City of Cleveland v. Persaud, No. 2013 TRC 042481.

CourtCourt of Common Pleas of Ohio
Citation6 N.E.3d 701
Decision Date10 February 2014
PartiesCITY OF CLEVELAND, Plaintiff v. Manikchand PERSAUD, Defendant.
Docket NumberNo. 2013 TRC 042481.

6 N.E.3d 701

CITY OF CLEVELAND, Plaintiff
v.
Manikchand PERSAUD, Defendant.

No. 2013 TRC 042481.

Cleveland Municipal Court, Ohio.

Feb. 10, 2014.


[6 N.E.3d 704]


Asst. City Prosecutor Bridget Hopp, for plaintiff.

Atty. Thomas Perotti, for defendant.


OPINION

JUDGE EMANUELLA GROVES.

The defendant has challenged the authority of an Ohio State Highway Patrol (OSHP) trooper to enforce violations of the Ohio Revised Code on private property.

Both the City of Cleveland and defendant stipulated to the facts leading up to the defendant's arrest. The defendant backed into a dumpster at the BP gas station located at 10202 Lorain Avenue, Cleveland, Ohio. An employee of the gas station alerted a Highway Patrol trooper, who was at the station, of the incident. The trooper investigated and had the Cleveland Police Department contacted. Cleveland Police indicated it would be a lengthy wait because they were busy with other calls. Consequently, the trooper conducted field sobriety tests and eventually arrested and charged the defendant with violations of R.C. 4511.38(A), Care to be exercised in starting and backing of vehicle, and R.C. 4511.19(A)(1), Driving under the influence of alcohol and/or drugs. No Cleveland police officer was involved in the arrest and none responded.

The first issue before this court is whether a defendant can be convicted of violation of R.C. 4511.38(A) on private property. R.C. 4511.38(A) states in pertinent part:

No person shall start a vehicle ... which is stopped, standing, or parked until such movement can be made with reasonable safety.

Before backing, operators of vehicle[s] ... shall give ample warning, and while backing they shall exercise vigilance not to injure person or property on the street or highway.

The defendant was not on the street, but on the property of BP, a private gas station. The statute specifically states where the operation of the vehicle is regulated, i.e. on a street or highway. The application of R.C. 4511.38(A) does not extend to private property. The Eighth District Court of Appeals has held that this law is applicable to backing a motor vehicle on streets and highways, not on private property.1 Since the backing occurred on private property, defendant's argument is well taken. Consequently, the charge for violation of R.C. 4511.38(A) is dismissed. However, the dismissal of the charge does not preclude the defendant's conduct from being considered in regards to violation of R.C. 4511.19(A)(1).


Next, the defendant has argued that the authority of the OSHP does not extend to private property. OSHP is governed by R.C. 5503.02. Specifically, the duties and powers of OSHP, in pertinent part, are:

A. The state highway patrol shall ... enforce on all roads and highways ... the laws relating to the operation and use of vehicles in the highways ... State Highway Patrol troopers shall investigate and report all motor vehicle accidents on

[6 N.E.3d 705]

all roads and highways outside of municipal corporations ... may arrest, without a warrant ... whom superintendent or trooper has reasonable cause to believe is guilty of a felony ...

B. In the event of riot, civil disorder, or insurrection or the reasonable threat of riot, civil disorder or insurrection and upon request, as provided in this section ... the governor may order the state highway patrol to enforce the criminal laws within the area threatened ...

(D)(1) State highway patrol troopers have the same right and power of search and seizures as other peace officers ...

The OSHP was created by the Ohio General Assembly in 1933 to enforce laws pertaining to the licensing and registration of vehicles on highways and protection of highways.2 Since its creation, the duties of the OSHP have remained essentially unchanged.3 It was created to patrol areas not policed by other law enforcement agencies, i.e. municipal, village and township police departments and county sheriff offices.

It appears the legislature intended to limit the authority and arrest power of The Highway Patrol.4 In short, the OSHP is empowered to enforce vehicle and operation related laws on all roads and highways; enforce criminal laws on state property; and render emergency assistance under specific conditions outlined by statute. Other than in the locations and under the circumstances enumerated by statute, the OSHP has no authority. Consequently, the OSHP has no authority to enforce the law or make arrests on private property.5 The defendant's assertion that the trooper had no power to arrest him is valid. The trooper's violation of the statute which governs his powers is not challenged by the City of Cleveland.

Given that the City of Cleveland and defendant agree that the trooper acted outside of the scope of his authority when he arrested the defendant, the issue is what impact this violation has on the criminal charge brought against the defendant. In addressing statutory and/or constitutional violations by the government, the court must determine what relief, if any, is appropriate. The first relief the defendant has requested is to find the trooper incompetent to testify. Pursuant to R.C. 4549.13 and R.C. 4549.15, an officer on duty for the exclusive or main purpose of traffic enforcement must use a marked police car and must wear a distinctive uniform, respectively. Otherwise, the officer is incompetent to testify. 6 Here, the General Assembly sets forth the consequence for a violation of the statute. It is clear that the legislature does not want officers enforcing the traffic laws in plainclothes or in unmarked cars. If the officers do, they are prohibited from testifying. Clearly, a built-in deterrent is in place. The purpose of these requirements is to promote uniformity in traffic enforcement across the state and to prevent speed traps and other similar abuses in the enforcement of traffic laws.7 The defendant has requested that

[6 N.E.3d 706]

this remedy be applied in this case. The problem with the request is that this remedy is not set forth by statute for the circumstances in this case. The General Assembly clearly limits the authority of the OSHP; however, it does not create a specified consequence when it acts beyond its authority. If the General Assembly had intended to render the trooper incompetent to testify, it...

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3 practice notes
  • A.B. v. Sufronko, No. 18CA13
    • United States
    • United States Court of Appeals (Ohio)
    • January 8, 2019
    ...(1982). "Subject-matter jurisdiction" is used when referring to a court's authority to act. Lowery at ¶ 7 ; citing Cleveland v. Persaud , 6 N.E.3d 701, ¶ 16 (Feb. 10, 2014). "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines th......
  • State v. Lowery, Case No. 16CA3533
    • United States
    • United States Court of Appeals (Ohio)
    • November 9, 2016
    ...College Edition (1982), 694. "Subject-matter jurisdiction" is used when referring to a court's authority to act. Cleveland v. Persaud, 6 N.E.3d 701, (Feb. 10, 2014), ¶ 16. "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines the ......
  • State v. Beeler, Case No. 14CA3454
    • United States
    • United States Court of Appeals (Ohio)
    • February 13, 2015
    ...College Edition (1982), 694. "Subject-matter jurisdiction" is used when referring to a court's authority to act. Cleveland v. Persaud, 6 N.E.3d 701, (Feb. 10, 2014), ¶ 16. "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines the ......
3 cases
  • A.B. v. Sufronko, No. 18CA13
    • United States
    • United States Court of Appeals (Ohio)
    • January 8, 2019
    ...(1982). "Subject-matter jurisdiction" is used when referring to a court's authority to act. Lowery at ¶ 7 ; citing Cleveland v. Persaud , 6 N.E.3d 701, ¶ 16 (Feb. 10, 2014). "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines th......
  • State v. Lowery, Case No. 16CA3533
    • United States
    • United States Court of Appeals (Ohio)
    • November 9, 2016
    ...College Edition (1982), 694. "Subject-matter jurisdiction" is used when referring to a court's authority to act. Cleveland v. Persaud, 6 N.E.3d 701, (Feb. 10, 2014), ¶ 16. "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines the ......
  • State v. Beeler, Case No. 14CA3454
    • United States
    • United States Court of Appeals (Ohio)
    • February 13, 2015
    ...College Edition (1982), 694. "Subject-matter jurisdiction" is used when referring to a court's authority to act. Cleveland v. Persaud, 6 N.E.3d 701, (Feb. 10, 2014), ¶ 16. "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines the ......

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