Petition — Pembaur v. Ohio

83 ™ 1656 Office - Supreme Court, U.S.

FILED

APR 9 1984

ALEXANOER |. STEVAS

CLERK

In the Supreme Court of the United States

October Term, 1983

BERTOLD J. PEMBAUR,

Petitioner,

VS.

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Ohio

GERALD A. MESSERMAN, Counsel of Record

MESSERMAN & MESSERMAN Co., L.P.A.

1525 Ohio Savings Plaza

Cleveland, Ohio 44114

(216) 574-9990

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTION PRESENTED

Upon proof that the physician-owner of a private

medical clinic resisted a warrantless police entry into the

clinic by refusing to open a door between the clinic’s pub-

lic reception area and its inner offices, does conviction of

the physician-owner on a charge of Obstructing Official

Business (Ohio Rev. Code § 2921.31(A)) violate the due

process clause of the Fourteenth Amendment?

TABLE OF CONTENTS

EE

EE

CONSTITUTIONAL AND STATUTORY PROVI-

i accctnsceesenssesncssesncnessnececenssocesees

STATEMENT OF THE CASE ....0..........c0.::sccsssssssssssssssseees

REASON FOR GRANTING THE WRIT ........................

The decision of the Supreme Court of Ohio, allow-

ing a physician to be convicted of obstructing official

business solely upon proof that the physician re-

sisted a warrantless police entry by refusing to open

a door between the reception area and the inner

portion of the physician’s medical clinic, is in con-

flict with applicable decisions of this Court, of fed-

eral courts of appeals, and of other state courts of

last resort Si idibaniuadsepeesietatuscenensansese

EE SL

APPENDIX:

Opinion of the Supreme Court of Ohio (February 8,

adele cidiseiennctetncvannereneccteresnseccecceessnceeesesee

Judgment Entry of the Court of Appeals of Hamilton

County, Ohio (November 3, 1982) ...............ccccccee

Opinion of the Court of Appeals of Hamilton County,

ss ccsssecsssecsotesonees

Opinion of the Supreme Court of Ohio (February 3,

ES LSS LES

13

20

n1

Order of the Supreme Court of Ohio (February 3,

|: NES SS EP UOu Ea sti ait oa ee el Ta A31

Order of the Supreme Court of Ohio (February 3,

BUTEA. n-sninsicescasescssensssintsnigieatbininselacigasaaeaeeamamacabanians A32

Judgment of Acquittal on Verdicts, The Court of

Common Pleas, Hamilton County, Ohio (June 19,

ys EO Renee ie let het eC A33

Decision and Entry on Reconsideration of the Court

of Appeals of Hamilton County, Ohio (March 18,

| SRNR cans A Ree RRL IAs Ba mae Es 6» ier A34

Judgment Entry of the Court of Appeals of Hamilton

County, Ohio (February 18, 1981)... A36

Opinion of the Court of Appeals of Hamilton County,

CRD CHRIS Tah ED eelesiegenitioicniccen A38

Judgment Entry of the Court of Common Pleas of

Hamilton County, Ohio (May 14, 1979) .................... A82

Order of the Supreme Court of Ohio (February 8,

WED wencesisecsesdnncsbiintecinkechcscnkinctceeScastnishibccls tesdnca biaaeannaans A84

NG exes ee A85

TABLE OF AUTHORITIES

Cases

Camara v. Municipal Court, 387 U.S. 523 (1967) ........ 15

District of Columbia v. Little, 339 U.S. 1 (1949) ....14, 15,16

Griffin v. California, 380 U.S. 609 (1965) 0000... 18

Jackson v. Virginia, 443 U.S. 307 (1979) 000... 19

Jolliff v. State, 215 So. 2d 234 (Miss. 1968) ................ 17-18

Linkletter v. Walker, 381 U.S. 618 (1965) .000 18

Michigan v. DeFillippo, 443 U.S. 31 (1979) oo... 18

Iv

Miller v. United States, 230 F.2d 486 (5th Cir. 1956) .... 17

North Carolina v. Pearce, 396 U.S, 711 (1969) ................ 18

People v. Wetzel, 11 Cal. 3d 104, 520 P.2d 416, 113 Cal.

ES | RR Er Revere: Mamie en Panna ener ie 17

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ............ 16

See v. City of Seattle, 387 U.S. 541 (1967) ...00 15, 16

Sparks v. United States, 90 F.2d 61 (6th Cir. 1937) ... 17

State v. Ludlow, 503 P.2d 1210 (Utah 1972) 000000000... 18

State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970) 18

State v. Stip, 246 N.W.2d 897 (S.D. 1976) 00... 18

Steagald v. United States, 451 U.S. 204 (1981) ........ 11, 12,14

Thompson v. Louisville, 362 U.S. 199 (1960) ................ 19

United States v. Janis, 428 U.S. 433 (1976) ......0.00.......... 18

United States v. McKinney, 379 F.2d 259 (6th Cir.

BUDD, cestessssccssotibarhiedatansbiccbeend Adndndeinigiamaeagadiala uiceiaapnaiiaplincte. 17

United States v. Prescott, 581 F.2d 1343 (9th Cir.

TIED caniechsseciabantssececaedicacisensanissieheletestelsien phenaaaiiteanmiadad 16,17, 19

Vince v. State, 39 S.E. 435 (Ga. 1901) 2.0... cceeceeeeeeeees 18

if ee ee F , peeerne cemeennes 2, 14-15, 16, 18, 19

Re: CM CUIUNIIIIE GIG eiccniscconsccheanaccustieceneneiticidethatdbnetnenessisd 3, 19

SR IETF IID. cice'isstcconsosites caleaineishdiecshdatinioogeadinetbamnsisemnardases 2

Ohio Revised Code:

SII, scrianin tsi iciinnacaekcaeaihonssbecssatoanecaaaaaamegesasaeaoaaee 4,14

SOI TEA <cisdinhecencesitaseahnaneabuthionsisetanltaatagcalocsnienaabailiaen 3

SMITE cachestsutoveveteshannshinansmstvabenpuanmahenieeeeddabiat 1, 3, 8, 10, 13

No.

In the Supreme Court of the United States

October Term, 1983

BERTOLD J. PEMBAUR,

Petitioner,

vs.

STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Ohio

Petitioner, Bertold J. Pembaur, prays that a writ of

certiorari issue to review the judgment of the Supreme

Court of Ohio rendered on February 8, 1984, in State v.

Pembaur, 9 Ohio St. 3d 136, 459 N.E.2d 217 (1984). That

judgment reinstated a conviction on a charge of Obstruct-

ing Official Business (Ohio Rev. Code § 2921.31) which

had previously been reversed by a state court of appeals.

OPINIONS BELOW

Petitioner was convicted in the Common Pleas Court

of Hamilton County, Ohio, of violating Section 2921.31(A)

of the Ohio Revised Code (Obstructing Official Business)

(App. p. A82). In an unpublished opinion rendered on

February 18, 1981, the Court of Appeals for Hamilton

County, Ohio, reversed Petitioner’s conviction and ordered

his discharge (App. pp. A38-A82). The State applied

for reconsideration, challenging the composition of the

three-judge panel that decided the case. The application

for reconsideration was denied (App. pp. A34-A35).

The Supreme Court of Ohio, on February 3, 1982,

approved the State’s challenge to the composition of the

three-judge panel which had reversed Petitioner’s convic-

tion, reversed the decision of that panel, and remanded

the case to the Hamilton County Court of Appeals for

rehearing. State v. Pembaur, 69 Ohio St. 2d 110, 430

N.E.2d 1331 (1982) (App. pp. A28-A30).

Upon rehearing, a second and different three-judge ap-

pellate panel, in an unpublished opinion rendered on No-

vember 3, 1982, again reversed Petitioner’s conviction and

ordered his discharge (App. pp. A9-A27).

The State appealed a second time to the Supreme

Court of Ohio. On February 8, 1984, that Court, in State

v. Pembaur, 9 Ohio St. 3d 136, 459 N.E.2d 217 (1984), again

reversed the judgment of the court of appeals and ordered

Petitioner’s conviction reinstated (App. pp. Al-A6).

JURISDICTION

The judgment of the Supreme Court of Ohio was

entered on February 8, 1984. Jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1257(3) (1984).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment of the Constitution of the

United States provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

3

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

Section One of the Fourteenth Amendment of the Con-

stitution of the United States provides, in relevant part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2921.31 of the Ohio Revised Code provides:

(A) No person, without privilege to do so and

with purpose to prevent, obstruct, or delay the per-

formance by a public official of any authorized act

within his official capacity, shall do any act which

hampers or impedes a public official in the perfor-

mance of his lawful duties.

(B) Whoever violates this section is guilty of

obstructing official business, a misdemeanor of the

second degree.

Section 2921.01(L) of the Ohio Revised Code provides:

As used in the Revised Code:

* 7 o

(L) “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.

4

Section 2317.21 of the Ohio Revised Code provides:

When a witness, except a witness who has de-

manded and has not been paid his traveling fees and

fee for one day’s attendance when a subpoena is served

upon him, as authorized by the provisions of section

2317.18 of the Revised Code, fails to obey a subpoena

personally served, the court or officer, before whom

his attendance is required, may issue to the sheriff,

coroner, or a constable of the county, a writ of attach-

ment, commanding him to arrest and bring the person

named in the writ before such court or officer at the

time and place the writ fixes, to give his testimony

and answer for the contempt. If such writ does not

require the witness to be immediately brought, he

may give bond for a sum fixed by the court of common

pleas or the court which issued the subpoena, with

surety, for his appearance, which sum shall be in-

dorsed on the back of the writ, except that, if no sum

is so indorsed, it shall be one hundred dollars. When

the witness was not personally served, the court, by

a rule, may order him to show cause why such writ

should not issue against him.

STATEMENT OF THE CASE

A. The State’s Case—Proof of Obstructing

Official Business

On June 24, 1977, Dr. Bertold J. Pembaur, a licensed

physician and the director and proprietor of the Rockdale

Medical Center in Cincinnati, Ohio, was charged in a six-

count indictment filed in the Common Pleas Court of Ham-

ilton County, Ohio.

Over defense objection and upon request of the State,

the trial court severed the sixth count of the indictment,

and ordered that trial on that count precede trial on the

remaining charges. Count six alleged that Dr. Pembaur

“* * * without privilege to do so, and with purpose

to prevent, obstruct or delay the performance by David

Allen and Frank Webb, public officials, of an autho-

rized act within their official capacity, committed an

act which hampered or impeded the said David Allen

and Frank Webb in the performance of their lawful

duties, in violation of Section 2921.31 of the Ohio

Revised Code * * *.”

At trial the State presented proof that, on May 19,

1977, two capiases issued authorizing the seizure of Dr.

Kevin Maldon and Marjorie McKinley—employees of the

Rockdale Medical Center. The capiases recited that

Maldon and McKinley had failed to respond to grand jury

subpoenas (R. 321-25).

With the capiases in their possession, Deputies Allen

and Webb went to the Rockdale Medical Center. Both

were in civilian dress. They entered the Center without

interference. They observed what they described as “a

normal reception area for a doctor’s office” (R. 326), with

a door leading from the reception area to the inner office.

One of the deputies described what happened next:

“I heard David [Allen] say, ‘I’m «a policeman.

I want to see Mrs. McKinley.’ And about that time

David turned and went around to the side, to the

door going into the office. I got up and followed him

uniform was standing inside the door saying, “You

can’t come in. You can’t come in.’ And as I walked

up Davie had both hands up on the door. I took my

billfold out and showed her my identification and

put it back in my pocket and we attempted to push

the door. And she said, ‘Wait for the doctor.’

So when she said, ‘Wait for the doctor,’ I turned

and went back around to the window and about that

time I saw a man, whom we found out later was

Dr. Pembaur, come walking down the hall and as

he got to the black girl at the door he and the black

girl slammed the door closed. He reached down and

got the board and wedged it down in the door.

I ran back around and we attempted to shove

the door, but we couldn’t budge it.” (R. 327.)

The deputies then told Dr. Pembaur that they wanted

“to see Mrs. McKinley.” (R. 328). Dr. Pembaur instructed

the deputies to leave, and warned that if they did not

do so he would call the police. The deputies refused

to leave, and the police were called (R. 329-31). After

the police arrived, Dr. Pembaur was, for the first time,

shown the capiases in the possession of the deputies (R.

335). According to one of the officers on the scene, Dr.

Pembaur then said, “Let me talk to my lawer. If he

says I should let you in, I will let you in.” (R, 455).

A State witness testified that Dr. Pembaur attempted

to contact four different attorneys (R. 534-35). One was

called approximately ten times (R. 631). Dr. Pembaur

also attempted to obtain advice from two different judges

(R. 372, 551-52, 581). All efforts to contact lawyers and/

or judges were futile. While the attempts were made,

Dr. Pembaur served tea to the waiting officers (R. 371).

7

Approximately two hours after the deputies arrived,

with police officers and numerous media representatives

on the scene, the door between the reception area and

the inner portion of the clinic was smashed with an ax

and a sledgehammer. The officers then entered (R. 342).

B. The Defendant’s Contention—The Constitutional

Right to Refuse a Warrantless Entry

Before the first witness was sworn at trial, defense

counsel requested a ruling that the charge of Obstructing

Official Business could not be sustained by proof that

Dr. Pembaur refused to permit a warrantless entry into

his clinic. The defense contended that the refusal to

permit a warrantless entry is not a crime nor evidence

of a crime, and that a citizen is constitutionally privileged

to resist a warrantless entry by simply refusing to open

a door (R. 271-84). The trial court responded:

“(T]he motion to determine ‘without privilege to do

so’—I said the privilege for which you argued yes-

terday the Court determines that Dr. Pembaur did

not have the privilege at that time. Privilege is not

extended to him for the date on which the deputies

attempted to serve their process, and Dr. Pembaur

was not operating under the privilege and the priv-

ilege was not extended to him.” (R. 299.)

The trial court prohibited proof or argument that

the capiases which the officers sought to execute on

May 19, 1977, had been illegally issued, that the recitals

contained in the capiases were untrue, or that appellant

was entitled to deny entry to law enforcement officers

who possessed neither arrest nor search warrants (R. 315,

452-54, 606-07, 647-51). The State was permitted to argue

to the jury, over repeated defense objection, that capiases

were arrest warrants, that the legality of the capiases

was not in dispute, and that the absence of a search

warrant was immaterial to Dr. Pembaur’s guilt or inno-

cence (R. 687-88, 690, 691, 692, 708-10).

At the conclusion of the State’s case, the defense

moved for judgment of acquittal, contending that the

State had failed to prove an essential element of the

offense charged. Conviction of the offense, defined by

Section 2921.31(A) of the Ohio Revised Code, the defense

contended, required proof that Dr. Pembaur acted “with-

out privilege to do so” when he refused to open his door

to permit a warrantless entry (R. 562). The trial court

denied the motion for judgment of acquittal, stating, “that

the Court feels that the record contains credible evidence

of probative value as to all the elements of the crime

charged in the indictment.” (R. 569). A motion for

judgment of acquittal was again denied at the conclusion

of all of the evidence (R. 653, 658).

Dr. Pembaur and several other witnesses testified

for the defense. Asked why he refused to open the door

to his office, Dr. Pembaur testified:

“Well, as a physician I have certain obligations

in running a medical office. Particularly, I am obli-

gated to protect my patients. I am obligated to

protect the confidentiality of the medical records. I

am obligated to protect my employees. So I wanted

legal advice and I wanted a lawyer to tell me exactly

what I am supposed to do.” (R. 582.)

On cross-examination, Dr. Pembaur was asked whether

he realized that he was “making decisions in defiance

of that court order [the capiases]” by refusing to permit

the officers through the door from the reception area

of the clinic to the patient-work area. Defense counsel

objected, contending:

¢

“No decision was made in defiance of that court order.

It is not an order to Dr. Pembaur. I object to the

question indicating that it is.” (R. 600.)

The objection was overruled.

C. Instructions to the Jury

The trial court instructed the jury, over defense ob-

jection and pursuant to request by the State (R. 663-64),

as follows:

“An order issued by a court with jurisdiction

over the subject matter and the parties must be obeyed

by the parties until it is reversed by orderly and

proper proceedings.” (R. 730.)

Over defense objection, grounded upon the claim that

the case did not involve an attempt to serve a search

warrant or an arrest warrant (R. 661-62), the trial court

instructed the jury that police officers have the right,

pursuant to state law, to “break down an outer or inner

door or window of a dwelling house or other building,

if, after notice of his intention to make such arrest or

such search, he is refused admittance.” (R. 729).

Announcing that the defense was not abandoning

“the legal proposition . . . that a citizen has a right not

to submit to an entry into his premises pursuant to the

capias for the arrest of a third person” (R. 661), the

defense requested an instruction on the theory of the

defense (R. 720-21). The request was denied. The de-

fense also requested that the jury be charged:

“You are instructed that a citizen has a privilege,

under the Ohio and the United Constitutions, to refuse

to permit law enforcement officials to enter his office

or home unless the law enforcement official has legally

10

obtained a lawful search warrant authorizing the offi-

cer to enter upon the citizen’s premises.” (R. 722.)

That request was also denied.

D. Conviction and Appeals

Dr. Pembaur was convicted of the offense charged

in count six of the indictment—a violation of Ohio Rev.

Code § 2921.31(A) (App. p. A82).. In a separate and

subsequent trial, Dr. Pembaur was acquitted of all re-

maining charges contained in the indictment (App. p. A33).

