State v. Vanbarg, MCR74-11537

• Decision Date: 08 April 1975
• Docket Number: No. MCR74-11537,MCR74-11537
• Citation: 335 N.E.2d 765,44 Ohio Misc. 11
• Parties: , 73 O.O.2d 74 The STATE of Ohio v. VANBARG.
• Court: Ohio Court of Common Pleas

Page 11

44 Ohio Misc. 11

335 N.E.2d 765, 73 O.O.2d 74

The STATE of Ohio v. VANBARG.

No. MCR74-11537.

Toledo Municipal Court, Ohio.

April 8, 1975.

Charles A. Stupsker, Toledo, for plaintiff.

R. Martin Galvin, Toledo, for defendant.

RESTIVO, Judge.

This cause came on motion to discharge defendant based on the ground the affiant had no legal right to arrest the defendant and further on a motion to suppress the evidence.

There is no dispute as to the facts; briefly, they are as follows:

Affiant, John Kachenmeister, a city of Oregon police officer, who was not on duty, and who was operating his private vehicle on Summit Street in the city limits of Toledo, Ohio, then and there did arrest the defendant and charged him with the illegal use of a hallucinogen, a serious offense contrary to R.C. 3719.41. A warrant was issued subsequent to the arrest, after the filing of the complaint by John Kachenmeister with the Clerk of Toledo Municipal Court.

Prosecutor and defense counsel agree that if the arrest is illegal, the evidence should be suppressed and the case dismissed. Therefore, the only question which this court need decide is whether the arrest was legal.

Since this matter involves a misdemeanor all powers of arrest pertaining to felonies will be left undisturbed, except to state that a very general definition of police duties and responsibilities is found in R.C. 737.11, as follows:

'The police force of a municipal corporation shall preserve the peace, protect persons and property, and obey and enforce all ordinances of the legislative authority thereof, and all criminal laws of the state and the United States. The fire department shall protect the lives and property of the people in case of fire. Both the police and fire departments shall perform such duties as are provided by ordinance. The police and fire departments in every city shall be maintained under the civil service system.'

The basic provision for the establishment of a municipal police department is found in Section 3, Article XVIII of the Ohio Constitution, which reads, as follows:

'Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.'

The language of Section 3, Article XVIII of the Ohio Constitution, 'exercise all powers of local self-government' and 'to adopt and enforce within' makes it clear, that a municipality which cannot legislate outside municipal boundaries by its own authority similarly cannot employ its police officers to act outside the same municipal boundaries.

The courts have stated that proposition very clearly, in Beachwood v. Bd. of Elections (1958), 167 Ohio St. 369, 148 N.E.2d 921, as follows:

'The power of local self-government granted to municipalities by Article XVIII (of the Ohio Constitution) relates solely to the government and administration of the internal affairs of the municipality, and, in the absence of a statute conferring a broader power, municipal legislation must be confined to that area.'

A very forceful and clear statement relative to the above constitutional provision is found in State ex rel. Toledo v. Lynch (1913), 88 Ohio St. 71, at page 97, 102 N.E. 670, at page 673, wherein Chief Justice Shauck states the phrase, 'all powers of local self-government' to mean, 'such powers of government as, in view of their nature and the field of their operation, are local and municipal in character.'

An examination must then be made of several sections of the code to determine what, if any, broader statutory power has been conferred to a municipal police officer.

R.C. 715.05 is the basic statutory provision which gives a municipality a general power to organize, staff and supply a police department:

'All municipal corporations may organize and maintain police and fire departments, erect the necessary buildings, and purchase and hold all implements and apparatus required therefor.'

A further amplification of a municipality's authority in the creation of a police department is found in R.C. 737.05, which provides for the composition and control of police departments such as, a chief of police and such other officers, patrolmen and employees, as a legislative authority provides by ordinance:

'The police department of each city shall be composed of a chief of police and such other officers, patrolmen, and employees as the legislative authority thereof provides by ordinance. (Emphasis added.)

'The director of public safety of such city shall have the exclusive management and control of all other officers, surgeons, secretaries, clerks, and employees in the police department as provided by ordinances or resolution of such legislative authority. He may commission private policemen, who may not be in the classified list of the department, under such rules and regulations as the legislative authority prescribes.'

A section of the Code which gives the most difficulty has to do with the power to arrest without warrant for a misdemeanor. This is found in R.C. 2935.03:

'A sheriff, deputy sheriff, marshal, deputy marshal or police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.

'When there is reasonable ground to believe that an offense of violence, or...