State v. Waters

{¶ 40} I respectfully dissent from the majority's position that Officer Evans did not have probable cause to arrest Waters.

{¶ 41} Under the probable-cause standard analyzed in Brinegar v. United States (1949), 338 U.S. 160,172-176, 69 S.Ct. 1302, 93 L.Ed. 1879, I would find the facts and beliefs stated by Officer Evans to qualify as a reasonable, prudent opinion of a law-enforcement person:

{¶ 42} "That emphasis, we think, goes much too far in confusing and disregarding the difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. It approaches requiring (if it does not in practical effect require) proof sufficient to establish guilt in order to substantiate the existence of probable cause. There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.

{¶ 43} "For a variety of reasons relating not only to probative value and trustworthiness, but also to possible prejudicial effect upon a trial jury and the absence of opportunity for cross-examination, the generally accepted rules of evidence throw many exclusionary protections about one who is charged with and standing trial for crime. Much evidence of real and substantial probative value goes out on considerations irrelevant to its probative weight but relevant to possible misunderstanding or misuse by the jury.

{¶ 44} "* * *

{¶ 45} "The court's rulings, one admitting, the other excluding the identical testimony, were neither inconsistent nor improper. They illustrate the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt. Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.

{¶ 46} "However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. * * * Those standards have seldom been so applied. * * *

{¶ 47} "In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

{¶ 48} "`The substance of all the definitions' of probable cause `is a reasonable ground for belief of guilt.' * * * And this `means less than evidence which would justify condemnation' or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v.United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall's time, at any rate, * * * it has come to mean more than bare suspicion: Probable cause exists where `the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." (Citations and footnotes omitted.)

{¶ 49} Officer Evans was lawfully on the premises. Once having viewed and determined the state of Waters's intoxication, Officer Evans was faced with a "Hobson's choice." As the majority argues, Officer Evans should have walked away. However, in his view of the facts, there was a substantial risk of harm to Waters. Waters was not merely sleeping in a doorway; he was physically ill, with no obviously available help from the others in the garage.

{¶ 50} The majority's reliance on the technical meaning of the statute is appropriate in determining guilt or nonguilt; it is not appropriate in determining probable cause. Police officers are not legal technicians or law professors or judges. What Officer Evans did was to respond to the facts as he saw them and respond to the risk he reasonably believed would occur.

{¶ 51} I would hold that the trial court did not err in denying Waters's motion to suppress. As to the other assignments of error involving Gatewood, I concur with the majority.