THE STATE OF OHIO, APPELLEE v. JORDAN, APPELLANT.
SLIP OPINION NO. 2021-OHIO-3922
SUPREME COURT OF OHIO
November 9, 2021
2021-Ohio-3922
O‘CONNOR, C.J.
Case No. 2020-0495. Submitted March 31, 2021.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Jordan, Slip Opinion No. 2021-Ohio-3922.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Jordan, Slip Opinion No. 2021-Ohio-3922.]
Criminal law—Warrantless arrest—
APPEAL from the Court of Appeals for Hamilton County, Nos. C-1800559 and C-1800560, 2020-Ohio-689.
{¶ 1} Appellant, LeAndre Jordan, challenges the constitutionality of his warrantless arrest, which ultimately led to his convictions for multiple drug offenses. He asks this court to hold that a police officer is constitutionally required to secure an arrest warrant before conducting an arrest anytime the circumstances demonstrate that it is practicable to do so.
{¶ 2}
Facts and procedural background
{¶ 3} This appeal stems from Jordan‘s convictions in the Hamilton County Court of Common Pleas for various drug offenses, but Jordan‘s drug charges arose as a result of his arrest for an unrelated crime with which he was ultimately not charged. The investigation of that unrelated offense is the focus of our analysis.
{¶ 4} On December 12, 2016, someone broke into James and Emiko Locke‘s Cincinnati home through a bedroom window and stole a safe that contained $40,000. Cincinnati Police Detective Mark Longworth, who investigated the burglary, characterized it as “unusual in that really only the safe was taken,” as only a few people knew of the safe‘s location and contents. James Locke told Detective Longworth that other than Locke and his wife, only his son Michael and godson Demarco knew about the safe.
{¶ 5} The Lockes suspected that Michael had been involved in the burglary. They told Detective Longworth that they had thrown Michael out of the house but that he had “recently come back around.” They were suspicious of Michael because he had telephoned them around the time of the burglary to determine whether they were home. Michael then arrived at his parents’ home shortly after they discovered the burglary, “fishing around for information about what had happened” and what they knew. When a neighbor stopped by and reported that he had seen a suspicious vehicle—a cream-colored Chrysler 300—parked near the Lockes’ house around the time of the burglary, Michael became upset and told the neighbor to leave.
{¶ 6} The Lockes believed that the vehicle the neighbor had described belonged to Michael‘s friend “Dre“—appellant, LeAndre Jordan—whom they described to Detective Longworth and characterized as “trouble.” They told Detective Longworth that Jordan worked at a barbershop near the Kroger store on Warsaw Avenue. Detective Longworth located a cream-colored Chrysler parked in the Kroger parking lot, across the street from the barbershop; it was registered to Jordan‘s mother.
{¶ 7} Detective Longworth interviewed Michael a couple of days after the burglary, and Michael confirmed that Jordan drove the car that Detective Longworth had located in the Kroger parking lot. Michael‘s cell-phone call log confirmed calls to his parents at 4:23 p.m. and 4:29 p.m. on December 12, 2016, shortly before the burglary, as well as multiple calls between Michael and Jordan around the time of the burglary.
{¶ 8} As a result of his investigation, Detective Longworth believed that Jordan was involved in the burglary. For several days, he observed Jordan coming and going between the cream-colored Chrysler, parked in the Kroger parking lot, and the barbershop. On December 20, eight days after the burglary, Detective Longworth and another officer arrested Jordan as he exited a cell-phone store.
{¶ 9} At the time of his arrest, Jordan was carrying his girlfriend‘s identification
{¶ 10} Jordan filed a motion to suppress. He argued that his arrest was unconstitutional and that the evidence should be suppressed as the fruit of that constitutional violation. Jordan admitted in his motion, “An arrest without a warrant is constitutionally valid if, at the moment the arrest is made, the arresting officer has probable cause to make it,” but he argued that his arrest was not supported by probable cause. At the suppression hearing, Jordan‘s attorney primarily repeated the argument that the police lacked probable cause to arrest Jordan, but he also stated more broadly that “there was no warrant,” even though eight days had elapsed during which Detective Longworth could have obtained one.
