and morning may please the court i'm patrick cass i represent the chillicothe the defendants if i might i'd like to reserve three minutes of my time please very well this case is a situation where the plans of start tempting to impose liability upon a police department for the negligent actions of a rd party or prosecutor there's three facts in here that i think are crucially important understand especially if you're not familiar with ohio law  st the prosecutor is different from the police department in ohio the prosecutor is a county employee who brings felonies on behalf of the state of ohio he's in a different building he's employed by someone else is employed by the county police department employed by the city nd the roles are completely different what happened here is that she will cost the police department the only party in this case investigated the crime but the gather file and submitted it to the police to our right to the prosecutor so we took the evidence for two simple reasons number one to investigate it judge martley made a factual conclusion that the time the police department took the investigate it was reasonable under due process so we seized it the nd reason we held it was pending what the prosecutor time it took to put the case together to give the files of the prosecutor was fine and he found no fault with it the nd thing the police departments do is i hope you have a dance for chain of custody reasons until the prosecutor decides what he wants to do that's where judge murphy found fault he found that this prosecutor who we have no control over waited too long to file the charges and  evidence in the record that we could foresee this prosecutor with the leg in the manner that he did but you know you have to you know you have to hold to i mean you make a record of what it is somebody is asking for it you're controlling it you say that the prosecutor what's going on if you don't do something where we're going to be giving it back because we have no reason to you don't do it it violates to process but there's times when a governmental entity doesn't know that they're going to violate somebody has to process rights in those situations so long as there is an adequate host depravation remedy then that needs to process a look at it here our investigation was fine we turned over the father the prosecutor and the prosecutor delays outside our control and that's what the finding was we couldn't anticipate that what we needed to do and there was no action we can file right because remember there's a big distinction between for fixture and seizure forfeiture means you file an action to say we want that property become ours and there's no action we can file to go to a judge and say hey we're holding this for a while the prosecutor's taking this time we want permission to hold it longer there's nothing we can file but as judge mark who specifically  there were two post deprivation remedies they could've found and that's what paris helped paris held that if there was no pre deprivation hearing you could have had so long as they've got an adequate remedy post deprivation that wasn't lost or going to stablish procedure it was that's that seems like you know a long ways away from this case well in this case i mean this was seized pursuant to a search warrant for crying out loud that's not some arbitrary random the delay itself makes the violation complete regardless of any post deprivation room sure but in paris the court noted that with due process requires a hearing in  be heard and if there's no hearing you can have before the deprivation is complete and the post deprivation of the its missions so here they show they had a post operation remedy they thought of replevin action got part of it if your property is seeds and it's printed i mean you think it's unlawful you get a hearing in twenty one days where you were going to hear it and see whether they should keep it or not so they also had that remedy and judge marbury didn't find that either one of those remedies were inadequate they just found that they didn't have to exercise them is that required in practice i'm sorry is that statute require him in wrappers i don't think so so that it requires anything that's unlawful that term is this for us to be now at the hearing in front of judge mark when they talked about the seizure be unlawful they talked about the length that everything that went on in judge inherent would have happened was twenty one dollars days and then found that action they would have got a hearing two and a half months earlier than they did in this case so if you think about it there was nothing we could do to give them a hearing on whether or not the prosecutor was holding that long it's directly we had no idea that it was going to continue that lay in the way it was and you can't there's no hearing for you to go out and say we think the prosecutor doesn't recognize that the police department are in need are going to make a decision and say hey the prosecutors amount of time and indicting some reasonable it's not our role were to hold it for chain of custody purposes they have a remedy which is all can run off and file an one thousand and eighty three action claiming that the length of time for holding this evidence violates due process because there's no rhyme right parrott in all the cases say there's no bright line it depends on the circumstance consistently been of the opinion that ninety three x are not st line claims right and that's what you would make it would make it a st line claim where they could bypass to adequate state remedies it it so now they've been statutes no but they did the seizure is a seizure they still have it if everybody around me and i mean for long but you know if if that statute doesn't apply for the reason judge white just action what the judge said was hey i'm going to give you back this property they're still investigating this and for the prosecutor you better stop it or i'm going to give it back back ok so your argument is they could have brought in another reply then or reopen that one i mean they made a really clear record that the common pleas court judge was all profit the prosecutor for the delay in was clear if you don't get your stuff together i'm going to give it back to them and the record is replete with comments of that ok if you want your bottle we better give mr farmer a chance here so mr farmer  people have the citizens of this country have access to u s district courts or forty two thousand nine hundred and eighty three actions i could not go back before judge ater because he was still bound by the rule of law and the state's statute requires that when that when responded say are ongoing investigation if they claim an ongoing investigation then judge arthur's hands attack every seven of the brief all of those cases hold that when there's an ongoing investigation that's the statute oh there when there's ongoing investigation that they cannot they don't have to g property back and that's the problem you just say there is bound by the statute no matter if they come in in the next time we've