Petition — Guyton v. Ohio

ae ©

FILED

OCT 26 i977

Us §

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1977

‘77-620

NO

JOHN GUYTON

Petitioner

VS.

STATE OF OHIO

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR SUMMIT COUNTY, OHIO

RALPH B. MAHER

Attorney for Petitioner

630 Centran Building

Akron, Ohio 44308

(216) 762-8691

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

‘JOHN GUYTON

Petitioner

Vs.

STATE OF OHIO

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR SUMMIT COUNTY, OHIO

RALPH B. MAHER

Attorney for Petitioner

630 Centran Building

Akron, Ohio 44308

(216) 762-8691

Opinions below. ....

Jurisdiction. ....-.

Questions presented ..

Constitutional provisions invo

Statement of the case .

Reason for granting writ.

Conclusion.

Appendix A.

Appendix B.

Appendix C.

Appendix D.

ix E.

Append

Appendix F.

TABLE OF

Cases:

Adams v. Williams,

Almeida-Sanchez v.

mre ae

CASES

407 U.S. 143

United States

Carroll v. United States, 267

Chambers v. Maroney, 399 U.S.

Cooli v. New

hire, 403

Elkins v. United States, 364

Gustafson v. Florida, 414 U.S.

Katz v. United States, 389 U. S.

er Sei - Ohio, 367 U.S. 643

Preston v. United States, 376

Schneckloth v. Bustamonte, 412

(i)

Page

South Dakota v. oS se 96

* % > . s . . s 10,11

Perey v. Ohio, 392 U.S. 1 (1968) 13

ates v. Chadwick, 97

" eo MBaeEeee UAUTIy 2 cc 2 et 10

United States v. Ortiz, 422 U.s.

> . _ . — * _ . . - 12

414

U.S. 218 (1973). . . 7 . o . . 12

(1967) - e - -S = & rf © © @&# @ ll

(ii)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

JOHN GUYTON

Petitioner

vs.

STATE OF OHIO

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FOR SUMMIT COUNTY, OHIO

Petitioner, by and though his

attorney, Ralph B. Maher, prays

that a Writ of Certiorari issue

to review the judgment heretofore

entered against him by the Court

of Appeals for Summit County, Ohio.

1

OPINIONS BELOW

The Supreme Court of Ohio rendered

no opinion. The unreported opinion of

the Court of Appeals for Summit County,

Ohio is printed as Appendix A.

JURISDICTION

_ The Supreme Court of Ohio dismissed

Petitioner's appeal and overruled Peti-

tioner's motion for leave to appeal on

June 30, 1977. Said orders are set forth

at Appendix B and C respectively. On

September 22, 1977, Mr. Justice Stewart

extended the time for filing a petition

for writ of certiorari to October 28,

1977. The jurisdiction of this Court is

invoked pursuant to the provisions of

Title 28--United States Code--81257(3).

QUESTIONS PRESENTED

1. Whether a motion to suppress

evidence should have been overruled where

said evicence was obtained as a result of

a warrantless unreasonable search of the

sleeping occupant of a parked car in

light of the fact that the searching

police officers testified they did not

believe the occupant had committed, was

committing or was about to commit a crime

2. Whether the Court of Appeals for

Summit County, Ohio, erred in upholding

the above mentioned search by expanding

the narrow emergency exception to the

Warrant Clause to include a situation

where police officers were merely re-

sponding to a call "4" which symbol

stands for “possible intoxicant,” and

where said officers had no probable cause

to search.

3. Whether the subsequent full body

search of the person by the two police

officers outside the vehicle and the re-

sultant seizure of a weapon are author-

ized when said police officers testify

that the search and seizure were both

made prior to any arrest and upon a

person not known to be armed and not

believed to be dangerous.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV

The right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated,

and no Warrants shall issue but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the person

or things to be seized.

United States Constitution

ent XIV, ction

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States wherein they reside.

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

3

STATEMENT OF THE CASE

On December 14, 1975, at about 6:90

P.M., Petitioner left the gasoline service

station he owned and operated to make a

night bank deposit. He made this trip in

his 1966 Thunderbird and brought with him

a .38 caliber revolver, which he placed

in a belt holster located underneath his

jacket. After making the deposit he pro-

ceeded to a V.F.W. Club located in his

Akron, Ohio, neighborhood, and after

sticking the revolver between the console

and the seat of the car, he went in and

had three or four drinks of liquor. He

left the Veterans Club around 8:00 P.M.

and started back towards his service

station. While enroute along a lightly

- travelled residential street he realized

that he was getting sleepy or feeling

some kind of reaction. He therefore

pulled over to the opposite side of

the street and parked the car facing

traffic by placing two of the wheels on

the berm and two of the wheels on the

street. (Tr. pp. 71, 88). He then

turned off his_motor, while leaving the

headlights on. 4

1. Tr. refers to the Reporter's Transcript

of the proceedings in the Common Pleas Court of

Summit County, Ohio.

