State v. Jordan (Slip Opinion)

[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.
SLIP OPINION NO. 2021-OHIO-3922THE STATE OF OHIO, APPELLEE v. JORDAN, APPELLANT.
[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—R.C. 2935.04—Neither a showing of exigent
circumstances nor a showing of the impracticability of obtaining an arrest
warrant is necessary to sustain the constitutionality of a warrantless arrest
under either the United States Constitution or the Ohio Constitution—Court
of appeals’ judgment affirmed.
(No. 2020-0495—Submitted March 31, 2021—Decided November 9, 2021.)
APPEAL from the Court of Appeals for Hamilton County,
Nos. C-1800559 and C-1800560, 2020-Ohio-689.
_____________________
O’CONNOR, C.J.
{¶ 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
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to secure an arrest warrant before conducting an arrest anytime the circumstances
demonstrate that it is practicable to do so.
{¶ 2} R.C. 2935.04, Ohio’s felony-arrest statute, authorizes a warrantless
arrest “[w]hen a felony has been committed, or there is reasonable ground to believe
that a felony has been committed” and there is “reasonable cause to believe” that
the person being arrested is guilty of the offense. This court has held, consistently
with United States Supreme Court precedent, “A warrantless arrest that is based
upon probable cause and occurs in a public place does not violate the Fourth
Amendment” to the United States Constitution. State v. Brown, 115 Ohio St.3d 55,
2007-Ohio-4837, 873 N.E.2d 858, ¶ 66, citing United States v. Watson, 423 U.S.
411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Today, we reiterate that holding and
further hold that neither a showing of exigent circumstances nor a showing of the
impracticability of obtaining an arrest warrant is necessary to sustain the
constitutionality of a warrantless arrest under either the United States Constitution
or the Ohio Constitution.
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.
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{¶ 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.
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{¶ 9} At the time of his arrest, Jordan was carrying his girlfriend’s
identification and keys that had an apartment number on them. Detective
Longworth determined that Jordan was staying with his girlfriend at that apartment.
Based on that information, Detective Longworth obtained a warrant to search the
apartment for evidence related to the burglary. The search did not uncover evidence
that could be definitively linked to the burglary, but officers found and seized
approximately $2,100 in cash, as well as heroin, cocaine, an electronic scale, and a
handgun. Jordan’s drug charges stemmed from the evidence seized.
{¶ 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,
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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 R.C. 2935.04, once probable cause is established, a
warrantless arrest is unconstitutional if there is unreasonable delay in effecting the
arrest. Whether the delay is reasonable depends upon the circumstances
surrounding the delay and the nature of the offense.” Jordan frames his proposition
of law in terms of unreasonable delay, but he also variously casts his argument in
terms of a requirement of exigent circumstances or of the impracticability of
securing an arrest warrant. Essentially, he asks this court to hold that a police
officer is constitutionally required to secure an arrest warrant before conducting an
arrest whenever the circumstances demonstrate that it is practicable to do so.
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.” Article I, Section 14 of the Ohio
Constitution contains virtually identical language. With respect to felony cases,
this court has interpreted Article I, Section 14 of the Ohio Constitution as providing
the same protections as the Fourth Amendment. State v. Jones, 143 Ohio St.3d 266,
2015-Ohio-483, 37 N.E.3d 123, ¶ 12, citing State v. Smith, 124 Ohio St.3d 163,
1. The court of appeals did, however, remand the case to the trial court for a nunc pro tunc entry to
correct a clerical error in the sentencing entry with respect to the length of the imposed license
suspension.
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2009-Ohio-6426, 920 N.E.2d 949, ¶ 10, fn. 1.2 Although the Ohio Constitution
may provide greater protections than the United States Constitution, we have
“harmonize[d] our interpretation” of Article I, Section 14 with the Fourth
Amendment “unless there are persuasive reasons” for not doing so. State v.
Robinette, 80 Ohio St.3d 234, 239, 685 N.E.2d 762 (1997). Jordan offers no basis
for treating the provisions differently here. We therefore review and address
Jordan’s arguments through the lens of the Fourth Amendment.
