462 N.E.2d 436 | Ohio Ct. App. | 1983
This is a prosecutor's appeal pursuant to Crim. R. 12(J) from a motion to suppress that was granted in the County Court of Paulding County.
On May 27, 1982 the defendant-appellee, Charles Clark, was arrested by Officer Merritt, an auxiliary police officer of the Paulding Village Police Department, for violation of R.C.
The first and second assignments of error address the same issue and state, respectively:
"First Assignment of Error: The trial court erred in finding that patrolman Michael Merritt was not on duty at the time he observed the defendant-appellee, pursued him, stopped him and arrested him.
"Second Assignment of Error: The trial court erred in finding that the arrest *309 of the defendant-appellee was without authority and as such illegal."
Relative to these assignments of error the trial court stated:
"12. Rule 26 of the Supplement to the Paulding Police Department Rules and Regulations is invalid.
"13. Michael Merritt was not on duty at the time he observed the Defendant, pursued him, stopped him and placed him under arrest without a warrant.
"14. The arrest of the Defendant was without authority and as such was illegal."
The court concluded that the arrest was illegal because Merritt was not technically on duty.
The court found Police Rule 26, which was written by the police chief, to be without authority because only the appropriate legislative or executive body could draft such rules. We disagree with the court's analysis.
The question of whether the officer was on or off duty is irrelevant. The pertinent question, though not specifically presented on appeal, is whether Merritt is a duly appointed officer. See R.C.
"(A) A sheriff, deputy sheriff, marshal, deputy marshal, police officer, or state university law enforcement officer appointed under section
The code makes no distinction as to the "duty status" of an officer. Paragraph two of the syllabus of 1974 Ohio Atty. Gen. Op. No. 74-094, at 2-382, states:
"An off-duty municipal police officer may, pursuant to R.C.
In State v. Glover (1976),
"A duly commissioned police officer holds a public office upon a continuing basis. The officer here remained an officer of the law, and his obligation to preserve the peace was not nullified by the fact he was working for Kroger in this case."
In addition to the duty status argument, the appellee asserts that the auxiliary officer did not have authority or power to arrest. R.C.
"A member of an auxiliary police force organized by county, township, or municipal law enforcement authorities, within the scope of such member's appointment or commission;"
A law enforcement officer, which includes an auxiliary police officer, necessarily has the power to enforce the law. This power includes the power to arrest, depending, of course, on the scope of the appointment. R.C.
"Municipalities operating under a statutory form of government may designate the authority conferred upon auxiliary police in the ordinance creating the auxiliary police unit. I find nothing in the revised code which in my opinion *310 limits the authority with which a municipality may invest its auxiliary police, subject however to the limitations upon the authority of municipal police generally. A municipality may confer upon its auxiliary police such powers as are necessary under the circumstances to discharge the duties imposed upon them."
Village of Paulding Ordinance No. 648-48, passed pursuant to R.C.
"Section 4. Control of Unit.
"The Chief of Police shall be the commanding officer of the auxiliary police unit and shall have control of the assignment, training, stationing, and the direction of work of such unit. The auxiliary police unit will have all police powers, but shall perform only such police duties as assigned by the Chief of Police and shall act only when in the prescribed uniform or portion of uniform." (Emphasis added.)
As we have noted Merritt was in uniform. We conclude that the auxiliary police force of Paulding was conferred full "police powers," and accordingly had the power, regardless of "duty status," to make arrests pursuant to the Revised Code, as well as the ordinances of the village of Paulding.
Additionally, though the arrest took place outside the village limits, that venue extension is cured by R.C.
"If a sheriff, deputy sheriff, marshal, deputy marshal, police officer, constable, or state university law enforcement officer appointed under section
"(1) The pursuit takes place without unreasonable delay after the offense is committed;
"(2) The pursuit is initiated within the limits of the political subdivision, college, or university in which the peace officer is appointed or elected;
"(3) The offense involved is a felony, a misdemeanor of the first degree or a substantially equivalent municipal ordinance, a misdemeanor of the second degree or a substantially equivalent municipal ordinance, or any offense for which points are chargeable pursuant to division (G) of section
Because the first assignment of error concerns a subject which is irrelevant to the power to make the arrest, it is overruled. The second assignment of error is well-taken.
The third assignment of error states:
"The trial court erred in sustaining the defendant-appellee's motion to suppress all evidence obtained as a result of the arrest of the defendant-appellee."
In this assignment, the appellant argues that the trial court erroneously applied the exclusionary rule finding an illegal seizure in violation of the Fourth Amendment. In the motion the defendant claimed the "seizure" was illegal for lack of probable cause. The trial court, while not specifically mentioning lack of probable cause, stated that the suppression "should be granted as to all branches of defendant's motion."
At the outset, it is readily apparent that the officer had probable cause to arrest the defendant after observing his erratic driving, and the subsequent observation of an alcoholic odor. Assuming the warrantless arrest is within the context of the Fourth Amendment, we find no violation, given the probable cause to make the arrest. Kettering v. Hollen (1980),
The officer, as we have held, was a duly appointed police officer. By virtue of the provision of R.C.
We conclude that the court's application of the exclusionary rule was erroneous as a matter of law.
The third assignment of error is well-taken.
The fourth assignment of error states:
"The trial court erred in suppressing the testimony of Patrolman Michael Merritt related to any observations that he made prior to the arrest of the defendant-appellee."
Evid. R. 601 states:
"Every person is competent to be a witness except:
"(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute."
The Staff Notes state that this rule reiterates R.C.
The intent of the rule was to create uniformity in police work, and to prevent speed traps and other similar abuses in the enforcement of traffic laws. Dayton v. Adams (1967),
Finally we come to the question as to the testimony of the arresting officer at the hearing on suppression as distinguished from possible testimony at trial. Was that testimony at the hearing incompetent under R.C.
In 81 American Jurisprudence 2d 177, Witnesses, at Section 135, it is said:
"Persons entitled to object to the competency of a witness may waive their objection and permit the witness to testify."
In 56 Ohio Jurisprudence 2d 507, Witnesses, Section 74, it is said:
"It is a general rule that the incompetency of a witness may be waived by allowing him to testify without objection, with knowledge of his incompetency. Accordingly, Ohio courts have held that failure to object to the competency of a witness at the proper time is a waiver of it, and the question of incompetency cannot later be raised to prevent the witness from again testifying in the same cause."
Here the object of the motion to suppress was the suppression of testimony at trial. However, no objection was made to *312 the testimony of the officer at the suppression hearing on the ground of incompetency. Thus the determination by the trial court as to suppression of testimony of Merritt at trial was correct. However, no objection having been raised to his testimony at the suppression hearing, objection thereto was waived, and his testimony establishing the validity of the arrest was properly before that court.
See, also, Milnark v. Eastlake (1968),
In the present case it was a fact that the officer was driving his own personal vehicle and that the vehicle was without police markings. However, no objection on the ground of competency was made and there was no motion to strike the testimony as presented.
We would conclude there was a waiver of objection to the competency of the witness to testify at the suppression hearing.
We then conclude that the trial court was correct and its judgment is effectual in suppressing the testimony of Merritt at trial on the ground that he was, by statute, an incompetent witness. The trial court was incorrect and its judgment is reversed as to the suppression of any other evidence, and in sustaining the appellee's motion to suppress in all other particulars.
Judgment affirmed in part and reversed in part.
MILLER, P.J., and GUERNSEY, J., concur.