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Court Holds Warrantless Arrest for a Minor Misdemeanor Violates State Constitution

2002-0242. State v. Brown, 2003-Ohio-3931.
Montgomery App. No. 18972, 2001-Ohio-7073. Judgment affirmed.
Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer and Kline, JJ., concur.
Lundberg Stratton and O'Connor, JJ., dissent.
Roger L. Kline, J., of the Fourth Appellate District, sitting for Cook, J.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2003/2003-Ohio-3931.pdf

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(Aug. 6, 2003) The Supreme Court of Ohio today ruled that the Ohio Constitution prohibits warrantless custodial arrests and searches of people stopped by police for minor misdemeanor offenses - even though such arrests are permitted under the Fourth Amendment to the U.S. Constitution.

In a 6-1 opinion written by Justice Alice Robie Resnick, the court held that Ohio's state constitution, supported by a statute that specifically prohibits police from making custodial arrests for minor misdemeanors except under stated conditions, goes beyond the federal Fourth Amendment in protecting citizens against unreasonable searches and seizures. Justice Resnick was joined in the decision by Chief Justice Thomas Moyer, Justices Francis E. Sweeney Sr., Paul E. Pfeifer and Evelyn Lundberg Stratton, and Judge Roger Kline of the 4th District Court of Appeals, sitting for former Justice Deborah Cook. Justice Maureen O'Connor entered a dissenting opinion.

Today's decision upheld rulings by the Montgomery County common pleas and appellate courts that excluded drug evidence obtained by Dayton police in April 2001, when they placed Dali Jacques Brown under full custodial arrest and searched him despite the fact that the only offense they had seen Brown commit was jaywalking - a minor misdemeanor. Brown had been observed by officers standing in the street and obstructing traffic in a high-crime area known for curbside drug dealing.

In disallowing the drug evidence as improperly obtained, both lower courts cited the Supreme Court's ruling in a virtually identical 2000 case, State v. Jones. The Jones decision held that, absent one or more specific exceptions spelled out in state law, "a full custodial arrest for a minor misdemeanor offense violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, and evidence obtained incident to such an arrest is subject to suppression."

At trial, lawyers for the police acknowledged that Brown's arrest had been in violation of the Ohio statute prohibiting custodial arrests for minor misdemeanors, and was improper under the legal reasoning of State v. Jones. They argued, however, that Jones had been superseded by a 2001 U.S. Supreme Court decision, Atwater v. Lago Vista, which held that, contrary to State v. Jones, "if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."

Since their arrest and search of Brown were clearly permissible under the Atwater reading of the federal Fourth Amendment, police argued, the arrest should also be held permissible under the search and seizure provisions of the Ohio Constitution, which are virtually identical to the Fourth Amendment.

In today's decision, Justice Resnick acknowledged that Ohio courts have traditionally conformed their reading of state constitutional provisions with federal court decisions interpreting the U.S. Constitution. However she cited a 1993 Ohio Supreme Court case (State v. Arnold) in which the court asserted the Ohio Constitution "is a document of independent force," and held that the U.S. Constitution "provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill Of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups."

She also quoted the U.S. Supreme Court's 1988 holding in California v. Greenwood that "individual states may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution."

In reviewing Brown's arrest under the Ohio Constitution, Justice Resnick wrote that the majority applied the same pre-Atwater balancing test it had applied in deciding State v. Jones, and found that the state's interests in making a full custodial arrest for a minor misdemeanor offense "are minimal and are outweighed by the serious intrusion upon a person's liberty and privacy that, necessarily, arises out of an arrest." Noting that exceptions in Ohio's state law allow the arrest of minor misdemeanants who refuse to identify themselves or sign a citation, or who have previously failed to appear in court or pay a fine for a similar offense, today's decision held that "effective law enforcement is not impaired by refusing to allow officers to arrest individuals for minor misdemeanors when none of the exceptions… applies."

"Brown was arrested for a minor misdemeanor offense when none of the…exceptions were applicable," Justice Resnick concluded. "Thus, the arrest violated…the Ohio Constitution. Accordingly, the evidence seized in the search incident to that arrest must be suppressed."

In her dissent, Justice O'Connor agreed with the state's argument that Ohio courts should not impose more restrictive search and seizure guidelines for police than those set by the U.S. Supreme Court in its Atwater decision. "Atwater provides a useful instrument for law enforcement officers to use in their discretion in carrying out their duties to protect the citizens of Ohio," wrote Justice O'Connor. "The majority, however, has taken that tool away.

In arresting Brown based on their observations and the totality of the circumstances, she noted, the police "had reason to believe that an offense greater than the minor misdemeanor of jaywalking was being committed. The United States Constitution, as interpreted by Atwater, clearly permits such an arrest. It is illogical to suggest that the nearly identical Ohio constitutional provision would prohibit it."

Matthew T. French, 937.225.4117, for the state of Ohio.

Arvin S. Miller, 937.496.7474, for Dali Jacques Brown.