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 R.C. 2935.04, which states: “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.”
{¶ 16} Contrary to the premise of the proposition of law this court accepted,
the dissent reasons that R.C. 2935.04 is a citizen’s-arrest statute that does not apply
to law-enforcement officials who are acting within the course and scope of their
duties. Rather, it states that the only statutory authority afforded to law-
enforcement officers to conduct warrantless arrests is found in R.C. 2935.03, a
2. The dissent cites State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, to claim
that Article I, Section 14 of the Ohio Constitution affords greater protections than the Fourth
Amendment, but that case involved an unauthorized arrest for a minor misdemeanor. We held, “A
traffic stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or
authority violates the guarantee against unreasonable searches and seizures established by Article I,
Section 14 of the Ohio Constitution.” Id. at ¶ 26. And we based that holding on our prior statement
that “ ‘Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth
Amendment to the United States Constitution against warrantless arrests for minor
misdemeanors.’ ” (Emphasis added.) Id. at ¶ 21, quoting State v. Brown, 99 Ohio St.3d 323, 2003-
Ohio-3931, 792 N.E.2d 175, ¶ 22. Not only have we never found greater protection regarding felony
arrests under the Ohio Constitution than that provided by the United States Constitution, but Jordan
does not ask us to do so here.
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statute that neither Jordan nor the state has cited in their merit briefs. While R.C.
2935.03 admittedly cloaks law-enforcement officers with authority to conduct
warrantless arrests in certain situations, that authority does not diminish the
applicability of R.C. 2935.04 to law-enforcement officers. Indeed, this court has
cited R.C. 2935.04 in numerous cases that involved warrantless arrests conducted
by law-enforcement officers. See, e.g., State v. Elmore, 111 Ohio St.3d 515, 2006-
Ohio-6207, 857 N.E.2d 547, ¶ 38-39; State v. Wac, 68 Ohio St.2d 84, 88, 428
N.E.2d 428 (1981); State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974).
Yet never once have we articulated the concern—one that ignores the statute’s plain
application to “any person”—that the dissent raises here.
{¶ 17} R.C. 2935.04 authorizes warrantless arrests for felony offenses. But
statutory authority to make an arrest does not mean that the arrest passes
constitutional scrutiny. We must therefore determine whether a warrantless arrest
made in accordance with R.C. 2935.04 is consistent with the protections afforded
by the Fourth Amendment.
{¶ 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, 96 S.Ct. 820, 46 L.Ed.2d 598 (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
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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.”
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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 officer’s assessment of probable cause provides the
justification for a warrantless arrest, the Fourth Amendment requires a prompt,
postarrest, judicial determination of probable cause as a prerequisite to extended
restraint of the arrestee’s liberty.3 Id. at 113-114, 125.
{¶ 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, 96 S.Ct. 820, 46 L.Ed.2d 598. 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,
3. Jordan has not challenged the postarrest proceedings in his case, and we need not address them
here.
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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,
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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, 96 S.Ct. 820, 46 L.Ed.2d 598.
{¶ 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
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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, 96 S.Ct. 820, 46 L.Ed.2d
598. 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.
{¶ 28} Since Watson was decided, this court has held, clearly and without
qualification, “A warrantless arrest that is based upon probable cause and occurs in
a public place does not violate the Fourth Amendment.” Brown, 115 Ohio St.3d
55, 2007-Ohio-4837, 873 N.E.2d 858, at ¶ 66, citing Watson. And when evaluating
a constitutional challenge to a warrantless public arrest in State v. Elmore, 111 Ohio
St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 38, we considered only whether
there was probable cause to support the arrest; because the police had probable
cause, we rejected the defendant’s challenge, id. at ¶ 40-41. We have never held
that something more than probable cause is required to render constitutional a
felony arrest conducted in public. And we decline to do so today. The First District
appropriately followed precedent in affirming the denial of Jordan’s motion to
suppress.
