City of Columbus v. Stump , 41 Ohio App. 2d 81 ( 1974 )

Being unable to concur in the reasoning of my colleagues with respect to the first two assignments of error, I must respectfully dissent. A Worthington police officer in civilian clothes, operating an unmarked police cruiser and accompanied by another officer in uniform (defendant testified that the other officer also was in civilian clothes), observed defendant operating his automobile from a private lot and revving his engine and squealing his tires. The police officers followed defendant's automobile and observed that defendant again squealed his tires, fishtailed his vehicle, proceeded at a high rate of speed, ran a stop sign, and eventually drove the automobile off of the roadway, through a yard and into a tree. In the process of the officers' following defendant, they proceeded from Worthington into the city of Columbus. The Worthington officers arrested defendant and then summoned a Columbus police officer. The Worthington officer, wearing civilian clothes and operating an unmarked police cruiser, was permitted to testify over the objection of the defendant. The other Worthington police officer, allegedly in uniform, did not testify. The basic issue raised by the first two assignments of error is whether the testimony by the Worthington police officer is precluded by R. C. 4549.14 and 4549.16.

R. C. 4549.14 reads as follows:

"Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws, is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was using a motor vehicle not marked in accordance with section 4549.13 of the Revised Code."

R. C. 4549.16 reads:

"Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was not wearing a distinctive uniform in accordance with section 4549.15 of the Revised Code."

Admittedly, the Worthington police officer who testified was using a vehicle not marked as required by R. C. 4549.13 and was not wearing a distinctive uniform in accordance with R. C.4549.15. The city contends, however, that the police officer was not "on duty exclusively or for the main purpose of enforcing" motor vehicle or traffic laws. That these sections apply to prosecutions for violations of municipal motor vehicle or traffic ordinances is settled byCity of Dayton v. Adams (1967), 9 Ohio St.2d 89.

The city contends that "the Worthington police officer involved was not on duty for the exclusive or main purpose of enforcing motor vehicle laws, but rather was investigating drug traffic and other illicit activities." When asked what his "duties" were, the Worthington officer testified:

"At that time I was basically watching Friar Tuck's Bar for illicit activities outside the bar, basically drug traffic."

When asked on cross-examination if that was his duty, and why he left his duty post, the Worthington officer responded:

"Because this is a routine thing I do, watching this place. I can come and go on it. I wasn't watching it for any specific person or incident. There is enough that goes on there that I can come back at any given time and usually observe some type of illicit traffic. We felt that this vehicle leaving this lot left in such a manner as possibly endangering life and property."

The testimony of the Worthington officer makes it clear that in following defendant's automobile the officer's main, if not exclusive, purpose was enforcing motor vehicle or traffic laws. With respect to his observation in the area of the bar, he expressly testified that he could "come and go on it." He ceased his duty of "observation" and commenced engaging in the duty of enforcing motor vehicle or traffic laws when he began following defendant's automobile.

Thus, the issue before us is whether the language "being on duty exclusively or for the main purpose of enforcing such laws" relates to the duties performed by the officer during his entire period of duty or the duties in which he was engaged at the time he made an arrest, or participated or assisted in making an arrest, of a person charged with violating a motor vehicle or traffic law. I conclude the latter.

In general, police officers are on duty for enforcing all laws at all times. It would indeed be an onerous burden to require proof of all the activities a police officer had engaged in during a period of duty in order to ascertain whether or not he was on duty for the main purpose of enforcing motor vehicle or traffic laws.

The first paragraph of the syllabus of Adams states:

"Municipal police cars used in the enforcement of municipal ordinances regulating the speed of motor vehicles upon the streets of the municipality are required to be marked as provided in Section 4549.13, Revised Code."

At the time in question, the unmarked police vehicle operated by the police officer was being used in the enforcement of motor vehicle or traffic laws. Defendant testified that he observed the vehicle following him, did not know it was a police vehicle, and was concerned about a car following him early in the morning (about 2 a. m.). In Lackey v. Hurley (1964), 175 Ohio St. 483, in discussing the validity of a service of summons by a deputy sheriff operating an unmarked vehicle who stopped a person for the purpose of serving the summons, the court stated at page 486:

"Defendant had no reason to fear that Stegeman was an officer engaged in the enforcement of the traffic laws, because such officer was not attired in any uniform, nor was his automobile marked in any distinctive manner. Sections 4549.13, 4549.144549.15 and 4549.16, Revised Code. * * *"

This points out one of the main purposes of the statutes — namely, to enable a motorist to know whether a person chasing or stopping him is, in fact, a police officer, or is someone else with other purposes in mind, especially late at night, as in this case.

Whether a police officer is on duty for the exclusive or main purpose of enforcing motor vehicle or traffic laws within the purview of R. C. 4549.14 and 4549.16 is to be determined by the duty in which the officer is engaged at the time and place he makes, or particpates, or assists in making an arrest for a violation of such laws. It is not to be determined by the particular assignment the officer is engaged in immediately prior or subsequent thereto, nor by duties he may have primarily engaged in during his tour of duty.

Thus, an officer who, while attempting to apprehend a person he has probable cause to believe has committed a felony, observes a violation of traffic laws by such person will not be precluded from testifying, even if he wore plain clothes and used an unmarked vehicle, because his primary purpose in the following and apprehension was not the enforcement of motor vehicle or traffic laws. Here, however, the only duty the officer was engaged in, in following the defendant and apprehending him, was the enforcement of motor vehicle or traffic laws. Thus, his testimony is precluded by R. C. 4549.14 and 4549.16. The trial court erred in permitting the officer to testify.

Although the officer testified that he was accompanied by a uniformed officer, who did not testify, the testifying officer stated, with respect to the uniformed officer:

"Normally, he's not noticed when he's sitting in his car with his hat off. Until he gets out of the car, he's not identified."

Whether or not an officer in civilian clothes and in an unmarked vehicle should be precluded from testifying under the circumstances is a matter of legislative discretion. The legislature has seen fit to expressly prohibit an officer under such circumstances from testifying in any prosecution against a person arrested for violating a motor vehicle or traffic law.

In my view, the conclusions of the majority that, in applying the statutes, the duties of an officer are to be determined by his complete assignment for his tour of duty render the statutes nugatory for practical purposes. A compliance with the statutes could be completely avoided by juggling duty assignments so that each officer would spend less than half of his time engaged in enforcing motor vehicle or traffic laws. Such a result is neither required, nor authorized by the statutes. Accordingly, I would find the first and second assignments of error to be well taken.

I concur with the majority opinion with respect to the third assignment of error. However, I would reverse the judgment and remand the cause for further proceedings for the reasons stated above.