2. The Court of Appeals mistakenly stated

in its opinion that the engine was left running.

(App. A, infra, ppl7,19). Of the five witnesses

who testified, only Officer Burrell stated that

“the engine was running." (Tr. p. 76). Officer

Sparks couldn't recall whether the engine was

running (Tr. p. 7). Petitioner, witness Paul

Brunson and witness Annie McLane, who had observed

(Footnote continued on following page.)

4°

Subsequently Witness Annie McLane,

who lived across the street from where

Petitioner parked his car, went to the

home of Witness Paul Brunson to discuss

the matter and then called the Akron

Police Department to report that there

was an individual parked in front of her

home with the headlights burning and his

head lying on the steering wheel. Two

Akron policemen, Officers Robert Sparks

and Michael Burrell, received a signal

"4", which roughly translates to “sus- .

pected intoxicant,” over their radio and

arrived at the scene at 8:55 P.M. The

Officers testified that there had been

no reports of any violence, emergencies,

or criminal activity in the neighborhhood

and that they were not looking for either

a 1966 Thunderbird or a.person fitting

Petitioner's description. At the time

of their arrival in the quiet residential

neighborhood the only persons on the

street were Witness McLane and Witness

Brunson and his wife.

The Officers approached the scene

by pulling their patrol car behind

Petitioner's automobile so that their

headlights shined through his rear

window. Officer Sparks approeched the

car from the rear on the driver's side

while Officer Burrell approached from

2. (Footnote two continued from previous

page). the automobile for at least a half an

hour prior to the arrival of the Officers, and

who were at the scene while all relevant events

transpired, all stated that the engine was not

running. (Tr. pp. 56,71,124). The Trial Court

also felt that the evidence indicated that Mr.

. Guyton would have had to "start his car" to drive

away. (Tr. p. 53).

5

the rear on the passenger's side. They

both observed that Petitioner's head was

still lying on the wheel. At that time

neither Officer had any inkling that

Petitioner was armed and both stated that

they weren't afraid of him. Both officers

testified that when they arrived they

didn't know what was wrong with Petitioner

although Officer Sparks smelled what he

believed to be alcohol. Officer Sparks

further testified that to his knowledge

Petitioner “had not committed a crime,

was not committing a crime and was not

about to commit a crime." (Tr. p. 30).

Similar testimony was given by Officer

Burrell, (Tr. p. 97), who also described

the situation as a "rather peaceful scene."

(Tr. p. 96).

After surveying the situation,

Officer Sparks proceeded to reach inside

the automobile and shake Petitioner by the

shoulder about four or five times. Prior

to Officer Spark's entry into the car the

the Trial Court found that Petitioner's

slumped position and the 3/4 length winter

jacket he was wear prevented the

Officers from observing anything around

his person. However, as the shaking

progressed, Officer Burrell testified he

— something hanging from Petitioner's

side.

After the repeated shaking of

Petitioner, he was awakened and told to

get out of his car. No resistance was

given by the Petitioner, and he was

searched while spread-eagled against

his car. According to the Officers’ test-

imony the empty holster was located under

Petitioner's coat and then the revolver

was found in his rear pocket. Officer

6

Sparks then advised him he was under

arrest for carrying a concealed weapon

and finally advised him he was being

arrested for intoxication. 3

On March 13, 1976, Petitioner was

indicted for carrying a concealed weapon

in violation of Section 2923.12, of the

Ohio Revised Code, and, secondly for

having a weapon while under disability,

in violation of Section 2923.13(A) (2),

of the Ohio Revised Code. The federal

3. The Court of Appeals mistakenly stated

in its opinion that the holster had been seen by

one officer while Petitioner was still in the car

and that as soon as he got out of the car he was

arrested for intoxication. (App. A. infra ppi? -

19). Both officers testified they did not know

Petitioner was wearing a holster while he was in

the vehicle. (Tr. pp. 9, 82, 86). The Trial Court

confirmed this in his Findings of Fact. (Tr. pp 53,

132). The record is also clear that Petitioner

was first searched outside the car and then

arrested. In fact this scenario was presented

by the State of Ohio in the statement of facts

included in its answer brief filed in the Court

of Appeals for Summit County. At page three

the Prosecuting Attorney stated that when the

revolver was found in his rear pocket,

“Appellant was subsequently placed under

arrest for carrying a concealed weapon and

intoxication." Both Officers testified that

after the search outside the vehicle the

Petitioner was arrested for carrying a concealed

weapon and intoxication. (Tr. pp, 20, 23, 102

and Transcript of Preliminary Hearing pp. 5-6.)

