[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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State v. Hipsher
Combined Opinion