[Cite as State v. Plues, 2012-Ohio-2519.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 11-COA-038
HAROLD W. PLUES

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Ashland Municipal Court,
                                               Case No. 11-CRB-390 AB


JUDGMENT:                                      Possession of a Schedule IV Substance
                                               Conviction Reversed and the Charge
                                               Ordered Dismissed


DATE OF JUDGMENT ENTRY:                         June 5, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RICHARD P. WOLFE II                            JOSEPH P. KEARNS, JR.
Director of Law                                Mason, Mason & Kearns
1213 E. Main St.                               Post Office Box 345
Ashland, Ohio 44805                            153 West Main Street
                                               Ashland, Ohio 44805
Ashland County, Case No. 11-COA-038                                                     2

Hoffman, J.

      {¶1}    Defendant-appellant Harold W. Plues appeals the September 2, 2011

Judgment Entry entered by the Ashland Municipal Court, which found him guilty of

possession of a controlled substance. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On April 28, 2011, Ashland City Police were dispatched to the residence

at 9 Thomas Court, Ashland, Ohio, in response to a possible domestic disturbance.

Officers Jeremy Jarvis and Brian Kunzen separately arrived at the scene. Upon their

arrival, the officers heard arguing and yelling from the upstairs of the residence. A

young girl answered the door.       The officers ordered the individuals, whom were

subsequently identified as Appellant and Leslie Johnson, his girlfriend, to come

downstairs. Officer Kunzen stated Appellant was carrying a bag of possessions as he

walked down the stairs. Officer Jarvis spoke with Johnson, and Officer Kunzen stepped

outside with Appellant.

      {¶3}    During their conversation, Appellant advised Officer Kunzen he had been

drinking that evening. Officer Kunzen “observed several cues as well.” Transcript of

Suppression Hearing at 16.      Appellant was not forthcoming with the details of the

argument between himself and Johnson. Although Johnson acknowledged there had

been violence, arguing, and fighting, she would not cooperate with pressing charges.

Officer Kunzen arrested Appellant for disorderly conduct. After handcuffing Appellant,

the officer conducted a pat down search and found one diazepam pill.             Appellant

informed Officer Kunzen he did not have a prescription for diazepam. Appellant was

subsequently charged with possession of a controlled substance.
Ashland County, Case No. 11-COA-038                                                    3


       {¶4}    Appellant filed a motion to suppress. The trial court conducted a hearing

on the motion on July 25, 2011. Via Judgment Entry filed July 26, 2011, the trial court

overruled Appellant’s motion. The trial court found the officers had probable cause to

arrest Appellant and the questions posed by the officers to Appellant regarding the pill

were not asked to obtain a confession, but rather to determine the status of the pill.

Thereafter, Appellant appeared before the trial court and entered a plea of no contest to

the charge. The trial court accepted the plea, found Appellant guilty, and sentenced him

accordingly.

       {¶5}    It is from this conviction and sentence Appellant appeals, raising the

following as error:

       {¶6}    “I. THE TRAIL [SIC] COURT ERRED IN FINDING THAT THE PHYSICAL

ARREST OF THE APPELLANT WAS PROPER.”

                                               I

       {¶7}    Appellant argues his physical arrest was improper because the offense

was a minor misdemeanor and his behavior did not fall within any of the four exceptions

set forth in R.C. 2935.26(A), which would warrant an arrest.

       {¶8}    In State v. Brown, 99 Ohio St.3d 323, 2003–Ohio–3931, 792 N.E.2d 175,

the Ohio Supreme Court held the Ohio Constitution provides a greater protection than

the Fourth Amendment against warrantless arrests for minor misdemeanors. Police

officers may briefly detain, but may not conduct a custodial arrest, or a search incident

to that arrest, for a minor-misdemeanor offense when none of the R.C. 2935.26

exceptions apply. Id. at ¶ 25.

       {¶9}    R.C. 2935.26(A) provides:
Ashland County, Case No. 11-COA-038                                                           4


          {¶10} “Notwithstanding any other provision of the Revised Code, when a law

enforcement officer is otherwise authorized to arrest a person for the commission of a

minor misdemeanor, the officer shall not arrest the person, but shall issue a citation,

unless one of the following applies:

          {¶11} 1) The offender requires medical care or is unable to provide for his own

safety.

          {¶12} 2) The offender cannot or will not offer satisfactory evidence of his identity.

          {¶13} 3) The offender refuses to sign the citation.

          {¶14} 4) The offender has previously been issued a citation for the commission

of that misdemeanor and has failed to do one of the following: * * * “

          {¶15} Officers Jarvis and Kunzen based Appellant’s arrest on the fact he was

“unable to provide for his own safety.”       Officer Jarvis testified, upon his initial contact

with Appellant, Appellant “seemed to be intoxicated”. Officer Jarvis added “at that point”

Appellant’s condition was such that he would not have let Appellant drive. Officer Jarvis

recalled Appellant coming downstairs as he entered the residence. The officer could

not say whether Appellant had any difficulty walking down the stairs as he was focused

on making sure Appellant did not have anything in his hands. Officer Jarvis stated

Appellant obeyed his instructions to remain on the porch and speak with Officer

Kunzen.

          {¶16} Officer Kunzen testified, when he arrived at the residence, he heard

arguing and yelling coming from upstairs. During their conversation, Appellant told

Officer Kunzen he had been drinking alcohol that evening. The officer added he “had

observed several cues as well.”          Officer Kunzen stated he and Appellant had a
Ashland County, Case No. 11-COA-038                                                      5


conversation about Appellant’s ability to drive home due to his intoxicated state. Officer

Kunzen indicated Appellant did not live in close proximity to Johnson’s home.           He

further testified he “made the determination that [Appellant] was not able to care for

himself due to his violent, turbulent behavior we witnessed when we were there.”

Transcript of Suppression Hearing at 18.

      {¶17} We find this evidence insufficient to support the trial court's conclusion the

police had probable cause to believe Appellant, in his intoxicated state, was not able to

care for himself, justifying his arrest pursuant to R.C. 2935.26(A)(1).       For a more

detailed discussion of this Court’s analysis of that statute see, State v. Waters, 181 Ohio

App. 3d 424, 2009-Ohio-1338 at ¶28-33.

      {¶18} Appellant’s sole assignment of error is sustained.

      {¶19} Appellant’s conviction on the possession of a schedule IV substance is

reversed and that charge ordered dismissed.

By: Hoffman, J.

Delaney, P.J. and

Wise, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE
Ashland County, Case No. 11-COA-038                                                  6


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
HAROLD W. PLUES                            :
                                           :
       Defendant-Appellant                 :         Case No. 11-COA-038



       For the reason stated in our accompanying Opinion, Appellant’s conviction by the

Ashland County Court of Common Pleas on possession of a schedule IV substance is

reversed and that charge ordered dismissed. Costs to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE
