In Ohio, the state lost an appeal of whether an illegal search occurred that led to a forfeiture. In the trial court, the state sought relief from the judgment under Rule 60, essentially rearguing the case, because the property sought return of (a vehicle and cash) was not contraband per se. State v. Loza-Gonzalez, 2007 Ohio 1044, 2007 Ohio App. LEXIS 970 (6th Dist. March 9, 2007):<\/p>\n
[*P12] In the state’s second assignment of error, it argues that the trial court exceeded its authority in ordering contraband returned to appellee. Contraband is any property, in and of itself illegal to possess, or property determined to be contraband based on its connection to a criminal offense. See R.C. 2901.01(A)(13)(a)-(k), 2933.43(C). There is nothing inherently illegal in possessing a vehicle or cash. See One 1958 Plymouth Sedan v. Pennsylvania<\/em> (1965), 380 U.S. 693, 699 (“There is nothing even remotely criminal in possessing an automobile.”); State v. Roberts <\/em>(1995), 102 Ohio App.3d 514, 518 (“Mere possession of cash is not unlawful.”). Thus, the property is not contraband per se.<\/p>\n
[*P13] The property is also not derivative contraband because the state failed to demonstrate that the property had any connection to a criminal offense. See e.g. State v. Ali<\/em> (1997), 119 Ohio App.3d 766, 770 (“Because the $ 15,000 was never linked to an underlying criminal offense, we cannot agree that the state proved by a preponderance of the evidence that the money was contraband.”). Furthermore, the Fourth Amendment protections against illegal search and seizure extend to a forfeiture proceeding. See One 1958 Plymouth Sedan,<\/em> 380 U.S. at 696.<\/p>\n
[*P14] The state cannot circuitously use the illegally seized property to establish the underlying criminal act, in order to support forfeiture of the illegally seized property. In this case, the state offered no other evidence (independent of the illegal search) to link the property to a criminal act and support forfeiture. See contra United States v. Eighty-Eight Thousand, Five Hundred Dollars <\/em>(C.A.8, 1982), 671 F.2d 293, 296-297 (upheld forfeiture of cash arising from an illegal search since the state established, through independent evidence, that the cash was used to commit a crime).<\/p>\n
[*P15] Without independent evidence, the state alternatively argues that a vehicle, modified with a hidden storage compartment, is inherently criminal based on the prevalence of such modifications for use in the drug trade. However, the presence of a secret compartment, without more, does not make possession of the vehicle criminal. See e.g. United States v. Maltais<\/em> (C.A.8, 2005), 403 F.3d 550, 554-555 (the secret compartment was just one fact among a “constellation of facts” providing the officer with reasonable, articulable suspicion to detain the driver); People v. Conception<\/em> (1997), 655 N.Y.S.2d 921, 925-926 (the compartment, a recognized car trap which could only be opened by the performance of a complex protocol, could enhance the arresting officer’s “predicate for arrest” where it was “supported by something more than mere guesswork”).<\/p><\/blockquote>\n
Officer taking possession of a child from his parent under a guardianship order was entitled to qualified immunity because it was not clearly established that this action violated the constitution. Burch v. Moore, 2007 U.S. Dist. LEXIS 16832 (S.D. W.Va. March 8, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"
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