State v. Call

• Decision Date: 10 July 1965
• Parties: , 37 O.O.2d 274 The STATE of Ohio, Appellee, v. CALL et al., Appellants.
• Court: Ohio Court of Appeals

Page 277

8 Ohio App.2d 277

220 N.E.2d 130, 37 O.O.2d 274

The STATE of Ohio, Appellee, v. CALL et al., Appellants.

Court of Appeals of Ohio, Second District, Montgomery County.

July 10, 1965.

Lee C. Falke, Pros. Atty., Daniel J. O'Brien and Leonard P. Zdara, Dayton, for appellee.

Herbert M. Eikenbary, Dayton, for appellant Wesley J. Call.

Jack H. Patricoff, Dayton, for appellant Harold A. Call.

SHERER, Presiding Judge.

Appellants, Wesley J. Call and Harold A. Call, are appealing judgments of conviction and sentence by the Common Pleas Court of Montgomery County, Ohio, on two counts of burglary at night and a charge that they were carrying a concealed weapon.

Appellants were indicted and tried together in the Common Pleas Court in case No. 24578 for the burglary of the Johnsville Elementary School in Montgomery County in violation of Section 2907.10 of the Revised Code. They were indicted and tried together in the Common Pleas Court under case No. 24579 for the burglary of the Johnsville-New Lebanon High School in violation of Section 2907.10 of the Revised Code, and, on a second count, of carrying a concealed weapon in violation of Section 2923.01 of the Revised Code. These cases were consolidated for trial in the Common Pleas Court by agreement of counsel and have been consolidated for the purpose of this appeal.

It is claimed that the trial court erred to the prejudice of appellants in three respects: (1) In admitting, over objection, evidence obtained by police officers by an illegal search and seizure in violation of the Fourth Amendment of the Constitution of the United States; (2) in admitting testimony that Wesley J. Call was a parole violator and that Harold A. Call was a probation violator; and (3) that the judgments of conviction are manifestly against the weight of the evidence and contrary to law.

The rule that evidence illegally obtained must be excluded in criminal prosecutions in state courts because of the Fourteenth Amendment to the Constitution of the United States is set forth by the Supreme Court of the United States in Mapp v. State of Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

At 3:27 a. m. on February 7, 1964, Officer Branson, a Madison Township police officer, observed an automobile owned by appellant Harold A. Call, and being operated by appellant Wesley J. Call, speeding eastwardly on Hoover Avenue in Montgomery County outside the city of Dayton. Officer Branson followed the automobile, occupied by appellants, from Guenther Road in Montgomery County to the intersection of Hoover Avenue and Gettysburg Avenue in the city of Dayton, where he stopped the car and arrested Wesley Call for speeding and so informed the appellants. Officer Branson approached the driver and requested his driver's license and the registration certificate for the automobile. Upon obtaining these papers, Officer Branson recognized the names thereon as men known by him to be burglars. Thereupon, he ordered the car driven onto a filling station lot, handcuffed them, put them into his cruiser and radioed the sheriff's office that he had them in custody. Officer Branson noted fresh mud on their shoes, and they stated that about 2 a. m. they had driven over into Indiana to see a girl friend and had car trouble and pulled off the road to fix it. Officer Branson found no mud on the car's tires and called this fact to their attention.

One week previously, in the early morning hours, this officer had observed an automobile, registered in the name of one of the appellants, parked in a private lane about 150 yards from the American Legion Hall on Wolf Creek Pike in Madison Township, which he later learned had been burglarized that evening.

Deputy Sheriff Good arrived on the scene in response to Branson's call at 3:45 a. m. and, upon recognizing appellants as men known to him by their prior criminal records as burglars operating in the area and knowing that Wesley Call was on parole and that Harold Call was on probation, placed them under arrest as parole and probation violators. He and Officer Branson then searched the front of the automobile and found a fully loaded .38 caliber pistol concealed under the front seat of the car on the passenger's side.

Officer Good then requested the keys to the car and obtained them from Wesley Call. Both officers then further searched the automobile. The officers found numerous crowbars, pry bars, a portable torch, a transistor radio, Exhibit 8, assorted tools, including a large crowbar, Exhibit 17, in the trunk of the car, and substantial amounts of small change, Exhibits 11A and 11B, stamps, Exhibits 10 and 14, a watch, Exhibit 9, and a ring, Exhibit 13. They seized all of these items excepting the large crowbar, the radio and the assorted small tools. The car was impounded and removed to a garage, and appellants were taken to the county jail.

Upon being questioned, appellant Wesley Call told the officers that he had found the gun on the West Third Street bridge in Dayton that day and that he had intended to turn it in, but forgot about it. Harold Call told the officers that he knew the gun was in the car.

The Fourth Amendment of the Constitution of the United States provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The protection afforded by this amendment is applicable to searches of motor vehicles. Questions involving searches of motor vehicles are not treated as identical to questions arising out of searches of fixed structures like houses. Carroll v. United States (1925) 267 U.s. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States (1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

The Supreme Court of the United States has recognized an exception to the rule that a search must rest upon a search warrant in cases where the search in incident to a lawful arrest. Weeks v. United States (1914), 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652; Agnello v. United States (1925), 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145. In Ker v. State of California (1962), 374 U.S. 23, 34, 35, 83 S.Ct. 1623, 10 L.Ed.2d 726, the court said that the evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The court said further that the lawfulness of an arrest without warrant, in turn, must be based upon probable cause, which exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

The Supreme Court has recognized the right of a police officer, without a search warrant, contemporaneously to search persons lawfully arrested and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things which might be used to effect an escape from custody. Agnello v. United States (1925), 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145.

In United States v. Jeffers (1951), 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, the court said:

'The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both 'houses' and 'effects.' Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. * * * Only where incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, or in 'exceptional circumstances,' Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States, 1948, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153. * * *'

In Harris v. United States (1947), 331 U.S. 145, 150, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399, the Supreme Court has pointed out 'that it is only unreasonable searches and seizures which come within the constitutional interdict. The test of reasonableness cannot be stated in rigid and absolute terms.'

Each case is to be decided on its own facts and circumstances. Go-Bart Importing Co. v. United States (1931), 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374.

In Preston v. United States (1964), 376 U.S. 364, 366, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, the court said:

'* * * Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar. See Carroll v. United States, supra, 267 U.S., at 153, 45 S.Ct. at 285, 69 L.Ed. 543. But even in the case of motorcars, the test still is, was the search unreasonable. Therefore we must inquire whether the facts of this case are such as to fall within any of the exceptions to the constitutional rule that a search warrant must be had before a search may be made.

'It is argued that the search and seizure was justified as incidental to a lawful arrest. Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed....