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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
-- Resisting arrest.
The Right to Resist an Unlawful Arrest
Use of Force Against a Police Officer in the Course of His Duties
Columbus v. Obasohan
, Franklin App. No. 07AP-297,
-- Arresting officer in a resisting arrest prosecution denied making anti-Somali remarks. Hearsay objections kept out testimony by two defense witnesses that he in fact had made such remarks, demonstrating bias. Prosecutor conceded error but maintained it was harmless. Reversed. At ¶23: Exclusion of evidence in a criminal trial must be considered prejudicial unless the court can declare, beyond a reasonable doubt, that the error was harmless, and unless there is no reasonable possibility that the evidence, or the exclusion of evidence, may have contributed to the accused‘s conviction." Citing
State v. Bayless
(1976), 48 Ohio St.2d 73, 106, vacated in part on other grounds (1978), 438 U.S. 911. Because there was conflicting testimony concerning the arrest, exclusion can not be declared harmless beyond a reasonable doubt.
N. Ridgeville v. Cummings
, 152 Ohio Misc. 2d 28,
– Officer approached the intoxicated defendant following up on a complaint from an unidentified person that he had been trying to pick a fight. Without non-hearsay testimony, there was no proof of the annoyance element of disorderly conduct. Related resisting count dismissed as well. Officer demanded ID. Defendant said he had none with him. Officer grabbed the defendant‘s wrist when he withdrew hands from pocket, as ordered, with a wallet in hand. Without inspecting the wallet, and without announcing that he was under arrest, the officer knocked the defendant to the ground, and cuffed him after a brief scuffle. ¶7: "To sustain a conviction for resisting arrest in this case, the prosecution need not first obtain a conviction that gave rise to the arrest…It must however, prove the following elements beyond a reasonable doubt: (1) that Lieutenant Acorti was effecting a lawful arrest of the defendant; (2) that the defendant was fairly apprised of the fact he was being arrested; and (3) that the defendant, having been fairly apprised of his arrest, nevertheless resisted either by force or by recklessly hindering or interfering with the arrest." Court finds against the state on the first element, citing the officer‘s lack of personal observation of annoyance or other aggravating factors, and the fact minor misdemeanors are citable offenses.
State v. Carroll
, 162 Ohio App. 3d 672,
-- Officer thought defendant might have an outstanding warrant. Defendant fled when asked to place his hands behind his back, without being told he was under arrest. Fleeing may have been obstructing official business but it was not resisting arrest. Defendant ran into officer's partner. But she did not know why her partner had approached the defendant, and did not tell him he was under arrest until after he was subdued. Resisting conviction reversed.
State v. Hasley
, Mahoning App. No. 03 MA 215,
-- Fleeing on foot after exiting a car and being ordered to stop was enough to sustain obstructing official business conviction. Slow response to officer's command to lie down did not amount to resisting.
State v. Karle
(2001), 144 Ohio App. 3d 125 -- Officers following broadcast information establishing probable cause to arrest the defendant for failure to obey a lawful order went to his home and made a warrantless arrest, notwithstanding the defendant's order they leave his property. Warrantless arrests in the home or curtilage are illegal absent exigent circumstances. None existed. Though the motion to suppress was constitutionally sound, the only fruit of the illegal arrest was the non-inculpatory order to leave. Therefore the defendant was not prejudiced. But since the arrest was not lawful, his resisting arrest conviction is reversed.
State v. Barker
(1978), 53 Ohio St. 2d 135 -- Paragraph one of the syllabus: "The existence of an arrest is dependent *** upon the existence of four requisite elements: (1) An intent to arrest, (2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested."
State v. Huffman
(1987), 38 Ohio App. 3d 84 -- An arrest occurs when the defendant surrenders or submits to police authority or when officers obtain control over the defendant.
State v. Glover
(1976), 52 Ohio App. 2d 35 -- Resisting arrest conviction upheld when arrest was by an off duty police officer working for a grocery store, who had identified himself as such to the defendant. As point of departure for analysis of arrests by auxiliary officers or special deputies working for a private interest, compare
State v. McDaniel
(1975), 44 Ohio App. 2d 163, 171-176).
Warren v. Patrone
(1991), 75 Ohio App. 3d 595 -- Merely stating "I'm not going anywhere" or "I won't go with you" while trying to walk away did not amount to forcible resistance or interference with arrest. Conviction reversed.
State v. Keegan
(1990), 67 Ohio App. 3d 824 -- Since resistance may be either reckless or by force, merely going limp may be sufficient if it delays or prevents the arrest. Also see
State v. Bay
(1998), 130 Ohio App. 3d 772, where defendant went limp on arrival at police station, before processing could be completed. Compare
Athens v. Bromall
(1969), 20 Ohio App. 2d 140 (persistent government professor at a sit in).
State v. Wenger
(1979), 58 Ohio St. 2d 336 -- A third party intervening in the arrest of another has no greater right to resist the arrest than the person being arrested. It is no excuse that the intervenor in good faith, but mistakenly, believes such intervention is warranted.
State v. Waterman
(1974), 41 Ohio App. 2d 98 -- One does not resist the arrest of another merely by remaining in the vicinity after being ordered to move on when the defendant's continued presence did not materially affect the arrest process.
Akron v. Callaway
, 162 Ohio App. 3d 781,
-- Akron's resisting arrest ordinance is found unconstitutional for being in conflict with the general law of the state, specifically
. The ordinance proscribes resisting both lawful and unlawful arrests. The ordinance proscribes only resisting lawful arrests. Thus the ordinance proscribes conduct permitted under the statute in violation of the home rule provision of the Ohio Constitution.
Cleveland v. Swieciki
, 149 Ohio App. 3d 77,
-- Fan being escorted from the stands because he was heckling an Indians outfielder jerked away from officer when his brother approached. Evidence did not show he was resisting a lawful arrest. At ¶30: "Swieciki's heckling in these circumstances did not provide a reasonable police officer basis to believe it constituted a criminal offense. Moreover, the transcript reveals that when asked on cross-examination what caused him to place Swieciki under arrest, Delgado stated: "I was just going to escort him out until he jerked away from my hold and pushed my arm away. That's when I said he was under arrest."
State v. Barron
(2001), 141 Ohio App. 3d 600 -- Homeowner called 911 to complain about an officer on his property examining vehicles.
does not qualify emergency to mean bona fide emergency. Officer's belief there was a violation was mistaken. Arrest was unlawful, therefore resisting conviction is reversed.
Middletown v. Hollon
, 156 Ohio App. 3d 565,
-- Defendant refused to produce a driver's license at the request of an officer responding to an animals running at large complaint. Obstructing official business conviction was not supported by the evidence as this was not the sort of affirmative action contemplated by the ordinance. Resisting conviction stands, as there may have been probable cause, and there was a proper basis for arrest on the animal charges, since the defendant did not furnish adequate ID forcing issuance of a summons.
State v. Owens
, Franklin App. No. 03AP-423,
-- Defendant stopped in the middle of the street to move a child to safety. Officer stopped, ordered the car moved, then prepared to issue a parking ticket after demanding the driver's license. LEADS check showed suspension. Resisting charge arose out of effort to handcuff the defendant. Conviction reversed as the officer had no right to demand a license in issuing a parking ticket, which is a civil matter. Use of license violated the Fourth Amendment, as it was illegally obtained. Defendant was entitled to use force to resist the illegal arrest. When officer sprayed mace in the defendant's face she inflicted serious physical harm.
State v. Hendren
(1996), 110 Ohio App. 3d 496 -- It is never unlawful to resist an unlawful arrest, and it was error to instruct the jury otherwise.
State v. Collins
(1993), 88 Ohio App. 3d 291 -- It was plain error not to include in jury instructions the lawfulness of the arrest as an element of resisting arrest.
State v. Johnson
(1982), 6 Ohio App. 3d 56 -- When there is no reasonable basis for the arrest, a person cannot be convicted of resisting arrest. Also see
State v. Kirchner
(1984), 19 Ohio Misc. 2d 7 where the court concluded the defendant clearly was not guilty of any offense, but arrest was warranted because the police had to do something about the snake nailed to his door. In the process the court observed both that the snake was not called as a witness and that it might be OK to torture a talking parrot.
Garfield Heights v. Simpson
(1992), 82 Ohio App. 3d 286 -- Absent a rational basis, an arrest is illegal. Security guard mouthed off at police officers gathering in parking lot to execute a warrant. No basis for arrest either for obstructing official business or disorderly conduct.
State v. Barker
(1998), 128 Ohio App. 3d 233 -- Arrest held lawful where there was probable cause to make an arrest for obstructing official business, even though defendant was acquitted of that charge. Refusing to put hands behind back to be cuffed and going limp deemed resistance. See dissent.
State v. Rose
(1991), 75 Ohio App. 3d 656 -- Court finds arrest for failure to display driver's license was lawful where defendant repeatedly asked why the officer wanted to see it but did not produce the license.
Columbus v. Henry
(1995), 105 Ohio App. 3d 545, 550 -- "...(I)t is not a crime for an Ohio resident to drive in Columbus without having his or her operator's license on his or her person." Thus, arrest for "no ops" was illegal and conviction for resisting arrest as improper. Also see
State v. DiGiorgio
(1996), 117 Ohio App. 3d 67.
State v. Miller
(1990), 70 Ohio App. 3d 727 -- Since the officers making a warrantless arrest did not witness the incident of criminal damaging, and since criminal damaging is not among the offenses listed in
, defendant's arrest was illegal and he could not be convicted of resisting.
Elyria v. Tress
(1991), 73 Ohio App. 3d 5 -- Police made an illegal warrantless entry into defendant's trailer. Consequently he was entitled to resist an unlawful arrest.
State v. Sansalone
(1991), 71 Ohio App. 3d 284 -- Officer did not have probable cause to arrest motorist who called him an asshole and drove off after finding him making out a parking citation since circumstances would not have reasonably led to a retaliatory breach of the peace. Arrest was not lawful, therefore defendant could not be prosecuted for resisting.
Coffel v. Taylor
(U.S. Dist. Ct., S.D. Ohio, 1978), 8 Ohio App. 3d 253 -- State law construed to be that while arrest must be lawful this means only that it was supported by probable cause and not that the defendant was actually guilty.
Hoover v. Garfield Heights
(6th Cir. 1986), 802 F.2d 168 -- The lawfulness of the arrest is a factual issue for the jury to decide. Failure to instruct the jury accordingly is error of constitutional dimension. Writ of habeas corpus granted for denial of Ohio defendant's right to have the jury properly instructed on the issue of the lawfulness of his arrest.
State v. Raines
(1997), 124 Ohio App. 3d 430 -- Officer suspected defendant of drug activity and told him to stop. Instead he fled, continued to do so after being told he was under arrest, then forced his way into an apartment. Because there was no lawful arrest, burglary conviction premised on forced entry to commit resisting arrest is reversed. The officer did not have probable cause to arrest the defendant, nor is fleeing a Terry stop the basis for a resisting charge. Dissenting judge believes fleeing a Terry stop is obstructing official business.
In re Mason
(May 21, 1990), Franklin Co. App. No. 90AP-217, unreported (1991 Opinions 2272) -- Resisting arrest conviction reversed where the defendant fled when ordered to stop. The officer had a basis for an investigative stop, but not probable cause for arrest. Also see
State v. McCullough
(1990), 61 Ohio Misc. 2d 607.
State v. Thompson
(1996), 116 Ohio App. 3d 740 -- Defendant may have had an open container, a minor misdemeanor, but refused officers' demand he go with them to their cruiser to be checked on the computer. Being placed in the cruiser amounted to arrest. Minor misdemeanors are not arrestible offenses if suspect offers adequate evidence of identity. Arrest was not lawful. Resisting conviction reversed.
State v. Campana
(1996), 112 Ohio App. 3d 297 -- The knock and announce rule applies to the execution of arrest warrants. Absent exigent circumstances, officers must identify themselves and wait for response by occupant. Failure to comply with these requirements made arrest unlawful.
State v. Christman
, Montgomery App. No. C.A. 19039,
-- Officer followed a car without using lights or siren, then, with another officer, followed a police dog to the woods behind a house. Dog attacked suspect, who resisted. Officers never identified themselves as such, or informed the suspect he was under arrest. 6'6", 265 pound officer manhandled suspect. Obstructing official business and resisting arrest convictions were not supported by the evidence.
Columbus v. Fraley
(1975), 41 Ohio St. 2d 173 -- Paragraph three of the syllabus: "In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances." Also see
State v. McCrone
(1989), 63 Ohio App. 3d 831. Note that
involved an ordinance making it an offense to use force against a police officer in the course of his duties and not the offense of resisting arrest.
has been held not to apply to the offense of resisting arrest which specifically sets forth lawful arrest as an element. See
State v. Johnson
(1982), 6 Ohio App. 3d 56;
Hoover v. Garfield Heights
(6th Cir. 1986), 802 F.2d 168;
State v. Lamm
(1992), 80 Ohio App. 3d 510, 515 -- Defendant's disorderly conduct arrest was unlawful. Exclusionary rule applied as to related charges of resisting arrest, assault and aggravated menacing. Also see
State v. Maynard
(1996), 110 Ohio App. 3d 6. Compare
Cleveland v. Murad
(1992), 84 Ohio App. 3d 317, 322-323.
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.)" Compare
Steagald v. United States
(1981), 451 U.S. 204.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.