On appeal, from the conviction, the Hamilton County

Court of Appeals, after thorough consideration of the

constitutional issues raised, reversed the conviction and

ordered Dr. Pembaur discharged (App. p. A38). The

court held that Dr. Pembaur’s conduct was non-criminal

and constitutionally protected:

“(Sjince the officers pussessed no valid search war-

rant, or functional equivalent thereof, and where no

exception to its necessity by way of consent or ex-

igent circumstance existed, the third party owner or

proprietor of a private office possessed, through the

Fourth Amendment, a constitutional right to refuse

entry into the premises until a valid search warrant

was secured. This constitutionally based right to

refuse entry is clearly the ‘privilege’ referred to in

the criminal statute the defendant was convicted of

breaking.” (App. p. A59.)

The court rejected the state’s claim that a citizen

is powerless to resist even an unconstitutional search by

means which might provoke physical confrontation:

“It has been suggested, although not as a mate-

rial issue in this case, that such right or privilege

11

as may be said to exist to resist a warrantless entry

may be lost if the privilege is too vigorously asserted.

Certainly, the existence of a constitutional right to

resist unlawful entry does not carry with it a license

to assault or offer violence to the officers attempting

the entry—not, at least, so long as courts exist to

provide a forum for the resolution of disputed issues.

But the question is unnecessary to consider here, since

the defendant’s resistance, while doubtless irksome

and vexatious to the perfectly well-intentioned offi-

cers attempting to serve the writs, was entirely pas-

sive. One does not interrupt mortal coinbat to serve

tea to one’s adversaries.” (App. p. A60.)

By decision rendered February 3, 1982, the Supreme

Court of Ohio reversed the decision of the Hamilton

County Court of Appeals and remanded the case to that

court for rehearing. State v. Pembaur, 69 Ohio St. 2d

110, 430 N.E.2d 1331 (1982). The court did not reach

the merits of the constitutiona. claims which had been

decided by the lower court. Instead, it simply concluded

that one member of that court had not been qualified

to participate in the decision at the time the decision was

rendered (App. pp. A28-A30.)

Upon rehearing, a panel of three judges of another

state appellate district, sitting by special assignment to

the Hamilton County Court of Appeals, again reversed

Dr. Pembaur’s conviction. Between the first and the

second court of appeals decisions, this Court decided

Steagald v. United States, 451 U.S. 204 (1981). The court

of appeals viewed Steagald as controlling, stating:

“(W]e are compelled to conclude that because the law

enforcement officers in this case possessed no valid

search warrant and there were no circumstances ob-

12

viating the warrant requirement, the appellant did

have a right to refuse their entry into his office.

Accordingly, the appellant’s actions were privileged

within the meaning of R.C. 2921.31(A) and the trial

court erred in not so ruling in considering the appel-

lant’s motion to acquit.” (App. p. A18.)

On appeal to the Supreme Court of Ohio from its

second setback, the State contended that the second court

of appeals decision should be reversed even if Steagald

dictated that a warrantless entry into Dr. Pembaur’s office

could not be authorized by the capiases in the possession

of the officers who demanded entry. The State argued

that the act of resisting even an unlawful search was

itself unlawful.

The Supreme Court of Ohio, in a decision rendered

on February 8, 1984, adopted the State’s argument, re-

versed the decision of the Hamilton County Court of

Appeals, and reinstated Dr. Pembaur’s conviction. While

recognizing that “Steagald represents the proposition that

absent consent or exigent circumstances, a search warrant

must be obtained in order to seek out the subject of an

arrest warrant on the property of a third party,” (App.

p. A4) the court held that Dr. Pembaur “was not priv-

ileged to physically impede the deputies in their attempt

to locate the subjects of the capiases.” (App. p. A6). The

broad principle upon which the Court’s decision was

based was stated as follows:

“This, of course, is not to hold that law enforce-

ment officials can freely execute capiases and arrest

warrants on third-party premises. A warrantless en-

try, as in this case, may quite possibly result in the ex-

clusion of pertinent incriminating evidence observed in

such entry, and the showing of unreasonable conduct

13

by a law enforcement officer may well provide a

privilege to resist the entry by the occupant. Never-

theless, absent bad faith on the part of a law enforce-

ment officer, an occupant of business premises can-

not obstruct the officer in the discharge of his duty,

whether or not the officer’s actions are lawful under

the circumstances.” (App. p. A6.)

REASON FOR GRANTING THE WRIT

THE DECISION OF THE SUPREME COURT OF

OHIO, ALLOWING A PHYSICIAN TO BE CON.

VICTED OF OBSTRUCTING OFFICIAL BUSINESS

SOLELY UPON PROOF THAT THE PHYSICIAN RE-

SISTED A WARRANTLESS POLICE ENTRY BY RE-

FUSING TO OPEN A DOOR BETWEEN THE RECEP.

TION AREA AND THE INNER PORTION OF THE

PHYSICIAN’S MEDICAL CLINIC, IS IN CONFLICT

WITH APPLICABLE DECISIONS OF THIS COURT,

OF FEDERAL COURTS OF APPEALS, AND OF

OTHER STATE COURTS OF LAST RESORT.

Petitioner, Dr. Bertold J. Pembaur, stands convicted

of the offense of Obstructing Official Business—a viola-

tion of Section 2921.31 of the Ohio Revised Code. His con-

viction rests entirely upon proof that he refused to allow

deputy sheriffs to make a warrantless entry into private

portions of his medical clinic.

Two different panels of the state court of appeals

below concluded, unequivocally, that law enforcement

officers were not legally empowered, without a warrant,

to move from the public reception area of Dr. Pembaur’s

clinic to the inner portions of the clinic. The officers

who sought to enter Dr. Pembaur’s clinic had neither

14

search warrant nor arrest warrant. They acted solely

on the basis of capiases which authorized them to bring

the individuals named in the capiases before a court for

the purpose of allowing those individuals to show cause

why they should not be held in contempt for their alleged

failure to respond to grand jury subpoenas. Ohio Rev.

Code § 2917.21.

The Supreme Court of Ohio acknowledged that a

capias authorizing the seizure of an individual does not

empower a law enforcement official to invade the private

premises of a person not named in the capias. This

Court’s decision in Steagald v. United States, 451 U.S. 204

(1981), compels that decision. Notwithstanding the fact

that capiases afforded no authority for a warrantless entry

into Dr. Pembaur’s medical clinic, the Supreme Court

of Ohio concluded that Dr. Pembaur, by refusing to open

a door for the purpose of allowing such an entry, com-

mitted the crime of Obstructing Official Business (App.

pp. Al-A6).

The decision of the Supreme Court of Ohio converts

the exercise of a constitutionally protected right into a

criminal offense. The decision is in direct conflict with

applicable decisions of this Court, decisions of federal

courts of appeals, and decisions of other state courts of

last resort.

In District of Columbia v. Little, 339 U.S. 1 (1949),

this Court upheld a decision which reversed the convic-

tion of a woman on charges of obstructing an officer in

the performance of his official duties. Conviction had

rested solely upon proof that the woman had refused to

permit an officer to enter her dwelling for the purpose

of conducting a warrantless health inspection. Refusal

to permit entry, this Court held, constituted a lawful

exercise of the right of privacy guaranteed by the Fourth

15

Amendment. Exercise of that right, this Court held, may

not be converted into a criminal offense. Any other result

would substantially erode Fourth Amendment rights by

compelling a Draconian choice between surrender by con-

sent, and conviction by resistance. This Court would not

permit that choice to be imposed:

“Had the respondent not objected to the officer’s

entry of her house without a search warrant, she

might thereby have waived her constitutional objec-

tions. The right to privacy in the home holds too

high a place in our system of laws to justify a stat-

utory interpretation that would impose a criminal

punishment on one who does notning more than re-

spondent did here.”

339 U.S. at 7.

In Camara v. Municipal Court, 387 U.S. 523 (1967),

this Court unequivocally reaffirmed the holding in District

of Columbia v. Little that the exercise of Fourth Amend-

ment rights may not be made the subject of criminal

prosecution. Granting a writ of prohibition to enjoin a

criminal prosecution based upon a citizen’s refusal to

permit a warrantless inspection of his premises, this

Court held that a warrantless health inspection consti-

tutes an unreasonable search, that a citizen has “a con-

stitutional right to insist that the inspectors obtain a

warrant to search,” and that a citizen “may not constitu-

tionally be convicted for refusing to consent to the in-

spection.” 387 U.S. at 540.

The identical result was reached in See v. City of

Seattle, 387 U.S. 541 (1967), where this Court reversed

the conviction of a property owner for refusing to permit

a warrantless inspection of a commercial warehouse. In

terms plainly applicable to the conviction of Dr. Pembaur,

this Court stated:

16

“We hold only that the basic component of a reason-

able search under the Fourth Amendment—that it

not be enforced without a suitable warrant procedure

—is applicable in this context, as in others, to business

as well as to residential premises. Therefore, appel-

lant may not be prosecuted for exercising his consti-

tutional right to insist that the fire inspector obtain

a warrant authorizing entry upon appellant’s locked

warehouse.”

387 U.S. at 546.

Here, Dr. Pembaur was convicted of a criminal offense

solely because he exercised his constitutional right to

resist a warrantless entry upon his property. He exer-

cised that right in a peaceful fashion by simply refusing

to open a door which led to the private portion of his

clinic. Had he opened that door to permit a warrantless

entry, his action might conceivably have constituted a

consent which would effect a voluntary forfeiture of

Fourth Amendment rights. District of Columbia v. Little;

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

The Ohio Supreme Court’s willingness to character-

ize as criminal Dr. Pembaur’s refusal to allow a warrant-

less entry into his office is obviously in direct conflict

with decisions of this Court. It is equally inconsistent

with views expressed by numerous federal courts of

appeals.

In United States v. Prescott, 581 F.2d 1343 (9th Cir.

1978), for example, the Court of Appeals for the Ninth

Circuit reversed a conviction which rested upon proof

that the defendant refused to permit a warrantless entry

into her home pursuant to the demand of a postal inspector

who was looking for the defendant’s neighbor. The de-

fendant did not simply refuse to unlock her door; she

17

also lied to the investigating officer concerning the where-

abouts of the person being sought. As in the instant

case, defense counsel was not permitted to argue that

the defendant was not obliged to consent to the search

of her apartment, and that her refusal to do so might

not be considered as evidence against her. The court

of appeals, after recognizing the presumption that a law

enforcement officer has no right to enter a private dwell-

ing without a warrant, concluded:

“An occupant can act on that presumption and refuse

admission. He need not try to ascertain whether,

in a particular case, the absence of a warrant is ex-

cused. He is not required to surrender his Fourth

Amendment protection on the say so of the officer.

The Amendment gives him a constitutional right to

refuse to consent to entry and search. His asserting

it cannot be a crime. [Citation omitted]. Nor can

it be evidence of a crime. District of Columbia v.

Little, 339 U.S. 1, 7 (1950).”

United States v. Prescott, 581 F.2d at 1350-51.

The position that a citizen may be convicted of ob-

structing official business upon proof that he refused to

submit to a warrantless and unlawful search, adopted

by the Supreme Court of Ohio, has been expressly re-

jected by courts of appeals for the fifth, sixth, and ninth

circuits. See, e.g., United States v. McKinney, 379 F.2d

259 (6th Cir. 1967); Sparks v. United States, 90 F.2d 61

(6th Cir. 1937); Miller v. United States, 230 F.2d 486

(5th Cir. 1956); United States v. Prescott, supra. State

courts of last resort agree that the refusal to consent to

a warrantless entry is not a sufficient basis for a crim-

inal conviction. See, e.g., People v. Wetzel, 11 Cal. 3d

104, 520 P.2d 416, 113 Cal. Rptr. 32 (1974); Jolliff v.

18

State, 215 So. 2d 234 (Miss. 1968); Vince v. State, 39

S.E. 435 (Ga. 1901); State v. Stip, 246 N.W.2d 897 (S.D.

1976); State v. Ludlow, 503 P.2d 1210 (Utah 1972); State

v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970).

The decision of the Supreme Court of Ohio has sub-

stantially eroded Fourth Amendment rights in the State

of Ohio. Unless altered, the rule announced by the court

will impose upon all citizens of the State of Ohio a con-

stitutionally impermissible burden. The exercise of Fourth

Amendment rights will be available only to citizens willing

to pay a very dear price—the substantial possibility of

criminal conviction and the attendant risk of incarcera-

tion. Alternatively, citizens will be compelled to abdicate

the right to be free of warrantless and unreasonable

searches. The choice is constitutionally unacceptable.

See, North Carolina v. Pearce, 396 U.S. 711 (1969); Griffin

v. California, 380 U.S. 609 (1965).

The only remedy which the Supreme Court of Ohio

offers to those subjected to unlawful searches is the pos-

sibility of excluding “pertinent incriminating evidence”

which may be seized (App. p. A6). By its decision, the

court converts the exclusionary rule, originally intended

solely as a means of deterring unlawful police action,

into the sole remedy available to the victim of an uncon-

stitutional entry and search. This Court has frequently

recognized that the purpose of the exclusionary rule is

deterrence, not redress. £.g., Michigan v. DeFillippo,

443 U.S. 31 (1979); United States v. Janis, 428 US. 433

(1976). This Court has also recognized that the exclu-

sionary rule is a wholly inadequate means of redressing

the violation of Fourth Amendment rights. E.g., Link-

letter v. Walker, 381 U.S. 618, 637 (1965). The rule that

a citizen may not be criminally prosecuted for refusing

19

to consent to a warrantless search, as the United States

Court of Appeals for the Ninth Circuit observed, protects

lawful conduct. The objective of the rule is not to deter

future transgressions:

“The rule that we announce does not have as

its raison d’etre the deterrence of unlawful conduct

by law enforcement officers, as does the rule ex-

cluding evidence discovered and seized in the course

of an unlawful search. Rather, it seeks to protect

the exercise of a constitutional right, here the right

not to consent to a warrantless entry.”

United States v. Prescott, 581 F.2d at 1351.

The absurdity of the decision of the Supreme Court

of Ohio is that it would serve to protect only the guilty.

Unless the victim of the unlawful entry happened to

be in possession of incriminating evidence, he would have

no redress. Dr. Pembaur is a member of that class of

victiuns.

The record, in the instant case, is wholly devoid of

any evidence that Dr. Pembaur engaged in any conduct

which was not protected by the Fourth and Fourteenth

Amendments of the Constitution of the United States.

To permit conviction to rest upon proof of such conduct

constitutes a violation of due process of law. Thompson

v. Louisville, 362 U.S. 199 (1960); Jackson v. Virginia,

443 U.S. 307 (1979).

The privacy of a professional office is, in some re-

spects, more sacred than that of a private dwelling. A

physician, for example, must be concerned not only with

his own privacy. He must also be concerned with the

confidentiality of the patient files in his possession and

with the immediate privacy of those whom he treats.

20

Fully aware of his professional obligations, and sen-

sitive to his rights as a citizen, Dr. Pembaur refused to

allow a warrantless invasion of his office. He did not

engage in violence. He injured no one. He sought legal

advice. He did nothing he was not entitled to do.

The Supreme Court of Ohio, by permitting a con-

viction to rest upon proof of such behavior, has seriously

undermined the right of privacy. It has jeopardized the

confidentiality of the relationship between physician and

patient. It has disregarded the fundamental rule that

criminal convictions may not rest upon proof of consti-

tutionally protected behavior.

CONCLUSION

For the reasons set forth above, Petitioner respect-

fully requests that a Writ of Certiorari issue to the

Supreme Court of Ohio, to review the final judgment

rendered by that Court on February 8, 1984.

Respectfully submitted,

GERALD A. MESSERMAN, Counsel of Record

MESSERMAN & MESSERMAN Co., L.P.A.

1525 Ohio Savings Plaza

Cleveland, Ohio 44114

(216) 574-9990

Counsel for Petitioner

Al

APPENDIX

OPINION OF THE SUPREME COURT OF OHIO

(Decided February 8, 1984)

No. 82-1757

THE SUPREME COURT OF OHIO

THE STATE oF Ouro, City or CoLUMBUS

STATE OF OHIO,

Appellant,

VS.

BERTOLD PEMBAUR,

Appellee.

[9 Ohio St. 3d 136]

Criminal Law—search and seizure: occupant of business

premises cannot obstruct officer in discharging his

duty, when; lawfulness of officer’s actions irrelevant;

R. C. 2921.31 (A) violated, when.

Absent bad faith on the part of a law enforcement officer,

an occupant of business premises cannot obstruct the

officer in the discharge of his duty, whether or not

the officer’s actions are lawful under the circumstances.

(Columbus v. Fraley, 41 Ohio St. 2d 173 [70 0.0. 2d

335], followed. )

AppgaL from the Court of Appeals for Hamilton

County.

On May 19, 1977, two Hamilton County sheriff’s

deputies attempted to serve bench warrants, or capiases,

upon two employees of the Rockdale Medical Center. The

A2

bench warrants were issued after a hearing in open court.

The capiases stated that both parties had been lawfully

served with subpoenas to appear before the grand jury, and

that each of them had failed to appear. There has been no

issue raised to this court as to the validity of the capiases.

The Rockdale Medical Center is a medical clinic op-

erated by defendant, Bertold J. Pembaur, M.D., and is open

to the public. The deputies arrived at the medical center

during business hours, and the two employees whom they

sought were apparently at the center. The officers entered

by the front door and went into a general recepti»n room

which was also open to the public. After entering the

outer office, one deputy sat down in the reception area and

the other approached the receptionist, who was in a sepa-

rate office but visible through a window. The deputy

identified himself to the receptionist and stated his busi-

ness.

