dissenting.
{¶ 26} I respectfully dissent. I do not think it necessary to reach the constitutional issue decided by the majority. The state argues that the arrest in this case was merely a statutory violation and not a constitutional violation, and thus the exclusionary rule does not apply and the evidence seized in the search incident to the unlawful arrest should not be suppressed. The majority rejects that argument, holding that an arrest for a minor misdemeanor that violates R.C. 2935.26 also violates the Ohio Constitution, thereby bringing the exclusionary rule into play. The majority’s position is untenable. R.C. 2935.26 creates only a statutory right not to be arrested for a minor misdemeanor. This statutory right may be revoked at any time by the Ohio General Assembly’s repealing the statute. Certainly the majority would not support the proposition that the General Assembly can revoke a constitutionally granted right. Indeed, the majority’s opinion should serve as a cue to the General Assembly to repeal this statute in order to bring Ohio laws in line with the United States and Ohio Constitutions.
{¶ 27} This court has previously held that “[ajbsent a violation of a constitutional right, the violation of a statute does not invoke the exclusionary rule.” State v. Droste (1998), 83 Ohio St.3d 36, 697 N.E.2d 620, syllabus. A violation of R.C. 2935.26 simply does not rise to the level of a constitutional violation. Consequently, the exclusionary rule should not be applied.
{¶ 28} The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution are virtually identical.1 Any difference in the protections afforded by them is due strictly to judicial interpretation. The United States Supreme Court, in Atwater v. Lago Vista (2001), 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549, held that an arrest does not violate the Fourth Amendment to the United States Constitution if the “officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence.” (Emphasis added.) The United States Supreme Court’s decision is not unreasonable, does not infringe upon the rights of citizens, and *329does not result in anything greater than processing and releasing for further court proceedings those who in fact have not committed a more serious offense. Atwater provides a useful instrument for law enforcement officers to use in their discretion in carrying out their duties to protect the citizens of Ohio.
{¶ 29} The majority, however, has taken that tool away from law enforcement by interpreting the Ohio Constitution to prevent officers from exercising the same discretion permitted by the United States Constitution, despite the nearly indistinguishable constitutional provisions. The issue before us is one of law enforcement’s discretion in exercising its power to arrest individuals under extenuating circumstances. The undisputed underlying facts of the case illustrate a situation where the officer, based on personal observation and the totality of the circumstances, had reason to believe that an offense greater than the minor misdemeanor of jaywalking was being committed.2 The United States Constitution, as interpreted by Atwater, clearly permits such an arrest. It is illogical to suggest that the nearly identical Ohio constitutional provision wduld prohibit it.
{¶ 30} The Montana Supreme Court’s opinion cited by the majority held that an arrest should not be made “[i]n the absence of special circumstances such as a concern for the safety of the offender or the public.” State v. Bauer (2001), 307 Mont. 105, 36 P.3d 892, ¶ 33. Those special circumstances contemplated by the Montana court existed here and may exist in countless other situations faced by law enforcement officers. Such circumstances should be considered and the discretion of law enforcement officers respected. Finding a prohibition against arresting for a minor misdemeanor in the Ohio Constitution strips Ohio law enforcement officers of a necessary power.
{¶ 31} The majority opinion, quoting State v. Jones (2000), 88 Ohio St.3d 430, 440, 727 N.E.2d 886, states that “ ‘effective law enforcement is not impaired by refusing to allow officers to arrest individuals for minor misdemeanor offenses when none of the exceptions set forth in R.C. 2935.26 applies.’ ” In reaching its decision, the majority has, in effect, established policy for law enforcement and public safety, contrary to its constitutional authority.
{¶ 32} Therefore, I respectfully dissent.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion. Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Andrew T. French, Assistant Prosecuting Attorney, for appellant. Arvin S. Miller, Montgomery County Assistant Public Defender, for appellee. Jim Petro, Attorney General, David M. Gormley and Kristina L. Erlewine, Assistant Attorneys General, urging reversal for amicus curiae Ohio Attorney General.. {¶ a} The Fourth Amendment to the United States Constitution provides, “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.”
{¶ b} Section 14, Article I of the Ohio Constitution provides, “The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.”
. R.C. 2935.26 permits arrest if the offender has previously been issued a citation and failed to either appear at the time and place required in the citation or sign a guilty plea and pay the requisite fine. Because Brown attempted to run from the officers, it would have been impossible for them to make a satisfactory identification, much less determine any previous failure to appear or pay the fine.