{¶ 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
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“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, at paragraph two of
the syllabus, 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
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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 not
make the existence of that fact any less probable” [footnote deleted]). Further
investigation or circumstances could discredit information that supports the belief
that the suspect has committed a felony, but Jordan has identified no facts that came
to light between the time of the burglary and the time of his arrest that would have
discredited the information that formed the basis of the officers’ probable cause for
believing that he was involved in the burglary. Accordingly, the short delay in this
case did not affect the existence of probable cause so as to render Jordan’s arrest
unreasonable.
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 Article I, Section 14 of
the Ohio Constitution. We further hold that neither the United States nor the Ohio
Constitution requires a showing of exigent circumstances or of the impracticability
of obtaining an arrest warrant to justify a warrantless public arrest supported by
probable cause. Because Jordan does not contest the lower courts’ determinations
that the arresting officers had probable cause to believe that he had committed a
felony when they arrested him in public, we conclude that the arrest was
constitutionally valid. Accordingly, we affirm the judgment of the First District
Court of Appeals.
Judgment affirmed.
KENNEDY, FISCHER, and DEWINE, JJ., concur.
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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 R.C. 2935.04. With
that conclusion forming the basis for its analysis, the majority then goes on to hold
that warrantless arrests based on probable cause do not violate either the Fourth
Amendment to the United States Constitution or Article I, Section 14 of the Ohio
Constitution. I disagree and therefore dissent.
{¶ 34} As a preliminary matter, the language of R.C. 2935.04, when read in
pari materia with other provisions of R.C. Chapter 2935, reveals that R.C. 2935.04
is a citizen’s-arrest statute. As such, it does not authorize law-enforcement officers
to conduct warrantless arrests. Although law-enforcement officers do have
statutory authority to conduct warrantless arrests, the authority derives from R.C.
2935.03, not R.C. 2935.04, and it is limited to the statutorily enumerated scenarios
contained therein. Accordingly, the foundation upon which the majority builds its
analysis is flawed.
{¶ 35} Nevertheless, the language of both R.C. 2935.03 and 2935.04
indicates a requirement that an arrest warrant be obtained prior to an arrest unless
doing so is impracticable. Because the facts in this case demonstrate that the
officers had ample time to secure a warrant before arresting appellant, LeAndre
Jordan, I conclude that the officers acted outside of their statutory authority to arrest
and in violation of Article I, Section 14 of the Ohio Constitution. See State v.
Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23 (“Article I,
Section 14 of the Ohio Constitution affords greater protection than the Fourth
Amendment against searches and seizures conducted by members of law
enforcement who lack authority to make an arrest”).
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R.C. 2935.04 is a Citizen’s-Arrest Statute
{¶ 36} R.C. 2935.04 states:
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 R.C. 2935.04 states that “any person” may arrest, it is unclear from the
language of the enactment whether the term “any person” was meant to include
law-enforcement officials acting within the normal course and scope of their duties.
When read in pari materia with other provisions of R.C. Chapter 2935, however, it
becomes clear that R.C. 2935.04 was not meant to apply to law-enforcement
personnel acting in their official capacity. This is because R.C. 2935.03 specifically
authorizes the police, and other types of law-enforcement officials, to conduct
warrantless arrests in certain circumstances.
{¶ 37} Under R.C. 2935.03(A)(1), members of law enforcement are
authorized to arrest without a warrant “a person found violating” a law within the
limits of the political subdivision in which they are appointed, employed, or elected.
This court has interpreted the phrase “found violating” to mean that law
enforcement are authorized to arrest when they view the commission of a crime.
See State v. Lewis, 50 Ohio St. 179, 189, 33 N.E. 305 (1893) (interpreting the
precursor statute to R.C. 2935.03(A)(1) and stating: “Section 7129, Rev[ised]
St[atutes], provides for the arrest of persons ‘found violating’ a law or ordinance.
