State v. Pembaur

• Decision Date: 08 February 1984
• Docket Number: No. 82-1757,82-1757
• Citation: 9 OBR 385,9 Ohio St.3d 136,459 N.E.2d 217
• Parties: , 9 O.B.R. 385 The STATE of Ohio, Appellant, v. PEMBAUR, Appellee.
• Court: Ohio Supreme Court

Page 136

9 Ohio St.3d 136

459 N.E.2d 217, 9 O.B.R. 385

The STATE of Ohio, Appellant, v. PEMBAUR, Appellee.

No. 82-1757.

Supreme Court of Ohio.

Feb. 8, 1984.

Syllabus by the Court

Absent bad faith on the part of a law enforcement officer, an occupant of business premises cannot obstruct the officer in the discharge of his duty, whether or not the officer's actions are lawful under the circumstances. (Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 , followed.)

On May 19, 1977, two Hamilton County sheriff's deputies attempted to serve bench warrants, or capiases, upon two employees of the Rockdale Medical Center. The bench warrants were issued after a hearing in open court. The capiases stated that both parties had been lawfully served with subpoenas to appear before the grand jury, and that each of them had failed to appear. There has been no issue raised to this court as to the validity of the capiases.

The Rockdale Medical Center is a medical clinic operated by defendant, Bertold J. Pembaur, M.D., and is open to the public. The deputies arrived at the medical center during business hours, and the two employees whom they sought were apparently at the center. The officers entered by the front door and went into a general reception room which was also open to the public. After entering the outer office, one deputy sat down in the reception area and the other approached the receptionist, who was in a separate office but visible through a window. The deputy identified himself to the receptionist and stated his business.

The receptionist informed the deputies that they were not permitted to enter the inner office area in order to serve the capiases, and that they should wait for the defendant. Shortly thereafter defendant appeared from somewhere inside the clinic and, with the aid of the receptionist, closed and barred the door leading from the reception area to the inner office. The deputies showed the capiases to defendant and explained their contents. Defendant told the deputies that the papers were illegal and that the judge made a mistake in signing them. Defendant stated that he was going to call the police, as well as his attorney.

Two Cincinnati police officers arrived within several minutes. They tried to explain the nature of the capiases to defendant and his duty to obey them. Defendant continued to contend that the capiases were illegal and asked the officers to wait until his attorney arrived. After several other police officers were on the scene and the group had waited approximately two hours, the deputies broke through the office door with an axe. Once inside, they were unable to locate either of the individuals named in the bench warrants.

Defendant was charged, along with two other employees, with obstructing official business, pursuant to R.C. 2921.31(A). This charge, count six of the indictment, was severed from the five other charges against defendant. The case was tried to a jury, which returned a verdict of guilty.

The court of appeals reversed defendant's conviction, but this court vacated that decision and ordered a rehearing. See State v. Pembaur (1982), 69 Ohio St.2d 110, 430 N.E.2d 1331 . The court of appeals issued a second decision, again reversing defendant's conviction.

The court of appeals held that defendant was privileged, under R.C. 2921.31(A), to exclude the deputies from his office, as he was protected against unreasonable searches and seizures by the Fourth Amendment to the United States Constitution. That court noted that an arrest warrant does not give an officer authority to enter the home of a third party, absent consent or exigent circumstances, in order to find the subject of the warrant. Steagald v. United States (1981), 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38. The court reasoned that a private office was no different for search warrant purposes than a private home, citing Mancusi v. DeForte (1968), 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154. The court concluded that defendant was privileged to exclude the deputies from his office unless and until they obtained a search warrant. That court also found error in the instruction concerning privilege which had been given to the jury.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Simon L. Leis, Jr., Pros. Atty., William E. Breyer, Leonard Kirschner and Bruce S. Garry, Asst. Pros. Atty., for appellant.

Messerman & Messerman Co., L.P.A., and Gerald A. Messerman, Cleveland, for appellee.

REILLY, Justice.

The key issue presented in this case is whether a person may obstruct a law enforcement officer in the discharge of that officer's duty, when the person believes that the officer's conduct is unlawful. The state contends that this court should hold that a capias or an arrest warrant includes the authority to enter the business premises of a third party when the officer reasonably believes the subject named in the warrant will be found therein. Notwithstanding, it is not necessary to determine the authority conferred by a capias in this appeal, nor to announce the broad rule of law urged by the state.

It is noteworthy that the rationale of the United States Supreme Court in Steagald, supra, is equally persuasive concerning the contrast of a private business premises to a private home. Steagald addressed the rights of a third party, not named in the arrest warrant, to be free from an unreasonable search and seizure in his home, and held that this right is not accorded adequate protection by the issuance of an arrest warrant for the person...