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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

LAW ENFORCEMENT OFFICERS (038)

Also see Arrest; Investigative Detention; Competency to be a Witness/Police officers.

 

Deadly force

Territorial jurisdiction

Immunity

Other issues

R.C. 2935.03 -- Officer's power to arrest without warrant; pursuit outside jurisdiction.

Deadly force

Scott v. Harris (2007), 127 S.Ct. 1769 -- Pursuing officer bumped fleeing suspect from behind at high speed. Crash rendered the driver a quadriplegic, and he brought a 1983 suit. Summary judgment should have been granted on the officer's claim of qualified immunity as the Supreme Court (unlike the lower courts) concludes there is no disputable issue of fact as to the reasonableness of his actions. Compare Tennessee v. Garner (1975), 471 U.S. 1.

Hassiah v. Walton (6th Cir. 1982), 676 F. 2d 208 -- Ohio law does not authorize the use of gunfire to stop a fleeing misdemeanant. At 215: "Police employment of gunfire to effect the capture of a citizen who is fleeing from the law can, of course, be justifies in some circumstances. It is justifiable to prevent the escape of a person known to have committed or be in the process of committing a felony involving violence. It is justifiable, also, on self-defense grounds if the fleeing person by his or her actions endangers the life or limbs of the pursuing officer."

Tennessee v. Garner (1975), 471 U.S. 1 -- Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment requirement of reasonableness. Notwithstanding a statute to the contrary, the police may not use deadly force to prevent the escape of a suspect unless the officer has probable cause that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Whitley v. Albers (1986), 475 U.S. 251 -- It is not cruel and unusual punishment to use necessary force in quelling a prison riot. Prisoner was shot in the leg without warning.

State v. McCrone (1989), 63 Ohio App. 3d 831 -- A suspect is not required to produce a drivers' license as identification upon the demand of a police officer.

Carter v. Simpson (1984), 16 Ohio App. 3d 420, -- "A few episodes of excessive use of force (by a police officer, reflected in his personnel file), whether provable or not, do not constitute proof of a regular practice of meeting a particular kind of situation with a specific type of conduct so that the conduct becomes semi-automatic." If admissible at all, such incidents would come in under Evid. R. 404(B).

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Territorial jurisdiction

State v. Jones, 121 Ohio St. 3d 103, 2009-Ohio-316 – Syllabus: "A law-enforcement officer who personally observed a traffic violation while outside the officer‘s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment. (State v. Weideman (2002), 94 Ohio St. 3d 501, 764 N.E. 2d 997, followed.)"

State v. Weideman 94 Ohio St. 3d 502, 2002-Ohio-1484 -- Based on probable cause, officer detained drunk driver while outside her jurisdiction until a Highway Patrol officer arrived, but did not make the actual arrest. Syllabus: "Where a law enforcement officer, acting outside the officer's statutory territorial jurisdiction, stops and detains a motorist for an offense committed and observed outside the officer's jurisdiction, the seizure of the motorist by the officer is not unreasonable under the Fourth Amendment. Therefore, the officer's statutory violation does not require suppression of all evidence flowing from the stop." Also see State v. Taylor, 159 Ohio App. 3d 629, 2005-Ohio-804, ¶14.

State v. Fitzpatrick, 152 Ohio App. 3d 122, 2003-Ohio-1405 -- Sylvania officer thought defendant was "moving kind of slow" but didn't learn plate was registered to another vehicle until the officer and the defendant had driven into Toledo. Defendant was taken back to Sylvania headquarters where he failed a breath test. Suppression was required. State v. Weideman, 94 Ohio St. 3d 502, 2002-Ohio-1484, distinguished as the officer in that case observed driving that was a danger to public safety and merely held the suspect until an officer with territorial jurisdiction arrived and made an arrest.

State v. Black, Fulton App. No. F-03-010, 2004-Ohio-218 -- Park ranger had statutory authority to make a traffic stop for an offense on a roadway adjoining a park, even though he followed the violator for several miles at a high rate of speed before activating his beacon.

Cincinnati v. Alexander (1978), 54 Ohio St. 2d 248 -- Syllabus: "The authority granted in R.C. 2935.01 to a police officer to 'arrest and detain a person found violating a law of this state' does not confer authority upon a municipal police officer to arrest without a warrant outside the geographical boundaries of his municipality for traffic offenses observed by the officer to have been committed outside such municipal limits." Also see State v. Wallace (1976), 50 Ohio App. 2d 78 where the same conclusion was reached, vindicating the trial court's application of the exclusionary rule.