found a republic next time they still bound by their patterns statute he did not put his words in order those were just this case the courts or courts order and the record is clear at all times relevant to this case being prosecuted in a federal court the defendants the city in this case city police department had the property when i went down to get some of the property t judge marbury ordered released i didn't go to the prosecutor i went to the city police station where the property is being hailed so to say that is just wrong and was important to this case we're talking about  cause to seek to search and subject something to a forfeiture that's why in united states versus may that was the court said that what we cited to the court said that was the beginning of forfeits that was all that was needed at the beginning that probable cause the same probable cause that they got the search warrant with was just say probable cause that they could have used to indict the same probable cause that they could have used a idea what's going on i think that didn't happen because what happened in this case john is that they were banking on mr on what they said that they believe that mr crane was involved in something that he was not involved with and they lie on mr cummings is something but i don't know you know and i asked for it in writing or long before i long before i about repression action so it is our position that the state of ohio i mean the city of lives in there if they really have problems they have probable cause they have probable cause for an indictment they didn't even indict them problem called again to file for or fitch they did they cancel your you're to the supreme court of the highest court in the state and they get the answer to a state law question that way in this case there's no state law questions to be asked i had an issue in any court in the federal court there is no state law issues in this court there are no state law issues in dispute and certainly there's nothing pending in the court of ohio so that case doesn't apply i mean the pullman dark and doesn't apply and it would  district court's injunction i mean is that just telling the city these defendants that they have to return this camera and mr green means is that there remains correct yes yes so if you have a person of the state or city if it's a city case balanced as speedy trial wells there was a harsh punishment they have to go the case out they dismissed the case in this case is the same here in this case is simply that he ordered the money back and it doesn't stop the defendant i mean it's the city or the state prosecutor they don't need the money the prosecutor or whatever the prosecutor mr green means as this court has had many cases drug cases where they don't have a grain of drugs or a nickel but they have testimony from witnesses and they had photographic evidence and ohio criminal room procedure twenty six dollars allows them to take photographs of whatever they have and prosecute plus they have the testimony of mr crump mrs caminos from the federal court below and from the state court admitting sam that they possessed these things so they have already to take copies of it like most never said i most federal drug cases are they don't have actual actual drugs many times many times they don't have actual jugs there and there's no to obstruct or or you know be an obstacle for the legitimate state investigation even if that was the case in honor even if that was the case that wouldn't be right you could seat in this case you cannot have you still have snow and you still have to meet some standards you just can't wait three months you got the eight million eight hundred and fifty five thousand five hundred case from the united states supreme court you have the case you still have a time some time that has to go before you can file anything in any court so nobody can wait three months you know if you do it in a year you probably won't get it back because again it's not going to stand in this case it's been twenty much in this case when they found out were four pitches and only after after we kept bringing it up to just mommy did they still didn't bring it up in the st out an indictment after we filed this case they still didn't it in there in their indictment of corpus or specifications that are required by ohio law so it's been twenty months yet it is it was way over due and the damage has been done but again was wrong about anything because it was not any further questions all right thank you mr farmer who shared it will hear about keep the property so there's no question that they had a state court remedy and so the only question for this court is under parents whether they can choose an one thousand nine hundred and three action remedy when they have a state court remedy and the only way they can do that is if we had an opportunity to provide them a post depravation hearing you and we don't want to forfeit we don't want to own it and we're not seeking to forfeit and we're just holding it for this rd party prosecutor to make up its mind there's nothing we can do there's nothing we can do in that situation and the court and parent was clear that if the pla and so it's no different than the negligence of the garden parish where the prison system had no idea he was going to lose the property we had no idea the prosecutor was going to be negligent and not file it for all that time right time is right i mean the supreme court and all these cases and the six circuit has basically said the amount of time that's appropriate depends upon the circumstances you can't impose that upon a police department to make that decision and tell prosecutor we're going to get rid of your trial evidence because we've made a due process analysis that you've taken these long that's why you they have the right to replevin action the judge the prosecutor was at the replevin action he had the ball well he would have had we've asked the prosecutor multiple times can we give it back he said no right i mean in theory we could we were be instructing his case but he said no i mean if i have any control over different in the sense that the seizures already happened it happened pursuant to an established procedure which is you know night and day difference from hair isn't ohs or distinctions right not not in this case it's judge mark we didn't find that the st eleven months wasn't due process violation he found out about the seizure ok it is are there is different the seizure here unlike here it happens pursuant to an established state procedure it's not some random crazy at and that's what different from here with not not nest not not not really because the violation wasn't the seizures here in the violation was from right it's that the length of the prosecutor and filed the charges immediately after we get in the file we wouldn't be here and so the prosecutors delay had nothing to do with an established a procedure in fact the judge specifically found that was negligence made a fact and i mean that the lera know that answers my question any other questions no hearing