IN THE SUPREME COURT OF OHIO

TED A. WARREN

Appellant

vs.

PUBLIC UTILITIES COMMISSION OFOHIO

Appellee.

))))))))))

CASE NO. 14-1238

%

i.%

On appeal from the Public UtilitiesCommission of Ohio, Case No.:12-2100-TR-CVF, In the Matter of TedA. Warren, Notice ofApparent Violationand Intention to Assess Forfeiture

APPELLANT, TED A. WARREN'S MERI'I'S BRIEF

MICHAEL DEWINE, ESQ. (0009181)Attorney General of Ohio

WILLIAM L. WRIGHT, ESQ. (0018010)Section Chief, Public Utilities SectionAttorney General of Ohio

BRENT L. ENGLISHLAW OFFICES OF BRENT L. ENGLISH820 West Superior Avenue, 9th FloorCleveland, Ohio 44113-1818(216) 781-9917(216) 781-8113 (fax)E-mail: ben lg ish(aenglish1aw.comSup. Ct. Reg. 0022678Attorney for Appellant, Ted A. Warren

RYAN P. O'ROURKE, ESQ. (0082651)JOHN H. JONES, ESQ. (0051913)Assistant Attorneys GeneralPublic Utilities Section180 East Broad Street, 6th FloorColumbus, Ohio 43215-3793(614) 466-4397(614) 644-8764 (Fax)r-y an.orourke( pstate. oh.usol n.°or^e ')1?^^^ostate.ol^.^^s

Attorneys for Appellee, Public Utilities Commission of Ohio

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. ....................................................................................... iii

STATEMENT OF THE CASE ........................................................................................................1

STATEMENT OF THE FACTS .....................................................................................................4

ARGUMENT .................................................................................................................................15

Proposition of Law No. 1: EVIDENCE SEIZED BY A LAW ENFORCEMENTOFFICER FROM A MOTOR VEHICLE IS INADMISSIBLE UNLESS THE OFFICERHAD PROBABLE CAUSE TO BELIEVE THAT AN OBJECT IN THE VEHICLE ORITS OCCUPANNT WAS SUBJECT TO SEIZURE ........................................................15

Proposition of Law No. 2: PUCO HAS THE BURDEN TO SHOW THAT MR.WARREN WAS SUBJECT TO PUCO'S RULES AT THE TIME OF THE CLAIMEDVIOLATION AND FAILURE TO MEET THIS BURDEN IS FATAL TO THECASE ...............................................................................................:.................................20

Proposition of Law No. 3: THE STAFF HAD THE BURDEN TO PROVE WITHCOMPETENT, CREDIBLE EVIDENCE THAT MR. WARREN VIOLATED THEFEDERAL MOTOR CARRIER SAFETY REGULATIONS AND THE RELEVANTPUCO RULE BY POSSESSING MARIJUANA ..............................................................22

Proposition of Law No. 4: THE DOCTRINE OF SPOILIATION APPLIES WHERETHE ADVERSXE PARTY FAILS TO PRESERVE EVIDENCE IT KNOWS WILL BERELEVANT IN SUBSEQUENT LEGAL PROCEEDINGS ...........................................24

Proposition of Law No. 5: PUCO ERRED WHEN IT IMPOSES A CIVILFORFEITURE IN RETALIATION FOR A PARTY ASSERTING HIS RIGHTS TOCONTEST A PURPORTED VIOLATION OF ITS TRANSPORTION RULES ............26

CONCLUSION ..............................................................................................................................28

CERTIFICATE OF SERVICE ......................................................................................................28

APPENDIX ....................................................................................................................................29

1. Notice of Appeal to the Supreme Court of Ohio (July 21, 2014) ...........................-.302. Opinion and Order of the Public Utilities Commission (May 21, 2014) ...................543. Entry on Rehearing (May 21, 2014) ..................................................................^.......65

11

TABLE OF AUTHORITIES

Cases

Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) .................................16

Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ................................26

Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E. 2d 698 .....................15

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 ( 1925) ..................................17

Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 ( 1996) ....................................................15

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 ( 1979) ..................................15

Holiday v. Ford Motor Co., 8th Dist. Cuyahoga No. 86069, 2006-Ohio-284,2006 WL 1780 11 ...........................................................................................................................25

Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) .....................................19

Loukinas v. Roto-Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272(1 st Dist.) .......... .............................................................................................................................24

Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) ...............................17

Maumee v. Weisner, 87 Ohio St. 3d 295, 1999-Ohio-68, 720 N.E. 2d 507 ...................................16

Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ...............................19

Natl. Tank Truck Carriers, Inc. v. Fed. Hwy. Adm. of United States Dept. of Transp.(C.A.D.C.1999), 170 F.3d 203 (D.C. Cir. 1999) .............................................................................1

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) .............................18

State Auto Ins. Cos. v. Troll, 8th Dist. Cuyahoga No. 84284, 2005-Ohio-877,2005 WL 488380 . ..........................................................................................................................25

State ex rel. Verhovec v. Mascio, 81 Ohio St. 3d 334, 691 N.E.2d 282 (1976) .............................26

State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282 ...................................16

State v. Bevan, 80 Ohio App.3d 126, 608 N.E.2d 1099 (11th Dist. 1992) .....................................17

State v. Chatton, 11 Ohio St. 3d 59, 463 N.E. 2d 1237 ( 1984) ........o ............................................17

iii

State v. Evans, 67 Ohio St. 3d 405, 1003-Ohio-186, 618 N.E. 2d 162 ..........................................18

State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 ( 1980) ....................................................17

State v. Gonyou, 108 Ohio App.3d 369, 670 N.E.2d 1040 (6th Dist. 1995) ..................................17

State v. Moore, 90 Ohio St.3d 47, 2000-Ohio-10, 734 N.E.2d 804 (2000) ...................................17

State v. Mootoosammy, 9th Dist. Medina No. 3150-M, 2001 WL 833479 (July 25, 2011) ..........17

State v. Potter, 12th Dist. Butler No. CA2006-07166, 2007-Ohio-4216,2007 WL 2350129 .. .......................................................................................................................16

State v. Smith (1978), 56 Ohio St.2d 405, 384 N.E.2d 280 (1978) ................................................19

State v. Smotherman, 6th Dist. Wood No. 93WD082, 1994 WL 395128 (July 29, 1994)............17

State v. Williams, 55 Ohio St.2d 82, 377 N.E.2d 1013 (1978) ......................................................18

State v. Williams, 51 Ohio St.3d 58, 554 N.E.2d 108 (1990) ........................................................16

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ....................................16, 17, 20

United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) .............................16

United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ..............................17

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ...........................15

Stattltes

49 U.S.C. 31131-31137, 31140-31144, 31146, and 31147 ............................................................1

49 U.S.C. 31136(a) and (b) ..............................................................................................................1

R. C. 2925.11(C) ...............................................................................................................................7

R.C. 2925.14(C)(1) ...........................................................................................................................7

R.C. 4511.34 ....................................................................................................................................4

R.C. 4905, 4921 and 4923 ...............................................................................................................3

lv

R.C. 4905.83, 4919.99, 4921.99 and 4923.99 .................................................................................1

R.C. 5503.34 ....................................................................................................................................2

Rules

21 C.F.R. 1308.11 ......................................................................................................................2, 22

21 C.F.R. 1308.11(d)(23) .........................................................................................................2, 22

49 C.F.R. 40, 107, subparts f and g, 367, 380, 382, 383, 385, 386, 387 and 390 to 397 ...............20

49 C.F.R. 171 to 180 ......................................................................................................................20

49 C.F.R 350.101 ..:..........................................................................................................................1

49 C.F.R 350.105 .............................................................................................................................1

49 C.F.R. 382, 383, 387 and 390 through 397 .................................................................................2

49 C.F.R. 392.4 ....................................................................................................................7, 22, 24

49 C.F.R. 392.4(a)(1) .....................................................................................................................2

49 C.F.R. 394.4 ................................................................................................................................7

Ohio Adm.Code 4901:2-5-01(A) .................................................................................................21

Ohio Adm.Code 4901:2-5-02 ....................................................................................................2, 20

Ohio Adm.Code 4901:2-5-02(A) .................................................................................................20

Ohio Adm.Code 4901:2-5-02(B) .................................................................................................21

Ohio Adm.Code 4901:2-7-01 . .........................................................................................................2

Ohio Adm.Code 4901:2-7-01 et seq . ...............................................................................................2

Ohio Adm.Code 4901:2-7-01(J) ....................................................................................................1

Ohio Adm.Code 4901:2-7-04(C) ....................................................... 4.............................................2

v

Ohio Adm.Code 4901:2-7-05 ..........................................................................................................3

Ohio Adm.Code 4901:2-7-07 and 09 ...............................................................................................3

Ohio Adm.Code 4901:2-7-10(B) ...................................................................................................3

Ohio Adm.Code 4901:2-7-12 .... ......... ......... .. .. ............................. .. .. ...................................... ......... 3

Ohio Adm.Code 4901:2-7-17 ..........................................................................................................1

Ohio Adm.Code 4901:2-7-18 ..........................................................................................................3

Ohio Adm.Code 4901:2-7-20(A) .............................................................................................3, 20

Con s tituti onal 1'ro vi s i ons

Fourth Amendment to the United States Constitution ...................................................................15

Article I, Section 14, Ohio Constitution ........................................................................................15

Other Authorities

4 Rotunda & Nowak, Treatise on Constitutional Law (2 Ed. 1992) ..............................................26

5 Wright & Miller, Federal Practice and Procedure (1990) ........................................................26

vi

STATEMENT OF 'J'HE CASE

On June 18, 2012 the staff of the Public Utilities Commission of Ohio ("PUCO")

Commission") served a "notice of preliminary determination" upon Appellant, Ted A. Mr.

Warren ("Mr. Warren"). The staff notified Mr. Mr. Warren that he was alleged to have

committed a violation of a PUCO rule or order on March 1, 2012 by operating a commercial

motor vehicle on March 1, 2012 while possessing marijuana, in violation of one of the Federal

Motor Carrier Safety Regulations ("FMCSRs")(Exh. 1, Tr. 10).1

The FMCSRs were promulgated pursuant to the Motor Carrier Safety Act of 1984. 49

U.S.C. §§ 31131-31137, 3 1 140=3 1 144, 31146, and 31147. The Act mandated that the Secretary

of Transportation adopt regulations prescribing "minimum safety standards for commercial

motor vehicles" and "[g]overnment standards for inspection of commercial motor vehicles." 49

U.S.C. § 31136(a) and (b). The individual states were given primary responsibility for enforcing

the standards set forth in the FMCSRs through the Motor Carrier Safety Assistance Program

("MCSAP"). Natl. Tank Truck Carriers, Inc. v. Fed. Hwy. Adm. of United States Dept. of

Transp. (C.A.D.C.1999), 170 F.3d 203, 205 (D.C. Cir. 1999). MCSAP provides financial

assistance to the states but requires adoption of uniform enforcement of safety rules, regulations,

and standards compatible with the FMCSRs. 49 CFR 350.101. State laws must be "identical to

the FMCSRs ... or have the same effect as the FMCSRs." 49 CFR 350.105.

The term "staff' is defined in PUCO's rules to mean "those employees of PUCO'stransportation department to whom responsibility has been delegated for administering theprovisions of sections 4905.83, 4919.99, 4921.99, and 4923.99 of the Revised Code, asapplicable." Ohio Adm. Code 4901:2-7-01(J). Under PUCO's rules, the staff is a party to aproceeding. Ohio Adm. Code 4901:2-7-17.

Ohio participates in the MCSAP and chose to adopt the substantive portions of the

FMCSRs as its own rules, rather than develop entirely new rules having the "same effect as the

FMCSRs." PUCO thus enacted Ohio Adm. Code 4901:2-5-02 which reads as follows:

(A) The commission hereby adopts the provisions of the motor carrier safetyregulations of the U.S. department of transportation contained in Title 49, CFRParts 382, 383, 387 and 390 through 397 including future modifications oradditions, unless specifically excluded or modified by a rule of this commission... All motor ... carriers operating in intrastate commerce within Ohio shall conducttheir operations in accordance with those regulations and the provisions of thischapter. With respect to such regulations as applicable to intrastate motor carriers,any notices or requests permitted or required to be made to the U.S. department oftransportation or officials thereof under Title 49, CFR Parts 390 through 397 shallinstead be made to the director of the commission's transportation department.

Section 392.4(a)(1) of the FMCSRs, as incorporated into the PUCO rules,

prohibits any driver from being be on "duty and ... possessing" any 21 CFR 1308.11

Schedule I substance; Marijuana is one of the substances listed in the rule. See 21 CFR

1308.11(d)(23).

The PUCO rules are applicable to all "motor carriers" as defined in Ohio Adm.

Code 4901:2-5-01(A). They are also applicable to "owners and drivers of motor vehicles

leased to motor carriers ... d.urino t^^ periods covered }^y-^^^^;h lease a^ree^^tep^s.."

(Emphasis supplied.) Id.

PUCO enacted a civil penalty scheme for those who violate its rules. See, Ohio Adm.

Code 4901:2-7-01 et seq. A "violation" is defined as "any conduct, act, or failure to act,

prohibited by statute or commission rule or order." Ohio Adm. Code 4901:2-7-01.

Under Ohio Adm. Code 4901:2-7-04(C), any person having "statutory authority to take

enforcement action" may report a violation to PUCO's staff.2 Upon receiving a report of a

2In R.C. 5503.34, the General Assembly created "in the department of public safety,

2

violation, the staff is obligated to identify the respondent and serve a "notice of apparent

violation" upon him or her. Ohio Adm. Code 4901:2-7-05. That notice may be accompanied by a

proposed notice of intent to assess a "forfeiture." Ohio Adm. Code 4901:2-7-07 and 09.

The notice must include "instructions regarding the manner in which the respondent may

serve a timely request for conference to contest the violation" and a statement that "failure to

contest the violation will conclusively establish the occurrence of the violation." Ohio Adm.

Code 4901:2-7-05.

The purpose of the conference is to give the respondent the opportunity to

Present reasons why the violation did not occur as alleged, mitigatingcircumstances regarding the amount of the forfeiture, reasons why the complianceorder may be unjustified, or any other information relevant to the action proposedto be taken.

Ohio Adm. Code 4901:2-7-10(B).

If the matter is not resolved by agreement, the staff may issue and serve a "notice of

preliminary determination" giving the respondent the right to request an administrative hearing.

Ohio Adm. Code 4901:2-7-12. If the respondent timely requests an administrative hearing, a

hearing officer is assigned by PUCO. Ohio Adm. Code 4901:2-7-18.

At the hearing, the staff has the burden to prove "the occurrence of a violation by a

preponderance of the evidence." Ohio Adm. Code 4901:2-7-20(A).

As noted above, the staff provided Mr. Mr. Warren with a "notice of preliminary

division of state highway patrol, a motor carrier enforcement unit, to be administered by thesuperintendent of the state highway patrol. This unit shall be responsible for enforcement ofcommercial motor vehicle transportation safety and hazardous materials requirements ...Employees of the motor carrier enforcement unit shall cooperate with the public utilitiescommission to enforce compliance with orders and rules of PUCO, applicable laws underChapters 4905., 4921., and 4923. of the Revised Code, and any other applicable laws or rules."

3

determination" on June 18, 2012 claiming he had violated the PUCO rule prohibiting him from

"possessing" marijuana while on duty. Mr. Mr. Warren requested a hearing (ICN 1). The

hearing took place on October 10, 2013 and a transcript with exhibits is part of the record. The

PUCO attorney examiner ordered post-hearing briefs (ICN 16), which both parties submitted

(ICN 17 and 18). Both parties filed reply briefs (ICN 21 and 22).

On March 26, 2014 the PUCO issued an opinion and order finding Mr. Mr. Warren had

violated the PUCO rule and ordered Mr. Mr. Warren to pay a $500.00 civil forfeiture (ICN 23).

Mr. Mr. Warren filed an application for rehearing on April 25, 2014 (ICN 24). On May

21, 2114 the PUCO denied Mr. Mr. Warren's application for rehearing (ICN 25).

Mr. Mr. Warren filed a Notice of Appeal to this Court on July 21, 2014 (ICN 26).

5'IA'I'EMENT OF FACTS

On March 1, 2012 State Trooper Todd Thomas ("Mr. Thomas") was providing support to

another state trooper (a Trooper Myers) who was flying a plane, as Mr. Thomas put it, in an "air

speed zone" near U.S. 42 on Interstate 70 (Tr. 17-18; 23).3 Mr. Thomas' job was to interdict

motorists observed by Mr. Meyers to have committed traffic offenses (Tr. 17-18).

Mr. Thomas admitted he never saw Mr. Warren commit any traffic offense. Over Mr.

Warren's hearsay objection, Mr. Thomas testified Mr. Meyers told him a "blue conventional

semi" was following "too close to another vehicle in front of him." (Tr. 22.)4

3. Trooper Meyers did not testify.

4. R.C. 4511.34, entitled "Space between moving vehicles" reads as follows:(A) The operator of a motor vehicle ... shall not follow another vehicle... more closelythan is reasonable and prudent, having due regard for the speed of such vehicle andthe condition of the highway. The driver of any truck ... when traveling upon a roadwayoutside a business or residence district shall maintain a sufficient space wheneverconditions permit, between such vehicle and another vehicle ahead so an overtaking

4

Mr. Thomas got behind the semi tractor-trailer and stopped it (Tr. 22-23). There is no

dispute that Mr. Warren was operating the truck.

Mr. Thomas walked up on the passenger side of the truck, climbed up two "rails," and

opened the passenger side door (Tr. 24; 54-55; 69-70). Without Mr. Warren's consent, he then

stepped "inside the truck." (Tr. 24; 54-55.) Mr. Thomas' explanation for intruding into Mr.

Warren's truck was that he was concerned for "officer safety," saying that Mr. Warren could

have had a gun (Tr. 69-70). He never testified that anything Mr. Warren said or did caused him

any concern or fear for his safety.

At Mr. Thomas' request, Mr. Warren provided his driver license, registration and proof

of insurance (Tr. 24). As he did so, Mr. Thomas says he observed a "copper pipe with burnt

residue on the end" in a cup holder about four feet away (Tr. 25; 57). Mr. Thomas claims Mr.

Warren told him the device was used to let the air out of his tires (Tr. 26-27). Mr. Thomas also

claimed that Mr. Warren later told him that someone must have left the device in the cup holder

(Tr. 26-27; 56).

Mr. Thomas surmised the item was used to smoke marijuana, even though he conceded

that what he said was "burnt residue" could actually have been dirt, grease and grime from using

motor vehicle may enter and occup suchuch space without danger. This paragraph does notprevent overtaking and passing nor does it apply to any lane specially designated for useby trucks. Outside a municipal corporation, the driver of any truck ... while ascendingto the crest of a grade beyond which the driver's view of a roadway is obstructed, shallnot follow within three hundred feet of another truck, or motor vehicle drawing anothervehicle. This paragraph shall not apply to any lane specially designated for use bytrucks ...(Emphasis supplied.) No evidence was adduced to show Mr. Warren violatedthis statute.

5

it on the truck tires or otherwise in trucking operations (Tr. 27; 56). Mr. Thomas demanded to

"see it." (Tr. 28.) After Mr. Warren handed the object to Mr. Thomas, Mr. Thomas concluded it

smelled like marijuana (Tr. 28; 58). Mr. Thomas then placed Mr. Warren in "investigative

custody" in the rear of his patrol car (Tr. 28; 59)

Mr. Thomas radioed for another trooper to come to the scene. He also requested a motor

carrier investigator come to the scene because, as he put it, the latter has "federal regulations."

(Tr. 28; 32; 60.)5 A second trooper named Travis Woodyard arrived at the scene. Mr. Thomas

told him "what he had." (Tr. 28.) Mr. Woodyard testified that Mr. Thomas told him that a

"brass pipe" with some "burnt residue in it" was found in Mr. Warren's vehicle (Tr. 75). Mr.

Woodyard smelled the device and confirmed it "smelled like burnt marijuana." (Tr. 75.) Mr.

Woodyard interrogated Mr. Warren about the item despite knowing Mr. Warren was in

"investigative custody" (Tr. 84.) He also Mirandized Mr. Warren, after which Mr. Warren

repeated that the device was used to check air pressure on his truck.

Mr. Woodyard searched the interior of the tractor and found "a little bit of marijuana" in

a mint tin and "some marijuana residue" in a lip balm container (Tr. 77). He said the mint

container was in a "cubby above the door," but did not recall where the lip balm container was

found (Tr. 78). Mr. Woodyard said that the material in the containers looked and smelled like

marijuana (Tr. 80). Mr. Woodyard undertook no field testing of the material claimed to be

marijuana (Tr. 89).

Mr. Thomas did not see Mr. Woodyard search the truck (Tr. 60). Mr. Thomas testified

5. Mr. Woodyard testified that on the date of the incident (March 1, 2012) he was in a"drug interdiction unit and handled the canine." (Tr. 74.) The canine was not involved in anyaspect of this case (Tr. 60; 88).

6

that Mr. Woodyard returned with a "small Altoid® tin and [a] small thing of lip balm." (Tr. 31).

According to Mr. Thomas, either the Altoid® tin or the lip balm contained "a green leafy plant

substance." (Tr. 31; 60.) He surmised the plant material in one or both of the containers was

marijuana based on his "sense of smell and vision." (Tr. 31.) Mr. Thomas left the scene after

the motor carrier inspector arrived (Tr. 61-62).

The motor carrier inspector, Dennis Bays, II, described his job as doing "safety checks"

on commercial motor vehicles (Tr. 95). Mr. Thomas wanted Mr. Bays to do a "level II"

inspection of the truck, which Mr. Bays described as a "walk-around inspection" including

checking the "tires, lights, condition of the truck, load ... just [a] basic safety check." (Tr. 97.)

Bays created Exhibit 7 at the scene, which is a report of the safety inspection. (Tr. 99). Mr. Bays

used a computer program called "ASPEN" which electronically transmits data to a national

database called SAFERweb which he said is "monitored" by PUCO (Tr. 99-100; 105; 117).

Mr. Bays found no safety violations and he saw no saw no impermissible drugs at the

scene (Tr. 104; 115; 127). However, he relied upon what Mr. Thomas told him in reporting

several "violations" on his inspection report.6

Mr. Thomas took the items which Mr. Woodyard said were found in Mr. Warren's truck

to the patrol post in West Jefferson, Ohio (Tr. 33). Mr. Thomas photographed the items (Exhs. 3

°. Two of the "violations" listed by Mr. Bays related to the FMCSR found at 49 CFR. §392.4. One related to "possession" of a "narcotic drug/amphetamine" in violation of R.C.2925.11(C) and the other related to possession of drug paraphernalia in violation of R.C.2925.14(C)(1). See, Exhibit 7. However, possession of "drug paraphernalia" is not prohibited by49 CFR. § 394.4. Moreover, no evidence was offered at the hearing that Mr. Warren everpossessed, used, or was under the influence of a "narcotic drug/amphetamine." (We agree that 49CFR. § 392.4 prohibits possession, use, or being under the influence of "an amphetamine or anyformulation thereof (including, but not limited, to `pep pills,' and `bennies.').

7

and 4) (Tr. 37; 62). He also listed the items on a "property control form" marked as Exh. 2 and

referred, on several occasions throughout his testimony, as a "28" (Tr. 35; 49-50).7 He sent all of

the items to the State Highway Patrol's crime lab to be tested for the presence of marijuana (Tr.

35; Exh. 2).

Before doing so, however, Mr. Thomas said he subjected a sample of the plant material in

the Altoid® tin to a "NIK" test (Tr. 41). He claimed this test, which he conducted by releasing

three ampules of "some kind of chemical" resulted in a purple color, which he claimed was

"positive for marijuana." (Tr. 42.)

However, Exhibit 5, a color photograph of the test results, does not show the color purple

(Tr. 64). Mr. Thomas explained that "pictures to real is two different things" (sic) (Tr. 64.) He

conceded that Exhibit 5 showed bands of a red color, which he first said were actually purple

when the test was done (Tr. 65). After being challenged on this contention, Mr. Thomas said that

the "purple" was supposed to be at the bottom of the bag (Tr. 66). He conceded Exhibit 5 showed

this material as black or dark in color: "I'm not saying black, brown or purple. It's dark." (Tr.

66). Mr. Thomas put the items supposedly found in Mr. Warren's truck in an "evidence" box and

mailed them to the "crime lab" (Tr. 50; 67).

Kara L. Klontz, one of seven "criminalists" at the crime lab, testified about tests she

performed on one of the items of "evidence" submitted by Mr. Thomas (Tr. 211). Ms. Klontz

had worked in the drug chemistry section of the lab for about two and one-half years (Tr. 133-

137).

Ms. Klontz had no recollection of performing the analytical work she testified about (Tr.

7 . This is from the designation HP-28 on the bottom of the form.

8

176). She estimated she had performed approximately 1,800 tests for the presence of "controlled

substances" during her time at the lab and said she had performed about 700 tests for the

presence of marijuana (Tr. 134-136; 160). The lab has a manual for drug chemistry which

specifies policies and procedures for testing, for evidence handling, and for quality assurance

(Tr. 137). That manual is not part of the evidence in this case.

Ms. Klontz testified that when "evidence" is received at the lab, it is given a "unique case

number" and an accompanying "bar code." (Tr. 140.) This permits the lab to know where that

"evidence" may be "at all times." Id.

Ms. Klontz identified a copy of an "internal chain of custody" form (Exhibit 9) for items

assigned to case number 12-003046 (Tr. 140-141). This form showed that a laboratory worker

named Montenaro received items "by hand" on March 7, 2012 and "relinquished" them to the

"laboratory holding room" the same day.

Ms. Klontz testified that when "evidence" is received at the lab an "evidence receipt

form" is created (Tr. 143-144). Exhibit 10 is such a form which an unknown person created on

March 7, 2012 and which bears case number 12-003046 (Tr. 145). Klontz had no personal

knowledge of the entries in Exhibit 9 which do not bear her name and she is not the records

custodian for the lab (Tr. 177).

Ms. Klontz likewise did not have personal knowledge of when the "evidence" at issue in

this case was received at the lab (Tr. 201). Exhibit 11 shows that 39 "biologicals" and 70

"CSB[']s" were received at the lab.8 Someone stamped No. 12-003046 on a form and time-

stamped it March 7, 2012 at 12:44 p.m. (Exhibit 10; Tr. 201).

g. Ms. Kontz testified that "CSB" meant "controlled substances." (Tr. 201).

9

According to Ms. Klontz, she "went to the drug holding room" on June 5, 2012 and

retrieved "the evidence" in a sealed manila envelope and which may have contained a "sealed

plastic bag." (Tr. 146-148). A document called a "property control form" (Exhibit 11) was

attached to the envelope (Tr. 148-149). The property control form described three items and bore

case number 12-003046 (Tr. 150). She placed this "evidence" in a locked cabinet to which only

she has access (Tr. 151).

On June 11, 2012 she subjected one piece of this "evidence" to analysis and then

transferred the items to the "long term security room" (Tr. 151-152; 203; Exhibit 9.) Ms. Klontz

completed a "controlled substances worksheet" as she did her "analysis." (Tr. 152-153; Exhibit

12). While Ms. Klontz had no memory of doing any analysis of "the evidence," she testified that,

from her review of the records, the only thing she analyzed was part of the plant material found

in an Altoid's® tin (Tr. 167; 176). She had no idea whether the other objects submitted contained

marijuana (Tr. 199).

The total mass of the plant material in the tin was .68 grams (Tr. 155). Ms. Klontz

undertook three "tests" on this material to determine "the presence of marijuana." (Tr. 157). She

said that while each test "indicates the presence of marijuana . .. unless you combine all three of

them, yog_ cannot confirm the identitv of m^^.rijuanaso the thammee tests cor^ibined together arewh^.t

give the result ..." (Emphasis supplied.) (Tr. 168.)

The first test was a "macroscopic test" which meant she looked at the "morphological

characteristics" of the plant material without amplification to see if it appeared to be marijuana

(Tr. 155; 191). The second test was a "color test" called the Duquenois-Levine modified test.

The third was a "thin layer chromatography" test (Tr. 155).

10

1. Macroscopic Examination

The "morphological characteristics" of the plant material in the Altoid's' tin, according

to Ms. Klontz, was "consistent with characteristics you would see in marijuana." (Tr. 158.) She

said she ordinarily looked for leaf shape, stem structure, seeds that can be present [and]

flowering tops that you can see with the naked eye (Tr. 208). On cross-examination, however,

Ms. Klontz could not identify which of those characteristics, if any, were present in this instance:

"I can't tell you which specific features I did ... notice to indicate that [the sarnple] would be

positive [for marijuana]." (Tr. 192-193.) She further conceded that she had no "recollection of

what [she] actually saw: "Of this piece of evidence, I only have my notes." (Tr. 198).

'). Color'I'est

The "color test" is designed to test for the "presence of THC, the cannabinoid in

marijuana." (Tr. 159). This color test is qualitative, not quantitative (Tr. 193). This test is

"presumptive only" for the presence of marijuana (Tr. 193). The test involves subjecting the

plant material to three different reagents. Id. The first reagent - called the Duquenois-Levine

reagent - is prepared by a "criminalist" in the laboratory (Tr. 159; 196-197). Klontz testified that

the records for creation of this reagent are kept in a "reagent book" somewhere in the laboratory

(Tr. 195). However, she did not have the book with her and she had not even looked at the book

to ensure that the reagent had been properly prepared (Tr. 195). Furthermore, she did not know

who prepared the reagent or when it was prepared (Tr. 195-196). The reagent book was not

introduced into evidence.

11

Ms. Klontz said that the procedure she was supposed to follow for the "color test" was to

take a "small amount" of the plant material, put it in a test tube, and then put a milliliter of the

Duquenois-Levine reagent into it (Tr. 159). The tube should be "vortexed" for 15 seconds. Id.

The liquid is then to be poured off into a separate test tube into which another milliliter of

concentrated hydrochloric acid was to be added. Id. If "it's positive, it will turn a deep purple

color." Id. However, the test is not complete until a milliliter of chloroform is added to the same

test tube. Id. at 159-160. Because the chloroform is heavier, it sinks to the bottom of the test tube

(Tr. 160). The chloroform is supposed to turn lavender. Id. If there is dark purple on top and

lavender on the bottom ... that is indicative of marijuana. Id.

Ms. Klontz marked Exhibit 12 as "positive." (Tr. 161.) However, she had no recollection

of ever doing the test or seeing one or more purple colors as the test was done: "Correct. I have

no personal recollection of this piece of evidence." (Tr. 196-197).

3. Thin Layer Chromato ra131ty

The last test which should have been performed is called the "thin layer chromatography

test" or "TLC." (Tr. 161.) This test involves taking a "small amount" of plant material and

putting it into a test tube and adding an organic solvent - hexane - to "pull off any THC that we

want to use." (Tr. 162.) A small amount of the hexane, a volatile liquid, is then "spot[ed] on a

thin-layer plate, which is like a glass square with a silica coating on it" where it dries "very

quickly." (Tr. 162; 189.) The material is then compared to a "known standard" (but not a known

concentration) of THC, which Ms. Klontz said was the "psychoactive ingredient in marijuana,

also called "tetrahydrocannabinol." (Tr. 162; 182.) About five microliters of a "known standard"

is placed on the plate (Tr. 209). In addition, a "spot" of hexane (about five microliters) which has

-12-

not touched any plant material is also put on the plate (Tr. 182)).

The plate is then put in a hexane and diethylamide mixture (called a "TJ solution") and as

the "plate is put in, a small amount of liquid hits the surface of the plate and moves up the plate

similar to if you would put a paper towel in water. The water kind of wicks up, and when that

happens, the solvent moving up the plate takes with it, based on its affinity for the solvent, any

components of what I just spotted on it." (Tr. 162-163).

Ms. Klontz said she then "compare[s] the level at which the sample [she] placed on the

plate and the THC standard move and see if they move at the same rate, same time." (Tr. 163.)

Ms. Klontz testified that the "spot that was from the sample I tested in this case and the

spot of the THC correlated to one another." (Tr. 163.) In other words, she determined that the

spot she placed on the plate had "THC in it." (Tr. 166.) However, she conceded she had no

recollection of conducting the thin layer chromatography test on any of the "evidence" attributed

to the Mr. Warren (Tr. 199). Her handwriting on the exhibits did not help her refresh her

recollection either (Tr. 199).

Moreover, Ms. Klontz testified that she never personally tested the allegedly "known

source" of THC that she used to confirm that it, in fact, contained THC (Tr. 183). She said that

the "known standard" (which comes in a bottle) contained about five milliliter's of material (Tr.

209-2 10). Ms. Klontz said she would have used a capillary tube to remove about five microliters

of the presumed "known standard" from the bottle to spot onto the glass plate (Tr. 209).9

When the "known standard" comes to the lab (usually from a company called Cerilliant) it

'. There are one thousand microliters in one milliliter (Tr. 209). Thus, the bottle of the"known standard," containing about 5 milliliters, could be used for many tests (Tr. 210).

-13-

contains a "known concentration." (Tr. 183; 206.) Ms. Klontz said it was customary for the lab to

test the material to ensure it had `I'HC in it (Tr. 184). However, she did not know if this llad been

done with this particular standard and she did not know who if anyone had done so if an yone

(Tr. 184). She conceded that if the "known sample" used to do the thin layer chromatography test

was not correct, then the conclusion she drew from using it compared to the sample extracted

from the plant material in the Altoid's® tin found in Mr. Warren's truck would also not be correct

(Tr. 184).

Ms. Klontz scanned an image of the plate used for the TLC test (Exhibit 13) (Tr. 163-

164). However, this exhibit contains "multiple samples." (Tr. 165; 181, sixteen (16) separate

samples; 186; 189.) Klontz said should would have etched the plate by hand with the case

number for each line (Tr. 166; 185-186; 190). She conceded she would have had to correlate the

case she was working on with case number she supposedly etched into the plate, allowing that

"there's always a chance" she mixed up a case number on the plate (which she destroyed) (Tr.

185-186).

Ms. Klontz typed the case numbers on the left side of the image of the plate to make

them "easier to read." (Tr. 186). She had an electronic image of the plate itself (with the etched

numbers, none of which are visible on Exhibit 13), but failed to bring it to the hearing (Tr. 187).

She likewise conceded that as she was typing the case numbers she could have put the wrong

number on the wrong line (Tr. 188). She emphasized that the thin layer chromatography test was

a "presumptive technique." (Tr. 190).

Based upon the results of the three tests, Ms. Klontz concluded - she said to a reasonable

scientific certainty - that the "evidence" was marijuana (Tr. 169.) She said as much in her

-14-

"report" which was identified as Exhibit 14 (Tr. 169-171).

When Ms. Klontz was done with her analysis, she put the items in a "heat-sealed plastic

bag" and transferred them to the "long-term security holding room." (Tr. 172.) Exhibit 9, the

"internal chain of custody form," shows the evidence was then moved to the "destroy container"

and was destroyed on November 8, 2012 (Tr. 173-175 Exhibit 9; 11; and 15). Ms. Klontz

testified she had nothing to do with the destruction of the evidence (Tr. 181).

