City of Middleburg Heights v. Theiss, s. 49458

• Decision Date: 15 October 1985
• Docket Number: Nos. 49458,s. 49458
• Citation: 28 Ohio App.3d 1,28 OBR 9,501 N.E.2d 1226
• Parties: , 28 O.B.R. 9 CITY OF MIDDLEBURG HEIGHTS, Appellee, v. THEISS et al., Appellants. * through 49461.
• Court: Ohio Court of Appeals

Page 1

28 Ohio App.3d 1

501 N.E.2d 1226, 28 O.B.R. 9

CITY OF MIDDLEBURG HEIGHTS, Appellee, v. THEISS et al., Appellants. ^*

Nos. 49458 through 49461.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Oct. 15, 1985.

Syllabus by the Court

1. Absent probable cause and exigent circumstances, warrantless arrests in the home are presumptively unreasonable and are prohibited by the Fourth Amendment. Where the government's interest is only to arrest for a minor offense, the presumption that a warrantless search is unreasonable is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

2. The Fourth Amendment confers the right to refuse to consent to the entering of one's home pursuant to a warrantless search. The assertion of such right cannot be a crime, and there exists at least some limited right to resist entrance, such as locking or closing the door or physically placing one's self in the officer's way.

3. Violence against an officer after he has gained entrance into a residence, albeit unlawfully, with a purpose to cause physical injury rather than to resist entry, is not privileged conduct.

4. R.C. 2935.12 permits an officer to use force to enter a home where first, the officer has a right to enter the home to make an arrest or conduct a search, either by way of a warrant, or by way of one of the exceptions to the prohibition of warrantless entries; and second, the officer has given notice of his intention to make such arrest or search, and he is refused admittance. As so construed, R.C. 2935.12 is not unconstitutional.

Peter H. Hull, City Pros., for appellee.

Rees Davis, Cleveland, for John M. Theiss.

Thomas W. Sharratt, Cleveland, for Kelly Nemier.

PARRINO, Chief Judge.

Defendant John Theiss has appealed his convictions of assault ¹ and resisting arrest. ² Similarly, Kelly Nemier has appealed her convictions of assault and resisting arrest. The violations took place in the city of Middleburg Heights and arose out of the same transaction and occurrence. As such, this court has consolidated the appeals for briefing, hearing, and disposition.

I

The facts giving rise to this appeal are as follows. On August 4, 1983, the Middleburg Heights police received a complaint about loud noise coming from 6985 South Parkway Drive. Officers Parobechek and Smith responded to the call. According to their testimony, loud music was coming from the rear of the home. The police went around to the back of the home to investigate. They approached the screen door at the rear of the house and discovered an individual playing his electric guitar with the amplifier set very high. The officers then requested that the amplifier be turned down. The individual playing the guitar, Lee Nemier, refused. The officers then asked to be permitted to enter the home to discuss the matter further. Kelly Nemier, Lee's older sister, refused to let the officers into the house stating that they had no such right absent a search warrant. Officer Parobechek then picked up a nearby shovel and used it to pry open the door.

Officer Parobechek entered the home walking past John Theiss, who did not physically resist his entry into the home. Kelly Nemier, however, jumped in front of Parobechek but was pushed aside. At that point John Theiss grabbed Parobechek from the back. Officer Smith, who had followed Parobechek into the house, pulled Theiss off Parobechek and, after a brief struggle, placed him under arrest. Parobechek then proceeded to arrest Lee Nemier, but before the officer could actually make the arrest, Kelly Nemier jumped in his path and attempted to knee him in the groin. She was pushed aside again and Lee Nemier was arrested. After placing Lee Nemier into the police car, Kelly Nemier was informed that she too was under arrest. After a short struggle she was placed in the squad car.

The defendants' version of what happened was quite different. The defendants testified that Lee Nemier was not playing his guitar when the police came to the door. They further testified that when the officers were not given permission to enter the home to discuss the alleged noise complaint, they both became very angry and broke into the house. Officer Parobechek then rushed at Kelly Nemier, pushed her to the ground and twisted her arm until she stopped screaming. John Theiss then yelled to Parobechek urging that he stop mistreating Kelly because she was only a girl. Smith then allegedly grabbed Theiss, threw him to the ground and began beating his head against the floor. Lee Nemier, Kelly Nemier, and John Theiss were then arrested.

