The Honorable Michael C. O’Malley
AGO 2017-31
No. 2017-031
Ohio Attorney General Opinions
Ohio Attorney General
September 25, 2017
The
Honorable Michael C. O’Malley
Cuyahoga
County Prosecuting Attorney
1200
Ontario Street
Cleveland,
Ohio 44113
SYLLABUS:
1.
Pursuant to R.C. 2951.08(A)(4), during a period of community
control, a peace officer may arrest a person without a
warrant for violating the condition of a community control
sanction that prohibits the person from contacting or
communicating with another person, when the peace officer
does not observe the contact or communication, or when the
peace officer observes the contact or communication but the
alleged victim consents to the contact or communication,
provided that the peace officer has reasonable ground to
believe that the person has violated or is violating the
condition of the person’s community control sanction.
2.
“Reasonable ground,” as that term is used in R.C.
2951.08(A)(4), constitutes “probable cause” and
may be found based upon a peace officer’s own
observation of the violation of a condition of a community
control sanction or based upon any other information received
by a peace officer, including any other reasonably
trustworthy information given to the officer by the alleged
victim or a witness.
Dear
Prosecutor O’Malley:
You
have requested an opinion about a peace officer’s
authority to arrest a person without a warrant for violating
a condition of a community control sanction. Specifically,
you ask whether a peace officer may detain and arrest a
person without a warrant for violating a court’s order
prohibiting the person from contacting or communicating with
another person, when the peace officer does not observe the
contact or communication, or when the peace officer observes
the contact or communication but the alleged victim consents
to the contact or communication. You further ask whether
“reasonable ground” in R.C. 2951.08(A)(4)
requires less than the “probable cause” necessary
to arrest a person without a warrant.
Community
Control Sanctions Generally
For the
purpose of R.C. Chapter 2951, a “community control
sanction” is defined according to the definition
provided in R.C. 2929.01. R.C. 2951.01(B). R.C. 2929.01(E)
defines a “community control sanction” as:
a sanction[1] that is not a prison term[2] and that is
described in [R.C. 2929.15, R.C. 2929.16, R.C. 2929.17, or
R.C. 2929.18] or a sanction that is not a jail term[3] and that is
described in [R.C. 2929.26, R.C. 2929.27, or R.C. 2929.28].
“Community control sanction” includes probation
if the sentence involved was imposed for a felony that was
committed prior to July 1, 1996, or if the sentence involved
was imposed for a misdemeanor that was committed prior to
January 1, 2004. (Footnotes added.)
R.C.
2929.15 (community control sanctions), R.C. 2929.16
(community residential sanctions
[4]), R.C. 2929.17 (nonresidential
sanctions
[5]), and R.C. 2929.18 (financial
sanctions
[6]) set forth community control
sanctions that a sentencing court may impose as a sentence
for a felony offense. Similarly, R.C. 2929.26 (community
residential sanctions
[7]), R.C. 2929.27 (nonresidential
sanctions
[8]), and R.C. 2929.28 (financial
sanctions
[9]) set forth community control
sanctions that a sentencing court may impose as a sentence
for a misdemeanor offense.
In
addition to the community control sanctions set forth in R.C.
2929.16-.17 and R.C. 2929.26-.28, a sentencing court may
impose other conditions upon the offender, including an order
prohibiting the offender from communicating with or
contacting another person. See R.C. 2929.15(A)(1)
(“[t]he court may impose any other conditions of
release under a community control sanction that the court
considers appropriate”); R.C. 2929.25(C)(2)
(“[i]n the interests of doing justice, rehabilitating
the offender, and ensuring the offender’s good
behavior, the court may impose additional requirements on the
offender. The offender’s compliance with the additional
requirements also shall be a condition of the community
control sanction imposed upon the offender”); R.C.
2951.08(A)(4) (an offender may be arrested without a warrant
by a peace officer for violating a condition of the
offender’s community control sanction that
“prohibits the person from contacting or communicating
with any specified individual”).
Arrest
for Violating a Condition of a Community Control
Sanction
R.C.
2951.08(A) provides, in pertinent part:
During a period of community control, any peace
officer[10] may arrest the person under a
community control sanction without a warrant if the peace
officer has reasonable ground to believe that the person has
violated or is violating any of the following that is a
condition of the person’s community control sanction:
(1) A condition that prohibits ownership, possession, or use
of a firearm, deadly weapon, ammunition, or dangerous
ordnance;
(2) A condition that prohibits the person from being within a
specified structure or geographic area;
(3) A condition that confines the person to a residence,
facility, or other structure;
(4) A condition that prohibits the person from contacting or
communicating with any specified individual;
(5) A condition that prohibits the person from associating
with a specified individual;
(6) A condition as provided in [R.C. 2929.25(A)(1)(a)] or in
[R.C. 2929.15(A)(1)] or [R.C. 2929.27(A)(8)] that requires
that the person not ingest or be injected with a drug of
abuse and submit to random drug testing and requires that the
results of the drug test indicate that the person did not
ingest or was not injected with a drug of abuse.
R.C.
2951.08 does not limit a law enforcement officer’s
authority to arrest without a warrant under R.C. 2935.03.
R.C. 2951.08(C).
You ask
whether a peace officer may arrest a person, pursuant to R.C.
2951.08(A)(4), for violating a condition of a community
control sanction that prohibits the person from contacting or
communicating with a specified person under two
circumstances. The first circumstance occurs when a peace
officer does not see the violation occur, but is told of the
violation either by the alleged victim or another witness.
The second...