Kettering v. Hollen (1980), 64 Ohio St. 2d 232 -- "The exclusionary rule will not be applied to the testimony of an arresting police officer regarding the actions of a misdemeanant observed as a result of an extraterritorial warrantless arrest, even though the arrest is unauthorized under existing state law, if the arrest is based on probable cause that a crime was committed within the officer's jurisdiction, and if the officer was in hot pursuit of the misdemeanant." (syllabus). Also see State v. Droste (1998), 83 Ohio St. 3d 36; State v. Aleshire (August 5, 1986), Franklin Co. App. No. 85AP-869, unreported (1986 Opinions 2020); State v. Alexander (August 3, 1989), Franklin Co. App. Nos. 89AP-21 through 25, unreported (1989 Opinions 2741, 2747).

State v. Holbert (1974), 38 Ohio St. 2d 113 -- An arrested person is not immune from prosecution merely because his arrest was "unlawful" or "unauthorized." Also see State v. Hooper (1966), 10 Ohio App. 2d 229.

State v. Rouse (1988), 53 Ohio App. 3d 48: Deputy sheriff may make an arrest within territorial limits of a municipality or township since the sheriff as the chief law enforcement officer in the county is generally deemed to have jurisdiction coextensive with the county.

State v. Burger (1986), 33 Ohio App. 3d 231, 233 -- Highway patrol may arrest traffic violators on federal land unless the federal government has accepted jurisdiction over that land by filing a notice with the governor in accordance with 40 U.S.C. Sec. 255. Also see Cincinnati v. Nussbaum (1968), 14 Ohio Misc. 19.

State v. Nunally (1992), 83 Ohio App. 3d 741 -- Park ranger found to have authority to make OMVI arrest within park boundaries.

Columbus v. DePaso (September 26, 1989), Franklin Co. App. Nos. 89AP-268 through 271, unreported (1989 Opinions 3679) -- Arrest by township constable outside territorial limits not saved by mistaken belief he had county wide jurisdiction or that jurisdiction could be conferred upon him over the radio by an officer of the municipality within which the arrest was made. Nor may an officer force his way into the suspects home as a continuation of "fresh pursuit."

State v. Thierbach (1993), 92 Ohio App. 3d 365 -- Cincinnati police officer pursued drunk driver across the I-471 bridge to Kentucky where the stop was made. (1) Applying the Ker-Frisbie doctrine, there was no Fourth Amendment Violation. Even where a suspect is arrested illegally, evidence obtained without violations of the warrant or probable cause requirements of the Fourth Amendment will not be suppressed. (2) The Ohio Constitution affords no broader protection in these circumstances. (3) While there may have been a violation of statutes relating to fresh pursuit, the exclusionary rule is not available for statutory infractions.

State v. Walden (1988), 51 Ohio App. 3d 209 -- Because the defendant was concluded to have voluntarily walked back to cruiser parked on one side of the state line from his vehicle parked across the line in Indiana, and arrest occurred in cruiser, there was no unlawful extraterritorial arrest.

State v. Coppick (1995), 103 Ohio App. 3d 405 -- After careful description of the defendant's movements and jurisdictional limits, and exposition of manner in which individual factual issues were determined and must be reviewed on appeal, court upholds trial court's finding arrest outside jurisdictional limits was illegal. However, since the violation was statutory, the exclusionary rule will not be applied.

Stow v. Riggenbach (1994), 97 Ohio App. 3d 661 -- Drunk driver crashed into a tree just past an intersection and the county line. Though officers from the county in which he was prosecuted were without statutory authority to arrest the defendant outside their jurisdiction, court refuses to apply the exclusionary rule to a non-constitutional violation. Also see State v. Filer (1995), 106 Ohio App. 3d 731.

State v. Grubb (1993), 82 Ohio App. 3d 187 -- (1) No left turn sign posted on university property by university employees without obtaining proper authorization from the city of Columbus, and not conforming to other requirements, was unenforceable. (2) Even if the sign were valid, it could not be enforced by university police as High Street, onto which turn would have to be made, was not within their territorial jurisdiction.

State v. Brown (1993), 64 Ohio Misc. 2d 41 -- R.C. 2935.03(E)(2) permits a township police officer to stop a motorist for an infraction committed within the township boundaries, but after he had turned onto a road immediately adjacent to the boundary.

Fairborn v. Munkus (1971), 28 Ohio St. 2d 207 -- A municipal police officer may make an arrest for a violation of a municipal ordinance, upon a properly issued warrant, anywhere within the jurisdictional limits of the issuing court, even though that location may be outside the territorial jurisdiction of the department the officer is employed by.

State v. Layman (1986), 29 Ohio App. 3d 343 -- The territorial jurisdiction of a township police officer is limited to the unincorporated areas of the township. The territorial jurisdiction of a township police constable extends throughout the county in which his township is located.

State v. Darga (1985), 30 Ohio App. 3d 54 -- When a township constable observes an offense being committed within the unincorporated portions of the township, which he patrols, he may make an arrest within the city limits of an incorporated municipality within township limits.

State v. Beckwith (1987), 38 Ohio App. 3d 30 -- A police officer may make an extraterritorial arrest if he acts in substantial compliance with R.C. 2935.01(D).

State v. Dotson (1987), 35 Ohio App. 3d 135 -- Authority of police to conduct an investigation of criminal activity is not limited by their territorial jurisdiction.

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Immunity

Los Angeles v. Rettele (2007), 127 S.Ct. 1989 -- In the context of a 1983 suit, it was not unreasonable for officers executing a warrant to force a couple to stand naked in their bedroom for a few minutes though the suspects who used to live at that address were of a different race. The police were entitled to exercise unquestioned command of the situation and thus were protected by immunity.

State v. Brocious, Clark App. No. 2002 CA 89, 2003-Ohio-4708 -- Deputy was measuring skid marks. Fireman parked truck over marks. Fireman called deputy an asshole after being ordered to move the truck. Deputy drew his gun, cuffed the fireman, and placed him under arrest. Special prosecutor charged deputy with aggravated menacing and misconduct at the scene of an emergency. Since the prosecutor could not recall the extent to which she relied upon a compelled, and thus immunized, statement completed by the deputy, charges were properly dismissed. See Garrity v. State of New Jersey (1967), 385 U.S. 493. Dissenting judge believes suppression of statement was the appropriate remedy. Also see State v. Brocious, Clark App. No. 04CA0003 suggesting charges could be properly refiled by a new prosecutor not tainted by knowledge of the immunized statement.

Baum v. Ohio State Highway Patrol (1995), 72 Ohio St. 3d 469 -- Syllabus: "In the absence of willful or wanton misconduct, the State Highway Patrol is immune from liability for injuries caused by a patrol officer in the operation of his vehicle while responding to an emergency call." See dissent on the unnecessary danger created by high speed pursuit of 14 year old joyriders.

Piphus v. Blum (1995), 108 Ohio App. 3d 218 -- Officers were not entitled to summary judgment on the basis of qualified immunity on claims seeking equitable relief. Black motorists claimed discriminatory pattern of making traffic stops to facilitate drug interdiction, and sought injunctive relief.

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Other issues

City of Ontario, California v. Quon (2010), 130 S.Ct. 2619 – Police department acquired pagers for officers to use. These could send text, but some officers, including Quon, exceeded their monthly limit.. Department obtained records. Some of Quon’s calls were sexual in nature, leading to discipline. 1983 action is unavailing as “search“ of text messages was reasonable, because there was a work-related purpose

Cleveland v. Lester, 143 Ohio Misc. 2d 39, 2007-Ohio-5375 -- Citizen believed he was being stalked by an officer because that officer had stopped and ticketed him twice in the same month. When this was determined to be unfounded he was charged with making a false allegation of police conduct in violation of R.C. 2921.15. Dismissed. The statute refers to a complaint, construed in accordance with Crim. R. 3 to mean a sworn complaint. The form used by the defendant was unsworn.

State v. English, 120 Ohio Misc. 2d 16, 2002-Ohio-5440 -- The word "complaint" as used in R.C. 2921.15 (filing a false complaint against a peace officer) means a criminal complaint and not a department citizen complaint form. In any even the statute violates the Free Speech Clause of the First Amendment.

Akron v. Davenport, Summit App. No. 21522, 2004-Ohio-435 -- Defendant was charged with making false allegations of misconduct by a police officer based on his taped statement to a sergeant at the scene. "Complaint" as used in R.C. 2921.15 means a written complaint. Proffer of facts in support of a no contest plea did not support conviction.

State v. Baker, 157 Ohio App. 3d 87, 2004-Ohio-2207 -- Ordinance proscribing verbal abuse of a police officer survives overbreadth attack by being construed to be limited to fighting words. While it is presumptively invalid for being based on the content of speech, the basis for the content discrimination consists entirely of the very reason the entire class of speech is proscribable and the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.

State v. Powell (1999), 134 Ohio App. 3d 616 -- Chiropractor bought accident reports, then called those injured telling them he was from the police department or that he was an officer, then recommending himself to provide treatment. Personating an officer conviction was supported by the evidence.

State v. Rutland, 152 Ohio App. 3d 39, 2003-Ohio-1425 -- Uniformed and armed "constable" driving a marked Crown Victoria with a light bar properly convicted of personating an officer for having escorted a funeral procession. Neither defendant or his employer had the required licenses to act as a "private police officer." "Constables" must be either employed or commissioned by a political subdivision of the state or court-appointed.

