Defense questions constitutionality of GPS use in corrupt activities case WATCH THE VIDEO

Highland County Common Pleas Court Judge Rocky Coss denied several pretrial motions Tuesday in a case regarding a defendant who is facing 74 counts in an engaging in a pattern of corrupt activities case. The defense said the state's alleged use of a GPS to track the defendant is a potential violation of his constitutional rights, but the state denies using a GPS on the defendant's vehicle. 

On Tuesday, Coss heard arguments from defense attorney Daniel O'Brien and Highland County Prosecutor Anneka Collins regarding the individual defense motions and to address other pre-trial issues. 

The defendant, Thomas Peters, of Dayton, is facing 74 counts in the case, and his attorney, O'Brien, filed pre-trial motions on Nov. 10, including a motion to adopt all other pretrial motions, a motion to sever, a motion to dismiss certain charges and a motion to suppress. 

In the motion to suppress, "the illegal use of a GPS device on this defendant's automobile," O'Brien cited a case that is currently pending a ruling by the Supreme Court of Ohio regarding GPS use in criminal investigations. Incidentally, the oral arguments for that case were heard in the Highland County Common Pleas Courtroom during the Supreme Court of Ohio's off-site session in Highland County in October.  

O'Brien asked that the prosecution submit in writing that statements that have been made in court regarding the evidence are truthful, which Coss did not order. 

Peters, along with co-defendant Donna Gillam, is scheduled to stand trial beginning Dec. 19. Co-defendant Stephanie Ford is scheduled to enter into a plea agreement on Nov. 28, Collins told the court. 

Coss noted that the trial is scheduled to take five days to try. Collins said that the state anticipates presenting 31 witnesses, with the potential to call only 28 if the state and defense can stipulate on the chain of custody of evidence. 

Peters, of Dayton, was indicted in August with 10 other defendants in the case, along with real estate and bank accounts, on 173 counts by a grand jury in Highland County Common Pleas Court. The indictment was a result of a continuing investigation into alleged patterns of corrupt activity involving a drug pipeline law enforcement says is responsible for bringing heroin into Highland County via Greenfield. Defendants Tesse Everhart, Jennifer Forsha, Roderick Croy, April Elliot, Frank Parr, Greg Smith and Quentin Binegar have pleaded guilty to charges from the indictment and agreed to testify against the remaining co-defendants. Defendant Bradley Rickman has pleaded guilty but has not agreed to testify, according to his attorney. The overall charges included first-degree felony engaging in a pattern of corrupt activities, possession of drugs, trafficking in drugs, and trafficking in drugs in the vicinity of a juvenile. 

Throughout the hearing, Collins was assisted by Assistant Highland County Prosecutor Molly Bolek, and Det. Sgt. Richard Warner of the Highland County Sheriff's Office. 

Coss said that he anticipates the jury beginning deliberations on the case by Dec. 21, or Dec. 22 at the latest. 

O'Brien said that he was concerned that having a trial so close to Christmas would be prejudicial to his client because jurors may want to hurry though deliberations. Coss told O'Brien that the court had scheduled the trial to accommodate the defense attorney's schedule, and those were the dates that he was available, according to O'Brien's office.

"I don't want it ever to be said that we wanted this case to start on Dec. 19," O'Brien said. "We had time in January, we had time in February, we had time in March." 

Coss told O'Brien, "You've tried to have your cake and eat it, too," noting that since the beginning of the case's proceedings, O'Brien has raised speedy trial issues, initially not wanting to waive time and pushing to try the case quickly. 

"We would have been happy to sign a waiver (to have the trial in 2012) rather than have a gun to the jury's head for Christmas," O'Brien said. "I want to put you on notice that I don't want this to be that we did it because we wanted to do it. Starting on Dec. 19 on a (74-count indictment) is almost unbelievable to me." 

The judge said that O'Brien will learn that he does not run a "leisurely" court, that trials move quickly and that he does not allow the court or the attorneys to "dally." Coss said he is always mindful of the jury's time and that he will caution them that their desire to leave to be with their families during the holidays "is not something that can interfere and enter into their deliberations." 

Because of that, Coss said they may need to start with a larger pool of potential jurors. 

In the motion to suppress, O'Brien said that he was skeptical of the state's assertion that law enforcement, or other persons utilized during the investigation, did not use a GPS device during their investigation of Peters.

"The way I read the discovery ... the government has used non-judicially-authorized GPS (global positioning systems) devices to track some of the people in this case," O'Brien said. "None of the discovery that I have indicates that it was used on this defendant's (Peters) car. Let's just say I'm in a state of disbelief about that. But in any event, the government does not concede that they did use non-judicially-approved GPS devices on cars in this case ... Their theory - at least the majority of their theory - is that they used it to track informants and everybody else except my client, for some reason. Just to be on the safe side, I filed this motion to suppress with the understanding that should it come to pass that the government forgot that they actually used a non-judicially-approved GPS on my client, that I have saved the record that we have filed a motion to suppress under the case that is now pending before the Ohio Supreme Court and the U.S. Supreme Court on whether or not they are legal. To the extent they might not be legal, and to the extent we find out they were used on my client ... then you have a ... problem on how much that permeates the entire indictment in this case, and we will be following up with a motion to dismiss the entire indictment, if in fact I haven't already done (so)."

O'Brien further stated that any information the state - which says it has already disclosed all evidence in the case - "has now, or they should have, that maybe somebody forgot to tell them that they did in fact use a GPS on my client." 

Coss said, "So you're indicating you don't have any evidence from the state to indicate that a GPS device was placed on your client's vehicle?"

O'Brien said that he did not, based on what he has received. 

Collins told the court that the only time a GPS was used in the investigation was when it was placed on a vehicle, "in the controlled possession of an undercover buyer. There was not a GPS placed on anyone else's vehicle," and that the device was being used for the alleged buyer's "own safety. Mr. Peters never had a GPS on his vehicle, nor did anyone else in the entire case." 

O'Brien said that he "accepts what they are saying, right now, that is their theory of the thing ..." 

"That is the truth, your honor," Collins said. 

O'Brien said that the prosecutor could not make that statement "because she is relying on the accuracy of the information that has been given to her by other people. So it's hearsay as it comes to the court .... I say it's unconstitutional, and we shall see what happens. I wouldn't mind an admonition to the government. They are so sure (GPS tracking of his client) didn't exist, maybe they could ask the people they were relying on to double-check their records to make sure we don't find out post-trial that there was something, and maybe it should have been put on the table before the trial."

Coss said that he assumes the state has checked and already made such disclosures because if they have not, they could face a mistrial. Saying that there was no evidence that a GPS was used on a vehicle belonging to Peters, Coss denied the motion to suppress. 

Later during the hearing, O'Brien said, "This GPS thing is going to be an interesting issue here, and the government has made some representations to the court, and we just ask for a written certification, by them, that what they have represented is in fact what the real state of the record is." 

Coss did not order a written statement. The judge asked Collins if everything in the state's possession had been disclosed. Collins said everything except the pleas and sentencing entries on the former co-defendants, which she was waiting to file after Ford's Nov. 28 hearing, which Coss said were already a matter of public record. Collins said there were no written statements from former or current co-defendants, but there was one audio recording taken by law enforcement of one of the former co-defendants.   

Regarding the motion to adopt all pre-trial motions, O'Brien told the court that the reason for the motion was because he was uncertain "what was going on" with other co-defendants, and in the event there were any issues with statements made by any of the remaining defendants, as well as to "reinforce" his client's request "for any and all information of any kind," on "any possible defense, including the defense of entrapment. I hope I haven't left anything out. It's as broad as it can possibly be." 

Coss said, "That's the problem. You can't be broad. If you want me to rule on something, I need to know what it is you're asking for. That's why I asked you to specify what this motion refers to."

O'Brien reiterated it was on all pending motions, and Coss said, "You're not hearing me. It's not my job to go look and see what those are. It's your job to tell me what it is that you want to incorporate." 

Coss said that if O'Brien could not be specific on what he wanted identified, the court had to overrule the motion. 

In the state's written response to the motion, Collins asked the court to overrule it, saying that "there is no rule or case law that allows this type of motion. Additionally, a motion should be stated with particularity and specificity; this motion meets neither requirement. Finally, the state is aware of only two other pre-trial motions filed in the co-defendants' cases: a motion to sever and a motion to withdraw as counsel. The motion to sever is separately addressed by defendant, and the state has no objection should defense counsel wish to withdraw." 