{¶ 11} The trial court denied the motion to suppress, and the case proceeded to a jury trial. Jordan was convicted of trafficking in heroin, aggravated trafficking in drugs, possession of heroin, aggravated possession of drugs, and possession of cocaine. After merging allied offenses, the trial court sentenced Jordan to an 11-year prison term and imposed a driver‘s license suspension.
{¶ 12} Jordan appealed his convictions to the First District Court of Appeals, challenging the trial court‘s denial of his motion to suppress. The First District held that the trial court did not err by denying Jordan‘s motion to suppress, and it affirmed his convictions.1 It rejected Jordan‘s argument that the information known to Detective Longworth at the time of Jordan‘s arrest did not establish probable cause. It also rejected Jordan‘s argument, which Jordan had not raised in his motion to suppress, that his arrest was unlawful because there were no exigent circumstances to justify a warrantless arrest. Id. at ¶ 21.
{¶ 13} This court accepted a discretionary appeal to consider a single proposition of law: “Under
Analysis
{¶ 14} The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
A warrantless arrest based on probable cause and conducted in public is reasonable under the Fourth Amendment
{¶ 15} Jordan frames his proposition of law as presenting a constitutional question that arises upon application of
{¶ 16} Contrary to the premise of the proposition of law this court accepted, the dissent reasons that
{¶ 17}
{¶ 18} “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” Wilson v. Arkansas, 514 U.S. 927, 931, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). An arrest is “quintessentially a seizure,” that is subject to the Fourth Amendment and that must be reasonable. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), quoting Watson, 423 U.S. at 428 (Powell, J., concurring).
{¶ 19} The constitutionality of an arrest depends on whether, at the moment the arrest was made, the officers had probable cause to make it. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause is “defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.‘” (Brackets added in Gerstein.) Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), quoting Beck at 91. When a warrantless arrest is challenged on constitutional grounds, the court must determine whether the facts known to the officers at the time of the arrest would “warrant a man of reasonable caution in the belief that an offense has been committed.” Beck at 96, quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). An arrest that is based on probable cause is a reasonable intrusion under the Fourth Amendment, United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), whereas an arrest that is not supported by probable cause constitutes an unreasonable seizure, Donovan v. Thames, 105 F.3d 291, 297-298 (6th Cir.1997), citing Beck at 90-91.
{¶ 20} The use of probable cause as the standard for making an arrest “represents a necessary accommodation between the individual‘s right to liberty and the State‘s duty to control crime.” Gerstein at 112. It “is a practical, nontechnical conception [that affords] the best compromise * * * for accommodating * * * often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
{¶ 21} In Gerstein, the United States Supreme Court stated, “To implement the Fourth Amendment‘s protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible.” Id. at 112. That does not, however, mean that an arrest warrant is necessary in all circumstances. Even though requiring that a neutral and detached magistrate review in advance a police officer‘s factual justification for an arrest would ensure maximum protection of individual rights, the Supreme Court noted that “it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” Id. at 113, citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). But when a police
{¶ 22} The United States Supreme Court returned to the issue of warrantless felony arrests in Watson, in which it upheld, as consistent with the Fourth Amendment, a warrantless arrest that was based on probable cause and that was made in public. See 423 U.S. 411. The court stated that nothing in its precedent indicated that the Fourth Amendment required a warrant to make a valid felony arrest, and “[i]ndeed, the relevant prior decisions are uniformly to the contrary.” Id. at 416-417. It characterized that precedent as “reflect[ing] the ancient common-law rule” that a police officer may make a warrantless arrest for a felony when the officer has reasonable grounds for making the arrest. Id. at 418. In light of that longstanding rule, the court declined to transform a judicial preference for arrest warrants into a constitutional requirement. Id. at 423.
{¶ 23} Watson does not, however, stand for the proposition that the police have unlimited authority to effect a warrantless felony arrest as long as they have probable cause. Other circumstances might compel the police to take additional steps in order to ensure the arrest will survive constitutional scrutiny. For example, several years after Watson, the United States Supreme Court considered whether and under what circumstances an officer could enter a suspect‘s home to make a warrantless arrest in a manner consistent with the Fourth Amendment. See Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639. In Payton, the court recognized that “‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,‘” id. at 585-586, quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), and that unlike a warrantless seizure conducted in a public place, a warrantless seizure conducted inside a home is presumptively unreasonable, id. at 586-587. It concluded that “the Fourth Amendment has drawn a firm line at the entrance to the house” that “may not reasonably be crossed without a warrant” unless exigent circumstances exist. Id. at 590. Because Jordan was arrested in public, the rule announced in Payton is inapplicable here. Instead, Watson controls.
Neither exigent circumstances nor the impracticability of obtaining a warrant is required to justify a warrantless felony arrest that is supported by probable cause and that is conducted in public
{¶ 24} Jordan no longer argues that the arresting officers did not have probable cause to believe that he was involved in the burglary of the Lockes’ home. Rather, his proposition of law concerns the constitutionality of a warrantless arrest “once probable cause is established.”
{¶ 25} In support of his position that a police officer is constitutionally required to obtain an arrest warrant any time it is practicable under the circumstances to do so, Jordan relies on State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972), in which this court stated:
“Under certain circumstances, a warrant need not be obtained in order to render an arrest valid. The arresting officer must have probable cause to believe that a felony was committed by defendant, and the circumstances must be such as to make it impracticable to secure a warrant. Johnson v. United States, 333 U.S. 10 [68 S.Ct. 367, 92 L.Ed 436 (1948)]; Jones v. United States, 357 U.S. 493, 499, 500 [78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958)]; Chapman v. United States, 365 U.S. 610, 615 [81 S.Ct. 776, 5 L.Ed.2d 828 (1961)].”
Id. at 155, quoting State v. Woodards, 6 Ohio St.2d 14, 20, 215 N.E.2d 568 (1966). But Heston is factually distinguishable from this case. The arrest challenged in Heston was not conducted in public. Rather, the police arrested Heston inside private property, based on information that Heston had committed a felony, that he intended to leave town to evade apprehension, and that one of Heston‘s alleged accomplices had already fled. Id. Each of the cases that the United States Supreme Court cited in Heston in support of an impracticability requirement likewise involved nonpublic searches or seizures. See Johnson at 16-17; Jones at 495; Chapman at 610.
{¶ 26} Jordan argues that the trial court and the First District should have followed Heston‘s lead and determined whether the circumstances surrounding his arrest made it impractical for the officers to have secured an arrest warrant, but that argument ignores the innate difference between a warrantless arrest that occurs in public and a warrantless entry into private property for the purpose of making a felony arrest. Fourth Amendment jurisprudence consistently accords law-enforcement officers greater latitude when they exercise their duties in public places. Florida v. White, 526 U.S. 559, 565, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999). In this context, “although a warrant presumptively is required for a felony arrest in a suspect‘s home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred.” Id., citing Watson, 423 U.S. at 416-424.
{¶ 27} Even if indistinguishable on its facts, Heston‘s remaining precedential value is, at best, questionable with respect to warrantless arrests in public because it predates Watson, in which the United States Supreme Court refused to require the government to obtain a warrant for a public arrest even though there was “concededly” time to do so. 423 U.S. at 414. While Jordan has suggested that we should read Watson narrowly, as applying only to cases involving exigent circumstances, that reading of Watson is directly contrary to the broad language the Supreme Court employed. The Supreme Court expressly held in Watson that the Fourth Amendment does not require exigent circumstances or impracticability of obtaining a warrant before police may conduct a warrantless public arrest upon probable cause. Id. at 423-424. It noted, “[T]he judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.” Id.
{¶ 29} Contrary to the First District‘s decision in this case, the Second District Court of Appeals has held, albeit inconsistently, that not only must a warrantless arrest be supported by probable cause to pass constitutional muster, but “it must also be shown that obtaining an arrest warrant beforehand was impracticable under the circumstances, i.e., that exigent circumstances exist.” State v. VanNoy, 188 Ohio App.3d 89, 2010-Ohio-2845, 934 N.E.2d 413, ¶ 23 (2d Dist.), citing State v. Jones, 183 Ohio App.3d 839, 2009-Ohio-4606, 919 N.E.2d 252, ¶ 12 (2d Dist.), citing Heston, 29 Ohio St.2d 152, 280 N.E.2d 376, and Woodards, 6 Ohio St.2d 14, 215 N.E.2d 568. But see State v. Short, 2d Dist. Montgomery No. 27712, 2018-Ohio-3202, ¶ 18, quoting Brown at ¶ 66 (“‘[a] warrantless arrest that is based upon probable cause and occurs in public does not violate the Fourth Amendment‘“). For the reasons already stated in this opinion, we reject the Second District‘s holding in VanNoy as contrary to precedent from both this court and the United States Supreme Court.
