
    The State of Ohio v. Suchy.
    
      (No. 33599
    Decided December 23, 1971.)
    Common Pleas Court of Montgomery County.
    
      Mr. Leonard Zdar-a, assistant prosecutor,-.for plaintiff.
    
      Mr. Herman. Arno vits, for defendant.
   Hice, J.

The captioned cause came on to be heard upon: 1. The defendant’s plea in abatement to the indictment; 2. The defendant’s motion for an order of the court quashing the indictment charging him with unlawfully dispensing or administering a hallucinogen (marijuana) to a minor under the age of 18; and 3. ' The defendant’s motion for an. order .of the court suppressing all evidence on the grounds of an illegal arrest, an illegal search of the defendant and his automobile, entrapment of the defendant and the further fact that the inf ormant-agent' to whom the sale is alleged to have been made is á minor of 14 years.

In addition, motions were filed seeking to have the court order the prosecution, to furnish counsel for the defendant with the. name, age.and address of the informant-agent as well as with a copy of the written authorization from the informant’s, parents granting permission to the authorities to use him as such an informant. - Since the prosecution has, voluntarily, furnished the defendant with the requested information, this latter motion is rendered moot and will not be considered in this opinion. ... ,

After consideration of all the legal authorities cited- and. the. testimony adduced at .a hearing on the above motions, the cqurt is, of the opinion that, said motions are not well taken and are,, therefore, ovekrtjled in their, entirety.

A. .The Facts

. Montgquiery CoRP-ty sheriff’s depqty, wap notified by a fourteen-year-old informant, whose mother had previously given the deputy permission to use him as an informant with regard to certain illegal' narcotics traffic at or around his school, that he (the informant) had been approached by the defendant and asked' if he wanted to buy some drugs (marijuana) for $15.00. Allegedly, the informant, who had been approached before by this deputy and asked for help in máking purchases in this area of the city, told the defendant that he would make the purchase. The defendant said he had to get the “stuff” arid would meet him at the rear of the Side Door Lounge at .12:30 a. m. The informant, soon to be an agent, passed this information along to the deputy, together with the’name of the defendant, the make of his car and the location wheré t'he “buy” was to take place. The deputy instructed the juvenile-agent as to what to do, gave him $15.00' (after first recording the serial numbers ori the currency) and sat back to watch the transaction.

A few minutes later, the defendant walked out of the Side Door Lounge (the juvenile-agent having called to someone in the parking lot to go inside and' ask' the defendant to step outside), walked up to the juvenile-agent, engaged him in conversation, turned and walked to his gray Gremlin (the same, color aid make of car that the jrivenile-agent had advised the deputy the defendant would be driving), unlocked it, opened the passenger door, opened the glove compartment, took something out and walked with it to where the juvenile-agent was standing'. The defendant handed what appeared to "be a rolled plastic bag to the juvenile, who handed the’ defendant what appeared to be the currency that he had been given by the deputy. At this point, the deputy sprang upon the‘scene, from his vantage point, across a floodlit’ parking lot. The juvenile-agent dropped the rolled plastic bag rind ran. The députy picked the plastic bag up froth the ground and observed a greenish-appearing vegetation. Since it appeared' to be marijuana, the deputy placed the defendant under arrest and searched hiiri, finding'. in' his right front pocket another rolled plastic bag with the same greenish végetátion. Immediately following the arrest, the deputy told'thA defendant that he would like to search his automobile, that he had a right to refuse the search, and that if he refused, the deputy could and would get a search warrant to search the vehicle. The defendant said “You might as well search” the ear. The defendant opened the passenger door -and unlocked the glove compartment where the deputy found another plastic bag of greenish-appearing vegetation. A loaded weapon was also found in the automobile.