ARGUMENT

PROPOSITION OF LAW NO. 1: EVIDENCE SEIZED BY A LAWENFORCEMENT OFFICER FROM A MOTOR VEHICLE IS INADMISSIBLE UNLESSTHE OFFICER HAD PROBABLE CAUSE TO BELIEVE THAT AN OBJECT IN THEVEHICLE OR ITS OCCUPANNT WAS SUBJECT TO SEIZURE.

The Fourth Amendment to the United States Constitution and Section 14, Article I of the

Ohio Constitution protect individuals from unreasonable governmental searches and seizures.

Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E. 2d 698, ¶ 11; Whren v.

United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Dayton v. Erickson, 76

Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996). "As a general matter, the decision to stop an

automobile is reasonable where the police have probable cause to believe that a traffic violation

has occurred." WhNen at 810. This Court has expressly held that "[w]here a police officer stops a

vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is

not unreasonable under the Fourth Amendment to the United States Constitution." Erickson, 76

Ohio St.3d 3 at the syllabus.

In the case at bar, Mr. Warren9s truck was stopped by Mr. Thomas based upon a report

from another trooper that Mr. Warren's truck was "following too close" to another vehicle. Mr.

Thomas thus initiated an investigatory traffic stop. While an investigatory stop of a motor

-15-

vehicle constitutes a seizure, Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59

L.Ed.2d 660 (1979), such a seizure does not violate the Fourth Amendment if the officer has

reasonable suspicion, based on articulable facts, that the person stopped has engaged, is engaged,

or is about to engage in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968); Delaware v. Prouse, 440 U.S. at 653-655; State v. Williams, 51 Ohio St.3d

58, 61, 554 N.E.2d 108 (1990).

The reasonable suspicion necessary to make such a stop, however, eludes precise

definition. Rather than involving a strict, inflexible standard, its determination involves a

consideration of "the totality of the circumstances." United States v. Cortez, 449 U.S. 411, 417,

101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Under this analysis, "both the content of information

possessed by police and its degree of reliability" are relevant to the court's determination.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Maumee v.

Weisner, 87 Ohio St. 3d 295, 1999-Ohio-68, 720 N.E. 2d 507.

In the case at bar, Mr. Warren concedes that Mr. Thomas could reasonably rely upon

Trooper Meyers' report that it appeared Mr. Warren was following too close to another vehicle.

Accordingly Mr. Thomas had the right to stop and briefly detain Mr. Warren for this claimed

traffic offense. See, State v. Potter, 12th Dist. Butler No. CA2006-07166, 2007-Ohio-4216, 2007

WL 2350129, ¶ 12, citing Terry v. Ohio, supra at 19-21 ("officers may briefly stop and detain an

individual, without an arrest warrant and without probable cause, in order to investigate a

reasonable articulable suspicion of criminal activity"); State v. Batchili, 113 Ohio St.3d 403,

2007-Ohio-2204, 865 N.E.2d 1282, ¶ 11, quoting Terry at 21 ("To justify a particular intrusion,

the officer must demonstrate `specific and articulable facts which, taken together with rational

-16-

inferences from those facts, reasonably warrant that intrusion."); State v. Freeman, 64 Ohio St.2d

291, 294, 414 N.E.2d 1044 (1980).

However, this does not mean that Mr. Thomas' actions, or those of Mr. Woodyard

following the investigatory stop of Mr. Warren's truck were constitutionally permissible. It is

well established that an investigatory stop must last no longer than required to issue a citation or

check the detainee's record. State v. Chatton, 11 Ohio St. 3d 59, 63, 463 N.E. 2d 1237 (1984);

State v. Mootoosammy, 9th Dist. Medina No. 3150-M, 2001 WL 833479 (July 25, 2011) at *3.

Further, the Fourth Amendment prohibits "intrusions upon constitutionally guaranteed rights

based on nothing more substantial than inarticulate hunches [.]" Terry v. Ohio, 392 U.S. at 22.

"The lawfulness of the initial stop will not support a`fishing expedition' for evidence of crime."

State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist. 1995), quoting State v.

Smotherman, 6th Dist. Wood No. 93WD082, 1994 WL 395128 (July 29, 1994), citing State v.

Bevan, 80 Ohio App.3d 126, 130, 608 N.E.2d 1099 (1 lth Dist. 1992).

However, under the automobile exception to the Fourth Amendment's warrant

requirement, police officers may conduct a warrantless search of a lawfully-stopped automobile

if they have probable cause to believe that the vehicle contains contraband. United States v. Ross,

456 U.S. 798, 799 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), citing Carroll v. United States, 267

U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Moore, 90 Ohio St.3d 47, 51,

2000-Ohio-10, 734 N.E.2d 804 (2000), citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct.

2013, 144 L.Ed.2d 442 (1999) ("Once a law enforcement officer has probable cause to believe

that a vehicle contains contraband, he or she may search a validly stopped motor vehicle based

upon the well-established automobile exception to the warrant requirement.").

-17-

In the case at bar, the arresting officer, Mr. Thomas, conceded he had no basis to enter

Mr. Warren's truck other than a purported fear of "officer safety." (Tr. 69-70). There is no doubt

he climbed up two rails on the passenger side of the truck, opened the passenger's side door, and

entered the cab. Id. Likewise, no evidence exists that Mr. Warren invited Mr. Thomas into his

truck or consented to Mr. Thomas' presence in the truck (Tr. 54-55). It was only after Mr.

Thomas was in the truck (we submit without any lawful justification) that he saw what he

claimed was a copper pipe in a cup holder (Tr. 25; 57). This item was clearly not in plain view

until after Mr. Thomas illegally entered the truck." Mr. Thomas then impermissibly used this

"discovery" to induce another trooper to search the cab of the truck leading to the alleged

discovery of marijuana in the truck.

PUCO justified Mr. Thomas' presence in Mr. Warren's truck by saying it was

"reasonable" for him to enter Mr. Warren's truck due to concerns for his own safety (Opinion

and Order, p. 6; Entry on Application for Rehearing, p. 3, ^ 8, ICN 23 and 25). Further, PUCO

attempted to justify this conduct by reference to Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct.

330, 54 L.Ed.2d 331 (1977), where the Supreme Court held that a police officer may order a

motorist to get out of a car, which has been properly stopped for a traffic violation, even without

suspicion of criminal activity (Opinion and Order, p. 6; Entry on Application for Rehearing, p. 3,

¶ 8, ICN 23 and 25). However, in this case the officer intruded into Mr. Warren's vehicle

without his consent and without any justifiable reason, hardly a de minimis violation of his

rights. See, State v. Evans, 67 Ohio St. 3d 405, 415, 1003-Ohio-186, 618 N.E. 2d 162.

10Mr. Warren does not dispute that if the object was in plain view and was validlyconsidered contraband, an exception to the warrant requirement may apply. State v. Williams, 55Ohio St.2d 82, 377 N.E.2d 1013 (1978).

-18-

In this case, no evidence exists showing that Mr. Warren was threatening in any manner

to officer Mr. Thomas that he said or did anything to cause Mr. Thomas to have a rational fear

for his own safety which could entitle him enter Mr. Warren's truck.

Mr. Thomas' claim that Mr. Warren "could have a gun" can be said about any motorist

stopped by a police officer for a traffic offense (Tr. 69-70). In fact, the only information known

to Mr. Thomas about Mr. Warren was that Mr. Warren was driving a commercial truck which, in

someone else's view, was following too close to another vehicle. No evidence exists that Mr.

Warren made any furtive movements, or that he said or did anything else to give rise to any

suspicion, much less probable cause, that he possessed contraband.

In Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), the Supreme

Court held that an Iowa statute that permitted police officers almost unlimited authority to search

a traffic offender's vehicle was unconstitutional. However, in Michigan v. Long, 463 U.S. 1032,

103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court recognized an exception to the

warrant requirement permitting a limited protective search of an automobile during a traffic stop

under certain circumstances no presence here.

Under Long, a "search of the passenger compartment of an automobile, limited to those

areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a

reasonable belief based on `specific and articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant' the officer in believing that the suspect is

dangerous and the suspect may gain immediate control of weapons"). Id. at 1049; See, also, State

v. Smith (1978), 56 Ohio St.2d 405, 384 N.E.2d 280 (1978). But before a protective search will

-19-

be permitted, specific facts have to be articulated by the officer which would justify his concerns

for his safety. Terry v. Ohio, supra.

I'he record shows that Mr. Thomas articulated no specific facts which would justify his

concerns for his safety. As a result, he unlawfully entered Mr. Warren's truck and thereupon

developed suspicion that Mr. Warren possessed marijuana. Therefore, all evidence obtained as a

result of that search was inadmissible and should have been stricken.

PROPOSITION OF LAW NO 2: PUCO HAS THE BURDEN TO SHOW THATMR. WA N WAS SUBJECT TO PUCO'S RULES AT THE TIlVIE OF THECLAIMED VIOLATION AND FAILURE TO MEET THIS BURDEN IS FATAL TO THECASE.

The PUCO erred in concluding that competent, credible evidence was presented that Mr.

Warren was subject to PUCO's rules at the time of the purported violations. In fact, the staff

failed to prove that Mr. Warren was subject to its rules and, accordingly, it failed to meet its

burden to prove "the occurrence of a violation by a preponderance of the evidence." Ohio Adm.

Code 4901:2-7-20 (A).

PUCO has adopted

the provisions of the motor carrier safety regulations of the U.S. department oftransportation contained in 49 C.F.R. 40, 107, subparts f and g, 367, 380, 382, 383,385, 386, 387 and 390 to 397, unless specifically excluded or modified by a rule ofthis commission, and those portions of the hazardous materials transportationregulations contained in 49 C.F.R. 171 to 180, as are applicable to transportation oroffering for transportation by motor vehicle, as effective on the date referenced inparagraph (G) of this rule.

Ohio Adm. Code 4901:2-5-02. PUCO's rules provide that "[a]ll motor carriers_i^perating in

intrastate commerce within Ohio [are required to] conduct their operations in accordance with

those regulations and the provisions of this chapter. ..." (Emphasis supplied.) Ohio Adm. Code

4901:2-5-02(A). PUCO's rules also require all

-20-

motor carriers engaged in interstate commerce in Ohio ... operate in conformitywith all regulations of the U.S. department of transportation, which have beenadopted by this commission. Violation of any such federal regulation by any motorcarrier engaged in interstate commerce in Ohio shall constitute a violation of thiscommission's rules. (Emphasis supplied.)

Ohio Adm. Code 4901:2-5-02(B).

Lastly, PUCO's rules provide that "[o]wners and drivers of motor vehicles leased to

motor carriers are subject to these rules and regulations during the periods covered by such lease

agreements. (Emphasis supplied.) Ohio Adm. Code 4901:2-5-01(A).

Mr. Bays testified that the truck and trailer were owned by Mr. Warren (Tr. 104). Thus, if

Mr. Warren was working an interstate or intrastate motor carrier, he would have done so as a

lessee. However, the staff adduced no evidence that Mr. Warren was leased to or was driving on

behalf_fjf either an interstate c3ran_ intrastate motor carrieratthe time of the purp^^^ed violations.

Inspector Bays testified that Mr. Warren, based upon his review of documents and from a

discussion with Mr. Warren, was allegedly carrying freight from a factory owned by AK Steel in

Middletown, Ohio to Wooster, Ohio (Tr. 102-103). However, neither Mr. Bays nor any other

witness testified what that freight was (Tr. 86-87). Moreover, Mr. Bays did not identify AK Steel

or the company for which Mr. Warren was purportedly working in some capacity - i.e. Total

Package Express, Inc. --- (Tr. 102; 112), as either an interstate or intrastate "motor carrier."

Even if the evidence showed that either company, or both of them, were "motor carriers,"

the staff clearly did not show that PUCO's rules applied to Mr. Warren since those rules apply to

"owners and drivers of motor vehicles leased to motor carriers" and, only "during the periods

covered by such lease agreements." (Emphasis supplied.) Ohio Adm. Code 4901:2-5-01(A). No

evidence was adduced that Mr. Warren was subject to a lease agreement on the date and time of

-21-

the purported violation.

Thus, the staff failed to prove by a preponderance of the evidence that Mr. Warren was

subject to PUCO's rules. Accordingly, PUCO erred in finding that Mr. Warren had violated any

of its rules.

PROPOSITION OF LAW NO. 3: THE STAFF HAD THE BURDEN TO PROVEWITH COMPETENT, CREDIBLE EVIDENCE THAT MR. WARREN VIOLATED THEFEDERAL MOTOR CARRIER SAFETY REGULATIONS AND THE RELEVANTPUCO RULE BY POSSESSING MARIJUANA.

The Federal Motor Carrier Safety Regulations, and particularly 49 C.F.R. § 392.4,

prohibit any driver from "be[ing] on duty and possess[ing] ... any 21 C.F.R.1308.11 Schedule I

substance." Marijuana is a schedule I drug under 21 C.F.R. § 1308.11: See, 21 C.F.R. §

1308.11(d)(23).

There is no question that the staff had the burden to prove by a preponderance of the

evidence that Mr. Warren possessed a "Schedule I drug" as defined in 21 C.F.R. § 1308.11.

See, Ohio Adm. Code 4901:2-7-20(A).

Mr. Woodyard searched Mr. Warren's truck and found two containers containing what he

described as "small amounts of marijuana" (Tr. 77-78.) He gave these containers to Mr. Thomas

who took them to his patrol post where he performed a "field test" (which he called a "NIK" test)

on a sample of the material from the Altoid® tin (Tr. 41). Mr. Thomas claimed the field test was

"positive for marijuana." (Tr. 33.) The field test was performed by subjecting a small amount of

the plant material from the Altoid® tin to three groups of chemicals (Tr. 41-42). According to

Mr. Thomas, if the resulting solution turned purple in color marijuana was present (Tr. 42).

While Mr. Thomas claimed the solution was purple, Exhibit 5 belies that claim. That exhibit

shows none of the purple in the material at the bottom of the test kit (which Mr. Thomas said was

-22-

the relevant material to examine, Tr. 66), turned purple.

Mr. Thomas said he packaged up all of the "evidence" and sent it to the State Highway

Patrol's crime lab (Tr. 67).

The evidence regarding the analysis of one of the pieces of "evidence" sent to the lab by

Mr. Thomas did not show that marijuana was present (the rest of the "evidence" was never

tested.) First, the analyst did not recall doing anything with these materials (Tr. 192-193; 196-

197; 199; 201). Rather, she could only go by documents that she partly created but said these

documents did not refresh her recollection (Exhibits 12 and 13; Tr. 175-176).

According to the analyst, three tests were required prove the existence of marijuana (Tr.

168). While she wrote down that all three tests were positive (Exhibit 12), she had no

recollection of doing any of them (Tr. Tr. 192-193; 196-197; 199).

First, she could not remember what "morphological" characteristics of the plant material

suggested that it was marijuana (Tr. 12-193).

Second, while she claimed that the color test was "positive" for marijuana, she could not

establish that the critical reagent --- the Duquenois-Levine reagent -- was actually prepared in

accordance with any standard or even when, who, or how it was prepared (Tr. 195-196). No

evidence was offered to show that the reagent was prepared properly or what it actually

contained. Moreover, she could not remember what the color distribution, if any, was when the

sample was analyzed (Tr. 196-197).

Third, while the analyst had no recollection of performing the thin layer chromatography

test (Tr. 199), and described how the test was supposed to have been done, she could not state

with any certainty that the test was performed as it should have been. She did not know whether

-23-

the "known standard" supposedly containing THC in fact contained THC. No evidence was

offered to demonstrate that it did (Tr. 209-2 10). While the analyst said that it was customary for

the laboratory to test such materials prior to using them, she did not know if this had been done

in this instance (Tr. 183; 184; 206). Furthermore, she conceded that if the known standard was

wrong, then the conclusions she drew from testing the sample of the "evidence" submitted by

Mr. Thomas would be wrong (Tr. 184).

Based upon the foregoing, the staff failed to prove with competent, credible evidence that

the material tested by the analyst in fact was marijuana. As the analyst emphasized in her

testimony, all three tests combined were required to "confirm the identity of marijuana" and each

of the tests, standing alone, were merely "presumptive." (Tr. 168; 190; 193; 198.)

The field test result was insufficient to establish the existence of marijuana as were the

perceptions of the two troopers. Since the drug test results were not shown to be reliable, there is

simply no evidence that any of the materials seized from the truck contained a Schedule I drug

prohibited by 49 C.F.R. § 392.4. Accordingly, Mr. Warren was not shown to have violated any

of PUCO's rules on March 1, 2012.

PROPOSITION OF LAW NOx 4: THE DOCTRINE OF SPOI[,IATION APPLIESWHERE'['HE AI)VERSXE PAItTY FAlLS 'I'O PIYESE,ItVE EVII)ENCE IT KINOWSWII.I. BE I2EI1EVANT IN SUBSWiJENF I,EGAL PItOCEEI)INGS.

The PUCO improperly ignored the fact that the evidence purporting to establish that Ted

Mr. Warren possessed marijuana in his truck on March 1, 2012 was improperly destroyed. "Even

prior to the commencement of any litigation, a plaintiff is under a duty to preserve evidence

which it knows or reasonably should know is relevant to the action." (Citations and quotations

omitted.) Loukinas v. Roto-Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855

N.E.2d 1272 (1st Dist.), ¶ 18. "[W]here evidence is intentionally or negligently spoiled or

-24-

destroyed by a plaintiff or his expert before the defense has an opportunity to examine that

evidence for alleged defects, a court may impose a sanction." Holiday v. Ford Motor Co., 8th

Dist. Cuyahoga No. 86069, 2006-Ohio-284, 2006 WL 178011 at ¶ 21. "`Although there is a

rebuttable presumption that a defendant was prejudiced by the destruction of relevant evidence, a

plaintiff can still persuade the court that there was no reasonable possibility that the defendant

was prejudiced. "' Id. at ¶ 22, quoting State Auto Ins. Cos. v. Troll, 8th Dist. Cuyahoga No.

