Summary
In Johnson v. Reddy (1955), 163 Ohio St. 347, 126 N.E.2d 911, the arrest without warrant in Ohio was made by police officers pursuant to teletype messages from Pennsylvania state police identifying suspect and advising that a felony had been committed in Pennsylvania and it was held that the arresting officers acted upon reasonable information.
Summary of this case from State v. KleinOpinion
No. 34122
Decided May 18, 1955.
False imprisonment — Arrest without warrant — Defense of justification — Burden of proof — Arrest at request of another police agency — Reasonableness of information on which arrest made — Resolved in favor of arresting officer — Arresting officer not liable, when — Complaint and warrant issued day after arrest — Whether officer acted with "all practicable speed" a jury question.
1. In an action for false arrest or imprisonment, where the defendant seeks to show justification on the ground that he lawfully arrested the plaintiff without a warrant, under Section 2963.12, Revised Code, he has the burden of proving that he acted upon reasonable information in making the arrest and that following the arrest he took the plaintiff before a judge or magistrate with all practicable speed and made complaint against him.
2. Where a police officer makes an arrest without a warrant at the request of another police agency, all reasonable doubts concerning the reasonableness of the information on which the arresting officer acts should be resolved in his favor.
3. Where a request for investigation of a person is made to a police agency of this state by a recognized police agency of another state, which request identifies the subject by address and by name and gives a physical description which does not vary materially from the actual physical appearance of the subject, and where following a report of such investigation the agency of the other state requests the arrest of the subject, an officer making the arrest without a warrant does so upon reasonable information and is not thereby subject to liability for false arrest or imprisonment.
4. In an action for false arrest or imprisonment, where an arrest without a warrant was made at 3 p.m. and a complaint and warrant were issued at 9 a.m. the next day, the question of whether the defendant acted with "all practicable speed" in filing the complaint and warrant is a question of fact upon which reasonable minds might differ and should be submitted to a jury.
APPEAL from the Court of Appeals for Cuyahoga County.
On October 27, 1951, the police department of the city of Cleveland received the following teletype message from the Pennsylvania State Police at Butler, Pennsylvania:
"To the Police Department, Cleveland, Ohio.
"Kindly make a confidential check to ascertain if one Orville S. Johnson is residing at 16203 Holmes Ave., Cleveland, 10, Ohio. Subject is a suspect in a kidnapping case being investigated by our department. He is described as being 30-32-5-10-11-160-170, light hair, pointed nose, may have injury to left cheek and injury to right arm. We are anxious to know if subject is in Cleveland and type, make, and color of car he or associates may be operating at this time. If located kindly advise and we will arrange to bring victim to Cleveland for identification. Warrants charging subject with forgery also pending in this state for this subject. We don't want this fellow picked up but are anxious to know if he is operating a car and the type."
This request was recognized by the Cleveland police department, policemen other than the defendants herein were ordered to and did make an investigation, and the following message was sent by the Cleveland police department to the Pennsylvania State Police:
"City Directory lists Frank Johnson at address given. Orville Johnson also living there according to neighbors with his wife. Orville said to be driving forty six Dodge sedan blue color Ohio license Paul Victor five five zero listed to Frank Johnson at seven nine seven Rudyard Cleveland. Other associates not known. Subject not contacted. Advise."
On October 29, 1951, the Cleveland police department received the following teletype message from the state police at Butler, Pennsylvania:
"Please take subject into custody. Warrants have been issued for his arrest. Address 16203 Holmes Ave., Cleveland, Ohio, charging him with forgery and issuing worthless checks. Will extradite, Kindly advise if he will waive extradition."
Upon receipt of this teletype message, the Cleveland police department, under the direction of its officer in charge, communicated by telephone with the defendants, appellees herein, who were at the time in plaintiff's neighborhood in a police patrol car, and ordered them to arrest the plaintiff, appellant herein. Defendants went to plaintiff's home, made the arrest as directed and took the plaintiff to police headquarters. The plaintiff denied being the man wanted, claimed he did not fit the description and exhibited a certificate of title to a Chevrolet automobile. Following a brief period of questioning, plaintiff was locked in a cell.
The following morning, October 30, 1951, defendant Reddy presented the facts to a prosecuting officer and was advised by his superior officer to file an affidavit for a fugitive warrant. An affidavit was sworn to and a warrant issued for the plaintiff's arrest and detention for the Pennsylvania authorities. The state then requested a continuance until November 9, 1951, to give the Pennsylvania authorities an opportunity, if necessary, to bring extradition proceedings, and the plaintiff was released upon posting a $500 bond.
Between October 30 and November 9, 1951, a complete description of plaintiff, together with a photograph and fingerprints, was forwarded to the Pennsylvania authorities who determined therefrom that the plaintiff was not the man wanted. The case, when called on November 9, 1951, was therefore dismissed.
Plaintiff thereafter instituted an action against defendants in the Court of Common Pleas of Cuyahoga County seeking damages for false arrest and imprisonment. The trial resulted in a verdict and judgment for the plaintiff.
Defendants perfected an appeal to the Court of Appeals for Cuyahoga County, which court reversed the judgment of the trial court and entered final judgment for the defendants.
The cause is now before this court upon the allowance of the plaintiff's motion to certify the record.
Mr. Sam B. Fitzsimmons and Mr. R.C. Renaud, for appellant.
Mr. Ralph S. Locher, director of law, Mr. Charles W. White, Mr. Burt J. Fulton and Mr. Carl J. Grosclaude, for appellees.
The questions involved herein are of tremendous significance to every law enforcement agency in the state and for many years have plagued every individual officer who has made an arrest upon the order of his superior officer or at the request of another police agency. With the advance in transportation made in the past few decades and the resultant ease with which criminals may move from one jurisdiction to another has come an added hardship to law enforcement agencies in protecting society from those who would thus escape apprehension. Fortunately, concurrently with the increase of the speed with which criminals may escape, have come advancements in the development of methods of communication which in a measure minimize the advantage of the escapee. The telephone, radio and teletype are potent devices in the hands of law enforcement agencies, and without them modern law enforcement would be seriously handicapped. Yet their very use often raises serious questions in the mind of the police officer.
To what extent may a police officer in one community rely on the statements and requests of an officer in another community concerning the arrest of a person sought by the latter? What are his responsibilities toward a person arrested in compliance with such request? What are his liabilities in the event the wrong person is arrested? All these questions are inherent in the factual situation presented herein.
Section 109-14, General Code (Section 2963.12, Revised Code), a part of the Uniform Extradition Act passed by the General Assembly in 1937, reads as follows:
"The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant."
The power to arrest granted in the first clause of this section has a correlative duty which is set out in the second clause. This power and duty are substantially the same as those set forth in Sections 13432-2 and 13432-3, General Code (Sections 2935.04 and 2935.05, Revised Code), which have long been the law of Ohio.
Section 13432-2, General Code, reads as follows:
"When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained."
Section 13432-3, General Code, reads:
"When a peace officer has arrested a person without a warrant, he must without unnecessary delay, take the person arrested before a court or magistrate having jurisdiction of the offense, and must make or cause to be made before such court or magistrate a complaint stating the offense for which the person was arrested."
Since pre-Revolution days, the right of freedom from unlawful arrest and seizure of the person has been zealously guarded for our people. And well it should be. Yet that right must not be so enforced as to prevent those to whom we have entrusted the guarding of our safety from protecting us from the felon who would make of our communities havens of refuge. And we believe that in making an arrest without a warrant at the request of another police agency all reasonable doubts concerning the reasonableness of the information on which the arresting officer acts should be resolved in his favor.
In this case the request for investigation was made by a recognized police agency of a sister state. The original request identified the plaintiff by address and by name, except for a variance in the initial of the middle name. Plaintiff had recently come to Ohio from Pennsylvania. Following a report on that investigation, the Pennsylvania police requested the arrest. Although there was some variance as to the physical description of the plaintiff, the variance was not so great as to make the actions of the defendants unreasonable.
We believe, and therefore hold, that under the facts of this case the defendants were entitled to an instruction, as a matter of law, that they acted upon reasonable information and in so doing were not subject to liability for false arrest and imprisonment.
A different question arises, however, in regard to the actions of the defendants following the plaintiff's arrest. Did they take the plaintiff before a judge or magistrate with all practicable speed and make complaint against him?
Following the arrest of plaintiff at his home, he was taken to the police station, arriving there at 3 p.m. A complaint and warrant were filed the next day at 9 a.m. It is contended by defendants and was found by the Court of Appeals that as a matter of law they acted with "all practicable speed" because it was impossible to get a prosecuting officer to authorize the complaint or a judge to fix bail between 3 p.m. and 9 a.m. Certainly, this is a matter upon which reasonable minds well might differ.
Although it has not often been the subject of judicial interpretation, it does seem to be settled that if one seeks to escape liability for either false arrest or false imprisonment he has the burden of proving the justification for his actions. See Reinhard v. City, 49 Ohio St. 257, 31 N.E. 35; 18 Ohio Jurisprudence, 1023, Section 42; 10 Ruling Case Law, 901, paragraph 52.
Whether the defendants herein acted with "all practicable speed" in filing a complaint and warrant against the plaintiff was a question of fact for the jury.
The judgment of the Court of Appeals is, therefore, reversed and the cause remanded to the Court of Common Pleas for a retrial in accordance with this opinion.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.