State v. Graham

8 Ohio App. Unrep. 398
CourtOhio Court of Appeals
DecidedNovember 1, 1990
DocketCase No. 57622
StatusPublished

This text of 8 Ohio App. Unrep. 398 (State v. Graham) 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 v. Graham, 8 Ohio App. Unrep. 398 (Ohio Ct. App. 1990).

Opinions

KRUPANSKY, P.J.

Defendant David Graham was indicted July 25, 1989 by the Cuyahoga County Grand Jury, Case No. CR-229044, on two counts, viz., (1) trafficking in marijuana in violation of R.C. 2925.03, and (2) possession of criminal tools, to wit, a 1977 Oldsmobile vehicle in violation of R.C. 2923.24. Defendant pled not guilty and filed a motion to suppress evidence obtained from his person and vehicle which the police acquired pursuant to a roadblock set up at Russell Avenue in the City of Cleveland. After the trial court overruled defendant's motion to suppress, defendant waived his right to trial by jury; was tried to the court and found guilty on each count.

Thereafter, the court sentenced defendant to six months on each count to run concurrently, which sentence was suspended and defendant placed on one-year probation. Defendant timely appeals the trial court's denial of his motion to suppress the evidence. The state cross-appealed arguing the trial court erred in failing to impose a mandatory fine upon defendant pursuant to R.C. 2925.03(H) (3).

The following evidence was presented at hearing on defendant's motion to suppress:

Detective Michael White, an eight-year police veteran with eighteen months in the narcotics unit, testified that on June 17, 1988, he and his "squad" of detectives, consisting of many detectives on the 4:00 p.m. to midnight shift of the narcotics unit, conducted a roadblock. This roadblock was prearranged by his superiors in the area of Russell and Superior Avenues in the City of Cleveland. Detective White testified from personal experience that this area was a "very high" drug area, "many, many sellers on the street and in cars and numerous dope houses in the area." In the very recent past, before June 17, 1988 the date herein, there had been several shootings on the street including a homicide. Due to this activity, the narcotics unit had received "numerous bitter complaints" from residents regarding the open drug activity occurring on the street.

The roadblock had a twofold purpose as testified to by Officer Miller: to "[w]eed out the people delivering the narcotics and try and slow the buyers from coming down also." CTr. 12.) On June 17, 1988, several police cars were set up on the street in front of 1333 Russell. The roadblock functioned as follows per Detective White:

"As each and every automobile came down the street the detectives would stop each car, check the occupants and driver, and question their business in the area. The length of each stop varied with the occupants of each vehicle, their purpose and destination, and whether they lived on the streets."

Defendant's 1977 Oldsmobile was one of the vehicles stopped in the roadblock. Detec[399]*399tive White testified he approached defendant's vehicle, leaned in at the driver's window and asked defendant's business in the area. While conversing with defendant in this manner, Detective White saw in plain view in defendant's left upper shirt pocket a plastic bag containing a green substance which he recognized as marijuana based upon his training, experience and numerous marijuana arrests.

Detective White removed the bag with marijuana from defendant's upper left shirt pocket after which all three of the Oldsmobile's occupants were told to exit the vehicle. The inventory of the vehicle prior to towing revealed a large plastic bag containing eight smaller clear plastic bags of marijuana under the driver's seat.

The defendant's sole assignment of error follows:

"THE ROADBLOCK AT WHICH APPELLANT WAS STOPPED WAS A CONSTITUTIONALLY UNREASONABLE SEIZURE, AND THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OBTAINED AS A RESULT THEREOF."

Defendant's sole assignment of error lacks merit.

Defendant argues the police roadblock was an unreasonable seizure pursuant to the Fourth Amendment and, therefore, the evidence obtained therefrom is the fruit of an unlawful search and must be suppressed. Defendant's argument is unpersuasive.