The receptionist informed the deputies that they were

not permitted to enter the inner office area in order to

serve the capiases, and that they should wait for the defen-

dant. Shortly thereafter defendant appeared from some-

where inside the clinic and, with the aid of the receptionist,

closed and barred the door leading from the reception area

to the inner office. The deputies showed the capiases to

defendant and explained their contents. Defendant told

the deputies that the papers were illegal and that the judge

made a mistake in signing them. Defendant stated that

he was going to call the police, as well as his attorney.

Two Cincinnati police officers arrived within several

minutes. They tried to explain the nature of the capiases

to defendant and his duty to obey them. Defendant con-

tinued to contend that the capiases were illegal and asked

the officers to wait until his attorney arrived. After sev-

eral other police officers [137] were on the scene and the

A3

group had waited approximately two hours, the deputies

broke through the office door with an axe. Once inside,

they were unable to locate either of the individuals named

in the bench warrants.

Defendant was charged, along with two other em-

ployees, with obstructing official business, pursuant to R. C.

2921.31(A). This charge, count six of the indictment, was

severed from the five other charges against defendant.

The case was tried to a jury, which returned a verdict of

guilty.

The court of appeals reversed defendant’s conviction,

but this court vacated that decision and ordered a rehear-

ing. See State v. Pembaur (1982), 69 Ohio St. 2d 110 [23

0.0. 3d 159]. The court of appeals issued a second deci-

sion, again reversing defendant’s conviction.

The court of appeals held that defendant was priv-

ileged, under R.C. 2921.31 (A), to exclude the deputies

from his office, as he was protected against unreasonable

searches and seizures by the Fourth Amendment to the

United States Constitution. That court noted that an ar-

rest warrant does not give an officer authority to enter

the home of a third party, absent consent or exigent cir-

cumstances, in order to find the subject of the warrant.

Steagald v. United States (1981), 451 U.S. 204. The court

reasoned that a private office was no different for search

warrant purposes than a private home, citing Mancusi v.

DeForte (1968), 392 U.S. 364. The court concluded that

defendant was privileged to exclude the deputies from his

office unless and until they obtained a search warrant.

That court also found error in the instruction concerning

privilege which had been given to the jury.

The cause is now before this court pursuant to the

allowance of a motion for leave to appeal.

A4

Simon L. Leis, Jr., prosecuting attorney, Mr. Wil-

liam E. Breyer, Mr. Leonard Kirschner and Mr. Bruce

S. Garry, for appellant.

Messerman & Messerman Co., L.P.A., and Mr. Gerald

A. Messerman, for appellee.

Reimiy, J. The key issue presented in this case is

whether a person may obstruct a law enforcement officer

in the discharge of that officer’s duty, when the person be-

lieves that the officer's conduct is unlawful. The state

contends that this court should hold that a capias or an

arrest warrant includes the authority to enter the business

premises of a third party when the officer reasonably

believes the subject named in the warrant will be found

therein. Notwithstanding, it is not necessary to deter-

mine the authority conferred by a capias in this appeal,

nor to announce the broad rule of law urged by the state.

It is noteworthy that the rationale of the United States

Supreme Court in Steagald, supra, is equally persuasive

concerning the contrast of a private business premises to a

private home. Steagald addressed the rights of a third

party, not named in the arrest warrant, to be free from an

unreasonable search and seizure in his home, and held that

this right is not accorded adequate protection by the issu-

ance of an arrest warrant for the person named [138] in the

warrant. Hence, Steagald represents the proposition that,

absent consent or exigent circumstances, a search warrant

must be obtained in order to seek out the subject of an

arrest warrant on the property of a third party.

Nonetheless, this appeal does not involve a conviction

based upon the fruits of a warrantless search, such that the

legality of the search must be analyzed. Instead, the con-

viction in question is based upon the conduct of defendant

prior to any such search. Therefore, Steagald is not con-

trolling in this case.

A5

Defendant was convicted under R. C. 2921.31(A), which

reads as follows:

“No person, without privilege to do so and with pur-

pose to prevent, obstruct, or delay the performance by a

public official of any authorized act within his official

capacity, shall do any act which hampers or impedes a

public official in the performance of his lawful duties.”

Unquestionably, defendant impeded the deputies in

their attempt to execute the capiases. The question, as

the court of appeals correctly determined, was whether de-

fendant was privileged to do so.

The crux of this case is the applicability of Columbus

v. Fraley (1975), 41 Ohio St. 2d 173 [70 0.0. 2d 335]. There

we held in the third paragraph of the syllabus that:

“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 per-

formance of his duties, whether or not the arrest is illegal

under the circumstances.”

In altering the common-law rule granting a person

the right to resist an unlawful arrest, the Fraley court

deemed it preferable, considering the crunch of modern

society, to resolve questions concerning the legality of po-

lice conduct in the courts through peaceful means rather

than on the street in potentiaily violent confrontation.

Fraley is determinative in the present case. Although de-

fendant may well successfully challenge the use against

him of any evidence obtained by the deputies in their

search for defendant’s employees, defendant was not priv-

ileged to physically impede the deputies in their at-

tempt to locate the subjects of the capiases.

This, of course, is not to hold that law enforcement

officials can freely execute capiases and arrest warrants

A6

on third-party premises. A warrantless entry, as in this

case, may quite possibly result in the exclusion of pertinent

incriminating evidence observed in such entry, and the

showing of unreasonable conduct by a law enforcement of-

ficer may well provide a privilege to resist the entry by

the occupant. Nevertheless, absent bad faith on the part

of a law enforcement officer, an occupant of business

premises cannot obstruct the officer in the discharge of

his duty, whether or not the officer’s actions are lawful un-

der the circumstances. The facts in this case do not

show bad faith on the part of the deputies, or any other

circumstances which would provide a privilege on the part

of defendant to obstruct the deputies in the discharge of

their duties.

[139] While the court of appeals also held that the trial

court’s instruction on privilege was inadequate and im-

proper, a review of the charge, considering the issue pre-

sented by this case, shows that such charge was not er-

roneous. The term “privilege” is defined by R. C.

2901.01(L), and the instruction which was given quoted

the statutory definition. Such instruction was sufficient to

allow the jury to determine whether defendant was priv-

ileged to act under R. C. 2921.31(A). This is so because

Fraley stated that the legality of the police action, absent

excessive force, is not a factor to consider when determin-

ing whether a privilege to resist exists.

For the foregoing reasons, the judgment of the court

of appeals is reversed.

Judgment reversed.

CELEBREZZE, C.J., SWEENEY, HOLMES, and C. Brown, J.J.

concur.

Locuer, J. concurs in judgment only. W. Brown, J. dis-

sents.

Remy, J., of the Tenth Appellate District sitting for

J. P. CELEBREZZE, J.

A7

JUDGMENT ENTRY OF THE COURT OF APPEALS

OF HAMILTON COUNTY, OHIO

(Entered November 3, 1982)

No. C-790380

COURT OF APPEALS

First APPELLATE DISTRICT

HAMILTON CouUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

BERTOLD J. PEMBAUR,

Defendant-Appellant.

JUDGMENT ENTRY

This cause came on to be heard upon the appeal on

questions of law, assignments of error, the record from

the Court of Common Pleas of Hamilton County, Ohio,

the briefs and the arguments of counsel.

Upon consideration thereof, the Court finds that the

assignments of error are well taken in part for the reasons

set forth in the Opinion filed herein and made a part

hereof.

It is, therefore, Ordered by the Court that the judg-

ment of the Court of Common Pleas of Hamiiton County,

Ohio be, and the same hereby is, reversed and the ap-

pellant is hereby ordered discharged.

It is further Ordered that a mandate be sent to the

Court of Common Pleas of Hamilton County, Ohio, for

execution upon this judgment.

.

A8

Costs to be taxed in compliance with Rule 24, Appel-

late Rules.

And the Court being of the opinion that there were

reasonable grounds for this appeal, allows no penalty.

It is further Ordered that a certified copy of this

Judgment, with a copy of the Opinion attached, shall con-

stitute the mandate pursuant to Rule 27, Ohio Rules of

Appellate Procedure.

To all of which the appellee, by its counsel, excepts.

AQ

OPINION OF THE COURT OF APPEALS

OF HAMILTON COUNTY, OHIO

(Filed November 3, 1982)

No. C-790380

IN THE COURT OF APPEALS

First APPELLATE DISTRICT OF OHIO

HAMILTON County, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

BERTOLD J. PEMBAUR,

Defendant-Appellant.

APPEAL FROM THE CouRT OF COMMON PLEAS

HAMILTON CounTY, OHIO

OPINION

CELEBREZZE, J.

On June 24, 1972, [sic] the grand jury of Hamilton

County charged the defendant-appellant, Dr. Bertold Pem-

baur, along with three other persons in a multiple count in-

dictment. Count one charged the appellant and Mary Ruth

McMahan with theft (R.C. 2913.02). Based upon the

same facts underlying the first count, count two charged

Pembaur with receiving stolen property (R.C. 2913.51).

Count three charged that the appellant had caused a wit-

ness, Marjorie McKinley, to commit perjury before the

grand jury (RC. 2923.03). Both the fourth and [2]

sixth counts charged the appellant with obstructing of-

Al0

ficial business (R.C. 2921.31). Two other individuals,

Peggy Sherman and Earlene Thompson, were named as

codefendants in the sixth count. Finally, count five charged

the appellant with obstructing justice (R.C. 2921.32).

The appellant entered a plea of not guilty to each of

the charges. On August 4, 1977, he filed a motion to dis-

miss the indictment asserting that the grand jury was com-

posed of an insufficient number of jurors, that an un-

authorized person appeared before the grand jury thereby

rendering its proceedings void, and that the indictment was

unconstitutionally vague. An evidentiary hearing was con-

ducted, and the motion was overruled by the trial court.

Upon oral motion by the prosecuting attorney, the trial

court agreed to sever count six from the remaining counts

and to try count six first. The appellant objected to this

procedure and filed a motion to rejoin the counts. On No-

vember 16, 1977, he filed a motion to reschedule the trials so

as to permit counts one through five to be tried first. Both

of these motions were denied and the case proceeded to

trial.

At trial, the prosecution sought to prove that the ap-

pellant had wrongfully hampered Hamilton County sheriffs

in their attempt to serve capiases on two individuals em-

ployed by the appellant at his office located in the Rock-

dale Medical Center in Cincinnati. The capiases had been

issued as these employees had failed to obey a summons to

testify before the grand jury in a separate case concerning

Dr. Pembaur.

Deputy Sheriffs Frank Webb and David Allen testified

that on May 19, 1977 at approximately 2:00 p.m, they

went to the medical center dressed in civilian clothes and

attempted to serve the capiases on Marjorie [3] McKinley,

a secretary, and Kevin Maldon, a doctor at the center.

Ail

(Tr. 323, 389.) After entering the outer office, Webb sat

down in the reception area and Allen went to the window.

He stated that he was a policeman, showed his identifi-

cation, and said that he wanted to see Mrs. McKinley.

(Tr. 326-327, 391-392.) He saw a woman fitting McKin-

ley’s description get up from her desk and disappear into

another room. The woman remaining at the reception

window was Pembaur’s codefendant, Peggy Sherman. She

told Allen that he could not come in and that he would

have to wait for the doctor. (Tr. 327, 392.)

At this point, Allen went to the door next to the win-

dow to gain admittance to the inner office. Sherman

slammed the door closed. The appellant appeared from

inside and wedged a board in the door to keep it shut.

(Tr. 327, 392.) The sheriffs showed the capias papers

to the doctor and explained what they meant. Pembaur

told the sheriffs that the papers were illegal and that the

judge had made a mistake in signing them. He stated that

he was going to call the police as well as his attorney.

(Tr. 328-330, 393. )

Within several minutes, two Cincinnati police officers

arrived. (Tr. 331, 394.) These officers tried to explain the

nature of the capiases to Pembaur as well as his duty to

obey. (Tr. 336.) Pembaur continued to assert that the

papers were illegal and asked the officers to wait until his

attorney arrived. After several other police officers ar-

rived and the group had waited approximately two hours,

the deputy sheriffs broke through the office door with an

axe. (Tr. 338-342, 396-400.) Once inside, they were un-

able to locate either of the two individuals named in the

capias. (Tr. 342-343, 400.)

[4] Marjorie McKinley testified that she was present

in the office when the deputy sheriffs arrived. Pembaur

instructed her to stay in his office and to contact his attor-

Al2

ney. (Tr. 521-523.) Peggy Sherman later led McKinley

up a back stairway and into a hallway. She waited there

with Dr. Maldon until the officers left. (Tr. 523-527.)

The appellant admitted blocking the door so that the

officers could not come inside the office. However, he

stated that he was only attempting to protect his em-

ployees; patients and records. (Tr. 582.) During the

period that the officers were waiting in the outer office,

Pembaur called a nurnber of attorneys in an attempt to

get advice as to how to handle the situation. (Tr. 579-580.)

He also tried to call two judges of the Common Pleas Court

who were involved in other matters pertaining to the ap-

pellant’s affairs. (Tr. 581.) The appellant was unsuccess-

ful in all these attempts.

On May [sic] 5, 1977, the jury found the appellant to be

guilty as charged in the indictment. The appellant there-

after filed a timely notice of appeal to this Court and his

conviction was reversed. However, the State of Ohio then

obtained a reversal of that judgment as one of the judges

concurring in this Court’s two-to-one majority decision had

resigned before the opinion was released.

Accordingly, this matter is now before us on rehearing

and the appellant asserts the following assignments of error

for our consideration:

[5] First Assignment of Error:

THE TRIAL COURT ERRONEOUSLY DENIED MO-

TIONS FOR JUDGMENT OF ACQUITTAL AT THE

CONCLUSION OF THE STATE’S CASE AND AT

THE CONCLUSION OF ALL OF THE EVIDENCE

(R. 569, 653, 658).

1. Upon Proof Which Consisted Solely of Evi-

dence Demonstrating that Appellant, a Physician, Re-

Al3

fused to Allow Deputy Sheriffs to Enter his Office

for the Purpose of Serving Capiases on a Secretary

and a Physician, After Repeatedly Requesting the Dep-

uties to Wait Until he Contacted his Attorney, the

Trial Court Erroneously Concluded that the Evidence

was Sufficient to Warrant Conviction on a Charge of

Obstructing Official Business.

2. Dr. Pembaur’s Refusal to Allow Law Enforce-

ment Officials to Enter his Office for the Purpose of

Arresting Employees Solely on the Basis of Capiases

which had been Illegally Issued Does Not Constitute

the Crime of Obstructing Official Business.

Second Assignment of Error:

THE TRIAL COURT ERRONEOUSLY CHARGED

THE JURY IN A MANNER WHICH BARRED A

FAIR DETERMINATION OF THE QUESTION OF

GUILT OR INNOCENCE (R. 654-59, 719-23, 741, 782).

1. In a Trial on a Charge of Obstructing Official

Business in Violation of R.C. 2921.31, a Jury, Upon

Request, Must be Properly Instructed Concerning the

Term “Privilege” as that Term is Used in R.C. 2921.31,

With Specific Reference to the Particular Legal Rights

Asserted by the Defendant to Justify his Challenged

Conduct.

2. In a Trial on a Charge of Obstructing Official

Business, Arising Out of a Physician’s Refusal to Ad-

mit Deputy Sheriffs Into a Medical Office to Serve

Capiases on Two Persons Who Allegedly Failed to Re-

spond to Subpoenas, the Trial Court Erroneously In-

structed the Jury that the Physician Was Require1 to

Admit the Deputies Regardless of the Validity of the

Capiases.

Al4

3. In Charging the Jury on the Definitions of

“Reasonable Doubt” and “Proof Beyond a Reasonable

Doubt,” the Court So Diluted the Standard of Proof

Imposed Upon the State as to Deny Appellant Due

Process of Law.

[6] Third Assignment of Error:

THE TRIAL COURT ERRED IN DENYING A MO-

TION TO DISMISS THE INDICTMENT (Tr. 303).

1. Upon Proof that the Prosecutor Had Engaged

in a Pattern of Conduct Before the Grand Jury Which

Eradicated the Necessary Separation Between Prose-

cutor and Grand Jury, the Indictment Should Have

Been Dismissed.

2. The Grand Jury Which Returned the Indict-

ment, Because it Consisted of Only Nine Persons,

Was Not Properly Constituted Pursuant to Article I,

Section 10, of the Ohio Constitution and R.C. 2939.02.

w 3. Count VI of the Indictment is Defective on

Its Face.

Fourth Assignment of Error:

THE TRIAL COURT ERRED IN DENYING APPEL-

LANT’S DEMAND FOR A JURY OF TWELVE (R.

4, 35).

1. Although the Due Process Clause of the Fourth

Amendment Does Not Require that State Juries in

Criminal Cases Always Consist of Twelve Persons, the

Ohio Constitution, as Interpreted by the Ohio Supreme

Court, Does Require Juries of Twelve in Misdemeanor

Cases.

Al5

Fifth Assignment of Error:

A PERVASIVE DISREGARD OF FAIR PROCE-

DURES BY THE TRIAL COURT AND THE PROSE-

CUTOR OPERATED TO DENY APPELLANT A FAIR

TRIAL (R. 45, 303).

1. The Trial Court Erred in Denying an Applica-

tion for Reassignment of the Case Where, at the Time

the Application Was Filed, the Record Demonstrated

that the Trial Judge Was the Third Judge to Whom

the Case Had Been Assigned, that Appellant Had Re-

quested Removal of Neither of the Prior Judges, that

Neither of the Prior Judges Had Been Properly Re-

moved, and that Neither Had Been Properly Replaced.

[7] 2. In Granting a Motion to Sever the Sixth

Count of the Indictment, a Misdemeanor Charge, and

Forcing Appellant to Trial on the Sixth Count Over

Vigorous Defense Objection, Repeated Defense Re-

quests that the Case Be Reconsolidated for Trial or

that the Felony Charges Contained in the Indictment

be Tried Before the Sixth Count, the Court Denied

Appellant a Fair Trial.

3. The Trial Court Repeatedly Permitted Police

Officers to Testify to Legal Conclusions, Allowed the

| Prosecutor to Support Those Conclusions by Argu-

ment Containing Erroneous Statements of the Law,

and Persistently Barred Appellant From Producing

Qualified Expert Opinion Testimony Concerning the

Legal Issues Raised.

4. The Trial Court Erroneously Considered and

Denied a Motion to Transfer the Case to the Hamilton

County Municiel Court for Trial.

5. During Closing Argument, the Prosecutor Re-

peatedly Made Inflammatory Arguments and Uttered

Al6

Erroneous Statements of Law, All Condoned by the

Court, in the Presence of the Jury.

Sixth Assignment of Error:

THE TRIAL COURT ERRONEOUSLY DENIED A

MOTION TO SUPPRESS EVIDENCE (R. 303).

1. Upon Evidence Demonstrating a Disregard of

Virtually Every Safeguard Designed to Protect Against

Unlawful Invasion of a Citizen’s Privacy, the Court

Denied a Motion to Suppress Evidence.

[8] I.

The appellant was convicted of the offense of obstruct-

ing official business. That offense is defined in R.C.

2921.31 as follows:

(A) No person without privilege to do so and with

purpose to prevent, obstruct, or delay the performance

by a public official of any authorized act within his

official capacity, shall do any act which hampers or

impedes a public official in the performance of his

lawful duties. (Emphasis added.)

In his first assignment of error, the appellant asserts

that the trial court erred in failing to acquit him of this

charge. It is his contention that the capiases issued pur-

suant to R.C. 2317.21! and presented by the deputy sher-

1. R.C. 2317.21 sets forth the procedure for dealing with

a witness who fails to obey a subpoena and provides in part:

When a witness, .. . fails to obey a subpoena personally

served, the court or officer, before whom his attendance is

required, may issue to the sheriff, coroner, or a constable

of the county, a writ of attachment, commanding him to

arrest and bring the person named in the writ before such

court or officer at the time and place the writ fixes, to give

his testimony and answer for the contempt... .

Al?

iffs were insufficient, under both the United States and

Ohio Constitutions, to validate a third party search of his

office. As such, the appellant contends that his actions

in refusing the officers access to his office were “priv-

ileged” within the meaning of R.C. 2921.31 and R.C.

2901.01(L).? In a related argument, the appellant further

asserts that even if such capiases could have been sufficient

if properly issued, they were not so in this case as they

lacked proof of personal service as required under the

Ohio Revised Code.

[9] It is well settled that except in certain clearly

defined circumstances, a search of private property without

proper consent is unreasonable unless authorized by a

valid search warrant. United States v. Jeffers (1951),

342 U.S. 48; Camara v. Municipal Court (1967), 387 U.S.

523. Warrantless searches and seizures taking place within

a private home are presumptively unreasonable. Coolidge

v. New Hampshire (1971), 403 U.S. 443. Moreover, for

purposes of constitutional protection, the individual’s

private office is treated in a like manner to his home.

Mancusi v. DeForte (1968) , 392 U.S. 364.

In the instant matter, the prosecution did not claim

the existence of such exceptional circumstances as to neces-

sitate the warrantless intrusion into the appellant’s private

office. Rather, the State asserts that the capiases presented

by the Hamilton County deputy sheriffs were of the same

effect as an arrest warrant and were therefore sufficient

to permit the forcible intrusion into and search of Pem-

baur’s office. We do not agree.

2. R.C. 2901.01(L) defines the term “privilege” as follows:

“Privilege” means an immunity, license, or right con-

ferred by law, or bestowed by express or implied grant, or

arising out of status, position, office, or relationship, or

growing out of necessity.

Als

It is not necessary for us to determine whether the

capiases were the functional equiva‘ent of arrest warrants

in this case. The United States Supreme Court has already

determined that the search of a person’s home pursuant to

the arrest warrant for another is violative of the Fourth

Amendment to the U.S. Constitution in the absence of an

actual search warrant. Steagald v. United States (1981),

451 U.S. 204. In the case cited, the Court noted that the

primary purpose of an arrest warrant is to protect the

individual from unreasonable seizures while a search war-

rant guards the individual’s privacy of home and posses-

sions against unjustified intrusions. Accordingly, the Court

held that an arrest warrant is inadequate to protect the

interests of individuals not named in the warrant and that,

in the absence of exigent circumstances, an actual search

warrant is required. Id. at 212-214.

[10] Based upon the foregoing, we are compelled to

conclude that because the law enforcement officers in this

case possessed no valid search warrant and there were no

circumstances obviating the warrant requirement, the ap-

pellant did have a right to refuse their entry into his

office. Accordingly, the appellant’s actions were privileged

within the meaning of R.C. 2921.31(A) and the trial court

erred in not so ruling in considering the appellant’s motion

to acquit.

We finally note the appellant’s argument that the

capiases themselves were invalid due to lack of personal

service upon the witnesses. In light of our conclusions

above, it is not necessary to address this question. Whether

validly issued or not, the documents were insufficient to

authorize the search.

Accordingly, the first assignment of error is well

taken.

Al9g

II.

In the first and second portions of his second assign-

ment of error, the appellant takes issue with the trial

court’s instructions on the subject of privilege. The perti-

nent portions of the court’s charge are as follows:

One of the elements which the State of Ohio must

prove beyond a reasonable doubt is that the deien-

dants acted as they did without privilege to do so.

Privilege is a term which is defined by statute

in Ohio under Revised Code 2901.01, Subsection L,

which says, privilege means an immunity or a license

or a right conferred by law, or bestowed by express

or implied grant, or arising out of status or a position

or an office or relationship, or growing out of neces-

sity.

[11] Section 2935.12 of the Ohio Revised Code

provides as follows: When making an arrest or exe-

cuting a warrant for the arrest of a person charged

with an offense, or a search warrant, the officers mak-

ing the arrest may break down an outer or inner door

or window of a dwelling house or other building, if,

after notice of his intention to make such arrest or

such search, he is refused admittance, but an officer

executing a search warrant shall not enter a house or

building not described in the warrant.

The power to compel the attendance and testimony

of witnesses is an inherent power of the courts.

An order issued by a court with jurisdiction over

the subject matter and the parties must be obeyed by

the parties until it is reversed by orderly and proper

proceedings. (Tr. 729-730.)

A20

It is the appellant’s contention that this charge was in-

complete and a misstatement of the applicable law.

It is our conclusion that the court’s instructions were

_ indeed in error. A mere recitation of the statutory defini-

tion of privilege was not sufficient to explain tHat very

material issue. Moreover, the overall charge invited the

jury to find the appellant guilty regardless of the nature

and validity of the documents presented to him by the

Hamilton County deputy sheriffs. In light of our findings

in the foregoing assignments of error, this was clearly

erroneous.

In the remaining section of his second assignment of

error, the appellant asserts that the court erred in its

charge on the definition of “reasonable doubt” and “proof

beyond a reasonable doubt”. The appellant admits that

the court’s instructions were consistent wit the [12] bur-

den of proof set forth in R.C. 2901.05(D),* but asserts that

the statutory language is an unconstitutional dilution of

the standard of proof required by due process. We do

not agree for the reason that the Ohio Supreme Court

has already addressed this argument and rejected it. See

State v. Nabozny (1978), 54 Ohio St. 2d 195.

Based upon our discussion of the first and second

arguments of this section, we find the second assignment

of error to be well taken.

3. Revised Code 2901.05(D) states as follows:

“Reasonable doubt” is present when the jurors, after

ee eae compares at the ove

con of the

reason

A21

ITI.

In his third assignment of error, the appellant asserts

that the trial court erred in denying the motion to dis-

miss the indictment. It is his contention that the grand

jury proceedings were conducted in an irregular fashion

and that the indictment was defective.

First, the appellant challenges the conduct of the

county prosecutors during the grand jury proceedings.

The appellant asserts that the grand jury room is located

within the prosecutor’s office and that due to this prox-

imity, the jury is not sufficiently independent of the

prosecutor. He also asserts that the number of assistant

prosecutors appearing before the grand jury was not

properly controlled as at least five different prosecutors

were in attendance. Finally, the appellant asserts that

one of the assistant prosecutors, William Whalen, should

have been disqualified from handling this case as he ap-

peared as a [13] witness before the grand jury and was also

a party defendant in a pending civil suit earlier filed by

the appellant.

Upon review of the record below, we are unable to find

merit in any of the above contentions. There is nothing

in the record to indicate that the location of the grand

jury room, the number of prosecutors appearing before the

grand jury, or the fact that Whalen had been civilly sued

by the appellant had any impact whatsoever, prejudicial

or otherwise, on the outcome of the proceedings below.

Moreover, the record demonstrates that Whalen’s testi-

mony consisted of simply turning over his investigatory

files to the grand jury. Accordingly, this portion of the

appellant’s assignment of error is without merit.

The appellant next argues that the grand jury was not

properly constituted under Article I, Section 10 of the

A22

Ohio Constitution’ as well as R.C. 2939.02° in that it con-

sisted of only nine, rather than fifteen, members.

This argument has been previously considered and re-

jected by this Court. In the case of State v. Wilson (1978),

57 Ohio App. 2d 11, it was determined that since the num-

ber of grand jurors does not affect any substantive rights

of the accused, R.C. 2939.02 is superseded by [14] Crim.

R. 6(A), which provides as follows:

. The grand jury shall consist of nine members,

including the foreman, plus not more than five al-

ternates.

The Courts of Appeals of Hancock and Cuyahoga Counties

have concurred in this result. See State v. Juergens (1977),

55 Ohio App. 2d 104; State v. Moore (Cuyahoga Cty. Ct.

App. 1979) No. 38725. Accordingly, we see no merit in

this aspect of the appellant’s assignment of error.

The appellant’s final argument is that the indictment

against him was defective in that it ended with the phrase

“.. , and against the peace and dignity of the Ohio Re-

vised Code’’, rather than “. . . and against the peace and

dignity of the State of Ohio” as is required under Article

IV, Section 20, of the Ohio Constitution. Although this was

a defect in the indictment, we note that the appellant

failed to bring it to the attention of the trial court in his

4. Ohio Constitution, Article I, Section 10, provides in

part:

.. . [N]o person shall be held to answer for a capital, or

otherwise infamous, crime, unless on presentment or indict-

ment of a grand jury; and the number of persons necessary

to constitute such grand jury and the number thereof neces-

ore to concur in finding such indictment shall be determined

y law...

5. Revised Code 2939.02 states:

Grand juries shall consist of fifteen persons, resident

electors of the county... .

A23

motion to dismiss. Therefore, since the error is nonjuris-

dictional in nature it is waived. See Crim. R. 12(B) (2).

On the basis of the foregoing, the third assignment of

error is overruled.

IV.

In his fourth assignment of error the appellant claims

that he was denied a fair trial in this case as the jury

consisted of eight members rather than twelve. We do

not agree.

Criminal Rule 23(B) provides for juries of eight in

misdemeanor cases. In the case of State, ex rel. Columbus

v. Boyland (1979), 58 Ohio St. 2d 490, the Ohio Supreme

Court held that this rule does not violate any constitutional

prohibitions and is therefore valid.

Accordingly, the assignment of error is overruled.

[15] V.

In his fifth assignment of error, the appellant asserts

that the trial court and prosecutor disregarded proper

trial procedure in such a manner as to deny him a fair

trial. In support of this contention, the appellant raises

five separate issues.

First, the appellant asserts that the trial court erred

in denying his motion to have this case assigned to a dif-

ferent judge. This case was originally assigned to Judge

Nurre and was later transferred to Judge Doan. It fin-

ally came to be assigned to Judge Morrissey who presided

over it to completion. Until the appellant filed an ap-

plication to remove Judge Morrissey, written disqualifi-

cations of the first two judges and/or written orders re-

assigring the case were not filed. However, after the

appellant's application was filed, nunc pro tunc orders were

entered.

A24

The appellant asserts that the procedure outlined above

violated the Local Rules of Hamilton County® and served

as a basis for removing Judge Morrissey from the case.

We do not agree. Although accomplished by nunc pro

tunc entries, the record indicates that the case was re-

assigned in accordance with the applicable local rules.

See State v. Durham (1976), 49 Ohio App. 2d 231, 234.

We find nothing in the record to indicate that the ap-

pellant was in any way prejudiced by these events.

The appellant’s second contention is that the Court

erred in severing count six of the indictment and trying

that offense prior [16] to the other five counts. Under

Crim R. 14,’ the trial court has discretion to grant separate

trials for different counts contained in an indictment. Ab-

sent a showing of abuse of discretion and resulting prej-

udice, the trial court’s decision will not be disturbed on

appeal. State v. Torres (1981), 66 Ohio St. 2d 340; State

v. Perod (1968), 15 Ohio App. 2d 115.

6. Hamilton County Local Rule 7(E) provides:

When necessary or proper a judge may disqualify him-

self from a particular case. In those circumstances, that

judge shall inform the Administrative Judge in writing of

his disqualification and upon approval of the Administrative

Judge, the Court Administrator will reassign the case pur-

suant to Rule 7(B) and (C) above. The writing will be an

official entry.

7. Criminal Rule 14 states, in part:

If it appears that a defendant or the state is prejudiced

by a joinder of offenses or of defendants in an indictment,

information, or complaint, or by such joinder for trial to-

gether of indictments, information or complaints, the court

shall order an election or separate trial of counts, grant a

severance of defendants, or provide such other relief as

justice requires. In ruling on a motion by a defendant for

severance, the court shall order the prosecuting attorney to

deliver to the court for inspection pursuant to Rule 16(B)

(1) (a) any statements or confessions made by the defendants

which the state intends to introduce in evidence at the

A25

In this case, the sixth count of the indictment was

separately tried at the request of the appellant’s two co-

defendants, Earlene Thompson and Peggy Sherman, who

were not named in counts one through five. The record

indicates that count six involved a separate factual setting

and issues than the remaining counts. Under these cir-

cumstances, we cannot say that the court’s decision in

separating the counts constituted an abuse of discretion.

The appellant’s third claim is that the trial court erred

in prohibiting him from producing expert testimony on

the issue of whether his actions toward the deputy sher-

iffs were “privileged”. The appellant notes that various

law enforcement officials testifying for the prosecution

were permitted to refer to the capiases as warrants and

express their opinion as to their validity.

{17} In light of our findings in the appellant’s first

and second assignments of error, this claim is without

merit. Moreover, any improper statements made by the

officers were cured by the trial court’s limiting instructions

given at the conclusion of the trial. (Tr. 729.)

The appellant further asserts, however, that the prose-

cutor was permitted to make erroneous statements of the

law in the presence of the jury. The appellant notes that

the prosecutor repeatedly interrupted the defense counsel’s

closing argument and interjected comments that arrest war-

rants were not necessary to validate the search of Dr.

Pembaur’s office. (Tr. 687-692.) We agree with the ap-

pellant that such statements were erroneous and should

not have been tolerated by the trial court. See Turner v.

State (Montgomery Cty. Ct. App. 1932), 21 Ohio Law Abs.

276. However, we further conclude that due to the court’s

later curative instructions, the appellant’s right to a fair

trial was not impaired by these comments. See State v.

Hill (1977), 52 Ohio App. 2d 393.

A26

The appellant’s final claim is that the trial court erred

in denying his motion to transfer count six, a misdemeanor,

to the Municipal Court for trial. A misdemeanor indict-

ment may be transferred to another court only under

the circumstances set forth in Crim. R. 21(A):

Where an indictment or information charging only

misdemeanors is filed in the court of common pleas,

such court may retain the case for trial or the ad-

ministrative judge may, within fourteen days after

the indictment or information is filed with the clerk of

the court of common pleas, transfer it to the court

from which the bind over to the grand jury was made

or to the court of record of the jurisdiction in which

venue appears. (Emphasis added.)

[18] Inasmuch as the indictment in this case charged the

appellant with both felonies and misdemeanors, the trial

court correctly denied the motion to transfer.

On the basis of the foregoing, the fifth assignment of

error is overruled.

VI.

In his sixth and final assignment of error, the appel-

lant asserts that the trial court erred in overruling his

motion to suppress filed in this case. In his motion, the

appellant alleged that his office was illegally searched on

April 26, 1977 and in the course thereof, approximately

30,000 patient files were improperly seized.

We note that although the trial court refused to sup-

press the evidence seized in the search, the prosecutor

made no attempt to admit such evidence during the trial

which is now before us for review. Accordingly, the ap-

pellant was not prejudiced in any way by the court’s

ruling on the motion to suppress.

The sixth assignment of error is overruled.

A27

CONCLUSION

For the reasons set forth in our discussion in the ap-

pellant’s first and second assignments of error, the judg-

ment is reversed and the appellant is hereby ordered dis-

charged.

/s/ JAMES P. CELEBREZZE

Judge

(Celebrezze, J., of the Eighth

Appellate District, sitting

by assignment. )

Patton, P. J.,*

CorRIGAN, J.,* concur.

*John T. Patton, P.J., and John V. Corrigan, J., of the Eighth

Appellate District, sitting by assignment.

A28

OPINION OF THE SUPREME COURT OF OHIO

(Decided February 3, 1982)

No. 81-588

THE SUPREME COURT OF OHIO

Tue STATE or Onto, Crry or CoLuMsBuUS

STATE OF OHIO,

Appellant,

vs.

BERTOLD PEMBAUR,

Appellee.

[69 Ohio St. 2d 110]

Court of Appeals—Judgment vacated, when—Majority

necessary for disposition—Constitutional requirement

not met.

AppeaL from the Court of Appeals for Hamilton

County.

Bertold J. Pembaur, appellee herein, was convicted of

the offense of obstructing official business in violation of

R. C. 2921.31. The appellee appealed his conviction by

timely filing a notice of appeal. On November 12, 1980,

the cause was argued before the Court of Appeals, with

Judge Gilbert Bettman presiding.

In December 1980, Judge Bettman submitted his resig-

nation from the Court of Appeals, effective January 3,

1981. On December 30, 1980, he was sworn in as a judge

of the Court of Common Pleas for a term to commence on

January 4, 1981. The vacancy thus created on the Court of

A29

Appeals was filled by the installation of a new judge on

January 5, 1981.

On February 18, 1981, the Court of Appeals rendered

a split decision purporting to reverse appellee’s conviction.

The opinion bears a notation that Judge Bettman “con-

curred in the foregoing decision prior to his resignation

from the Court.”

The state filed an application for reconsideration as-

serting that the judgment of reversal was invalid in that

Judge Bettman had no legal power to participate in the

disposition of the case as he was not a judge of the Court of

Appeals on the date the decision and judgment entry was

rendered. The application for reconsideration was over-

ruled.

The cause is before this court pursuant to the allow-

ance of a motion for leave to appeal.

Mr. Simon L. Leis, Jr., prosecuting attorney, Mr.

Leonard Kirschner, Mr. William E. Breyer and Mr. Bruce

Garry, for appellant.

Messerman & Messerman Co., L.P.A., and Mr. Gerald

A. Messerman, for appellee.

{111} Per Curiam. Section 3 of Article IV of the

Ohio Constitution provides, in part:

“(A) The state shall be divided by law into com-

pact appellate districts in each of which there shall be a

court of appeals consisting of three judges. * * * In districts

having additional judges, three judges shall participate in

the hearing and disposition of each case. * * *

“(B)(3) A majority of the judges hearing the cause

shall be necessary to render a judgment. * * *”

A30

Thus, under the Ohio Constitution, a valid judgment

of a Court of Appeals must have the concurrence of at least

two judges. In the case at bar, this constitutional require-

ment was not satisfied. Although Judge Bettman may

have indicated to his colleagues an opinion that the appel-

lee’s conviction should be reversed, on the date of dis-

position he no longer was a judge of the Court of Appeals

and was not qualified to participate in that court’s decision.

The remaining two judges differed as to the proper dis-

position of the cause. Cf. State v. Siour Falls Brewing

Co. (1894), 5 S.D. 360, 58 N.W. 928.

The constitutional requirement that a majority of the

Court of Appeals judges hearing a cause concur in the judg-

ment was not met in this case. Therefore, the judgment

of the Court cf Appeals is vacated and the cause remanded

to that court for a rehearing.

Judgment accordingly.

CeLesprezze, C.J., W. Brown, Sweeney, LOcHEr,

Hotes, C. Brown and Krupansky, JJ., concur.

A31

ORDER OF THE SUPREME COURT OF OHIO

(Dated February 3, 1982)

No. 81-588

THE SUPREME COURT OF THE STATE OF OHIO

Tue STATE OF Our0, City or COLUMBUS.

THE STATE OF OHIO,

Appellant,

vs.

BERTOLD PEMBAUR,

Appellee.

APPEAL FROM THE CouRT OF APPEALS

For HAMILTON CoUNTY

This cause, here on appeal from the Court of Appeals

for Hamilton County, was heard in the manner prescribed

by law. On consideration thereof, the judgment of the

Court of Appeals is vacated for the reasons stated in the

opinion filed herein and cause remanded to that court for

a rehearing.

A32

ORDER OF THE SUPREME COURT OF OHIO

(Dated February 3, 1982)

No. 81-588

THE SUPREME COURT OF THE STATE OF OHIO

THe STATE OF OHIO, CrTy oF COLUMBUS.

THE STATE OF OHIO,

Appellant,

vs.

BERTOLD PEMBAUR,

Appellee.

MANDATE

To the Honorable Court of Appeals Within and for the

County of Hamilton, Ohio, Greeting:

The Supreme Court of Ohio commands you to proceed

without delay to carry the following judgment in this

cause into execution:

Judgment of the Court of Appeals vacated and cause

remanded to that court for a rehearing, for the reasons set

forth in the opinion rendered herein.

JUDGMENT OF ACQUITTAL ON VERDICTS, THE

COURT OF COMMON PLEAS, HAMILTON

COUNTY, OHIO

(Filed June 19, 1981)

No. B 771779

COURT OF COMMON PLEAS

THE STATE OF OHIO, HAMILTON COUNTY

THE STATE OF OHIO

vs.

BERTOLD PEMBAUR

JUDGMENT OF ACQUITTAL ON VERDICTS

It appearing to the Court that the Jury having here-

tofore returned a Verdict finding the Defendant is Not

Guilty as charged in the Indictment.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED, that the Judgment be, and the same is hereby

entered in favor of the Defendant.

IT IS FURTHER ORDERED, that the Defendant go

hence without day, and recover his Costs herein expended.

A34

DECISION AND ENTRY ON RECONSIDERATION

OF THE COURT OF APPEALS OF HAMILTON

COUNTY, OHIO

(Filed March 18, 1981)

No. C-790380

IN THE COURT OF APPEALS

First APPELLATE DISTRICT OF OHIO

HaMILTON CouNTYy, OHIO

STATE OF OHIO,

Plaintiff-Appellee-Applicant,

vs.

BERTOLD J. PEMBAUR,

Defendant-Appellant-Respondent.

DECISION AND ENTRY ON RECONSIDERATION

This cause came on to be heard on the State’s Ap-

plication to Reconsider the judgment and order journalized

in this appeal on February 18, 1981, for the reason that

Judge Gilbert Bettman, one of the three judges sitting

on the appeal, had resigned from this Court as of January

3, 1981, and was not, the state claims, a judge of this

Court entitled to act on the date of journalization.

Being fully informed and after due consideration, the

Court finds that the Application to Reconsider is not well

taken, first because Judge Gilbert Bettman had the au-

thority and the duty to complete the business of this Court

on which he had entered while a member of it despite his

intervening resignation, (State ex rel. Witten v. Ferguson

[1947] 148 Ohio St. 792, 76 N.E.2d 886; State v. Powers

A35

[1954] 98 Ohio App. 365, 129 N.E.2d 653) and second

because Judge Gilbert Bettman’s status as a judge of this

Court can be [2] questioned only in a quo warranto pro-

ceeding in which he is a party (State v. Staten [1971] 25

Ohio St. 2d 107, 267 N.E.2d 122; Stiess v. State [1921]

103 O.S. 33, 132 N.E. 85), assuming arguendo that his

status was subject to attack.

Therefore, the Application for Reconsideration is

hereby overruled.

Buack, P.J., and PALMER, J., concur.

A36

JUDGMENT ENTRY OF THE COURT OF APPEALS

OF HAMILTON COUNTY, OHIO

(Entered February 18, 1981)

No. C-790380

COURT OF APPEALS

First APPELLATE DISTRICT

HAMILTON CouNTY, OHIO

STATE OF OHIO,

Appellee,

vs.

BERTOLD J. PEMBAUR,

Appellant.

JUDGMENT ENTRY

This cause came on to be heard upon the appeal on

questions of law, assignments of error, the record from

the Court of Common Pleas of Hamilton County, Ohio,

the briefs and the arguments of counsel.

Upon consideration thereof, the Court finds that the

assignments of error are well taken in part for the rea-

sons set forth in the Opinion filed herein and made a part

hereof.

It is, therefore, Ordered by the Court that the judg-

ment of the Court of Common Pleas of Hamilton County,

Ohio be, and the same hereby is, reversed and the de-

fendant hereby ordered discharged.

It is further Ordered that a mandate be sent to the

Court of Common Pleas of Hamilton County, Ohio for

execution upon this judgment.

A37

Costs to be taxed in compliance with Rule 24, Ap-

pellate Rules.

And the Court being of the opinion that there were

reasonable grounds for this appeal, allows no penalty.

It is further Ordered that a certified copy of this

Judgment, with a copy of the Opinion attached, shall con-

stitute the mandate pursuant to Rule 27, Ohio Rules of

Appellate Procedure.

To all of which the appellee, by its counsel, excepts.

A38

OPINION OF THE COURT OF APPEALS

OF HAMILTON COUNTY, OHIO

(Filed February 18, 1981)

No. C-790380

IN THE COURT OF APPEALS

First APPELLATE DISTRICT OF OHIO

HAMILTON County, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

Vs.

BERTOLD J. PEMBAUR,

Defendant-Appellant.

OPINION

APPEAL FROM THE CouRT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

PALMER, J.

The defendant-appellant, Bertold J. Pembaur, appeals

from his conviction by a jury of obstructing official busi-

ness in violation of R.C. 2921.31. He presents six assign-

ments of error, with multiple issues thereunder.

{2] The threshold, and most complex, question raised

by this appeal is whether the defendant, the proprietor of

a medical clinic, had a right or privilege to prevent entry

into the private portions of that office by deputy sheriffs

armed with writs of attachment (sometimes called “ca-

piases” or “bench warrants”) to arrest two individuals em-

ployed at the Clinic who had failed or refused to appear

A39

as witnesses before the Grand Jury to answer questions

about offenses allegedly committed by the defendant.

The deputies concededly did not have search warrants

complying with the requirements of Crim. R. 41. Dr.

Pembaur, the proprietor, claims the right or privilege un-

der the Fourth and Fourteenth Amendments to the United

States Constitution and under Section 14, Article I of the

Ohio Constitution to resist the entry attempted by the

officers. The State, on the contrary, argues that the pos-

session by its officers of the writs of attachment was suf-

ficient to remove the constitutional impediment and, there-

fore, the privilege to resist entry.

The second assignment of error raises an associated

issue, viz., was the foregoing question as to the existence of

a constitutional right or privilege to prevent entry a matter

of law for the court to decide, or a matter within the

province of the jury? If the former, was the defendant

prejudiced by the trial court’s instructions to the jury

concerning the issue of privilege, or was the error harm-

less beyond a reasonable doubt?

While these first two assignments of error embody, we

conclude, the substantial issues raised by this appeal, there

are other issues submitted by the defendant which we

are required to examine in accordance with App. R. 12(A).

These remaining four assignments [3] of error arise, in

part, from the following circumstances: the charge of

obstructing official business was only one of six counts

in the indictment against Dr. Pembaur and others, and it

was tried separately over defendant’s objection; the trial

of the instant misdemeanor charge was before an eight-

person jury, and in the Court of Common Pleas, rather than

a Municipal Court; the presiding judge was the third one

to whom the case had been assigned; and the court re-

fused to suppress certain evidence seized in an extensive

A40

search of Dr. Pembaur’s office that occurred some three

weeks before the incident which occasioned the charge of

obstructing official business other facts necessary to ex-

emplify these secondary assignments of error will be set

out separately as the issues are serially considered in the

latter sections herein. The facts contained in the record

necessary for a proper consideration of the first two as-

signments of error are set out immediately hereafter.

Facts

At approximately 2:00 p.m. on May 19, 1977, two

Hamilton County deputy sheriffs arrived at Dr. Pem-

baur’s Rockdale Medical Clinic in Cincinnati to execute

writs of attachment? for the arrest of two persons em-

ployed at the clinic, one Kevin Maldon, M.D., and one

Marjorie McKinley, a secretary. These two individuals

had failed to appear as witnesses before the Grand Jury

pursuant to subpoenas issued to them for the purpose of

securing their testimony in the Grand Jury’s investigation

of Dr. Pembaur’s affairs, The deputies believed that both

witnesses were in the Clinic, since that was their known

place of work and was during the usual hours of their

employment. In addition, the deputies testified that they

saw a [4] woman who met the description of Mrs. Mc-

Kinley seated at a desk behind the receptionist. The

two women were stationed behind a sliding glass window

separating the waiting room from the working area of the

Clinic. The individual meeting the description of Mrs.

McKinley subsequently disappeared into the interior of the

offices after an apparent consultation with the recep-

tionist.

After the presence and the purposes of the deputies

were made known to the receptionist, Dr. Pembaur ap-

peared at the receptionist’s station. Following his reading

A4l

the two writs, he wedged tight with a piece of wood the

single latched door that led from the public reception

room to the private working area of the Clinic, refused

the deputies attempted entrance, and asked them to leave

the premises. His stated reasons were that the writs

were illegal, the judges had mistakenly issued them, and

the judges had no business signing them. Dr. Pembaur’s

response to a question by counsel as to why he didn’t open

the door, was the following:

A. Well, as a physician I have certain obligations in

running a medical office. I am obligated to protect

the confidentiality of the medical records. I am

obligated to protect my employees. So I wanted

legal advice and I wanted a lawyer to tell me ex-

actly what I am supposed to do. (T.p. 582.)

Dr. Pembaur stated that on an earlier occasion he had

admitted police into his Clinic when they were armed

with a search warrant for his offices. This time, however,

the deputies testified that he appeared agitated and stated

repeatedly that he was going to call the police. Ob-

viously he did so, for within ten minutes two Cincinnati

police officers appeared in response to a burglar alarm

activated by Dr. Pembaur. The police officers told the

doctor that the capiases were in order and that he should

permit entry so that [5] the witnesses could be found and

arrested. Dr. Pembaur remained adamant and ordered the

officers off the premises.

Meanwhile, the doctor had also called media organiza-

tions, and the scene at the Clinic was further complicated

by the presence of TV cameras, reporters, newsmen, at-

torneys, including an assistant prosecuting attorney, and

others. The confrontation continued during the next two

hours while Dr. Pembaur attempted to reach four or five

lawyers and two judges. The law enforcement officers

A42

waited for him to make those contacts, and were invited

to listen in to the doctor’s calls to them, but continued to

insist on the legality of the court orders and their duty to

execute them. The doctor, on the other hand, continued to

assert the illegality or inappropriateness of the writs. At

some point during the debate, Dr. Pembaur offered tea to

the officers, who accepted the opportunity to refresh them-

selves. Finally, at about 4:00 p.m., in the presence of

five Cincinnati police officers and the two sheriff's depu-

ties, the ranking police officer advised Dr. Pembaur that

force would have to be used to enter the working area.

The doctor’s response was to direct the two deputies to

try to enter, but they could not budge the door with their

shoulders. Thereupon, the door was broken down by the

police with an axe and sledgehammer obtained from a

nearby fire department. The two witnesses had, mean-

while, and with the help of another Clinic employee, se-

creted themselves in a stairway accessible to the Clinic but

not part of it, and were not discovered by the searching

officers. Mrs. McKinley was arrested later that evening

in her residence. Dr. Maldon was arrested the next day.

[6] First Assignment of Error

In this assignment of error, the defendant asserts his

constitutional right and privilege, through the Fourth and

Fourteenth Amendments of the United States Constitution

and through the substantially identical provisions of Sec-

tion 14, Article I of the Ohio Constitution, to refuse the

entry of police into his private offices for the purpose of

searching for and seizing third persons for whom writs of

attachment or capiases had been issued under state law,

arguing that this privilege should have been found to ex-

ist as a matter of law, and required the granting of his

Crim. R. 29 motion for acquittal at the conclusion of the

A43

State’s case and at the conclusion of all of the evidence.

The defendant mounts two arguments in support of this

proposition: (i) that writs of attachment issued pursuant

to R.C. 2317.21, unlike validly issued search warrants, are

insufficient to meet Fourth Amendment standards as to

third person searches; and (ii) even if such writs or

capias warrants would have been sufficient to meet Fourth

Amendment criteria, they were not so here because they

were illegally issued under Ohio law. The alleged illegal-

ity is said to arise because of the failure of return of ser-

vice of the underlying subpoenas, R.C. 2317.21. Absent

personal service of the subpoenas, argues the defendant,

the writs of attachment could not lawfully issue. How-

ever, the record does not support the defendant’s argu-

ment of failure of service of the subpoenas and of the

consequent illegality of the writs of attachment. We hold,

in disposition of the second argument offered in support of

the first assignment of error, that the two writs of attach-

ment were in fact lawfully issued, and will accordingly [7]

proceed directly to the remaining and principal issue under

this assignment of error.

The State responds to the defendant’s assertion of

privilege under the United States and Ohio Constitutions

by arguments which may be reduced to the following prop-

osition of law it would have us adopt: thus, the State

argues, police authorities may, without constitutional or

other inhibition, and in the absence of either a valid search

warrant or exigent circumstances excusing the necessity

therefor, make a nonconsensual forcible entry into the

home or private place of business of a third person, in

order to search for and to seize individuals whom the

police have reason to believe are residing or working

therein, provided only that the police are forearmed with

writs of attachment (“capiases” or “bench warrants” valid

A44

under applicable state law, directing the arrest for con-

tempt of the individual named therein.’

Because we find no persuasive decisions or authorities

defining, or restricting, Fourth Amendment protections in

such terms nor any pressing reason or policy for our

initiating such a rule, the majority of this Court dis-

agrees with any such formulation and therefore, disagrees

as well with the conclusion drawn by the State from its

formulation of the rule, viz., that a third person whose

home or private place of business is sought to be entered

by police to execute such writs of attachment, is without

constitutional privilege to resist entry, and that when such

resistance is offered, even though passive and non-violent,

such third person may be charged with and convicted of

the crime of obstructing official [8] business, and sen-

tenced as a second degree misdemeanant.