Following the defendant’s indictment on a charge of unlawfully dispensing or administering an hallucinogen in violation of E. C. 3719.44(E), the defendant, through counsel, filed the above mentioned pleas and motions. Other than the allegations of entrapment, illegal arrest and search and seizure, the main thrust of the defendant’s argument seems to be that E. C. 3719.44(C) forbids the use of a minor (a juvenile-agent) in the manner in which the minor was used in the instant case.

B. The Issues

1. Does E. C. 3719.44(C) preclude or prohibit law enforcement agencies from using a minor as an agent in the buying of narcotics from a seller of narcotics! If so, the defendant’s pleas and motions directed against the indictment are well taken. If not,

2. Do the facts of the instant case constitute entrapment of the defendant as a matter of law so as to be an absolute defense to the indictment? If so, the defendant’s motions to dismiss are well taken. If not,

3. Was there, in the instant case, an illegal arrest, an illegal search and seizure of the person of the defendant and his automobile such as would render the evidence suppressible upon motion?

C.- The Decision Discussed

1. E. C. 3719.44(C) does not prohibit or preclude the use of a minor in situations such as exist in the present case.

E. C. 3719.44(C) states, in that part pertinent to the case at bar, as follows:

“No person shall:
“(C) * # or induce or attempt to induce a minor to violate any of the provisions of E. C. 3719.40 through 3719.49 inclusive * • V ”

R. C. 3719.41 prohibits the posséssion, purchase, use or having under one’s control, an hallucinogen (the definition of which includes marijuana) with the intent to produce hallucinations or illusions.

It is the defendant’s contention that the sheriff’s department’s use of the minor in this case is violative of R. C. 3719.44(C) in that the department, by using the minor as an agent to purchase narcotics from the defendant, is inducing the minor to violate the above section (R. C. 3719.41) which forbids the possession, purchase, use or having under one’s control an hallucinogen such as marijuana.

The above contention is simply not well founded. It is crystal dear that the minor has, in the instant case, neither been induced to violate R. C. 3719.41 nor violated that section at all. It is undisputed that the minor was purchasing thé marijuana as an agent of the police in order to aid the police in apprehending and prosecuting a seller of thfe drug. R. C. 3719.41 prohibits not the mere possession or purchase alone, but the possession, purchase, et cetera with the Intent to peoduce hallucinations ob illusions. It is clear in the instant case that no such intent was present. The intent in the possession or purchase of the hallucinogen was to aid the law enforcement officer, not the criminal intent of producing hallucinations or illusions. Thus, the criminal intent required fot one to come within the meaning of R. C. 3719.41 was lacking.

Thus, since it is clear that the minor could not have violated R. C. 3719.41, it is equally cleár that the sheriff’s deputy could not have violated provisions of R. C. 3719.44 (C) which prohibit oné from inducing or attempting to induce á minor to viólate, among other sections, R. C. 3719.41 —that provision of law prohibiting the purchase or possession of an hallucinogen witli ih® intention to produce hallucinations or illusions. See, also, State v. Lightfoot (1956), 77 Ohio Law Abs. 257, a case from our own Second District Court of Appeals, which held, ínter alia:

“A person who, by prior arrangement with a law en> forcemeat agénéy, honestly and in good faith, carries out the instructions of shcb agency, and acts solely for the purpose of enforcing the law and assisting the law enforce-nien-t- agency in the apprehension of dealers in narcotics, has no criminal interest, i. e., no intention of violating the. law regulating'.narcotics and;is not guilty of any crime in. connection with such acts. * * *”. .