Found by whom? The statute does not expressly declare, but when the rules of the
common law upon this subject are considered, it is clear that the legislature meant,
found by the officer who attempts to make the arrest”); 1940 Ohio Atty.Gen.Ops.
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No. 1940-2735 (equating the term “found violating” with the term “on view” by
the officer); State v. Henderson, 51 Ohio St.3d 54, 56, 554 N.E.2d 104 (1990)
(discussing the facts and holding from Lewis and using the term “in the officer’s
presence”). We have also interpreted R.S. 7129, the precursor statute to R.C.
2935.03, as authorizing law enforcement to execute a warrantless arrest when law
enforcement may not have viewed the commission of a crime but nevertheless have
probable cause to believe the person subject to arrest is presently in the act of
committing a crime. Ballard v. State, 43 Ohio St. 340, 1 N.E. 76 (1885), paragraph
two of the syllabus (interpreting R.S. 7129 to permit an officer “without warrant,
to arrest a person found on the public streets of the corporation carrying concealed
weapons contrary to law, although he has no previous personal knowledge of the
fact, if he acts bona fide, and upon such information as induces an honest belief
that the person arrested is in the act of violating the law” [emphasis added]); Houck
v. State, 106 Ohio St. 195, 198-199, 140 N.E. 112 (1922) (same holding as in
Ballard); Porello v. State, 121 Ohio St. 280, 284, 168 N.E. 135 (1929) (same
holding as in Ballard).4 The officer’s authority to conduct a warrantless arrest
based on the officer’s observation of the commission of the offense or reliable
information that supports a bona fide belief that a person is presently engaging in
the commission of a crime even if not based on the officer’s own observations—
i.e., probable cause—extends to both felonies and misdemeanors, see R.C.
2935.03(A)(1) (authorizing warrantless arrest for violations of “a law of this state,
an ordinance of a municipal corporation, or a resolution of a township”).
4. In Ballard, this court did not explicitly equate probable cause with “acts bona fide, and upon such
information as induces an honest belief that the person arrested is in the act of violating the law,”
id. at paragraph two of the syllabus. However, we later made that connection in Houck when we
noted that the magistrate found that the “evidence tended to show the good faith of the marshal and
that he was acting upon probable cause,” id. at 198. Thus, all that was left to determine in Houck
was whether the marshal needed to obtain a warrant prior to executing a search and arrest, when the
marshal had probable cause to believe that the person was presently committing a crime. Applying
the holding in Ballard, we determined that the marshal did not need a warrant. Houck at 200.
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{¶ 38} By contrast, R.C. 2935.03(B)(1) limits an officer’s warrantless arrest
authority to when the officer has “reasonable ground to believe” that an offense has
been committed within the officer’s jurisdiction—that is, that the commission of
the offense has already occurred—and “reasonable cause to believe” that the person
subject to arrest is guilty of committing the offense—that is, information that may
not have resulted from the officer directly observing the crime but is nonetheless
sufficient and reliable information giving rise to the belief that the person to be
arrested is the offender. In such instances, a police officer still may arrest without
a warrant but only if the offense is one of the following: an offense of violence, the
offense of criminal child enticement as defined in R.C. 2905.05, the offense of
public indecency as defined in R.C. 2907.09, the offense of domestic violence as
defined in R.C. 2919.25, the offense of violating a protection order as defined in
R.C. 2919.27, the offense of menacing by stalking as defined in R.C. 2903.211, the
offense of aggravated trespass as defined in R.C. 2911.211, a theft offense as
defined in R.C. 2913.01, or a felony drug-abuse offense as defined in R.C. 2925.01.
R.C. 2935.03(B)(1). Thus, it can be said that an officer’s more limited authority to
arrest in instances in which the commission of the offense is a fait accompli extends
only to those offenses for which there may be a high risk that the suspect poses an
immediate threat to an individual, the public, or himself or that evidence or stolen
property will be lost if the suspect is not apprehended straightaway—i.e., offenses
of violence,5 some of the more serious misdemeanor offenses, and theft and felony
drug-abuse offenses.