7

questions sought to be reviewed by this Court were

raised in the court of first instance on

June 3, 1976 when Petitioner filed his

motion to suppress evidence, said motion

being set out as Appendix D. The motion

to suppress was overruled at a hearing

in the Common Pleas Court of Summit County,

Ohio, held on June 21, 1976, and June 22,

1976. The Petitioner then entered a

"no contest” plea to the two counts of

the indictment. The journal entry over-

ruling the motion is printed as Appendix

E. The Petitioner was sentenced to the

Chillicothe Correctional Institute, and

said sentence was held in abeyance and

his prior bond was continued pending

appeal. Subsequent to the decision of

the Court of Appeals for Summit County,

Ohio and the Supreme Court of Ohio, the

same bond was continued to apply during

this appeal to the United States

Supreme Court.

On July 22, 1976, timely notice of

appeal was filed, and on February 2, 1977,

the Court of Appeals of Summit County,

Ohio, affirmed the judgment. The opinion

of the Court is set out as Appendix A.

Petitioner's assignments of error to the

Court of Appeals which raised the federal

question presented in this petition are

included in said opinion. On March 4,

1977, timely notice of appeal was filed;

and on June 30, 1977, the Supreme Court

of Ohio dismissed Petitioner's appeal

and overruled Petitoner's motion for leave

to appeal, said orders being set forth

at Appendix B and C respectively. The

propositions of law presented in the

Supreme Court of Ohio which raised the

federal questions sought to be reviewed

in this Court are printed as Appendix F.

REASON FOR GRANTING THE WRIT

THE DECISION BELOW REGARDING THE

CONDUCT OF THE RESPONDENT IS CON-

TRARY TO THE FOURTH AND FOURTEENTH

AMENDMENTS OF THE CONSTITUTION

OF THE UNITED STATES AND RELE-

VANT DECISIONS OF THIS COURT.

The Court of Appeals for Summit

County, Ohio, “deemed the situation as

it existed at the time the officers

responded to the call ‘4’ to be an

emergency.” (App. A, infra p.20) On the

basis of this finding the Court held

that the search of Petitioner both inside

and outside of his parked automobile was

neither improper nor unreasonable. In

reaching its decision, the Court made no

finding that the police had probable

cause to search Petitioner in his parked

car at the time Officer Sparks entered.

the vehicle.

Fifty-two years ago in Carroll v.

United States, 267 U.S. 132, 156 (1525)

this Court held that in the absence of

probable cause to search an automobile,

the Fourth Amendment protects the owner

from the use of the seized items as

evidence against him. Since that time,

“in enforcing the Fourth Amendment's

prohibition against unreasonable searches

and seizures, this Court has insisted upon

probable cause as a minimum requirement

for a reasonable search permitted by the

Constitution.” Chambers v. Maroney, 399

U.S. 42, 51 (1970).

In its most recent decision in this

area, this Court stated that there are

"significant differences between motor

vehicles and other property which permit

warrantless searches of automobiles in

circumstances in which warrantless

searches would not be reasonable in

other context.” United States v.

Chadwick, 97 S. Ct. 2476, 2487 (1977).

Yet, “although the expectation of

privacy in an automobile is significantly

less than the traditional expectation of

privacy assoicated with the home,. . .

(citing cases). . .the unrestrained

search of an automobile and its contents

would constitute a serious intrusion upon the

privacy of the individual in many circum-

S.Ct. 3092> SO00-400L TidTeh + (Powell

S. Ct. 3092, - . ll, J.

concurring). The search and seizure in

this case constitute just such circum-

stances.

The Court of Appeals upheld the

search in this case simply by stating

it was pusuant to an emergency.

Initially this finding is contrary to

the testimony of the searching officers

themselves, who testified that a rather

peaceful scene existed at the time they

surrounded Petitioner's car. Moreover,

the sua sponte determination by the

Court of Appeals that the emergency

search doctrine applied was made with-

out citing any precedent from this Court.

In effect the Court ignored the fact

that the Carroll doctrine is not applic-

able unless there is a conjoining of the

two elements of probable cause and

genuine exigent circumstances. This

Court has pointedly stated that "the

Carroll doctrine does not declare a field

day for the police in searching automobiles.