. The. court’s-holding today applies to the use of juveniles, as well as adults., As discussed above, a person-(juvenile or adult) who-purchases■ or possesses an hallucinogen under the direction of the law enforcement, officer, as an aid .in the apprehension and prosecution of a dealer or seller, violates no narcotics law, since the requisite criminal intent is lacking. The court can conceive of no reason, statutory, moral or otherwise, why a juvenile should not be used- in a. manner such as the juvenile-agent was used in the'case at bar. In the court’s opinion, the only restrictions on such use would .be that the law enforcement agency owes a. duty. to.the juvenile to take all reasonable precautions for his safety. This was done, in the instant case. In today’s society when the evil spectre of the - drug traffic has. spread across all class, social,-racial-and economic lines, when even our youngest school-age children are.subjected to the temptations and dangers of drugs.of- all types, it -is inconceivable, that our law enforcement agencies should be deprived, by legislation or court decision, of the invaluable assistance of the-juvenile-agent. It is essential, if the .drug traffic among our younger, school-age- population is ever,-to be controlled and stopp.ed,-that.our -law enforcement agencies be able; to. use. young'people, sueh as might be expected to participate in the drug traffic, as- either sellers or- buyer-users, to infiltrate the ranks of. the. drug, sellers- and to serve as. informers, or even, as police agents to make prearranged, purchases .-pf. the-drug., itself. There is-no law, statutory or-court rpade,. preventing this use. _ . . ...

The defendant.cites) in-.support of his contention that a-.ju-yenile cannot be used. in. the; manner in which-he was us.e.d-.ih the-, case at .bar-,-the case', of In re Baker (1969), 18 Ohio App. 2d 276, which held,-.in pertinent part, as follows-.-

“Drool of. possession,.use, or control by a juvenile- of amhalluci-nogen is sufficient evidence-upon which a. juvenile co'tirt ■ can. find- such- juvenile- a delinquent under E-. G. Chapter 2161.-” . - • . .

However, in line with our reasoning above, the court holds that the juvenile’s possession, use or control, such as to subject him to being declared a delinquent, must be done with the requisite criminal intent. A juvenile who aids the police in the manner of the instant case commits no crime and cannot be adjudged a delinquent. By the same reasoning, the police officer who works in concert with the minor under such facts cannot be guilty of the offense of contributing to the delinquency of said minor.

This decision or case must, by the nature of its factual situation, be of limited scope — -applying to and sanctioning the use of a juvenile-agent of the law enforcement agency to purchase or possess an hallucinogen, as an aid in the apprehension and prosecution of the seller of the hallucinogen itself. As has been seen, the use of a juvenile by the law enforcement officer in such a situation is not a crime and, by purchasing or possessing the hallucinogen under the direction of the police, the juvenile himself commits no crime.

What of a situation (not relevant to the facts at bar) where, by pre-arrangement with the law officer, the juvenile takes a more active role than a purchase or possession of the hallucinogen and actually transports, carries, dispenses, produces or manufactures the hallucinogen? In such a situation, does the juvenile commit a crime and does the law officer commit a crime by violating R. C. 3719.44(C) ? The following observations are dicta only — not needed for resolution of the instant case, yet made as an indication of the court’s feelings on the matter and as an aid to the reáolution of further questions in this area. •

The pertinent portion of R. 0. 3-719;44(C), applicable to the above query, is:

“No person shall:
“(C) * * employ, induce or use a minor to unlawfully transport, carry, dispense, produce or manufacture any hallucinogen * * * or induce or attempt to induce a minor to use any hallucinogen escept in accordance with a prescription issued by a physician.’ ” (Emphasis added.)

In the court’s opinion, the key word in the above-quoted language is “unlawfully.” Using the same reasoning as above, the court feels that a person who, at the direction of a law enforcement officer, as an aid in law enforcement, transports, carries, dispenses, produces or manufactures an hallucinogen, does not do so unlawfully, violates no criminal law and subjects the law enforcement officer who elicited the cooperation of the agent to no criminal penalty under B.. C. 3719.44(C). Once again, the language of State v. Lightfoot, supra, is pertinent:

“A person who, by prior arrangement with a law enforcement agency, honestly and in good faith, carries out the instructions of such agency, and acts solely for the purpose of enforcing the law and assisting the law enforcement agency in the apprehension of dealers in narcotics, has no criminal interest, i. e., no intention of violating the law regulating narcotics and is not guilty of any crime in connection with such acts. * * *”

Once again, and for the same reasons as above, the court sees no reason, statutory or otherwise, to prevent the use of juveniles as agents in the more active role of transporting, carrying, dispensing, producing or manufacturing of hallucinogens, so long as such acts are not done “unlawfully” or with the intention of violating the law regulating narcotics.

