Motion to Dismiss — Rankin v. Ohio

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No. 77-875

WILLIAM T. RANKIN,

Appellant,

vs.

STATE OF OHIO,

Appellee.

On Appeal From The Supreme Court of Ohio

MOTION OF APPELLEE TO DISMISS APPEAL

SIMON L. LEIS, JR.

Prosecuting Attorney

: LEONARD KIRSCHNER

Assistant Prosecuting Attorney

THOMAS P. LONGANO

Assistant Prosecuting Attorney

420 Hamilton County Court House

Court & Main Streets

53 Cincinnati, Ohio 45202.

Attorneys for Appellee

re

COURT INDEX PRESS, INC. — 215 & Nicth Strest, Ciccinnstl, Obie Goat — (513) 30-168

TABLE OF CONTENTS

Page

MOTION OF APPELLEE TO DISMISS APPEAL

OPINIONS BELOW | Rpt had 2

JURISDICTION .......................... —.

CONSTITUTIONAL PROVISIONS AND

STATUTES AND RULES INVOLVED

QUESTIONS PRESENTED BY THE APPEAL

STATEMENT OF THE CASE 7 8

Py ae Pre < RS 14

a

7)

I. Whether The United States Supreme Court

Will Entertain New Matters Not Previously

Brought To The Attention Of Either The

Trial Court Or To The Attention Of The

Ohio Court Of Appeals Which Is The

Court of Original Appellate Jurisdiction. 14

II. Whether The Decision Of The Ohio Su-

preme Court Dismissing The Appellants

Appeal On A Finding Of No Substantial

Constitutional Question Is A Final And

Appealable Order. , Ae Seca ese ae

III. Whether Ohio Revised Code Sections

2945.67 Through 2945.70 Which Grants

The State The Right To Appeal From An

Order Granting A Motion To Suppress

Evidence Is A Denial Of Equal Protection

And Due Process Of Law. 15

|

Il. ml.

Page TABLE OF AUTHORITIES

IV. Whether Ohio Revised Code Sections

2945.67 Through 2945.70 Denies The

Appellant The Right To Effective Assist- Cases cited: Page

_ance Of Counsel Where The Case Is Argued Abel v. United States, 362 U.S. 217 (1960) 81

At The Appellate Level By Counsel Ap-

pointed By The Trial Court And Where Beck v. State of Ohio, 379 U.S. 89 (1964) ._. .. 20

The Defendant Is A Party To The Pro- Bell v. United States, 254 F. 2d 82 (D.C. 1958) ... 28

ceeding And Where The Counsel Appoint- ; ;

ed Is The Same As Counsel Retained By Brinegar v. United States, 338 U.S. 160 (1949) .. 2

The Petitioner To Represent Him And Carroll v. United States, 267 US. 132 (1925) ... .... 25

Where The Petitioner Does Not Object To

Ch ; S.

The reba yee 15 ambers v. Maroney, 399 U.S. 42 (1970) 24, 28

Chimel v. California, 395 U.S. 752 (1969) . 27, 29

V. Whether The Supreme Court Of Ohio Di Bella v. United States, 369 U.S. 148, 82 S. Ct. 654

Erred To The Prejudice Of The Petitioner : (1962) at pg. 660 16

By Upholding The Decision Of The Court neil Oana ea _

Of Appeals, First Appellate District, Hamil- Draper v. United States, 358 U.S. 307 (1959) 24

ton County, Ohio, And By Dismissing The Elkins v. United States, 364 U.S. 206 (1960) ..... 31

Petitioners Appeal Upon The Ground That

No Substantial Constitutional Question Giordenello v. United States, 357 U.S. 480 (1958) .... 20

Was Presented. ore oo Harris v. United States, 390 U.S. 234 (1968) ..26, 30

CONCLUSION we iy gg Jackson v. United States, 302 F. 2d 194 (D.C. 1962) _. 24

Jones v. United States, 362 U.S. 257 (1960) .... 21

APPENDIX: Mancusi v. De Forte, 392 U.S. 364 (1968) sss... 81

MEMORANDUM DECISION AND JUDG- Preston v. United States, 376 U.S. 364 (1964) a

MENT ENTRY OF COURT OF APPEALS . la-6a ee

State of Ohio v. Phillips, 27 O.S. 2d 294 (1971) _..... 14

State v. Timson, 38 O.S. 2d 122 (1974) ......—-.... 21

State v. Waller, 47 OS. 2d 52 (1976) .......... ee

United States v. Bowers, 458 F. 2d 1045 (5th Cir.

SED > nian cece 0 oe iy ace I ee ee as Sa 23

Page

United States v. DeLeo, 422 F. 2d 287 (1st Cir. 1970) .. 28

United States v. Peachtree National Distributors,

456 F. 2d 442 (1972) at pg.444............. oe

United States v. Rabinowitz, 339 U.S. 56 (1950) 26

United States v. Robinson, 414 U.S. 218 (1973) .. 28, 29

United States v. Ryan, 402 U.S. 530, 91 S. Ct. 1580

Oe i ee AA, OF OS et ee

United States v. Upthegrove, 504 F. 2d 682 (6th

Cir. 1974) Eueiisak weenen Paes i

Statutes cited:

Section 2945.67, Ohio Revised Code . 3, 6, 12, 15, 17, 18

Section 2945.68, Ohio Revised Code 3, 6, 12, 15, 17, 18

Section 2945.69, Ohio Revised Code — 3, 6, 12, 15, 17, 18

Section 2945.70, Ohio Revised Code — 4, 6, 12, 15, 17, 18

Title 18 U.S.C.A. Section 3731 ..... | 17, 18

Rules cited:

Criminal Rule 12 J : tees + +

Constitutional Provisions cited:

IV Amendment, United States Constitution

V Amendment, United States Constitution |

VI Amendment, United States Constitution

XIV Amendment, United States Constitution

oo nme ne re

In The

SUPREME COURT OF THE UNITED STATES

October Term 1977

No. 77-875

WILLIAM T. RANKIN,

Appellant,

vs.

STATE OF OHIO,

Appellee.

On Appeal From The Supreme Court of Ohio

MOTION OF APPELLEE TO DISMISS APPEAL

Now comes the State of Ohio, Appellee by Simon L.

Leis, Jr., Prosecuting Attorney and Leonard Kirschner and

Thomas P. Longano, Assistant Prosecuting Attorneys of

Hamilton County, Ohio, and respectfully moves this Court

for an order dismissing the appeal for the reasons that

Ohio Revised Code 2945.67 to 2945.70 are not repugnant

to the United States Constitution and there has been no

denial of Appellants constitutional rights in the proceed-

ings below as reflected in the record of the hearing on the

Motion to Suppress and the opinions of the Court of

Appeals and the Supreme Court of Ohio.

2

OPNIONS BELOW

The Petition of the Petitioner correctly cites the opinions

below (Appendix, pp. la-6a) .

