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Eleventh District: Deputy’s Arrest of Son in Parent’s Home Can’t Be Used to Charge Couple for Resisting

Ashtabula County prosecutors cannot use evidence gathered during the tasing and arrest of a Conneaut man in his parents’ home to charge the parents with resisting arrest, the Eleventh District Court of Appeals ruled.

The Eleventh District affirmed the ruling of an Ashtabula County trial court that found the warrantless arrest of Jason W. Lowe in the home of Terry and Glenda Lowe was unlawful. Because the arrest was unlawful the events surrounding it cannot be used as the basis of charging the parents with resisting arrest when they allegedly tried to stop a deputy from taking Jason out of the house and into a police cruiser.

The appellate court issued two separate rulings Monday both based on the incidents occurring in late August 2013.

Ashtabula County Sheriff’s Deputy Steven Murphy responded to a call from an Andover Township woman accusing Jason of kicking in her door, punching her in the face, pulling out a clump of her hair, and breaking her cell phone as she attempted to call 911. Murphy observed the woman’s injuries and a Facebook message from Jason to the woman making further threats. He found the circumstances serious enough to charge Jason with felonious assault and a felony charge of disrupting public services for breaking the phone during an emergency call.

At the direction of the woman, Murphy drove in the opposite direction of Lowe’s home to search for Jason. After two hours, Murphy arrived at the Lowe’s, and went to the main entrance, which was an enclosed porch that led to the back door. Murphy called for Jason to come outside, and Jason walked through the porch onto the outside stairs, shouting expletives at Murphy and telling him to leave. When Murphy told Jason he was under arrest, Jason walked into the home and locked the door. Murphy testified that he called for backup and “saw Jason on the porch dancing and giving him the finger.”

Murphy began banging on the door, which awoke Terry who went out to speak with Murphy. According to Murphy, Terry left the porch and house doors open as he walked back into the house, and Murphy followed Terry onto the porch.

In the living room, Terry and Glenda attempted to get Jason to speak with the deputy. Murphy said he waited on the porch, and the Lowes all yelled at him to leave. Murphy refused and when Jason went to shut the door, Murphy used his foot to keep it open. He unsuccessfully attempted to grab Jason and then tased him. As he tried to handcuff Jason, Murphy said the parents attempted to pull him off.

Terry testified at trial when he finally got Jason to agree to talk to Murphy, the deputy instead opened the door, tased the son in the kitchen and dragged him on to the back porch where he handcuffed him, and  dragged him into the cruiser.

Jason was charged with assault, aggravated trespass, disrupting public service and resisting arrest. He pled guilty to resisting arrest and the other charges were dropped. Terry and Glenda were each charged with one count of resisting arrest, and moved to suppress the evidence of Jason’s arrest deeming it unlawful. The trial court found the state provided insufficient evidence to support an arrest without a warrant, and excluded all the evidence from the arrest and events at the Lowe’s home. Ashtabula County appealed the suppression to the Eleventh District.

Writing for the unanimous court in Terry’s case, Judge Cynthia Westcott Rice noted a “lawful arrest” is an essential element of a violation of resisting arrest found in R.C. 2921.33(A). “By challenging his son’s arrest, (Terry) sought to establish the arrest was illegal to avoid his own conviction for resisting arrest,” she wrote.

Judge Rice noted the prosecution argued that one of the exceptions to the rule of requiring a warrant to make an arrest is the “hot pursuit doctrine” in which the state must also prove “exigent circumstances,” which mean demonstrating an emergency situation requiring swift action is necessary to prevent imminent danger to others, serious damage to property, escape by the suspect, or destruction of evidence.

Judge Rice ruled that the U.S. Supreme Court requires some type of chase that is immediate or continuous pursuit to claim the hot pursuit. However, she cited two federal rulings with elements similar to the Lowe case. In one case, the U.S. Supreme Court’s Welsh V. Wisconsin (1984) ruling, the court ruled officers were not in hot pursuit when they arrived at the scene of the alleged crime after the suspect had left and proceeded to his home to arrest him. In the other, an appeals court ruled there was no hot pursuit when the officers called for backup and sent a neighbor into the home to convince the suspect to come outside.

“The evidence supported a finding that there was no immediate or continuous pursuit of Jason from the time Deputy Murphy had probable cause and thus no hot pursuit,” she ruled.

The prosecution also argued that exigent circumstances existed because the U.S. Supreme Court in United States v. Santana (1976) held that a suspect cannot resist an arrest that started in a public place by retreating to a private place. The Eleventh District determined that while the arrest of Jason did start in a public place, the steps outside porch, and did end in a private place, the porch, the state cannot rely on the Santana ruling because the prosecutors still must show Murphy was in hot pursuit.

Judge Timothy P. Cannon, writing for the court in Glenda’s case, also found that Murphy was justified in pursuing Jason to arrest him, but that the state provided minimal explanation as to why Murphy did not call for a warrant and monitor the home to make sure Jason did not leave.

“It is worthy of note that this was a difficult call for the deputy and that he exercised significant restraint in dealing with Jason. However, it remains that the record is devoid of any explanation as to why it was not safe or reasonable to attempt to secure a warrant while Jason was in the house,” Judge Cannon wrote.

Judge Thomas R. Wright concurred in both decisions.

State v. Lowe, 2015-Ohio-1064
State v. Lowe, 2015-Ohio-1065
Criminal Appeal From:  Ashtabula County
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 23, 2015

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