
    The State of Ohio, Appellee, v. Beck, Appellant.
    (No. 37808 —
    Decided June 26, 1963.)
    
      
      Mr. Ralph S. Locher, director of law, Mr. Richard F. Mafia and Mr. Edward V. Cain, for appellee.
    
      Mr. James R. Willis, for appellant.
   Zimmerman, J.

Section 2915.111, Revised Code, recites: “No person shall own, possess, have on or about his person, have in his custody, or have under his control a ticket, order, or device for or representing a number of shares or an interest in a scheme of chance known as ‘policy,’ ‘numbers game,’ ‘clearing house,’ or by words or terms of similar import, located in or to be drawn, paid, or carried on within or without this state.

“Whoever violates this section shall be fined not more than five hundred dollars and imprisoned not more than six months for a first offense; for each subsequent offense, such person shall be fined not less than five hundred nor more than one thousand dollars and imprisoned not less than one nor more than three years.”

It has been held that where the violation of a criminal statute carries a penalty of a substantial fine and imprisonment for a period of one or more years and the person convicted under the statute is sentenced to the penitentiary, his offense is classed as a felony. Ex parte Thorpe, 66 Ohio App., 128, 32 N. E. (2d), 571, affirmed, 137 Ohio St., 325, 30 N. E. (2d), 335. See, also, In re Thorpe, 132 Ohio St., 119, 5 N. E. (2d), 333, and Smith v. Alvis, Warden, 72 Ohio Law Abs., 267, 268, 134 N. E. (2d), 868, 869.

The Cleveland police had good reason to believe that defendant was regularly engaged in carrying on a scheme of chance involving clearinghouse slips. There was testimony that he had previously been convicted on that score. Information was given to the police by an informer that defendant would be in a certain locality at a certain time pursuing his unlawful activities. He was found in that locality, as predicted, driving an automobile. Police officers stopped the car and searched it, without result. Defendant was then arrested and taken to a police station, and his clothing was examined, resulting in the discovery and seizure of the illegal clearinghouse slips, which formed the basis of the charge against him and his subsequent conviction.

In response to questions asked him by counsel for the defendant, one of the arresting officers testified as follows:

“A. I heard reports and found that he [defendant] has a record in connection with clearing house and scheme of chance.

“Q. Previous convictions? A. Yes.”

Although there are a number of errors assigned by defendant, only two are of real importance:

1. Were the clearinghouse slips obtained by an illegal search and seizure, so as to render erroneous the refusal of the trial court to sustain the motion to suppress?

2. Did the trial court err in refusing to order the police to disclose the identity of the informer?

The search herein took place as an incident of an arrest, and it has been held that a search which is incidental to a valid arrest does not constitute an unreasonable and illegal search. Harris v. United States, 331 U. S., 145, 91 L. Ed., 1399, 67 S. Ct., 1098.

Defendant was arrested, without a warrant, for what an arresting officer believed and had probable cause to believe was the commission of a felony (Section 2915.111, Revised Code). In the circumstances, then, was such arrest valid? Section 2935.04, Revised Code, describes when an arrest may be made without a warrant and reads as follows:

“When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.”

Next, was there probable cause for making the arrest? “Probable cause” is incapable of any exact definition applicable to all cases. However, the Supreme Court of the United States said in Henry v. United States, 361 U. S., 98, 102, 4 L. Ed. (2d), 134, 80 S. Ct., 168:

‘ ‘ Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” See, also, Draper v. United States, 358 U. S., 307, 3 L. Ed. (2d), 327, 79 S. Ct., 329.

Therefore, a question of fact is presented in each case, and where the facts in the possession of the police are sufficient to cause a reasonable and prudent man to believe that a felony has been committed and that the accused committed it, probable cause is present.

In the hearing on the motion of defendant to suppress, an arresting officer testified that the arrest was made on the basis of information supplied by an informer, coupled with knowledge of defendant’s prior history. Here, there was not an arrest merely for an exploratory search. According to the testimony, the police, based on the information they had, were actually looking for the defendant for the purpose of arresting him.

In the present case, the knowledge of the police was predicated partly on information furnished by an informer. This raises the constantly recurring question as to what extent officers may rely and act on that kind of information. Of course, to justify an arrest a police officer need not observe the actual commission of a crime, and it is a matter of common knowledge that law-enforcement officers frequently and necessarily act on information supplied by others and on occasion on “tips” coming from informers.

Did the court err in refusing to compel the disclosure of the name of the informer? Defendant contends that he was entitled to such disclosure to test the credibility of the informer and the reliability and sufficiency of the evidence on which the officers proceeded.