On or about April 17, 1984, Kelly Nemier and John Theiss were tried before a jury on charges of assault, resisting arrest, and disorderly conduct. At the close of the state's case, the trial court dismissed the disorderly conduct charges. At the conclusion of the trial the defendants were each found guilty of assault and resisting arrest.

The appellants filed timely appeals and in a single brief raise three assignments of error.

II

First assignment of error:

"Absent consent or exigent circumstances police officers may not make a warrantless entry into a suspect's home to arrest him and such an arrest is prohibited by the Fourth Amendment."

The appellants contend that the police officers illegally entered the residence to arrest Lee Nemier. The appellants' contention is persuasive.

In Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, the United States Supreme Court held that absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. Although the court declined to consider the scope of exigent circumstances that might justify a warrantless home arrest, it made it clear that such searches are presumptively unreasonable. Id. at 586, 100 S.Ct. at 1380.

Further, in Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732, the court noted that where the government's interest is only to arrest for a minor offense, the presumption that a warrantless search is unreasonable is difficult to rebut, and that the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. Id. at 750-753, 104 S.Ct. at 2098-2099. The court in Welsh then concluded that exigent circumstances did not exist where the police entered a home without a warrant to arrest an individual for drunk driving. In coming to this conclusion, the court rejected the state's contention that the evidence would be destroyed and that the defendant was a danger to the public.

Finally, in State v. Lee (1983), 8 Ohio Misc.2d 28, 457 N.E.2d 377, the Hamilton County Municipal Court held that absent probable cause and exigent circumstances, the police cannot make a warrantless entry into the defendant's home for a misdemeanor arrest. Id. at 30, 457 N.E.2d 377. The court concluded that exigent circumstances did not exist where the misdemeanor was disorderly conduct, the police had surrounded the house and had ample time to get a warrant.

Likewise, in the instant case, the police sought to arrest Lee Nemier for disorderly conduct, a misdemeanor; several police were at the house, thus making it unlikely that Lee Nemier would attempt to flee; and the offense occurred in the early afternoon when the courts were open and a warrant could have been obtained in a reasonably short time. Therefore, it is very likely that the officers should in fact have obtained a warrant prior to entering the home.

However, although the appellants' contention is compelling, the resolution of that issue is not critical to the disposition of the case. Instead, the critical issue to resolve is whether, assuming the entrance was unlawful, the defendants were then privileged to assault police officers after they had gained entrance into the home. We think not.

At common law, reasonable resistance to unlawful police conduct was privileged. See United States v. DiRe (1948), 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; John Bad Elk v. United States (1900), 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874; Columbus v. Holmes (1958), 107 Ohio App. 391, 152 N.E.2d 301 ; and Columbus v. Guidotti (App.1958), 81 Ohio Law Abs. 33. Unlawful entry into a residence is particularly disturbing in light of the recognized privacy interest that attaches to a private home. Thus, at common law, resistance to unlawful entry by police was recognized to have an even greater privilege when such entry was made into private premises. See United States v. Ferrone (C.A.3, 1971), 438 F.2d 381, 390; State v. Cesero (1959), 146 Conn. 375, 151 A.2d 338; White v. Morris (La.1977), 345 So.2d 461, 467.

In recent years, many states have greatly restricted an individual's right to resist. ³ Ohio has followed this trend and in Columbus v. Fraley (1975), 41 Ohio St.2d 173, 324 N.E.2d 735 , the Supreme Court held in paragraph three of its syllabus:

"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."

In reaching this conclusion, the court reasoned that society has changed and that the old rule is not appropriate today. More specifically, defendants today have the benefits of liberal bonding policies, appointment of counsel in the case of indigency, and the opportunity to be taken before a magistrate for immediate arraignment and preliminary hearing. Id. at 179, 324 N.E.2d 735, citing State v. Richardson (1973), 95 Idaho 446, 511 P.2d 263. The court also noted the fact that officers today are typically armed with sophisticated weapons that render resistance dangerous especially to the...