2. There is no entrapment in the ease at bar.

The facts of the instant case, as brought out in the hearing, do not constitute entrapment. Entrapment, as that word is used in the consideration of defenses to criminal prosecution, is improper inducement to, commit a crime. The gist of the entrapment is that the entrapper instigated the offense and then ipvited the accused to commit it for the purposes of prosecution. Where the criminal intent originated in the mind óf the entrapper and the accused is lured into the compulsion of the offense in order to prosecute him therefor, no conviction may be had. If the criminal intent originates in the mind óf the accused, and the criminal offense is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. If an officer of the law has reasonable ground for suspicion that a violation of law is being perpetrated, it is not entrapment for the officer to place himself in a position to apprehend those participating in the criminal conduct, and he may use inducement and set traps to apprehend them. In short, the defense of entrapment is available to an accused only where he has been induced or lured, for the purpose of prosecution, into the commission of a crime which he otherwise had no intention of committing. See 15 Ohio Jurisprudence 2d, Criminal Law, Section 325, Entrapment.

In the case at bar, it is clear that the original criminal intent (the sale of the hallucinogen, marijuana) originated in the mind of the accused. It is undisputed (the defendant not having taken the stand during the motion hearing to testify to the contrary) that the entire chain of events was initiated by the defendant’s asking the juvenile-agent (as he had done before) if he wanted to buy some drugs. The mere fact that the police and the juvenile, working together, aided the defendant in bringing the crime to completion, does not shift the criminal intent from the accused to the accuser. Under the undisputed facts as developed at the hearing upon the motion, no entrapment exists.

3. There was no illegal arrest or search and seizure of the defendant’s person or automobile in the instant case so as to render the evidence suppressible upon motion.

a. The arrest was legal and any search of the defendant’s person was legal as incident to a lawful arrest.

In the instant case, the sheriff’s deputy received word from a juvenile informant, whom he had known for some time and whom he believed to be reliable, that he (the informant) had been approached by the defendant and asked if he wanted to buy some drugs. The juvenile gave the deputy the name of the defendant, the model, make and color of the defendant’s automobile and the location of the prospective sale. Minutes later, the deputy was able to observe the defendant meet the juvenile at the locale in question, go to the same car as described by the juvenile, unlock the car and the glove compartment, take something from within, walk to the juvenile and hand him something in a rolled plastic bag and take money from the juvenile-agent. The deputy, in viewing the entire transaction, was certainly warranted (had probable cause), when he later picked up the rolled plastic bag which had been dropped by the juvenile-agent and which contained a greenish vegetation which appeared to be marijuana, in believing that a felony had taken place. Any arrest at this time was a hrwful one and any search of the defendant’s person was incident to a lawful arrest, and the evidence gained thereby is admissible.

b. The search of the defendant’s automobile was done with the defendant’s consent and was thus lawful.

The evidence is undisputed (the defendant not having taken the stand to dispute- the deputy’s allegations) that the defendant, when asked by the deputy if he could search his automobile and when told by the deputy that a warrant could be obtained if permission was refused, voluntarily consented to the search of his automobile. Indeed, the evidence is that the defendant even participated in the search to the extent of opening the door and unlocking the glove compartment.

WhebeeoRe, the court, upon due consideration, overrules all of the defendant’s pleas and motions and holds, inter alia, that a juvenile may, under the direction of law ■enforcement authorities, aid in the apprehension and prosecution of dealers in hallucinogens by acting as agents in the buying or purchasing of hallucinogens from the dealer-seller and, in so doing, neither the juvenile nor the law enforcement officer violates any law.

Motions overruled.  