State v. Henderson5/9/1990
H. BROWN, J.
The court below reversed appellee's conviction and entered a judgment of acquittal on the ground that Deputy White's arrest of appellee was illegal. For the reasons which follow, we find that the arrest was legal and reverse the judgment of the appellate court.
As a preliminary matter, we notsthat an illegal arrest does not invalidate a subsequent conviction which is otherwise proper. Gerstein v. Pugh (1975), 420 U.S. 103, 119; Frisbie v. Collins (1952), 342 U.S. 519; Ker v. Illinois (1886), 119 U.S. 436; Sopko v. Maxwell (1965), 3 Ohio St.2d 123, 32 O.O. 2d 99, 209 N.E. 2d 201; Caldwell v. Haskins (1964), 176 Ohio St. 261, 27 O.O. 2d 160, 199 N.E. 2d 116; Henderson v. Maxwell (1964), 176 Ohio St. 187, 27 O.O. 2d 59, 198 N.E. 2d 456; Wells v. Maxwell (1963), 174 Ohio St. 198, 22 O.O. 2d 147, 188 N.E. 2d 160; Brown v. Maxwell (1962), 174 Ohio St. 29, 21 O.O. 2d 285, 186 N.E. 2d 612; Westlake v. Vilfroy (1983), 11 Ohio App.3d 26, 11 OBR 39, 462 N.E. 2d 1241. However, evidence obtained as a result of an illegal arrest is inadmissible at trial. Wong Sun v. United States (1963), 371 U.S. 471. Therefore, we must determine the legality of appellee's arrest in order to determine what evidence was admissible against him.
As a general rule, an officer may not make a warrantless arrest for a misdemeanor unless the offense is committed in the officer's presence. State v. Lewis (1893), 50 Ohio St. 179, 33 N.E. 405. In Oregon v. Szakovits (1972), 32 Ohio St.2d 271, 61 O.O. 2d 496, 291 N.E. 2d 742, we recognized an exception to this rule where the officer has probable cause to believe that the suspect was operating a motor vehicle while under the influence of alcohol or drugs. As a concurring Justice explained:
"The holding in Lewis was predicated upon the conclusion that the power to arrest without warrant for breach of peace or other minor offense is given in order to maintain the public peace; that it therefore ceases when the offense is an accomplished fact which can no longer be prevented.
"* * * he presence of an intoxicated individual in, or in the vicinity of, an automobile which obviously had been driven by him clearly indicates that he was intoxicated while driving. Under such circumstances, * * * the offense is not `an accomplished fact' which could no longer be prevented since such individuals could have easily resumed driving, in such intoxicated condition, unless prevented from doing so by the officer." Id. at 275-276, 61 O.O. 2d at 498, 291 N.E. 2d at 745 (Leach, J., concurring).
The court below recognized the Szakovits exception, but believed the, "admissible facts and circumstances" of this case were insufficient to invoke the exception. We disagree. Officer Hilderbrand informed Deputy White that appellee had been driving while intoxicated. White observed appellee directly, and noted an odor of alcohol on his breath. White also had difficulty in understanding appellee's speech. Appellee failed the field sobriety tests. White spoke to appellee about the towing of his truck. Thus, Deputy White could have reasonably concluded that appellee had been driving the truck while intoxicated, even if White did not have the benefit of Hilderbrand's observations. White therefore had the power to arrest appellee under our holding in Szakovits.
Lewis, supra, specifically held that a police officer could not make a warrantless arrest for a misdemeanor which was not committed in his presence based on the statements of witnesses to the crime. The court below concluded that Lewis was controlling because Deputy White first learned of appellee's "ba
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