O'Brien said that he did not know what the motions were, and his motion was "meant to cover that eventuality."

"It's to cover what you don't know," Coss said. 

"This motion is used in many jurisdictions that I go to and is filed as a matter of course and is heard, and it means to cover to the extent that the defendant hasn't filed a particular motion, but some other defense counsel has ... and to incorporate it as if it were filed by Mr. Peters himself," O'Brien said.   

Making his ruling, Coss said, "Of course I'm going to deny it because unless I know what it is you're asking for (he can't rule on it)."

O'Brien said, "Your honor, may I be heard?" and Coss responded, "You have," and told him to sit down. 

On the motion to sever, O'Brien said he was concerned about a possible "Bruton" situation. A "Bruton motion" is filed  when the defense seeks to keep co-defendants from making damaging statements about a defendant that might be heard by the jury. 

Coss asked Collins if there were any statements from Gillam or Ford "that would involve any implication of the defendant." Collins said there were not because they have not made any statements. Coss overruled the motion to sever.  

In an additional motion to sever, O'Brien asked that count one, first-degree felony engaging in a pattern of corrupt activities,  be severed from all other counts because it would be prejudicial. 

Collins said that the motion is generic and lacked specificity and case law to support it. Collins said that she didn't think one could prove an engaging in a pattern of corrupt activities charge "without the charges of corrupt activity as outlined in the indictments." 

O'Brien said, "For lack of information on whether or not there are statements (made by other defendants) that do mention my client ..."

Coss said that he wanted to put the Bruton issues "to rest." 

"There are no statements that cause a Bruton problem at this point," Coss said. In the event that such statements exist, the prosecution could not use them, he said, and the state will could possibly face a mistrial or sanctions for excluding evidence, but there is currently no evidence to support that such statements exist but are not being disclosed.

"The only point I am making is that should it come to pass that we find out that is wrong ...," O'Brien said. 

"We already know that," Coss said. "I've already said that. If it should come to pass the court will deal with it, and the state could face sanctions for excluding evidence, or a mistrial or dismissal with prejudice."  

O'Brien said, "We have put the court on notice that just in case it comes up, we have moved to sever." 

Coss said that state law and statutes require that the state prove "predicate offenses of at least two or more (charges)" with the total value of the activity netting more than $500. Coss said that "severance would accomplish nothing" because the evidence of the predicate offenses would still have to be offered in court. Coss overruled the second motion to sever.

In the motion to dismiss 57 of the 74 counts, O'Brien said that the state had not correctly charged Peters with a crime in the indictment, but in the supporting memorandum O'Brien quoted from the bill of particulars filed in the case. 

"The wording of the indictment is defective," O'Brien said. "I don't believe the indictment charges a crime. I would be content to rely on my written motion in that matter. I'm not here to take the state to school. I maintain it doesn't charge a crime to this defendant."

Coss asked if O'Brien was addressing the indictment or the bill of particulars. 

"I'm not interested in the bill of particulars, your honor, I'm interested, respectfully, in the indictment," O'Brien said.  "They haven't charged my client with a crime." 

Coss said that he believed O'Brien was saying that there wasn't enough evidence, and O'Brien said that was not the case. 

"I'm saying (the indictment) doesn't allege a crime against my client," O'Brien said. "

"The language of the indictment?" Coss asked, and O'Brien said, "That is absolutely correct."

Coss said, "Your memorandum says that it should be dismissed because of the bill of particulars. You don't make any statement in your memorandum that the indictment is defective. I've looked at the indictment, and it appears they state all of the essential elements of the offense charged." 

Collins said argued that O'Brien's motion addressed the bill of particulars, "which is not evidence," and that the indictment it states Peters "and" another defendant is named, "and that is the correct way to charge co-defendants in an indictment. Every count of the indictment alleges a crime. The defense motion goes on to state the discovery is not sufficient for the finding of the crime he committed. However, that is a question for the trier of fact at a jury trial or a court trial. It is not a question for a pre-trial motion hearing."

Coss asked that the state file a supplement with the bill of particulars explaining elements, but he overruled the defense motion to dismiss.