{¶ 30} Finally, even accepting that the existence of probable cause generally makes a public felony arrest constitutionally permissible, Jordan argues that the general rule should not apply when there is an unreasonable delay between the establishment of probable cause and the arrest itself. That argument, however, amounts to nothing more than a repackaging of the previously rejected argument that a warrantless felony arrest made in public is reasonable only if there are exigent circumstances that make it impractical for the police to obtain an arrest warrant.
{¶ 31} Jordan likens the probable cause necessary to justify an arrest to that required to justify a search for evidence, and he unpersuasively suggests that any probable cause to believe that he was involved in the burglary of the Lockes’ home had gone stale by virtue of the eight-day delay between the burglary and his arrest. Probable cause to support the issuance of an arrest warrant does not grow stale in the same ways as the probable cause that is necessary to support a warrant to search for particular evidence in a particular place. Watson, 423 U.S. at 432, 96 S.Ct. 820, 46 L.Ed.2d 598, fn. 5 (Powell, J., concurring). Probable cause to believe that particular objects exist in a particular place does not last indefinitely because delay in acting upon such probable cause affords opportunities for the evidence to be moved, hidden, or destroyed. On the other hand, there is nothing inherent in a delay that would make a suspect‘s involvement in a criminal offense less probable. See United States v. Haldorson, 941 F.3d 284, 292 (7th Cir.2019) (“It is the rare case where ‘staleness’ will be relevant to the legality of a warrantless arrest. When there is a reasonable belief that someone has committed a crime, time by itself does
Conclusion
{¶ 32} In accordance with United States Supreme Court precedent, we again hold that a warrantless arrest, conducted in public and with probable cause to believe that the arrestee has committed a felony, is reasonable and does not violate the Fourth Amendment to the United States Constitution or
Judgment affirmed.
KENNEDY, FISCHER, and DEWINE, JJ., concur.
DONNELLY, J., concurs in judgment only.
STEWART, J., dissents, with an opinion joined by BRUNNER, J.
STEWART, J., dissenting.
{¶ 33} The majority opinion concludes that law-enforcement officers are statutorily authorized to conduct warrantless arrests pursuant to
{¶ 34} As a preliminary matter, the language of
{¶ 35} Nevertheless, the language of both
R.C. 2935.04 is a Citizen‘s-Arrest Statute
{¶ 36}
When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.
Although
{¶ 37} Under
{¶ 38} By contrast,
{¶ 39} Concluding, as the majority does, that
the law places
{¶ 40} The majority justifies its decision not to engage in any critical analysis of the two statutes by stating first that the parties did not raise this issue to this court and second that this court has applied
As a general rule, this court will not consider arguments that
were not raised in the courts below. See State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524, 526. The waiver doctrine, however, is not absolute. Id. at 169-170, 522 N.E.2d at 526; In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286. When an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue. To put it another way, if we must resolve a legal issue that was not raised below in order to reach a legal issue that was raised, we will do so.
In the recent past, when we have encountered a predicate question that, as a practical matter, should be answered before the question presented by the proposition of law is considered, we have taken appropriate measures to address the predicate question. See State v. Jones, 162 Ohio St.3d 542, 2020-Ohio-4031, 166 N.E.3d 1096, ¶ 3 (declining to resolve the proposition of law accepted for review and instead remanding to the court of appeals to address the predicate question of whether defendant‘s waiver of counsel was knowing, intelligent, and voluntary); see also State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248 (overruling our void-sentence cases even though the parties did not raise a facial challenge to the void-sentence doctrine on appeal).
