[Cite as Cleveland v. Cunningham, 2011-Ohio-2276.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95267
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
ANTONIO D. CUNNINGHAM DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 2009 CRB 045579
BEFORE: Boyle, P.J., Jones, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 12, 2011 2
ATTORNEYS FOR APPELLANT
James R. Willis Myron P. Watson 420 Lakeside Place 323 W. Lakeside Avenue Cleveland, Ohio 44113-1009
ATTORNEYS FOR APPELLEE
Victor R. Perez Chief City Prosecutor Aric Kinast Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Antonio Cunningham, appeals from a judgment of the
Cleveland Municipal Court denying his motion to suppress evidence and his request for
the return of seized property, raising five assignments of error. We affirm.
Procedural History and Facts
{¶ 2} On December 23, 2009, Cunningham was arrested for aggravated
menacing, a violation of Cleveland Codified Ordinances (“C.C.O.”) 621.06, a first degree 3
misdemeanor, and drug abuse, a violation of C.C.O. 607.03, a minor misdemeanor.
Upon arraignment, Cunningham pleaded not guilty to the charges and moved to suppress
the evidence and statements that he made in connection with his arrest. Cunningham
also filed a motion requesting return of the property seized from his vehicle, namely,
approximately $17,000. The trial court held a suppression hearing and ultimately denied
the motion to suppress, finding that “there is probable cause for the officer to arrest
Cunningham for aggravated menacing.” The trial court further denied the request for
the return of seized property, finding that it no longer had jurisdiction because a federal
agency had since seized the property.
{¶ 3} The matter proceeded to a jury trial on the aggravated menacing count,
where the jury found him not guilty. The trial court subsequently found him guilty of
the drug abuse count.
{¶ 4} Cunningham timely appealed. After Cunningham filed his appellate brief,
appellee, the city of Cleveland, moved to dismiss his assignments of error relating to the
trial court’s alleged error in failing to order the return of his seized property, namely,
approximately $17,000 in cash seized from Cunningham’s vehicle, as being moot. The
City indicated that following the suppression hearing, Cunningham had filed a replevin
action in common pleas court for the return of the property, which was subsequently
removed to federal court. At the time of this appeal, the matter was currently pending.
The City also attached a certified copy of a complaint in forfeiture filed on June 30, 2010 4
by the United States Attorney for the Northern District of Ohio, seeking forfeiture of the
money the Cleveland police seized in connection with Cunningham’s arrest on December
23, 2009. We granted the motion to dismiss. Therefore, the only issue before us on
appeal is whether the trial court properly denied Cunningham’s motion to suppress.
{¶ 5} The following evidence was presented at the suppression hearing.
{¶ 6} Cleveland police officer James Dunn testified that on December 23, 2009,
around 1:15 p.m., while off-duty and prior to his shift, he was traveling eastbound on I-90
when he observed a vehicle driving erratically, which was later determined to be operated
by Cunningham. Officer Dunn was traveling in the fast lane and maintained his lane,
preventing Cunningham from passing him. According to Officer Dunn, Cunningham
then “started making gestures toward [him], put his hands up in the air like why aren’t I
getting out of the way.” Dunn further testified that Cunningham then started to swerve
toward Dunn’s vehicle, at which point Dunn got over in the right lane. Cunningham
then pulled next to Dunn’s vehicle, continuing with the hand gestures and then rolled
down his window, pointing a handgun at Dunn, who at this point had also cracked his
own window. In response, Dunn immediately slowed his vehicle, got Cunningham’s
license plate number, and exited onto Superior Avenue. Dunn then called police officers
Sauterer and Taylor, who were working the day shift, and relayed to them what happened,
providing Cunningham’s license plate number along with a description of the vehicle and
the occupants. 5
{¶ 7} Officer Robert Sauterer testified that he received the call from Officer
Dunn, informing him that a male had just pulled a gun on him while driving on I-90,
indicating that “it seemed like it was a type of road rage.” Officer Sauterer and his
partner, Officer Taylor, eventually came upon the vehicle parked in the convenience store
lot on East 140th Street. Believing the driver to be armed, Officer Sauterer and his
partner approached the vehicle with their guns drawn. Officer Sauterer found
Cunningham, who matched the description provided by Officer Dunn, sitting in the
vehicle alone. He immediately pulled Cunningham out of the vehicle and told him that
he was under arrest. He then asked Cunningham if he had any weapons in the vehicle or
other illegal contraband, which Cunningham admitted to having marijuana in the center
console. Cunningham and the front passenger, who was apprehended inside the
convenience store and later identified as Jeron Cantney (Cunningham’s cousin), were
placed in the police vehicle. Sauterer then performed an inventory of the vehicle and
discovered a blue grocery bag full of money.
{¶ 8} Contrary to the City’s position, Cunningham testified that he neither had a
gun nor did he wave any gun at Dunn. According to Cunningham, he was driving east
on I-90 approaching “dead man’s curve,” when he noticed out of his left-hand mirror a
black truck coming from the fast lane behind him. The driver of the black truck “sat
there for a second,” then abruptly came up on the right-side of Cunningham’s vehicle,
“saying something.” As to what transpired next, Cunningham testified as follows: “I 6
rolled down my window to see what [he] was saying. [The driver] was shaking his
head, I thought it was road rage so I stuck up my middle finger at him and kept driving,
rolled up my window. So [the driver] slowed, got back behind me, got my license plate
number and got off at the next exit.” Cunningham further explained that he and his
cousin, who was in the front seat, next stopped at a convenience store at East 140th Street
and St. Clair Avenue, where he was almost immediately apprehended by police in the
parking lot. He testified that two police officers approached him with their guns and
tasers drawn and ordered him out of his car.
{¶ 9} Cunningham further testified that although the officers searched the car,
they did not find a gun. The officers did find marijuana in the car, which Cunningham
testified belonged to his cousin.
{¶ 10} Cantney also testified in support of Cunningham’s motion to suppress.
According to Cantney, on the day of the incident, Cunningham had called him earlier in
the morning and asked if he was interested in viewing some properties and going car
shopping. Cantney testified that immediately upon getting into Cunningham’s car, he
“threw a sack of marijuana in the middle console.” Cantney corroborated Cunningham’s
testimony as to what happened on 1-90 with the black truck, also believing the incident to
be a matter of road rage by the driver of the black truck. He further testified that
Cunningham did not have a gun on him, that Cunningham has never even owned a gun,
and denied that he was ever counting money in the vehicle. Cantney admitted on 7
cross-examination that he had told the officers at the time of the arrest that he “just got
out of jail for drug trafficking, possession of cocaine and a few other felonies, CCW, a
firearm, failure to comply.”
{¶ 11} We now turn to the merits of Cunningham’s appeal, challenging the trial
court’s denial of his motion to suppress.
Standard of Review
{¶ 12} A motion to suppress presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. “When considering
a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the
best position to resolve factual questions and evaluate the credibility of witnesses. * * *
Consequently, an appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. * * * Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal standard.” (Internal citations
omitted.) Id.
{¶ 13} Cunningham first argues that the police did not have probable cause to
arrest him.
Probable Cause for Warrantless Arrest
{¶ 14} The Fourth Amendment to the United States Constitution, made applicable
to the states by its incorporation into the Fourteenth Amendment, provides that people are 8
“to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures * * * and no Warrants shall issue, but upon probable cause * * *.”
{¶ 15} “An arrest without a warrant is constitutionally invalid unless the arresting
officer had probable cause to make the arrest.” State v. Werber, 8th Dist. No. 93716,
2010-Ohio-4883, ¶36. The test for probable cause to justify an arrest is “whether at that
moment the facts and circumstances within [the officers’] knowledge and of which they
had reasonably trustworthy information were sufficient to warrant a prudent man in
believing that the [arrestee] had committed or was committing an offense.” Beck v.
Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142. Whether a Fourth
Amendment violation has occurred “turns on an objective assessment of the officer’s
actions in light of the facts and circumstances confronting him at the time.” Scott v.
United States (1978), 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168.
{¶ 16} Probable cause requires more than a generalized suspicion of criminal
conduct, although less certainty than proof beyond a reasonable doubt. Werber at ¶37.
Probable cause must exist at the time of the arrest; it cannot be established later by
evidence gathered from the suspect after his illegal arrest. Beck, supra.
{¶ 17} The record reveals that Officer Sauterer arrested Cunningham based on the
information provided by Officer Dunn. This is not a situation of the police responding
to a call of an anonymous person with an anonymous tip. Instead, Officer Sauterer was
responding with information provided by another police officer, albeit, off-duty, who had 9
reported a crime. Officer Sauterer discovered Cunningham’s vehicle close in time to the
reported incident and in the area where Officer Dunn stated that the vehicle was headed.
Based on the information provided to Officer Sauterer, we find competent, credible
evidence to support the trial court’s conclusion that Officer Sauterer had probable cause
to arrest Cunningham.
{¶ 18} To the extent that Cunningham denied ever waving a gun at Officer Dunn,
thereby contradicting Officer Dunn’s testimony, the trial court obviously found Officer
Dunn’s testimony more credible.
Search of the Vehicle
{¶ 19} Cunningham contends that, even if the police had probable cause to arrest,
there were no exigent circumstances to justify the search of his vehicle following his
arrest. Relying on the United States Supreme Court’s decision in Arizona v. Gant
(2009), 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485, Cunningham argues that the
search of his vehicle was no longer necessary or justified once he was in the police’s
vehicle. We find his argument unpersuasive. In Gant, the Supreme Court held that a
search of a vehicle incident to an arrest violates the Fourth Amendment unless “the
arrestee is within reaching distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains evidence of the offense of the
arrest.” Id. at 1723. Here, Cunningham was arrested for aggravated menacing, which
involved the use of a firearm. Based on the information provided by Officer Dunn, and 10
given that Officer Sauterer did not find a gun on Cunningham, it was reasonable for
Officer Sauterer to believe that the gun was inside the vehicle. Therefore, under Gant,
the search of the vehicle did not violate the Fourth Amendment.
{¶ 20} We further note that the “inventory search” exception to the warrant
requirement of the Fourth Amendment was left unaffected by Gant. An inventory
search of a lawfully impounded vehicle does not contravene the Fourth Amendment to the
United States Constitution when the search is administered in good faith and in
accordance with reasonable police procedures or established routine. State v. Mesa, 87
Ohio St.3d 105, 1999-Ohio-253, 717 N.E.2d 329. The record reveals that
Cunningham’s vehicle was being towed incident to his arrest and that Officer Sauterer
searched the vehicle as part of an inventory search. We therefore cannot say that the
police violated Cunningham’s Fourth Amendment rights in searching the vehicle.
Statement Regarding the Marijuana
{¶ 21} Cunningham further argues that his statement as to marijuana being in the
vehicle should have been suppressed because he was never Mirandized. But
Cunningham never raised this argument below in the trial court and therefore will not be
reviewed here. See State v. Lucious, 8th Dist. No. 92196, 2009-Ohio-4880, ¶15
(defendant’s failure to raise Miranda argument in the trial court below precluded further
review on appeal). 11
{¶ 22} Accordingly, Cunningham’s assignments of error challenging the trial
court’s denial of his motion to suppress are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant 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 Cleveland
Municipal Court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to the trial
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, J., CONCURS; EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION EILEEN A. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶ 23} While I disagree with portions of the majority analysis, I agree with the
outcome of the case, albeit for different reasons. In conjunction with this court’s opinion
in City of Mayfield Hts. v. Demetrius Harris, Cuyahoga App. No. 95601,
2011-Ohio-1943, I must note my concern surrounding the Cleveland Police Department’s 12
improper seizure and immediate transfer of Cunningham’s $16,757 to the federal
government.
{¶ 24} Cleveland Police Officers arrested Cunningham on December 23, 2009 for
aggravated menacing and drug abuse. At the time of his arrest, officers seized $16,757
from the glove compartment of his vehicle. When questioned about the funds,
Cunningham stated that he was a landscaper and snow remover, that he knew how to save
money, and that his girlfriend frequently provided him with cash. The arresting officer,
Robert Sauterer, was not satisfied with Cunningham’s response and testified that he
believed the large sum of money could possibly be subject to federal civil forfeiture.
{¶ 25} Officer Sauterer contacted Officer James Cudo, a member of the Vice and
Narcotics Unit of the Cleveland Police Department and a self-described expert on civil
forfeitures to the federal government. After arriving on the scene, Officer Cudo acted
of his own accord and determined that the $16,757 was going to be subjected to a federal
civil forfeiture. Officer Cudo then executed a Request for Adoption of Forfeiture form
and on December 30, 2009, the Immigration and Customs Enforcement Agency, a branch
of the U.S. Government’s Department of Homeland Security, took exclusive possession
of the $16,757. The matter was then assigned to the Fines, Penalties & Forfeiture
Section of the U.S. Customs and Border Protection, FP&F Case No. 2010410100001601.
{¶ 26} On January 11, 2010, the U.S. Customs and Border Protection sent a
certified letter notifying Cunningham of the seizure and of his right to institute judicial 13
forfeiture proceedings in federal court. 1 On April 3, 2010, Cunningham submitted a
claim to the Customs and Border Protection for the $16,757 and on May 24, 2010, filed
the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) Election of Proceedings form.
