State v. Timson

• Decision Date: 08 May 1974
• Docket Number: No. 73-733,73-733
• Citation: 311 N.E.2d 16,38 Ohio St.2d 122,67 O.O.2d 140
• Parties: , 67 O.O.2d 140 The STATE of Ohio, Appellant, v. TIMSON, Appellee.
• Court: Ohio Supreme Court

Page 122

38 Ohio St.2d 122

311 N.E.2d 16, 67 O.O.2d 140

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

No. 73-733.

Supreme Court of Ohio.

May 8, 1974.

Syllabus by the Court

1. An arrest without a warranty is constitutionally invalid unless the arresting officer had probable cause to make it at that time. To have probable cause, the arresting officer must have sufficient information derived from a reasonably trustworthy source to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused. (Paragraph one of the syllabus of State v. Fultz, 13 Ohio St.2d 79, 234 N.E.2d 593, approved and followed.)

2. Where an arrest without a warrant violates probable cause requirements under the Fourth and Fourteenth Amendments to the United States Constitution, evidence secured as an incident to such arrest should have been excluded from the trial. (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, followed.)

3. Contempt proceedings are regarded as sui generis, and not criminal prosecutions; and a charge of contempt of court is not a felony and may not be considered a felony under the laws of Ohio.

John W. Timson, defendant, who may be described as a law enforcement activist, has been involved in much litigation centered around the enforcement of criminal laws in Franklin County for several years past. He styles himself 'A Concerned Citizen.' As such, he has attained an uncommon degree of notoriety with law enforcement officers in Columbus.

On December 28, 1971, Timson was arrested for carrying a concealed weapon in Columbus, and he was subsequently indicted on the charge that he 'did unlawfully carry concealed on or about his person a certain firearm, to wit: a .22 caliber pistol, while said weapon or device was loaded, having been previously convicted in the Franklin County Municipal Court on August 27, 1968, of carrying concealed weapons.'

The arrest of Timson was the key episode in an unusual succession of events that ultimately led to his indictment. On the afternoon of December 28, 1971, Marvin Williams, a Franklin County deputy sheriff, had occasion to talk to two federal marshals at the Columbus police station. These marshals displayed a picture of Timson to Williams and inquired if he 'had seen him around.' Williams replied that Timson was 'usually over here, and sometimes he's down to the courthouse.' One marshal then said to Williams: 'If you see him (Timson), would you pick him up for us? We have a warrant for his arrest.' Williams asked if he could see the warrant. It was displayed to him. Later that day, upon returning to the sheriff's office, Williams told Captain Carl Rose of the sheriff's civil division that the United States Marshal had a warrant for Timson's arrest, saying to Rose that 'if the comes in, you can take him into custody.' Within a half hour Timson walked into the sheriff's office to have some papers notarized by one of the employees there, and he was arrested by Captain Rose and another deputy sheriff. They searched Timson and found a loaded .22 caliber pistol in his hip pocket.

The trial court overruled defendant's motion to suppress the gun as evidence. Suppression was urged upon the ground that the arrest was illegal, and therefore the search was without authority in law.

Trial was had before a jury in August 1972. The jury returned a verdict of guilty, and Timson was sentenced to the Ohio State Penitentiary. He was confined there until October 12, 1972, when he was released on shock probation by the trial judge.

The judgment of conviction for carrying a concealed weapon was reversed by the Court of Appeals, in a two-to-one decision, and final judgment was rendered for the defendant. The cause is now before this court upon an appeal by the state, pursuant to the allowance of a motion for leave to appeal.

George C. Smith, Pros. Atty., and Miles C. Durfey, Columbus, for appellant.

John W. Timson, in pro. per.

CORRIGAN, Justice.

Defendant, John W. Timson, by motion to suppress before his trial, challenged the constitutionality of the use of evidence seized during a search of his person incident to an arrest which he claims was illegal. The issue of the constitutionality of the arrest and the ensuing search and seizure was decided in defendant's favor by the Court of Appeals, and we affirm that judgment for the reasons stated herein.

I.

The testimony reflected by the record apposite to the issue of the legality of the arrest on December 28, 1971, comes from a witness for the state, Captain Carl Rose.