5. R.C. 2901.01(A)(9) defines “offense of violence” and lists the offenses falling under this category.
Most of these offenses are felony offenses. Included within the list is R.C. 2911.12, burglary, the
offense for which Jordan was arrested although not ultimately prosecuted. Thus, based solely on
the offense type, the police would have been authorized under R.C. 2935.03(B)(1) to arrest Jordan
without first obtaining a warrant. However, and as explained in greater detail below, the police
exceeded their authority by failing to seek an arrest warrant when they had more than enough time
to do so, there was no apparent reason to believe that Jordan would abscond, and there was no other
evident exigency.
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January Term, 2021
{¶ 39} Concluding, as the majority does, that R.C. 2935.04 authorizes
police officers to arrest without a warrant when any felony has been committed and
there is reasonable cause to believe that the person to be arrested is guilty of the
offense renders the felony-arrest limitations in R.C. 2935.03(B)(1) wholly
superfluous. This cannot be countenanced. It is our duty when interpreting statutes
to ensure that related and coexisting statutes are harmonized and that each be given
full application except in the rare event that “they are irreconcilable and in hopeless
conflict.” United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d
1129 (1994); see also R.C. 1.51 (when there is a conflict between a general and a
special provision, the provisions shall be construed to give effect to both if possible;
if not possible, the special provision prevails unless the general provision is enacted
later in time and it is the manifest intent of the legislature for the general provision
to prevail); State v. Chippendale, 52 Ohio St.3d 118, 120, 556 N.E.2d 1134 (1990)
(“It is a well-established principle of statutory construction that specific statutory
provisions prevail over conflicting general statutes. In recognition of this principle,
the General Assembly enacted R.C. 1.51 * * *”).6 The majority’s interpretation of
6. R.C. 2935.04 has remained unchanged since it was enacted in 1929. See Am.S.B. No. 8, 113 Ohio
Laws 123, 140 (codifying the Code of Criminal Procedure of Ohio and showing the language of
G.C. 13432-2, which is the same as present-day R.C. 2935.04); see also Am.H.B. No. 1, 125 Ohio
Laws 7 (recodifying the entire General Code into the Ohio Revised Code in 1953). By contrast,
R.C. 2935.03—specifically the provisions of subdivision (B)—has undergone numerous changes
since 1953. Subdivision (B) did not exist in 1953 when the General Code was recodified into the
Revised Code, let alone in 1929 when the language of R.C. 2935.04 was first introduced. Many of
the provisions of R.C. 2935.03(B) were first enacted in the 1970s, with significant revisions
continuing through the 1980s and 1990s. See Am.Sub.S.B. No. 29, 132 Ohio Laws, Part II, 2124;
Part I, 959; see also Am.Sub.H.B. No. 511, 134 Ohio Laws 1866, 1990; Am.Sub.H.B. No. 300, 136
Ohio Laws, Part II, 2311, 2331; Am.Sub.H.B. No. 835, 137 Ohio Laws, Part II, 3524, 3532;
Am.Sub.H.B. No. 588, 137 Ohio Laws, Part II, 3011, 3015; Am.Sub.S.B. No. 355, 138 Ohio Laws
1179; Sub.H.B. No. 129, 140 Ohio Laws, Part I, 2060, 2066, 2075; Am.Sub.S.B. No. 321, 140 Ohio
Laws, Part I, 1192, 1215; Sub.S.B. No. 33, 141 Ohio Laws, Part I, 23; Am.Sub.S.B. No. 356, 141
Ohio Laws, Part I, 967, 970, 992; Am.H.B. No. 284, 141 Ohio Laws, Part II, 3101, 3109, 3112;
Sub.H.B. No. 231, 142 Ohio Laws, Part II, 2635, 2706, 2952; Am.Sub.H.B. No. 261, 142 Ohio
Laws, Part II, 3100, 3110, 3126; Sub.H.B. No. 708, 142 Ohio Laws, Part III, 4853, 5007, 5176;
Am.Sub.S.B. No. 82, 145 Ohio Laws, Part I, 879, 886; Sub.H.B. No. 42, 145 Ohio Laws, Part II,
2837, 2740; Am.Sub.H.B. No. 335, 145 Ohio Laws, Part III, 5451, 5474. Accordingly, there can
be no debate that the provisions of R.C. 2935.03(B) were adopted at a date in time later than those
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the law places R.C. 2935.03 and 2935.04 in direct conflict and, worse still, renders
the more specific provisions of R.C. 2935.03(B)(1) largely ineffective. To avoid
this result, we should interpret R.C. 2935.04 as authorizing only private citizens
and those not acting under color of law as law-enforcement officials to make
warrantless arrests, when there is reasonable cause to believe that the person to be
arrested is guilty of having committed a felony offense.