Automobiles or no automobile, there must

be a probable cause for the search."

Almeida-Sanchez v. United States, 413

ewe ’ °

10

The Officers’ testimony at the

suppression hearing demonstrates that

none of the specifically established and

well-delineated exceptions to the

exclusionary rule, including “search

incident to arrest,4" Preston v. United

States, 376 U.S. 364 (1564); “hot

pursuit; -" Warden v. Hayden; 387 U.S. 294

(1967), consent, Sckneckioth v. Bustamonte,

412 U.S. 218 (1973) and the “plain view”

doctrine,” Coolidge v. New Hampshire, 403

U.S. 443 (157I), are applicable here. In

light of this Petitioner can only con-

jecture that the real reason behind the

decision of the Court below is an unwarranted

feeling that this Court's recent holding

in South Dakota v. rman, supra,

that probable cause to search is not

needed when law enforcement officers

pursuant to standard procedure are

conducting an inventory of an unoccupied

properly impounded vehicle, should be

interpreted as a virtual overruling of

the prior precedents discussed herein.

Initially unlike the search in Opperman,

the search in this case was conducted

in an occupied vehicle and under circum-

stances where an investigatory police

motive was present. Moreover, at the

time of the search, Petitioner was asleep

in the privacy of his own parked automobile.

4. The arrest here did not occur until

after Petitioner was searched outside the

vehicle.

5. While Petitioner was slumped forward,

nobody could observe anything. (Tr. P. 135).

11

Throughout all court proceedings

Petitioner has focused his argument on

the fundamental principle pronounced in

Katz v. United States, 389 U.S. 347, 351l-

e Pourth Amendment

protects people, not places. . .what (a

person) seeks to preserve as private,

even in an area accessible to the public,

may be constitutionally protected." This

Court recognized the privacy interest

the occupant of an automobile possesses

in United States v. Ortiz, 422 U.S. 891,

896 (1975) :

"a search, even of an automobile,

is a substantial invasion of

privacy. To protect that privacy

from official arbitrariness,

the Court always has regarded

. probable cause as the minimum

requirement for a lawful

search."

The decision below disregards this interest

and thus squarely presents the question

of the continued validity of the core

of this Court's prior precedent in this

area.

Petitioner also contends that the

conduct of the Officers in conducting

the full body search outside the vehicle

was unconstitutional. The search and

seizure were conducted prior to the time

the Officers testified Petitioner was

placed under arrest. Therefore the hold-

ing in United States v. Robinson, 414 U.S.

218 (1973), and Gustafson v. Florida,

414 U.S. 260 (1973), that where there

has been a lawful custodial arrest inci-

dent to a traffic infraction there may

be a subsequent full search of the

arrestee, is inapplicable. Since the

search and seizure in this case were

-12

not made incident to a lawful arrest,

the police officers were subject to

the limitations placed by T v. Ohio,

392 U.S. 1 (1968) on searches tsaca on

less than probable cause. The clear

holding of Terry v. Ohio , ibid, is that

"“‘when an officer is justified in believing

that the individual whose suspicious

behavior he is investigating at close

range is armed and presently dangerous

to the officers or to others,’ he may

conduct a limited protective search for

concealed weapons." Adams v. Williams,

407 U.S. 143, 146 (1972), citing Terry

v. Ohio, supra at 24. :

In this case both officers testified

that they did not believe Petitioner was

dangerous and that they did not fear hin.

They also did not know he was armed.

Thus there is nothing in the record to

indicate that even the minimal standards

of Terry were met. The police had

initialty exceeded their authority in

searching Petitioner inside the vehicle.

They subsequently exceeded their authority

in conducting a full body search outside

the vehicle when they did not believe

he was armed and dangerous. In essence

a search and seizure were performed w.ich

were within the purview of the Fourth

Amendment, see , Supra at 16; and

which were not w any of its narrowly

drawn exceptions.

If the decision of the Court of

Appeals is permitted to stand Petitioner's

"freedom from unconscionable invasions of

privacy, and the freedom from convictions

based upon coerced confessions," Mage Vv.

Qhio, 367 U.S. 643, 657 (1961)

irreparably damaged. The decision authorizes

police conduct that is in no way consonant

13

with “the purpose of the exclusionary rule

which ‘is to deter - to compel respect for

the constitutional guaranty in the only

effectively available way - by removing

the incentive to disregard it.'" Mapp v.

Ohio, ibid, at 656, citing Elkins v.

United States, 364 U.S. 206, 217 (19560).

