City of Columbus v. Stump

Troop, P. J. This appeal is from the conviction and judgment of the Franklin County Municipal Court entered April 5, 1974, at the conclusion of a trial to the court upon a charge of the reckless operation of a motor vehicle. The defendant George G. Stump, the appellant herein, filed a notice of appeal from the judgment May 2,1974, and offers three assignments of error in support of the appeal. The first two assignments have a common demoninator in that they relate to statutes which establish specific standards for officers and vehicles used in the control of traffic. The first one of the series of four, R. C. 4549.13, requires that any motor vehicle used by the highway patrol, or any other peace officer, while “on duty for the exclusive or main purpose of enforcing the motor vehicle or traffic laws of this state,” shall be “marked in some distinctive manner or color.” *82 Next in order and related to R. O. 4549.13 is R. C. 4549.14 as follows: “Any officer arresting * * * a person charged with violating the motor vehicle or traffic laws of this state, provided the offense, is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing' such laws, is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was rising a motor vehicle not marked in accordance with Section 4549.13 of the Revised Code.” The same basic principle and purpose is reflected in R. C. 4549.15, which requires any police officer “on duty for the exclusive or main purpose of enforcing motor vehicle or traffic laws of this state” to wear a “distinctive uniform.” The related section, R. C. 4549.18, provides that the police officer, “being on duty exclusively or for the main purpose of enforcing such laws,” is incompetent to testify as a witness in the prosecution of the arrested person, if at the time of arrest he “was not wearing a distinctive uniform” as required by R. C. 4549.15. Some basic facts are necessary to a conclusion as to these two assignments of error. Two Worthington police officers,- in an unmarked cruiser, were watching the Friar Tuck Bar at 2 a, m., on November 17, 1973, from a point across the street from the bar. According to police officer Jack Lower, the purpose was to check “illicit activities outside the bar.” The officer said that he and his fellow officer saw the automobile driven by the defendant on a private lot, heard the engine revved up, the tires squeal — first on the lot and then on the street — and noticed some fishtailing of the car, all sufficient to induce the police officers to reason that such erratic driving, coupled with excessively high speed, was dangerous. ' The Worthington men pursued the Stump ear and such ■ pursuit ended in an accident within the limits of' the city of Columbus. A Columbus police officer made the arrest for reckless operator!. The trial court *83 permitted officer Lower to testify. There is no dispute, as to the cruiser being unmarked and that officer Lower was not in uniform. Counsel for the defendant timely objected to the testimony of the officer on the basis of the provisions in R. C. 4549.14 and 4549.16. Both sections require distinctive identification of men and vehicles, and both sections make the testimony of an officer incompetent when he acts in traffic offense situations without identifying marks. The statutes spell out the applicability to those officers, and their vehicles when on duty “exclusively or for the main purpose” of traffic law enforcement. Such quoted statement, repeated four times in the legislative enactments noted, recognizes the existence of exceptions to those rules. Little difficulty arises in applying the rule when the officer and vehicles are used “exclusively” in traffic duty. The almost continuing and universal duty of the highway patrol is the enforcement of .traffic regulations and control. Other duties are an exception. Police departments in the larger cities have a traffic division charged exclusively with traffic control and regulation enforcement. In this area, while on duty, the officers must wear a distinctive uniform and have their automo bile marked. There is little or no decision law which offers any assistance in the application of these sections to the realities of the traffic control task. A fairly recent decision of the Ohio Supreme Court, City of Dayton v. Adams (1967), 9 Ohio St. 2d 89, is, however, of interest. A radar speed-check setup was involved and the so-called “chase” vehicle was marked. The car carrying the radar equipment, which was parked along the curb, was unmarked. At trial, both police officers were permitted to testify. The Supreme Court held that the testimony of the officer in the radar car was incompetent. At page 90 of the court’s opinion, the court speaks generally, hoAvever, concerning the “intent” of the legislature in passing these laws. One purpose of the law, said the court, is to proAdde uniformity in traffic control. The *84 court then adds a second legislative intention: ”* * * to put a curb upon the speed traps which were often operated by ‘peace officers’ of the municipalities and townships.” The Second District Court of Appeals provides an interesting opinion, also, in State v. Thobe (1961), 91 Ohio Law Abs. 92. The police officer involved in ’ the case was wearing green trousers and shirt, a police cap, badge and exposed belt, holster and pistol. The officer chased the defendant at speeds of up to 100 miles per hour. This police officer was the chief of police of a village. As such, his duties were prescribed by R. C. 737.19. He was the only officer on duty at the time of the incident. The court held that the officer was not clothed in a distinctive uniform but, since he was charged with the whole spectrum of duties required of a chief of police, he could not be held to be “exclusively” in the business of traffic control. The case clearly describes the intention of the legislature to eliminate abuses in the enforcement of traffic laws. The state and large police units in cities and local areas can and do respect the directives noted. The problem of the less populous subdivisions, which employ only a limited number of police officers, or get along with just one, as was true in the latter case, is a decidedly different problem. The Worthington police officer makes it clear that he had, at least, more than one duty on the evening of November 17, 1973, and by reason of being in the business of checking Friar Tuck’s Bar at 2 a. m., when traffic is ordinarily very light, could not be said to have been “exclusively” assigned to traffic control. The elusive definition of the concept of “main purpose” is the troublesome portion of the legislative exclusion. “Main purpose” must involve the complete assignment of duty for the Worthington police officer for the “trick” he worked as a whole. If that assignment included .narcotics control efforts and the patroling of the city for protection against the many forms of law breaking, then it cannot be said that traffic control was the “main pur *85 pose ’ ’ of his assignment that night. To attempt to segment his general duties from his assignment for a particular night is to create a limitation which ignores the practicalities of a police assignment. Such segmentation suggests a requirement to change clothes, in this instance, when the officer left the surveillance of the bar and before he pursued a flagrant traffic violator. The entire duty of the officer, be it multiple or single, must be respected and to do otherwise flies in the face of the intent of the legislature as pointed out by the Supreme Court in Adams, supra. A reasonable interpretation in the face of cold practicalities, with respect for the broader purpose, or intent of the legislature, requires that “main purpose” apply to the whole period of duty of the officer concerned, and not to the duty at the moment he makes an arrest. The first two assignments of error are overruled. The third assignment of error advanced by counsel for the defendant states that the original arrest was not lawful because it was made by Worthington police in the city of Columbus, and that they were not in “hot pursuit.” It is unnecessary to determine whether the arrest was legal because an illegal arrest does not invalidate an affidavit filed in a misdemeanor case or preclude prosecution thereon. State v Hooper (1966), 10 Ohio App. 2d 229. For the reasons advanced the assignments of error offered by the defendant are overruled, and the judgment of the Franklin County Municipal Court is affirmed. Reilly, J., concurs. Whiteside, J., dissents.