State v. Hipsher

[Cite as State v. Hipsher, 2023-Ohio-3750.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-04-033

: OPINION
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:

JACOB KEITH HIPSHER, :

Appellant. :

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, for appellant.

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
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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

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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

{¶ 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, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 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 No. CA2017-01-008, 2017-Ohio-8793, ¶ 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, ¶ 12, quoting Burnside.

A. Warrantless Arrests – Statutory Authority

{¶ 9} Appellant argues that his warrantless arrest was illegal and violative of R.C.

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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. As a result, appellant argues, the trial court should have suppressed the fentanyl

found on his person under the Fourth Amendment's exclusionary rule.

{¶ 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, ¶ 48.

{¶ 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, ¶ 24, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507 (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 (1969). In order for a search to be

conducted pursuant to this exception, the arrest must be lawful. Id.

{¶ 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

1. R.C. 2935.03(A)(1) provides in pertinent part that a law enforcement officer "shall arrest and detain, until
a warrant can be obtained, a person found violating, within the limits of the political subdivision in which the
officer is appointed, employed, or elected, a law of this state, an ordinance of a municipal corporation, or a
resolution of a township."
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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, 550 Ohio St. 179 (1893) (interpreting

R.S. 7129, the precursor statute to R.C. 2935.03[A][1]); State v. Henderson, 51 Ohio St.3d

54 (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, ¶ 37 (Stewart, J., dissenting), citing Ballard v. State, 43 Ohio

St. 340 (1885); Houck v. State, 106 Ohio St. 195 (1922); and Porello v. State, 121 Ohio St.

280 (1929).

{¶ 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 Martin, 12th Dist. Madison No. CA2004-

07-026, 2005-Ohio-3511; State v. O'Neill, 3d Dist. Allen No. 1-14-21, 2015-Ohio-815. We

2. R.C. 2935.03(B)(1) provides in pertinent part that "[w]hen there is reasonable ground to believe that a theft
offense as defined in [R.C.] 2913.01 has been committed within the limits of the political subdivision in which
the officer is appointed, employed, or elected, the officer may arrest and detain until a warrant can be obtained
any person who the officer has reasonable cause to believe is guilty of the violation."
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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.

{¶ 16} "[S]tatutory authority to make an arrest does not mean that the arrest passes

constitutional scrutiny." Jordan, 2021-Ohio-3922 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 (1980); United States v. Watson,

423 U.S. 411, 428, 96 S.Ct. 820 (1976). "The Fourth Amendment's prohibition against

unreasonable arrests 'sets a national floor' of minimum protection. Ohio's legislature 'may

* * * establish protections [above] that floor,' but it may not delve beneath it. '[S]tate

restrictions do not,' and cannot, 'alter the Fourth Amendment's protections.'" Beckham v.

Euclid, 689 F.Appx 409, 414 (6th Cir.2017), citing Graves v. Mahoning Cty., 821 F.3d 772,

778 (6th Cir.2016); and Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598 (2008). We

must therefore determine whether appellant's arrest, although in accordance with R.C.

2935.03(B)(1), implicates any Fourth Amendment rights.

{¶ 17} Conversely, the Ohio Supreme Court has consistently held that the

exclusionary rule does not apply to statutory violations falling short of constitutional

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violations, absent a legislative mandate requiring the application of the exclusionary rule.

Kettering v. Hollen, 64 Ohio St.2d 232, 234 (1980); State v. Myers, 26 Ohio St.2d 190

(1971); State v. Campbell, 170 Ohio St.3d 278, 2022-Ohio-3626. A plain reading of R.C.

2935.03(A)(1) reveals no such legislative mandate to impose an exclusionary remedy for a

violation of the statute. State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, ¶ 21. Thus,

because a violation of state law warrants application of the exclusionary rule only when the

violation contemporaneously rises to a Fourth Amendment violation, we must determine

whether appellant's arrest made in violation of R.C. 2935.03(A)(1) implicates any Fourth

Amendment rights.

{¶ 18} In other words, we must determine whether a warrantless misdemeanor arrest

based upon probable cause under R.C. 2935.03(B)(1) but violative of R.C. 2935.03(A)(1),

a state statute, rises to the level of a constitutional violation under the Fourth Amendment

requiring suppression of the evidence under the exclusionary rule.3

1. Probable Cause to Arrest

{¶ 19} We first determine whether appellant's warrantless misdemeanor arrest was

supported by probable cause under the Fourth Amendment.

{¶ 20} A warrantless arrest is constitutionally invalid unless the arresting officer has

probable cause to make the arrest at that time. State v. Timson, 38 Ohio St.2d 122, 127

(1974); State v. Thomas, 2d Dist. Montgomery No. 21430, 2006-Ohio-6612, ¶ 8. For a

warrantless arrest to be lawful, the arresting officer must have probable cause that the

3. Appellant did not argue below or in his brief that his warrantless arrest violated Article I, Section 14 of the
Ohio Constitution. We therefore do not address that provision's application under the facts of this case. See
State v. Campbell, 170 Ohio St.3d 278, 2022-Ohio-3626, ¶ 9, fn. 1. We also note that the Ohio Supreme
Court has extended the protections of Article I, Section 14 of the Ohio Constitution beyond the protections of
the Fourth Amendment in cases where police have stopped or arrested an individual for a minor misdemeanor
without a warrant. See State v. Jones, 88 Ohio St.3d 430, 2000-Ohio-374; State v. Brown, 99 Ohio St.3d 323,
2003-Ohio-3931; State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438. The case at bar does not involve a
minor misdemeanor.
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individual had committed an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223 (1964).

Probable cause is not subjective. Willis, 2013-Ohio-2391 at ¶ 25. Rather, probable cause

is viewed under an objective standard and is present where, under the facts and

circumstances within an officer's knowledge, a reasonably prudent person would believe

that the arrestee has committed a crime. Id. Stated differently, "[w]hen a warrantless arrest

is challenged on constitutional grounds, the court must determine whether the facts known

to the officers at the time of the arrest would 'warrant a man of reasonable caution in the

belief' that an offense has been committed." Jordan, 2021-Ohio-3922 at ¶ 19, quoting Beck

at 96. In making this determination, we examine the totality of the facts and circumstances.

State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816, ¶ 16, citing

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317 (1982). An arrest that is based on

probable cause is a reasonable intrusion under the Fourth Amendment whereas an arrest

that is not supported by probable cause constitutes an unreasonable seizure. Jordan at ¶

19, citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467 (1973); and Beck at

90-91.

{¶ 21} The surrounding facts and circumstances provided Officer Rosell with

probable cause to arrest appellant without a warrant for the Speedway theft. Specifically,

Officer Rosell personally viewed the surveillance video depicting a person stealing items

from the Speedway, and identified appellant as the thief based upon a comparison of

appellant's recent LEADS and Facebook photographs with the surveillance video, a witness

identification, and the officer's own recognition of appellant from prior contacts. These

circumstances provided Officer Rosell with probable cause to arrest appellant. See State

v. Mesa, 87 Ohio St.3d 105, 1999-Ohio-253; State v. Smith, 8th Dist. Cuyahoga No. 92561,

2009-Ohio-5010.

2. The "In the Presence" Requirement and the Fourth Amendment

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{¶ 22} We next determine whether appellant's warrantless misdemeanor arrest

violated the Fourth Amendment because the offense was not committed in the presence of

Officer Rosell. Stated differently, does the Fourth Amendment mandate that warrantless

misdemeanor arrests be limited only to those offenses committed "in the arresting officer's

presence"?

{¶ 23} In Oregon v. Szakovits, 32 Ohio St.2d 271 (1972), a police officer appeared

on the scene shortly after an automobile accident; there, he found a person appearing to

be under the influence of alcohol and who admitted to driving the involved vehicle. The

officer made a warrantless arrest of the driver for misdemeanor OVI and later administered

a breathalyzer test to the driver. The driver moved to suppress the results of the

breathalyzer test. The supreme court defined the issue before it as "whether a warrantless

arrest for operating a motor vehicle while under the influence of alcohol is illegal, if the

operation of the vehicle is not actually viewed by the arresting officer." Id. at 272-273. The

supreme court found the arrest valid. Citing Schmerber v. California, 384 U.S. 757, 86 S.Ct.

1826 (1966), the supreme court noted that the blood-alcohol content evidence was an

appropriate incident to the arrest and affirmed the trial court's denial of the driver's motion

to suppress. By finding the arrest legal and declining to apply the exclusionary rule to the

results of the breathalyzer test, the supreme court implicitly recognized that the Fourth

Amendment does not require an arresting officer to witness the commission of an offense

to justify a warrantless misdemeanor arrest based on probable cause.

{¶ 24} In Henderson, the supreme court generally observed that "an officer may not

make a warrantless arrest for a misdemeanor unless the offense is committed in the officer's

presence." Henderson, 51 Ohio St.3d at 56. Nonetheless, the supreme court found that a

warrantless arrest for a misdemeanor offense that was not committed in the arresting

officer's presence complied with the Fourth Amendment where the arresting officer relied

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upon information supplied by another officer who did observe the offense being committed.

The supreme court went on to hold that because the arrest was legal, the results of the

breathalyzer test and field sobriety tests were not fruit of the poisonous tree and were not

subject to exclusion. As was the case in Szakovits, this holding implicitly recognizes that

the "in the presence" requirement is not constitutionally mandated.

