# Petition — Guyton v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2746%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1013 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2746%3A1. Public record. Not legal advice.