Upon direct examination, he testified, as follows:

'Q. Would you describe to the ladies and gentlemen of the jury, Captain Rose, what you did on the occasion of seeing Mr. Timson come into your offices?

'A. Mr. Williams had prior told me that there was a federal warrant on file for Mr. Timson, and if I saw him, to pick him up and take him to jail, knowing that he came into our office quite frequently there to have papers notarized.

'Mr. Timson came in, and I made a call to the jail to get a deputy to help me. The lines were busy.

'And I walked up behind Mr. Timson, told him he was under arrest, there was a warrant on file for his arrest, shook him down and took a pistol from him.

'Q. And where was that weapon located on his person, sir?

'A. In his right-hip pocket.

'Q. Did he have a suitcoat on, sir?

'A. Yes.

'Q. And you personally removed that weapon from his pocket; is that correct?

'A. I did.

'Q. Did you examine the weapon itself, sir?

'A. Not at that particular time. I handed it to deputy James Jordan.'

Later, cross-examination elicited the following answers from Captain Rose:

'Q. Did you tell the defendant what he was under arrest for?

'A. I merely told him that there was a federal warrant on file for him.

'Q. But you didn't know what he was under arrest for?

'A. No.'

The record reveals that the federal warrant Captain Rose had been told about, and which caused him to arrest Timson, was a bench warrant, ¹ filed December 27, 1971 and signed by the United States District Judge. That document, directed to the United States Marshal, ordered that Timson be arrested and brought before the court to show cause why he should not be punished for contempt for removing a pleading from a court file in violation of a previous court order. Parenthetically, the evidence in this case shows that defendant appeared in federal court on the day following his arrest, returned the document in question and purged himself of such contempt and was released from any further responsibility in the matter.

In the manner shown by the excerpted fragments of the voluminous record in this case, the total impetus for Timson's arrest without a warrant by Captain Rose was the information received from deputy sheriff Williams that there was a federal warrant in the hands of the United States Marshal for his arrest.

The law on arrest in Ohio is quite clear. Generally, there must be a warrant of arrest issued by a proper authority before one may be arrested. However, certain statutes provide for arrest without a warrant under certain circumstances. For example, R.C. 2935.03 ² provided that a deputy sheriff shall arrest and detain a person found violating a law of Ohio or an ordinance of a municipal corporation until a warrant can be obtained.

Similarly, an arrest may be made under R.C. 2935.04 ³ if the circumstances are such that the arresting officer knows that the person to be arrested has committed a felony, or that the officer has reasonable ground to believe that a felony has been committed.

Neither of those statutes furnished justification for the arrest of Timson under the facts of this case.

An arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at that time. To have probable cause, the arresting officer must have sufficient information, derived from a reasonably trustworthy source, to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused. Brinegar v. United States (1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Henry v. United States (1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, and State v. Fultz (1968), 13 Ohio St.2d 79, 234 N.E.2d 593.

At the time of Timson's arrest without a warrant, Captain Rose had no information that Timson had committed a felony, or that a felony had been committed. For those reasons, this arrest was constitutionally invalid.

II.

Appellant additionally argues a novel, if not fanciful conception of contempt. Appellant urges that a 'holding in contempt in the federal court is within the power of that court and may result in imposition of a sentence of imprisonment exceeding one year, thereby substantiating its inclusion within the classification of a felony in Ohio law under R.C. Section 1.06. This is very evident from the language within 18 U.S.C.A. Section 401 (Br. 53) which speaks in terms of the 'discretion' (without limitation) vested within the federal courts. This also is substantiated by and comports with the opinions rendered in Green v. United States, supra (356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672), and United States v. Brown (2 Cir.), 247 F.2d 332 (N.Y.C.A.1957), aff'd 359 U.S. 41 (79 S.Ct. 539, 3 L.Ed.2d 609) * * * where the latter instance in a (sic) of 15 months was imposed pursuant to a lawful order of the court under authority of 18 U.S.C.A. Section 401(3) and by which a discretionary sentence would be upheld subject to Eighth Amendment sanctions.'

If we may extract from this farrago of argument, as implicit therein, the proposition of law that a charge of contempt in a federal court may be considered a felony under federal law or under Ohio law, its proponents have gravely misconceived the settled legal...