State v. Hipsher

226 N.E.3d 533

2023-Ohio-3750

STATE of Ohio, Appellee,

v.Jacob Keith HIPSHER, Appellant.

CASE NO. CA2023-04-033

Court of Appeals of Ohio, Twelfth District, Warren County.

October 16, 2023

CRIMINAL APPEAL WARREN COUNTY COURT OF COMMON PLEAS, Case No. 22CR39841.

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Johnna M. Shia, Springboro, for appellant.

OPINION

M. POWELL, J.

{¶ 1} Appellant, Jacob Hipsher, appeals a decision of the Warren County Court of Common Pleas denying his motion to suppress evidence obtained during a search incident to his arrest.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On Friday, October 7, 2022, Franklin Police Officer Gerrett Rosell responded to a Speedway in Franklin, Ohio on a complaint of theft. Officer Rosell interviewed witnesses and viewed surveillance video. The surveillance video depicted a male individual pocket snacks, a drink, and other small items and exit the Speedway without paying. Officer Rosell recognized the individual in the surveillance video as appellant, with whom he had had contact in the past. One of the interviewed witnesses likewise identified the theft suspect as appellant. Officer Rosell then compared a recent LEADS photograph of appellant and photographs on appellant’s Facebook page with the male theft suspect depicted by the surveillance video. Based upon this comparison, the officer further confirmed appellant as the suspect. The officer searched the area for appellant but was unable to locate him at that time.

{¶ 3} On Saturday, October 8, 2022, Officer Rosell prepared the paperwork for a misdemeanor theft complaint against appellant and an arrest warrant and deposited it in the Franklin Municipal Court dropbox. The municipal court was closed for the weekend.

{¶ 4} On Sunday, October 9, 2022, Officer Rosell responded to a report of two individuals chasing a man along South River Street in Franklin, Ohio. Upon responding, Officer Rosell recognized the man being chased as appellant, the theft suspect depicted in the Speedway surveillance video. Consequently, Officer Rosell arrested appellant for the October 7, 2022 Speedway theft. In searching appellant incident to his arrest, the officer found fentanyl-related substances on appellant’s person. At the time Officer Rosell arrested appellant, the Franklin Municipal Court had not yet issued the warrant for appellant’s arrest. The arrest warrant for appellant was not issued until Monday, October 10, 2022.

{¶ 5} Appellant was indicted in December 2022 on one count of possession of a fentanyl-related compound, a fifth-degree felony. Appellant moved to suppress the fentanyl he possessed at the time of his October 9, 2022 arrest, arguing that the arrest was an illegal warrantless misdemeanor arrest in violation of R.C. 2935.03(A)(1). The trial court conducted a hearing on the motion to suppress. On February 17, 2023, the trial court denied appellant’s motion. The trial court found that Officer Rosell had authority to arrest appellant without a warrant under R.C. 2935.03(A)(1), and therefore the search incident to the arrest was constitutional, because the officer had probable cause to arrest appellant for theft: "Stated another way, Officer Rosell was able to form a reasonable belief, based on his investigation, and upon circumstances perceived by his own sense, that a misdemeanor was committed." Appellant subsequently entered a no contest plea to the indictment and was convicted and sentenced to ten months in prison.

{¶ 6} Appellant now appeals, raising one assignment of error:

{¶ 7} THE TRIAL COURT ERRED WHEN IT DENIED HIPSHER’S MOTION TO SUPPRESS.

II. ANALYSIS

[1–3] {¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, 2012 WL 4862665, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Hensgen, 12th Dist. Clermont, 2017-Ohio-8793, 101 N.E.3d 76, ¶ 16. In turn, this court is bound to accept the trial court’s findings of fact if they are supported by competent, credible evidence. Id. "‘Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.’" State v. Runyon, 12th Dist. Clermont No. CA2010-05-032, 2011-Ohio-263, 2011 WL 287801, ¶ 12, quoting Burnside.

A. Warrantless Arrests – Statutory Authority

{¶ 9} Appellant argues that his warrantless arrest was illegal and violative of R.C. 2935.03(A)(1) because Officer Rosell neither observed the commission of the theft nor witnessed any circumstances of the theft offense, such as observing appellant with the stolen property or appellant ad- mitting he had committed the offense, at the time of the arrest. As a result, appellant argues, the trial court should have suppressed the fentanyl found on his person under the Fourth Amendment’s exclusionary rule.

[4] {¶ 10} The Fourth Amendment to the United States Constitution guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Accord Ohio Constitution, Article I, Section 14. Generally, evidence obtained as a result of an unconstitutional search or seizure will be excluded under the exclusionary rule. State v. Adkins, 12th Dist. Butler Nos. CA2014-02-036 and CA2014-06-141, 2015-Ohio-1698, 2015 WL 2058975, ¶ 48.

[5–7] {¶ 11} Warrantless searches are per se unreasonable subject to "a few specifically established and well-delineated exceptions." State v. Willis, 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, 2013 WL 2636048, ¶ 24, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "One such exception is a search incident to a lawful arrest." Willis, citing Chimel v. California, 395 U.S. 752, 89 S.Ct 2034, 23 L.Ed.2d 685 (1969). In order for a search to be conducted pursuant to this exception, the arrest must be lawful. Id.

[8] {¶ 12} R.C. 2935.03 cloaks law enforcement officers with authority to conduct warrantless arrests in certain situations. Under R.C. 2935.03(A)(1), a law enforcement officer is authorized to arrest without a warrant "a person found violating" a law within the officer’s jurisdiction.¹ The Ohio Supreme Court has interpreted the phrase "found violating" to mean that law enforcement officers are authorized to make a warrantless arrest for a misdemeanor when they view the commission of the offense, i.e., the offense is committed in the arresting officer’s presence. See State v. Lewis, 50 Ohio St. 179, 33 N.E. 405 (1893) (interpreting R.S. 7129, the precursor statute to R.C. 2935.03[A][1]); State v. Henderson, 51 Ohio St.3d 54, 554 N.E.2d 104 (1990). The supreme court has also interpreted R.S. 7129 as authorizing law enforcement officers to execute a warrantless arrest when the officer may not have viewed the commission of a crime but nevertheless has probable cause to believe the person subject to arrest is presently in the act of committing a crime. State v. Jordan, 166 Ohio St.3d 339, 2021-Ohio-3922, 185 N.E.3d 1051, ¶ 37 (Stewart, J., dissenting), citing Ballard v. State, 43 Ohio St. 340, 1 N.E. 76 (1885); Houck v. State, 106 Ohio St. 195, 140 N.E. 112 (1922); and Porello v. State, 121 Ohio St. 280, 168 N.E. 135 (1929).

[9, 10] {¶ 13} The state directs our attention to R.C. 2935.03(B)(1), which limits an officer’s warrantless-arrest authority to situations where the officer has "reasonable ground to believe" that an offense has been committed within the officer’s jurisdiction—that is, the commission of the offense has already occurred—and "reasonable cause to believe" that the person subject to arrest is guilty of committing the offense—that is, information that may not have resulted from the officer directly observing the crime but is nonetheless sufficient and reliable information giving rise to the belief that the person to be arrested is the offender. Jordan at ¶ 38.² In such instances, a police officer still may arrest without a warrant but only if the offense is one of eight specific offenses, including a theft offense as defined in R.C. 2913.01. Id. R.C. 2935.03(B) is a well-recognized exception to the "in the presence" requirement in misdemeanor offenses. See State v. Martin, 12th Dist. Madison No. CA2004-07-026, 2005-Ohio-3511, 2005 WL 1606420; State v. O’Neill, 3d Dist. Allen, 2015-Ohio-815, 29 N.E.3d 365. We find that appellant’s warrantless arrest violated R.C. 2935.03(A)(1) because Officer Rosell neither observed the commission of the theft nor witnessed any circumstances of the theft offense, such as observing appellant with the stolen property or appellant admitting he had committed the offense, at the time of the arrest.

{¶ 14} However, we also find that appellant’s warrantless arrest was lawful under R.C. 2935.03(B)(1) because, as discussed below, Officer Rosell had probable cause to arrest appellant for the Speedway theft.

B. Statutory Compliance and the Fourth Amendment

{¶ 15} That appellant’s warrantless misdemeanor arrest violated R.C. 2935.03(A)(1) and complied with R.C. 2935.03(B)(1) does not end our inquiry regarding whether the exclusionary rule applies here.

[11–14] {¶ 16} "[S]tatutory authority to make an arrest does not mean that the arrest passes constitutional scrutiny." Jordan, 166 Ohio St.3d 339, 2021-Ohio-3922, 185 N.E.3d 1051 at ¶ 17. "An arrest is ‘quintessentially a seizure’ that is subject to the Fourth Amendment and must be reasonable." Id. at ¶ 18; Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Watson, 423...