# Ohio v. Deener

> Ohio Supreme Court · December 30, 1980 · 64 Ohio St. 2d 335

URL: https://www.frixlaw.com/law-library/cases/6757095

## Case

- **Full name:** The State of Ohio v. Deener
- **Court:** Ohio Supreme Court
- **Decided:** December 30, 1980
- **Citations:** 64 Ohio St. 2d 335; 18 Ohio Op. 3d 499; 414 N.E.2d 1055; 1980 Ohio LEXIS 884
- **Precedential status:** Published
- **Opinion:** Dissent by Celebrezze
- **Judges:** Brown, Celebrezze, Dowd, Eighth, Holmes, Locher, Stillman, Sweeney
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Celebrezze, C. J.,
dissenting. I must respectfully dissent from the majority opinion for two reasons. The essential statutory prerequisite for a valid R. C. 2951.08 arrest — a written order of the chief probation officer — is conspicuous by its absence from this case. Consequently, the weapon seized as a direct result of this unlawful arrest was introduced into evidence in contravention of the exclusionary rule. Mapp v. Ohio (1961), 367 U. S. 643 .
The critical consideration in the case at bar is, as the Court of Appeals unanimously recognized, that, at the time appellee was arrested by the Mansfield Police Department, there was no valid written order of the chief probation officer. As Judge Putman stated in his concurring opinion, “the particular written order which the government elected to place into evidence is dated one day after the arrest.” The General Assembly specifically and unambiguously required such an order to effectuate a valid arrest of a probationer.
As an appellate court, we are limited by the record before us. The irrefutable fact remains that no written order of the chief probation officer existed at the time of the arrest in question. The teletype itself was not made part of the record. Indeed, no witnesses from the Franklin County Sheriffs Office appeared, either in support of or in opposition to the motion to suppress.
Nevertheless, the majority opines: “While it is highly probable that a written order of the chief probation officer did exist at the time of the arrest, we have no proof of it. It is possible that the Franklin County Sheriffs Office issued the order pursuant to a verbal request instead of a written order.”
While I acknowledge the need for a court, on occasion, to take judicial notice of indisputable facts, see Evid. R. 201; Morgan, Judicial Notice, 57 Harv. L. Rev. 269 ,1 must disagree with the majority’s attempt to take judicial notice of “probable” and “possible” written orders. Either there was a valid written order or there was not. Since the only genuine, tangible written order that the government placed into evidence is dated one day after appellee's arrest, this arrest is unlawful.
Nor does the good faith reliance of the Mansfield Police Department on the Franklin County telex justify the arrest. *340 The United States Supreme Court specifically rejected this concept in Whiteley v. Warden (1971), 401 U. S. 560 , 568:
“We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.”
Thus, the Franklin County Sheriffs Office did not have adequate justification to order appellee’s arrest. This inadequate justification did not ripen into adequate justification by the time the telex reached the Mansfield Police Department.
Having decided that the arrest of appellee was unlawful, I must conclude, therefore, that the weapon was seized from his person in violation of his Fourth Amendment right to be free from an unreasonable search and seizure and must, under the exclusionary rule, be suppressed.
W. Brown, J., concurs in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6757095. Public record. Not legal advice.