City of Akron v. Jack G. Recklaw

• Decision Date: 30 January 1991
• Docket Number: 14671,91-LW-1599
• Parties: CITY OF AKRON, Plaintiff-Appellee v. JACK G. RECKLAW, Defendant-Appellant C. A.
• Court: Ohio Court of Appeals

CITY OF AKRON, Plaintiff-Appellee v. JACK G. RECKLAW, Defendant-Appellant

No. 14671

91-LW-1599 (9th)

Court of Appeals of Ohio, Ninth District Summit

January 30, 1991

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

REECE J.

The issue in this appeal is whether defendant-appellant, Jack Recklaw's, convictions for assaulting a police office and resisting arrest must be overturned as the product of an unconstitutional search and seizure. We affirm.

Facts

During the early morning hours of January 12, 1990, Akron City Police Officers, Brian Reilly and Timothy Galarde, entered the home of defendant-appellant, Jack Recklaw, in the course of an investigation. When the officers failed to leave the premises upon Recklaw's insistence, a scuffle ensued and Recklaw was arrested and charged with resisting arrest, Akron City ordinances (ACO) Section 136.13, and assaulting an officer, ACO Section 135.03.

Recklaw filed a motion to suppress alleging that the officers violated his constitutional rights against unreasonable searches and seizures. An evidentiary hearing was conducted and the motion was denied. A jury convicted Recklaw on both counts. This appeal follows.

Assignments of Error

"I. A search of a person's home without a warrant and without the express consent of such owner is unreasonable and a violation of the constitutional rights of the owner under Article I, Section 14, of the Ohio Constitution and Amendment IV of the United States Constitution.

"II. The City of Akron failed to prove by clear and positive evidence that anyone consented to a warrantless search in violation of Article I, Section 14 of the Ohio Constitution and Amendment IV of the United States Constitution.

"III. The court erred in denying the motion to suppress in that there was no probable cause for entry into the home of Recklaw without a warrant contrary to Article I, Section 14 of the Ohio Constitution and Amendment IV of the united States Constitution. "V.The trial court was guilty of an abuse of discretion in failing to sustain the motion to suppress filed by the defendant and to discharge the defendant after hearing."

These four assignments of error all address the same general issue and will be discussed simultaneously. Recklaw insists that the charges against him should have been dismissed as the product of an illegal search and seizure. We disagree.

Regardless of whether the police actually entered his home unlawfully - a point we need not decide - Recklaw's conduct was not privileged against arrest. The Fourth Amendment's exclusionary rule, which Recklaw seeks to invoke, does not sanction violence as an acceptable response to improper police conduct. The exclusionary rule only pertains to evidence obtained as a result of an unlawful search and seizure. Weeks v. United States (1914), 232 U.S. 383; Mapp v. Ohio (1961) 367 U.S. 643; Wong Sun v. United States (1963), 371 U.S. 471. Further criminal acts -including assault and resisting arrest - are not legitimatized by Fourth Amendment transgressions. United States v Bailey (C.A. 11, 1982), 691 F. 2d 1009, 1016-1018, certiorari denied (1983), 461 U.S. 933.

Nor is Recklaw otherwise immune from prosecution. By judicial decree, the common law right to resist an unlawful arrest was largely abolished in Columbus v. Fraley (1975), 41 Ohio St. 2d 173, certiorari denied (1975), 423 U.S. 872. The Court explicitly held in paragraph three of the syllabus that:

"In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances."

See, also, State v. Pembaur (1984), 9 Ohio St. 3d 136, certiorai denied (1984), 467 U.S. 1219. while one may refuse to consent to an unlawful search, assaulting a police officer and resisting arrest are rarely, if ever, acceptable. See United States v. Danehy (C.A. 11, 1982): 680 F. 2d 1311, 1315-1316; Middleburg Hts. v. Theiss (1985): 28 Ohio App. 3d 1, 4-5. Resort to such "self-help" remedies must be discouraged so that potentially violent conflicts are resolved in the courts and not in the community. Fraley, supra, at 180. The California Supreme Court has reasoned that:

"***In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer's task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. ***Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself .***." [Citation omitted, emphasis in original).

People v. Curtis (1969), 70 Cal. 2d 347, ____, 74 Cal. Rptr. 713, 716, 450 P.2d 33, ____ (in bank).

The Court's holding in Fraley is codified in ACO Section 136.13(A) which defines resisting arrest. As in Fraley, this provision contains an exception for "excessive or unnecessary force by an arresting officer." Similarly, this court has recognized that self-defense is a valid defense to a charge of assault. Akron v. Dokes (1986), 31 Ohio App. 3d 24, 25; State v. Fox (1987), 36 Ohio App. 3d 78, 79-80. While Recklaw's contentions would appear to be more appropriately directed toward these questions of fact, his appeal is based entirely upon a misguided constitutional challenge. Since Recklaw has not provided this court with a trial transcript -choosing instead to supply only a partial transcript of the suppression hearing - we have no means to determine whether he was permitted to address these issues to the jury.(fn1)

Accordingly, these assignments of error are overruled.

Assignment of Error IV

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