In 1976, the United States Supreme Court unequivocally stated that a checkpoint or roadblock stop is a "seizure" for purposes of Fourth Amendment analysis.1 United States v. Martinez-Fuerte (1976), 428 U.S. 543, 556; Delaware v. Prouse (1979), 440 U.S. 648.

In United States v. Martinez-Fuerte, supra, the Supreme Court held that a fixed checkpoint near the border to curtail illegal immigration of aliens did not violate the Fourth Amendment. The court distinguished Martinez-Fuerte from those cases held to impinge significantly on Fourth Amendment rights in which roving patrols searched vehicles at random for illegal aliens simply because the vehicles were in the general vicinity of the border. Almeida-Sanchez v. United States (1973), 413 U.S. 266; United States v. Brignoni-Ponce (1975), 422 U.S. 873. The Constitution prohibits only unreasonable seizures. Martinez-Fuerte, supra. The reasonableness of the seizure of a person at a roadblock that is less intrusive than a traditional arrest depends on a balance between the public interest and the individuals's right to personal security and liberty. Brown v. Texas (1979), 443 U.S. 47, 50-51. The recent decision of the United States Supreme Court in Michigan State Police v. Sitz (1990), 110 L. Ed. 2d 412, upheld the vitality of the three-pronged balancing test in Brown and applied said test to the facts in Sitz to determine that neutral fixed sobriety checkpoints were reasonable and constitutional.

The court in Brown stated the test as follows:

"Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown, supra, at 51.

In the case sub judice, it is incumbent upon the court to apply the above test to the initiation of a roadblock or checkpoint in a high drug trafficking area for the articulated purpose of curtailing drug activity. Consistent with Brown, the first prong of the test requires an inquiry into the weighing of the gravity of public concern in reducing drug trafficking.

In United States v. Mendenhall (1980), 446 U.S. 544, the Supreme Court made the following observations. The deterrence of drug activity is of overwhelming public concern and interest. Id. Few problems affecting our youth today cause greater concern than the ever-escalating use and abuse of controlled substances. Id. The drug problem poses a serious threat to our entire society. Id.

The evening news bombards the airwaves on a daily basis with reports of drug "busts," drug murders and drug-related crimes.

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Related

Mapp v. Ohio
367 U.S. 643 (Supreme Court, 1961)
Coolidge v. New Hampshire
403 U.S. 443 (Supreme Court, 1971)
Almeida-Sanchez v. United States
413 U.S. 266 (Supreme Court, 1973)
United States v. Brignoni-Ponce
422 U.S. 873 (Supreme Court, 1975)
United States v. Ortiz
422 U.S. 891 (Supreme Court, 1975)
South Dakota v. Opperman
428 U.S. 364 (Supreme Court, 1976)
United States v. Martinez-Fuerte
428 U.S. 543 (Supreme Court, 1976)
City of Philadelphia v. New Jersey
437 U.S. 617 (Supreme Court, 1978)
Delaware v. Prouse
440 U.S. 648 (Supreme Court, 1979)
Brown v. Texas
443 U.S. 47 (Supreme Court, 1979)
United States v. Mendenhall
446 U.S. 544 (Supreme Court, 1980)
Michigan Department of State Police v. Sitz
496 U.S. 444 (Supreme Court, 1990)
State v. Kirk
493 A.2d 1271 (New Jersey Superior Court App Division, 1985)
State v. Barcia
549 A.2d 491 (New Jersey Superior Court App Division, 1988)
State v. Cravens
536 N.E.2d 686 (Ohio Court of Appeals, 1988)
State v. Robinson
391 N.E.2d 317 (Ohio Supreme Court, 1979)
State v. Beasley
471 N.E.2d 774 (Ohio Supreme Court, 1984)
State v. Benner
533 N.E.2d 701 (Ohio Supreme Court, 1988)
State v. Alexander
489 N.E.2d 1093 (Hamilton County Municipal Court, 1985)

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Bluebook (online)
8 Ohio App. Unrep. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-graham-ohioctapp-1990.