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concluding that " warrantless entry, as in this case, may quite possibly result in the exclusion of pertinent incriminating evidence observed in such entry, and the showing of unreasonable conduct by a law enforcement officer may well provide a privilege to resist the entry by the occupant"
Summary of this case from Starrett v. City of LanderOpinion
No. 82-1757
Decided February 8, 1984.
Criminal law — Search and seizure — Occupant of business premises cannot obstruct officer in discharge of his duty, when — Deputies serving bench warrants or capiases — R.C. 2921.31(A).
O.Jur 3d Criminal Law §§ 2138, 2140.
Absent bad faith on the part of a law enforcement officer, an occupant of business premises cannot obstruct the officer in the discharge of his duty, whether or not the officer's actions are lawful under the circumstances. ( Columbus v. Fraley, 41 Ohio St.2d 173 [70 O.O.2d 335], followed.)
APPEAL from the Court of Appeals for Hamilton County.
On May 19, 1977, two Hamilton County sheriff's deputies attempted to serve bench warrants, or capiases, upon two employees of the Rockdale Medical Center. The bench warrants were issued after a hearing in open court. The capiases stated that both parties had been lawfully served with subpoenas to appear before the grand jury, and that each of them had failed to appear. There has been no issue raised to this court as to the validity of the capiases.
The Rockdale Medical Center is a medical clinic operated by defendant, Bertold J. Pembaur, M.D., and is open to the public. The deputies arrived at the medical center during business hours, and the two employees whom they sought were apparently at the center. The officers entered by the front door and went into a general reception room which was also open to the public. After entering the outer office, one deputy sat down in the reception area and the other approached the receptionist, who was in a separate office but visible through a window. The deputy identified himself to the receptionist and stated his business.
The receptionist informed the deputies that they were not permitted to enter the inner office area in order to serve the capiases, and that they should wait for the defendant. Shortly thereafter defendant appeared from somewhere inside the clinic and, with the aid of the receptionist, closed and barred the door leading from the reception area to the inner office. The deputies showed the capiases to defendant and explained their contents. Defendant told the deputies that the papers were illegal and that the judge made a mistake in signing them. Defendant stated that he was going to call the police, as well as his attorney.
Two Cincinnati police officers arrived within several minutes. They tried to explain the nature of the capiases to defendant and his duty to obey them. Defendant continued to contend that the capiases were illegal and asked the officers to wait until his attorney arrived. After several other police officers were on the scene and the group had waited approximately two hours, the deputies broke through the office door with an axe. Once inside, they were unable to locate either of the individuals named in the bench warrants.
Defendant was charged, along with two other employees, with obstructing official business, pursuant to R.C. 2921.31(A). This charge, count six of the indictment, was severed from the five other charges against defendant. The case was tried to a jury, which returned a verdict of guilty.
The court of appeals reversed defendant's conviction, but this court vacated that decision and ordered a rehearing. See State v. Pembaur (1982), 69 Ohio St.2d 110 [23 O.O.3d 159]. The court of appeals issued a second decision, again reversing defendant's conviction.
The court of appeals held that defendant was privileged, under R.C. 2921.31(A), to exclude the deputies from his office, as he was protected against unreasonable searches and seizures by the Fourth Amendment to the United States Constitution. That court noted that an arrest warrant does not give an officer authority to enter the home of a third party, absent consent or exigent circumstances, in order to find the subject of the warrant. Steagald v. United States (1981), 451 U.S. 204. The court reasoned that a private office was no different for search warrant purposes than a private home, citing Mancusi v. DeForte (1968), 392 U.S. 364. The court concluded that defendant was privileged to exclude the deputies from his office unless and until they obtained a search warrant. That court also found error in the instruction concerning privilege which had been given to the jury.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Simon L. Leis, Jr., prosecuting attorney, Mr. William E. Breyer, Mr. Leonard Kirschner and Mr. Bruce S. Garry, for appellant.
Messerman Messerman Co., L.P.A., and Mr. Gerald A. Messerman, for appellee.
The key issue presented in this case is whether a person may obstruct a law enforcement officer in the discharge of that officer's duty, when the person believes that the officer's conduct is unlawful. The state contends that this court should hold that a capias or an arrest warrant includes the authority to enter the business premises of a third party when the officer reasonably believes the subject named in the warrant will be found therein. Notwithstanding, it is not necessary to determine the authority conferred by a capias in this appeal, nor to announce the broad rule of law urged by the state.
It is noteworthy that the rationale of the United States Supreme Court in Steagald, supra, is equally persuasive concerning the contrast of a private business premises to a private home. Steagald addressed the rights of a third party, not named in the arrest warrant, to be free from an unreasonable search and seizure in his home, and held that this right is not accorded adequate protection by the issuance of an arrest warrant for the person named in the warrant. Hence, Steagald represents the proposition that, absent consent or exigent circumstances, a search warrant must be obtained in order to seek out the subject of an arrest warrant on the property of a third party.
Nonetheless, this appeal does not involve a conviction based upon the fruits of a warrantless search, such that the legality of the search must be analyzed. Instead, the conviction in question is based upon the conduct of defendant prior to any such search. Therefore, Steagald is not controlling in this case.
Defendant was convicted under R.C. 2921.31(A), which reads as follows:
"No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within his official capacity, shall do any act which hampers or impedes a public official in the performance of his lawful duties."
Unquestionably, defendant impeded the deputies in their attempt to execute the capiases. The question, as the court of appeals correctly determined, was whether defendant was privileged to do so.
The crux of this case is the applicability of Columbus v. Fraley (1975), 41 Ohio St.2d 173 [70 O.O.2d 335]. There we held in the third paragraph of the syllabus that:
"In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances."
In altering the common-law rule granting a person the right to resist an unlawful arrest, the Fraley court deemed it preferable, considering the crunch of modern society, to resolve questions concerning the legality of police conduct in the courts though peaceful means rather than on the street in potentially violent confrontation. Fraley is determinative in the present case. Although defendant may well successfully challenge the use against him of any evidence obtained by the deputies in their search for defendant's employees, defendant was not privileged to physically impede the deputies in their attempt to locate the subjects of the capiases.
This, of course, is not to hold that law enforcement officials can freely execute capiases and arrest warrants on third-party premises. A warrantless entry, as in this case, may quite possibly result in the exclusion of pertinent incriminating evidence observed in such entry, and the showing of unreasonable conduct by a law enforcement officer may well provide a privilege to resist the entry by the occupant. Nevertheless, absent bad faith on the part of a law enforcement officer, an occupant of business premises cannot obstruct the officer in the discharge of his duty, whether or not the officer's actions are lawful under the circumstances. The facts in this case do not show bad faith on the part of the deputies, or any other circumstances which would provide a privilege on the part of defendant to obstruct the deputies in the discharge of their duties.
While the court of appeals also held that the trial court's instruction on privilege was inadequate and improper, a review of the charge, considering the issue presented by this case, shows that such charge was not erroneous. The term "privilege" is defined by R.C. 2901.01(L), and the instruction which was given quoted the statutory definition. Such instruction was sufficient to allow the jury to determine whether defendant was privileged to act under R.C. 2921.31(A). This is so because Fraley stated that the legality of the police action, absent excessive force, is not a factor to consider when determining whether a privilege to resist exists.
For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., SWEENEY, HOLMES and C. BROWN, JJ., concur.
LOCHER, J., concurs in judgment only.
W. BROWN, J., dissents.
REILLY, J., of the Tenth Appellate District, sitting for J.P. CELEBREZZE, J.