JURISDICTION

The appeal of the Appellant from the order of the

Supreme Court of Ohio entered September 9, 1977, which

denied jurisdiction for the reason that there was no sub-

stantial constitutional question presented presents the ques-

tions of whether the appeal by the State of Ohio from a

pretrial ruling on a Motion to Suppress evidence is violative

of the defendant-appellants rights under the IV, V, VI and

XIV Amendments of the United States Constitution.

CONSTITUTIONAL PROVISIONS AND STATUTES

AND RULES INVOLVED

The IV, V, VI and XIV Amendments to the United

States Constitution and Ohio Revised Code 2945.67

through 2945.70 and Criminal Rule 12 J.

1V Amendment, United States Constitution

‘The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches

and seizures shall not be violated .. .”

V Amendment, United States Constitution

“No person shall be deprived of life, liberty, or property

without due process of law.”

VI Amendment, United States Constitution

“In all criminal prosecutions the accused shall enjoy the

right . . . to have the assistance of counsel for his defense.”

3

XIV Amendment, United States Constitution

“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 pro-

tection of the laws.”

Ohio Revised Code Section 2945.67

“The prosecuting attorney, solicitor, or the attorney gen-

eral may except to a decision of the court and present a

bill of exceptions thereto. The court shall sign said bill

and it shall be made a part of the record.”

Ohio Revised Code Section 2945.68

‘The prosecuting attorney, solicitor, or the attorney gen-

eral may present a bill of exceptions in a criminal action

to the court of appeals or the supreme court and apply for

permission to file it with the clerk of the court for the

decision of such court upon the points presented therein.

Prior thereto, he shall give reasonable notice to the judge

who presided at the trial in which such bill was taken, of

his purpose to make such application. If the court of

appeals or the supreme court allows the bill to be filed, the

prosecuting attorney, solicitor, or attorney general shall,

within ten days of the filing of the bill, file his brief in

support of such exceptions and forthwith serve a copy there-

of upon the trial judge and any attorney appointed by the

judge to argue the exceptions against the prosecuting at-

torney, solicitor, or the attorney general.”

Ohio Revised Code Section 2945.69

“The trial judge may appoint some competent attorney

to argue the bill of excepiions against the prosecuting at-

4

torney, solicitor, or the attorney general under section

2945.68 of the Revised Code, and such appointee shall

receive for his services a fee of not more than one hundred

dollars, to be fixed by the judge and paid out of the treasury

of the county in which the bill was taken. Such attorney

shall file his brief against the prosecuting attorney, solicitor,

or the attorney general within ten days after service upon

him of the brief in support of said exceptions. The hearing

of such cases shall have precedence of other business and

such cases shall be continued upon the docket of the court

of appeals or the supreme court until argued and sub-

mitted.”

Ohio Revised Code Section 2945.70

“If the court of appeals or the supreme court is of the

opinion that the questions presented by a bill of exceptions

should be decided, it shall allow the bill of exceptions to

be filed and render a decision thereon. This decision shall

not affect the judgment of the trial court in said cause,

nor shall said judgment of the trial court be reversed,

unless the judgment of the court of appeals or the supreme

court reverses the judgment of the trial court on its ruling

on a motion to quash, a plea in abatement, a demurrer, a

motion to suppress evidence, or a motion in arrest of judg-

ment. In all other cases the decision of the court of appeals

or the supreme court shall determine the law to govern

in a similar case.”

Criminal Rule 12 J — Ohio Rules of Criminal Procedure

‘The state may take an appeal as of right from the grant-

ing of a motion for the return of seized property, or from

the granting of a motion to suppress evidence if, in addi-

tion to filing a notice of appeal, the prosecuting attorney

certifies: (1) the appeal is not taken for the purpose of

5

delay; (2) the granting of the motion has rendered the

state’s proof with respect to the pending charge so weak in

its entirety that any reasonable possibility of effective prose-

cution has been destroyed.

Such appeal shall not be allowed unless the notice of

appeal and the certification by the prosecuting attorney

are filed with the clerk of the trial court within seven days

after the date of the entry of the judgment or order grant-

ing the motion. Any appeal taken under this rule shall be

diligently prosecuted.

If the defendant has not previously been released, he

shall, except in capital cases, be released from custody on

his own recognizance pending such appeal when the prose-

cuting attorney files the notice of appeal and certification.

This appeal shall take precedence over all other appeals.”

6

QUESTIONS PRESENTED BY THE APPEAL

I

WHETHER THE UNITED STATES SUPREME

COURT WILL ENTERTAIN NEW MATTERS

NOT PREVIOUSLY BROUGHT TO THE AT-

TENTION OF EITHER THE TRIAL COURT

OR TO THE ATTENTION OF THE OHIO

COURT OF APPEALS WHICH IS THE COURT

OF ORIGINAL APPELLATE JURISDICTION.

II

WHETHER THE DECISION OF THE OHIO

SUPREME COURT DISMISSING THE APPEL-

LANTS APPEAL ON A FINDING OF NO SUB-

STANTIAL CONSTITUTIONAL QUESTION IS

A FINAL AND APPEALABLE ORDER.

Ill

WHETHER OHIO REVISED CODE SECTIONS

2945.67 THROUGH 2945.70 WHICH GRANTS

THE STATE THE RIGHT TO APPEAL FROM

AN ORDER GRANTING A MOTION TO SUP-

PRESS EVIDENCE IS A DENIAL OF EQUAL PRO-

TECTION AND DUE PROCESS OF LAW.

IV

WHETHER OHIO REVISED CODE SECTION

2945.67 THROUGH 2945.70 DENIES THE AP-

PELLANT THE RIGHT TO EFFECTIVE ASSIST-

ANCE OF COUNSEL WHERE THE CASE IS

ARGUED AT THE APPELLATE LEVEL BY

COUNSEL APPOINTED BY THE TRIAL

7

COURT AND WHERE THE DEFENDANT IS A

PARTY TO THE PROCEEDING AND WHERE

THE COUNSEL APPOINTED IS THE SAME AS

COUNSEL RETAINED BY THE PETITIONER

TO REPRESENT HIM AND WHERE THE PETI-

TIONER DOES NOT OBJECT TO THE PRO-

CEDURE.

Vv

WHETHER THE SUPREME COURT OF OHIO

ERRED TO THE PREJUDICE OF THE PETI-

TIONER BY UPHOLDING THE DECISION OF

THE COURT OF APPEALS, FIRST APPELLATE

DISTRICT, HAMILTON COUNTY, OHIO, AND

BY DISMISSING THE PETITIONERS APPEAL

UPON THE GROUND THAT NO SUBSTAN-

TIAL CONSTITUTIONAL QUESTION WAS

PRESENTED.

8

STATEMENT OF THE CASE

On August 15th, 1975 Sergeant Paul Guthrie was as-

signed to the Regional Enforcement Narcotic Unit and

was on duty. Between 8:00 P.M. to 9:00 P.M. Sergeant

Guthrie received information (TP 42) from a reliable

and confidential informant (TP 31). This informant had

provided Agent Guthrie with information in the recent

past which resulted in the seizure of heroin and a convic-

tion (TP 31, 32).

The information given to police indicated that a ship-

ment of heroin from California was due to arrive in the

city on August 15th, 1975. The shipment of narcotics was

to be received by a man known to Sergeant Guthrie as one

“Gray Eyes,” also known as Fred Douglas. Information

also indicated that a co-conspirator in the shipment would

be driving a Cadillac sedan equipped with a telephone

antenna on the trunk bearing California license plates.

The information further indicated that a second vehicle

would also be involved and would be operated by an

individual from Knoxville, Tennessee (TP 32).

Both vehicles were to meet at Fred Douglas’ home

located in Springfield Township, Hamilton County, Ohio.

The Douglas home was famliiar to Sergeant Guthrie (TP

32) .

Sergeant Guthrie was further informed that one “Chip-

per’ Rankin, the defendant herein, was to receive a part

of the shipment from the larger shipment to be received

by Douglas (TP 32). In an effort to verify the information

given him, Sergeant Guthrie went to the home of Fred

Douglas. The Sergeant observed two vehicles which fit

the description given to him by the informant. One ve-

hicle was a red and white late model Cadillac sedan, bear-

ing California license plates with a radio antenna located

9

on the rear of the vehicle. The second vehicle was a black

Buick sedan bearing Tennessee license plates. This ob-

servation occurred at approximately ten or eleven o'clock

on August 15th. (TP 32, 33).

After further investigations Agent Guthrie went to the

home of the defendant located at 8845 Harpers Point Drive

in Symmes Township, Hamilton County, Ohio.

Prior to August 15th, Sergeant Guthrie kept the defen-

dant under surveillance on fifteen or sixteen different days,

four or five of which were at the defendant's home (TP

58, 59). The investigation involved observation of the

defendant and another man in reference to narcotic drugs

(TP 30).

Sergeant Guthrie knew that the defendant was driving a

1975 Pontiac Grand Prix, bearing 1975 Ohio license plate

# CHIP 5 (TP 33).

At approximately 1:30 A.M. on August 16th a surveil-

lance position was taken one hundred to one hundred fifty

yards from the defendant’s apartment. With the aid of

binoculars the Sergeant observed the defendant in a second

floor bedroom. (TP 33).

At approximately twenty minutes or a quarter til two the

defendant was seen on the telephone (TP 33). Seconds

later the defendant emerged from a door and proceeded to

the parking lot with only a cigarette in his hand. He en-

tered a 1975 Pontiac, Ohio license #CHIP 5 and departed

(TP 34).

The defendant was followed onto I-275 where he reached

speeds of 90 m.p.h. The defendant eventually led police

to a subdivision known as Lexington Heights, located in

Springfield Township. The defendant proceeded to New-

brook Avenue where Fred Douglas lived (TP 34).

Sergeant Guthrie notified two other R E N U units, one

to take position at Hudepohl Lane and one at Hamilton

Avenue (TP 34).

10

The defendant was observed entering the home of Fred

Douglas empty handed. Seventeen minutes later the dfen-

dant emerged from the house moving at a fast pace (TP

35) .

When the defendant exited he was carrying a package.

The package being carried by the defendant was larger

than the width of his hands. It extended from both sides

of his hand (TP 36). Based upon the information given

police, Sergeant Guthrie believed that a delivery of heroin

had just taken place. Sergeant Guthrie at that point in

time decided to make an arrest for possession of narcotics

(TP 52) (TP 91) however, he was waiting for a safe place

to do it (TP 54).

Both the defendant and Sergeant Guthrie entered their

cars. The defendant in driving his vehicle approached

Guthrie's vehicle from the rear. The defendant drove up

alongside the Sergeant’s car and looked in his direction.

At this point, Officer Handorf was situated directly behind

the defendant and Officer Stears was proceeding toward

the front of the defendant's car (TP 36, 37). The defen-

dant turned and spotted the agents (TP 50).

The defendant knew Sergeant Guthrie for approximately

two years and knew that he was a police officer with the

Regional Enforcement Narcotic Unit (TP 16). The de-

fendant also knew the identity of Officer Handorf for over

two years (TP 17).

After observing the officers (TP 86) the defendant de-

parted at a high rate of speed. The police units were

ordered to follow him, and a high speed chase ensued. A

request was made for marked Springfield Township and

Hamilton County cars to join in to aid the R E N U agents

(TP 37).

The defendant at one point while driving his vehicle on

1]

Playtime Lane, reduced the speed of his vehicle to about

5 m.p.h. and pulled to the opposide side of the street (TP

37,65). The defendant then sped forward again at a high

rate of speed (TP 37). The police overtook the defen-

dant’s car about a block and a half away (TP 65).

As officers approached the vehicle they observed the

defendant holding a switchblade knife in his left hand. At

the same time he was leaning across the seat in the direction

of the glove compartment. The defendant was ordered to

drop the knife and open the car door which had been

locked (TP 37).

Officer Handorf was looking directly into the vehicle

and likewise saw the knife in the defendant's hand. He

also saw the defendant lean toward the glove compartment.

Handorf took the knife from the defendant and recovered

a loaded .38 caliber revolver from the glove compartment

which was located in the area to which the defendant was

reaching (TP 66). The gun was later test fired and found

to be operable (TP 39).

The defendant was placed under arrest as soon as police

saw him in possession of the switchblade knife (TP 41).

The arrest took place at approximately 2:30 A.M.

The defendant was advised of his constitutional rights

and indicated to police that he understood them (TP 68).

The defendant told police that he had the gun for protec-

tion (TP 72).

Sergeant Guthrie ordered Agent Handorf to conduct a

foot check of the vicinity where the defendant's vehicle

had previously slowed down on Playtime Lane (TP 40).

Agent Handorf retraced the route that the defendant

took in an effort to locate the Heroin. When the officer

reached the spot on Playtime Lane where the defendant

12

had reduced his speed, he found the bag laying on the

ground (TP 73).

The bag was returned to Sergeant Guthrie and opened

in his presence (TP 40). The contents of the bag was

identified State’s Exhibit #3 (TP 73). The substance was

heroin (TP 93).

The defendant was identified by Sergeant Guthrie as the

man involved in this incident. Sergeant Guthrie knew the

defendant for two and a half years prior to this event (TP

29).

State’s Exhibit #1, a .38 caliber gun; State’s Exhibit

#2, a switchblade knife; State’s Exhibit #3, the heroin,

and State’s Exhibit #6, a report were all marked and identi-

fied at the hearing.

Officers did not attempt to obtain a search warrant be-

cause they were attempting to establish probable cause first

(TP 44). The police were still in the process of gathering

information (TP 46) and attempting to verify that infor-

mation (ITP 63) when they observed the final events in

the late evening hours on August 15, 1975, and early

morning hours of August 16th.

The rapid succession of the events as they occurred in

this case necessitated that police move quickly. Once

police verified the information and established probable

cause there was no time to secure a search warrant.

Defendant-Appellant was subsequently indicted for the

crime of possession of narcotics and carrying a concealed

weapon.

Prior to trial he filed a Motion to Suppress which was

granted by the trial Court. In accordance with Rule 12 J

of the Rules of Criminal Procedure and in accordance

with Ohio Revised Code 2945.67 through 2945.70 inclu-

.—— ¢

13

sive; the plaintiff-appellee filed a Motion for Leave to

Appeal in the Court of Appeals of the First Appellate

District of Ohio. Briefs were filed by privately retained

counsel on behalf of the defendant-appellant and the trial

Court. At no time were the issues raised in the appellants

first three questions ever raised in the Court of Appeals.

The Court of Appeals determined that the trial Court was

incorrect in granting the Motion to Suppress and reversed

and remanded the matter back to the trial Court for further

proceedings and trial.

At that point in time current privately retained counsel

for the defendant-appellant officially filed a Motion to Inter-

vene and to be substituted as counsel in this matter. New

counsel then for the first time raised the issues presented in

questions one through three to the Ohio Supreme Court

which questions had never previously been raised. The

Supreme Court of Ohio determined that there were no

matters of great public importance nor substantial consti-

tutional questions involved and denied jurisdiction.

From that decision defendant-appellant has filed his No-

tice of Appeal to this Court.

14

ARGUMENT

I

WHETHER THE UNITED STATES SUPREME

COURT WILL ENTERTAIN NEW MATTERS

NOT PREVIOUSLY BROUGHT TO THE AT-

TENTION OF EITHER THE TRIAL COURT

OR TO THE ATTENTION OF THE OHIO

COURT OF APPEALS WHICH IS THE COURT

OF ORIGINAL APPELLATE JURISDICTION.

We submit that it is a basic and fundamental rule of

appellate procedure that an upper appellate Court will not

consider matters not previously raised in the lower Court.

The defendant-appellant in these proceedings never

through his privately retained counsel ever raised the

issues involved in his questions one through three inclusive

before either the trial court or the original appellate Court.

It was only after the appellate court ruled that he raised

these issues for the first time in the Ohio Supreme Court.

It is an established rule of long standing in Ohio that a

constitutional question in a criminal case cannot be raised

in the Ohio Supreme Court on appeal unless it was argued

in the lower Courts. State of Ohio v. Phillips, 27 OS.

(2d) 294 (1971).

We feel that this deficiency in and of itself is a sufficient

basis upon which the Motion to Dismiss should be granted.

II

WHETHER THE DECISION OF THE OHIO

SUPREME COURT DISMISSING THE APPEL-

LANT’S APPEAL ON A FINDING OF NO SUB-

STANTIAL CONSTITUTIONAL QUESTION IS

A FINAL AND APPEALABLE ORDER.

~~

15

Ill

WHETHER OHIO REVISED CODE SECTIONS

2945.67 THROUGH 2945.70 WHICH GRANTS

THE STATE THE RIGHT TO APPEAL FROM

AN ORDER GRANTING A MOTION TO SUP-

PRESS EVIDENCE IS A DENIAL OF EQUAL PRO-

TECTION AND DUE PROCESS OF LAW.

IV

WHETHER OHIO REVISED CODE SECTION

2945.67 THROUGH 2945.70 DENIES THE AP-

PELLANT THE RIGHT TO EFFECTIVE ASSIST-

ANCE OF COUNSEL WHERE THE CASE IS

ARGUED AT THE APPELLATE LEVEL BY

COUNSEL APPOINTED BY THE TRIAL COURT

AND WHERE THE DEFENDANT IS A PARTY

TO THE PROCEEDING AND WHERE THE

COUNSEL APPOINTED IS THE SAME AS COUN-

SEL RETAINED BY THE PETITIONER TO REP-

RESENT HIM AND WHERE THE PETITIONER

DOES NOT OBJECT TO THE PROCEDURE.

We have joined questions II, III and IV for the purposes

of argument in light of the fact that they are interrelated.

First of all what the defendant is endeavoring to appeal

is a decision by a Court of Appeals that has determined that

the lower Court incorrectly granted a pretrial Motion to

Suppress evidence.

In Ohio Criminal Rule 12 J is read in conjunction with

Ohio Revised Code 2945.67 through 2945.70 in granting

to the State the limited right of appeal by leave of Court

(State v. Waller, 47 O.S. (2d) 52 (1976) ).

16

This Court on numerous occasions reflected that the

granting or denial of a pre-trial Motion to Suppress in

and of itself is not a final appealable order.

In the case of DiBella v. United States, 369 U.S. 148, 82

S. Ct. 654 (1962) at page 660:

“We hold, accordingly, that the mere circumstance

of a pre-indictment motion does not transmute the en-

suing evidentiary ruling into an independent proceed-

ing begetting finality even for purposes of appeala-

bility. . . . Orders granting or denying suppression

in the wake of such proceedings are truly interlocu-

tory, for the criminal trial is then fairly in train.

When at the time of ruling there is outstanding .

an indictment—in each such case the order on a sup-

pression motion must be treated as ‘but a step in the

criminal case preliminary to the trial itself’.”’

This Court has further stated in the case of United States

v. Ryan, 402 U.S. 530, 91 S. Ct. 1580 (1971) at page 1582:

“Only in the limited class of cases where the denial

of immediate review would render impossible any re-

view whatsoever of an individuals’ claims have we

allowed exceptions to this principle. We have thus

indicated that review is available immediately of a

denial of a motion for return of seized property, where

there is no criminal prosecution pending against the

movant.”

As the United States Circuit Court of Appeals held in the

case of United States v. Peachtree National Distributors,

456 F. (2d) 442 (1972) at page 444:

“The generally recognized policy supporting the

rule limiting appellate review to ‘final decisions’ is

the need for sound judicial administration. Limiting

review to final decrees saves the expense and delay of

numerous appeals in the same suit and permits the

17

whole case and every matter in controversy to be de-

cided in a single appeal ... The Supreme Court has

deviated from the finality rule only where the adjudi-

cation appealed from was complete and independent of

other litigation.”

The rights and interest of defendant-appellant in this

case may be protected by way of his direct appeal if he is

subsequently convicted.

Title 18 U.S.C.A. Section 3731 permits the United States

to appeal an order granting a motion to suppress evidence.

Ohio also provides the state with a similar right to appeal

such orders under Section 2945.67 through 2945.70 Revised

Code of Ohio and Criminal Rule 12(J).

The fact that Congress has given the United States the

right to appeal in such cases does not compel the courts

to grant a similar right to defendants, United States v.

Peachtree National Distributors, supra.

Where a motion to suppress evidence is granted the state

will almost always be left in the position of having no case

and consequently no future appellate review. Hence, a

trial Court could be permitted to make an error of law and

have that error unchallenged without the State having a

right to appeal.