84284, 2005-Ohio-877, 2005 WL 488380.

In the case at bar, the evidence shows that all of the physical evidence should could have

been inspected and tested by the Mr. Warren to disprove the staff's contentions was destroyed

during the pendency of this case (Tr. 173-175; Exhibits 9, 11 and 15). Mr. Warren was therefore

entitled to a rebuttable presumption that the physical evidence did not contain marijuana. The

staff made no effort to overcome that presumption and, thus, the staff was not able to prove a

requisite element of its case.

PUCO's finding that the destruction was done in "good faith" is unsupportable. PUCO's

Opinion and Order barely mentioned spoliation argument and then excused it on the basis that

the "numerous positive tests for marijuana, the photos and the substantial testimony regarding

the marijuana rebut any presumption that would arise in favor of the Respondent." (Opinion and

Order, p.7, ICN 23). However, as, a critical issue was whether the material actually contained a

hallucinogenic substance, a sine qua non of the definition of "marihuana" under 21 C.F.R.

1308.11, Schedule I. Thus, it is not as simple as saying that someone believed there was

"marijuana" present in the truck and thus it did not matter that the purported substance was

destroyed.

-25-

Moreover, PUCO reference to a possible adverse inference that could be drawn against

Mr. Warren because he did not testify at the hearing in this matter is seriously misplaced. Mr.

Warren is fully aware of State ex re. Verhovec v. Mascio, 81 Ohio St. 3d 334, 691 N.E.2d 282

(1976), the cases cited therein, and its progeny. That case considered whether a criminal

defendant had a constitutional right not to testify in a civil case and, in that context, the Supreme

Court of Ohio said:

In other words, `the Fifth Amendment does not forbid adverse inferences againstparties to civil actions when they refuse to testify in response to probative evidenceoffered against them . ..' Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551,47 L.Ed.2d 810 (1976). See, also, 4 Rotunda & Nowak, Treatise on ConstitutionalLaw (2 Ed.1992) 666, Section 23.23 ('[T]he protection against self-incriminationwas not necessarily designed to protect witnesses from every prejudicial effectresulting from their own testimony; the protection was designed to limit thecoercive power of government.'); but, cf., 5 Wright & Miller, Federal Practice andProcedure (1990) 515-516, Section 1280.

Mascio is not applicable in this case because Mr. Warren did not refuse to testify or assert a Fifth

Amendment right not to testify. Rather, he simply did not testify. Certainly no adverse

presumption can be drawn from a party not testifying but relying upon cross-examination of an

adverse party's witnesses when the adverse party has the burden of proof.

PUCO clearly erred in finding the staff overcame presumption that Mr. Warren was

prejudiced by the ill-advised destruction of the evidence.

PROPOSITION OF LAW NO 5: PUCO ERRED WHEN IT IMPOSES A CIVILFORFEITURE IN RETALIATION FOR A PARTY ASSERTING HIS RIGHTS TOCONTEST A PURPORTED VIOLATION OF ITS TRANSPORTION RULES.

PUCO correctly noted that the staff recommended no civil forfeiture in this case (Opinion

and Order, p. 8, fn. 1, ICN 23). Nevertheless, relying upon the Commercial Motor Vehicle Safety

Alliance, an "international not-for-profit organization comprised of local, state, provincial,

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territorial and federal motor carrier safety officials and industry representatives from the United

States, Canada, and Mexico," PUCO decided to punish Mr. Warren with a $500.00 civil

forfeiture." l It appears from an internet search of this organization's website that the "maximum

fine schedule" (revised as of February 2011) for "drug possession" is $500.00.12

Even if PUCO's conclusion that Mr. Warren possessed a minute quantity of marijuana

and that the traffic stop and subsequent search were proper, and that the PUCO rules applied to

Mr. Warren, absolutely no evidence exists that Mr. Warren was under the influence of marijuana

or any other drug. Adopting a "zero tolerance" policy under these circumstances is a bridge too

far and is both arbitrary and capricious.

If PUCO intends to take this position in the future, it should adopt rules, after notice and

comment, to this effect, not make a post hoc declaration of the sort it made in the Opinion and

Order in this case. Further, if the Commission is going to rely upon a non-profit organization's

fine schedule, at the very least drivers of commercial vehicles should be made aware of this in

advance.

It appears that PUCO imposed the "forfeiture" in this case to show Mr. Warren that it did

not look kindly upon his decision to challenge its actions in this case. The self-serving

justification for the civil forfeiture is both arbitrary and capricious and is an abuse of discretion.

11- See, http.t/w-vv%v.cvsa,or about/ ( last accessed September 24, 2014).

12. "This is a recommended maximum fine schedule." (CVSA 1996, rev. 1/2011 at p. 2).

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CONCLUSION

For all of the foregoing reasons, Ted A. Warren respectfully requests that the Court

reverse the decision of the PUCO and order dismissal of the underlying case.

Respectfully submitted,

. GLISHLAW OFFICES OF BRENT L. ENGLISHThe 820 Building

820 Superior Avenue West, 9th FloorCleveland, Ohio 44113-1818(216) 781-9917(216) 781-8113 (Fax)Sup. Ct. Reg. No. 0022678ben lg isha englishlaw.comAttorney for Appellant, Ted A. Warren

CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of Appellant, Ted A. Warren's Merits Brief

was served by first class U.S. Mail, postage prepaid, upon Ryan P. O'Rourke, Esq., Assistant

Attorney General, Public Utilities Section and counsel of record, and John H. Jones, Esq.,

Assistant Attorney General, Public Utilities Section, 180 East Broad Street, 6th Floor, Columbus,

Ohio 43215-3793 on this ^y of September 2014.

NGLISHLAW OFFICES OF BRENT L. ENGLISHAttorney for Appellant, Ted A. Warren

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APPENDIX

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RE.CEIVE[)-DDCKETfhtG DiV

ZQNJUl: 21 AM 10: 56

PUCO

TED A. WARREN 14-1238

IN THE SUPREME COURT OF OHIO

CASE NO.: 19

536 Catalina BoulevardWooster, Ohio 44691

Respondent-Appellant,

vs.

PUBLIC UTILITIES COMMISISON OFOHIO180 East Broad StreetColumbus, Ohio 43215-3793

Complainant-Appellee.

)))))))))))))

D

jUL 21 24)f4

CLERK OF COURTSUPREME GUURT 0F 0H1®

APPEAL FROM THE PUBLIC UTILITIES COMMISSION OF OHIO

In the Matter of Ted A. Warren, Notice of ) Case No. 12-2100-TR-CVF LAW OFFICES OF BIRRJ i L. ENGLISHApparent Violation and Intend to Assess ) (OH3257001617D) RForfeiture ) E JUL 25,' 2094

CI0

* * * * '^ FILE CODE DOCKET INFOujqRR're.08 N,lp ,

Ted A. Warren, Appellant, by this Notice of Appeal, states that the Opinion and

Order of the Public Utilities Commission of Ohio entered in the Journal on March 26,

2014 "concluding "the Staff has proven, by a preponderance of the evidence, that the

Respondent was in possession of marijuana while on duty and operating a conunercial

motor vehicle in violation of 49 C.F.R.§ 392.4(a)" and further assessing a civil forfeiture

of $500.00, the subsequent Entry on Rehearing entered on May 21, 2014 which includes

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the order on rehearing (collectively, the Commission's "Orders"") are unlawful and

unreasonable. Appellant further specifically avers that the Orders were and are

unreasonable and unlawful because the Commission erred in the following respects:

1. It erred in finding that evidence seized from Appellant's truck was admissible

and in finding that the seizure did not violate the Fourth Amendment to the United States

Constitution or Article I, Section 14 of the Ohio Constitution.

2. It erred in finding that a state trooper was legally justified in entering

Appellant's truck without his consent and without an arrest warrant and by finding that a

"legitimate and weighty" interest in officer safety outweighs an allegedly "de minimus"

intrusion" into Appellant's truck.

3. It erred in finding that the Commission's regulations applied to Appellant

under the facts of this case.

4. It erred in finding that the Commission's staff met its burden of proof that

Appellant possessed marijuana.

5. It erred in finding that the doctrine of spoliation did not create a presumption

in favor of Appellant and that, as a result of the presumption, insufficient evidence was

presented to establish that he possessed marijuana.

6. It erred by imposing a civil penalty of $500.00 based upon an alleged "zero

tolerance policy" and by blindly applying the Commercial Motor Vehicle Safety

Alliance's maximum fee schedule.

Appellant, Ted A. Warren, Respondent below, gives Notice of Appeal against

The Public Utilities Commission of Ohio to the Supreme Court of Ohio from the Opinion

and Order and the Entry on Rehearing and the Order on Rehearing of the Commission

2-31-

^-,.. ^

entered March 26, 2014 and on May 21, 2014, true and complete copies of which are

attached as Appendices "A" and "B" and filed as provided in Sections 4903.10 and

4903.13 of the Revised Code.

WHEREFORE, Appellant will contend in the Supreme Court of Ohio that the

Opinion and Order, Entry on Rehearing and Order on Rehearing of The Public Utilities

Commission of Ohio from which this appeal is taken should be reversed, vacated, and set

aside.

Respectfully submitted,

NT CLISHLAW OFFIGES OF BRENT L. ENGLISH

820 West Superior Avenue, 9th FloorCleveland, Ohio 44113-1818(216) 781-9917(216) 781-8113Sup. Ct. Reg. 0022678Attorney for Respondent-Appellant,Ted A. Warren

3 --32-

/i..,

CERTIFICATE OF SERVICE REQUIRED BYSUP. CT. PRAC. R. 3.11

I hereby certify that Appellant filed a notice of appeal with the docketing division

of the Public Utilities Commission in accordance with Ohio Admin. Code 4901-1-02(A)

and 4901-1-36 by hand-delivering a true and complete copy to the Public Utilities

Commission of Ohio, Docketing Division, 180 East Broad Street, Columbus, Ohio

43215-3793 and by leaving a copy at the office of the Chairperson of the Commission,

Thomas W. Johnson, and/or at the offices of the Public Utilities Commission of Ohio

located at 180 East Broad Street, Columbus, Ohio 43215.

I further certify that a true and complete copy of this Notice of Appeal was served

upon Debra Hight, Esq., Public Utilities Commission of Ohio, 180 East Broad Street,

Columbus, Ohio 43231 by regular U.S. Mail, postage prepaid, and by e-mail to

Debra.Hight@puc.stat.oh.us and upon John H. Jones, Esq., Assistant Attorney General,

Public Utilities Section, 180 East Broad Street, 6th Floor, Columbus, Ohio 43215-3793

and by e-mail to john.jones@pue.state.oh.us on this 4LI&y of July 2014.

GLISHAttor°ney for Respondent-Appellant,Ted A. Warren

4-33-

£ ^t , . .

BEFORE

P I:;

THE PUBLIC UTILITIES COMMISSION OF OHIO

In the Matter of Ted A. Warren, Notice of ) Case No. 12-2100-TR-CVFApparent Violation and Intent to Assess ) (OH3257001617D)Forfeiture. )

OPINION AND ORDER

The Comuussion, considering the applicable law and evidence of the record, andbeing otherwise fully advised, hereby issues its Opinion and Order in this matter.

APPEARANCES:

Mike DeWine, Ohio Attorney General, by John Jones and Ryan O'Rourke,Assistant Attorneys General, 180 East Broad Street, Columbus, Ohio 43215, on behalf ofStaff of the Public Utilities Comxnsssion of Ohio.

Brent L. English, 820 West Superior Avenue, Suite 900, Cleveland, Ohio 44113-1818, on behalf of Ted A. Warren.

OPINION:

I. Nature of the Proceeding and Background

This case involves a violation for operating a commercial motor vehicle (CMV)while on duty and in possession, under the influence of, or using marijuana, which is a21 C.F.R. 1308.11 Schedule 1 substance. On March 1, 2012, Trooper Mike Meyers, whowas conducting aircraft compliance operations on Interstate Route 70 in MadisonCounty, observed a CMV committing a violation for following another vehicle tooclose. Trooper Meyers contacted Trooper Thomas, who was in his Ohio State I-iighwayPatrol (Patrol) vehicle, and Trooper Thomas stopped the CMV. The CMV was operatedby Total Package Express, Inc. and driven by Ted A. Warren (Respondent). Uponentering the Respondent's CMV, Trooper Thomas observed what he believed to beparaphernalia for smoking marijuana and contacted Trooper Woodyard andTrooper Bays. Trooper Woodyard conducted a search of the Respondent's vehicle anddiscovered. what he believed to be marijuana. Trooper Bays then conducted aninspection of the vehicle and cited the Respondent for operating a CMV while on dutyand in possession, under the influence of, or using, a 21 C.F.R. 1308.11 Schedule 1substance, which is an apparent violation of 49 C.F.R. 392.4(a).

On June 18, 2012, Staff timely served a Notice of Preliminary Determination(NPD) on the Respondent in accordance with*Ohio Adm.Code 4901:2-7-12. In the NPD,

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12-2100-TR-CVF -2-

the Respondent was notified that Staff had decided not to assess a civil forfeiture forviolating 49 C.F.R. 392.4(a). The parties, however, could not reach a settlement at anAugust 21, 2012 settlement conference. Thereafter, a hearing was conducted onOctober 10, 2013.

II. Applicable Law

The Commission adopted the Federal Motor Carrier Safety Rules pursuant toOhio Adm.Code 4901:2-5-02(A), for the purpose of governing transportation by motorvehicle in the state of Ohio. The Federal Motor Carrier Safety Rules are found in49 C.F.R. 40, 107 subparts (f) and (g), 367, 380, 382, 383; 385, 386, 387, and 390-397. Inaddition, Ohio Adm.Code. 49®1:275-02.(B.) requires, : alI , m®tor, carriers_. engaged ininterstate commerce in Ohio to operate in conformity with all. rules of the United StatesDepartment of Transportation (USDOT). Further, R.C. 4923.99 authorizes theCommission to assess a civil forfeiture of up to $25,000 per day against any person whoviolates the safety rules adopted by the Commission when transporting persons orproperty in interstate commerce.

Ohio Adm.Code 4901:2-7-01 through 4901:2-7-22 govern all proceedings of theCommission to assess forfeitures and make compliance orders. These rules require thata respondent be afforded reasanable notice and the opportunity for a hearing whereStaff finds a violation of the Federal Motor Carrier Safety Rules. Ohio Adm.Code4901:2-7-20(A) also provides that; during the evidentiary hearing, Staff must prove theoccurrence of the violation by a preponderance of the evidence.

III. Issues

The primary issue in this case is whether the Respondent was on duty and inpossession, under the influence of, or using, a 21 C.F.R. 1308.11 Schedule 1 substance.Respondent also contests whether the stop. and the search were lawf-ui, as well aswhether the evidence collected actually consisted of marijuana, which is a 21 C.F.R.

1308.11 Schedule 1 substance.

N. Discussion

At the hearing, Staff first presented Joe Turek, a Staff Attorney and ComplianceDivision Supervisor with the Transportation Department of the Staff (Tr. at 7).Mr. Turek testified that Staff initially served the Respondent with a Notice of Intent toAssess Forfeiture (Tr. at 8).. . Subsequently, Staff held a conference with the Respondentbut the parties could not reach a resolution (Tr. at 8). Staff then issued an NPD, afterwhich the Respondent requested an administrative hearing (Tr. at 8-9; Staff Ex. 1).Mr. Turek testified that the NPD assessed a $0.00 forfeiture (Tr. at 11; Staff Ex. 1).

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12-2100-TR-CVF -3-

Mr. Turek stated that, in his opinion, the Commission can order a different forfeitureamount than what was assessed in the NPD, pursuant to Ohio Adm.Code 4901:2-7-12

(Tr. at 12).

Staff then presented Trooper Todd Thomas, who is a State Trooper that has beenwith the Patrol for 24 years (Tr. at 15). Trooper Thomas testified that on March 1, 2012,he was near the West Jefferson Patrol Post and in radio contact withTrooper Mike Meyers, who was in an airplane watching below for violations (Tr. at 17-18). Trooper Meyers notified Trooper Thomas that he was observing the Respondent'struck following too close to another vehicle in violation of the law (Tr. at 22).Trooper Meyers gave Trooper Thomas a description of the vehicle and confirmed thatTrooper Thomas had stopped the correct vehicle (Tr. at 22).

Trooper Thomas testified that after stopping the Respondent, he approached thepassenger side of the truck and opened the passenger side door. Trooper Thomas thenstepped into the truck and requested the Respondent's driver's license, registration, andinsurance. Trooper Thomas stated that while he was advising the Respondent, heobserved a copper pipe in the cup holder. (Tr. at 24-25.) Trooper Thomas said that hebelieved the pipe to be an instrument to smoke marijuana and asked the Respondent tohand him the pipe, which the Respondent eventually did (Tr. at 27-28).Trooper Thomas testified that the pipe smelled of marijuana and had burnt residue onthe inside (Tr. at 28). Trooper Thomas indicated that he then placed the Respondentunder investigative custody and contacted Trooper Travis Woodyard andMotor Carrier Inspector Unit (hispector) Dennis Bays (Tr. at 28).

Trooper Thomas testified that he advised Trooper Woodyard, upon his arrival,that he had discovered a pipe that appeared to contain marijuana residue.Trooper Woodyard then left to conduct a search of the vehicle and returned with a lipbalrn container and an Altoid can containing a green leafy plant substance (Tr. at 29,31). - Based on his experience, Trooper Thomas concluded that the substance looked,smelled, and generally appeared to be marijuana (Tr. at 31). Trooper Thomas testifiedthat he then placed the lip balm container and Altoid can in a bag until he could returnto the West Jefferson Patrol Post to mail the items to the crune lab (Tr. at 32).Trooper Thomas then briefed Inspector Bays on his discovery of the pipe and thecontainers holding what appeared to be marijuana (Tr. at 32).