Consequently, this Court should grant

certiorari in order to reassert the

fundamental Fourth Amendment rights

Petitioner has been denied.

CONCLUSION

For the foregoing reasons, this

Petition for Writ of Certiorari should

be granted.

fae o E

- MAHER

630 Centran Building

Akron, Ohio 44308

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 27th

day of October, 1977, three copies of

this Petition for Writ of Certiorari

were mailed to Carl M. Layman III,

Assistant Summit County Prosecuting

Attorney, 53 East Center Street,

Akron, Ohio, 44308. I further certify

that all parties required to be served

have been served.

Meh £3 Make

APPENDIX A

STATE OF OHIO ) IN THE COURT OF APPEALS

) NINTH JUDICIAL DISTRICT

SUMMIT COUNTY ) (January Term, 1977)

STATE OF OHIO )

Plaintiff-Appellee ) C. A. No 8211

)

Vv. ) APPEAL FROM JUDGMENT

) ENTERED IN THE COURT

JOHN GUYTON )OF COMMON PLEAS OF

Defendant-Appellant) SUMMIT COUNTY, OHIO

CASE NO. 76 1 118

DECISION AND JOURNAL ENTRY ;

Dated : February 2, 1977

This cause was heard December 15,

1976, upon the record in the trial court,

including the transcript of proceedings,

and the briefs. It was argued by counsel

for the parties and submitted to the

court. We have reviewed each assignment

of error and make the following disposition:

HUNSICKER, J.

On June 23, 1976, the defendant-

appellant, John Guyton, entered a plea

of no contest to an indictment for —

“carrying concealed weapon” and “having

weapon while under disability." The trial

court, after hearing the statements of

counsel and based on the facts of the

case as found by the court, sentenced

Guyton to Chillicothe Correctional

Institute. The sentence was ordered held

in abeyance pending an appeal.

15

Prior to the plea of no contest, a

motion to suppress evidence was filed.

This motion alleged that the search of

the Guyton automobile was unlawful, the

search of the person of Mr. Guyton was

unlawful, the physical evidence including

a loaded .38 caliber revolver was obtained

as a result of the illegal. arrest and all

fruits of the search incident to the

arrest of Mr. Guyton must be suppressed.

The motion to suppress was overruled and

the no contest plea followed.

On appeal to this court, the appell-

ant says:

"1. The trial court erred in over-

ruling the Motions to Suppress Evidence

seized after a warrantless search which

was totally lacking in probable capse

which search might even had been made

in good faith, but where there were no

exigent or emergency circumstances, and

when said search was made prior to any

arrest.

"2. The trial court, based on the

above proposition, erred when he over-

ruled the Motions to Suppress Evidence

seized after a routine search of a motor-

ists (sic) person, and a subsequent

arrest for two other non-related traffic

offenses, includinc a weapon, unless the

Officer or Officers have probable cause for

believing ne is armsd and dangerous.

"3. The trial court, based on the

proposition in Assignment of Error No. l,

erred when he overruled the Motions to

Suppress Evidence seized from Defendant-

appellant and from a given ‘area,* to wit:

the inside of Defendant-appellant's motor

16

vehicle, which he seeks to preserve as

private, even though said ‘area’ may be

accessible to the public, and thus should

be constitutionally protected, inasmuch

as the Fourth Amendment protects people,

not places.

"4. The trial court, based on the

proposition in Assignment of Error No. l,

erred when he overruled the Motions to

Suppress Evidence, where the Exclusionary

Rule covering evidence obtained by an

illegal search and seizure, should have

been followed, as there were none of the

judicially recognized exceptions to the

Rule, ***,."

The entire basis of the appeal and the

assigned claimed errors raised the

question of the validity of search and

seizure in this case. We shall discuss

together the assigned errors.

On December 14, 1975, John Guyton,

was found slumped over the steering

wheel of his automobile by two Akron

Police Officers who came to the location

at the request of their dispatch officer.

The officers said it was 8:55 P.M.; the

Guyton automobile was parked in the

opposite direction to traffic on the left

side of the street; the lights of the

vehicle were lit, and the engine was

running. The officers with some effort

awakened Guyton. While awakening Guyton,

one officer noticed he had a gun holster

fastened to his belt. They also noticed

Guyton, before alighting from the auto-

mobile “was moving his hand around by

his right leg, couldn't see nothing in

there at that time.” The officers said

they had their guns drawn at that time

as a safety precaution. The officers on

17

patting Mr. Guyton down found the loaded

-38 caliber revolver mentioned above.

