State v. Kenon L. Jones
| Decision Date | 19 February 1999 |
| Docket Number | 99-LW-0350,C.A. 17382 |
| Parties | STATE OF OHIO, Plaintiff-Appellant v. KENON L. JONES, Defendant-Appellee C.A. Case No. 17382 |
| Court | Ohio Court of Appeals |
MATHIAS H. HECK, JR., Prosecuting Attorney, By: CHERYL A. ROSS Assistant Prosecuting Attorney, Appellate Division, P.O. Box 972, 301 W. Third Street, Suite 500, Dayton, Ohio 45422 Atty. Reg. #0066113, Attorneys for Plaintiff-Appellant
ARVIN S. MILLER, Assistant Public Defender, Montgomery County Public Defender's Office, 301 W. Third Street, Lower Level, Dayton, Ohio 45422, Atty. Reg. #0016355, Attorney for Defendant-Appellee
The State of Ohio appeals pursuant to Crim.R. 12(J) from the trial court's suppression of crack cocaine discovered incident to the arrest of appellee, Kenon L. Jones. The cocaine evidence was discovered after Jones was arrested for jaywalking. The trial court suppressed the evidence because it found that the arrest was prohibited by R.C. 2935.26. The state has appealed, arguing that freedom from arrest under R.C. 2935.26 is not a constitutional right, and the violation, therefore, did not merit application of the exclusionary rule. We hold, however, that an arrest in violation of R.C. 2935.26 constitutes an unreasonable seizure under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Evidence discovered as a consequence of the violation is subject to the exclusionary rule. Accordingly, we affirm the judgment of the trial court.
The facts underlying this appeal are set out in the State's brief and are supported by our review of the record.
At approximately 5:25 p.m., Dayton Officers William Swisher and Robert Cleaver were dispatched to the intersection of Walton and Delphos Avenues. The dispatcher provided the officers with a physical description of two young black males believed to be selling drugs at that location. The first male was described as wearing dark shorts, a dark T-shirt, and a baseball cap. The second male, who was later found to be Jones, was wearing blue-jean shorts and a white T-shirt. When the officers arrived at the corner of Walton and Delphos, they saw three or four men, two of whom met the physical descriptions provided by dispatch. The officers pulled up to the men and slowed their cruiser. The men made eye contact with the officers and began to walk away.
The officers stopped the individual in the dark clothes for jaywalking and asked him to sit in the rear of the cruiser. The officers then drove around the block and saw Jones walking in the street. When Jones saw the cruiser, he stepped onto the sidewalk. Officer Swisher exited the cruiser and asked Jones to approach him. When Jones walked to the cruiser, Swisher asked him for some identification, but Jones replied that he had none. Swisher then advised Jones that he had been jaywalking and asked him to put his hands on the cruiser. Jones tightened his legs and buttocks so that Officer Swisher could not conduct a thorough pat down. When Swisher told Jones that he was under arrest for jaywalking pursuant to city policy,[1] Jones pushed away from the cruiser and tried to run. Swisher asked Jones to calm down and warned him that he would be sprayed with pepper mace if he did not stop fighting. Jones continued to struggle, and Officer Cleaver assisted Swisher in handcuffing Jones and putting him into the cruiser. Jones told the officers that he tried to run because he believed there was a warrant out for his arrest.
Jones began moving around in the back seat and continued to do so despite being asked to sit still. The first man was released, and Swisher asked Jones to exit the cruiser in order to try again to conduct a pat down. Jones stepped out but again tightened his muscles so that Swisher could not complete the search. Swisher checked the back seat of the cruiser, but he found nothing. Swisher then asked Jones to be seated in the cruiser despite Swisher's concern for his own safety and the safety of those around him. In the cruiser, Swisher requested Jones's social security number, which Jones provided. The officers then verified on the police computer system that the number provided was indeed that of the defendant.
On the drive to the Safety Building, Jones continued to move around in the back seat, and Officer Swisher heard a noise that he believed was a cellophane wrapper. Swisher pulled the cruiser over and again asked Jones to exit. Swisher unsuccessfully attempted to pat down Jones, and he checked the back seat of the cruiser but found nothing. Swisher asked Jones to sit in the cruiser and remain still for the rest of the short drive to the police station. However, Jones continued to move around for the rest of the ride.
As Jones got out of the back seat at the station, Officer Swisher saw what appeared to be a rock of crack cocaine on the seat where Jones had been sitting. Jones claimed that the cocaine belonged to the first man. The substance tested positive for crack cocaine.
After the defendant was indicted for possession of crack cocaine in violation of R.C. 2925.11(A), he moved to suppress the evidence found after his arrest. In granting the defendant's motion, the trial court determined that the police officers unlawfully arrested Jones for the jaywalking offense. R.C. 2935.26 prohibits the arrest of a person who commits a minor misdemeanor, requiring that a citation be issued instead, unless one of the statutory exceptions authorizing arrest exists. One of the listed exceptions occurs when the defendant fails to provide satisfactory evidence of his identity. The trial court found that Section 2935.26 prohibited Jones arrest because jaywalking is a minor misdemeanor and the officers did not provide Jones a reasonable opportunity to provide satisfactory evidence of his identity prior to arresting him. Accordingly the trial court suppressed the crack-cocaine evidence because it was the fruit of an unlawful arrest.
The State presents a single assignment of error for review. Therein, the state asserts:
Because the exclusionary rule applies only to Constitutional violations and not to statutory violations, the trial court erred in suppressing evidence in this case.
With this assignment of error, the State does not argue that the police could have arrested Jones on suspicion of some other charge besides jaywalking. It does not claim that the seizure was something less than a custodial arrest. Nor does the state dispute the trial court's determination that the arrest violated R.C. 2935.26. Instead, the state argues that, even though Jones's arrest occurred in violation of R.C. 2935.26, the evidence discovered consequent to that arrest should not have been suppressed. The argument turns on the distinction between an arrest that is illegal because it violated constitutional protections against unreasonable search and seizure and one that is illegal because it violated some aspect of state law.
The Fourth Amendment of the United States Constitution declares, "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 Warrants 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." Section 14, Article I of the Ohio Constitution, which contains nearly identical language, has been held to extend protections in conformity with those of the federal constitution. State v. Robinette (1997), 80 Ohio St.3d 234, 238, 685 N.E.2d 762, 766.
It is axiomatic that an arrest made without a warrant amounts to an unconstitutional seizure under the Fourth Amendment unless the arresting officer has probable cause to believe that an offense has been committed. See Michigan v. Summers (1981), 452 U.S. 692, 700, 101 S.Ct. 2587, 2593, 69 L.Ed.2d 340, 348 () Where evidence is discovered as a result of such an illegal arrest it is subject to the exclusionary rule and must be suppressed. State v. Timson (1974), 38 Ohio St.2d 122, paragraph two of the syllabus. In the present case, there was no lack of probable cause to believe that an offense was committed. Officer Swisher saw Jones commit jaywalking in violation of the Dayton Revised Code of General Ordinances Section 75.02. Nevertheless, under R.C. 2935.26, the offense was not one that would normally give grounds for arrest.
The statute in question, R.C. 2935.26 provides, in relevant part, as follows:
(3) The offender refuses to sign the citation.
(4) The offender has previously been issued a citation for the commission of that misdemeanor and has failed to do one of the following:
(a) Appear at the time and place stated in the citation;
(b) Comply with division (C) of this section [which provides means of pleading guilty and paying the fine without a court appearance].
Pursuant to the Dayton Revised Code of General Ordinances, Section 70.99, jaywalking is a minor misdemeanor. As a consequence R.C. 2935.26 requires that a citation be issued and forbids arrest except when...
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