City of Kettering v. Hollen

• Decision Date: 23 December 1980
• Docket Number: No. 80-60,80-60
• Citation: 416 N.E.2d 598,18 O.O.3d 435,64 Ohio St.2d 232
• Parties: , 18 O.O.3d 435 CITY OF KETTERING, Appellant, v. HOLLEN, Appellee.
• Court: Ohio Supreme Court

Page 232

64 Ohio St.2d 232

416 N.E.2d 598, 18 O.O.3d 435

CITY OF KETTERING, Appellant, v. HOLLEN, Appellee.

No. 80-60.

Supreme Court of Ohio.

Dec. 23, 1980.

Syllabus by the Court

The exclusionary rule will not be applied to the testimony of an arresting police officer regarding the actions of a misdemeanant observed as a result of an extraterritorial warrantless arrest, even though the arrest is unauthorized under existing state law, if the arrest is based on probable cause that a crime was committed within the officer's jurisdiction, and if the officer was in hot pursuit of the misdemeanant.

Michael H. Willcox is an officer of the Kettering Police Department. At approximately 3:00 a. m. on September 23, 1978 Willcox, while on duty in his marked patrol car, was proceeding northbound on South Smithville Road in Kettering. He observed a pickup truck in his rear view mirror, overtaking him at high rate of speed. The officer pulled into a center left-turn lane, allowing the pickup to go past him. Willcox estimated its speed to be in excess of 50 miles per hour at that time, more than 15 miles per hour over the posted speed limit. As the officer gave chase, he observed the truck weaving across three lanes of the five-lane roadway, and once even hitting the curb. At one point during the chase, the driver of the truck fell over to his right, disappearing from the officer's view for "a second or two," then reappearing as he sat back up. Willcox then determined to stop the pickup, and turned on the cruiser emergency lights.

As the vehicles came to an intersection, the pickup slowed very rapidly and made a left turn, running a traffic light in the process. Willcox followed, and turned on the cruiser's siren. The chase continued for three more blocks, at which point the truck suddenly came to a stop in the middle of the westbound lane on Watervliet Avenue at its intersection with Mondail Avenue. This intersection is within the corporate limits of Dayton. The record does not disclose where the vehicles entered Dayton.

As the officer walked toward the pickup, the defendant, Jeffrey L. Hollen, got out of the truck and staggered for a moment before catching ahold of the side of the truck. The defendant was unable to produce his driver's license, and failed the field sobriety tests administered to him by the officer. Willcox took the defendant into custody, and charged him with one count of failure to drive in a single lane, and one count of operating a motor vehicle while under the influence of alcohol. At a trial to the bench in the Kettering Municipal Court, the defendant was convicted and sentenced on both counts.

The Court of Appeals reversed the convictions, holding the extraterritorial warrantless arrest of the defendant in Dayton by a Kettering police officer to be illegal, and the evidence obtained by such an arrest inadmissible.

The cause is now before this court upon the allowance of a motion to certify the record.

F. J. Newberry, Pros. Atty., for appellant.

Charles F. Buck and John B. Wyatt, III, Dayton, for appellee.

DOWD, Justice.

As a general proposition, an extraterritorial arrest by a municipal police officer for an alleged misdemeanor is not authorized under existing Ohio law. ¹ In this case, the appellant contends that the arrest is authorized because the arresting process commenced while the defendant and the officer were still within the officer's municipality, i. e., the city of Kettering. The appellant contends alternatively that, assuming, arguendo, the unlawfulness of the arrest, the sanction of exclusion does not apply with respect to the officer's testimony regarding the defendant's actions after the arrest was successfully completed.

As to the legal characterization of the arrest, we find the record to be insufficient as to the factual issue of whether the arresting process commenced while the arresting officer and the defendant were still in the city of Kettering. Therefore, we assume that the defendant's warrantless arrest in Dayton by Willcox for a misdemeanor was not authorized. We turn to a consideration of whether, under such circumstances, the exclusionary rule mandated upon this court in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, must be applied. ²

The exclusionary rule has been applied by this court to violations of a constitutional nature only. In State v. Myers (1971), 26 Ohio St.2d 190, 196, 271 N.E.2d 245, this court enunciated the policy that the exclusionary rule would not be applied to statutory violations falling short of constitutional violations, absent a legislative mandate requiring the application of the exclusionary rule. In State v. Downs (1977), 51 Ohio St.2d 47, 63-64, 364 N.E.2d 1140, the violation of Crim.R. 41 with respect to the return of a search warrant was described as non-constitutional in magnitude and the exclusionary rule was not applied. Also, in State v. Davis (1978), 56 Ohio St.2d 51, 381 N.E.2d 641, it was held that fingerprint evidence obtained in violation of a statute does not have to be excluded.

It is clear from these cases that the exclusionary rule will not ordinarily be applied to evidence which is the product of police conduct violative of state law but not violative of constitutional rights.

We turn now to examine the facts in this case to determine whether a constitutional violation occurred. We find none. At the outset, it is readily apparent that Willcox had probable cause to arrest the defendant after observing his erratic driving behavior. Accordingly, assuming the warrantless arrest of the defendant to be a seizure within the context of the Fourth Amendment prohibition against unlawful searches and seizures, we find no Fourth Amendment violation, given the probable cause to make the seizure. ³ Therefore, even assuming the arrest of the defendant was not authorized under existing Ohio law, it does not offend either the United States or Ohio Constitution. Under these circumstances, the "fruit of the poisonous tree" doctrine enunciated in Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, does not apply. In short, the fruits of the arrest of the defendant, based on probable cause but unauthorized under existing state law, are not suppressible solely because of the fact of the arrest in Dayton by a Kettering police officer. After the arrest of the defendant was completed in the city of Dayton, he performed field sobriety tests at the officer's command. The officer's testimony concerning his observations of the defendant's conduct during the field sobriety tests constituted an essential part of the state's proof in support of the allegation that the defendant was driving under the influence of alcohol in Kettering. It is well settled that the commanded performance of such tests is not a testimonial utterance and thus does not offend the privilege against self-incrimination protected by the Fifth Amendment to the United States Constitution. Piqua v. Hinger (1968), 15 Ohio St.2d 110, 238 N.E.2d 766, paragraph one of the syllabus.

Moreover, an arrested person is not immune from prosecution merely because of the fact that his arrest was "unlawful" or "unauthorized."...