The officers said that, as soon as

Mr. Guyton got out of the automobile, they

arrested him for intoxication. The offense

with which he was ultimately charged is

"C.C.W,” that is carrying a concealed

weapon. Counsel for the defense ques-

tioned the officers as to the time when

the arrest for intoxication took place,

before or after the arrest for carrying

a concealed weapon. Defense counsel

agrees that if the first arrest was for

the offense of operating a motor vehicle

under the influence of alcohol of which

Mr. Guyton was guilty, then search and

seizure was lawful. There apparently was

no great time period between the first

and second arrest, whichever came first.

It was all a part of the transaction of

investigating a suspicious vehicle parked

unlawfully on a public highway with an

incapacitated occupant under the steering

wheel

Mr. Guyton operated a Sunoco gas-

Cline station. On the night of Sunday,

December 14, 1975, he testified that he

took the receipts from his business to a

bank where he could deposit it. He said

he went to the Clark gas station on Copley

Road, Akron, Ohio to buy cigarettes, then

went to the V.F.W. Club. He did not

take the gun he carried to the bank, into

the club but hid it in his automobile.

He drank a few drinks then drove his

automobile “down Copley Road." Mr. Guyton

said he is a diabetic and when he felt

"strange in the head," he pulled over and

stopped. The police came and the events

detailed above took place. Mr. Guyton

said the revolver was in the automobile

between a console of his 1964 Thunderbird

18

and the seat. Mr. Guyton said it was at

this hiding place where the police found

the revolver; “he police said they took it

from his pock.t.

Under the facts of this case as found

by the trial judge, based on the evidence

submitted to him, were the officers just-

ified in taking the action which they did

in conducting a “search and seizure” of

Mr. Guyton's gun?

We are impressed by the excellent

opinion written by Judge Sherer of the

Second Appellate District in State v.

Call, 8 Ohio App. 2d 277. We see no need

to again repeat the exhaustive survey of

Federal cases set out in that opinion. In

the Call case, the arrest was for a

traffic violation and no complications.

In the instant case, there was a traffic

violation with other features. Did a

vehicle parked against oncoming traffic,

its lights on, motor running and the driver

slumped over the steering wheel, present

an amergency situation? We belive it

did. The officers did not know if the

driver of the vehicle was ill, dead,

suffering seizure or from what cause. It

could be false action by a dangerous

person. The officers had a duty to be

careful and use caution to protect

Mr. Guyton, a large man physically, and to

protect tnemselves.

When Mr. Guyton was in the vehicle,

one officer saw the holster and when

Mr. Guyton was patted down, the gun was

found in the pocket of the appellant.

The situation is neither the Call case

nor the case of State v. McCray, 46 Ohio

App. 2d 106 (1975).

19

This court has examined the authorities

concerning search and seizure under

emergency conditions in State v. Love,

Summit #7631 (9th Dist. Ct. App., April 30,

1975). We adopt herein the conclusion of

that case on that subject. We deem the

situation as it existed at the time the

officers responded to the call "4" to be

an emergency. The conduct of the officers

was neither improper nor unreasonable.

The judgment is affirmed.

The court finds that there were

reasonable grounds for this appeal.

We order that a specia-. fate,

directing the Court of Common Pleas to

carry this judgment into execution, shall

issue out of this court. A certified copy

of the journal entry shall constitute

the mandate, pursuant to App. R. 27.

Immediately upon the filing hereof,

this document shall constitute the journal

entry of judgment, and it shall be file

stamped by the Clerk of the Court of

Appeals, at which time the period for

review shall begin to run. App. R. 22(E).

Costs taxed to appellant.

Exceptions.

s/ William H. Victor

eens gudve

MAHONEY, P. J. AND - for the Court -

HARVEY, J. CONCUR.

(Hunsicker, J., retired Judge of the Ninth

District Court of Appeals, and Harvey, J.,

20

retired Judge of the Court of Common Pleas

of Summit County, sitting by assignment

under the authority of Article IV, Section

6(C), Constitution).

APPEARANCES :

- GABALAC, (Frederick L. Zuch,

Asst. Prosecutor), City-County Safety

Building, 53 E. Center St., Akron, Ohio

44308 for Plaintiff-Appellee.

rney a W,

. ,

Centran Building, Akron, Ohio 44308 for

Defendant-Appellant

21

APPENDIX B

THE SUPREME COURT OF OHIO

1977 TERM

THE STATE OF OHIO )To wit: June 30, 1977

City of Columbus )

State of Ohio

Appellee,

No. 77-369

APPEAL FROM THE COURT

)

)

)

vs. )

) OF APPEALS

John Guyton, )

Appellant. ) for Summit County

This cause, here on appeal as of

right from the Court of Appeals for

Summit County, was heard in the manner

prescribed by law, and, no motion to

dismiss such appeal having been filed,

the Court sua sponte dismisses the

appeal for the reason that no substan-

tial constitutional question exists

herein.

It is further ordered that a copy

of this entry be certified to the Clerk

of the Court of Appeals for Summit County

for entry.

I, Thomas L. Startzman, Clerk of the

Supreme Court of Ohio, certify that the

foregoing entry was correctly copied from

the Journal of this Court.

Witness my hand and seal of the Court

this day of , 1977

Clerk

Deputy

22

APPENDIX C

THE SUPREME COURT OF THE STATE OF OHIO

1977 TERM

THE STATE OF OHIO )To wit: June 30, 1977

City of Columbus )

State of Ohio, )

Appellee, ) No. 77-369

a FOR LEAVE TO APPEAL

vs.

) FROM THE COURT OF APPEALS

John Guyton, )

Appellant. ) for Summit County

It is ordered by the Court that

this motion is overruled.

COSTS:

Motion Fee, $20.00 paid by Ralph B.

Maher.

I, Thomas L. Startzman, Clerk of

the Supreme Court of Ohio, certify

that the foregoing entry was correctly

copied from the Journal of this Court.

Witness my hand and the seal of this Court

this day of 1977

Clerk

Deputy

23

APPENDIX D

IN THE COURT OF THE COMMON PLEAS

SUMMIT COUNTY, OHIO

THE STATE OF OHIO)

Plaintiff ) CASE NO. 76 1 118

)

-vs- ) ASSGND. JUDGE:

) SAM H. BELL

JOHN GUYTON )

Defendant ) MOTION TO

SUPPRESS EVIDENCE

Now comes the defendant, John

Guyton, and respectfully moves the

Court to suppress all evidence seized as

a result of a search of his person and/

or automobile at or near 1110 Juneau

Street, Akron, Ohio, on the 14th day

of December, 1975.

As grounds for this motion, Defend-

ant states: .

1. Any physical evidence, including

a weapon, obtained as a result of the

search and seizure of his person and auto-

mobile was obtained as a result of an

illegal search and seizure and, there-

fore, unlawful.

2. Any physical evidence, including

a weapon, obtained as a result of the

search and seizure of his person and

automobile was obtained as a result of

an illegal arrest and, therefore, unlaw-

ful.

3. The search of Defendant's person

and automobile was illegal and all fruits

of the search incident to the arrest must

be suppressed.

24

4. Petitioner-Defendant states

that the physical evidence, including any

weapon, was seized from him against his

will and without search warrant in

violation of his rights and in violation

of Article 1, Section 14, Constitution of

the State of Ohio and the Fourth Amend-

ment and the Fourteenth Amendment to the

Constitution of the United States.

5. For such other reasons as may

appear upon oral Hearing of this Motion.

Evidentiary Hearing Requested.

Memorandum attached pursuant to

Rule 47 of the Ohio Rules of Criminal

Procedure. *

Respectfully submitted,

titra 3 MAHER Attorney

for Defendant, John Guyton

630 Centran Building

Akron, Ohio 44308

Phone: 434-6186/762-8691

PROOF OF SERVICE

The above Motion to Suppress Evi-

dence was sent by regular United States

mail to Lawrence W. Vuillemin, Assist-

ant Prosecuting Attorney for Summit

County, Ohio, this 3rd day of June, 1976.

Pp ° er, Attorney

for Defendant

*In order to avoid any conflict

with Rule 23.3 of the Supreme Court of

25

the United States, the memorandum originally

attached to the motion to suppress is not

included in this appendix.

26

APPENDIX E

THE STATE OF OHIO ) COURT OF THE

Summit County ss: ) COMMON PLEAS

THE STATE OF OHIO May Term, 1976

vs. No. CR 76 1 118

~—_S— Sl

JOHN GUYTON JOURNAL ENTRY

THIS DAY, to wit: The 22nd day of

June A.D., 1976, this cause came on for

further hearing on the Defendant's Motion,

filed herein by and through his counsel,

RALPH B. MAHER, for an order to Suppress,

said hearing having commenced on June 21,

1976. After hearing testimony of witnesses

and statements of counsel and upon due

consideration of the Court, IT IS HEREBY

ORDERED that said Motion be OVERRULED.

AND THIS SAME DAY, to wit: The

22nd day of June A.D., 1976, the Defend-

ant again appeared before this Court with

his counsel and was fully advised of his

Constitutional rights and his rights as

required under Rule 11 of the Ohio

Criminal Rules of Procedure.

Thereupon, the Defendant retracts

his plea of Not Guilty heretofore entered

and, for plea to said Indictment, says he

pleads "NO CONTEST” and the Court, after

hearing statements of counsel and based

upon the facts as found by this Court,

finds the Defendant GUILTY as charged in

Count Number One (1) and Count Number

Two (2) of the Indictment.

Whereupon, the Court inquired of the

said Defendant if he had anything to say

why judgment should no’ be pronounced

*

.

27

against him; and having nothing to say

but what he had already said and showing

no good and sufficient cause why jucjment

should not be pronounced:

IT IS, THEREFORE, ORDERED AND AD-

JUDGED BY THE COURT that the Defendant,

JOHN GUYTON, be imprisoned and confined

in the CHILLICOTHE CORRECTIONAL INSTITUTE

at Chillicothe, Ohio, for an indeterminate

period of not less than ONE (1) YEAR and

not more than TEN (10) YEARS for punish-

ment of the crime of CARRYING A CONCEALED

WEAPON, Ohio Revised Code Section 2923.12,

a felony of the third (3rd) degree, and

for an indeterminate period of not less

than ONE(1) Year and not more than the

maximum of FIVE (5) YEARS for punishment

of the crime of HAVING A

WEAPON WHILE UNDER DISABILITY, Ohio

Revised Code Section 2923.13, a felony

of the fourth (4th) degree, and that he

pay the costs of this prosecution for

which execution is hereby awarded; said

monies to be paid to the Summit County

Clerk of Courts, Court House, Akron, Ohio,

44308.

THEREUPON, the Court informed the

Defendant of his right to appeal pursuant

to Rule 32 (A) (2), Criminal Rules of

Procedure, Ohio Supreme Court, and further

ordered that the sentence imposed herein

be held in abeyance and the same bond be

continued pending said appeal.

APPROVED:

June 22, 1976

SAM H. BELL, Judge

Court of Common Pleas

Summit County, Ohio

28

cc: Attorney Ralph B. Maher

Booking Desk

Witness Assistance

Prosecuting Attorney

29

APPENDIX F

PROPOSITIONS OF LAW FILED IN

IN THE SUPREME COURT OF OHIO

PROPOSITION OF LAW NUMBER 1

A warrantless unreasonable search

and seizure, which were totally lacking

in probable cause, which search and seizure

might even have been made in good faith,

but where there were no exigent nor

emergency circumstances, and when said

search and seizure made prior to any

arrest are illegal, and any evidence no

matter how reliable, acquired as a result

of an unreasonable search must be

suppressed. A routine search of a

motorist's person, and a subsequent

arrest for two other non-related traffic

offenses, including a weapon, unless the

Officer or Officers have probable cause

for believing the Defendant is armed and -

dangerous, result in any evidence seized

being excluded and inadmissible.

PROPOSITION OF LAW NUMBER 2

The Exclusionary Rule covering

evidence obtained by an illegal search

and seizure, should have been followed,

as there were none of the judicially

recognized exceptions to the Rule,

including, but not limited to the

following:

(a) A search incident to a lawful

arrest;

(b) The stop and frisk doctrine;

(c) Hot pursuant;

30

(ad) Consent by the Defendant-

Appellant;

(e) The plain-view doctrine;

(£) Emergency Searches where cru-

cial evidence might be lost or

destroyed;

(g) Contraband;

(h) Mail searches;

(i) Moving vehicles;

(j) Goods in the course of transit;

(k) Health and safety inspections;

(1) Instrumentalities of crime;

(m) Fruits of crime;

(n) A crime having heen committed,

being committed or about to be

committed;

(o) Any other criminal activity;

(p) Etc.

PROPOSITION OF LAW NUMBER 3

It is a violation of Fourth Amend-

ment rights if the conduct of Government

Agents violates the privacy upon which

an individual justifiably relies. The

Fourth Amendment guarantees protection

against unreasonable searches and seizures.

There has been a determination of con-

stitutionally protected areas, including

but not limited to, homes, taxicabs, and

automobiles. Without probable cause for

31

arrest and without a Warrant for search

and arrest, all evidence seized from the

Defendant-Appellant, and from a given

"area", to wit: The inside of Defendant-

Appellant's automobile, which he sought

to preserve as private, even though said

"area" may be accessible to the public,

should be constitutionally protected.

The Fourth Amendment protects people, not

places, and such evidence must be excluded

and inadmisz7ible.

32