TIFFIN - Darke County Common Pleas Judge Jonathan Hein has been appointed to determine whether Fostoria police dog Rocko can be used as evidence in a debate over police Chief John McGuire's legal authority.
The visiting judge was assigned by the Ohio Supreme Court to preside over hearings next month in Seneca County Common Pleas Court concerning motions to suppress evidence and to compel discovery in the drug possession case against Clifford Green, 24, of Fostoria.
Mr. Green was arrested Oct. 27 by Fostoria police for possession of crack cocaine, and his attorney, Gene Murray, is arguing that a subsequent pat-down search by Chief McGuire was illegal because the chief was improperly hired by the city and therefore did not have the authority to search Mr. Green.
In his motion to compel discovery, Mr. Murray asked that Rocko be brought in as an exhibit because the dog received the same mail-order bachelor's degree that Chief McGuire holds. He also requested evidence to support claims made by the chief on his resume about previous employment.
While still employed as police chief, Mr. McGuire is under indictment in Seneca County on two counts of tampering with records and two counts of falsification for allegedly giving false information on his employment application and resume.
A challenge by Fostoria patrol officers of the process the Fostoria Civil Service Commission used to hire Mr. McGuire was upheld by the 3rd District Court of Appeals and is now pending in Common Pleas Court.
Seneca County Prosecutor Ken Egbert, Jr., said in his response to Mr. Murray's motion that it would not be necessary to bring the dog to court because Rocko was not involved in the search of Mr. Green.
He said the dog is "irrelevant to the search and seizure legal issues to be considered at the suppression hearing."
Mr. Egbert said Chief McGuire could be called to the stand during the suppression hearing and questioned about his police background and qualifications.
"As a charged criminal defendant, while presumed innocent in his criminal case, any statements witness John J. McGuire may make about his background and qualifications while under oath as a witness in this criminal case could be used against him in his own pending criminal case," Mr. Egbert wrote.
The prosecutor said because of that, it would be necessary to read the chief his Miranda rights if he takes the stand and notify his defense attorney of the suppression hearing so that his attorney could consult with Chief McGuire about "whether to waive his constitutional right not to be compelled to incriminate himself."
Arguments on the motion to compel discovery are set for 1:30 p.m. April 4, while the suppression hearing is to be at 10 a.m. April 23.
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