[Cite as State v. Ruff,
2012-Ohio-1910.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110250
TRIAL NO. B-1007073
Plaintiff-Appellant, :
vs. : O P I N I O N.
LAMOUR RUFF, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 2, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Roger Kirk, for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} The state of Ohio appeals from the order of the Hamilton County Court
of Common Pleas that suppressed the pretrial identification of defendant-appellee
Lamour Ruff by two eyewitnesses under R.C. 2933.83(C)(1) because the police had not
complied with the requirements for photo lineups set forth in R.C. 2933.83(B).
Whether R.C. 2933.83(C)(1) provides an independent ground for suppressing a pretrial
identification is a matter of first impression in this state. We hold that it does not and,
therefore reverse the judgment of the trial court.
{¶2} On October 26, 2010, the Hamilton County Grand Jury returned an
indictment charging Ruff with two counts of aggravated robbery in violation of
R.C. 2911.01(A)(1), two counts of robbery in violation of R.C. 2911.02(A)(2), one
count of carrying concealed weapons in violation of R.C. 2923.12(A)(2), and having
weapons while under disability in violation of R.C. 2923.13(A)(3). In the bill of
particulars, the state alleged that on or about September 21, 2010, Ruff had
approached Deboragh Evans and Robert Sanders in the parking lot of a hair salon,
placed a firearm against Evans’s head, and demanded their cash and cellular
telephones before fleeing.
{¶3} Both Evans and Sanders identified Ruff as the perpetrator after being
shown photo lineups. The trial court determined, however, that the detective who had
administered the lineups had failed to comply with the requirements for photo lineups
under R.C. 2933.83(B). The court specifically found that the detective had not recorded
(1) all the confidence statements made by the witnesses, (2) the time of the lineups, and
(3) the names of all the subjects who appeared in the lineups. See
R.C. 2933.83(B)(4)(a), (c), and (e). The court further found that the detective had
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OHIO FIRST DISTRICT COURT OF APPEALS
instructed the eyewitnesses to initial—but not sign—their confidence statements. See
R.C. 2933.83(B)(4)(a). The court held that “because the requirements of ORC
2933.83(B) were not complied with, the photo-identification in the above caption case
must be suppressed.”
{¶4} In its single assignment of error, the state essentially argues that
R.C. 2933.83(C)(1) does not provide a ground for suppressing pretrial identifications
independent of the traditional constitutional analysis concerned with unduly suggestive
identification procedures and the reliability of identifications. See Neil v. Biggers, 409
U.S. 188, 196-197,
93 S.Ct. 375,
34 L.Ed.2d 401 (1972), quoting Simmons v. United
States,
390 U.S. 377, 384,
88 S.Ct. 967,
19 L.Ed.2d 1247 (1968); Manson v.
Brathwaite,
432 U.S. 98, 114,
97 N.E.2d 2243,
53 L.Ed.2d 140 (1976). We agree.
{¶5} Effective July 6, 2010, R.C. 2933.83(B) requires any law enforcement
agency or criminal justice entity that conducts live lineups and photo lineups to adopt
specific procedures for conducting the lineups.
The procedures, at a minimum, shall impose the following
requirements:
(1) Unless impracticable, a blind or blinded
administrator shall conduct the live lineup or photo
lineup.
(2) When it is impracticable for a blind administrator to
conduct the live lineup or photo lineup, the
administrator shall state in writing the reason for that
impracticability.
(3) When it is impracticable for either a blind or blinded
administrator to conduct the live lineup or photo
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OHIO FIRST DISTRICT COURT OF APPEALS
lineup, the administrator shall state in writing the
reason for that impracticability.
(4) The administrator conducting the lineup shall make a
written record that includes all of the following
information:
(a) All identification and nonidentification results
obtained during the lineup, signed by the
eyewitnesses, including the eyewitnesses’
confidence statements made immediately at the
time of the identification;
(b) The names of all persons present at the line up;
(c) The date and time of the lineup;
(d) Any eyewitness identification of one or more
fillers in the lineup;
(e) The names of the lineup members and other
relevant identifying information, and the sources
of all photographs or persons used in the lineup.
(5) If the blind administrator is conducting the live
lineup or the photo lineup, the administrator shall
inform the eyewitness that the suspect may or may not
be in the lineup and that the administrator does not
know who the suspect is. Id.
{¶6} R.C. 2933.83(C)(1) provides that evidence of any failure to comply with
this protocol “shall be considered by trial courts in adjudicating motions to suppress
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OHIO FIRST DISTRICT COURT OF APPEALS
eyewitness identification resulting from or related to the lineup.” Ruff relied solely on
this provision in moving to suppress the identification of him by Evans and Sanders.
{¶7} In Kettering v. Hollen, 64 Ohio St.2d 232,
416 N.E.2d 598 (1980), the
Ohio Supreme Court cautioned that the exclusionary rule shall not apply “to statutory
violations falling short of constitutional violations, absent a legislative mandate
requiring the application of the exclusionary rule.”
Id. at 235. We find no such
mandate here. The language of R.C. 2933.83(C)(1)—particularly the phrase “in
adjudicating”—implies that the actual basis for suppression is not rooted in the statute,
but is instead extraneous to it. Accordingly, we hold that R.C. 2933.83(C)(1) does not
provide an independent ground for suppression, and that the trial court erred in relying
solely on the statute in suppressing the identifications.
{¶8} We stress that today, we hold only that noncompliance with
R.C. 2933.83(B) alone is insufficient to warrant suppression. Although discussed at
oral argument before this court, Ruff expressly declined to argue before the trial court
that the photo lineups in this case were, under the Fourteenth Amendment to the
United States Constitution, “so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” State v. Crutchfield, 1st Dist.
No. C-100694, 2011-Ohio-5383, ¶ 26, quoting Biggers,
409 U.S. at 197. See also
Brathwaite,
432 U.S. at 114 (holding that “reliability is the linchpin in determining
the admissibility of identification testimony.”). Thus, we decline to address whether,
under the separation-of-powers doctrine or any other constitutional theory, the
legislature may require courts to consider noncompliance with R.C. 2933.83(B) in
adjudicating a motion to suppress premised on an alleged constitutional violation.
See, e.g., State ex rel. DeBrosse v. Cool,
87 Ohio St.3d 1, 7,
716 N.E.2d 1114 (1999)
(“Courts decide constitutional issues only when absolutely necessary.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The assignment of error is sustained. The judgment of the trial court is
reversed, and this cause is remanded for further proceedings consistent with this
opinion and the law.
Judgment reversed and cause remanded.
H ILDEBRANDT , P.J., and D INKELACKER , J., concur.
Please note:
The court has recorded its own entry this date.
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