State v. Brown

39 N.E.3d 496, 143 Ohio St. 3d 444

Opinions

O’Donnell, J.

{¶ 1} The state of Ohio appeals from a judgment of the Sixth District Court of Appeals that reversed Terence Brown’s conviction for possession of oxycodone and held that the trial court should have suppressed the evidence obtained following a traffic stop for a marked lane violation made by a township police officer who acted without statutory jurisdiction. The appellate court concluded that the traffic stop was unreasonable pursuant to Article I, Section 14 of the Ohio Constitution because the township officer lacked statutory authority to make a stop for a marked lane violation on an interstate highway, and it suppressed the evidence obtained from the search of Brown’s vehicle.

{¶ 2} It is undisputed that the township police officer in this case exercised law-enforcement powers not granted to township police officers by the General Assembly; thus, because the officer acted without authority to stop Brown for a minor misdemeanor traffic offense on an interstate highway, the traffic stop, the arrest, and the search were unreasonable and violated Article I, Section 14 of the Ohio Constitution.

{¶ 3} Accordingly, we affirm the judgment of the appellate court.

Facts and Procedural History

{¶ 4} On the evening of March 16, 2011, a Lake Township patrol officer and canine handler, Kelly Clark, pulled from the median on Interstate 280 into the passing lane and observed the passenger-side tires of a Chevy Impala momentarily cross the solid white fog line for a distance of approximately 100 feet. Clark pulled her police vehicle alongside the Impala and observed that the driver, Terence Brown, was staring directly ahead and did not look over at her. Clark decided to stop Brown for leaving the lane of travel approximately two and one half miles from where the violation occurred. It is undisputed that Clark lacked authority to stop a motorist for a marked lane violation on an interstate highway.

{¶ 5} Brown had a suspended driver’s license and an active felony warrant in Michigan. The record here, however, does not disclose whether Officer Clark was aware of those facts when she walked her drug dog around the Impala, leading to the discovery of 120 oxycodone tablets and a baggie of marijuana.

{¶ 6} The state thereafter indicted Brown for aggravated possession of drugs. Brown filed a motion to suppress, but the court denied it, finding that Clark had probable cause to stop Brown for a marked lane violation. Brown subsequently pleaded no contest to aggravated possession of drugs, and the trial court sentenced him to a mandatory term of three years in prison.

{¶ 7} Brown appealed to the Sixth District Court of Appeals, asserting that because Clark lacked statutory authority to stop him for a marked lane violation on an interstate highway, the stop and the subsequent arrest and search violated his right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution. The appellate court determined that the stop did not violate the Fourth Amendment, because Clark had probable cause to believe Brown had committed a misdemeanor in her presence. However, the court held that the stop was unreasonable and violated the Ohio Constitution because the marked lane violation occurred outside Clark’s territorial jurisdiction and there were no extenuating circumstances that called for the township police officer to initiate the extraterritorial stop. Concluding that the trial court should have suppressed the drug evidence, the appellate court reversed Brown’s conviction.

{¶ 8} We accepted the state’s discretionary appeal on the following proposition of law: “A violation of R.C. 4513.39 does not rise to the level of a constitutional violation under Article I, Section 14 of the Ohio Constitution or the Fourth Amendment to the United States Constitution; therefore, the exclusionary rule cannot be invoked to suppress the fruits of any such statutory violation.” 138 Ohio St.3d 1467, 2014-Ohio-1674, 6 N.E.3d 1204.

The State’s Contentions

{¶ 9} The state argues that the prohibitions against unreasonable searches and seizures set forth in the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution are nearly identical and should be read in harmony. It further relies on our decision in State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, 902 N.E.2d 464, for the proposition that a search or seizure outside an officer’s territorial jurisdiction does not violate the Fourth Amendment, provided that the officer has probable cause, and it urges us to hold that Article I, Section 14 of the Ohio Constitution affords no greater protection than that afforded by the Fourth Amendment to the United States Constitution. Finally, the state contends that the violation of a statute does not, by itself, rise to a constitutional violation requiring suppression of evidence, and therefore the fact that a statute provides no remedy for its violation indicates a policy decision by the legislative branch of government that should not be disturbed by the judicial branch.

Brown’s Contentions

{¶ 10} Brown contends that the township officer lacked statutory authority to stop any motorist on an interstate highway for a marked lane violation. Claiming that the Ohio Constitution is a document of independent force, he notes that in determining whether an extraterritorial stop violates the Ohio Constitution, we have considered the totality of the circumstances and balanced the government’s interests against the privacy right of the accused to decide whether the stop was reasonable. In this case, he urges that the violation of the statute rose to a constitutional infringement, and therefore the proper remedy is for the court to exclude the drug evidence.

{¶ 11} Accordingly, the issue presented on this appeal is whether a traffic stop made without statutory jurisdiction or authority violates the protection against unreasonable searches and seizures afforded by Article I, Section 14 of the Ohio Constitution.

Extraterritorial Arrests

Common Law

{¶ 12} At common law, police officers had no authority to make warrantless arrests outside the jurisdiction of the political entity that appointed them to office; unless they were in hot pursuit of a suspected felon fleeing that jurisdiction, officers making an extraterritorial arrest acted outside their official capacity and were therefore treated as private citizens. See, e.g., Fairborn v. Munkus, 28 Ohio St.2d 207, 209, 277 N.E.2d 227 (1971); State v. Zdovc, 106 Ohio App. 481, 485-486, 151 N.E.2d 672 (8th Dist.1958); State v. Eriksen, 172 Wash.2d 506, 259 P.3d 1079 (2011), ¶ 8-9; Commonwealth v. Limone, 460 Mass. 834, 837, 957 N.E.2d 225 (2011); Bost v. State, 406 Md. 341, 351, 958 A.2d 356 (2008), fn. 6; People v. Lahr, 147 Ill.2d 379, 382, 168 Ill.Dec. 139, 589 N.E.2d 539 (1992); State v. Stahl, 838 P.2d 1193, 1195 (Wyo.1992); Perry v. State, 303 Ark. 100, 102, 794 S.W.2d 141 (1990); People v. Hamilton, 666 P.2d 152, 154 (Colo.1983); 3 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Section 5.1(b) at 18-19 (5th Ed.2012); 4 Bergman & Duncan, Wharton’s Criminal Procedure, Section 23:23, at 23-79 to 23-80 (14th Ed.2010).

Statutory Law

{¶ 13} The General Assembly codified this common law rule in Ohio as early as 1837, when it enacted an act “[defining the powers and duties of Justices of the Peace and Constables, in Criminal Cases,” 35 Ohio Laws 87, 91, which authorized constables to apprehend felons and disturbers of the peace without a warrant “within their respective counties.” And in 1869, when the General Assembly enacted R.S. 7129, 66 Ohio Laws 287, 291, as part of the act establishing the Ohio Code of Criminal Procedure, it retained the common law rule limiting an officer’s authority to make a warrantless arrest to the geographical boundaries of the political subdivision employing the officer. Cincinnati v. Alexander, 54 Ohio St.2d 248, 252, 375 N.E.2d 1241 (1978) (“the General Assembly intended no devolution of arrest power outside the respective political subdivisions relating to the enumerated officers in the enactment of [R.S. 7129]”).

{¶ 14} The General Assembly subsequently recodified R.S. 7129, and the current version, R.C. 2935.03(A)(1), now provides:

A sheriff, deputy sheriff, marshal, deputy marshal, municipal police officer, township constable, [or] police officer of a township or joint police district * * * shall arrest and detain, until a warrant can be obtained, a person found violating, within the limits of the political subdivision * * * in which the peace officer is appointed, employed, or elected, a law of this state, an ordinance of a municipal corporation, or a resolution of a township.

{¶ 15} However, the General Assembly has not extended the authority to enforce traffic laws on state highways to all police officers. In that regard, R.C. 4513.39(A) provides:

The state highway patrol and sheriffs or their deputies shall exercise, to the exclusion of all other peace officers except within municipal corporations and except as specified in division (B) of this section and division (E) of section 2935.03 of the Revised Code, the power to make arrests for violations on all state highways, of sections 4503.11, 4503.21, 4511.14 to 4511.16, 4511.20 to 4511.23, 4511.26 to 4511.40, 4511.42 to 4511.48, 4511.58, 4511.59, 4511.62 to 4511.71, 4513.03 to 4513.13, 4513.15 to 4513.22, 4513.24 to 4513.34, 4549.01, 4549.08 to 4549.12, and 4549.62 of the Revised Code.

The enumerated Revised Code sections in this statute include the marked lane violation at issue in this case as well as speed limits and the use of turn signals, headlights, and brake lights.

{¶ 16} R.C. 4513.39(B), on the other hand, grants authority to certain township police officers to enforce traffic laws on state highways, stating:

A member of the police force of a township police district created under section 505.48 of the Revised Code or of a joint police district created under section 505.482 of the Revised Code, and a township constable appointed pursuant to section 509.01 of the Revised Code, who has received a certificate from the Ohio peace officer training commission under section 109.75 of the Revised Code, shall exercise the power to make arrests for violations of those sections listed in division (A) of this section, other than sections 4513.33 and 4513.34 of the Revised Code, as follows:

(1) If the population of the township that created the township or joint police district served by the member’s police force or the township that is served by the township constable is fifty thousand or less, the member or constable shall exercise that power on those portions of all state highways, except those highways included as part of the interstate system, as defined in section 5516.01 of the Revised Code, that are located within the township or joint police district, in the case of a member of a township or joint police district police force, or within the unincorporated territory of the township, in the case of a township constable;

(2) If the population of the township that created the township or joint police district served by the member’s police force or the township that is served by the township constable is greater than fifty thousand, the member or constable shall exercise that power on those portions of all state highways and highways included as part of the interstate highway system, as defined in section 5516.01 of the Revised Code, that are located within the township or joint police district, in the case of a member of a township or joint police district police force, or within the unincorporated territory of the township, in the case of a township constable.

{¶ 17} This statute thus precludes township police officers who are not commissioned peace officers from enforcing these traffic laws on any state highway, and commissioned peace officers serving a township with a population of 50,000 or less may not enforce these traffic laws on state highways included in the interstate highway system. And, as we explained in State v. Holbert, 38 Ohio St.2d 113, 116, 311 N.E.2d 22 (1974), because the statute precludes township officers from enforcing the listed traffic laws, those officers cannot stop a motorist or make an arrest alleging such a violation.

{¶ 18} We have previously held that an arrest made in violation of a statute limiting the police officer’s authority to make the arrest infringes on “[t]he right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures” as guaranteed by Article I, Section 14 of the Ohio Constitution.

{¶ 19} In State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, officers arrested Dali Jacques Brown, a suspected drug dealer, for jaywalking, a minor misdemeanor, and a search incident to the arrest revealed that Brown had crack cocaine. Id. at ¶ 1-3. The state indicted him for possession of a controlled substance. The trial court, however, suppressed the drug evidence because the officers lacked statutory authority to make an arrest for a minor misdemeanor pursuant to R.C. 2935.26, and therefore the search incident to the arrest was unreasonable for purposes of Article I, Section 14 of the Ohio Constitution. Id. at ¶ 3.

{¶ 20} The court of appeals affirmed the suppression of the evidence, and we accepted the state’s discretionary appeal to consider “whether an arrest for a minor misdemeanor violates the Fourth Amendment of the United States Constitution and Section 14, Article I of the Ohio Constitution” in light of the United States Supreme Court’s decision in Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Id. at ¶ 5-7. Atwater had held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a minor misdemeanor seat belt violation punishable only by a fine.

{¶ 21} We recognized that the warrantless arrest for a minor misdemeanor did not violate the Fourth Amendment, Brown at ¶ 20-21, but we determined that “Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors,” id. at ¶ 22. In reaching that conclusion, we reaffirmed the application of the balancing test set forth in State v. Jones, 88 Ohio St.3d 430, 727 N.E.2d 886 (2000), to ascertain whether a search or seizure is reasonable by weighing the competing interests involved and, considering the extent of the officer’s intrusion on an individual’s liberty and privacy against the need to promote legitimate governmental interests. Brown at ¶ 17-19, 22; Jones at 437.

{¶ 22} We concluded that “Brown was arrested for a minor misdemeanor offense when none of the R.C. 2935.26 exceptions were applicable, and thus, the arrest violated Section 14, Article I of the Ohio Constitution.” Brown, 99 Ohio St.3d 323, 2003-0hio-3931, 792 N.E.2d 175, at ¶25. Accordingly, we upheld the suppression of the evidence discovered. Id.

{¶ 23} Article I, Section 14 of the Ohio Constitution affords greater protection than the Fourth Amendment against searches and seizures conducted by members of law enforcement who lack authority to make an arrest. Therefore, a traffic stop for a minor misdemeanor offense made by a township police officer without statutory authority to do so violates Article I, Section 14 of the Ohio Constitution.

{¶ 24} The state’s reliance on State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, 902 N.E.2d 464 (“Jones II”), is misplaced. Jones II holds that a traffic stop made outside the officer’s statutory jurisdiction but founded on probable cause is not per se unreasonable for purposes of the Fourth Amendment. However, as we explained in Brown, decisions interpreting the United States Constitution do not control the analysis here, because “ ‘[t]he Ohio Constitution is a document of independent force,’ ” Brown at ¶ 21, quoting Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus, and “it is our charge to determine and not to disturb the clear protections provided by the drafters of our Constitution,” Arnold at 43.

{¶ 25} In this case, the state admits that Officer Clark violated R.C. 4513.39 by stopping Brown for a marked lane violation on Interstate 280. Thus, Clark acted outside her authority and exercised law-enforcement powers not expressly granted to a township officer by the General Assembly. The government’s interests in permitting an officer without statutory jurisdiction or authority to make a traffic stop for a minor misdemeanor offense in these circumstances is minimal and is outweighed by the intrusion upon the individual’s liberty and privacy that necessarily arises out of the stop. Accordingly, the traffic stop and the ensuing search and arrest in this case were unreasonable and violated Article I, Section 14 of the Ohio Constitution, and the evidence seized as a result should have been suppressed.

Conclusion

{¶ 26} A traffic stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or authority violates the guarantee against unreasonable searches and seizures established by Article I, Section 14 of the Ohio Constitution. Here, the appellate court correctly determined that the township police officer lacked authority to enforce a marked lane violation on an interstate highway and that the traffic stop and ensuing search of the vehicle were unreasonable, and it properly ordered suppression of the evidence obtained from that search.

{¶ 27} For the foregoing reasons, we affirm the judgment of the court of appeals.

Judgment affirmed.

O’Connor, C.J., and Pfeifer, Lanzinger, and O’Neill, JJ., concur. Kennedy and French, JJ., dissent.