Opinion
No. 87-422
Submitted January 19, 1988 —
Decided July 20, 1988.
Criminal law — Motion to suppress — Effect of stipulation of facts — Timeliness of motion — Waiver.
O.Jur 3d Criminal Law § 843.
1. For purposes of Crim. R. 12(B)(3), the filing of a stipulation of facts is tantamount to the commencement of trial on the merits.
2. Failure to file a motion to suppress pursuant to Crim. R. 12(B)(3) prior to the submission of a stipulation of facts to the trial court constitutes waiver of any objection to the admissibility of seized evidence.
APPEAL from the Court of Appeals for Ottawa County, No. OT-86-27.
On July 11, 1984, July 25, 1984, July 29, 1984 and August 28, 1984, investigators from the Ohio Department of Liquor Control visited the permit premises of the Fraternal Order of Eagles Aerie 2295 in Port Clinton, Ohio, appellant herein. On three of these occasions the investigators gained access to the club by following others into the club, or by showing a temporary membership card or a membership application. On the fourth occasion, the investigators simply entered the premises. During the course of these investigations, the investigators observed tip tickets on the back bar and purchased tickets from employees of the club. On each occasion, the investigators played the tickets and, in two instances, were paid for winning tickets. The investigators marked and retained the other tickets.
The investigators did not obtain a search warrant prior to their entry upon the premises on these four occasions.
On September 7, 1984, the investigators were issued a warrant to search the permit premises.
On September 13, 1984, eight criminal complaints were filed against appellant in Port Clinton Municipal Court, four charging violations of R.C. 2915.02(A)(5) (possession of gambling devices) and four charging violations of R.C. 2915.03(A)(2) (operating a gambling house). The parties agreed to submit the case to the trial court on a stipulation of facts. On February 20, 1986, the stipulation was submitted to the court. The court thereafter instructed the parties that briefs should be submitted in lieu of oral argument. The brief for the state was filed on March 10, 1986. On March 17, 1986, appellant filed a motion to dismiss the complaints, a motion to suppress the evidence and a brief. The motions were denied on April 9, 1986. That same date, the court found appellant guilty of all eight charges based on the stipulated facts.
Appellant appealed the decision to the court of appeals, which affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Douglas O. Meyer, prosecuting attorney, and Barbara B.H. Petersen, for appellee.
John A. Connor II Co., L.P.A., and John A. Connor II, for appellant.
Appellant contends that the evidence which forms the basis of the criminal convictions at issue in the case sub judice was seized in an illegal search of appellant's permit premises. As a preliminary matter, however, it is necessary to ascertain whether a timely motion to suppress the evidence was interposed by appellant.
Crim. R. 12 governs the procedure to be employed in the filing of pretrial motions. Subsection (B) thereof identifies the types of motions which must be advanced prior to trial. Crim. R. 12(B)(3) provides as follows:
"Pretrial motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:
"* * *
"(3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. Such motions shall be filed in the trial court only[.]"
This court has previously held that the submission of a stipulation of facts "was to be regarded * * * as [comparable to] a special verdict of a jury, expressing the result of the proof made by both parties * * *." Ish v. Crane (1862), 13 Ohio St. 574, 580. Accord Garrett v. Hanshue (1895), 53 Ohio St. 482, 495-496, 42 N.E. 256, 259-260. Thus, the stipulation performs the same function as the factual determination rendered by a jury upon conflicting evidence. Accordingly, we hold that, for purposes of Crim. R. 12(B)(3), the filing of a stipulation of facts is tantamount to the commencement of trial on the merits.
Failure to file a pretrial motion to suppress evidence pursuant to Crim. R. 12(B)(3) precludes a challenge to its admission at trial. In this regard, Crim. R. 12(G) provides that:
"Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver."
In State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O. 3d 362, 373 N.E.2d 1244, this court considered the failure of a criminal defendant to file a motion to suppress evidence prior to trial. Paragraph three of the syllabus states:
"The failure to move within the time specified by Crim. R. 12(C) for the suppression of evidence on the basis of its illegal obtainment constitutes a waiver of the error. (Crim. R. 12[G].)"
Accord State v. Moody (1978), 55 Ohio St.2d 64, 66, 9 O.O. 3d 71, 72, 377 N.E.2d 1008, 1010.
Accordingly, we hold that appellant's failure to file a motion to suppress pursuant to Crim. R. 12(B)(3) prior to the submission of a stipulation of facts to the trial court constitutes waiver of any objection to the admissibility of any seized evidence.
Inasmuch as the evidence considered by the trial court was not the subject of a timely motion to suppress, any error regarding its admissibility was waived. Thus, the convictions of appellant are amply supported by the evidence.
The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., LOCHER, WRIGHT and H. BROWN, JJ., concur.
HOLMES and DOUGLAS, JJ., dissent.