State v. Henderson

• Decision Date: 09 May 1990
• Docket Number: No. 89-450,89-450
• Parties: The STATE of Ohio, Appellant, v. HENDERSON, Appellee.
• Court: Ohio Supreme Court

Page 54

51 Ohio St.3d 54

554 N.E.2d 104

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

No. 89-450.

Supreme Court of Ohio.

Submitted March 7, 1990.

Decided May 9, 1990.

Syllabus by the Court

Information supplied by officers or agencies engaged in a common investigation with an arresting officer may be used to establish probable cause for a warrantless arrest. (United States v. Ventresca [1965], 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, and Whitely v. Warden [1971], 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, applied and followed; State v. Lewis [1893], 50 Ohio St. 179, 33 N.E. 405, distinguished.)

In the early morning hours of October 12, 1987, the State Highway Patrol post in Chardon picked up a call for help on a "citizen's band" radio channel. A vehicle had been "rammed" and someone was allegedly shooting at the person making the call.

Chardon Police Officer Scott Hilderbrand was waiting in his cruiser at an intersection near the State Highway Patrol post, when he saw a gold pickup with CB radio antennas coming down the road, followed by a light blue pickup. The blue truck was driving on the wrong side of the road and had only one headlight, which was working intermittently. The blue truck was smoking and appeared to be damaged. Officer Hilderbrand turned on his emergency lights and pulled the blue truck over.

Appellee, Carl Henderson, got out of the truck. His speech was slurred, he was unsteady, and he had a slight odor of alcohol. Officer Hilderbrand searched appellee for weapons and questioned him, but did not advise appellee of his Miranda rights. Appellee was not formally advised that he was under arrest but appellee made no attempt to leave and Hilderbrand testified that appellee was not free to do so.

Over the next forty-five minutes, Officer Hilderbrand was joined at the scene by Officer McKenna of the Chardon police, Sergeant Richard Kreft of the State Highway Patrol, and Sergeant Dewey of the Geauga County Sheriff's Department. None of these officers advised appellee of his Miranda rights.

Geauga County Deputy Sheriff Russell White was the last to arrive. He spoke to Officer Hilderbrand, who related his observations concerning appellee's driving. Without advising appellee of his rights, White questioned appellee and administered several field sobriety tests. When appellee failed the sobriety tests, White placed him under arrest. Appellee was taken to the State Highway Patrol post and given a breathalyzer test which resulted in a .148 reading.

Appellee was charged with driving under the influence of alcohol, R.C. 4511.19(A)(1), and operating a motor vehicle with a concentration of ten hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath, R.C. 4511.19(A)(3). Appellee moved to suppress his statements made to the police after he was stopped, to suppress the results of the physical tests administered, and to dismiss all charges. The trial court suppressed the statements, but held that the physical test results were admissible. The trial court overruled the motion to dismiss.

Appellee pled no contest to the R.C. 4511.19(A)(1) charge. He was found guilty and sentenced to ninety days in jail, eighty of which were suspended, two years of probation, and a $1,000 fine, $500 of which was suspended. The R.C. 4511.19(A)(3) charge was dismissed. The court of appeals reversed the conviction and entered a judgment of acquittal.

This cause is before the court pursuant to the allowance of a motion for leave to appeal.

Dennis M. Coyne, Asst. Police Prosecutor, for appellant.

Theodore R. Klammer and Martin A. Klammer, Mentor, for appellee.

HERBERT R. BROWN, Justice.

The court below reversed appellee's conviction and entered a judgment of acquittal on the ground that Deputy White's arrest of appellee was illegal. For the reasons which follow, we find that the arrest was legal and reverse the judgment of the appellate court.