Trooper Thomas then returned to the Ohio State HHighway Patrol post andperformed a marijuana field test to determine the likelihood that the substance wasmarijuana (Tr. at 33, 41-42). He testified that the field test returned a positive result formarijuana arid that he took photographs of the marijuana and the positive test result(Tr. at 42; Staff Ex. 5). Trooper Thomas also took photographs of the containers and thepipe (Staff Ex. 3; Staff Ex. 4). He then sealed the evidence and the property control form

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12-2100-TR-CVF

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in a unique postage box designed for mailing evidence and mailed it to the crime lab(Tr. at.49-50).

On cross-examsnation,. Trooper. Thomas testified that he opened the passengerside door and stepped up into the truck for his own safety (Tr. at 54.) He stated that heopened the door and stepped into the vehicle to determine if any other passengers werepresent or if the driver was in possession of a firearm (Tr. at 69). He testified that, uponstepping into the vehicle, he then observed the pipe in the cup holder and asked theRespondent three times what it was. He said that after asking the Respondent a thirdtime, the Respondent handed him the pipe. (Tr. at 57-58.) Trooper Thomas then statedthat he did not know if the pipe belonged to the Respondent or if the Respondent had-ever:used^the:pipe (Tr: at^ 59): .Trooper. Thomas-also indicated that he. did:not participateor observe the search of the Respondent's vehicle (Tr. at 60). Further, Trooper Thomastestified that he did not observe the Respondent commit a traffic violation (Tr. at 52).

Staff then presented Trooper Woodyard, who is also a State Trooper working forthe Patrol. He testified that he has been with the Patrol for 20 years (Tr. at 71).Trooper Woodyard indicated that when he arrived at Trooper Thomas's location, heobserved the pipe and could see and smell burnt residue on it. He confirmed that thepipe and the burnt residue smelled like marijuana. (Tr. at 75-76.) Trooper Woodyardthen Mirandized the Respondent and informed the Respondent that he would searchthe vehicle based upon the . pipe and the marijuana residue on it (Tr. at 77).Trooper Woodyard stated that he conducted a search of the vehicle and found theAltoid can containing marijuana in a compartment above the driver's side door. Hetestified that he also found a lip-balm container with marijuana residue in it. (Tr. at 77.)Trooper Woodyard then testified that after conducting the search and turning over theevidence to Trooper Thomas, he left the location (Tr. at 80).

Staff next presented Inspector Bays, a Motor Carrier Inspector working for thePatrol (Tr. at 95). Inspector Bays has been with the Patrol for nine years (Tr. at 96).Inspector Bays testified that he conducted a Level 2 inspection of the vehicle and thencompleted an inspection report (Tr. at 97-99). Inspector Bays stated that he found noviolations with the vehicle, so the only violation was for the marijuana (Tr. at 104-105).Inspector Bays and the Respondent each signed the inspection report (Tr. at 107; St. Ex.7). Inspector Bays then placed the Respondent out-of-service for 24 hours and drovehim to a truck stop (Tr. at 108). On cross-examination, Inspector Bays confirmed that henever saw the marijuana or the.pipe (Tr. at 127). Inspector Bays testified that he had nopersonal knowledge of the Respondent possessing marijuana (Tr. at 128).

Staff's final witness was Kara Klontz, a Criminalist with the Ohio State HighwayPatrol (Tr. at 133-134). Ms. Klontz testified that the evidence in this case was received atthe crime lab and given a unique identification number (Tr. at 139, 141). Ms. Klontz

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testified that she filled out a property control form that was associated with theevidence (Tr. at 149). Ms. Klontz stated that she also fill.ed out a controlled substanceworksheet to indicate what kind of testing she conducted and the test results (Tr. at152). She indicated that she performed three laboratory tests to determine whether thematerial was a controlled substance. Ms. IQontz first conducted a macroscopic test,which is a general observation of the evidence including leaf shape, stems, and otherfeatures that can be plainly observed. She then performed a Duquenois-Levinemodified test. Finally, she performed a thin-layer chromatography test. (Tr. at 155.)Ms. Klontz testified that the results of all three tests were positive for marijuana (Tr. at155). Ms. Klontz indicated that she then completed a report of analysis, which is afinalized report of the test results (Tr. at 169-170; St. Ex. 14). She noted that the internalchain`of custody and the--property control form- each. indicate that when she completedthe tests and her analysis, the evidence was moved to the destroy container anddestroyed on November 8, 2012 (Tr. at 173).

V. Commission Conclusion

After a review of the testimony and evidence submitted in this case, theCommission finds that Staff has demonstrated by a preponderance of the evidence thatRespondent was in possession of marijuana . while on . duty in violation of 49 C.F.R.392.4(a). The Respondent raised several arguments regarding the activities of the Patrolofficers involved in this case, none of which we find have merit.

First, the Respondent challenged the lawfulness of the initial stop. Upon review,we find no merit to this argument. The Commission finds that Trooper Thomaslawfully stopped the Respondent's vehicle for following too close to another vehicle. Atall times during the stop, Trooper Thomas was in contact with Trooper Meyers and thestop was made while both Trooper Meyers and Trooper Thomas were observing thevehicle (Tr. at 17-18). The Troopers were acting as a single unit and reasonable,articulable suspicion existed for the stop. The. Commission notes that Troopers must beable to point to specific and articulable facts which, taken together with rationalinferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1,20 L. Ed. 2d 889, S. Ct. 1868 (1968). In evaluating reasonable suspicion, the Commissionmust consider the content of information and its degree of reliability. Both factors, thequantity and quality, are considered in the totality of the circumstances. See Alabama v.

White, 496 U.S. 325, 328, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990). In this instance, wefind that the information relied upon by Trooper Thomas to establish reasonablesuspicion to stop the Respondent was reliable as it was comrnunicated to him fromanother Trooper while the violation was being observed. Further, the keys to astatement's trustworthiness is the spontaneity of the statement and the proximity to theevent. Cox v. Oliver Machinery Co., 41 Ohi® App.3d 28, 35, 534 N.E.2d 855 (12th Dist.

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12-2100-TR-CVF -6-

1987). In our view, this communication.bears a high degree of trustworthiness becauseTrooper Meyers made the statement while he was observing the event.

Further, the content of the information relied upon by Trooper Thomas inmaking the stop included the nature of the violation, a description of the vehicle, andconfirmation that Trooper Thomas had stopped the correct vehicle (Tr. at 22). While theCommission recognizes that the Respondent objected to the communi.cation toTrooper Thomas as hearsay, the Commission notes that it is not strictly bound by theOhio rules of evidence, and that it believes the information communicated in thisinstance was specific and reliable. In our view, if an anonymous tip from a confidentialinformant is sufficient to establish reasonable suspicion for a search, then ac®minuiiicatiori'ftom: ariother Trooper indieating a violation; while it is being-observed,is also sufficient to establish reasonable suspicion for a stop. See Alabama at 330-331.

The Comutission believes that the testimony provided by Trooper Thomas is reliableand that reasonable, articulable suspicion existed for the stop.

Secondly, the Respondent argued on brief that it was unreasonable forTrooper Thomas to open the passenger-side door and step into the vehicle. We find nomerit to this argument. The United States Supreme Court has held that there exists alegitimate and weighty interest in officer safety that outweighs any de rr ►inim;s

intrusion of requiring a driver, already lawfully stopped, from exiting a vehicle.Pennsylvania v. Mimms, 434 U.S. 106,110-111, 98 S. Ct. 330, 54 L. Ed. 2d 331; Berkemer v.

McCarty, 468 U.S. 420, 429, n. 29, 104 S. Ct. 3138, 82 L. Ed. 2d 317; Michigan v. Long,

463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed. 2d 1201. Similarly, in this.instance, webelieve the legitimate and weighty interest of officer safety outweighs any intrusionTrooper Thomas made on the Respondent. Trooper Thomas opened the door andstepped into the vehicle for his own safety to determYne if there were any otherpassengers in the vehicle or if the driver was in possession of a firearm (Tr. at.69). Inlight of the legitimate and weighty interest in officer safety, the Commission believesthat Trooper Thomas acted lawfully and reasonably. .

Third, the Respondent asserted on brief that the search of the Respondent'svehicle was unlawful and unreasonable. We find no merit to this assertion. Theevidence shows that the pipe sitting in the cup holder of the Respondent's CMV wassitting in plain view and inadvertently discovered, which created probable cause for a

search. See Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112. TheCommission believes that Trooper Thomas has the experience and training necessary torecognize a pipe; as well as the look and smell of burnt marijuana residue (Tr. at 15-16,27-28). Furthermore, we believe Trooper Thomas's discovery of the pipe wasinadvertent, as he observed it in the cup holder of the truck before. the Respondenthanded it to him (Tr. at 58). Pursuant to inspecting the pipe, Trooper Thomas placedthe Respondent into investigative custody and remained with the Respondent while

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12-2100-TR-CVF -7-

Trooper Woodyard conducted the search of the Respondent's vehicle (Tr. at 28). TheCommission believes that there was probable cause for the search based upon TrooperThomas's inadvertent discovery of the pipe in plain view. Further, we believe thatTrooper Woodyard's warrantless search of the Respondent's vehicle was permissibleunder the pervasively regulated industry exception to the warrant requirement fora `'strative searches. United States v. Brszvell, 406 U.S. 311, 317, 92 S.Ct. 1593,

32 L.Ed.2d 87 (1972); Colonnade Cateizng Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774,

25 L.Ed.2d 60 (1970).

Fourth, the Respondent argued that Staff did not demonstrate that the greenleafy material actuaIly consisted of marijuana. The Commission finds that thisargi.iirient has no zrierit: The Commission:=-finds = that Staff demonstrated by apreponderance of the evidence that the evidence seized was marijuana, which is a21 C.F.R. 1308.11 Schedule 1 substance. Numerous tests were conducted on theevidence in this case and each resulted in positive results for marijuana. Further,Troopers trained and qualified may identify marijuana without laboratory testing aslong as there is sufficient foundation laid to establish familiarity. State v. Maupin,42 Ohio St.2d 473, 480 (1975). We believe that Trooper Thomas, Trooper Woodyard,and Ms. Klontz each had sufficient training and familiarity with marijuana to recognizeit, and each indicated that the green leafy material was marijuana (Tr. at 31, 77, 155).Trooper Thomas also conducted a marijuana field test that displayed a positive resultfor marijuana (Tr. at 42; St. Ex. 5). Further, Ms. Klontz conducted a Duquenois-Levinetest and a thin-layer chromatography test and each confirmed positive results formarijuana (Tr. at 155). Additionally, while Staff is not required to establish a perfectchain of custody, we find that Staff demonstrated an unbroken chain of custody andthat the evidence tested was the same evidence found in the Respondent's vehicle. State

v. Brooks, 3rd Dist. No. 5-11-11, 2012-Ohio-5235, ¶39; State v. Gross, 97 Ohio St.3d 121,

2002-Ohio-5524, 776 N.E.2d 1061, ¶ 57, citing State v. Keene, 81 Ohio St.3d 646, 662,

693 N.E.2d 246 (1998); See also State v. Hunter, 169 Ohio App. 3d 65, 2006-Ohio-5113,

861 N.E.2d 898, ¶ 16 (6th Dist.).

Fin.ally, the Respondent asserted on brief that Staff had a duty to preserve theevidence and that Staff's failure to preserve the evidence gives rise to a rebuttablepresumption that the Respondent was prejudiced by the destruction of the evidence.However, we find that this argument has no merit, as we believe the numerous positivetests for marijuana, the photos, and the substantial testimony regarding the marijuanarebut any presumption that would arise in favor of the Respondent. Additionally, noprejudice exists where evidence was destroyed pursuant to good faith and where therewas no immediate request for preservation. State v. Fuller, 2nd Dist. Ohio No. 18994,

2002-Ohio-2055 (April 26, 2002); State v. Tarleton, 7th Dist. Ohio No. 02-HA-541, 2003-Ohio-3492 (June 30, 2003). We believe that the evidence was destroyed in good faithand there has been no demonstration of a request for preservation. Further, while the

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12-2100-TR-CVF -8-

Respondent asserts that the destruction of the evidence may give rise to a rebuttablepresumption in favor of the Respondent, the Respondent's failure to testify or presentany witness testimony at hearing may give rise to an adverse inference against the

Respondent. State ex rel. Verhovec v. Mascio, 81 Ohio St.3d 334,337 (1998), citing Baxter v.

Palmigzano, 425 U.S. 308, 318 (1976).

Accordingly, the Commission finds that Staff has met its burden anddemonstrated by a preponderance of the evidence that Respondent was in possession ofmarijuana while on duty in violation of 49 C.F.R. 392.4(a). Given the seriousness ofsuch a violation to the safety of this driver, as well as drivers of other CMVs and driversand passengers of noncommercial vehicles, we believe that a civil forfeiture iswarranted.1 We note that the Commission is statutorily authorized to assess a forfeitureof up to $25,000 for any violation of the commercial motor vehicle safety regulations.Further, pursuant to R.C. 4923.99, the amount of a forfeiture should not be incompatiblewith the requirements of the United States departxnent of transportation, and, to theextent practicable, should utilize a system comparable to the recommended civilpenalty adopted by the Commercial Motor Vehicle Safety Alliance (CVSA). Under themost current CVSA fine schedule, the recommended fine for possession of drugs andother substances by a driver of a CMV is $500.00. We believe that, based on theevidence and facts of this case, a_ torfeiture of $500.00 is appropriate and should beassessed against the Respondent. Accordingly, the Respondent shaLl pay the $500 civilforfeiture to the Commission by check or money order, made payable to Treasurer,State of Ohio" and mailed or delivered to the Public Utilities Commission of Ohio,Attention: Fiscal Department, 180 East Broad Street, 4th Floor, Columbus, Ohio 43215-3793. Case No. 12-2100-TR-CVF and Inspection Report No. OH3257001617D should bewritten on the check. Payments shall be made within 30 days of the Opinion and

Order.

Further, we note that the Commission has adopted a zero tolerance policy that analcoholic beverage, not listed on the cargo manifest, should not be carried anywhere onthe vehicle, from the front bumper of the tractor to the taillights of the trailer. In re

James Martindale, Case No. 97-143-TR-CVF, Opinion and Order (July 3, 1997). In thiscase, we similarly find that a zero tolerance policy should be applied to all 21 C.F.R.1308 Schedule 1 substances, including marijuana, which is prohibited by the FMCSA.The intent of this zero tolerance policy is to forbid the carrying of any substance on aCMV that could result in impairment of the driver. We find that these substancesshould not be carried anywhere on the vehicle and that a zero tolerance policy should

be adopted.

1 While Staff had indicated on the NPD that it agreed not to assess a civzl forfeiture for violating49 C.P.R. 392.4(a), such an indication is only a recommendation and does not bind the Conlnilission.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW:

(1) On July 17, 2012, Respondent filed a request for anadmuustrative hearing regarding the apparent violation of49 C.F.R. 392.4(a).

(2) A prehearing conference was held on August 21, 2012.

(3) A hearing was held on October 10, 2013.

(4) Ohio Adm.Code 4901:2-7-20 requires that, at hearing, Staff.. prove the occurrence of a violati®n.by a preponderance ofthe evidence.

(5) Based upon the record in this proceeding, the Commissionfinds that Staff has proven, by a preponderance of theevidence, that the Respondent was in possession ofmarijuana while on duty and operating a commercial motorvehicle in violation of 49 C.F.R. 392.4(a).

(6) The Commission finds it reasonable that the Respondent beassessed a civil forfeiture of $500.00.

ORDER:

It is, therefore,

-9-

ORDERED, That the Respondent be assessed a $500.00 civil forfeiture. It is,

further,

ORDERED; That the Attorney General of Ohio take all legal steps necessary toenforce the terms 'cif this Opini.ori and Order. It is, further,

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ORDERED, That a copy of tktis Opinion and Order be served upon each party of

record.

TIdE PUBLIC UTILITIES COMMISSION OF, OHIO

M. Beth Troaxa.bold

BAM f sc

Entered in the Journal

tIAR

Barcy F. McNealSecretary

i Slaby

Asim Z. Haque

-43-

/1/

BEFORE

THE PUBLIC UTILITIES COMMISSION OF OHIO

In the Matter of Ted A. Warren, Notice of )Apparent Violation and Intent to Assess ) Case No. 12-2100-TR-CVFfeiture. ) (OH3257001617D)Forfeiture.

NG AND DISSENTING OPINION OF CO SSIONER LYNN SLABY

I concur in part, and dissent in part.

I concur that the Respondent violated 49 C.F.R. 392.4(a), being in possession ofmarijuana while on duty.

I dissent on our finding that a fine of $500 would be appropriate in this case. Wenote the seriousness of the offense and establish a zero tolerance for such violations.Pursuant to R.C. 4923.99(A)(1), the Commission is statutorily empowered to impose aforfeiture of "not more than twenty-five thousand dollars," and °°to the extentpracticable, shall utilize a system comparable" to the recommendations adopted by thecommercial vehicle safety alliance. I also recognize that the CVSA's North AmericanUniform Out-of-Service Criteria Reference to Uniform Maxim.um Fine scheduleprovides for the $500 fine. Based upon our statutory authority, in this case, I do notbelieve that a $2,500 or more fine, for this type of violation, is incompatible with thecivil penalty guidelines.

LS/sc

Entered in the Journal

MAR 2 6 :20i4 -

^.6NdtT'Kea.P

Barcy F. McNealSecretary

-44-

BEFORE

THE PUBLIC UTILITIES COMMISSION OF OHIO

In the Matter of Ted A. Warren, Notice of ) Case No. 12-2100-TR-CVFApparent Violation and Intent to Assess ) (OH3257001617D)Forfeiture. )

ENTRY ON REHEARING

The Conu-nission finds:

(1) On July 17, 2012, Ted Warren (Respondent) filed a request foran administrative hearing regarding an apparent violation of49 C.F.R. 392.4(a) for being in possession of marijuana wliile onduty and operating a commercial motor vehicle (CMV).

(2) By Opinion and Order (Order) issued on March 26, 2014, theCommission found that Staff had proved, by a preponderanceof the evidence, that the Respondent was in possession ofmarijuana while on duty and operating a CMV in violation of49 C.F.R. 392.4(a) and assessed a civil forfeiture of $500.00.

(3) Pursuant to R.C. 4903.10, any party who has entered anappearance in a Coxnmzss1on proceeding may apply forrehearing with respect to any matters determined by theCommission, within 30 days of the entry of the order upon theCommission's journal.

(4) On April 25, 2014, the Respondent filed an application forrehearing in which he raises six assignments of error that arerelated to five areas: that the stop, search, and seizure wereunlawful, that the Ohio Administrative Code does not apply tothe Respondent, that Staff did not meet its burden of proof, thatspoliation of evidence should have created a presumption infavor of the Respondent, and that the civil forfeiture wasunreasonable.

I. SEARCH AND SEIZURE

(5) In his first assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because the evidence seizedfrom the Respondent's truck should have been inadmissible. Inaddition, the Respondent argues that the stop violated

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Fourth Amendment to the United States Constitution andArticle I, Section 14 of the Ohio Constitution because thearresting officer did not have reasonable, articulable suspicionfor the stop.

(6) We find no merit to the Respondent's first assignment of error.As we indicated in the Order, reasonable, articulable suspicionexisted for the stop of the Respondent. Trooper Thomasstopped the Respondent, in the normal course of his duties asan Ohio State Highway Patrol trooper, pursuant to a radiocommunication from Trooper Meyers who was observing theRespondent following another vehicle too close. Following tooclose is an apparent violation of R.C. 4511.34 and 49 C.F.R.392.2.

We note that a stop is lawful if facts relayed are sufficientlycorroborated to furnish reasonable suspicion that a defendant,or in tlus instance the Respondent, was engaged in criininalactivity. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412,110 L.Ed.2d 301 (1990). In determining that the statement wasreliable, we considered the totality of the circumstances,including the quality and quantity of the information,.and itsreliability. We found that the statement made to TrooperThomas was trustworthy and sufficient to establish reasonablesuspicion for the stop. (Order at 5.)

Additionally, we noted that the reliabi7.ity of the irrformationprovided to Trooper Thomas by Trooper Meyers was far morereliable than an anonymous tip or a call from dispatch. In thiscase, Trooper Meyers communicated to Trooper Thomas that aviolation was occurring, the type of violation occurring, andthe vehicle committing the violation. Trooper Meyersremained in radio contact with Trooper Thomas until the stopwas made and confirmed that he had stopped the correctvehicle. (Tr. at 22.)

Finally, pursuant to R.C. 4923.06(C), inspectors and employeesauthorized to conduct inspections may stop motor vehicles toinspect those vehicles and drivers to enforce compliance withrules adopted under R.C. 4923.04. Therefore, we find that thatthe stop was lawful because reasonable, articulable suspicionexisted for the stop. Further, the Respondent failed to provide

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any evidence at hearing that the stop initiated byTrooper Thomas was not in accordance with all applicableFederal Motor Carrier Safety Regulations (FMCSR) andCommission rules. Accordingly, the Respondent's request forrehearing on this issue should be denied.

(7) In his second assignment of error, the Respondent asserts thatthe Order is unlawful and unreasonable becauseTrooper Thomas was not legally justified in entering the truckwithout the Respondent's consent. The Respondent alsoargues that the intrusion of entering the Respondent's truck tocheck for other passengers, check for firearms, and request theRespondent's driver s license, registration, and insurance, wasa Fourth Amendment search for which Trooper Thomas wasrequired to have probable cause or a warrant (See Tr. at 24-25).

(8) We find no merit to Respondent's second assignment of error,as we have already indicated in the Order (Order at 6). Wefind that there exists a legitimate and weighty interest in officersafety that outweighs the de m7r,7mds intrusion upon theIawfully stopped Respondent. Pennsylvania v. Mimms, 434 U.S.106, 110-11, 98 S. Ct. 330, 54 L. Ed. 2d 331; Berkemer v. McCarty,468 U.S. 420, 429, n. 29, 104 S. Ct. 3138, 82 L. Ed. 2d 317;Michigan v. Long, 463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed.2d 1201. While the intrusion of stepping up to the passengerside of the cab of a semi-truck may be greater than asking adriver to exit a vehicle, it is not so great as to overcome thelegitimate and weighty interest in officer safety. It is also not sogreat as to overcome the pervasively regulated industryexception or the need for the Commission and authorizedemployees of the state of Ohio to conduct-inspections.

Trooper Thomas had a duty to request the Respondent'slicense, registration, medical certificate, and proof of insurance.Commercial trucking is a highly regulated industry wheredrivers are required under the FMCSR to have a commercialdriver's license, valid registration, requisite medicalqualifications, and proof of insurance. Pursuant to R.C.4923.06(B), authorized employees of the state highway patrolmay conduct inspections of motor vehicles and drivers.Further, pursuant to R.C. 4923.06(C) and (D), the state highwaypatrol may stop motor vehicles to inspect those vehicles

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12-2100-TR-CVF

and drivers to enforce complzance with rules adoptedunder R.C. 4923.04. In this case, it was reasonable forTrooper Thomas, after having initiated the stop of the CMVdriven by the Respondent, to open the passenger side door ofthe CMV and step up to the cab for officer safety to determineif a firearm or additional occupant was present, as wellas to speak to the Respondent (Tr. at 54, 69). Therefore, theactions of Trooper Thomas did not rise to the level of a FourthAmendment search. Accordingly, the Respondent's request forrehearing on this issue should be denied.

II. APPLICATION OF THE OI-1IO ADMINISTRATIVE CODE

(9) In his third assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because the record in thiscase does not support the Commzssion°s finding that theOhio Administrative Code applies to the Respondent. TheRespondent argues that there is no record evidence that theRespondent was driving for either an interstate or intrastatemotor carrier at the time of the stop.

Additionally, the Respondent avers that, even if theRespondent was driving for a motor carrier, this does not meanthat the Commission s rules apply to the Respondent. TheRespondent argues that pursuant to Ohio Adm.Code 4901:2-5-01(A), the Commissiori s rules apply to owners and drivers ofmotor vehicles leased to motor carriers during the periodscovered by such lease agreements. In addition, the Respondentasserts that there is no record evidence that the Respondentwas leased to any motor carrier or that he was driving a CMVduring a period covered by such a lease agreement at the timeof the purported violation.

(10) We find no merit to the Respondent's third assi ent of error.The Commission finds that rehearing on this assignment oferror should be denied. Ohio Adm.Code 4901:2-5-01 indicatesthat a motor carrier includes all officers, agents,representatives, and employees of carriers by motor vehicleresponsible for the management, maintenance, operation, ordriving of motor vehicles. Ftarther, Ohio Adm.Code 4901:2-5-02(A) and (B) states that all motor carriers operating inintrastate or interstate commerce within Ohio shall conduct

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^..

12-2100-TR-CVF -5-

their operations in accordance with the FMCSR, and theprovisions of Ohio Adm.Code Chapter 4901:2-5. These rulesthen indicate that a violation of a federal regulation by anymotor carrier engaged in interstate commerce in Ohioconstitutes a violation of the Commission's rules.

Additionally, we note that evidence was presented at hearingto support the Respondent's status as a driver of a CMV for amotor carrier. The Driver/Vehicle Examination Report,introduced as a hearing exhibit by Staff, indicates that theRespondent was driving a CMV in which a load of steel wasbeing transported in commerce for the carrier Total PackageExpress, Inc. and the shipper AK Steel (Staff ' Ex. 7).Accordingly, the Commission finds that the OhioAdministrative Code applies to the Respondent. Accordingly,the Respondent's request for rehearing on this issue should bedenied.

III. BURDEN OF PROOF

(11) In his fourth assignment of error, the Respondent argues thatthe Order is unlawful or unreasonable because Staff did notmeet its burden of proving, by a preponderance of theevidence, that the Respondent possessed marijuana. TheRespondent asserts that the field test conducted byTrooper Thomas, and the photo of the results of the field test,do not demonstrate that it provided a positive result formarlJuana. Additionally, the Respondent argues thatMs. IQontz, who conducted the analysis of the marijuana at thestate crime lab, had no independent recollection of conductingthe tests and analyses of the marijuana. Therefore, theRespondent avers, Staff did not adduce competent, credibleevidence showing that the material tested by Ms. Klontzcontained marlluana. Further, the Respondent asserts 'that,even if a test, on its own, demonstrated a positive result formarijuana, the positive test is only presumptive.

Fina]Iy, in regards to this same assignment of error, theRespondent contends that Staff had the burden to demonstratebeyond a preponderance of the evidence that the marijuanacontained a hallucinogenic substance. The Respondent notesthat 49 C.F.R. 392.4(a) provides that no driver shall be on duty

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and possess any 21 C.F.R. 1308.11 Schedule 1 substance. TheRespondent then argues that the substances listed under21 C.F.R. 1308.11(d) are hallucinogenic substances; therefore,Staff must prove beyond a preponderance of the evidence thatthe marijuana contains a hallucinogenic substance.

(12) We find no merit to the Respondent's fourth assignment oferror. We found in the Order that Staff had met its burden anddemonstrated by a preponderance of the evidence that theRespondent was in possession of marijuana while on duty inviolation of 49 C.F.R. 392.4(a) (Order at 8). We found that thetestimony of Trooper Thomas, the testimony of Ms. Klontz, andthe numerous tests conducted on the marijuana demonstratethat it was marijuana (Order at 7; Tr. at 31, 77, 155). Even if asingle positive result for marijuana is only presumptive, in thiscase there were four positive test results and multiple witnessopinions that the material was marijuana (Tr. at 42, 155; StaffEx. 5). Additionally, not a single negative test result formarijuana was presented at hearing and no person testifiedthat the material was not marijuana or could not definitively bedetermined to be marijuana. While the burden of proof restswith Staff, it may be reco ` ed that there was little evidencepresented to sufficiently incline our fair and impartial minds tothe other side of this issue.

Additionally, we find no merit to the Respondent's argumentthat Staff must prove by a preponderance of the evidence thatthe marijuana contained a hallucinogenic substance. As wenoted previously, the Comnission has adopted the FederalMotor Carrier Safety Regulations, and 49 C.F.R. 392.4(a)provides that no driver shall be on duty and possess any21 C.F.R. 1308.11 Schedule 1 substance. Marijuana is then listedas a Schedule 1 substance at 21 C.F.R. 1308.11(d)(23). It is notthe Staff's or the Commission's responsibility to determinewhether marijuana contains a hallucinogenic substance andthen rewrite the law to include or exclude it from the list ofSchedule 1 substances. The law provides that marijuana is ahallucinogenic substance and lists it as such in 21 C.F.R.1308.11(d)(23). Accordingly, the Respondent°s request forrehearing on this issue should be denied.

_6-

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_ . . ^ . ^• " ' I ' ...

12-2100-TR-CVF

IV. SPOLIATION OF EVIDENCE

(13) In his fifth assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because it did not find thatspoliation was relevant or the resulting doctrine was overcomeby other evidence in the record. Additionally, the Respondentasserts that the Commission erred by indicating that theRespondent's failure to testify could give rise to an adverseinference against the Respondent.

(14) We find no merit to the Respondent's fifth assignment of error.As we indicated in the Order, no prejudice exists whereevidence was destroyed pursuant to good faith and wherethere was no immediate request for preservation (Order at 7).State v. Fuller, 2nd Dist. Ohio No. 18994, 2002-Ohio-2055(April 26, 2002); also citing, State v. Tarleton, 7th Dist. Ohio No.02-HA-541, 2003-Ohio-3492 (June 30, 2013). Additionally, weindicated that the numerous positive tests for marijuana, thephotos, and the substantial testunony regarding the marijuanarebut any presumption that would arise in favor of theRespondent for the destruction of the evidence (Order at 7).We stiIl find that _ the tests, photos, and testimony weresufficient to rebut and overcome any presumption that wouldarise in favor of the Respondent.

Additionally, we indicated in the Order that, while there mayexist a rebuttable presumption in favor of the Respondent; theRespondent's failure to testify or present any witness testimonymay also give rise to an adverse inference against theRespondent (Order at 8). However, we clarify that while theremay exist.an adverse inference against the Respondent, we didnot actually hold an adverse inference against him.Accordingly, the Respondent's request for rehearing on thisissue should be denied.

V. CIVIL FORFEITURE

(15) In his sixth assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because a $500.00 civilforfeiture is an unreasonable amount to be imposed under thefacts of this case. The Respondent asserts that the Commissionimproperly relied upon the Commercial Motor Vehicle Safety

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AIliance's (CVSA) maximum fine schedule. Additionally, theRespondent contends that even if the Respondent possessedmarijuana, there is no indication that the Respondent wasunder the influence of marijuana. Finally, the Respondentavers that adopting a zero tolerance policy is arbitrary andcapricious, and that such a policy should be adopted pursuantto a rule-making proceeding and not. a post hoc declarationmade in an opinion and order.

(16) We find no merit to the Respondent's sixth assignment of error.The Commission initially notes that its reliance on themaximurn fine schedule published by the CVSA is reasonablebecause R.C. 4923.99(A)(1) directs the Commission to use, tothe extent practicable, a system comparable to therecommended civil-penalty adopted by the CVSA. TheCommigsion finds that relying on the CVSA fine schedule wasnot only lawful but in strict compliance with the plain languageof the statute.

Additionally, while the Respondent argues that there is noevidence that he was under the influence of marijuana, theCommission found that he possessed marijuana, which issufficient for a violation of 49 C.F.R. 392.4(a) (Order at 8).There is no requirement for the Commission to find that theRespondent was under the influence of marijuana an.d wemade no such finding.

Finally, the Conunission notes that its adoption of a zerotolerance policy towards all violations regarding 21 C.F.R. 1308Schedule 1 substances is reasonable, as the Co 'ssionappropriately takes a zero tolerance policy towards anyviolation of the law. In this case, our indication that we wouldadopt a zero tolerance policy towards the 21 C.F.R. 1308substances was to provide a general indication to the industrythat our previously adopted zero tolerance policy regardingviolations for alcoholic beverages would extend to all unlawfulsubstance. See In re James Martindale, Case No. 97-143-TR-CVF,Opinion and Order (July 3, 1997). Therefore, the Respondent'srequest for rehearing on this issue should be denied.

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It is, therefore,

-9-

ORDERED, That application for rehearing filed by the Respondent be denied. It is,further,

ORDERED, That a copy of this Eniry on Rehearing be served upon each parfy ofrecord.

TI--IE PUBLIC TJTTL.ITIES COMMISSION OF OHIO

Thomas W.

._----^-' __

Steven D. Lesser

W16Y..... . .... ..M. Beth Trombold

BA.Wsc

Entered in the Journal

MAY '21 -20144

Barcy F. McNealSecretary

(r` '

/^•.^',,I.-

As%m Z. Haque

-53-

It. a

BEFORE

THE PUBLIC UTILITIES CMMISSION OF OHIO

In the Matter of Ted A. Warren, Notice of ) Case No. 12-2100-TR-CVFApparent Violation and Intent to Assess ) (OH3257001617D)Forfeiture. )

OPINION AND ORDER

The Commission, considering the applicable law and evidence of the record, andbeing otherwise fully advised, hereby issues its Opinion and Order in this matter.

APPEARANCES:

Mike DeWine, Ohio Attorney General, by John Jones and Ryan O'Rourke,o Assistant Attorneys General, 180 East Broad Street, Columbus, Ohio 43215, on behalf of

Staff of the Public Utilities Commission of Ohio.

Brent L. English, 820 West Superior Avenue, Suite 900, Cleveland, Ohio 44113-

1818, on behalf of Ted A. Warren.

OPINION:

I. Nature of the Proceeding and Background

This case involves a violation for operating a commercial motor vehicle (CMV)while on duty and in possession, under the influence of, or using marijuana, which is a21 C.F.R. 1308.11 Schedule 1 substance. On March 1, 2012, Trooper Mike Meyers, whowas conducting aircraft compliance operations on Interstate Route 70 in MadisonCounty, observed a CMV committing a violation for followi.ng another vehicle tooclose. Trooper Meyers contacted Trooper Thomas, who was in his Ohio State Idighway

Patrol (Patrol) vehicle, and Trooper Thomas stopped the C . The CMV was operated

by Total Package Express, Inc. and driven by Ted A. Warren (Respondent). Upon

entering the Respondent's CMV, Trooper Thomas observed what he believed to beparaphernalia for smoking marijuana and contacted Trooper Woodyard andTrooper Bays. Trooper Woodyard conducted a search of the Respondent's vehicle anddiscovered what he believed to be marijuana. Trooper Bays then conducted aninspection of the vehicle and cited the Respondent for operating a CMV while on duty

and in possession, under the influence of, or using, a 21 C.F.R. 1308.11 Schedule 1substance, which is an apparent violation of 49 C.F.R. 392.4(a).

On June 18, 2012, Staff timely served a Notice of Preliminary Determination(NPD) on the Respondent in accordance with'Ohio Adm.Code 4901:2-7-12. In the NPD,

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the Respondent was notified that Staff had decided not to assess a civil forfeiture forviolating 49 C.F.R. 392.4(a). The parties, however, could not reach a settlement at anAugust 21, 2012 settlement conference. Thereafter, a hearing was conducted onOctober 10, 2013.