State v. Smith, Mahoning App. Nos. 02 CA 227, 231, 2004-Ohio-4285 -- "Ohio State Police Constable Service" operatives were properly convicted of impersonating a police officer. It doesn't matter that Youngstown police officers targeting constables working security in the city were not misled by the defendants' uniforms and badges. Nor does conviction require proof of fraudulent intent. Mistaken belief that their work was legal is not a defense. State did not have to prove they were not licensed private security officers. Separate conviction for committing an offense while impersonating an officer fails as the state failed to prove the gun carried was operable.

State v. Sess (1999), 136 Ohio App. 3d 689 -- Police officer was required to take a polygraph test as a part of assignment to a regional narcotics unit. Before the test he admitted that in the past he had planted drugs on a suspect. Further information concerning the specifics of this incident was coerced by the threat of losing his job. (1) Admissions were properly suppressed under the coerced confession rule. (2) Court declines to address the immunity issue raised pursuant to Jones v. Franklin County Sheriff (1990), 52 Ohio St. 3d 40. (3) Neither the inevitable discovery exception or the independent source doctrine save the admissibility of information derived from such admissions.

State v. Lozada 92 Ohio St. 3d 74, 2001-Ohio-149 -- Syllabus: "During a routine traffic stop, it is reasonable for the officer to search the driver for weapons before placing the driver in a patrol car, if placing the driver in the patrol car during the investigation prevents officers of the driver from being subjected to a dangerous condition and placing the driver in the patrol car is the least intrusive means to avoid the dangerous condition. (2) During a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in a patrol car during the investigation is for the convenience of the officer." Also see State v. Dabney, Belmont App. No. 92 BE 31, 2003-Ohio-5141. (Unreasonable to place passenger in rear of cruiser after already frisking him for weapons and cuffing him behind the back.)

Middletown v. Flinchum 95 Ohio St. 3d 43, 2002-Ohio-1625 -- Syllabus: "When officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the offender is being arrested is a misdemeanor." See dissent citing the lack of exigent circumstances and characterizing the chase as the "lukewarm amble" of a "mere tire-spinner."

State v. Stuber, 150 Ohio App. 3d 200, 2002-Ohio-6309 -- Defendant fled into his house when officers arrived to arrest him on a bench warrant. Presumed failure to comply with knock and announce requirement before making forcible entry doesn't matter, as officers are deemed to have been in hot pursuit.

State v. Huff (2001), 145 Ohio App. 3d 555, 561 -- "The opinion of a witness as to whether another witness is being truthful is inadmissible...The fact that the vouching witnesses were police officers caused even more of a problem."

State v. Karasek, Montgomery App. Nos. 17408 and 17409, 2002-Ohio-2616 -- Woman arrested for civil contempt was frustrated by delay in being processed for release and kneed jail officer in the groin. Because civil contempt is not a crime or delinquent act under R.C. 2903.12(C)(2)(b), she was erroneously convicted of assault on a corrections officer. Assault conviction stands.

State v. Brewer (1994), 96 Ohio App. 3d 413 -- Recklessness and not strict liability, is the culpable mental state for failure to obey the order of a traffic officer, R.C. 2921.331(A). Highway Patrol officer arrested a medic who refused to move an ambulance at a wreck location because doing so would interfere with medical assistance being rendered.

State v. Wagar (1993), 91 Ohio App. 3d 233 -- Misconduct at an emergency conviction upheld where defendant attempted to move his crashed ultralight aircraft, contrary to the wishes of the Highway Patrol officer who was investigating the crash.

State v. Reymann (1989), 55 Ohio App. 2d 222 -- Warrantless arrest was illegal when based on hearsay and not officer's own observations. Though error did not apply directly to hit skip charge defendant pleaded to, did apply to OMVI charge dropped in plea negotiations, which process was affected by the erroneous ruling.

Steagald v. United States (1981), 451 U.S. 204 -- Absent consent or exigent circumstances, an arrest warrant does not authorize search of subject's home. A separate search warrant for the subject's person must be obtained.

State v. Pembaur (1984), 9 Ohio St. 3d 136 -- Syllabus: "Absent bad faith on the part of a law enforcement officer, an occupant of business premises cannot obstruct the officer in the discharge of his duty, whether or not the officer's actions are lawful under the circumstances. (Columbus v. Fraley, 41 Ohio St. 2d 173 followed.)" While decision may be defensible insofar as the validity of the defendant's obstructing official business conviction, conduct of officers was contrary to rule of Steagald v. United States (1981), 451 U.S. 204.

State v. Doss (1996), 111 Ohio App. 3d 63 -- Licensed private detective and security guard improperly convicted of impersonating a police officer.

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