Indeed, all authority to which we have been directed

or have ourselves discovered, and all reason which we

have been able to direct to the point, persuades us that

the rule sought by the State was not hitherto the law,

nor ought it in our judgment to become the law. The

following sections explore in some detail our understanding

of the present state of Fourth Amendment law. If we do

so at greater length than usual, it is because the principle

involved is one of first importance, for we can think of

few things more basic to our way of life than the laws

which protect and preserve the sanctity of the home and

office.

I,

The general rule, as derived from cases examining

the Fourth Amendment, made applicable to the states by

the Fourteenth Amendment, Mapp v. Ohio (1966), 367

U.S. 643, would hold that a police search or seizure of

A45

persons or property within the protection of the Fourth

Amendment will not be found unreasonable where it is

preceded by and limited to authority granted them under

a valid search warrant. Zurcher v. Stanford Daily (1978),

436 U.S. 547; Michigan v. Tyler (1978), 436 U.S. 499;

Sifuento v. United States (1976), 428 U.S. 543. Conversely,

a warrantless search or seizure, or a search or seizure

pursuant to a search or other warrant issued under cir-

cumstances failing to conform with the strict requirements

established for the issuance of search warrants, e.g.,

Spinelli v. United States (1969), 393 U.S. 410; United States

v. Ventresca (1965), 380 U.S. 102, will be held unreason-

able and unlawful unless [9] the police are able to demon-

Strate one of the carefully defined and limited exceptions

to the rule requiring an antecedent search warrant. E.g.,

Walter v. United States (1980), 100 S. Ct. 2395; Marshall

v. Barlow’s, Inc. (1978), 436 U.S. 307; Lo-Ji Sales, Inc.

vw. New York (1979), 442 U.S. 319. See Harris v. United

States (1968), 390 US. 234 (warrantless seizure upheld

when article in plain view); Terry v. Ohio (1968), 392

U.S. 1 (warrantless search made incident to lawful arrest) ;

Schneckloth v. Bustamonte (1973), 412 U.S. 218 (warrant-

less search upheld where voluntary consent obtained);

Warden v. Hayden (1967), 387 U.S. 294 (warrantless entry

into suspect’s home by police in hot pursuit upheld as

exigent circumstance). Where, as here, the search and

seizure takes place in a home or private office, as opposed

to a public room, the city streets, or even an automobile,

the general rule may be stated in even more restrictive

terms, as in the following statement of the rule by the

United States Supreme Court:

Both sides to the controversy appear to recognize a

distinction between searches and seizures that take

place on a man’s property—his home or office—and

those carried out elsewhere. It is accepted, at least

A46

as a matter of principle, that a search or seizure car-

ried out on a suspect’s premises without a warrant is

per se unreasonable, unless the police can show that

it falls within one of a carefully defined set of excep-

tions based on the presence of “exigent circum-

stances.”

o . . . .

It is clear, then, that the notion that the warrantless

entry of a man’s house in order to arrest him on prob-

able cause is per se legitimate is in fundamental con-

flict with the basic principle of Fourth Amendment

law that searches and seizures inside a man’s house

without a warrant are per se unreasonable in the ab-

sence of some one of a number of well defined “exigent

circumstances.”

[10] Coolidge v. New Hampshire (1971), 403 U.S. 443,

474-475, 477-478 (citations omitted). The reasons for the

more stringent expression of the rule when the police

entry is into a house or office are well-known and unnec-

essary to repeat here. See, for example, the detailed prov-

enance of the rule by Mr. Justice Stevens, writing for

the majority in Payton v. New York (1980), 445 U.S. 573,

591-598, and the analysis of Judge Duniway in United

States v. Prescott (9th Cir. 1978), 581 F.2d 1343, 1348-

1350. For our purposes, suffice it to say that the “exigent

circumstances” exceptions have been so “jealously and

carefully drawn,” Jones v. United States (1958), 357 U.S.

493, 499, that there must in every instance be “a showing

by those who seek exemption .. . that the exigencies of

the situation made that course imperative.” MacDonald

v. United States (1948), 335 U.S. 451, 456. See United

States v. Jeffers (1951), 342 US. 48.

Although not significantly challenged by the parties,

(see footnote 3, supra, and accompanying text), it may

A4T

be as well to state the obvious: that, except for the pos-

session by the police of writs of attachment, the instant

facts, on their face, bring the appellant well within the

foregoing “per se” unreasonable rule of Coolidge, supra.

The entry by the police to seize the persons or individuals

named in the writs of attachment was within the scope

of Fourth Amendment protection. Terry, supra; Katz v.

United States (1967), 389 U.S. 347, 351 (“. .. the Fourth

Amendment protects people, not places.”). The forcible

entry of the police was into the defendant’s private offices,

an area not open to the public nor to anyone not expressly

invited therein, the equivalent of a private [11] home for

Fourth Amendment purposes. Mancusi .v. DeForte (1968),

392 US. 364; See v. City of Seattle (1967), 387 U.S. 541, 543,

citing Go-Bart Importing Co. v. United States (1930), 282

U.S. 344 (“The businessman, like the occupant of a resi-

dence, has a constitutional right to go about his business

free from unreasonable official entries upon his private

commercial property.”). See also Combs v. United States

(1972), 408 U.S. 224. The defendant, as the person en-

titled to exclusive possession of the premises, is the person

protected by the Fourth Amendment, and entitled to raise

its guaranty against unlawful entry. Rakas v. Illinois

(1978), 429 U.S. 128; United States v. Miller (1976), 425

U.S. 435; Brown v. United States (1973), 411 U.S. 223.

These are not, therefore, issues that need concern us fur-

ther.

One additional matter requires examination before

proceeding to the principal area of this decision. As noted

in the above statements of the general rule, a search or

seizure which would otherwise be unreasonable in the

absence of a warrant, or in the presence of an insufficient

or defective warrant, may be held reasonable if the facts

of the case bring it within one of the recognized exceptions

A48

to the rule. Thus, the consent of the individual entitlec

to the privilege removes the need for further formality.

E.g., Lewis v. United States (1966), 385 U.S. 206. Other

exceptions include searches incident to lawful arrests,

seizures upon plain view or in hot pursuit, and a limited

search for weapons, under appropriate circumstances, for

the protection of the arresting officers. E.g., Michigan

v. Tyler, supra (seized article in plain view); Adams v.

Williams (1972), 407 U.S. 143 (limited weapons frisk upon

arrest); Shipley v. [12] California (1969), 395 U.S. 818

(search of suspect’s house incident to lawful arrest);

Chapman v. United States (1961), 365 U.S. 610 (entry

during hot pursuit). See generally United States v. Wright

(6th Cir. 1978), 577 F.2d 378. Most or all of these excep-

tions, however, have found their way into the law under

factual circumstances not involving private homes or of-

fices.

It is a “basic principle of Fourth Amendment law” that

searches and seizures inside a home without a war-

rant are presumptively unreasonable. Yet it is also

_ well settled that objects such as weapons or contra-

band found in a public place may be seized by the

police without a warrant. The seizure of property in

plain view involves no invasion of privacy and is pre-

sumptively reasonable, assuming that there is prob-

able cause to associate the property with criminal ac-

tivity. The distinction between a warrantless seizure

in an open area and such a seizure on private premises

was plainly stated in G.M. Leasing Corp. v. United

States, 429 U.S. 338, 354:

“It is one thing to seize without a warrant prop-

erty resting in an open area or seizable by levy

without an intrusion into privacy, and it is quite

another thing to effect a warrantless seizure of

A49

property, even that owned by a corporation, sit-

uated on private premises to which access is not

otherwise available for the seizing officer.”

Payton, supra at 586-587 (citations omitted). See also

United States v. Watson (1976), 423 U.S. 411; Ker v. Cali-

fornia (1963), 374 U.S. 23. In any event, none of the above

exceptions are here factually proximate, nor are argued to

be so.

The remaining exception, which has been held by a

number of courts, although not expressly so by the United

States Supreme Court, to be applicable to searches and

seizures in homes and offices, is that covered within the

exigent circumstances exception. As stated in the majority

opinion in Payton, supra at 583 [13] (emphasis added; cita-

tions omitted):

Although it is arguable that the warrantless entry to

effect Payton’s arrest might have been justified by

exigent circumstances, none of the New York courts

relied on any such justification. The Court of Appeals

majority treated both Payton’s and Riddick’s cases as

involving routine arrests in which there was ample

time to obtain a warrant, and we will do the same.

Accordingly, we have no occasion to consider the sort

of emergency or dangerous situation, described in our

cases as “exigent circumstances” that would justify a

warrantless entry into a home for the purpose of either

arrest or search.

Some of the circumstances held by other authorities to con-

stitute exigent circumstances include the fact that a grave

offense has been committed, that the suspect is reasonably

believed to be armed, that strong reason exists to believe

the person is on the premises and may escape if not quickly

caught, and that a magistrate is not readily available to

A50

issue a proper warrant. Virgin Islands v. Gereau (3d

Cir. 1974), 502 F.2d 914; Dormon v. United States (D.C.

Cir. 1970), 435 F.2d 385. See also Mincey v. Arizona

(1978), 437 U.S. 385; United States v. Renfro (5th Cir.

1980), 620 F.2d 497; United States v. Hendrix (D.C. Cir.

1979), 595 F.2d 83.

It seems to us perfectly clear that none of these ex-

igent circumstances, or any other arguable “emergency or

dangerous situation,” existed in the present case to make

matters exigent. The offense for which the two individuals

here were sought was a failure to respond to a subpoena,

punishable in contempt and neither felony nor misde-

meanor. R.C. 2317.22. It was not suggested that either

individual sought under the writs of attachment was armed

or dangerous, nor, for that matter, was the defendant.

The entire confrontation provoking the charge against the

defendant, a two-hour [14] melee involving the serving of-

ficers, other city police and lawyers called in by the de-

fendant, with newspaper and television reporters all mill-

ing about, while the defendant tried to reach a judge to

set matters straight, and in the midst of which the de-

fendant offered and the officers accepted tea, might even

be thought comic if the implications were not so deadly

serious. But in all events, and however one might char-

acterize the episode, it could not conceivably offer an

instance of an “emergency or dangerous situation,” Payton,

supra, or of exigent circumstances. Mincey, supra; Cool-

idge, supra. Ample time existed to secure a proper search

warrant after the defendant refused entry to the county

officers, and if the premises were not sealed off to prevent

the escape of either of the two individuals sought to be

attached, the fault lay elsewhere than in the circumstances

of the case. MacDonald, supra at 455 (‘No reason, except

inconvenience of the officers and delay in preparing papers

and getting before a magistrate, appears for the failure

A51

to seek a search warrant. But those reasons are no justi-

fication for by-passing the constitutional requirement.”).

See Johnson v. United States (1948), 333 U.S. 10.

We conclude, therefore, that since no exception,

whether of exigent or other circumstances, existed under

the facts of this case which would excuse the general

rule that a warrantless search of a home or private office

is per se unreasonable, the sole remaining question is

the following: may the writs of attachment held by

the county officers and issued pursuant to R.C, 2317.21,*

sometimes referred to as ‘“‘capiases” or “bench warrants,”

and which we have held were validly issued, be deemed

the functional equivalents of [15] valid search warrants,

so that the forcible entry into the defendant’s private

office and subsequent search for the persons of the wit-

nesses may not be said to have been unreasonable under

the Fourth Amendment? If the answer to this question

is in the negative, it seems clear that the privilege of

the defendant to resist the demanded entry by refusing

the officers admittance, and even placing a bar across

the door, as he did, subsisted throughout the confronta-

tion, and no predicate for the crime of obstructing official

business was ever laid. Miller v, United States (5th Cir.

1956), 230 F.2d 486; Sparks v. United States (6th Cir.

1937), 90 F.2d 61; United States v. Dentice (E.D. Wis.

1968), 289 F. Supp. 799. See Bevan v. Krieger (1933),

289 U.S. 459. The question posed is thus dispositive of

the instant issue.

Il.

In examining the question of what sort of “warrant”

will remove the Fourth Amendment privilege to resist

an entry by police, it may be useful to start at the end

of a long line of cases, rather than at the beginning, by

A52

examining in greater detail the recent decision in Payton

v. New York, supra. This decision terminated a long-

standing disagreement between the various states, and

among the several federal circuits, by deciding that the

Fourth Amendment prohibits police from making a non-

consensual and warrantless entry into a suspect’s home

in order to make a routine felony arrest. The decision

is useful for a variety of reasons in addition to its direct

holding, including its historical exegesis of the Amendment,

but most notably for purposes of this appeal for what

it did not hold. The Payton majority expressly excluded

the direct question presented [16] in this appeal, i.e., the

entry into the home of a third person to arrest a suspect:

Nor do these cases raise any question concerning the

authority of the police, without either a search or

arrest warrant, to enter a third party’s home to arrest

a suspect.

Payton, supra at 583. This reservation is important to

bear in mind in view of the Court’s comment, in rejecting

the State’s argument that only a search warrant (which

would have been impractical under the circumstances)

would serve to protect the privacy of the home:

We find this ingenious argument ur.persuasive. It

is true that an arrest warrant requirement may afford

less protection than a search warrant requirement,

but it will suffice to interpose the magistrate’s de-

termination of probable cause between the zealous

officer and citizen. If there is sufficient evidence of

a citizen’s participation in a felony to persuade a

judicial officer that his arrest is justified, it is con-

stitutionally reasonable to require him to open his

doors to the officers of the law. Thus, for Fourth

Amendment purposes, an arrest warrant founded on

A53

probable cause implicitly carries with it the limited

authority to enter a dwelling ‘n which the suspect

lives when there is reason to believe the suspect is

within.

Id. at 602-603 (emphasis added).

If we assume that the last sentence of the above quoted

extract, although obiter dicta, is or will be held to be

the law under apposite facts, a number of questions would

still have to be resolved before it would find its way

to any reasonable application in the instant case. For

instance: (i) what “probable cause” hearing will be

sufficient to found an arrest warrant; will it be found

sufficient if it complies with state law; (ii) is a writ of

attachment for contempt to be considered the equivalent

of an “arrest [17] warrant”; and, most directly, (iii) will

the rule proposed in the last sentence of the Payton ex-

tract quoted above be extended to permit its use as to

the homes of third persons?

Some indication that the answer to the last question

raised by Payton will be held to be negative is provided

in a post-Payton case decided by the United States Court

of Appeals for the Fourth Circuit under facts substantially

similar to the instant case. In Wallace v. King (4th Cir.

1980), 626 F.2d 1157, police officers of Fairfax County, Vir-

ginia, armed with a bench warrant for the arrest of an

individual for failure to appear in a divorce proceeding,

pursued a long-standing policy of the department when

they sought to enter the premises of the Wallaces, a resi-

dence where the putative contemnor was known to have

stayed from time to time. Acting on information supplied

by the contemnor’s husband, and after observing the con-

temnor’s car parked outside the residence, the police de-

manded but were refuseld entry into the Wallace home

when the police admitted they had no search warrant.

A54

The officers were aware that the arrest warrant arose

from a domestic relations matter and had not been ad-

vised that the arrest was under urgent or dangerous cir-

cumstances, but nevertheless forcibly entered the Wallace

home, and, later and under similar circumstances, the

home of another third person. The court discussed Pay-

ton, noted its reservation of the immediate issue, and fur-

ther noted a non-uniformity of other authority on the

issue of third party searches.

Common to all these opinions, however, is the require-

ment that, for the search to be constitutionally valid,

not only must the officers have probable cause to be-

lieve the person named in the arrest warrant is on the

premises of the third person, but there must [18] also

exist an appropriate exception to the warrant require-

ment, e.g., consent of the owner or occupier of a

dwelling unit or exigent circumstances, which did not

exist in this case.

Reasonable or probable cause to believe that a per-

son for whom an arrest warrant has been issued is on

the premises, standing alone, is not sufficient. Al-

though Payton held that an arrest warrant requires

that a suspect “open his doors to the officers of the

law,” that holding was specifically limited to the

“dwelling in which the suspect lives.” An arrest war-

rant indicates only that there is probable cause to

believe the suspect committed a crime; it affords no

basis to believe that the suspect is in a stranger's

house.

Id. at 1161 (citations omitted). Although part of the re-

lief sought in Wallace was damages under 42 U.S.C. § 1983,

held unavailable where the officers acted in good faith,

A55

the Fourth Circuit held that the trial court should never-

theless have afforded injunctive and declaratory relief.

Id. To similar effect, in the case of a third party search

by FBI agents armed with arrest warrants, is a holding

of the United States Court of Appeals for the Third Cir-

cuit. In Virgin Islands v. Gereau (3d Cir. 1974), 502 F.2d

914, 928, the court observed:

The Government claims that its entry was lawful be-

cause the search was intended to find persons for

whom the Government possessed arrest warrants... .

This Court has made clear, however, that arrest war-

rants are not substitutes for search warrants. See

Fisher v. Volz 496 F.2d 333, 338-343 (3d Cir. 1974).

Although police have warrants for the arrest of sus-

pects, they may enter premises, at least of third per-

sons, to search for those suspects only in exigent cir-

cumstances where the police also have probable cause

to believe that the suspects may be within.

See also United States v. Ford (D.C. Cir. 1977), 533 F.2d

146; United States v. Cravers (5th Cir. 1976), 545 F.2d 406;

United [19] States v. Brown (D.C. Cir. 1972), 467 F.2d

419; United States v. McKinney (6th Cir. 1967), 379 F.2d

259, for other pre-Payton cases.

So far as the majority of this Court is concerned,

Wallace, Virgin Islands and similar decisions correctly en-

swer the question reserved in Payton: that a third party

search or seizure will be held to be reasonable only when

the police are forearmed with a valid search warrant, and

that bench warrants, capiases, writs of attachment, arrest

warrants and the like, will not serve as functional equiv-

alents of search warrants.

Our reasons for so concluding the issue are several,

but may be stated succinctly as follows: as a result of the

A56

sanctity accorded the home by centuries of common law,

and, later, constitutional and statutory enactment, a body

of law has arisen creating strict procedural and substantive

rules to be observed in the issuance and execution of search

warrants necessary to breach the privilege of the home,

rules which simply do not exist to restrict the lawful

issuance and execution of lesser warrants. To hold all

warrants to be fungible or, as the State would have it, to

hold a writ of attachment the equivalent of a search war-

rant for purposes of searching a third party’s place of busi-

ness where the individual is thought to work, seems to us

seriously and unjustifiably to denigrate carefully con-

sidered safeguards against unreasonable, arbitrary, or ill-

considered police actions in a tender area of vital citizen

concern.

Thus, the conditions for the issuance of a valid search

warrant include, at the outset, the existence of a neutral

and [20] uninvolved magistrate interposed between the

police and the object of the search. E.g., South Dakota v.

Opperman (1976), 428 U.S. 364; Gerstein v. Pugh (1975),

420 U.S. 103; Coolidge, supra. It includes the requirement

that the magistrate conduct an ex parte probable cause

hearing, supported by affidavit and/or sworn testimony

establishing the factual grounds for issuing the warrant.

E.g., Zurcher, supra; Tyler, supra; Heller v. New York

(1973), 413 U.S. 483; Shadwick v. City of Tampa (1972),

407 U.S. 345. If the determination of probable cause is

dependent in whole or part upon hearsay information,

rigid rules prescribe the adequacy of the hearsay, and how

it must be demonstrated. E.g., Spinelli, supra; Ventresca,

supra; Alderman v. United States (1969), 394 U.S. 165;

Aguillar v. Texas (1964), 378 U.S. 108. The affidavit for

a search warrant must itself name the specific place to

be searched, the person or property to be seized, the offense

A57

in relation to the property, and the factual basis for believ-

ing that the person or property is located therein. E.g.,

Zurcher, supra; Andersen v. Maryland (1976), 427 U.S.

463; Stanford v. Texas (1965), 379 U.S. 476; Wong Su v.

United States (1963), 371 U.S. 471. These and other

requirements for the issuance of search warrants have

been codified in this state in Crim. R. 41(A), (B) and

(C),° which has been held to embody the requirements of

the Fourth Amendment that constitute a reasonable search

and seizure. State v. Karr (1975), 44 Ohio St. 2d 163, 339

N.E.2d 641; State v. Greene, No. C-790524, (1st Dist. July

30, 1980); State v. Porter (C.P. Franklin County 1977), 53

Ohio Misc. 25, 373 N.E.2d 1296.

Contrast this, then, with the warrants possessed by the

officers [21] in the instant case, which were issued under

the following statutory authority:

Attachment of Witness Who Disobeys Subpoena.

When a witness . . . fails to obey a subpoena personally

served, the court or officer, before whom his atten-

dance is required, may issue to the sheriff, coroner,

or a constable of the county, a writ of attachment,

commanding him to arrest and bring the person named

in the writ before such court or officer at the time

and place the writ fixes, to give his testimony and

answer for the contempt. ...

R.C. 2317.21. It may immediately be seen that scarcely

one of the prerequisites for the issuance of a search war-

rant need be present for the issuance of a valid writ

of attachment. There need be no neutral judge or magis-

trate. Indeed, it does not require a magistrate at all,

since a notary public has been held to be an “officer”

competent to issue writs of attachment in this state. In

re Bott (1946), 146 Ohio St. 618, 67 N.E.2d 536; In Re

A58

Rauh (1901), 65 Ohio St. 128, 61 N.E. 701; DeCamp v.

Archibald (1893), 50 Ohio St. 618, 35 N.E. 1056. See

Bevan, supra. There is no requirement of a probable

cause hearing, no requirement of supporting affidavits

or sworn testimony, no limitations on hearsay testimony,

nor any restrictions on the specificity of the warrant

other than that it name the contemnor and fix the time

and place of a hearing.

Warrants issued upon probable cause to believe a

criminal offense has been committed, as opposed to war-

rants for contempt, are more carefully controlled, but

still fall far short of the requirements for a search war-

rant. Crim. R. 4. Again, the arrest warrant may issue

by an officer less than a magistrate. Crim. R. 4(A).

State v. Fairbanks (1972), 32 Ohio St. 2d 34, 289 N.E.2d

252. While the issuance must be upon “probable cause,”

it need not be bottomed [22] upon an affidavit or sworn

testimony, although the officer may request it. Id. Cf.

United States v. Edwards (6th Cir. 1973), 474 F.2d 1206,

rev'd, on other grounds, (1974), 415 U.S. 800. The war-

rant must name the person and the offense, but need

not name the place of execution, Crim. R. 4(C)(1), a

critical element for the issuance and execution of a search

warrant. Zurcher, supra.

It follows, fram the foregoing, that it is simply not

possible, in this state at least, to hold that writs of attach-

ment (“capiases” or “bench warrants”) or, for that mat-

ter, warrants of arrest, are adequate substitutes for search

warrants. Payton, supra; Wallace, supra; Virgin Islands,

supra. Their functions are different, and their require-

ments necessarily reflect the different functions. Writs

of attachment and search warrants are not, therefore,

functional equivalents. Neither, it should be added, did

the procedure actually followed in this case supply the

A59

above noted deficiencies between the two writs, by con-

forming in actual fact to the requirements of Crim. R. 41;

nor do we understand the State to claim otherwise.

We conclude, therefore, that the writs possessed by

the officers in question were not sufficient to permit them

to make a nonconsensual entry into the private office

of the third person, whether or not the officers had

probable cause to believe that the individuals named in

the writs worked at the office and/or could be found

there.

Ill

The few remaining questions under the first assign-

ment of error are not troublesome. Thus, we hold, con-

sistent with the preceding sections of this decision that

since the officers possessed no valid [23] search warrant,

or functional equivalent thereof, and where no exception

to its necessity by way of consent or exigent circumstance

existed, the third party owner or proprietor of a private

office possessed, through the Fourth Amendment, a con-

stitutional right to refuse entry into the premises until

a valid search warrant was secured. This constitutiona-

ally based right to refuse entry is clearly the “privilege”

referred to in the criminal statute the defendant was

convicted of breaking.

(A) No person, without privilege to do so and with

purpose to prevent, obstruct, or delay the performance

by a public official of any authorized act within his

official capacity, shall do any act which hampers or

impedes a public official in the performance of his

lawful duties.

R.C. 2921.31(A) (emphasis added).

A60

It follows, then, that the existence of the defendant’s

constitutional privilege, which is a matter of law for the

court to determine (see discussion under the Second As-

signment of Error, infra) ought to have been timely de-

cided by the trial court, as a matter of law, and the

cause accordingly dismissed by directed verdict at the

conclusion of the State’s case, or at the latest, at the con-

clusion of all of the evidence. It is unarguable that where

a privilege to prevent, obstruct, or delay exists, one can-

not be guilty of a crime for exercising the privilege.

United States v. Prescott (9th Cir. 1978), 581 F.2d 1343;

City of Columbus v. Michel (10th Dist. 1978), 55 Ohio

App. 2d 46, 378 N.E.2d 1077. See Hendershot v. State

(1886), 44 Ohio St. 208, 6 N.E. 245.

It has been suggested, although not as a material

issue in this case, that such right or privilege as may

be said to exist to resist a warrantless entry may be lost

if the privilege is too vigorously [24] asserted. , Certainly,

the existence of a constitutional right to resist unlawful

entry does not carry with it a license to assault or offer

violence to the officers attempting the entry—not, at

least, so long as courts exist to provide a forum for the

resolution of disputed issues. But the question is un-

necessary to consider here, since the defendant’s resis-

tance, while doubtless irksome and vexatious to the per-

fectly well-intentioned officers attempting to serve the

writs, was entirely passive. One does not interrupt mor-

tal combat to serve tea to one’s adversaries. The principle

of Columbus v. Fraley (1975), 41 Ohio St. 2d 173, 324

N.E.2d 735, cited by the State, is entirely rational and,

indeed, the only workable rule in modern society. It is

simply inapposite to the instant case, where the place

was not public but private, and where a constitutional

privilege to resist obtains and is non-violently asserted

by the one entitled to assert it.

A61

Finally, it should be noted that our decision is wholly

disassociated from any personal feelings of approval or

disapproval of the defendant’s actions. The State suggests

that the defendant is a scofflaw, a characterization which

may or may not be correct. If it is correct, it is irrelevant.

The Fourth Amendment exists to protect everyone, saint

and sinner alike. Evidence exists to suggest that neither

Messrs. Gideon nor Miranda were model citizens; and

it is fair to observe that some of the greatest advances

in constitutional history were provoked by some of the

least admirable among our citizens. Tle principle of

the sanctity of the home, and the rules of law which

preserve and protect it, far transcend in importance the

interest society has in this defendant, whatever [25] his

character may be.

The defendant’s first assignment of error is well taken.

Second Assignment of Error

In this assignment, the defendant argues that the

trial court prejudicially erred in several respects in its

charge to the jury. To the extent that the assignment

addresses itself to alleged errors in defining the terms

“reasonable doubt” and “proof beyond a reasonable doubt,”

the argument is without merit. The trial court used the

definitions of those terms found in R.C. 2901.05(D), which

have been held to be valid and constitutional. State v.

Nabozny (1978), 54 Ohio St. 2d 195, 575 N.E.2d 784.

In the balance of this assignment of error, the defen-

dant argues that the jury was improperly and incom-

pletely instructed concerning the purport of the term

“privilege,” the absence of which is a necessary element

of the charged offense. Thus, argues the defendant, where

the court has the duty to instruct the jury on all matters

of law necessary for the information of the jury in giving

A62

its verdict, R.C. 2945.11, it was error to refuse to define

the defendant’s privilege in constitutional terms, and in-

stead to limit the instructions to the statutory definition

contained in R.C. 2921.01(L), citing City of Cincinnati

v. Epperson (1969), 20 Ohio St. 2d 59, 253 N.E.2d 785.

Further, argues the defendant, the trial court erred to

his prejudice in gratuitously charging the jury on the

rights of police under R.C. 2935.12, and on the general

duty to obey court orders.

The entire charge of the trial court pertinent to the

issue of privilege was as follows:

[26] One of the elements which the State of Ohio

must prove beyond a reasonable doubt is that the

defendants acted as they did without privilege to do so.

Privilege is a term which is defined by statute in

Ohio under Revised Code 2901.01, Subsection L, which

says, privilege means an immunity or a license or

a right conferred by law, or bestowed by express or

implied grant, or arising out of status or a position

or an office or relationship, or growing out of ne-

cessity.

Section 2935.12 of the Ohio Revised Code provides

as follows: When making an arrest or executing a

warrant for the arrest of a person charged with an

offense, or a search warrant, the officers making the

arrest may break down an outer or inner door or

window of a dwelling house or other building, if,

after notice of his intention to make such arrest or

such search, he is refused admittance, but an officer

executing a search warrant shall not enter a house

or building not described in the warrant.

The power to compel the attendance and testimony

of witnesses is an inherent power of the courts.

A63

An order issued by a court with jurisdiction over

the subject matter and the parties must be obeyed

by the parties until it is reversed by orderly and

proper proceedings. (T.p. 729-730.)

We agree with the defendant that the foregoing instruc-

tion was inadequate in part, erroneous in part, and prej-

udicial in toto.

In the first place, the issue of the defendant’s consti-

tutional privilege was, like a defendant’s Fifth Amend-

ment right against self-incrimination, a matter of law

for the court to determine.® E.g., State v. Crawford

(1972), 32 Ohio St. 2d 254, 291 N.E.2d 450; Siate v.

Wigglesworth (1969), 18 Ohio Sit. 2d 171, 248 N.E.2d 607,

rev'd. on other grounds, (1971), 403 U.S. 947. The court

ought to have determined the issue of constitutional

privilege in all events no later than the conclusion of

all of the evidence, in accordance with the constitutional

principles set out under the First Assignment [27] of

Error, supra. The only role appropriate for the jury

would have been in the event of factual disputes calling

the privilege into question. Crawford, supra; Wiggles-

worth, supra. Thus, for example, if reasonable minds

might have disagreed as to whether the inner offices

of the Clinic were public or private, or as to whether

the defendant gave consent to search, the factual issue

could have Been submitted to the jury with instructions

as to the existence of the constitutional privilege under

the alternative finds of fact. However, as we have earlier

held, no such factual issues here existed; the court had

the obligation under the evidence to hold that a privilege

to resist entry existed, and to grant the defendant’s mo-

tion to acquit. See State v. Goodin (1978), 56 Ohio St.

2d 438, 384 N.E.2d 290.

A64

But even if a factual dispute had existed competent

for the jury to consider, the instruction was inadequate.

Instead of instructing the jury as to the law appropriate

to alternative findings of fact by the jury, the court lim-

ited itself to reciting the statutory definition of “privilege”

and the rights of police under R.C. 2935.12, neither being

wholly appropriate to the issue. The end result was not

only to make the jurors the finders of law, but inappro-

priate and incomplete law as well. See State v. Grace

(6th Dist. 1976), 50 Ohio App. 2d 259, 362 N.E.2d 1237;

State v. Gettys (3d Dist. 1976), 49 Ohio App. 2d 241,

360 N.E.2d 735. Moreover, by adding the final two sen-

tences to the charge, as quoted above, the court in effect

charged the jury that the defendant had no privilege

to resist because he was bound to obey a court order

to compel the attendance of witnesses. This, as we have

seen, is simply not the [28] law, and was, in effect, an

invitation to find the defendant guilty.

The defendant’s second assignment of ciror is well

taken.

Third Assignment of Error

In his third assignment of error, the defendant con-

tends that the trial court committed prejudicial error

in refusing to grant his pretrial motion to dismiss the

indictment generally on the grounds of prosecutorial mis-

conduct, improprieties in the formation of the Grand Jury

and irregularities in the language of the indictment. In

the first instance, the defendant asserts that county pros-

ecutors so abused their relationship with the Grand Jury

that members of that body were precluded from per-

forming their tasks impartially. Specifically, the defen-

dant challenges the fact that the Grand Jury room is

located within the quarters occupied by the prosecutors,

A65

that several prosecutors were often present and that an

assistant prosecutor testified before the Grand Jury. The

defendant further alleges that the assistant prosecutor

in charge of the investigation should have excused him-

self from further participation in the proceedings after

the defendant filed a civil suit against him. Following

an evidentiary hearing on the motion to dismiss, the trial

court made findings of fact and conclusions of law adverse

to the defendant in which the procedures complained of

were justified on the grounds that the defendant failed

to produce sufficient evidence that the location of the

jury room or the number of prosecutors present resulted

in any unfair prejudice to the solemn deliberations con-

ducted therein, that the prosecutor did not testify before

the grand jury but merely took the stand for the limited

purpose of transferring relevant documents to the jury’s

control at [29] the order of the foreman, and that there

was no showing that the civil suit filed by the defendant

subsequent to the instigation of the investigation resulted

in any prosecutorial vindictiveness. A review of the rec-

ord in this regard reveals that the trial court’s findings

were supported by substantial credible evdience of pro-

bative value and that its conclusions were appropriate.

Additionally, the defendant argues that the indict-

ment should be dismissed because the Grand Jury was

not properly constituted under Section 10, Article I of

the Ohio Constitution and R.C. 2939.02, in that it con-

sisted of only nine persons. We decided this issue in

State v. Wilson (1st Dist. 1978), 57 Ohio App. 2d 11,

384 N.E.2d 1300, wherein we held that the number of

jurors on a Grand Jury and the number needed to return

an indictment were properly fixed by Crim. R. 6(A) and

that R.C. 2939.02 is of no further effect insofar as it con-

flicts that Rule. Accord, State v. Juergens (3d Dist.

1977), 55 Ohio App. 2d 104, 379 N.E.2d 602.

A66

Finally, the defendant contends that the sixth count

of the indictment, containing the instant charge for ob-

struction of justice, was defective because it closed

“. .. and against the peace and dignity of the Ohio Re-

vised Code,” rather than “.. . and against the peace and

dignity of the State of Ohio,” as required by Section 20,

Article IV of the Ohio Constitution. This irregularity

in the language of the indictment obviously arose from

a typographical error, because the other five counts were

recited properly. Regardless of this fact, however, the

claim was not brought to the attention of the trial court

at any time in connection with the motion to dismiss.

As it is a defect in the indictment [30] other than failure

to establish jurisdiction or to charge an offense, it should

have been raised prior to trial under Crim. R. 12(B) (2),

and failure to do so constitutes a waiver of the issue

under Crim. R. 12(G). State v. Davis, No. C-75440 (lst

Dist. May 24, 1976). Accordingly, the third assignment

of error is without merit.

Fourth Assignment of Error

The defendant claims that the court violated his right

to a fair trial under the Ohio Constitution in denying

his demand for a jury of twelve. We disagree. The trial

court properly followed Crim. R. 23(B), setting the num-

ber of jurors at eight for the trial of a misdemeanor.

It is well-established that in a criminal prosecution, trial

by a jury of eight is constitutionally permissible as it

does not, in itself, jeopardize the defendant’s right to a

jury trial under Section 5, Article I of the Ohio Constitu-

tion. State ex rel. Columbus v. Boyland (1979), 58 Ohio

St. 2d 490, 391 N.E.2d 324; City of Cincinnati v. Lawson,

No. C-75154 (lst Dist. Apr. 5, 1976). See Ballew v.

Georgia (1978), 435 U.S. 223; Williams v. Florida (1970),

399 U.S. 78. Accordingly, the fourth assignment of error

is without merit.

A867

Fifth Assignment of Error

In his fifth assignment of error, the defendant asserts

that he was denied a fair trial in several respects, an

assertion we deem to be, in essence, that his statutory

and constitutional rights to due process were violated.

The first claim is that this case had been originally as-

signed to another judge and was improperly and prejudi-

cially reassigned twice, ending up before the judge who

[31] presided over the trial of the sixth count. The record

discloses written disqualifications of the first and second

assigned judges and written orders reassigning the case

pursuant to the applicable local court rules. The fact

that these rulings are evidenced by nunc pro tunc entries

is illustrative of administrative inadvertance, not of a vio-

lation of the defendant’s rights. State v. Durham (lst

Dist. 1976), 49 Ohio App. 2d 21, 360 N.E.2d 743.

The second claim is that the sixth count should have

been reconsolidated with the other five counts so that

all would have been tried together. The sixth count

had been severed, pursuant to the request of the two

co-defendants who were named in that count, in order

to simplify the issues for the jury, to avoid prejudicing

the co-defendants under the sixth count by trying them

in conjunction with the other counts in which they were

not charged, to make the trial of this separate incident

convenient for witnesses not otherwise involved, and to

effect economy of judicial time. Under these circum-

stances, we find no abuse of discretion in the trial court’s

refusal to reconsolidate. Durham, supra; State v. Perod

(11th Dist. 1968), 15 Ohio App. 2d 115, 239 N.E.2d 100.

See State v. Cooper (1977), 52 Ohio St. 2d 163, 174, 370

N.E.2d 725, 733.

The third claim alleges that while the defendant was

tamed Sem gocdycing aaget amy os Se aay

A68

of the capiases and their execution, police officers testi-

fying for the prosecution were allowed to give such expert

testimony. The claim has no merit because the deter-

mination of that legality, as we have seen, was for the

court and not the jury, and because the defendant him-

self elicited the officer’s opinions on these points during

his cross-examination [32] of them, and because the trial

court gave an adequate correcting instruction to the jury

in the course of the general instructions at the conclusion

of the trial, stating that this testimony should be con-

sidered only to establish the fact that such statements

were made at the time and place stated. See State v.

Carver (1972), 30 Ohio St. 2d 280, 285 N.E.2d 26, cert.

denied, (1973), 409 U.S. 1044.

The fourth claim is that the Common Pleas Court

should have transferred the trial of the sixth count to

the Hamilton County Municipal Court because it involved

only a misdemeanor. Crim. R. 21(A) permits the court

to transfer to the Municipal Court for trial a case in which

only misdemeanors are charged, but the rule does not

allow the transfer of only one count of a multi-count

indictment that includes felony charges. As such, we

find no error in the court’s refusal to transfer the sixth

count to the Municipal Court for trial.

The final contention is that the assistant prosecuting

attorney was improperly allowed to argue an incorrect

statement of law in the presence of the jury. This oc-

curred when the assistant prosecuting attorney repeatedly

objected to statements on the law made by defense counsel

during his closing argument to the jury. The following

colloquy is illustrative:

Mr. Messerman: There were capiases. There

were not arrest warrants, but what that means is

that no person was charged with a crime.

He.

A69

Mr. Carr: There will be an objection. There

is no requirement whatsoever that an arrest warrant

be issued in this situation.

Mr. Messerman: Your Honor, I object to this

speech.

[33] Mr. Carr: Would you allow me to finish?

Mr. Messerman: I would ask that you make

your speech outside the presence of the jury?

The Court: I will sustain the objection.

Mr. Messerman: Your Honor, the evidence is

that there were no arrest warrants.

Mr. Carr: There was no requirement of an arrest

warrant.

Mr. Messerman: Your Honor, I object and move

that it be stricken and ask for a mistrial.

The Court: It will be denied, Mr. Messerman.

Continue with your closing argument.

Mr. Messerman: Your Honor, am I permitted

to allude to the fact that there were no arrest war-

rants?

The Court: You can make—you can refer to it

if you like. Then I will give wide latitude to Mr.

Carr.

Mr. Messerman: There were no arrest warrants.

There were no persons charged with any crime.

Mr. Carr: Judge, I'm going to object, once again.

We are not dealing with that situation. We are

dealing with a capias for contempt.

A70

Mr. Messerman: Your Honor, I would respect-

fully request that if Mr. Carr is going to make objec-

tions in which he argues the law that he do so out

of the presence of the jury so that the jury might

not be misled by his erroneous statement.

Mr. Carr: Judge, I think that is not a misstate-

ment. We have already gone over that.

The Court: All right. Closing arguments are

not evidence. I will allow the counsel to comment

on the evidence and alluw you to comment on it

also, Mr. Carr. (T.p. 687-88, 690.)

From the foregoing, and based upon our disposition

of the threshold issue in this appeal, itis clear that

the assistant prosecuting attorney repeated#y interrupted

defense counsel’s closing [34] argument with interjections

that were incorrect statements of law, and it was error

for the trial court to permit them to be made in the

presence of the jury. See Graham v. United States (6th

Cir. 1958), 257 F.2d 724. However, in light of the trial

court’s limiting instruction at the time and its later cura-

tive instruction on this point issued during the general

charge to the jury, we cannot say that the error was

so prejudicial as to deny the defendant a fair trial. See

State v. Hill (1st Dist. 1977), 52 Ohio App. 2d 393, 370

N.E.2d 775; State v. Clark (8th Dist. 1974), 40 Ohio App.

2d 365, 319 N.E2d 605.

Accordingly, the fifth assignment of error is without

merit.

Sixth Assignment of Error

In the final assignment of error, the defendant asserts

that the trial court erred in overruling his motion to

suppress. That motion was heard and overruled before

A7l

the instant trial on the charge of obstructing official

business, and it was directed at the execution of a search

warrant carried out about three weeks before the deputies

appeared at the doctor’s Clinic with the capiases. Al-

though approximately 30,000 files were seized at that

time, not one item taken in that episode was introduced

or sought to be introduced in the trial sub judice; they

were used in the investigation of the alleged theft offenses.

The defendant is in no position in this trial to raise ques-

tions about the issuance and execution of that warrant,

however much he may have been aggrieved by the search

and seizure. Waid v. Schaaf (1934), 127 Ohio St. 274,

188 N.E. 5.

Accordingly, the sixth assignment of error is without

merit.

[35] Conclusion

For the foregoing reasons, the judgment of the trial

court is reversed and the defendant hereby ordered dis-

charged.

Betrman, P. J.,* Concurs.

Brack, J., concurs in part and dissents in part.

*Bettman, P. J. concurred in the foregoing decision prior

to his resignation from the Court.

AT2

1. R.C. 2921.31 reads in full as follows:

(A) No person, without privilege to do so and with pur-

pose to prevent, obstruct, or delay the performance by a public

official of any authorized act within his official capacity, shall

do any act which hampers or impedes a public official in the

performance of his lawful duties.

(B) Whoever violates this section is guilty of obstructing

official business, a misdemeanor of the second degree.

(Emphasis added.) The court imposed and then suspended a

sentence of ninety days and placed defendant on probation for

five years.

2. While the opening recitations in the two writs were,

obviously, not identical because the circumstances relating to

the witnesses were different, the operative portions of the writs

read uniformly as follows:

IT IS THEREFORE ORDERED, by the Court, that a

Capias be issued for the arrest and detention of said wit-

ness (name of witness) until further order of this Court.

TO THE SHERIFF OF HAMILTON COUNTY, OHIO:

Upon receipt of a certified copy of this Entry Ordering

Capias Issued For Witness, you are hereby commanded to

take and to bring before this Court the witness, (name of

witness), whose address is (home address of witness), to

answer for contempt in failing or refusing to obey the

command of a subpoena lawfully served on (him or her)

in the within cause.

[36] Dr. Maldon’s capias was issued on April 29, 1977. The

record suggests that it was sought to be executed on May 19,

1977, at the same time as Mrs. McKinley’s capias, which was

dated May 19, 1977. The record fails to explain whether any

earlier attempts to execute Dr. Maldon's capias were made,

and if not, why not. However, this delay in execution is not

deemed important by either the prosecutor or the defendant,

and we conclude that it is immaterial to the issues in this appeal.

A73

did not know McKinley by sight, but had a description of her

as a “. . . woman, white, female, with dark hair, would have

on dark rimmed glasses .. .” (T.p. 325), who would be working

at the Clinic. The person they saw was described as having

“. .. dark hair and had on thick rimmed glasses, like... All

we could see of her is just the back of her and the side of

her face, this way (indicating).” (T.p. 376.) Indeed, after

the officers forced the entry, they exhibited a lady to the as-

sistant prosecutor on the scene who told them it was not Mrs.

McKinley (T.p. 349), but a Miss Krause (T.p. 363).

Finally, the State argues that R.C. 2935.12 (allowing of-

ficers executing a search warrant, or a warrant for the arrest

of a person charged with an offense, to break down a door if

refused admittance after announcing his purpose, “. . . but an

officer executing a search warrant shall not enter a house or

building not described in the warrant”) somehow removed the

defendant’s privilege to resist. The argument is obviously

specious. R.C. 2935.12 does not repeal the Fourth Amendment;

if a privilege to resist entry exists under the Constitution, the

statute does not give the police an excuse to ignore it. The

question, and the only real question in this appeal, is whether the

writs of attachment effectively removed the Fourth Amendment

privilege of the defendant to resict entry, allowing the officers

to make a forcible entry.

4 R.C. 2317.21 provides:

When a witness, except a witness who has demanded and

[37] has not been paid his traveling fees and fee for one day’s

attendance when a subpoena is served upon him, as authorized

by the provisions of section 2317.18 of the Revised Code, fails

to obey a subpoena personally served, the court or officer,

before whom his attendance is required, may issue to the sheriff,

coroner, or a constable of the county, a writ of attachment,

Se Se SS See ae ae Se pee aunet Ge

writ ore

5. Crim. R. 41 provides:

(A) Authority to issue warrant

A search warrant authorized by this rule may be issued by

a judge of a court of record to search and seize property lo-

cated within the court’s territorial jurisdiction, upon the request

of a prosecuting attorney or a law enforcement officer.

AT4

(B) Property which may be seized with a warrant

A warrant may be issued under this rule to search for and

seize any: (1) evidence of the commission of a criminal offense;

or (2) contraband, the fruits of crime, or things otherwise

; or (3) weapons or other things by means

of which a crime has been committed or reasonably appears

about to be committed.

(C) Issuance and contents

A warrant shall issue under this rule only on an affidavit

or affidavits sworn to before a judge of a court of record and

establishing the grounds for issuing the warrant. The af-

fidavit shall name or describe the place to be searched, name

or describe the property to be searched for and seized, state

substantially the offense in relation thereto, and state the factual

basis for the affiant’s belief that such property is there located.

If the judge is satisfied that probable cause for the search

exists, he shall issue a warrant identifying the property and

naming or describing the person or place to be searched. The

finding of probable cause may be based upon hearsay in whole

or in [38] part, provided there is a substantial basis for be-

lieving the source of the hearsay to be credible and for Bama g

that there is a factual basis for the information

Before ruling on a request for a warrant, the judge may require

the affiant to appear personally, and may examine under oath

the affiant and any witnesses he may produce. Such testimony

shall be admissible at a hearing on a motion to suppress if taken

down by a court reporter or recording equipment, transcribed

and made part of the affidavit. The warrant shall be directed

to a law enforcement officer. It shall command the officer

to search, within three days, the person or place named for the

property specified. The warrant shall be served in the daytime,

unless the issuing court, by appropriate provision in the warrant,

and for reasonable cause shown, authorizes its execution at times

other than daytime. The warrant shall designate a judge to

whom it shall be returned.

6. This is not to say that the question of “privilege,” as de-

fined in R.C. 2901.01(L), need always be a question of law. It

depends on the act of privil dealt with and how it

called into question. We are ere with a constitutional

privilege arising under the Fourth Amendment, a purely legal

uestion.

AT

Buack, J., concurring in part and dissenting in part:

I concur with my brothers in their conclusions on

the second through the sixth assignments of error, but I

dissent from their conclusion that the first assignment of

error has merit. Otherwise stated, the only disagreement

concerns Dr. Pembaur’s claim to a “privilege” to bar-

ricade his office against deputies seeking to serve the writs

of attachment (capiases) on two of his employees. The

correct decision, in my opinion, is that under the very

limited circumstances disclosed by the record, the trial

court correctly decided that Dr. Pembaur had no “privilege”

but then erred in presenting the issue of privilege to the

jury for their decision. This error was not harmless

beyond a reasonable doubt. The disposition of the case,

in my opinion, should be to reverse the judgment [39] be-

low and remand the case for further proceedings.

Dr. Pembaur had no right or privilege to prevent

entry of the deputies, because they acted in compliance

with the Fourth Amendment limitations on searches and

seizures. At common law, a citizen has a right to resist

an unlawful arrest or an unlawful search, but he takes

his chances on the legality of the arrest or the search.

If it is illegal, his right to resist prevails, but if it is

legal, his right to resist disappears. John Bad Elk v.

U.S. (1900), 177 U.S. 529; U.S. v. Prescott (9th Cir.

1978), 581 F.2d 1343; Miller v. U.S. (5th Cir. 1956),

230 F.2d 486; Sparks v. U.S. (6th Cir. 1937), 90 F.2d 61;

U.S. v. Dentice (E.D. Wis. 1968), 289 F.Supp. 799. Al-

though this right to resist at the scene of an illegal arrest

or search has been modified by recent developments in

the law in order to remove the place of confrontation

from the streets to the courts,’ I will assume the appli-

cable law is the unmodified common law, giving Dr.

Pembaur the broadest privilege.

A76

My conclusions that the search was legal and that

Dr. Pembaur had no right to resist arise from the facts

peculiar to this case. I would not extrapolate broad rules

of police conduct from what I conceive to be a narrow

factual base. I agree wholly with the principles of law

governing searches and seizures as so ably reviewed by

Judge Palmer, but I part company with my brothers in

the application of those principles to the facts.

I add the following to the factual background as

described above beginning at page 3. At the time the

writs of attachment were issued, a grand jury was con-

sidering whether there was probable cause to charge Dr.

Pembaur with theft offenses in the nature [40] of ob-

taining property by embezzlement or deception and re-

taining or disposing of such property (R.C. 2913.02 and

2913.51), in connection with his claims for reimbursement

from third party payers for services rendered to indigent

patients. Thirty thousand files had been seized from Dr.

Pembaur’s office under a search warrant. Dr. Kevin

Maldon had been personally served with a subpoena in

the presence of an assistant county prosecutor, but he

had twice refused to appear before the Grand Jury. Mrs.

Marjorie McKinley refused to accept service under such

circumstances that she is deemed to have been personally

served. She was upstairs in bed and refused to get up

or otherwise to accept service, communicating with the

deputy downstairs through her husband who carried mes-

sages back and forth. When the deputy offered to come

back at any convenient time the foliowing day, a Sunday,

her husband told him he would be wasting his time. She

later failed or refused to appear before the grand jury

as directed.

The capiases were issued by two different judges.

In each instance, the judge was fully informed about ser-

ATT

vice of the subpoenas, the refusal or failure of the wit-

nesses to appear and the Grand Jury’s need for their

testimony. This was done, in each instance, in an open

court proceeding that was reduced to a transcript made

part of the record in the trial court during which the

court was informed by means of representations by assis-

tant county prosecutors who spoke from personal knowl-

edge, representations of the foreman of the Grand Jury

speaking from personal knowledge, and the sworn testi-

mony of the deputy who had sought in vain to serve

the subpoena on Mrs. McKinley. Promptly after the

capias was [41] issued for Mrs. McKinley, the deputies

went to Dr. Pembaur’s medical office. The record fails

to disclose whether the deputies first tried to find the

two recalcitrant witnesses at their respective residences,

but it is clear that they were both in the medical office

during the two-hour confrontation in the waiting room.

The events occurring after the deputies entered the

waiting room will not be repeated here. I add, however,

that two attorneys were observed by the law enforce-

ment officers inside the medical office towards the end

of the two-hour period and before the doors were forcibly

opened, from which we may infer that Dr. Pembaur had

elicited some response from the phone calls he made to

obtain legal advice.

This court is unanimously of the opinion that the

writs of attachment were issued on probable cause, and

I believe my brothers agree that the deputies had probable

cause to believe the two witnesses were in the medical

office. This was their known place of work, the time

was during normal business hours, and the deputies saw

one woman behind the receptionist who met the descrip-

tion of Mrs. McKinley. However, as the majority cor-

rectly points out, the record does not present any of the

A78

situations in which a search is valid even though made

without a warrant. The record does not disclose consent,

hot pursuit, or exigent circumstances.”

The question becomes whether the deputies had au-

thority to enter Dr. Pembaur’s medical office to seize the

witness-contemnor named in the writs in the absence of

a search warrant specifically describing the place to be

searched. Stated abstractly, the question is whether a

sheriff's deputy, armed with a writ of attachment [42]

issued by a judge in open court requiring a witness to

answer for contempt in failing or refusing to appear before

a grand jury investigating crimes allegedly committed

at the witness’s place of employment, has authority to

enter and search that place du

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