Where a motion to suppress evidence is denied the de-

fendant can still preserve his objections on appeal from the

final judgment on the merits.

It is submitted that law enforcement depends upon the

use of search warrants. They have become a valuable tool

in the criminal prosecution. If an appeal were permitted

at each instance that a motion to suppress evidence was

denied we would face delays and disruptions which would

unduly hamper the administration of criminal law.

18

Counsels basic argument as set forth in his third ques-

tion presented for review of this Court and which is our

question #4 is not supported by the facts and occurances in

the lower Court.

In the case currently before this Court; the trial Court

appointed the defendant-appellant’s privately retained

counsel to represent the interests of the Court and the

defendant-appellant. Briefs and appearances were made

in the Court of Appeals by privately retained counsel of

the defendant-appellant who signed the briefs as counsel

for the defendant-appellant. At no time prior to the Court

of Appeals ruling did the defendant-appellant ever object

to his privately retained counsel handling his appeal. After

the Court of Appeals reversed the trial Court on the Mo-

tion to Suppress; current privately retained counsel came

into the picture. At no time prior to his filings in this

Court has he ever raised the matters presented in his ques-

tion #3 (our question #4) .

The only issue counsel raised in the Ohio Supreme Court

on these statutes (2945.67-2945.70 and Criminal Rule 12

J) was that said sections were unconstitutional because they

gave the state the right of appeal from an adverse ruling

on a motion to suppress which was not given to the defen-

dant. It is also to be noted that even this issue was never

raised in the Ohio appellate Court of original appellate

jurisdiction.

We then end up with the situation that the defendant-

appellant is now claiming alleged errors to which he was

a party and never objected anywhere in the state courts

about the alleged errors.

19

v

WHETHER THE SUPREME COURT OF OHIO

ERRED TO THE PREJUDICE OF THE PETI-

TIONER BY UPHOLDING THE DECISION OF

THE COURT OF APPEALS, FIRST APPELLATE

DISTRICT, HAMILTON COUNTY, OHIO, AND

BY DISMISSING THE PETITIONER’S APPEAL

UPON THE GROUND THAT NO SUBSTAN-

TIAL CONSTITUTIONAL QUESTION WAS

PRESENTED.

Respondent respectfully submits that the actions taken

by law enforcement officers in the case at bar were proper

based upon any or all of the following reasons:

(A) The warrantless arrest of a defendant is lawful

when the police have probable cause to believe

that the defendant is engaging in criminal activi-

ty, based upon reliable information received from

a trustworthy source, coupled with independent

investigative efforts by police which verify the

accuracy of the information.

(B) A police officer may conduct a warrantless search

when that search is incident to a lawful arrest,

in order to protect himself and to protect the

potential destruction of evidence, and any items

recovered as a result of that search are admissible

as evidence.

(C) Objects falling within the plain view of a police

officer who has a right to be in the position to have

that view are lawfully subject to seizure and may

be introduced as evidence.

Where property is found abandoned in an area

free of any expectancy of privacy, there is’ no

20

standing to object to its subsequent search or

seizure, due to the fact that there is no reasonable

expectation of pr vacy and therefore there is no

constitutional in! -rest to be protected.

(A) The warrantless arrest of a defendant is law-

ful when the police have probable cause to

believe that the defendant is engaging in

criminal activity, based upon reliable infor-

mation received from a trustworthy source,

coupled with independent investigative ef-

forts by police which verify the accuracy of

the information.

It is submitted that it is well established that the test

for probable cause is the same, whether the issue is prob-

able cause to make an arrest or to obtain a search warrant.

Giordenello v. United States, 357 U.S. 480 (1958).

The Supreme Court of the United States stated in Beck

v. State of Ohio, 379 U.S. 89 (1964) that whether an arrest

was constitutionally valid depends upon whether, at the

moment the arrest was made, the officers had probable

cause to make that arrest. The test is whether at that

moment the facts and circumstances within their knowledge

and of which they have reasonably trustworthy information

were sufficient to warrant a prudent man in believing that

the defendant had committed or was committing an offense.

The rule of probable cause is a practical, nontechnical con-

ception affording the best compromise that has been found

for accommodating often opposing interests. Requiring

more would unduly hamper law enforcement.

When the constitutional validity of an arrest is chal-

lenged, it is the function of a Court to determine whether

the facts available to the officers at the moment of the arrest

21

would warrant a man of reasonable caution in the belief

that an offense has been committed. Beck, supra.

The Supreme Court of Ohio has followed this same line

of reasoning in State v. Timson, 38 Ohio St. (2d) 122

(1974). The Court stated that before a police officer could

make an arrest he must have probable cause. To have

probable cause the officer must have reasonably sufficient

information and this information must have been derived

from a reasonably trustworthy source, which would indicate

to a prudent man, and lead him to believe, that a felony

was committed, and that it was committed by the accused.

It must be remember that thé probable cause necessary

to arrest required less facts than are necessary for conviction

and the amount and method of proof is less strict. See

Jones v. United States, 362 U.S. 257 (1960).

It is respectfully submitted that the R.E.N.U. agents in

the instant case did have sufficient probable cause to believe

that the defendant was engaged in criminal activity. The

information was derived from a reasonable trustworthy

source and was verified by the independent investigative

efforts of the police. The police personally observed the

defendant’s suspicious conduct which helped to serve as

a basis for leading a prudent man to believe a crime was

in progress.

Probable cause to arrest the defendant was based upon

the following information and facts:

1). Police received information from a reliable and

confidential informant whose past information

proved to be credible.

2). The information revealed that a shipment of

heroin was coming into the city from California

and would be delivered to the residence of a one

Fred Douglas also known as “Grey Eyes.”

22

3). The description of two vehicles involved in the

operation were observed parked at the Douglas

residence and this was verified by Sergeant Guthrie.

4). Police were informed that the defendant would

receive a portion of the heroin shipment at the

Douglas home.

5). At approximately 1:45 A.M. on August 16th the

defendant was observed leaving his home and drive

off at a high rate of speed.

6). The defendant went to the home of Fred Douglas

and left shortly thereafter carrying a container.

7). When police attempted to follow the defendant he

spotted them and prove off at a high rate of speed.

His driving became erratic. |

8). During the course of the chase the defendant at

one point on Playtime Lane slowed his car down

to almost a complete halt, moved to the wrong side

of the road, then sped away.

9). Officers eventually overtook the defendant's ve-

hicle and while approaching the car spotted the

defendant holding a switchblade knife in his hand.

10). The defendant was attempting to reach in the di-

rection of a closed glove compartment. A loaded

.388 caliber pistol was found in this same glove

compartment.

11). The defendant was placed under arrest as soon as

police spotted the knife in his hand.