On June 30, 2010, the United States Attorney for the Northern District of Ohio filed a
complaint in forfeiture against Cunningham in the amount of $16,757 in the United States
District Court for the Northern District of Ohio, Eastern Division.
{¶ 27} Simultaneous to the above proceedings, Cunningham also sought the return
of the seized monies in both the municipal and common pleas courts. On January 4th, he
requested the immediate return of the seized monies in Cleveland Municipal Court. On
February 8, 2010, Cunningham also filed a complaint in replevin in Cuyahoga County
Common Pleas Court, seeking the return of his monies. On February 16, 2010, the
Cleveland Municipal Court denied Cunningham’s motion for return of the seized monies,
stating that as the federal government had taken possession of the funds, the court was
without jurisdiction to hear his claim. Cunningham appealed. On March 4, 2010, the
city of Cleveland filed a notice of removal of Cunningham’s replevin action to federal
court.
{¶ 28} While I acknowledge that Cunningham is actively pursuing relief using the
procedures to challenge the federal forfeiture as contained within CAFRA, I find the
manner in which the federal government became involved in this matter disturbing.
The letter was sent to Cunningham’s correct address, however, the certified letter was 1 14
{¶ 29} It is becoming readily apparent that when police officers seize large sums of
money, they are circumventing the state forfeiture statute by preemptively turning over
the seized monies to federal authorities. These entities are then disclaiming any
responsibility over these funds simply stating that because the federal government
possesses the funds at issue, “we are without jurisdiction to hear the matter.” As stated
in Harris:
{¶ 30} “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 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.” Id.
returned by the U.S. Postal Service as unclaimed on or about February 8, 2010. 15
{¶ 31} Moreover, this transfer of funds to the federal government is being
accomplished, as evidenced above, without any approval by either a senior officer, the
City’s law director, or the City’s prosecutor. It appears from the record of cases before
this court, that any police officer who seizes large sums of money can take it upon himself
or herself to request federal adoption of those funds. This is notwithstanding the legal
analysis required to determine whether the funds were seized lawfully. Specifically,
Section 981(b)(2), Title 18, U.S. Code, outlines three options for seizures, the most
commonly used of which states: “(C) the property was lawfully seized by a State or local
law enforcement agency and transferred to a Federal agency.”
{¶ 32} In the present case, Officer Sauterer testified that he searched
Cunningham’s vehicle as an inventory search to safeguard any of Cunningham’s property.
It was during this search that Officer Sauterer discovered the nearly $17,000. Without
any approval from his senior officer, or anyone with any legal education, Officer Sauterer
immediately believed the money would be subject to civil forfeiture. Officer Sauterer
contacted Officer Cudo, who confirmed his belief. The officers then issued Cunningham
a receipt for the funds, which stated that the funds were being seized as evidence. The
basis for how these funds were “lawfully seized” is unclear, and we can only assume that
it was based on the officers’ belief of criminal activity.
{¶ 33} It is equally incredulous to note that the officer performing the seizure is the
same officer determining the legality of the seizure. That officer is acting as judge and 16
jury as to whether the funds were seized lawfully. Pride and procedure dictates that any
given officer will believe that their own seizure of property was done “lawfully.”
Moreover, when you take into consideration the financial incentive local law enforcement
agencies have to transfer seized money to the federal government, the regularity with
which this is occurring becomes alarming.
{¶ 34} The United States Attorney’s Manual Chapter 9-116.110 specifically
forbids a federal agency from adopting a seizure while the property remains subject to the
jurisdiction of a state court. Regrettably, Cunningham’s pursuit of his claim to the
monies in federal court ties this court’s hands in this case; see State ex rel. Chandler v.
Butler (1991), 61 Ohio St.3d 592, 575 N.E.2d 833. Nonetheless, I am disturbed, to say
the least, about the legal maneuvering used by local law enforcement. As stated in State
v. Scott (Mar. 22, 2000), Mahoning App. No. 98 CA 174:
“This Court notes that * * * the trial judge expressed serious misgivings concerning the legal loophole which effectively allows local law enforcement authorities to completely circumvent the procedural safeguards contained in the state forfeiture statute. This is accomplished by merely turning the seized property over to federal authorities pursuant to federal statute which does not require a defendant’s conviction as a condition precedent to forfeiture proceedings. The trial court’s misgivings are highlighted by the fact that 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. The cumulative effect of this practice is to reduce Ohio’s forfeiture statute to a functional nullity.”
See, also, State v. Primm, Cuyahoga App. No. 94630, 2011-Ohio-328.
{¶ 35} Accordingly, based on the foregoing, I concur in judgment only.