II. Applicable Law

The Commission adopted the Federal Motor Carrier Safety Rules pursuant toOhio Adm.Code 4901:2-5-02(A), for the purpose of governing transportation by motorvehicle in the state of Ohio. The Federal Motor Carrier Safety Rules are found in49 C.F.R. 40, 107 subparts (f) and (g), 367, 380, 382, 383, 385, 386, 387, and 390-397. Inaddition, Ohio Adm.Code. 4901:2-5-02(B). requires. all motor carriers engaged ininterstate commerce in Ohio to operate in conformity with all rules of the United StatesDepartment of Transportation (USDOT). Further, R.C. 4923.99 authorizes theCoznmission to assess a civil forfeiture of up to $25,000 per day against any person whoviolates the safety rules adopted by the Commission when transporting persons orproperty in interstate commerce.

Ohio Adm.Code 4901:2-7-01 through 4901:2-7-22 govern all proceedings of the

Commission to assess forfeitures and make compliance orders. These rules require thata respondent be afforded reasonable notice and the opportunity for a hearing whereStaff finds a violation of the Federal Motor Carrier Safety Rules. Ohio Adm.Code4901:2-7-20(A) also provides that, during the evidentiary hearing, Staff must prove theoccurrence of the violation by a preponderance of the evidence.

III. Issues

The primary issue in this case is whether the Respondent was on duty and lnpossession, under the influence of, or using, a 21 C.F.R. 1308.11 Schedule 1 substance.Respondent also contests whether the stop and the search were lawful, as well aswhether the evidence collected actually consisted of marijuana, which is a 21 C.F.R.1308.11 Schedule 1 substance.

IV. Discussion

At the hearing, Staff first presented Joe Turek, a Staff Attorney and ComplianceDivision Supervisor with the Transportation Department of the Staff (Tr. at 7).Mr. Turek testified that Staff initially served the Respondent with a Notice of Intent toAssess Forfeiture (Tr. at 8). . Subsequently, Staff held a conference with the Respondentbut the parties could not reach a resolution (Tr. at 8). Staff then issued an NPD, afterwhich the Respondent requested an administrative hearing (Tr. at 8-9; Staff Ex. 1).Mr. Turek testified that the NPD assessed a $0.00 forfeiture (Tr. at 11; Staff Ex. 1).

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Mr. Turek stated that, in his opinion, the Commission can order a different forfeitureamount than what was assessed in the NPD, pursuant to Ohio Adin.Code 4901:2-7-12

(Tr. at 12).

Staff then presented Trooper Todd Thomas, who is a State Trooper that has beenwith the Patrol for 24 years (Tr. at 15). Trooper Thomas testified that on March 1, 2012,he was near the West Jefferson Patrol Post and in radio contact withTrooper Mike Meyers, who was in an airplane watching below for violations (Tr. at 17-18). Trooper Meyers notified Trooper Thomas that he was observing the Respondent'struck following too close to another vehicle in violation of the law (Tr. at 22).Trooper Meyers gave Trooper Thomas a description of the vehicle and confirmed thatTrooper Thomas had stopped the correct vehicle (Tr. at 22).

Trooper Thomas testified that after stopping the Respondent, he approached thepassenger side of the truck and opened the passenger side door. Trooper Thomas thenstepped into the truck and requested the Respondent's driver's license,'registration, andinsurance. Trooper Thomas stated that while he was advising the Respondent, heobserved a copper pipe in the cup holder. (Tr. at 24-25.) Trooper Thomas said that hebelieved the pipe to be an instrument to smoke marijuana and asked the Respondent tohand him the pipe, which the Respondent eventually did (Tr. at 27-28).Trooper Thomas testified that the pipe smelled of marijuana and had burnt residue onthe inside (Tr. at 28). Trooper Thomas indicated that he then placed the Respondentunder investigative custody and contacted Trooper Travis Woodyard andMotor Carrier Inspector Unit (Inspector) Dennis Bays (Tr. at 28).

Trooper Thomas testified that he advised Trooper Woodyard, upon his arrival,that he had discovered a pipe that appeared to contain marijuana residue.Trooper Woodyard then left to conduct a search of the vehicle and returned with a lipbalm container and an Altoid can containing a green leafy plant substance (Tr. at 29,31). Based on his experience, Trooper Thomas concluded that the substance looked,smelled, and generally appeared to be marijuana (Tr. at 31). Trooper Thomas testifiedthat he then placed the lip balm container and Altoid can in a bag until he could returnto the West Jefferson Patrol Post to mail the items to the crime lab (Tr. at 32).Trooper Thomas then briefed Inspector Bays on his discovery of the pipe and thecontainers holding what appeared to be marijuana (Tr. at 32).

Trooper Thomas then returned to the Ohio State Highway Patrol post andperformed a marijuana field test to determine the likelihood that the substance wasmarijuana (Tr. at 33, 41-42). He testified that the field test returned a positive result formarijuana and that he took photographs of the marijuana and the positive test result(Tr. at 42; Staff Ex. 5). Trooper Thomas also took photographs of the containers and thepipe (Staff Ex. 3; Staff Ex. 4). He then sealed the evidence and the property control form

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in a unique postage box designed for mailing evidence and mailed it to the crime lab

(Tr. at 49-50).

On cross-examination,. Trooper Thomas testified that he opened the passengerside door and stepped up into the truck for his own safety (Tr. at 54.) He stated that heopened the door and stepped into the vehicle to determine if any other passengers werepresent or if the driver was in possession of a firearm (Tr. at 69). He testified that, uponstepping into the vehicle, he then observed the pipe in the cup holder and asked theRespondent three times what it was. He said that after asking the Respondent a thirdtime, the Respondent handed him the pipe. (Tr. at 57-58.) Trooper Thomas then statedthat he did not know if the pipe belonged to the Respondent or if the Respondent hadever used=the-pipe (T.r: at 59):-.Trooper-Thomas: also indicated that he.did:not participateor observe the search of the Respondent's vehicle (Tr. at 60). Further, Trooper Thomastestified that he did not observe the Respondent commit a traffic violation (Tr. at 52).

Staff then presented Trooper Woodyard, who is also a State Trooper working forthe Patrol. He. testified that he has been with the Patrol for 20 years (Tr. at 71).Trooper Woodyard indicated that when he arrived at Trooper Thomas's location, heobserved the pipe and could see and smell burnt residue on it. He confirmed that thepipe and the burnt residue smelled like marijuana. (Tr. at 75-76.) Trooper Woodyardthen Mirandized the Respondent and informed the Respondent that he would searchthe vehicle based upon the pipe and the marijuana residue on it (Tr. at 77).Trooper Woodyard stated that he conducted a search of the vehicle and found theAltoid can containing marijuana in a compartment above the driver's side door. Hetestified that he also found a lip-balm container with marijuana residue in it. (Tr. at 77.)Trooper Woodyard then testified that after conducting the search and turning over theevidence to Trooper Thomas, he left the location (Tr. at 80).

Staff next presented Inspector Bays, a Motor Carrier Inspector working for thePatrol (Tr. at 95). Inspector Bays has been with the Patrol for nine years (Tr. at 96).Inspector Bays testified that he conducted a Level 2 inspection of the vehicle and thencompleted an inspection report (Tr. at 97-99). Inspector Bays stated that he found noviolations with the vehicle, so the only violation was for the marijuana (Tr. at 104-105).Inspector Bays and the Respondent each signed the inspection report (Tr. at 107; St. Ex.7). Inspector Bays then placed the Respondent out-of-service for 24 hours and drovehim to a truck stop (Tr. at 108). On cross-examination, Inspector Bays confirmed that henever saw the marijuana or the pipe (Tr. at 127). Inspector Bays testified that he had nopersonal knowledge of the Respondent possessing marijuana (Tr. at 128).

Staff's final witness was Kara IContz, a Criminalist with the Ohio State HighwayPatrol (Tr. at 133-134). Ms. Klontz testified that the evidence in this case was received atthe crime lab and given a unique identification number (Tr. at 139, 141). Ms. IQontz

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testified that she filled out a property control form that was associated with theevidence (Tr. at 149). Ms. Klontz stated that she also filled out a controlled substanceworksheet to indicate what kind of testing she conducted and the test results (Tr. at152). She indicated that she performed three laboratory tests to determine whether thematerial was a controlled substance. Ms. Klontz first conducted a macroscopic test,which is a general observation of the evidence including leaf shape, stems, and otherfeatures that can be plainly observed. She then performed a Duquenois-Levinemodified test. Finally, she performed a thin-layer chromatography test. (Tr. at 155.)Ms. Klontz testified that the results of all three tests were positive for marijuana (Tr. at155). Ms. Klontz indicated that she then completed a report of analysis, which is afinalized report of the test results (Tr. at 169-170; St. Ex. 14). She noted that the internalchain of custody and the-property control form=each indicate that-when she completedthe tests and her analysis, the evidence was moved to the destroy container anddestroyed on November 8, 2012 (Tr. at 173).

V. Co ssion Conclusion

^ ,

After a review of the testimony and evidence submitted in this case, theCommission finds that Staff has demonstrated by a preponderance of the evidence thatRespondent was in possession of marijuana while on duty in violation of 49 C.F.R.392.4(a). The Respondent raised several arguments regarding the activities of the Patrolofficers involved in this case, none of which we find have merit.

First, the Respondent challenged the lawfulness of the initial stop. Upon review,we find no merit to this argument. The Commission finds that Trooper Thomaslawfully stopped the Respondent's vehicle for following too close to another vehicle. Atall times during the stop, Trooper Thomas was in contact with Trooper Meyers and thestop was made while both Trooper Meyers and Trooper Thomas were observing thevehicle (Tr. at 17-18). The Troopers were acting as a single unit and reasonable,articulable suspicion existed for the stop. The Commission notes that Troopers must beable to point to specific and articulable facts which, taken together with rationalinferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1,20 L. Ed. 2d 889, S. Ct. 1868 (1968). In evaluating reasonable suspicion, the Commissionmust consider the content of information and its degree of reliability. Both factors, thequantity and quality, are considered in the totality of the circumstances. See Alabama v.

White, 496 U.S. 325, 328, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990). In this instance, wefind that the information relied upon by Trooper Thomas to establish reasonablesuspicion to stop the Respondent was reliable as it was communicated to him fromanother Trooper while the violation was being observed. Further, the keys to astatement's trustworthiness is the spontaneity of the statement and the proximity to theevent. Cox v. Oliver Machinery Co., 41 Ohio App.3d 28, 35, 534 N.E.2d 855 (12th Dist.

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1987). In our view, this cornmunication bears a high degree of trustworthiness becauseTrooper Meyers made the statement while he was observing the event.

Further, the content of the information relied upon by Trooper Thomas inmaking the stop included the nature of the violation, a description of the vehicle, andconfirmation that Trooper Thomas had stopped the correct vehicle (Tr. at 22). While theCommission recognizes that the Respondent objected to the communication toTrooper Thomas as hearsay, the Commission notes that it is not strictly bound by the®hio rules of evidence, and that it believes the information communicated in thisirLstance was specific and reliable. In our view, if an anonymous tip from a confidentialinformant is sufficient to establish reasonable suspicion for a search, then ac®mriiuilicatiori,from ^another Trooper indicating a violation; while it is being observed,is also sufficient to establish reasonable suspicion for a stop. See Alabama at 330-331.

The Commission believes that the testimony provided by Trooper Thomas is reliableand that reasonable, articulable suspicion existed for the stop.

Secondly, the Respondent argued on brief that it was unreasonable forTrooper Thomas to open the passenger-side door and step into the vehicle. We find nomerit to this argument. The United States Supreme Court has held that there exists alegitunate and weighty interest in officer safety that outweighs any de m;n;m,sintrusion of requiring a driver, already lawfully stopped, from exiting a vehicle.

Pennsylvania v. Mimms, 434 U.S. 106,110-111, 98 S. Ct. 330, 54 L. Ed. 2d 331; Berkemer v.

McCarty, 468 U.S. 420, 429, n. 29, 104 S. Ct. 3138, 82 L. Ed. 2d 317; Michigan v. Long,

463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed. 2d 1201. Similarly, in this instance, we

believe the legitimate and weighty interest of officer safety outweighs any intrusionTrooper Thomas made on the Respondent. Trooper Thomas opened the door andstepped into the vehicle for his own safety to determine if there were any otherpassengers in the vehicle or if the driver was in possession of a firearm (Tr. at 69). lnlight of the legitimate and weighty interest in officer safety, the Commission believes

that Trooper Thomas acted lawfully and reasonably.

Third, the Respondent asserted on brief that the search of the Respondent'svehicle was unlawful and unreasonable. We find no merit to this assertion. Theevidence shows that the pipe sitting in the cup holder of the Respondent's CMV wassitting in plain view and inadvertently discovered, which created probable cause for a

search. See Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112. TheCommission believes that Trooper Thomas has the experience and training necessary torecognize a pipe; as well as the look and smell of burnt marijuana residue (Tr. at 15-16,27-28). Furthermore, we believe Trooper Thomas's discovery of the pipe wasinadvertent, as he observed it in the cup holder of the truck before the Respondenthanded it to him (Tr. at 58). Pursuant to inspecting the pipe, Trooper Thomas placedthe Respondent into investigative custody and remained with the Respondent while

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Trooper Woodyard conducted the search of the Respondent's vehicle (Tr. at 28). TheCommission believes that there was probable cause for the search based upon TrooperThomas's inadvertent discovery of the pipe in plain view. Further, we believe thatTrooper Woodyard's warrantless search of the Respondent's vehicle was permissibleunder the pervasively regulated industry exception to the warrant requirement foradministrative searches. United States v. Biszoell, 406 U.S. 311, 317, 92 S.Ct. 1593,

32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774,

25 L.Ed.2d 60 (1970).

Fourth, the Respondent argued that Staff did not demonstrate that the greenleafy material actually consisted of marijuana. The Coinmission finds that thisargument has no merits The Commission fin.ds that Staff demonstrated by apreponderance of the evidence that the evidence seized was marijuana, which is a21 C.F.R. 1308.11 Schedule 1 substance. Numerous tests were conducted on theevidence in this case and each resulted in positive results for marijuana. Further,Troopers trained and qualified may identify marijuana without laboratory testing aslong as there is sufficient foundation laid to establish familiarity. State v. Maupin,42 Ohio St.2d 473, 480 (1975). We believe that Trooper Thomas, Trooper Woodyard,and Ms. Klontz each had sufficient training and familiarity with marijuana to recognizeit, and each indicated that the green leafy material was marijuana (Tr. at 31, 77, 155).Trooper Thomas also conducted a marijuana field test that displayed a positive resultfor marijuana (Tr. at 42; St. Ex. 5). Further, Ms. Klontz conducted a Duquenois-Levinetest and a thin-layer chromatography test and each confirmed positive results formarijuana (Tr. at 155). Additionally, while Staff is not required to establish a perfectchain of custody, we find that Staff demonstrated an unbroken chain of custody andthat the evidence tested was the same evidence found in the Respondent's vehicle. State

v. Brooks, 3rd Dist. No. 5-11-11, 2012-Ohio-5235, ¶39; State v. Gross, 97 Ohio St.3d 121,

2002-Ohio-5524, 776 N.E.2d 1061, ¶ 57, citing State v. Keene, 81 Ohio St.3d 646, 662,

693 N.E.2d 246 (1998); See also State v. Hunter, 169 Ohio App. 3d 65, 2006-Ohio-5113,

861 N.E.2d 898, ¶ 16 (6th Dist.).

Finally, the Respondent asserted on brief that Staff had a duty to preserve theevidence and that Staff's failure to preserve the evidence gives rise to a rebuttablepresumption that the Respondent was prejudiced by the destruction of the evidence.However, we find that this argument has no merit, as we believe the numerous positivetests for marijuana, the photos, and the substantial testimony regarding the marijuanarebut any presumption that would arise in favor of the Respondent. Additionally, noprejudice exists where evidence was destroyed pursuant to good faith and where therewas no immediate request for preservation. State v. Fuller, 2nd Dist. Ohio No. 18994,

2002-Ohio-2055 (April 26, 2002); State v. Tarleton, 7th Dist. Ohio No. 02-HA-541, 2003-Ohio-3492 (June 30, 2003). We believe that the evidence was destroyed in good faithand there has been no demonstration of a request for preservation. Further, while the

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Respondent asserts that the destruction of the evidence may give rise to a rebuttablepresurnption in favor of the Respondent, the Respondent's failure to testify or presentany witness testimony at hearing may give rise to an adverse inference against the

Respondent. State ex rel. Verhovec v. Mascio, 81 Ohio St.3d 334, 337 (1998), citing Baxter v.

Palmigiano, 425 U.S. 308,318 (1976).

Accordingly, the Commission finds that Staff has met its burden anddemonstrated by a preponderance of the evidence that Respondent was in possession ofmarijuana while on duty in violation of 49 C.F.R. 392.4(a). Given the seriousness ofsuch a violation to the safety of this driver, as well as drivers of other CMVs and driversand passengers of noncommercial vehicles, we believe that a civil forfeiture iswarranted.1 We note that the Cornn-Lission is statutorily authorized to assess a forfeitureof up to $25,000 for any violation of the commercial motor vehicle safety regulations.Further, pursuant to R.C. 4923.99, the amount of a forfeiture should not be incompatiblewith the requirements of the United States department of transportation, and, to theextent practicable, should utilize a system comparable to the recommended civilpenalty adopted by the Commercial Motor Vehicle Safety Alliance (CVSA). Under themost current CVSA fine schedule, the recommended fine for possession of drugs andother substances by a driver of a CMV is $500.00. We believe that, based on theevidence and facts of this case, a.forfeiture of $500.00 is appropriate and should beassessed against the Respondent. Accordingly, the Respondent shall pay the $500 civilforfeiture to the Commission by check or money order, made payable to "Treasurer,State of Ohio" and mailed or delivered to the Public Utilities Commission of Ohio,Attention: Fiscal IJepartment, 180 East Broad Street, 4th Floor, Columbus, Ohio 43215-3793. Case No. 12-2100-TR-CVF and Inspection Report No. OH3257001617D should bewritten on the check. Payments shall be made within 30 days of the Opinion and

Order.

Further, we note that the Commission has adopted a zero tolerance policy that analcoholic beverage, not listed on the cargo manifest, should not be carried anywhere onthe vehicle, from the front bumper of the tractor to the taillights of the trailer. In re

James Martindale, Case No. 97-143-TR-CVF, Opinion and Order (July 3, 1997). In thiscase, we similarly find that a zero tolerance policy should be applied to all 21 C.F.R.1308 Schedule 1 substances, including marijuana, which is prohibited by the FMCSA.The intent of this zero tolerance policy is to forbid the carrying of any substance on aCMV that could result in iunpairment of the driver. We find that these substancesshould not be carried anywhere on the vehicle and that a zero tolerance policy should

be adopted.

7 While Staff had indicated on the NPD that it agreed not to assess a civil forfeiture for violating

49 C.F.R. 392.4(a), such an indication is only a recommendation and does not bind the Commzssion.

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FINDINGS OF FACT AND CONCLUSIONS OF LAW:

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(1) On July 17, 2012, Respondent filed a request for anadministrative hearing regarding the apparent violation of

49 C.F.R. 392.4(a).

(2) A prehearing conference was held on August 21, 2012.

(3) A hearing was held on October 10, 2013.

(4) Ohio Adm.Code 4901:2-7-20 requires that, at hearing, Staff.-prove the occurrence of a violation by a preponderance of

the evidence.

(5) Based upon the record in this proceeding, the Comxnissionfinds that Staff has proven, by a preponderance of theevidence, that the Respondent was in possession ofmarijuana while on duty and operating a commercial motorvehicle in violation of 49 C.F.R. 392.4(a).

(6) The Commission finds it reasonable that the Respondent be

assessed a civil forfeiture of $500.00.

ORDER:

It is, therefore,

ORDERED, That the Respondent be assessed a $500.00 civil forfeiture. It is,

further,

ORDERED, That the Attorney General of Ohio take all legal steps necessary to

enforce the terms of this Opinion and Order. It is, further,

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ORDERED, That a copy of this Opinion and Order be served upon each party of

record.

THE PUBLIC UTILITIES COMMISSION OF OHIO

M. Beth Troanbald

BAM/ sc

Entered in the journal

MAR 26 2014

AA-CT^^^^9ci

Barcy F. McNealSecretary

^.1

n Slaby

Asim Z. Haque

-63-

BEFORE

THE PUBLIC UTILITIES COMMISSION OF OHIO

In the Matter of Ted A. Warren, Notice of ) Case No. 12-2100-TR-CVFApparent Violation and Intent to Assess ) (OH3257001617D)Forfeiture. )

CONCURRING AND DISSENTING OPINION OF COMMISSIONER LYNN SLABY

I concur in part, and dissent in part.

I concur that the Respondent violated 49 C.F.R. 392.4(a), being in possession of

marijuana while on duty.

I dissent on our finding that a fine of $500 would be appropriate in this case. Wenote the seriousness of the offense and establish a zero tolerance for such violations.Pursuant to R.C. 4923.99(A)(1), the Conunission is statutorily empowered to impose aforfeiture of "not more than twenty-five thousand dollars," ° and "to the extentpracticable, shall utilize a system comparable" to the recommendations adopted by thecommercial vehicle safety alliance. I also recognize that the CVSA°s North AmericanUniform Out-of-Service Criteria Reference to Uniform Maximum Fine scheduleprovides for the $500 fine. Based upon our statutory authority, in this case, I do notbelieve that a $2,500 or more fine, for this type of violation, is incompatible with thecivil penalty guidelines.

LS/sc

Entered in the Journal

MAR 26.20i4

^=a!^^•Ke^.P

Barcy F. McNealSecretary

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BEFORE

THE PUBLIC UTILITIES CO SSION OF OHIO

In the Matter of Ted A. Warren, Notice of ) Case No. 12-2100-TR-CVFApparent Violation and Intent to Assess ) (®H3257001617D)Forfeiture. )

ENTRY ON REHE G

The Co ' sion finds:

(1) On July 17, 2012, Ted Warren (Respondent) filed a request foran a °°strative hearing regarding an apparent violation of49 C.F.R. 392.4(a) for being in possession of marijuana wHle onduty and operating a commercial motor vehicle (CMV).

(2) By Opinion and Order (Order) issued on March 26, 2014, theCo ' sion found that Staff had proved, by a preponderanceof the evidence, that the Respondent was in possession ofmarijuana while on duty and operating a CMV in violation of49 C.F.R. 392.4(a) and assessed a civil forfeiture of $500.00.

(3) Pursuant to R.C. 4903.10, any party who has entered anappearance in a Comntission proceeding may apply forrehearing with respect to any matters determined by theCommission, within. 30 days of the entry of the order upon theCommission's journal.

(4) On April 25, 2014, the Respondent fiied an application forrehearing in which he raises six assignments of error that arerelated to five areas: that the stop, search, and seizure wereunlawful, that the Ohio Administrative Code does not apply tothe Respondent, that Staff did not meet its burden of proof, thatspoJiation of evidence should have created a presumption infavor of the Respondent, and that the civil forfeiture wasunreasonable.

I. SEARCH AND SEIZURE

(5) In his first assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because the evidence seizedfrom the Respondent's truck should have been ina dmissible. In ;addition, the Respondent argues that the stop violated

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Fourth Amendment to the United States Constitution andArticle I, Section 14 of the Ohio Constitution because thearresting officer did not have reasonable, articulable suspicionfor the stop.

(6) We find no merit to the Respondent's first assignment of error.As we indicated in the Order, reasonable, articulable suspicionexisted for the stop of the Respondent. Trooper Thomasstopped the Respondent, in the normal course of his duties asan Ohio State Highway Patrol trooper, pursuant to a radiocommunication from Trooper Meyers who was observing theRespondent foIlowzng another vehicle too close. Followsng tooclose is an apparent violation of R.C. 4511.34 and 49 C.F.R.392.2.

We note that a stop is lawful if facts relayed are sufficientlycorroborated to furnish reasonable suspicion that a defendant,or in this instance the Respondent, was engaged Yn criminalactivity. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412,110 L.Ed.2d 301 (1990). In deter '° g that the statement wasreliable, we considered the totality of the circumstances,including the quality and quantity of the information, and itsreliability. We found that the statement made to TrooperThomas was trustworthy and sufficient to establish reasonablesuspicion for the stop. (Order at 5.)

Additionally, we noted that the reliability of the informationprovided to Trooper Thomas by Trooper Meyers was far morereliable than an anonymous tip or a call from dispatch. In thiscase, Trooper Meyers communicated to Trooper Thomas that aviolation was occurring, fhe type of violation occurring, andthe vehicle committing the violation. Trooper Meyersremained in radio contact with Trooper Thomas until the stopwas made and confirmed that he had stopped the correctvehicle. (Tr. at 22.)

Finally, pursuant to R.C. 4923.06(C), inspectors and employeesauthorized to conduct inspections may stop motor vehicles toinspect those vehicles and drivers to enforce compliance withrules adopted under R.C. 4923.04. Therefore, we find that thatthe stop was lawful because reasonable, articulable suspicionexisted for the stop. Further, the Respondent failed to provide

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any evidence at hearing that the stop initiated byTrooper Thomas was not in accordance with all applicableFederal Motor Carrier Safety Regulations (FMCSR) andCommission rules. Accordingly, the Respondent's request forrehearing on thts issue should be denied.

(7) Tn his second assignment of error, the Respondent asserts thatthe Order is unlawful and unreasonable becauseTrooper Thomas was not legally justified in entering the truckwithout the Respondent's consent. The Respondent alsoargues that the intrusion of entering the Respondent's truck tocheck for other passengers, check for firearms, and request theRespondent's drlver's llcense, registration, and insurance, wasa Fourth Amendment search for which Trooper Thomas wasrequired to have probable cause or a warrant (See Tr. at 24-25).

(8) We find no merit to Respondent's second assignment of error,as we have already indicated in the Order (Order at 6). Wefind that there exists a legitimate and weighty interest zn officersafety that outweighs the de mhffinis intrusion upon thela y stopped Respondent. Pennsylvania v. Mimms, 434 U.S.106,110-11, 98 S. Ct. 330, 54 L. Ed. 2d 331; Berkemer v. McCarty,468 U.S. 420, 429, n. 29, 104 S. Ct. 3138, 82 L. Ed. 2d 317;Michigan v. Long, 463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed.2d 1201. While the intrusion of stepping up to the passengerside of the cab of a semi-truck may be greater than asking adriver to exit a vehicle, it is not so great as to overcome thelegitimate and weighty interest in officer safety. It is also not sogreat as to overcome the pervasively regulated industryexception or the need for the Comrnission and authorizedemployees of the state of Ohio to conduct-inspections.

Trooper Thomas had a duty to request the Respondent'slicense, registration, medical certificate, and proof of insurance.Comm.ercial trucking is a highly regulated industry wheredrivers are required under the FMCSR to have a commercialdriver's license, valid registration, requisite medicalqualifications, and proof of insurance. Pursuant to R.C.4923.06(B), authorized employees of the state highway patrolmay conduct inspections of motor vehicles and drivers.Further, pursuant to R.C. 4923.06(C) and (D), the state highwaypatrol may stop motor vehicles to inspect those vehicles

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,

and drivers to enforce compliance with rules adoptedunder R.C. 4923.04. In this case, it was reasonable forTrooper Thomas, after having initiated the stop of the CMVdx.iven by the Respondent, to open the passenger side door ofthe CMV and step up to the cab for officer safety to deterrnznezf' a farearm or additional occupant was present, as wellas to speak to the Respondent (Tr. at 54, 69). Therefore, theactions of Trooper Thomas did not rise to the level of a Pourth.Amendment search. Accordingly, the Respondent's request forrehearing on this issue should be denied.

II. APPY,ICATION OF TBE OIRO ADMINISTRATIVE CODE

(9) In his third assignment of error, the Respondent argues that theOrder is unlawful or unxeasonable because the record in thiscase does not support the Con^.massAon's finding that theOhio Administrative Code applies to the Respondent. TheRespondent argues that there is no record evidence that theRespondent was driving for either an interstate or intrastatemotor caxrier at the tzme of the stop.

Additionally, the Respondent avers that, even if theRespondent was driving for a motor carrier, this does not meanthat the Commission's rules apply to the Respondent. TheRespondent argues that pursuant to Ohio Adm,Code 4901:2-5-01(A), the Conunissi.on's rules apply to owners and drivers ofmotor vehicles leased to motor carriers during the periodscovered by such lease agreements. l'n addition, the Respondentasserts that there is no record evidence that the Respondentwas leased to any motor carrier or that he was driving a CMVduring a period covered by such a lease agreement at the timeof the purported violation.

(10) We find no merit to the Respondent's third assignment of error.The Commassaon finds that rehearing on this assl.gnment oferror should be denied. Ohio Adm.Code 4901:2-5-01 andxcatesthat a motor carrier includes all officers, agents,representatives, and employees of carriers by motor vehiclerespoz-isible for tl.-ae management, maintenance, operation, ordriving of motor veh%cles. Further, Ohio Adm.Code 4901:2-5-02(A) and (B) states that aIl motor carriers operating inintrastate or interstate commerce wxthtn Ohio shall conduct

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and possess any 21 C.F.R. 1308.11 Schedule 1 substance. TheRespondent then argues that the substances listed under21 C.F.R. 1308.11(d) are hallucinogenic substances; therefore,Staff must prove beyond a preponderance of the evidence thatthe marijuana contains a hallucinogenic substance.

(12) We find no merit - to the Respondent's fourth assignment oferror. We found in the Order that Staff had met its burden anddemonstrated by a preponderance of the evidence that theRespondent was in possession of maxijuana while on duty inviolation of 49 C.F.R. 392.4(a) (Order at 8). We found that thetestimony of Trooper Thomas, the testimony of Ms. K9.ontz, andthe numerous tests conducted on the marijuaraa demonstratethat it was marijuana (Order at 7; Tr. at 31, 77, 155). Even if asingle positive result for marijuana is only presumptive, in thiscase there were four positive test results and multiple witnessopinions that the material was marijuana (Tr. at 42, 155; StaffEx. 5). Additionally, not a single negative test result formarijuana was presented at hearing and no person testifiedthat the material was not marijuana or could not definitively bedetermined to be marijuana. While the burden of proof restswith Staff, it may be reco ° ed that there was little evidencepresented to sufficiently incline our fair and impartial minds tothe other side of this issue.

Additionally, we find no merit to the Respondent's argumentthat Staff must prove by a preponderance of the evidence thatthe marijuana contained a hallucinogenic substance. As wenoted previously, the Commission has adopted the FederalMotor Carrier Safety Rega.lations, and 49 C.F.R. 392.4(a)provides fihat no driver shall be on duty and possess any21 C.F.R. 1308.11 Schedule 1 substance. Marijuana is then listedas a Schedule 1 substance at 21 C.F.R. 1308.11(d)(23). It is notthe Staff's or the Co 'ssion's responsibility to determinewhether marijuana contains a haIlucinogenic substance andthen rewrite the law to include or exclude it from the list ofSchedule 1 substances. The law provides that marijuana is ahallucinogenic substance and lists it as such in 21 C.F.R.1308.11(d)(23). Accordingly, the Respondent's request forrehearing on this issue should be denied.

m6m

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12-2100-TR-CVF

IV. SI'OLIATION OF EVIDENCE

(13) In his fiftlz assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because it did not find thatspoliation was relevant or the resulting doctrine was overcomeby other evidence in the record. Additiona3ly, the Respondentasserts that the Commission erred by indicating that theRespondent's failure to testify could give rsse to an adverseinference against the Respondent.

(14) We find no merit to the Respondent's fifth assignment of error.As we indicated in the Order, no prejudice exists whereevidence was destroyed pursuant to good faith and wherethere was no immediate request for preservation (Order at 7).State v. Fuller, 2nd Dist. Ohio No. 18994, 2002-Ohio-2055(ApriI26, 2002); also citing, State v. Tarleton, 7th Dist. Ohio No.02-HA-541, 2003-Ohio-3492 (June 30, 2013). Additionally,- weindicated that the numerous positive tests for marijuana, thephotos, and the substantial testimony regarding the marijuanarebut any presumption that would arise in favor of theRespondent for the destruction of the evidence (Order at 7).We sdII find that. the tests, photos, and testimony weresufficient to rebut and overcome any presumption that wouldarise in favor of the Respondent.

Additionally, we indicated in the Order that, while there mayexist a rebuttable presumption in favor of the Respondent; theRespondent's failure to testify or present any witness testimonymay also give rise to an adverse inference against theRespondent (Order at 8). However, we clarafy that while theremay exist.an adverse inference ag ° t the Respondent, we didnot actually hold an adverse inference against him.Accordingly, the Respondent's request for rehearing on thisissue should be derued.

V. CVIL FORFEITURE

(15) In his sixth assignment of error, the Respondent argues that theOrder is unlawful or unreasonable because a $500.00 civilforfeiture is an unreasonable amount to be imposed under thefacts of this case. The Respondent asserts that the Commissionzrnproperly relied upon the Commerciai Motor Vehicle Safety

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12-2100-TR-CVF

Alliance's (CVSA) maximum fine schedule. Additionally, theRespondent contends that even if the Respondent possessedmarijuana, there is no indication that the Respondent wasunder the influence of marijuana. Finally, the Respondentavers that adopting a zero tolerance policy is arbitrary andcapricious, and that such a policy should be adopted pursuan.tto a rule-making proceeding and not. a post hoc declarationmade in an opinion and order.

(16) We find no merit to the Respondent's sixth assignment of error.The Co ° sion initially notes that its reliance on themaxixnum fine schedule published by the CVSA is reasonablebecause R.C. 4923.99(A)(1) directs the Co °ssion to use, tothe extent practicable, a system comparable to therecommended civil-penalty adopted by the CVSA. TheCommission finds that relying on the CVSA fine schedule wasnot only lawful but in strict compliance with the plain languageof the statute.

Additionally, while the Respondent argues that there is noevidence that he was under the influence of marijuana, theCommission found that he possessed marijuana, which issufficient for a violation of 49 C.F.R. 392.4(a) (Order at 8).There is no requirement for the Commission to find that theRespondent was under the influence of marijuana and wemade no such finding.

Finally, the Commission notes that its adoption of a zerotolerance policy towards all violations regarding 21 C.F.R. 1308Schedule 1 substances is reasonable, as the Commissionappropriately takes a zero tolerance policy towards anyviolation of the law. In this case, our indication that we wouldadopt a zero tolerance policy towards the 21 C.F.R. 1308substances was to provide a general indication to the industrythat our previously adopted zero tolerance policy regardingviolations for alcoholic beverages would extend to all unlawfulsubstance. See In re James Martindale, Case No. 97-143-TR-CVF,Opinion and Order (July 3, 1997). Therefore, the Respondent'srequest for rehearing on this issue should be denied.

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It is, therefore,

.

a9_

ORDERED, That application for rehearing filed by the Respondent be dexued.. It is,further,

ORDERED, That a copy of this Entry on Rehearing be served upon each party of

record.

THE PUBLIC UTILITIES COMMISSION OF OHIO

Thomas W. J,

Steven D. Lesser

WSY

M. Beth Trombold

B.A M/ sc

Entered in fil-ae Journal

MAY 21 ^^ ^-

^^^s"!^t•^(ea.P

Barcy F. McNealSecretary

Asa_ut Z. Haque

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