{¶ 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 R.C. 2935.04 to police officers in
other cases. While these statements are true, they certainly do not preclude the
majority from analyzing the statutes now. In Belvedere Condominium Unit
Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 617 N.E.2d 1075(1993), we stated:
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
contained in R.C. 2935.04. Furthermore, it cannot be said that the legislature manifested an intent
that the general provisions in R.C. 2935.04 prevail over the more specific provisions of R.C.
2935.03(B). It would make no sense for the legislature to spend time painstakingly amending the
provisions of R.C. 2935.03(B) if R.C. 2935.04 already gives law-enforcement officials carte blanche
to arrest without a warrant when there are reasonable grounds to believe that any felony, regardless
of type, has been committed.
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January Term, 2021
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 R.C. 2935.04
applies to law-enforcement personnel but then goes on to ask whether the United
States or Ohio Constitutions require law-enforcement officials to obtain an arrest
warrant if possible. Before answering this question, however, we need to determine
whether the presumption on which it relies is correct. This court has never
addressed, let alone reconciled, the provisions of R.C. 2935.03 as compared to those
in R.C. 2935.04. And given the prime opportunity to do so here, the court
conveniently declines. As pointed out in this dissent, when R.C. 2935.03 and
2935.04 are read in pari materia, one cannot help but conclude that R.C. 2935.04
does not authorize police action at all. That this court may have previously taken
for granted that R.C. 2935.04 applies to the police does not absolve us of our
obligation to correct that mistake now that the issue has been brought to our
attention.
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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} R.C. 2935.04 does not authorize police to conduct a warrantless
arrest. Rather, law enforcement’s authority to arrest without a warrant derives
solely from the more limited terms of R.C. 2935.03. But both statutes contain an
additional constraint on the authority to arrest beyond simply requiring probable
cause to do so7—one that the officers in this case completely ignored. When there
is reasonable cause to believe that a person has committed an offense, both R.C.
2935.03(B)(1) and 2935.04 authorize a warrantless arrest and detention of that
person “until a warrant can be obtained.” This clause, “until a warrant can be
obtained,” certainly stands for the fact that the person executing the arrest must,
within a reasonable amount of time after the arrest, secure a warrant that authorizes
the continued arrest and detention. Compare R.C. 2935.05 (“When a person named
in section 2935.03 of the Revised Code has arrested a person without a warrant, he
shall, without unnecessary delay, take the person arrested before a court or
magistrate having jurisdiction of the offense, and shall file or cause to be filed an
affidavit describing the offense for which the person was arrested”) and R.C.
2935.06 (“A private person who has made an arrest pursuant to section 2935.04 of
7. R.C. 2935.03(B)(1) and 2935.04 embrace the federal and state constitutional requirements that
arrests be supported by probable cause, by authorizing warrantless arrests only when “there is
reasonable ground to believe” that an offense has been committed and “reasonable cause to believe”
that the person to be arrested is guilty of the offense. See Brinegar v. United States, 338 U.S. 160,
69 S.Ct. 1302, 93 L.Ed. 1879 (1949), quoting McCarthy v. De Armit, 99 Pa. 63, 69 (1881) (“ ‘The
substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt’ ”); see
also State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 38-39 (equating the
phrases “reasonable ground to believe” and “reasonable cause to believe,” found in R.C. 2935.04,
with probable cause). Although in Elmore we correctly found R.C. 2935.04’s “reasonable belief”
language to be synonymous with probable cause, we nevertheless applied R.C. 2935.04 to a
warrantless arrest made by law-enforcement officers—like the majority opinion does in this case.
