Appeal a success, charges dismissed
EAST LIVERPOOL — A month after an appeals court ruled against city police and remanded the case back to East Liverpool Municipal Court, Judge Dominic Frank dismissed it Tuesday.
Frank granted Prosecutor Abbey Minamyer’s motion to dismiss the 2019 criminal charges without prejudice against Joseph DeSarro II, Duke Vodrey Road.
In their Dec. 16 dated decision, Judges Gene Donofrio, Carol Ann Robb and David A. D’Apolito of the Seventh Court of Appeals reversed the case before Frank’s predecessor Melissa Byers-Emmerling and suppressed all evidence, alleging an unlawful search.
The charges stemmed from DeSarro’s March 29, 2019 arrest. Patrolman Chris Green investigated alleged drug activity in the 900 block of Avondale and began conducting surveillance through a partially obstructed window, videotaping it with his phone before calling for backup. “Patrolman Green observed (DeSarro), brushing his teeth and saw a firearm in the waistband of (his) pants,” reads the eight-page judgment entry.
After police were denied entry by DeSarro and the residence’s occupants, they were unable to secure a warrant from the county prosecutor’s office. So they “forced their way into the home by kicking the door,” the judgment entry notes.
DeSarro ultimately was arrested and charged with obstructing official business and possession of marijuana, pleading no contest to both. He was fined $300, sentenced to 30 days in jail and had his driver’s license suspended for180 days. Nine days later, he filed his appeal.
The appeals court judges wrote: “(That area) was no more open to the public than if a ‘Peeping Tom’ (was) pressing (his) nose against the window. The officer had no reason to be so close to the house without a warrant, and in doing so, (he) invaded (DeSarro’s) reasonable expectation of privacy.
“The officers in the present case also had no indication of appellant’s propensity for violence or any indication that appellant was going to use the firearm in an offending manner. The officers had no indication that appellant was a felon under disability, only that he was a felon. Not all felonies carry with them a disability. The code specifically sets out that the disability only applies to felonies of violence or drug offenses,” the document continues. “Without further information, the officers could not have been aware of what specific felonies appellant was convicted of.”
When contacted Tuesday after the case’s dismissal, East Liverpool Police Chief John Lane declined comment.
A case dismissed without prejudice can be refiled.