34 Ohio Misc. 104 | Oh. Muni. Ct., Kettering | 1973
This matter is before the court on a motion to suppress evidence allegedly obtained as the result of an unlawful arrest.
The facts in this case are that the defendant was seated in his automobile in the parking lot of the Frigidaire Divi
The issues presented by this case are:
1. Was the removal of the defendant from his automobile by the Frigidaire guard and the subsequent taking of his person to the guard station an arrest within the law?
2. Was the subsequent handcuffing and taking into custody of this defendant by the Moraine Police Department a new arrest or conduct in furtherance of his arrest by the Frigidaire guard?
3. Should evidence obtained or observed by the Frigidaire guard be admitted into evidence at a subsequent trial of the issues arising when the defendant is charged by a Moraine City Police Officer with violation of R. C. 3719.41, “possession of a hallucinogen”?
4. Was the search of the defendant’s automobile by the Moraine City Police Officer a proper search as permitted by the Constitution of the United States of America?
This court is of the opinion that R. C. 2935.04 permits any person who has reasonable grounds to believe that a felony has been committed to arrest without a warrant another whom he has reasonable cause to believe is guilty of the offense and to detain him until a warrant can be obtained. It is a well-established rule of construction of criminal statutes that they must be construed strictly against the state and in favor of the defendant. This sec
Counsel for the state argues that the guard was enforcing “Shop Rule No. 36” and that his conduct was, therefore, proper. However, this court does not have a copy of the Shop Rules of the Frigidaire Division of General Motors and it cannot, therefore, determine what effect “Shop Rule No. 36” has on any of the legal issues raised by the conduct of this guard. It is, therefore, the opinion of this court that the taking into custody of the defendant by the guard of the Frigidaire Company had no basis in the law, and, therefore, what he did does not constitute such an arrest as will bring the person of the defendant within the jurisdiction of the criminal courts of this state.
We come now to the second issue set forth herein-above. This court is of the opinion that the defendant was in fact never out of custody from the time he was taken from his vehicle and that the apprehension and custody of him by the Moraine Police Department did not constitute a new arrest by a police officer, which could be tested by the rules applicable to such arrests.
R. C. 2935.03 grants to a police officer the authority to “arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.” It is clear that when Officer Atchison arrived at the Frigidaire Plant the defendant was in the guard station and nowhere near his vehicle. He was clearly in the custody of the guard. Nowhere in the facts is there any indication that Officer Atchison ever “found,” by the use of his five senses, the defendant violating any
It is the opinion of this court that the answer to issue number three must be founded in the decision of Mapp v. Ohio, 367 U. S. 643, and that is that illegally obtained evidence cannot be used in the prosecution of any criminal case in the United States. It is the opinion of this court that because the Prigidaire guard was without authority to arrest the defendant as is set forth hereinabove, because the evidence obtained by that guard was incident to an unlawful arrest by this guard, and because the conduct of the Moraine City Police Officer only furthered an already illegal act; this evidence was never properly obtained and could not, therefore, be admitted into evidence at a trial of the defendant for violating B. C. 3719.41.
We come now to the last issue presented by these facts. This court is of the opinion that the resolution of this issue is dictated by the rulings on the first three issues. It is clear that, throughout recent decisions of all the courts called upon to rule on issues such as these, those courts have concluded that searches of a person which are without a warrant and which are not incidental to a lawful arrest cannot bear fruit which will be admitted into evidence against a person subsequently charged with a criminal violation. Thus, where, as here, this officer went to the defendant’s automobile after the defendant was in custody of a guard without lawful authority to commit the acts which he committed and when the defendant never violated
For the foregoing reasons this court is of the opinion that all evidence obtained by the Frigidairé guard or the Moraine Police Department incident to the unlawful arrest and detention of this defendant should be, and it hereby is, suppressed.
Motion granted.
The instant case was subsequently dismissed.