Opinion · Ohlaw Ohio
STATE v. NEFTZER, 62 Ohio Misc.2d 384 (1992)
STATE of Ohio v. NEFTZER., 598 N.E.2d 938 (Municipal Court, Clermont County. 1992)
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1992-05-15
- Topic
- general
STATE v. NEFTZER, 62 Ohio Misc.2d 384 (1992) 598 N.E.2d 938 The STATE of Ohio v. NEFTZER. No. 91-CRB-114-627.Municipal Court, Clermont County. Decided May 15, 1992.
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STATE v. NEFTZER,62 Ohio Misc.2d 384(1992)
598 N.E.2d 938
The STATE of Ohio v. NEFTZER.
No. 91-CRB-114-627.
Municipal Court, Clermont County.
Decided May 15, 1992.
The arresting officer arrived at the home of the defendant on December 12, 1991, seeking to serve an arrest warrant on a third person, Natalie Hardin, believed to be within the defendant's home. Hardin answered the door and the officer informed her of his intention to arrest her pursuant to the arrest warrant. At this point, the defendant, Joseph A. Neftzer, appeared at the door, demanding to see an arrest warrant for Hardin. The officer declined to produce a warrant, whereupon Hardin stated that she would retrieve her coat from another part of the residence. The arresting officer indicated that he would accompany Hardin in doing so. The defendant stood in his path, however, blocking the officer from entering the residence. At no time did the arresting officer possess a search warrant relative to the defendant's premises.
The arresting officer retreated from the doorway and called for additional assistance, which arrived later. At that time, a sheriff's deputy and the arresting officer proceeded to search, with the defendant's consent, the defendant's premises, looking for Hardin. Hardin was not present, and the arresting officer was informed that she had exited through the back door. The officer proceeded to file an affidavit and complaint charging the defendant with obstructing official business.
The statute under which the defendant is charged, R.C.2921.31, subjects to prosecution anyone who, "without privilege to do so," obstructs a law enforcement officer attempting to perform "any authorized act within his official capacity." R.C.2901.01(L) defines "privilege" as follows:
"`Privilege' means an immunity, license, or right conferred by law, or bestowed by express or implied grant, or arising out of status, position, office, or relationship, or growing out of necessity."
Defendant asserts that he had a constitutionally protected privilege not to permit the arresting officer to enter his home. On the facts of this case, the court must agree with the defendant's assertion.
The United States Supreme Court inSteagald v. United States(1981),451 U.S. 204,101 S.Ct. 1642,68 L.Ed.2d 38, addressed the issue of the right of a law enforcement officer to enter, without a search warrant, a third party's home to enforce an arrest warrant. The court inSteagald,in reviewing the search of a home in pursuit of one Ricky Lyons, stated:Page 386
"In sum, two distinct interests were implicated by the search at issue here — Ricky Lyons' interest in being free from an unreasonable seizure and petitioner's interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner's home was no more reasonable from petitioner's perspective than it would have been if conducted in the absence of any warrant."Id.at 216,101 S.Ct. at 1649-1650,68 L.Ed.2d at 48.
In the case at bar, the arresting officer was required to possess a search warrant in order to enter the defendant's home. Without a search warrant, and absent exigent circumstances justifying a warrantless search, the officer's efforts to enter the defendant's home were "not authorized," and the defendant was not acting without privilege in attempting to obstruct the officer's entrance to his home. What greater right can there be than to exercise choice over whom to admit into one's own residence?
The state of Ohio relies on the case ofState v. Pembaur(1984),9 Ohio St.3d 136, 9 OBR 385,459 N.E.2d 217, which involved the obstruction by a defendant of officers, attempting to serve bench warrants, from entering a business premises. This court is persuaded that a greater right exists not to allow entrance to one's home than in the case of a commercial building. This court is also persuaded that the case ofColumbus v. Fraley(1975),41 Ohio St.2d 173, 70 O.O.2d 335,324 N.E.2d 735, cited inPembaur,can be distinguished on its facts, and should not be controlling in this case.
InFraley,defendant Imogene Fraley was arrested illegally for the alleged use of obscene language. Rather than submit to the arrest, defendant Fraley "started swinging her arms, yelled, kicked them [police officers], broke away, and ran across the street into her house." Rather than merely prevent a law enforcement officer from performing his duty, albeit an unauthorized one, as in the case at bar, defendant Fraley used physical harm to resist an unlawful arrest. The court inFraleycorrectly held the following at paragraph three of the syllabus:
"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."
The clear intent is to prevent persons from engaging in violence after determining, on their own, that an arrest is unlawful. For this reason, the resisting arrest statute, R.C.2921.33, does not contain the language "without privilege," and a person has no right to resist even an unlawful arrest. However, this is not the case with the obstructing-of-official-business statute, R.C.2921.31, whichdoesallow a person to obstruct a law enforcement officerPage 387in the performance of his duties when done so under circumstances surrounding a "privilege." The public interest is not the same as inFraley,in that in the case of obstructing official business there is not the involvement of violence which requires a clear policy attempting to neutralize the violence.
The state contends thatSteagaldinvolves an analysis of whether evidence obtained from a search can be excluded, while the case at bar involves analysis of the conduct of the defendant prior to any such search. This argument is circular, however, in that the rights of an individual, relative to the protection from invasion of privacy occasioned by a warrantless search of his home, can be no less in the case of a criminal conviction than in the event of a search. If an arresting officer has no right to enter the home, surely the defendant, provided he does not attempt to use force in doing so, has a right to attempt to prevent the search.
The court would note that this view has received some recognition by other courts. InMiddleburg Hts. v. Theiss(1985),28 Ohio App.3d 1,4-5,28OBR 9, 12-14,501 N.E.2d 1226,1229-1230, the Cuyahoga County Court of Appeals noted:
"The extent of the privilege to resist unlawful entry into the home has yet to be dealt with in Ohio. The United States Supreme Court has repeatedly held, however, that searches and seizures inside a home without a warrant are presumptively unreasonable.Steagald v. United States(1981),451 U.S. 204[101 S.Ct. 1642,68 L.Ed.2d 38] * * *. An occupant can act on that presumption and refuse admission. TheFourthAmendment gives him a constitutional right to refuse to consent to entry and search. The assertion of that right cannot be a crime. * * *
"It is clear from these cases that an individual can lawfully refuse to consent to a warrantless search. Further, we recognize, consistent with the aforementioned cases, that there exists at least some limited right to resist entrance, such as locking or closing the door or physically placing one's self in the officer's way. We do not, however, recognize the appellants' conduct herein as privileged. This is because the offenses charged do not relate to the entry of the premises. The charges stem from assaults on the police officers with the intent to cause injury after access had been gained." (Emphasis and footnote deleted.)
It is unnecessary to address the question, raised by the defendant, of whether the blocking of the door constituted an "act." However, the court would note that the affirmative placing of one's self in an officer's intended path of travel, which occurred in this case, as distinguished from the mere failure to move from one's position, would constitute an act andnotan omission.Page 388
In this case, the suppression of evidence is not an appropriate remedy. There was not a warrantless arrest, but instead an arrest warrant was issued pursuant to Crim.R. 4. The court in reviewing the complaint may not conduct ade novodetermination of probable cause. Instead, the issue is whether there was a substantial basis for the earlier conclusion with respect to probable cause. SeeState v. George(1989),45 Ohio St.3d 325,544 N.E.2d 640, for a similar analysis with respect to the issuance of a search warrant.
The court must conclude, from an analysis of the affidavit, that the warrant was properly issued. The exclusionary rule is inapplicable in this case. Even if the arrest warrant were found to be invalid as a result of a lack of probable cause, there was no evidence seized as a result of the arrest of the defendant subsequent to the issuance of the arrest warrant, and, therefore, the exclusionary rule would be inapplicable in any event.
On the issue of the motion to dismiss, the court must conclude that the actions of the defendant were constitutionally protected and, as such, a privilege existed, exempting him from prosecution under R.C.2921.31. Although the affidavit signed by the arresting officer alleges that Hardin was a resident in the defendant's premises, there is no evidence to support this proposition. The state of Ohio has, in fact, conceded this point and focused instead on reasons why the search was lawful, even though Hardin was not a resident of the household. The facts of this case, as related in the complaint and affidavit, and as supplemented by the admissions of the state of Ohio regarding the nonresidence status of Natalie Hardin, do not constitute the offense as charged. Therefore, the complaint against the defendant is ordered dismissed. Counsel for the defendant shall prepare and submit an appropriate entry regarding this matter within seven days.Motion to suppress overruled.Motion to dismiss sustained.1Page 389
- Reporter's Note: An entry of dismissal was filed on June 1, 1992, and there was no appeal. ↩