# Petition — Pembaur v. Ohio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1219

## Text

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. G

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1531%3A1. Public record. Not legal advice.