594 N.E.2d 201
No. 91-CRB-376.Municipal Court, Coshocton County.
Decided December 5, 1991.
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Robert A. Skelton, Police Prosecutor, for the state.
Van Blanchard II, Assistant Public Defender, for the defendant.
DAVID L. HOSTETLER, Judge.
This matter comes before the court on defendant’s motion to dismiss. Evidence was heard on November 1, 1991, and both parties have submitted
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post-hearing briefs in support of their respective positions. The operative facts are essentially not in dispute.
On June 27, 1991, the Coshocton County Sheriff’s Department received a report of a break-in at a residence in the city of Coshocton. Deputy Rich Pica was dispatched to the scene. Upon arriving at the scene Deputy Pica was informed by one Misty White that the defendant — a former boyfriend of White — had broken into the residence occupied by her and her parents while they were asleep and without permission. She identified the defendant by name, informed the deputy that the defendant had just left, and provided the deputy with the address of an apartment where the defendant would likely be found. The deputy proceeded to the address provided by White and talked to the landlord. The landlord confirmed that he had recently seen the defendant enter the apartment. The deputy knocked on the door of defendant’s apartment. Receiving no response, the deputy, without obtaining a warrant, entered the apartment, found the defendant in bed fully clothed, and placed him under arrest for breaking into the White residence. It is alleged in the instant prosecution that the defendant forcefully resisted such arrest.
The matter was presented to the Coshocton County Grand Jury in July 1991. The grand jury indicted the defendant for resisting arrest in violation of R.C. 2921.33 and, pursuant to Crim.R. 21(A), the case was transferred to this court on July 23, 1991. The complaint alleges that the defendant, Robert S. Canode, “did recklessly or by force, resist or interfere with a lawful arrest of himself or another in violation of § 2921.33 of the Ohio Revised Code.”
Defendant seeks dismissal of the resisting arrest charge by pretrial motion to dismiss. Defendant alleges that his arrest i.e., seizure, was unlawful because the deputy failed to obtain a warrant before entering the defendant’s residence to place him under arrest and was therefore in violation of the Fourth Amendment to the United States Constitution, Payton v. New York
(1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 an Elyria v. Tress (1991), 73 Ohio App.3d 5, 595 N.E.2d 1031. He argues that since the seizure/arrest was unlawful, the state cannot establish an element of the offense of resisting arrest i.e., that the arrest was lawful as required by R.C. 2921.33, and that he is, therefore, entitled to dismissal.
The state argues that the arrest was lawful because the arresting officer had probable cause to believe a felony had been committed and was in compliance with R.C. 2935.04, which authorizes any person to arrest with probable cause on a felony, citing Columbus v. Lenear (1984), 16 Ohio App.3d 466, 16 OBR 548, 476 N.E.2d 1085, and State v. Miller (Dec. 21, 1990), Highland App. No. 734, unreported, 1990 WL 253061. The state argues that
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while any evidence found in defendant’s home would have been subject to suppression (as in Payton v. New York, supra), it was only the entry into the home that was illegal, not the arrest and that while defendant may have had a limited privilege to resist the entry into his home, once the entry was made he had no privilege to resist the arrest, Middleburg Hts. v. Theiss
(1985), 28 Ohio App.3d 1, 28 OBR 9, 501 N.E.2d 1226. It is argued that defendant’s “acts” in resisting arrest cannot be suppressed as to do so would give victims of illegal searches or seizure a license to assault and murder. Dayton v. Joy (July 2, 1990), Montgomery App. Nos. 11846 and 11847, unreported, 1990 WL 98379.
The parties have, in addition to the foregoing issues, briefed the foundational issues raised by the court as to the propriety of raising this issue by pretrial motion, which party bears the burden of proof, and which burden of proof should apply. On these issues the court concludes that since the lawfulness of an arrest is a mixed issue of law and fact which may be determined by the court, State v. Johnson (1982), 6 Ohio App.3d 56, 6 OBR 268, 453 N.E.2d 1101; Coffel v. Taylor
(S.D.E.D. 1978), 8 O.O.3d 253; 4 Ohio Jury Instructions (1990), Section 521.33(6), and since it is capable of determination without the trial of the general issue, it may be raised by pretrial motion pursuant to Crim.R. 12(B). The court further finds that so long as the defendant’s motion complies with Crim.R. 47 by stating the grounds for the motion with particularity, the state bears the burden of proof. Since the lawfulness of the arrest is an element of the offense of resisting arrest, the burden of proof is proof beyond a reasonable doubt. This ruling should not be construed as an announcement of the court’s willingness to generally try individual elements of an offense piecemeal; however, the court, in the interest of judicial economy, sees no reason to prohibit the defendant from questioning this particular element of the offense pursuant to Crim.R. 12(B) since the lawfulness of an arrest is somewhat uniquely a mixed issue of law and fact. A determination of whether the defendant has been placed in jeopardy by this pretrial litigation of an element of the offense may remain for another day.
In determining the merits of defendant’s motion the court will first summarize what is not in dispute. There is no question that when the officer entered the defendant’s residence he had probable cause to believe that the defendant had committed a felony and that the defendant was, in fact, inside his residence at the time of the officer’s entry. All of Ohio’s arrest statutes were complied with. The officer did not, however, have a warrant and the state does not argue the existence of exigent circumstances, e.g., that the immediate entry was reasonable to protect persons, property, or evidence, or was made in “hot pursuit.”
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It is clear from an examination of the cases cited by both parties that a conflict of authority exists concerning this issue. See Middleburg Hts. v. Theiss, supra, and Elyria v. Tress, supra.
This court agrees with the reasoning of Middleburg Hts. v. Theiss, supra, that a defendant has no privilege to resist an arrest made by a police officer after an unlawful entry into a defendant’s home (see Columbus v. Fraley [1975], 41 Ohio St.2d 173, 70 O.O.2d 335, 324 N.E.2d 735, which abrogated the common-law right to resist an unlawful arrest by a law enforcement officer) and that a defendant’s “acts” in resisting arrest may not be suppressed pursuant to the exclusionary rule Dayton v. Joy, supra; Coshocton v. McCormick (Aug. 28, 1991), Coshocton Municipal Court No. 91-CRB-362, unreported. While all of the authorities cited by the state in this area are valid and well reasoned, the fact remains, however, that none of these courts, especially this one, has the authority to amend the clear language of R.C. 2921.33 which, unlike other statutes which may prohibit similar activities, continues to make the lawfulness of the arrest an element of the offense of resisting arrest. State v. Johnson (1982), 6 Ohio App.3d 56, 6 OBR 268, 453 N.E.2d 1101. In construing the meaning of the phrase “lawful arrest” the court must be cognizant that R.C. 2901.04(A) requires that all sections of the Ohio Revised Code defining offenses be strictly construed against the state and liberally construed in favor of the accused. Payton v. New York, supra, states the following:
“In terms that apply equally to seizures of property and t seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (Emphasis added.) Id., 445 U.S. at 590, 100 S.Ct. at 1382.
This court must conclude as a matter of law that the state cannot prove the lawfulness of defendant’s arrest beyond a reasonable doubt as required by R.C. 2921.33. Defendant’s motion to dismiss is accordingly granted; any bond posted by defendant is ordered released.
Judgment accordingly.
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