However, just like the majority opinion here, this court in Elmore did not address how R.C. 2935.04
can apply to police when the statute is read in pari materia with R.C. 2935.03.
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January Term, 2021
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 R.C. 2935.08 (“Upon the filing of an affidavit or
complaint as provided in sections 2935.05 or 2935.06 of the Revised Code such
judge, clerk, or magistrate shall forthwith issue a warrant to the peace officer
making the arrest, or if made by a private person, to the most convenient peace
officer who shall receive custody of the person arrested. All further detention and
further proceedings shall be pursuant to such affidavit or complaint and warrant”);
see also Crim.R. 4(E)(2); State v. Gedeon, 9th Dist. Summit No. 29153, 2019-Ohio-
3348, ¶ 36 (defendant entitled to a prompt judicial determination of probable cause
in the wake of warrantless arrest); Gerstein v. Pugh, 420 U.S. 103, 113-114, 95
S.Ct. 854, 43 L.Ed.2d 54 (1975).
{¶ 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 R.C. 2935.03
and 2935.04, respectively—we stated:
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,
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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”).
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January Term, 2021
{¶ 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 it might have taken to get a warrant.
In fact, Jordan’s behavior of showing up to work and leaving around the same time
each day, tended to show the opposite—that he was not then engaged in criminal
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SUPREME COURT OF OHIO
activity and had responsibilities associated with his employment that required him
to maintain a steady schedule. And because the police knew where he worked and
understood his schedule, the police would have known exactly where to find him
once they obtained an arrest warrant. It is clear that under the circumstances, the
police had ample time to submit the information they had to a neutral and detached
judicial officer and if that judicial officer found the information sufficient to issue
an arrest warrant, secure one to make the arrest. No exigency existed at the time of
Jordan’s arrest that required it be made without a warrant. The officers therefore
completely bypassed the protections afforded citizens by the law requiring arrest
warrants and acted outside of their statutorily prescribed warrantless-arrest
authority when they arrested Jordan.
{¶ 47} In State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d
496, ¶ 23, we recognized that Article I, Section 14 of the Ohio Constitution protects
against searches and seizures conducted by members of law enforcement who lack
authority to make an arrest. Specifically, we noted our precedent that “[a]n arrest
made in violation of a statute limiting the police officer’s authority to make the
arrest infringes on ‘[t]he right of the people to be secure in their persons, houses,
papers, and possessions, against unreasonable searches and seizures’ as guaranteed
by Article I, Section 14 of the Ohio Constitution.” Id. at ¶ 18, quoting Ohio
Constitution, Article I, Section 14. Under our decision in Brown, it is clear that in
acting outside of their arrest authority, the police here violated the rights conferred
to Jordan under Article I, Section 14 of the Ohio Constitution. Today’s majority
opinion not only sanctions this constitutional violation; it also eliminates the need
for police officers to ever obtain an arrest warrant. Whereas before today’s
decision, the police were required to submit evidence of a suspected crime to a
neutral and detached judicial officer for a determination whether the information
satisfied the constitutional requirements for an arrest warrant to issue, the police
can now bypass this judicial review without reason or exigent circumstance and
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January Term, 2021
need only wait until a person who is suspected of committing a crime leaves his
home or otherwise ventures into the public sphere. Once in public, that person can
be arrested under this newly created type of “lawful” arrest, regardless of the
quantity or the quality of the information the police officers have, and the person
arrested can then be subjected to all other law-enforcement procedures, some of
which are extremely invasive, that flow from an arrest.
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 Article
I, Section 14 of the Ohio Constitution. Accordingly, I would reverse the decision
of the court of appeals.
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.
_________________
27