{¶ 41} The question presently before the court presumes that
Neither R.C. 2935.03 nor R.C. 2935.04 Authorizes a Warrantless Arrest if an Arrest Warrant Could Have Been Obtained; Arresting Without Authority to Arrest Violates the Constitution
{¶ 42}
the Revised Code or detention pursuant to section 2935.041 of the Revised Code shall forthwith take the person arrested before the most convenient judge or clerk of a court of record or before a magistrate, or deliver such person to an officer authorized to execute criminal warrants who shall, without unnecessary delay, take such person before the court or magistrate having jurisdiction of the offense. The officer may, but if he does not, the private person shall file or cause to be filed in such court or before such magistrate an affidavit stating the offense for which the person was arrested“) with
{¶ 43} But importantly, regarding the question now before the court, the language “until a warrant can be obtained” also presupposes that there was not time, or that it was otherwise impracticable, to obtain an arrest warrant prior to the arrest. Our case law has long supported this understanding and indeed could not be clearer. In our discussion of R.S. 7129 and 7130—precursors to present-day
Nor do we deny the power of officers, and even private persons, to arrest criminals, under some circumstances, without warrant or charge on oath or affirmation. This power is recognized in our statutes (66 Ohio L. 291; 74 Ohio L. 317; Rev. Stats. §§ 7129, 7130), has long existed, and is not prohibited by any constitutional provision. But these statutes provide, in effect, that the person so arrested can only be detained “until a legal warrant
can be obtained,” and such warrant can only be issued on oath or affirmation. In other words, such power to detain without warrant exists to the end that there may not be a failure of justice through the escape of criminals, and the power is measured by, and ends with, the necessity on which it is based.
(Emphasis added.) Eichenlaub v. State, 36 Ohio St. 140, 143-144 (1880). In Leger v. Warren, we made similar pronouncements:
The right to make arrests without warrant is conferred by the statute in order to prevent the escape of criminals where that is likely to result from delay in procuring a writ for their apprehension; and it was not the purpose to dispense with the necessity of obtaining such writ as soon as the situation will reasonably permit. To afford protection to the officer or person making the arrest, the authority must be strictly pursued; and no unreasonable delay in procuring a proper warrant for the prisoner‘s detention can be excused or tolerated. Any other rule would leave the power open to great abuse and oppression.
(Emphasis added.) 62 Ohio St. 500, 508, 57 N.E. 506 (1900); see also Munzebrock v. State, 10 Ohio Dec. Rep. 277, 278, 1886 WL 2635 (C.P.1886) (“An arrest without a warrant has never been lawful except in such cases as is expressly authorized by statute, on the ground that public security required it under certain circumstances“).
{¶ 44} In this case, the police acted outside of their authority to execute a warrantless arrest when they had ample time to procure a warrant prior to Jordan‘s arrest but failed to do so. There was no exigency that justified their conduct.
{¶ 45} There were eight days between when the burglary offense was committed on December 12, 2016, and when the police arrested Jordan without a warrant on December 20, 2016. All information available to the police, which the lower courts concluded amounted to probable cause, was known to the officers within a couple of days after the burglary.
{¶ 46} On the day of the burglary, the victims recounted to Detective Longworth the reasons that they suspected their son Michael and his friend “Dre“—later determined to be Jordan—had been responsible for the burglary. They also told the detective exactly where Jordan worked and what type of car he drove. Detective Longworth was able to locate a vehicle fitting the description provided by the victims parked outside of Jordan‘s workplace and observed Jordan leaving his work and getting into that vehicle. A couple of days later, while interviewing Michael, Detective Longworth learned that Michael and Jordan were together on the day of the burglary. From phone records, Detective Longworth learned that Michael had made several calls to Jordan around the time of the offense. Detective Longworth testified that he then spent several days simply observing Jordan getting in and out of the car near his place of employment until finally, the officers decided to execute a warrantless arrest as Jordan was leaving a cell-phone store on December 20, 2016. It is important to note that nothing happened during these several days that would have justified law enforcement‘s failure to get a warrant. The commission of the burglary was long over and nothing about Jordan‘s behavior would have indicated to the police that he was then engaged in any criminal activity or that he would be likely to flee in the time
{¶ 47} In State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23, we recognized that
Conclusion
{¶ 48} For the foregoing reasons, I find that the police acted outside of their statutory authority when they made a warrantless arrest of Jordan even though they had ample time to secure an arrest warrant. In doing so, the police violated
BRUNNER, J., concurs in the foregoing opinion.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for appellee.
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for appellant.
Ron O‘Brien, former Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.
Timothy Young, Ohio Public Defender, and Patrick T. Clark, Assistant Public Defender, urging reversal for amicus curiae Office of the Ohio Public Defender.