State ex rel. Gains v. Go Go Girls Cabaret, Inc.

932 N.E.2d 353, 187 Ohio App. 3d 356
CourtOhio Court of Appeals
DecidedMarch 2, 2010
DocketNo. 09 MA 146
StatusPublished
Cited by4 cases

This text of 932 N.E.2d 353 (State ex rel. Gains v. Go Go Girls Cabaret, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Gains v. Go Go Girls Cabaret, Inc., 932 N.E.2d 353, 187 Ohio App. 3d 356 (Ohio Ct. App. 2010).

Opinion

Vukovich, Presiding Judge.

{¶ 1} Plaintiff-appellant, Paul Gains, appeals the decision of the Mahoning County Common Pleas Court that ruled that the state must return seized computers to defendant-appellee Go Go Girls Cabaret, Inc. Appellant urges that the judge that presided over a civil nuisance case was unauthorized to rule on a motion for the return of property that had been seized pursuant to a search warrant issued by another judge who was presiding as the grand jury judge at the time and thus was the judge in charge of search warrants pursuant to local rule. Appellant alternatively contends that the trial court erred in ordering the return of seized property because it was needed for an ongoing criminal investigation.

[358]*358{¶ 2} For the following reasons, we conclude that the judge presiding over the civil nuisance case had no authority to order the return of property that had been seized pursuant to a criminal search warrant issued by another judge and had not been used in the nuisance trial. Consequently, the judgment of the trial court ordering the return of seized computers is reversed.

STATEMENT OF THE CASE

{¶ 3} On May 1, 2009, the state filed a nuisance action against Go Go Girls Cabaret, Inc. and its owners and operators, Triple G Investments, Inc., Robert Neill, and Sebastian Rucci. Among other complaints, there were allegations of drug trafficking, prostitution, and underage drinking. The action was randomly assigned to Judge D’Apolito under case No. 2009CV1619. Because an ex parte temporary restraining order was also sought and because Judge D’Apolito was not available that day, Judge Durkin ruled on and granted the temporary order to close the business.

{¶ 4} On the same day, a search warrant for the premises was issued in case No. 09SW21 by Judge Durkin under his authority as the grand jury judge at the time. Computers were specifically listed as objects to be searched for evidence of prostitution. Four computers, among other items, were seized during the search. Judge Durkin thereafter issued a second search warrant in case No. 09SW26 to allow the contents of the computers to be reviewed.

{¶ 5} An amended complaint was filed in the nuisance action to outline some of the evidence seized pursuant to the search warrant. The preliminary-injunction phase of the nuisance action was consolidated with the final hearing on the permanent injunction. The nuisance hearing began on May 15, 2009, before Judge D’Apolito. At the nuisance trial, the court criticized a detective because he had not yet reviewed the contents of the video system contained on a computer seized pursuant to a search warrant. The detective replied that the state Bureau of Criminal Investigations needed to extract the files before he could conduct his review. The court inquired what value the files would have after the case was over, and the detective specifically stated that he was currently testifying in a civil proceeding but that the computers had been seized for a criminal proceeding.

{¶ 6} On May 27, 2009, this judge issued a decision declaring the property a public nuisance. The Cabaret was assessed a tax of $300 payable to the clerk of courts and a fine of $10,000 payable to Austintown Township to offset the cost of the investigation. The property was ordered closed for one year with the ability to apply for release from the closure order after 90 days upon presentation of evidence that the nuisance had been abated.

[359]*359{¶ 7} The Cabaret sought release from the closure effective July 30, 2009, 90 days from the actual closure. On July 28, 2009, the court granted the motion. At the end of its decision, the court added, “The Austintown Township Police Department is authorized to return possession of the real and personal property back to the Respondents.”

{¶ 8} On August 12, 2009, the Cabaret filed a motion in the civil nuisance action for the return of the four computers seized on May 1, 2009. The Cabaret stated that the computers were necessary to run the cash register and the video monitoring system. The Cabaret attached an e-mail from the police department noting that three of the computers had been returned by BCI to the police department, that the computer containing the video system still needed to be exported to a format that could be reviewed off-site, and that the prosecutor’s office had advised the police department not to return any computers.

{¶ 9} The Cabaret then supplemented its motion by claiming that search warrants are assigned to the same judge that holds the underlying ease and that the administrative judge has no authority to determine issues in cases assigned to another judge. The Cabaret stated that some of the evidence seized pursuant to the search warrant had been introduced as evidence at the nuisance trial.

{¶ 10} The state responded that the computers had been seized pursuant to a criminal search warrant issued by Judge Durkin and thus Judge D’Apolito had no jurisdiction to address the motion for return of the seized property, also noting that the nuisance-abatement action did not involve the contents of the computers, as none of them had been reviewed by the time of the nuisance trial. The state pointed out that on July 31, 2009, the Cabaret had filed a motion to unseal the search-warrant affidavit in Judge Durkin’s court, which Judge Durkin denied.

{¶ 11} The state alternatively stated that a criminal investigation was ongoing and the computers were needed as evidence under R.C. 2981.11. The state noted that BCI’s extraction was not yet complete and that law-enforcement officers would continue the criminal investigation after reviewing the extracted files.

{¶ 12} At the hearing on the motion, the state agreed to return the three computers whose contents had been copied and reviewed in return for a stipulation that the copies from BCI were mirror images of the computers’ contents. Thus, we are now concerned only with the final computer, containing the video system.

{¶ 13} The state noted that contents of the fourth computer, which contained the video monitoring system, had recently been copied. However, its contents had not yet been reviewed by the detective, and thus the computer could not be returned, because the copy would run only in the particular computer itself. The court voiced disbelief of this claim.

[360]*360{¶ 14} The court also stated that it had heard no evidence of an ongoing criminal investigation. In addition, the court opined that the state had disobeyed the court’s July 28, 2009 order, which the court believed was a clear order to return the computers, even though it merely stated that the police were “authorized” to return personalty.

{¶ 15} On August 25, 2009, Judge D’Apolito granted the Cabaret’s motion and ordered the state to return all personal property in the custody or control of the state within three days. The state appealed from this order. On September 14, 2009, this court ruled that the state had filed a timely notice of appeal, thus disposing of any notion that the trial court’s July 28, 2009 order actually ordered the state to return personalty. This court stayed the trial court’s return order pending appeal. The state’s brief sets forth the following two assignments of error:

{¶ 16} “The trial court never acquired jurisdiction over the seized computers, because they were seized and searched pursuant to two lawful search warrants issued by Judge John M.

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Cite This Page — Counsel Stack

Bluebook (online)
932 N.E.2d 353, 187 Ohio App. 3d 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-gains-v-go-go-girls-cabaret-inc-ohioctapp-2010.