{¶ 25} A review of federal cases also indicates that the "in the presence" requirement

is not mandated by the Fourth Amendment.

{¶ 26} In 2001, the United States Supreme Court considered whether a warrantless

full-custodial arrest for a seatbelt violation, punishable only by a fine, comported with the

Fourth Amendment. Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536 (2001). The

Supreme Court held that an officer may arrest an individual without violating the Fourth

Amendment if there is probable cause to believe that the offender has committed even a

very minor criminal offense in the officer's presence. Id. at 354. Significantly, the Atwater

court acknowledged that it "has not had much to say about warrantless misdemeanor arrest

authority" and that the instant case did not call upon the court to "speculate whether the

Fourth Amendment entails an 'in the presence' requirement for purposes of misdemeanor

arrests." Id. at 340 and at fn. 11.

{¶ 27} Acknowledging that the "in the presence" requirement for warrantless

misdemeanor arrests is "an open question" at the Supreme Court, the United States Court

of Appeals for the Sixth Circuit has held, "it's not an open question at our court. The

'requirement that a misdemeanor must have occurred in the officer's presence to justify a

warrantless arrest,' we have explained, 'is not mandated by the Fourth Amendment.'"

Graves, 821 F.3d at 778, citing United States v. Smith, 73 F.3d 1414, 1416 (6th Cir.1996).

See also Street v. Surdyka, 492 F.2d 368, 372 (4th Cir.1974) ("We do not think the [F]ourth

[A]mendment should now be interpreted to prohibit warrantless arrests for misdemeanors

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committed outside an officer's presence"); Fields v. South Houston, 922 F.2d 1183, 1189

(5th Cir. 1991) ("The United States Constitution does not require a warrant for

misdemeanors not occurring in the presence of the arresting officer"); Barry v. Fowler, 902

F.2d 770, 772 (9th Cir. 1990) ("The requirement that a misdemeanor must have occurred

in the officer's presence to justify a warrantless arrest is not grounded in the Fourth

Amendment").

{¶ 28} As illustrated above, the United States Supreme Court has not addressed

whether the "in the presence" requirement for warrantless misdemeanor arrests is

mandated by the Fourth Amendment. By contrast, the Fourth, Fifth, Sixth, and Ninth Circuit

Courts of Appeals have held that the "in the presence" requirement is a vestige of common

law and not mandated by the Fourth Amendment.

{¶ 29} The Ohio Supreme Court has never explicitly addressed the issue of whether

the common law "in the presence" requirement is mandated by the Fourth Amendment or

Article I, Section 14 of the Ohio Constitution. However, as detailed above, the supreme

court upheld warrantless arrests for misdemeanors that were not committed in the presence

of the arresting officers in Szakovits and Henderson. Specifically, in both cases, the

supreme court held that the warrantless arrests were legal and that the evidence developed

pursuant to the arrests was not subject to suppression. Both cases implicated the Fourth

Amendment protection against unreasonable searches and seizures. These holdings

plainly suggest that the supreme court does not consider the "in the presence" requirement

to be mandated by the Fourth Amendment. Otherwise, the supreme court could not have

excepted a protection guaranteed by the United States Constitution.

{¶ 30} It is apparent that Ohio courts, while perhaps not so stating, do not consider

the "in the presence" requirement to be of constitutional dimension and uphold warrantless

misdemeanor arrests for offenses that are not committed in the arresting officer's presence

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if there is probable cause. We hold that the Fourth Amendment does not entail an "in the

presence" requirement for purposes of warrantless misdemeanor arrests. Accordingly,

appellant's warrantless arrest for a misdemeanor offense, based upon probable cause, but

not committed in Officer Rosell's presence, does not violate the Fourth Amendment.

III. CONCLUSION

{¶ 31} Because appellant's warrantless misdemeanor arrest for an offense not

committed in the arresting officer's presence did not violate the Fourth Amendment, the

exclusionary rule associated with the Fourth Amendment does not apply. The only violation

in this case was a statutory one, specifically R.C. 2935.03(A)(1). But as the United States

Supreme Court explained in Moore, "it is not the province of the Fourth Amendment to

enforce state law. That Amendment does not require the exclusion of evidence obtained

from a constitutionally permissible arrest." Moore, 553 U.S. at 178; Campbell, 2022-Ohio-

3626 at ¶ 21. Because appellant's warrantless misdemeanor arrest involved a statutory

violation only, there was no basis to exclude the evidence obtained as a result of the search

incident to the arrest.

{¶ 32} The trial court, therefore, did not err in denying appellant's motion to suppress

the fentanyl found in his possession. Appellant's assignment of error is overruled.

{¶ 33} Judgment affirmed.

S. POWELL, P.J., and BYRNE, J., concur.

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