Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cleveland Municipal Court Case No. 2016 CRB
ATTORNEY FOR APPELLANT James R. Willis James R. Willis
Attorney At Law.
ATTORNEYS FOR APPELLEE Barbara A. Langhenry Director of Law
City of Cleveland Kimberly Barnett-Mills Chief City
Prosecutor Jennifer M. Kinsley Assistant City Prosecutor.
BEFORE: Stewart, P.J., S. Gallagher, J., and Jones, J.
JOURNAL ENTRY AND OPINION
J. STEWART, P.J.
After conducting a traffic stop, an Ohio state highway patrol
trooper cited defendant-appellant Samson Primm for the minor
misdemeanor offense of possession of marijuana (he was not
charged with any driving offense). An unstated amount of cash
was also seized (defense counsel told the court that
"they took over $100, 000 from this young man.").
The citation was transferred to the city of Cleveland for
prosecution. Primm filed a motion to suppress the evidence
seized in the traffic stop on grounds that the trooper
conducted an illegal stop based on "profile
considerations." He also sought return of the cash
seized during the traffic stop.
On the day of trial, the city told the court that it wanted
to dismiss the drug charges because it would not have the
laboratory results before the speedy trial time expired.
Primm objected to dismissal and offered to stipulate that the
substance found in his vehicle was marijuana. The court
granted the motion to dismiss over Primm's objections. It
also found Primm's motion to suppress moot.
Primm assigns four errors for review: that the court failed
to conduct an evidentiary hearing on his motion to suppress
evidence; that the court erred by granting the city's
motion to dismiss the prosecution without regard for the
pending motion to suppress evidence; that turning the seized
property over to the federal government did not deny the
court jurisdiction to consider questions related to the
property; and that the court failed to articulate a basis for
The assignments of error are, for the most part, tangential
to a larger issue relating to the seizure of the cash and
Primm's desire to have it returned to him. During a
hearing on the motion to dismiss the citation, the city told
the court that it has never been in possession of the cash -
immediately after the traffic stop the highway patrol gave
the cash directly to the federal government for adoptive
forfeiture under federal law. See R.C.
2981.14(A); see generally Harris v. Mayfield
Hts., 2013-Ohio-2464, 991 N.E.2d 1179 (8th Dist). Primm
told the court that he could get the money back by showing
that the seizure was unlawful for want of probable cause. To
do that, he said that he needed the court to rule on his
motion to suppress evidence. Primm maintained that the ruling
finding his motion to suppress moot hampered his ability to
contest the federal asset forfeiture.
The parties agree that the court dismissed the citation under
Crim.R. 48(A). That rule states: "The state may by leave
of court and in open court file an entry of dismissal of an
indictment, information, or complaint and the prosecution
shall thereupon terminate." The rule embodies two
different exercises of discretion: first, that the
prosecuting attorney has the discretion "to determine
when and which charges should be dropped, " State v.
Jones, 8th Dist. Cuyahoga No. 101311, 2015-Ohio-1818,
¶ 31; second, that the court has the discretion to
decide whether to grant leave to allow dismissal of an
indictment. State v. Jones, 2d Dist. Montgomery No.
22521, 2009-Ohio-1957, ¶ 13. The court's discretion,
however, is limited by the separation of powers - the
decision whether to prosecute, and the decision as to the
charge to be filed, rests in the discretion of the
prosecuting attorney. State ex rel. Master v.
Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180 (1996)
("the decision whether to prosecute is discretionary,
and not generally subject to judicial review"); see
also In re United States, 345 F.3d 450, 454 (7th
Cir.2003) ("[T]he plenary prosecutorial power of the
executive branch safeguards liberty, for, in conjunction with
the plenary legislative power of Congress, it assures that no
one can be convicted of a crime without the concurrence of
all three branches. * * * When a judge assumes the power to
prosecute, the number shrinks to two."). Broadly
interpreting the Crim.R. 48(A) leave-of-court requirement
could be an invitation for the judiciary to exceed its
constitutional role and breach the separation of powers by
intruding upon the plenary prosecution power of the executive
The court thus has a limited ability to second-guess the
government's decisions on whether and what to prosecute.
As stated in the context of the similarly worded portion of
Fed.R.Crim.P. 48(a),  the principal purpose of the
leave-of-court requirement is "to protect a defendant
against prosecutorial harassment, e.g., charging,
dismissing, and recharging, when the Government moves to
dismiss an indictment over the defendant's
objection." Rinaldi v. United States, 434 U.S.
22, 29, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977), fn. 15.
Rinaldi also stated that the court could deny leave
to dismiss an indictment if the dismissal "is prompted
by considerations clearly contrary to the public
interest." Id. But Rinaldi made it
clear that "the salient issue * * * is not whether the
decision to maintain the federal prosecution was made in bad
faith but rather whether the Government's later efforts
to terminate the prosecution were similarly tainted with
impropriety." Id. at 30.
In short, the court should show deference to the
prosecutor's decision to terminate a criminal case, and
because the court has the discretion to grant leave to
dismiss, we must likewise give deference to the court's
decision to grant leave. Nevertheless, the "good
cause" component of Crim.R. 48(A) means that a
prosecuting attorney does not have unbridled authority to
terminate the proceedings. Akron v. Ragsdale, 61
Ohio App.2d 107, 109, 399 N.E.2d 119 (9th Dist.1978). The
Crim.R. 48(A) requirement of "good cause" requires
"more then a cursory recitation that good cause
exists[.]" Lakewood v. Pfeifer, 83 Ohio App.3d
47, 51, 613 N.E.2d 1079 (8th Dist.1992). And even though the
court has discretion to grant leave, there is no exercise of
discretion by rubber-stamping a request for leave.
At this juncture, we must consider the nature of the
dismissal. The city maintains that it dismissed the case with
prejudice, but there is nothing in the record to show that
the court dismissed the citation with prejudice. When an
indictment or citation is dismissed without any indication of
whether the dismissal is with or without prejudice, we
presume the dismissal to be without prejudice. State v.
Miller, 7th Dist. Mahoning No. 07 MA 215,
2008-Ohio-3085, ¶ 43. And more broadly, Crim.R. 48(A)
dismissals are considered to be without prejudice to refiling
charges unless there is a deprivation of a defendant's
constitutional or statutory rights, the violation of which
would, in and of itself, bar further prosecution. State
v. Dixon, 14 Ohio App.3d 396, 397, 471 N.E.2d 864 (8th
Dist.1984); Jones, 2d Dist. Montgomery No. 22521,
2009-Ohio-1957, at ¶ 13.
As good cause supporting its motion to dismiss the citation,
the city told the court that "we do not have the drug
results back from the Ohio state highway patrol lab." It
further stated that there was "one day of speedy trial
time remaining, and we will not have those lab results before
the time of speedy trial is up." While insufficiency of
proof is regarded as good cause to support dismissal of
criminal charges under Crim.R. 48(A), State v.
Sutton,64 Ohio App.2d 105, 107, 411 N.E.2d 818 (9th
Dist.1979), Primm vitiated that cause when he stipulated that
the substance collected from his car was marijuana. ...