The Akron Legal News

Motorist wins appeal as search for gun ruled illegal

ANNIE YAMSON
Special to the Legal News
Published: June 11, 2015

The judgment of the Summit County Court of Common Pleas was reversed recently in the case of Dmitri Prince, who was indicted for violating concealed carry laws.

A panel of three judges in the 9th District Court of Appeals determined that the trial court failed to address specific issues during a hearing before granting Prince’s motion to suppress evidence discovered during a traffic stop.

The appeal came from the state, which argued that the Summit County court erred when it granted Prince’s motion to suppress because the circumstances surrounding the traffic stop provided police with reasonable suspicion authorizing the search of Prince’s vehicle.

Case summary states that, around 10 p.m. on Dec. 29, 2013, police began to follow a car driven by Prince.

When Prince failed to use a turn signal before making a left turn, he was pulled over.

Two officers approached the vehicle, Andrew Moss and Michael DiFrancesco.

Court documents states that, as Moss approached the driver’s side, he saw Prince reach down toward his legs in what Moss described as a “furtive” movement.

Prince showed Moss his driver’s license and proof of insurance and Moss asked if he had anything illegal on him.

Prince responded in the negative and Moss then asked if it would be okay for him check.

According to Moss and DiFrancesco, Prince agreed to a pat down and to a search of his vehicle.

According to Prince, he only agreed to a pat down search and did not consent to the search of his car.

Nevertheless, the police proceeded to conduct “multiple searches” of the car and eventually found a hand gun under the driver’s seat.

Prince was subsequently arrested and indicted on one count of carrying a concealed weapon, one count of improperly handling a firearm in a motor vehicle and one count of failing to use his turn signal.

In a motion to suppress the evidence, Prince asserted that the police lacked reasonable suspicion or probable cause to detain him and search his vehicle and he stated that he never consented to a search of the car.

The trial court held a hearing on the motion during which the state argued that the furtive movement and the circumstances of the stop warranted the search.

In any case, the state held that Prince consented to the search.

Prince claimed the furtive movement was not a strong enough basis on which to rest reasonable suspicion and even if he did consent to a search, he revoked that consent while the search of his car was occurring.

The trial court concluded the officers did not have reasonable suspicion and it ruled that Prince’s detention was illegal. It granted the motion to suppress.

The state appealed the decision to the 9th District court, which held that, while it could not resolve any of the issues, it could remand the case for the trial court to do so.

“Two of the primary issues before the court were whether the furtive movements of Mr. Prince and the surrounding circumstances provided the police with reasonable suspicion authorizing the search of the vehicle, and, if not, whether Mr. Prince consented to the search of the vehicle,” Judge Carla Moore wrote on behalf of the court of appeals.

Moore held that, unfortunately, the trial court did not directly address either issue.

“Instead, the trial court appears to have concluded that the basis for detaining Mr. Prince had terminated prior to Officer Moss conducting the search of the vehicle,” Moore wrote. “The trial court failed to make factual findings that would support its conclusion that the continued detention was illegal.”

The appellate panel cited 1978’s State v. Smith, which gave police the right to conduct limited searches if, while approaching a motor vehicle during a traffic stop, they see the driver “furtively conceal something under the front seat.”

“If the search was authorized under (State v.) Smith, it would be unnecessary to determine whether Mr. Prince consented,” Moore wrote.

But, according to the record, the trial court did not make any reference to the Smith case and did not analyze any other relevant factors when it determined that reasonable suspicion did not exist.

“The trial court’s entry in this matter makes it difficult for this court, as a reviewing court, to perform its function,” Moore wrote. “In light of the fact that the trial court failed to resolve the issues specifically raised at the suppression hearing, we reverse its judgment so that it can consider the issues in the first place.”

Moore directed the Summit County court to consider State v. Smith but also noted that the case was subject to “unique circumstances” and gave the lower court permission to collect additional evidence or testimony if determines that it is necessary.

“The state’s assignment of error is sustained,” Moore concluded.

Presiding Judge Jennifer Hensal and Judge Donna Carr concurred.

The case is cited State v. Prince, 2015-Ohio-1923.

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