
    The State of Ohio v. McClintick.
    I Cite as State v. McClintick (1970), 23 Ohio Misc. 194.]
    (No. 29594
    Decided February 2, 1970.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Falke, prosecuting attorney, and Mr. James A. Brogan, for plaintiff.
    
      Mr. Stanley S. Phillips, for defendant.
   Brenton, J.

On defendant’s motion to dismiss the indictment herein on the grounds of preindictment delay amounting to a denial of due process of law, an evidentiary hearing has been had.

From the records, the facts may be delineated as follows :

1. Officer Ernest R. Robinson, a member of the Dayton Police Department and in cooperation with the Metro Squad comprising the various political subdivisions of Montgomery County, Ohio, was assigned as an undercover agent to investigate the trafficking in narcotics at 3177 Valleywood Drive, Kettering, Ohio.

2. Officer Robinson had the assistance of an informant.

3. Officer Robinson began the investigation at 3177 Valleywood Drive and there became acquainted with the defendant prior to May 27, 1969.

4. Robinson continued the investigation until late in July 1969, at which time the undercover operation at the location was abandoned.

5. Officer Robinson testified that he made a purchase from the defendant of hashish, a narcotic drug, on May 27, 1969.

6. Officer Robinson recorded the various events that occurred at 3177 Valleywood Drive during the course of his investigation.

7. Officer Robinson saw and knew the defendant on other occasions at 3177 Valleywood Drive before and following the date of May 27, 1969.

8. 3177 Valleywood Drive, Kettering, Ohio, was a crash pad, a place to consume narcotics and was frequented by twenty-five to fifty different persons.

9. Officer Robinson became part of the crowd at 3177 Valleywood Drive during the period of his investigation.

10. The informant was in the presence of the defendant and Robinson at the time of the purchase of the hashish.

11. Officer Robinson made purchases of hashish from Sherry Monismith, Gregory Pack, Rick Myers and Carl Hayfield during the period of the investigation.

12. Officer Robinson was able to identify the defendant based on his several contacts with him at the Valleywood Drive address.

13. Robinson stated it was necessary for him to refer to his notes for dates of purchases but not as to the place nor the persons from whom such purchases were made.

14. Defendant lived at 3177 Valleywood Drive with Sherry Monismith during the investigation period.

15. Defendant testified that strangers came to the address on a regular basis, that he had heard the name Robinson mentioned and believed that it was Robinson that he saw at Valleywood Drive.

16. The purchases were turned over to the Kettering Police Department and this Department sent the purchases to the Bureau of Criminal Identification at London, Ohio, for analyzation. The date of the official laboratory report on the analysis in question from B. C. I. is July 14, 1969.

17. Officer Robinson did not arrest defendant on May 27, 1969, because he and the informant had not completed the investigation.

18. The investigation was completed on July 1, 1969.

19. Officer Robinson testified before the Grand Jury of Montgomery County on August 8, 1969.

20. The grand jury returned its indictment on September 10, 3 969, and the defendant was arrested pursuant thereto on September 11, 1969.

21. Officer Robinson stated he could not arrest the defendant on July 1, 1969; because he was still investigating the defendant and his crowd and furthermore the chemical aanlysis of the hashish had not been forthcoming at that time, together with the fact that it was necessary to keep the identity of the informant concealed.

22. Defendant testified that he was unable to recall the day of the alleged offense, May 27,1969, or other events of that date.

The authorities presented by the defendant in support of his proposition of law are, for the most part, federal narcotic cases. He relies primarily on Ross v. U. S., 349 F. 2d 210. That case stands for the proposition that a federal court under its broad supervisory powers over the administration of criminal justice in the federal courts and under the due process clause of the Fifth Amendment of the United States Constitution can set aside an indictment or reverse a conviction where there is a finding that the following facts and circumstances exist, to wit:

1. There is a purposeful delay of seven months between the time of the alleged offense and the arrest.

2. There is a plausible claim of inability to recall or reconstruct events of the day of the offense.

3. There is a trial in which the case against defendant consists of the recollection of one witness refreshed by a notebook.

The court in that case adjudged that the problem was one of accommodating the public interest in effective law enforcement with the accused’s interest in the fairness of the criminal procedures by which the charge against him is determined.

There was a delay of 107 days from the date of the alleged offense to the time of arrest or approximately three and one-half months. Thus, the basic question in this case has to do with the standard to be applied in determining under what circumstances a three-and-one-half-month purposeful delay will preclude prosecution.

The divided court in Ross, supra, based its decision on both its supervisory powers and on the due process clause. Nevertheless, the federal court neatly sidestepped the due process issue by stating at page 216:

“Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction requires, in our view, the reversal of this conviction.”

This court does not attack the Fifth Amendment argument announced in the Ross case, nevertheless, the vigorous dissenting opinion in that case is well reasoned. Judge Danaher stated that a jury should weigh the evidence between the sole prosecuting witness and the defendant, not the court. Furthermore, he indicated that it is almost improbable, if not impossible, to efficiently resolve between society’s need for eliminating the evils of narcotics and defendant’s right to defend himself.

To decide the basic question, the operative elements must be considered. These are, the length of the purposeful delay, the basis of the identification of the defendant and the claimed effect of the delay in rebutting the identification; that is, the resulting prejudice.

In Ross, supra, the agent identified Ross by photograph a short time after the purchase. The purposeful delay was seven months. Without a purposeful delay and a Ross type identification, the narcotics defendant would be required to show substantial and specific prejudice. U. S. v. Ewell, 383 U. S. 116, Thus it would appear the shorter the period of delay or the better the method of identification the greater the prejudice which must be shown by the defendant. Roy v. U. S., 356 F. 2d 785. Worthy v. U. S., 352 F. 2d 718. Jackson v. U. S., 351 F. 2d 821. Bey v. U. S., 350 F. 2d 467.

It would therefore appear that when the executive branch of government, through its law enforcement officers, reduces the period of purposeful delay, society has contributed to the balancing of interests; the more it sacrifices, the greater must be the defendant’s prejudice as a result of what purposeful delay there is to prevent prosecution.

The special facts and circumstances in this case indicate that the one-hundred-and-seven-day delay was for a necessary public purpose, that is, combatting the trafficking in illegal narcotics. The state has shown that it has been as diligent as possible in making the arrest of the defendant in serving the public welfare. In this type of police work some delay is inevitable and where it is warranted it is not unreasonable.

This is not a one-shot purchase, as in Ross, and identification by photograph thereafter. The basis of Robinson’s identification is reasonable and competent and can in no way whatsoever prejudice the defendant.

Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights; but not necessarily judicial proceedings; it may include summary proceedings if not arbitrary or unequal.

Due process of law in the Fourteenth Amendment refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state exerted within the limits of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions. It implies conformity with the natural and inherent principles of justice and requires that no one shall be condemned in person or property without opportunity to be heard, The proceedings must be appropriate to the case and just to the parties affected and pursued in the ordinary manner and adapted to the end to be attained with opportunity to be heard, when necessary, for the just protection of rights.

The internal and subjective elements acquired and inferred from the facts support the purpose and motive of the law enforcement officers. Furthermore, the external and objective elements acquired and inferred do not support the grounds and arguments of the defendant.

In other words, the state has sustained its burden, showing that the three-and-a-half-month delay was a result of a valid police purpose which outweighs and overbalances the possible prejudice by the delay to defendant in recalling the events of May 27, 1969.

By reason of the foregoing, then, defendant’s motion to dismiss the indictment is overruled.

Motion overruled.  