

{¶ 16} In the present case, Long filed his petition for the return of seized property

on May 11, 2011 and on June 15, 2011, the trial court conducted a hearing, which Long

failed to attend. Nowhere in his brief does Long argue that a lapse of 35 days does not

constitute a prompt hearing. Instead, Long reiterates his arguments that the state had

jurisdiction over the matter and that the search warrant was defective, arguments which

we addressed, in full, above.

{¶ 17} Accordingly, Long’s third and final assignment of error is overruled.

{¶ 18} The judgment of the trial court is reversed and remanded for further 8

proceedings consistent with this opinion.

It is ordered that appellant recover of said 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

lower 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

LARRY A. JONES, P.J., and KENNETH A. ROCCO, J., CONCUR

Appendix

Assignments of Error:

I. Given the common pleas court has jurisdiction to entertain a “petition for the return of seized property” that was filed when there were no charges lodged in the wake of an assailed seizure, it follows the court erred when it dismissed the appellant’s action filed under favor of Revised Code of Ohio, 2981.03(A)(4).

II. Given the search warrant, on the basis of which the appellant’s property was seized, was patently defective, indeed on its face, it follows the court not only erred, but due process was offended when 9

the court dismissed this statutory cause of action.

III. Given due process, independent of the state statutes and rules (including those cited above), requires the state once it seizes private property in the name of the state to provide the person (or persons) from whom the property was seized a prompt hearing in which the state must establish its right to maintain possession of such property.