I

As a preliminary matter, we note that an illegal arrest does not invalidate a subsequent conviction which is otherwise proper. Gerstein v. Pugh (1975), 420 U.S. 103, 119, 95 S.Ct. 854, 865-66, 43 L.Ed.2d 54; Frisbie v. Collins (1952), 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Ker v. Illinois (1886), 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421; Sopko v. Maxwell (1965), 3 Ohio St.2d 123, 32 O.O.2d 99, 209 N.E.2d 201; Caldwell v. Haskins (1964), 176 Ohio St. 261, 27 O.O.2d 160, 199 N.E.2d 116; Henderson v. Maxwell (1964), 176 Ohio St. 187, 27 O.O.2d 59, 198 N.E.2d 456; Wells v. Maxwell (1963), 174 Ohio St. 198, 22 O.O.2d 147, 188 N.E.2d 160; Brown v. Maxwell (1962), 174 Ohio St. 29, 21 O.O.2d 285, 186 N.E.2d 612; Westlake v. Vilfroy (1983), 11 Ohio App.3d 26, 11 OBR 39, 462 N.E.2d 1241. However, evidence obtained as a result of an illegal arrest is inadmissible at trial. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Therefore, we must determine the legality of appellee's arrest in order to determine what evidence was admissible against him.

II

As a general rule, an officer may not make a warrantless arrest for a misdemeanor unless the offense is committed in the officer's presence. State v. Lewis (1893), 50 Ohio St. 179, 33 N.E. 405. In Oregon v. Szakovits (1972), 32 Ohio St.2d 271, 61 O.O.2d 496, 291 N.E.2d 742, we recognized an exception to this rule where the officer has probable cause to believe that the suspect was operating a motor vehicle while under the influence of alcohol or drugs. As a concurring Justice explained:

"The holding in Lewis was predicated upon the conclusion that the power to arrest without warrant for breach of peace or other minor offense is given in order to maintain the public peace; that it therefore ceases when the offense is an accomplished fact which can no longer be prevented.

" * * * [T]he presence of an intoxicated individual in, or in the vicinity of, an automobile which obviously had been driven by him clearly indicates that he was intoxicated while driving. Under such circumstances, * * * the offense is not 'an accomplished fact' which could no longer be prevented since such individuals could have easily resumed driving, in such intoxicated condition, unless prevented from doing so by the officer." Id. at 275-276, 61 O.O.2d [554 N.E.2d 107] at 498, 291 N.E.2d at 745 (Leach, J., concurring).

The court below recognized the Szakovits exception, but believed the "admissible facts and circumstances" of this case were insufficient to invoke the exception. We disagree. Officer Hilderbrand informed Deputy White that appellee had been driving while intoxicated. White observed appellee directly, and noted an odor of alcohol on his breath. White also had difficulty in understanding appellee's speech. Appellee failed the field sobriety tests. White spoke to appellee about the towing of his truck. Thus, Deputy White could have reasonably concluded that appellee had been driving the truck while intoxicated, even if White did not have the benefit of Hilderbrand's observations. White therefore had the power to arrest appellee under our holding in Szakovits.

III

Lewis, supra, specifically held that a police officer could not make a warrantless arrest for a misdemeanor which was not committed in his presence based on the statements of witnesses to the crime. The court below concluded that Lewis was controlling because Deputy White first learned of appellee's "bad driving" solely through the statements of Officer Hilderbrand. We find this conclusion flawed.

Lewis was a village marshal accused of murdering a suspect during an attempted arrest. In Lewis, the issue was whether defendant was engaged in a lawful arrest when the suspect was killed. The evidence showed that the suspect had gotten into a fight in a saloon. Lewis was summoned to break up the altercation, but by the time he arrived, "the parties to it had gone and good order had been restored * * *." Id. 50 Ohio St. at 184, 33 N.E. at 406. Based on information given by witnesses, Lewis pursued the suspect and attempted to arrest him without first securing a warrant. We held that Lewis had no legal authority to make a warrantless arrest for a breach of the peace based solely on the statements of witnesses. Id. at syllabus.

There are significant differences between Lewis and the instant case. Here, Deputy White relied on information provided by a fellow law enforcement officer investigating the incident. "Observations of...