It is therefore submitted that based upon the totality

of the circumstances the police did have probable cause

and reasonable grounds to believe that the defendant was in-

23

volved in a crime. They were acting on considerably more

than just mere suspicion. The police were justified in

stopping the defendant's car in furthering their investiga-

tion, and to make an arrest. The actions of the defendant

were not consistent with those of an innocent man. Based

upon the totality of the circumstances it cannot be said

that police lacked probable cause to stop the defendant

and arrest him.

In addition, the seizure of the defendant’s vehicle was

reasonable and lawful as it was an instrumentality of the

crime.

Flight of the accused is, of course, a circumstance tending

to prove consciousness of guilt. A police officer in estab-

lishing probable cause to arrest need not be in possession

of sufficient evidence to ensure a conviction. The rule is

that in determining the validity of an arrest on probable

cause, the Court is dealing with probability and not with

the certainty that an offense has been or is being commit-

ted. The constitutional requirement of probable cause for

arrest serves the purpose of protecting the citizenry from

unreasonable intrusions by the State, not of insuring that

no innocent person will even be arrested. United States

v. Bowers, 458 F. 2d 1045 (5th Cir. 1972).

Probable cause does not emanate from an antiseptic

courtroom, a sterile library or a Holy sacrosanct adytum,

nor is it a pristine philosophical concept existing in a

vacuum, Bell v. United States, 254 F. 2d 82 (D. C. 1958),

but rather it requires a pragmatic analysis of everyday life

on which reasonable and prudent men, not legal technicians

act. Brinegar v. United States, 338 U.S. 160 (1949).

Probable cause is to be viewed from the vantage point

of a prudent, reasonable, cautious police officer on the

scene at the time of the arrest guided by his experience

24

and training. Jackson v. United States, 302 F. 2d 194

(D.C. 1962). The officers in the case at bar were well

trained and experienced in the area of narcotic arrests.

The facts in the instant case closely parallel those in the

case of Draper v. United States, 358 U.S. 307 (1959). In

Draper, agents were given information which when checked

out by investigation proved to be accurate. The Court

in Draper held that the arrest was lawful even though with-

out a warrant, because it was based upon probable cause

and reasonable grounds for believing the defendant was

committing a crime. See also United States v. Upthegrove,

504 F. 2d 682 (6th Cir. 1974).

It is submitted that once probable cause was established

the officers in the case at bar were permitted to stop the

defendant's vehicle and based upon the exigency of the

circumstances were permitted to conduct a search of the

vehicle.

The Court in Chambers v. Maroney, 399 U.S. 42 (1970)

held that where probable cause and exigent circumstances

exist, police may conduct a warrantless search of the defen-

dant’s automobile.

In the instant case probable cause did exist as argued

previously. The exigent circumstances necessitating an

immediate search are illustrated as follows:

1). The police stopped the defendant's car in the early

morning hours after a high speed auto chase involv-

ing the erratic driving of the defendant.

2). Police had information from a reliable source which

indicated that the defendant was involved in the

trafficking of “hard” narcotic drugs.

3). Police had reasonable grounds to believe that the

25

defendant had just made a pick up of heroin, when

he left the home of Fred “Grey Eyes’’ Douglas.

4). When police approached the defendant's car they

saw a switchblade knife in his hand and he was

reaching in the direction of a closed glove com-

partment.

5). The arrest took place at approximately 2:30 A.M..,

on an open public street, not far from the home

of Fred Douglas.

In order to protect themselves and to prevent the possible

destruction of evidence police lawfully searched the imme-

diate area within defendant’s area of control.

In Carroll v. United States, 267 U.S. 132 (1925) and

cited in Chambers, the Court held that automobiles and

other conveyances may be searched without a warrant in

circumstances that would not justify the search without a

warrant of a house or an office, provided there is probable

cause. The right to search and the validity of the seizure

are not dependent on the right to arrest. They are de-

pendent on the reasonable cause the seizing officer has for

belief that the contents of the automobile offend against

the law. The mobility of an automobile makes a warrant-

less search of an automobile reasonable when probable

cause is present. The opportunity to search is fleeting

since a car is readily movable.

For constitutional purposes the Court saw no difference

between on the one hand seizing and holding a car before

presenting the probable cause issue to a magistrate and on

the other hand, carrying out an immediate search without

a warrant. Given probable cause to search, either course

is reasonable under the fourth Amendment. Chambers,

supra.

26

It is therefore submitted that the seizure of the .38

caliber handgun from the glove compartment was lawful

and should not have been suppressed by the trial court.

It is further submitted that the switchblade knife found

in the defendant's hand likewise should not have been sup-

pressed by the trial court. When police approached the

defendant’s car they observed him with a switchblade knife

in his hand. This observation was not gained as a result

of any search but rather was in the officer's “plain view.”

Courts have long permitted seizure of items which fall

within “plain view.”

The Supreme Court of the United States held in Harris

v. United States, 390 U.S. 234 (1968) :

“It has long been settled that objects falling in the

plain view of an officer who has a right to be in the

position to have that view are subject to seizure and

may be introduced in evidence... .”

It is submitted that the RENU agents were lawfully

positioned outside defendant's car. They had a lawful

right to be where they were and a lawful right to do what

they did.

Appellee respectfully submits that the police under the

facts and circumstances in the case at bar were not required

to obtain a search warrant.

The Court held in United States v. Rabinowitz, 339

U.S. 56 (1950) that the test in warrantless searches is “not

whether it is reasonable to procure a search warrant, but

whether the search was reasonable.”

The police were in receipt of the vital information for

only several hours. It was the police’s intention to verify

the information and establish probable cause before they

acted. Once police verified the information and estab-

27

lished probable cause, it became necessary to act immedi-

ately. If police had delayed, it would have led to the sub-

sequent loss or sale of the narcotics into the community.

It is submitted in conclusion that police had probable

cause and reasonable grounds to place the defendant under

arrest. ‘Ihe subsequent search and seizure of evidence was

lawful based upon probable cause and the exigency of the

circumstances.

(B) A police officer may conduct a warrantless

search when that search is incident to a law-

ful arrest, in order to protect himself and to

protect the potential destruction of evidence,

and any items recovered as a result of that

search are admissible as evidence.

As argued previously there was probable cause and rea-

sonable grounds for police to arrest the defendant. The

record reflects that the defendant was placed under arrest

as soon as officers reached his automobile. The search of

the defendant's car was therefore executed incident to a

lawful arrest.

It is well settled that, as an exception to the general

requirement for search warrants, a police officer may con-

duct a search incident to a lawful arrest. Chimel v.

California, 395 U.S. 752 (1969). Preston v. United States,

376 U.S. 364 (1964).

This exception is grounded in the practical consideration

that an officer has the right to protect himself and to pre-

vent the potential destruction of evidence. Preston, supra.

The evidence reflects that police did believe they were

in danger when they stopped the defendant's car and ob-

served the switchblade knife in his hand (TP 41, 42). The

28

police were merely acting as any reasonable or prudent

man would act under the circumstances.

When the subject is under a full custodial arrest, the

police may conduct a full search of the person and his

ions at hand, United States v. Robinson, 414 US.

218 (1973).

Once the police placed the defendant under arrest they

were permitted to conduct a search of the glove compart-

ment. This was reasonable in light of the fact that the

defendant was holding a switchblade knife and was reaching

in the direction of a glove compartment where possibly

other weapons were present.

The search would not violate the principles establishing

the area of control of the arrestee as the area of search.

The glove compartment was only a short distance from the

defendant’s hand. After seeing the defendant holding a

weapon in his hand it was not unreasonable for police to

believe that he was reaching for another weapon. Any

assertion that the glove compartment was not an area

within the control of the defendant fails when confronted

with the rule of Chambers, supra.

It is submitted that since the initial warrantless full-

custody arrest was not unconstitutional nor unlawful, it

follows that the search incident to such a lawful arrest was

without constitutional flaw.

The Court of Appeals for the First Circuit stated in

United States v. De Leo, 422 F. 2d 287 (First Cir. 1970) :

“While the legal arrest of a person should not destroy

the privacy of his premises, it does, for at least a rea-

sonable extent, take his own privacy out of the realm

of protection from police interest in weapons, means

ot escape and evidence.”

29

A search incident to a lawful arrest may extend to the

arrestee’s person and the area within his immediate control.

Chimel, supra.

It does not matter whether or not the arrestee had been

subdued and presents no danger to the police. The au-

thority to conduct a search incident to an arrest once estab-

lished still exists even after the need to disarm and pre-

vent the destruction of evidence have been dispelled.

Chambers, supra.

The authority to search the person and his possessions

at hand incident to a lawful custodial arrest while based

upon the need to disarm and to discover evidence, does

not depend on what a Court may later decide was the

probability in a particular arrest situation that weapons or

evidence would in fact be found. United States v. Robin-

son, supra.

It is therefore submitted that the search and seizure

which revealed the .38 caliber handgun and the seizure of

the switchblade knife from defendant's hand was lawful.

The police did not violate any of the defendant's consti-

tutional rights. The Fourth Amendment protects against

unreasonable searches.

30

(C) Objects falling within the plain view of a

police officer who has a right to be in the

position to have that view are lawfully sub-

ject to seizure and may be introduced as

evidence.

Where property is found abandoned in an

area free of any expectancy of privacy, there

is no standing to object to its subsequent

search or seizure, due to the fact that there

is no reasonable expectation of privacy and

therefore there is no constitutional interest

to be protected.

As to State’s Exhibit #3, the heroin found by police, it

is submitted that its discovery was not the result of an

illegal search and seizure nor was it recovered incident

to an unlawful arrest.

The heroin was not illegally seized because it was not

the product of a search and seizure at all as commonly

known. Police recovered the heroin on the ground located

on Playtime Lane. The package of heroin came within

Agent Handorf’s “plain view’’ as he was making a check

of the area where defendant had slowed his vehicle.

As argued previously, Courts have long permitted seizure

of items which fall into the plain view of an officer who

has a right to be in the position to have that view. Harris,

supra. Surely Officer Handorf had a lawful right to con-

duct a check of the street for suspected heroin. The agent

did not violate the defendant’s constitution rights when

he recovered the package of heroin from the street.

It is further submitted that the heroin was abandoned

property. Where one abandons his interest in property

and where he has no reasonable expectation of privacy in

3]

the property found, he cannot complain of any constitu-

tional violation. Abel v. United States, 362 U.S. 217

(1960) .

Where property is abandoned, then he who abandons

it is without standing to object to its subsequent search

or seizure. See Abel, supra. It has been so held because

the security of a property interest, or a reasonable expecta-

tion of privacy no longer exists, and, therefore there is

nothing for the Fourth Amendment to protect.

The defendant had no standing whatsoever to object

to the recovery of the heroin from Playtime Lane. The

determining factor is whether the area searched is one

in which there is a reasonable anticipation of freedom from

governmental intrusion. Mancusi v. De Forte, 392 US.

364 (1968).

In the case at bar the street where the heroin was re-

covered was a public street. It was clearly not an area in

which the defendant could have any expectation of privacy.

Where there is no property interest to be secured, and

there is no reasonable expectation of privacy in the thing

seized, then there is no constitutional interest to be pro-

tected, Elkins v. United States, 364 U.S. 206 (1960).

The defendant flatly denied any knowledge of the heroin

(State’s Exhibit #3) and also denied any ownership of the

heroin (TP 15). The heroin lying in the street was clearly

abandoned. The defendant had no possessory interest in

the area where the heroin was found. There was no ex-

pectation of privacy involved here. The package of heroin

was in the officer's “plain view” and was not recovered as

a result of a search and seizure.

32

CONCLUSION

We respectfully submit that the Motion to Dismiss the

Appeal should be granted because:

l.

The defendant is endeavoring to raise in this Court

questions never previously raised in the State Courts.

The defendant-appellant is endeavoring to appeal

from a pretrial order on a Motion to Suppress which

is only a portion of the total case which might be

raised by direct appeal at a subsequent date.

The fact that the State grants the plaintiff state the

limited right of appeal in pretrial suppression mo-

tions does not deprive the defendant-appellant on

any constitutional rights.

The searches involved were clearly within the con-

stitutional guidelines set by this Court in its various

rulings as reflected in the record of the proceedings.

We therefore request that this Court grant our Motion

to Dismiss.

Respectfully submitted,

SIMON L. LEIS, JR.

Prosecuting Attorney

LEONARD KIRSCHNER

Assistant Prosecuting Attorney

THOMAS P. LONGANO

Assistant Prosecuting Attorney

APPENDIX

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

No. C-76045

STATE OF OHIO,

Plaintiff-Appellant,

vs.

WILLIAM THEODORE RANKIN,

Defendant-Appellee.

MEMORANDUM DECISION AND

JUDGMENT ENTRY

(Filed March 30, 1977)

Messrs. Simon L. Leis, Jr., Thomas P. Longano and Carl

W. Vollman of counsel, 420 Hamilton County Court

House, Court & Main Streets, Cincinnati, Ohio 45202, for

Plaintiff-Appellant,

Mr. Ronald C. Morgan, 138 E. Court Street, Suite 1019,

Cincinnati, Ohio 45202, for Defendant-Appellee.

PER CURIAM.

This cause came on to be heard upon the appeal of the

State of Ohio by leave of this Court first granted, the tran-

la

2a

script of the docket and journal entries, the original papers

from the Court of Common Pleas of Hamilton County,

Ohio, the assignment of error, the briefs and arguments

of counsel.

The singular assignment of error is:

“The trial court committed prejudicial error when it

granted the defendant's motion to suppress the evi-

dence.”

The defendant-appellee, William Theodore Rankin, was

charged in a three count indictment with the crimes of

having a weapon under disability, carrying a concealed

weapon and possession of a narcotic (heroin) for sale.

After pleading not guilty to those charges, Rankin filed

motions to suppress the evidence which had been both

seized from him and otherwise recovered at the time of

his arrest by police officers without a warrant. A hearing

had upon the motions resulted in an order suppressing a

certain gun, knife and a quantity of heroin, thus prompting

the prosecution to seek leave of court to appeal.

The transcript of the proceedings establishes that certain

police officers received advice from an informant, char-

acterized as reliable and who had provided information

earlier which had resulted in the seizure of heroin and a

subsequent conviction, that a shipment of heroin was due

to arrive in Cincinnati from California on August 15, 1975,

to be delivered to one Fred Dougias. The informant stated

that two vehicles would be involved, one a Cadillac sedan

with an antenna affixed to its trunk lid bearing California

license plates and the other to be operated by someone from

Tennessee, which were to meet at Douglas’ home in an

area suburban to Cincinnati. One of the officers receiving

the information knew Douglas and the location of his

home. Additionally, the informant stated that the defen-

3a

dant-appellee, referred to by him as “Chipper” Rankin,

was to receive part of the shipment of heroin.

At some time between 10:00 and 11:00 P.M. on August

15th, the officer to whom the information had been con-

veyed went to the vicinity of Douglas’ home and saw two

vehicles which matched the descriptions given. At about

1:30 A.M. on August 16th, that officer arrived at Rankin’s

house and shortly thereafter saw, with the aid of binoculars,

Rankin apparently engage in a telephone conversation and

almost immediately thereafter observed him leave in an

automobile bearing a license numbered CHIP 5.

Rankin was followed by the officer to Douglas’ home,

which he entered. The officer testified that Rankin was

then empty handed. Some fifteen minutes later, Rankin

left the house hurriedly carrying a package somewhat larger

than the hand in which he held it.

By radio, the officer summoned other police and followed

Rankin’s car as it left the scene. What was characterized

by the police as a “high speed chase” developed.

While being pursued, Rankin at one point slowed his

car to some 5 MPH and then accelerated. Shortly there-

after, the police were able to stop Rankin.

They testified that when they reached the side of Rank-

in’s car he had a switchblade knife in his hand and was

leaning toward the glove compartment. Rankin was dis-

armed of the knife and a loaded .38 caliber revolver, later

test fired and found to be operable, was recovered from

the compartment. The officers testified that after his arrest

Rankin was advised of his constitutional rights and then

told them that he carried the gun for protection.

One of the police searched the area in which Rankin had

sharply reduced the speed of his car and returned with a

paper sack containing packets holding 3.6 ounces of a sub-

stance later found to be heroin.

4a

On his own behalf, Rankin claimed that he had left his

home about midnight on August 16th to go to a party at

Douglas’ home but remained there only fifteen minutes

because it “wasn’t any hip.” When he left, he became

aware he was being followed and increased the speed of

his car accordingly. He testified that after being stopped

he was “jerked” from his car by men dressed in civilian

clothing and told he was under arrest for possession of

narcotics. He denied having a knife in his hand, claiming

that it was under the passenger seat of the car, and that

the revolver was removed from a locked glove compart-

ment.

On cross-examination, Rankin denied ownership of the

knife, the gun, the automobile he was driving, and asserted

he had never seen the heroin before.it was brought back

by the police. He admitted he knew of two of the arresting

officers from earlier contacts with them as policemen and

that he had been convicted of a state or federal offense.

To contradict the assignment of error, the appellee ar-

gues that the police upon the facts in the case lacked prob-

able cause to arrest him principally because they did not

know that the heroin was in fact at Douglas’ home; that

there were no exigent circumstances tustifying the warrant-

less search of the car he had been operating and that the

illegality of the arrest and subsequent search invalidated

the seizures of the evidence.

Our examination of the record convinces us that the in-

formation supplied the police meets the test for sufficiency

to establish probable cause to arrest without a warrant.

That test is set forth in State v. Timson (1974), 38 Ohio

St. 2d 122, the first syllabus of which in pertinent part is:

“*... To have probable cause, the arresting officer must

have sufficient information derived from a reasonably

trustworthy source to warrant a prudent man in be-

5a

lieving that a felony has been committed and that it

has been committed by the accused .. .”

When the testimony adduced upon the hearing of the

motion to suppress is assessed in ifs entirety it is manifest

that vastly more than mere suspicion motivated the police

to make the arrest and that they acted as reasonable, pru-

dent and experienced officers.

Similarly, we believe that the totality of the circum-

stances revealed in the record justify the conclusion that

exigencies existed which necessitated the search incident to

the arrest. When it is given that police observed the appel-

lee act as they testified be did, some of which actions are

admitted by him, the search of the car and the area within

the immediate control of the appellee was justified to

prevent the possible destruction or spiriting away of evi-

dence. See Chambers v. Maroney (1970), 399 U.S. 42;

Chimel v. California (1969) , 395 U.S. 752; United States

v. Robinson (1973), 414 US. 218.

With respect to the heroin recovered by the arresting

officers, the record justified its seizure either on the theory

that it was in the plain view of the police having been

found on the sidewalk adjacent to the street upon which

Rankin’s vehicle had been stopped or because it was aban-

doned property in which Rankin disclaimed ever having

had any possessory right or interest. Clearly, there could

be nothing unlawful in the officers’ appropriation of the

heroin if it was in fact abandoned, a conclusion we believe

in the case sub judice to be inescapable. See State v.

Brown, No. C-74256 (ist Dist., July 21, 1975) citing

United States v. Colbert (5th Cir. 1973) , 474 F.2d 174 and

Abel v. United States (1960) , 362 U.S. 217.

We find that where, as here, evidence of probative value

establishes that a warrantless arrest was made by police

upon information from a reasonably trustworthy. source

6a

verified by their independent investigation and that a war-

rantless search of an area of an automobile being driven by

the person arrested immediately before his apprehension,

that area being accessible to him, resulted in the recovery of

a knife from that person’s hand, a loaded, operable revolver

from the area searched and heroin either in plain view or

constituting abandoned property, a court errs in granting

a motion to suppress that evidence so seized.

Resultantly, we find the assignment of error to be well

taken.

The order of the Court of Common Pleas of Hamilton

County granting the motions of the defendant-appellee,

William Theodore Rankin to suppress the evidence is

reversed and this cause is remanded for further proceedings

according to law. .

It is further Ordered that a mandate be sent to the Court

of Common Pleas of Hamilton County, Ohio, for execution

upon this judgment.

Costs to be taxed in compliance with Rule 24, Appellate

Rules.

And the Court being of the opinion that there were rea-

sonable grounds for this appeal, allows no penalty.

It is further Ordered that a certified copy of this Memo-

randum Decision and Judgment shall constitute the man-

date pursuant to App. R. 27.

To all of which the appellee, by his counsel, excepts.

SHANNON, P. J., BETTMAN and CASTLE, JJ.