State v. JonesState v. Jones
- Reporters:
- ,
- Before:
- Douglas
The issue certified for our -review is whether “an arrest in violation of
The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * * Section 14, Article I of the Ohio Constitution contains nearly identical language, and this court has determined that protections provided by Ohio’s Constitution are coextensive with those provided by the United States Constitution. State v. Robinette (1997), 80 Ohio St.3d 234, 238, 685 N.E.2d 762, 766.
Although the Fourth Amendment does not explicitly provide that violations of its provisions will result in suppression of evidence obtained as a result of .the violation, the United States Supreme Court has held that the exclusion of that evidence is an essential part of the Fourth Amendment. Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. This is known as the exclusionary rule. Id.
The main purpose of the exclusionary rule is to remove the incentive to violate the Fourth Amendment and thereby deter police from performing future unconstitutional searches and seizures. Wolf v. Colorado, supra; Elkins v. United States (1960), 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The Fourth Amendment exclusionary rule was made applicable to the states in Mapp v. Ohio, supra.
In the case at bar, appellee was arrested for violating Section 75.02(A) of the Dayton Revised Code of General Ordinances (“jaywalking”), a minor misdemean- or.3 In Ohio, arrests for minor misdemeanor offenses are governed by
“(1) The offender requires medical care or is unable to provide for his own safety.
“(2) The offender cannot or will not offer satisfactory evidence of his identity.
“(3) The offender refuses to sign the citation.
“(4) The offender has previously been issued a citation for the commission of that misdemeanor and has failed to do one of the following:
“(a) Appear at the time and place stated in the citation;
“(b) Comply with division (C) of this section.” (Division [C] provides means of pleading guilty and paying the fine without a court appearance.)
Appellant concedes that none of the exceptions specified in
Appellant’s assertion that the exclusionary rule will not ordinarily be applied to evidence unless it was obtained through a violation of constitutional rights is a correct statement of the law as set forth in the court’s decision in Kettering v. Hollen (1980), 64 Ohio St.2d 232, 18 O.O.3d 435, 416 N.E.2d 598. In Hollen, a municipal police officer arrested a suspect for a misdemeanor offense outside the officer’s jurisdiction, in violation of Ohio law. Id. at 233-234, 18 O.O.3d at 436-437, 416 N.E.2d at 599-600. The court of appeals held that, because the arrest was unlawful, evidence obtained incident to the arrest should be suppressed. This court held that the officer had probable cause to arrest Hollen and so, even though the arrest had violated Ohio law, it was not a violation of the Fourth Amendment. Finding no constitutional violation to trigger the exclusionary rule, the court reversed the court of appeals’ decision to suppress the evidence. Id. at 235, 18 O.O.3d at 437-438, 416 N.E.2d at 600.
Moreover, in a long line of cases, this court has consistently refused to apply the exclusionary rule to evidence obtained incident to police conduct violative of state law but not violative of constitutional rights. See, e.g., Hilliard v. Elfrink (1996), 77 Ohio St.3d 155, 672 N.E.2d 166, and State v. Myers (1971), 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d 245 (exclusionary rule does not apply when officers, in violation of a statute, fail to advise an OMVI suspect that he could
However, as the court of appeals correctly pointed out, the rule of law set forth above only begs the question of whether a violation of
The facts in Slatter were similar to those of the instant matter. Police officers arrested Slatter for the commission of a minor misdemeanor offense. Finding that none of the exceptions in
Whereas the facts of Slatter were similar to the case at bar, the issue presented to this court was quite different. In Slatter, the state argued that R.C 2935.26 was unconstitutional because it intruded upon the court’s rule-making powers under Section 5(B), Article IV of the Ohio Constitution. We found that the statute’s provisions were not in conflict with the Ohio Rules of Criminal Procedure and rejected the state’s argument. Id. at 458, 20 O.O.3d at 387, 423 N.E.2d at 104. The issue in the case now before us, whether an arrest in violation of
Having determined that Slatter does not decide the issue in the instant case, we now turn our attention to appellee’s contention that an arrest for a minor misdemeanor, made in violation of
In determining whether a particular governmental action violates the reasonableness requirement of the Fourth Amendment, the United States Supreme Court first examines whether the action was regarded as unlawful when the Amendment was enacted.6 Wyoming v. Houghton (1999), 526 U.S. 295,-, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408, 414. If, however, at the time of the Fourth Amendment’s ratification there was no clear practice either allowing or forbidding the type of governmental action at issue, then its reasonableness is judged by weighing the competing interests involved. That is, the extent of the action’s intrusion on the individual’s liberty and privacy is weighed against the need for the intrusion to promote legitimate governmental interests (“balancing test”). Vernonia School District 47J v. Acton (1995), 515 U.S. 646, 652-653, 115 S.Ct. 2386, 2390, 132 L.Ed.2d 564, 574; Wyoming v. Houghton, 526 U.S. at-, 119 S.Ct. at 1300, 143 L.Ed.2d at 414.
The governmental action at issue in the case at bar is a full custodial arrest. The first prong of the reasonableness test requires that we determine, if possible, whether officers were permitted to arrest persons at common law for minor misdemeanor offenses. Because the term “minor misdemeanor” was not used at common law and because many modern statutory offenses do not have common-law predecessors, Blanton v. North Las Vegas, Nevada (1989), 489 U.S. 538, 541, 109 S.Ct. 1289, 1292, 103 L.Ed.2d 550, 555, fn. 5, we cannot determine whether at common law there was a clear practice either allowing or forbidding arrests for offenses that are today classified as minor misdemeanors. Nevertheless, we will discuss the types of offenses for which officers were permitted to arrest at common law and compare those to offenses classified as minor misdemeanors today.
Officers were permitted to arrest without a warrant at common law only for offenses classified as felonies and for misdemeanors constituting a breach of the peace committed in the officer’s presence. Carroll v. United States (1925), 267 U.S. 132, 156-157, 45 S.Ct. 280, 286, 69 L.Ed. 543, 553. Breaches of the peace at common law were offenses involving conduct that destroyed or menaced public order and tranquility such as “violent acts * * * and words likely to produce violence in others.” Cantwell v. Connecticut (1940), 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213, 1220.
We believe that the offenses classified as minor misdemeanors today would not have been considered breaches of the peace at common law because offenses classified as minor misdemeanors are those offenses that society considers to be the least serious. Indeed, the maximum penalty for committing a minor misdemeanor offense is a $100 fine.
As mentioned above, the balancing test requires that we weigh the competing interests surrounding the governmental action at issue. That is, we must evaluate on the one hand the degree to which the governmental action intrudes upon a person’s liberty and privacy, and, on the other hand, the degree to which the intrusion is necessary for the promotion of legitimate governmental interests. Wyoming v. Houghton, 526 U.S. at-, 119 S.Ct. at 1300, 143 L.Ed.2d at 414.
As previously indicated, the governmental action at issue in this case is a full custodial arrest. An arrest is a “serious personal intrusion.” United States v. Watson, supra, at 428, 96 S.Ct. at 830, 46 L.Ed.2d at 612 (Powell, J., concurring). When arrested, a person is often handcuffed and is forcibly taken to an unfamiliar place. While under arrest, the person is forced to forfeit control of his person
In addition to the constraints on liberty, once placed under arrest a person is subjected to numerous invasions of his or her privacy. Officers may perform a full search of an arrestee’s person regardless of the offense prompting the arrest. United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; Gustafson v. Florida (1973), 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456. Describing the intrusion occasioned by a patdown, which is less thorough than a full search, the United States Supreme Court stated that “[e]ven a limited search of the outer clothing * * * constitutes a severe * * * intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, supra, 392 U.S. at 24-25, 88 S.Ct. at 1881-1882, 20 L.Ed.2d at 908. Clearly, the intrusion is magnified when the person is subjected to a full search.
Against the weight of an arrest’s intrusion upon a person’s liberty and privacy, we must weigh the government’s interests in making an arrest for a minor misdemeanor when none of the exceptions in
Clearly, the government’s interests in making a full custodial arrest for a minor misdemeanor offense, absent any
The United States Supreme Court has not addressed the issue of whether a full custodial arrest for a minor offense is, in some circumstances, an unreasonable seizure. However, Justice Stewart suggested that it was an unreasonable seizure in his concurring opinion in Gustafson v. Florida, supra, 414 U.S. at 266, 94 S.Ct. at 492, 38 L.Ed.2d at 462. In Gustafson, a police officer arrested Gustafson for failure to have his driver’s license in his possession while driving. While searching Gustafson incident to that arrest, the officer discovered marijuana cigarettes.
The court rejected Gustafson’s argument that a full-scale body search incident to an arrest for a traffic violation violated the Fourth Amendment. Gustafson did not argue that the airest itself was unconstitutional. In his concurring opinion, Justice Stewart stated that “a persuasive claim might have been made * * * that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments.” Id. at 266-267, 94 S.Ct. at 492, 38 L.Ed.2d at 462. This statement clearly adds support to our decision in the instant case.
For the foregoing reasons, we hold that absent one or more of the exceptions specified in
Judgment affirmed.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.
Notes
. Section 75.02(A) of the Dayton Revised Code of General Ordinances provides:
“Where usable walks or paths parallel a street or highway, pedestrians shall not travel in, along, or on the vehicular traveled portion of such street or highway, except to cross the roadway in the manner provided by law.”
Pursuant to Section 70.99 of the Dayton Revised Code of General Ordinances, a violation of Section 75.02(A) is a minor misdemeanor. Section 70.99 provides:
‘Whoever violates any provision of this title, for which no penalty is otherwise provided in this section, is guilty of a minor misdemeanor on a first offense.”
. The court made clear in Davis that there was no constitutional violation because Davis had waived his Fourth Amendment rights by consenting to being fingerprinted and, thus, the violation was purely statutory. Davis, 56 Ohio St.2d at 57, 10 O.O.3d at 90, 381 N.E.2d at 646.
. In Slatter we stated that
. We note that although the United States Supreme Court looks to what was acceptable at the time the Fourth Amendment was enacted, it has also cautioned that “[t]he significance accorded to [the common law], * * * must be kept in perspective, for our decisions in this area have not ‘simply frozen into constitutional law those enforcement practices that existed at the time of the Fourth Amendment’s passage.’ Payton v. New York, 445 U.S. at 591 [100 S.Ct. at 1382-1383, 63 L.Ed.2d at 654], n. 33. The common-law rules governing searches and arrests evolved in a society far simpler than ours is today. Crime has changed, as have the means of law enforcement, and it would therefore be naive to assume that those actions a constable could take in an English or American village three centuries ago should necessarily govern what we, as a society, now regard as proper. Cf. Katz v. United States, 389 U.S. 347, 352-353 [88 S.Ct. 507, 511-512, 19 L.Ed.2d 576, 582-583] (1967). Instead, the Amendment’s prohibition against ‘unreasonable searches and seizures’ must be interpreted ‘in light of contemporary norms and conditions.’ Payton v. New York, supra, at 591 [100 S.Ct. at 1382-1383, 63 L.Ed.2d at 654], n. 33.” Steagald v. United States (1981), 451 U.S. 204. 217, 101 S.Ct. 1642, 1650, 68 L.Ed.2d 38, 48, fn. 10.
. Following is a list of some offenses that are classified as minor misdemeanors by the Ohio Revised Code. This list is intended merely to illustrate the types of offenses classified as minor misdemeanors and is by no means exhaustive. A pedestrian crossing a street, between intersections, in a place other than a marked crosswalk (
We note that the classification of each of the offenses listed above is increased from a minor misdemeanor to a misdemeanor of the fourth degree if the offender is a repeat offender.