Long v. State , 2012 Ohio 5724 ( 2012 )

[Cite as Long v. State, 2012-Ohio-5724.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98348
MARVIN LONG
PLAINTIFF-APPELLANT
vs.
STATE OF OHIO, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-754989
BEFORE: Keough, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEYS FOR APPELLANT
James R. Willis
Myron P. Watson
323 West Lakeside Avenue
Lakeside Place, Suite 420
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Reno J. Oradini, Jr.
Assistant Prosecuting Attorney
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, Marvin Long, appeals from the trial court’s
judgment denying his motion to unseal a search warrant affidavit. Finding
no merit to the appeal, we affirm.
{¶2} On May 6, 2011, members of the Cuyahoga County Sheriff’s
Department and federal Drug Enforcement Administration (“DEA”) agents
executed a search warrant at Long’s home. The warrant was issued by a
common pleas court judge, who ordered the search warrant affidavit sealed in
order to protect the identity of an informant and not compromise the ongoing
police investigation into the criminal activity that was the subject of the
warrant. The DEA agents and sheriff’s deputies seized two handguns, an
undetermined amount of cash, and miscellaneous papers and receipts from
Long’s home.
{¶3} No state or federal indictment, information, or complaint seeking
forfeiture of the seized items was subsequently filed. On May 11, 2011, Long
filed a petition in the common pleas court for return of the property pursuant
to R.C. 2981.03.
{¶4} In June 2011, the court held a hearing regarding Long’s petition.
At the hearing, Long argued that the search warrant was invalid because the
DEA agent who obtained the warrant had no authority to obtain a state
search warrant from a state court judge. The state, on the other hand,
argued that the trial court did not have jurisdiction to consider Long’s
petition because the state never took possession of the seized property, which
was in the possession of the federal authorities. The trial court subsequently
dismissed Long’s petition, finding that it did not have jurisdiction to hear the
matter and that jurisdiction rested with the federal court.
{¶5} On appeal, this court held that the trial court erred in dismissing
Long’s petition. Long v. State, 8th Dist. No. 97044, 2012-Ohio-366 (“Long I”).
This court ruled that there was insufficient evidence in the record to
determine whether state or federal authorities had possession of the seized
property, but regardless of which authority had possession, the trial court had
jurisdiction to consider Long’s petitition. Id. at ¶ 9-10.
{¶6} This court also held that Long’s challenge to the DEA agent’s
authority to obtain the state search warrant was without merit.
Specifically, this court found that the warrant was addressed to both federal
and state entities authorized to execute state search warrants, and that it is
acceptable for state and federal officers to jointly execute a warrant if they
are searching for the same contraband. Id. at ¶ 13. Accordingly, this court
held that the warrant was valid. Id. at ¶ 14. Lastly, this court rejected
Long’s contention that the trial court had not held a prompt hearing on his
petition. Id. at ¶ 17.
{¶7} On remand, the trial court set the matter for another hearing on
Long’s petition. On April 11, 2012, the day of the hearing, Long filed a
motion to unseal the search warrant affidavit.
{¶8} At the hearing, Long again argued that the search warrant was
illegal because the DEA agent who obtained the warrant was not authorized
to obtain a search warrant from a state court unless the warrant was for
property related to a federal crime. Accordingly, Long argued that the trial
court should unseal the warrant affidavit to determine whether the DEA
agent had averred that the authorities were searching for property related to
a federal crime.
{¶9} The trial court advised Long that if he believed the search
warrant was illegal, his remedy was to file a separate, civil rights action
against the government. The court also told Long several times that his
replevin action “[wasn’t] the proper vehicle to do discovery for a potential,
possibly valid civil rights action.”
{¶10} With respect to the seized property, Long admitted that the
money had been returned to him. He also admitted that he had received a
letter from the DEA informing him that the guns were available to be
returned to him; the letter gave him the name and telephone number of the
DEA agent he was to contact to arrange for their return.
{¶11} After the hearing, the trial court issued a judgment denying
Long’s motion to unseal the search warrant affidavit and ordering the federal
authorities to return all property to Long by April 20, 2012.
{¶12} Long appeals from this judgment. In his first assignment of
error, he contends that the trial court abused its discretion and denied him
due process when it denied his motion to unseal the search warrant affidavit.
In his second assignment of error, he contends that the trial court erred by
not articulating its reasons as to why it denied the motion. We consider
these assignments of error together because they are related, and find no
error in the trial court’s ruling.
{¶13} First, there was no need for the trial court to order the affidavit
unsealed. This matter originated with Long’s filing of a petition for return of
seized property pursuant to R.C. 2981.03. Long’s prayer for relief requested
that “this petition be granted and all property seized returned to him on
the[sic] forthwith basis.” All seized monies were returned to Long prior to
the hearing held upon remand, and the trial court ordered that any other
property be returned to him by April 20, 2012. Accordingly, all issues
related to Long’s petition were resolved by the court’s order.
{¶14} Moreover, any argument regarding the validity of the search
warrant was barred by the doctrine of law of the case. The law of the case
doctrine provides that the decision of a reviewing court in a case remains the
law of the case on the legal questions involved for all subsequent proceedings
in the case at both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio
St.3d 1, 3, 462 N.E.2d 410 (1984). Thus, “the doctrine of law of the case
precludes a litigant from attempting to rely on arguments at a retrial that
were fully pursued, or available to be pursued, in a first appeal. New
arguments are subject to issue preclusion, and are barred.” Hubbard ex rel.
Creed v. Sauline, 74 Ohio St.3d 402, 404-405, 1996-Ohio-174, 659 N.E.2d 781.
{¶15} In Long I, this court addressed Long’s argument regarding the
DEA agent’s alleged lack of authority to obtain a state court warrant, and
held that the warrant was valid. Because the issue was decided, Long was
barred on remand from raising and attempting to re-litigate the same issue.
Accordingly, the trial court did not err in denying Long’s motion to unseal the
warrant affidavit.
{¶16} Last, we find Long’s assertion that the trial court erred because
it did not articulate its reasons for denying his motion to unseal the affidavit
to be without merit. Although the court did not set forth reasons for denying
the motion in its judgment entry (which it was not required to do), the record
reflects that the court told Long repeatedly at the hearing that his replevin
action was not the proper venue for such a motion.
{¶17} The first and second assignments of error are therefore
overruled.
{¶18} Affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR