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Media > Newsletters > Law Enforcement Bulletin > December 2013 > Proper Protocol (Marking an Arrest): State of Ohio v. Gordon

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Proper Protocol (Marking an Arrest): State of Ohio v. Gordon

Question: Have you made a valid arrest even though the prosecutor does not charge the suspect with the crime you arrested him for because the facts ultimately do not support the arrest?
Quick Answer: Yes, if the officer believes at the time of the arrest there is probable cause criminal activity is occurring.

State of Ohio v. Gordon, Ninth Appellate District, Nov. 13, 2013
Facts: Jack Gordon was a passenger in a vehicle that was pulled over on a traffic stop. During the stop, Office Timothy Wypasek approached the passenger side and noticed Gordon had a pill bottle in his hand. Gordon then stuffed the bottle between the seat and the center console. Wypasek, interpreting this as an attempt to hide contraband, arrested Gordon. Gordon appeared to be intoxicated and was not cooperative with the officers. After the arrest, Wypasek located the pill bottle, which was empty. After a search of Gordon, various pills were found in his pocket, along with the pill bottle cap. Gordon moved to suppress the evidence, arguing the officer lacked probable cause to arrest him because he was not obstructing official business.
Importance: The court concluded that Gordon’s arrest was not constitutional for obstruction; however, the proper question to ask was whether the officer had probable cause to arrest Gordon for any offense based on what he believed he witnessed. In this situation, the court is going to look to the reasonableness of your actions and how a reasonable law enforcement officer would have reacted. If, based on the conduct of the suspect, law enforcement believes criminal activity is occurring, an arrest is appropriate.
Keep in Mind: The officer in this case arrested the suspect for obstruction and tampering with evidence. The prosecutor determined it would not pursue those charges based on the final evidence. The arrest was still proper because there is no requirement that an arresting officer absolutely know, in fact, that the person arrested has committed the crime they suspect. The officer only needs probable cause.
More on Proper Protocol
Does the affidavit have enough for probable cause? While working on a drug case, you are requested to complete an affidavit for a search warrant. You include the addresses of the two properties and the fact the suspect was at both houses and state that there was a traffic stop made of a “buyer” who admitted purchasing from the first property and officers arranged for a successful confidential buy at the first property. You do not say anything about who owned either property, nor give any specific facts about drug activity at the second property. The warrant is issued and you search the second property. Was the affidavit supported by probable cause for the second property? The court in Russell says yes. Although the second property did not have specific facts stated in the affidavit, the affidavit contained enough information to indicate that there was a fair probability that contraband or evidence of a crime could be found there. The affidavit indicated that John Russell kept many cars at the second property, received telephone calls there, and departed from that house before engaging in both reported drug transactions. Although Russell completed the sale of drugs at a different location, common-sense says he may have held a supply at his starting location. Based on the totality of the circumstances, the affidavit provided a substantial basis for probable cause to issue the warrant. State of Ohio v. Russell, Ninth Appellate District, Summit County, Nov. 6, 2013

Another look at affidavits and probable cause. You are part of a team working on a drug case. Your face is too well-known by these suspects, so you monitor the progress of a confidential buy from a distance and through electronic monitoring. The buy was successful, and you write the affidavit for the search warrant. You include all of the facts pertaining to the buy, but not how you personally know of these facts. Is the affidavit sufficient? The court in Hudson says not on its face. Although hearsay may set the foundation of an affidavit, the issuing judge must be informed of some of the underlying circumstance of how the person writing the affidavit obtained the information and why that person believes the information to be reliable. The affidavit in this case did not contain that language. However, based on the testimony of the detective, the court concluded he did not make false statements in the affidavit and did have personal knowledge. As a result, the court found the affidavit fell within the good faith exception to the exclusionary rule and the evidence could be admitted. State of Ohio v. Hudson, Eleventh Appellate District, Trumbull County, Nov. 13, 2013