As already noted, law-enforcement officers sometimes base a part of their activities on information supplied them by informers, and the only way to verify the reliability of such information is to make use thereof. Informers often frequent the vicinity where crime is planned, and the revelation of an informer’s name would not only destroy his access to information concerning criminal activities but might also result in his sudden demise, thereby discouraging others from becoming informers.

For many years, sound policy has dictated that the names of informers be kept secret. Only in an instance where an informer’s identity would be beneficial and helpful to a defendant is there any basis for requiring disclosure. Here the officers acted on the information imparted by the informer plus additional knowledge already in their possession. The revelation of the name of the informer and the information supplied by him would not alter the fact of defendant’s guilt. And a mere desire to test the credibility and reliability of the informer is hardly a compelling consideration in the circumstances narrated.

This case is distinguishable from that of Roviaro v. United States, 353 U. S., 53, 1 L. Ed. (2d), 639, 77 S. Ct., 623, where the informer not only gave information but took an active part personally in trapping and apprehending the offender. No such situation is evident here.

Finally, nothing in the present case shows that the disclosure of the name of the informer would have been of any real value to defendant. He made no active defense, and by stipulation the case was submitted to the court solely on evidence furnished by the police and introduced at the hearing on the motion to suppress.

We conclude that the search and seizure herein without a warrant was justifiable and did not violate defendant’s constitutional rights, and we find no prejudicial error in the refusal of the trial court to require the disclosure of the identity of the informer.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Matthias, O’Neill, Griffith and Herbert, JJ., concur.

Taft, C. J., and Gibson, J., dissent.

Gibson, J.,

dissenting. I concur with the majority that, under well established law, the search of defendant and the seizure of the packet of clearinghouse slips, all without a warrant, were lawful if the search and seizure followed a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States (1914), 232 U. S., 383, 392; United States v. Rabinowits (1950), 339 U. S., 56. But the validity of the search and seizure without a warrant after an arrest is dependent upon the arrest being valid.

Defendant was arrested without a warrant; hence, the inquiry must turn to whether such arrest was lawful. The Fourth Amendment to the Constitution of the United States and similar provisions of state constitutions, e. g., Section 14, Article I, Ohio Constitution, do not prohibit arrest without a warrant. 6 Corpus Juris Secundum, 579, Arrest, Section 5. The right to arrest without a warrant turns upon (1) the nature of the offense, i. e., whether felony or misdemeanor, and (2) the status of the arrestor, i. e., whether peace officer or citizen. See Sections 2935.03 and 2935.04, Revised Code. In this instance the arrest was made by a police officer, so our inquiry is limited to the right of an officer to make an arrest without a warrant.

Since the rules governing an officer’s right to arrest without a warrant vary with the nature of the crime, consideration should be given to whether the crime for which the arrest was made was a felony or a misdemeanor. The arresting officer testified that at 1:00 p. m. on November 10, 1961, he placed the defendant “under arrest for a clearing house operation, scheme of chance.” On November 13, 1961, an affidavit was executed by a police officer charging defendant under Section 2915.111, Revised Code, with the possession of a certain quantity of clearinghouse slips. The warrant issued thereon probably charged a violation of Section 2915.111, although the record is not entirely clear on this point, since the deputy clerk issuing the warrant apparently attempted to adapt a form charging a violation of the municipal code.

The arresting officer testified that when he arrested defendant he (the officer) was “under a belief that a felony had been committed under the state law, carrying on a scheme of chance is a felony. ’ ’ In my opinion, however, his conclusion as to whether he was arresting defendant for a felony is not determinative. Mere honesty and good faith on the part of the arresting officer are not enough. There must also be reasonable grounds for believing that the person arrested has committed an act constituting a felony. I Harper and James, The Law of Torts, 275, Section 3.18.

Several factors should be considered in determining whether the officer had reasonable grounds for believing that the defendant might be guilty of a felony. The factors include the statute which was violated and the circumstances existing at the time of the arrest and thereafter.

Consideration first should be given to the penalty provision of Section 2915.111, Revised Ccjde, which reads as follows:

‘‘Whoever violates this section shall be fined not more than five hundred dollars and imprisoned not more than six months for a first offense; for each subsequent offense, such person shall be fined not less than five hundred nor more than one thousand dollars and imprisoned not less than one nor more than three years. ’ ’ It has been held that a crime which may be punishable by imprisonment in the penitentiary or in a jail at the discretion of the court is a felony. McKelvy v. State (1912), 87 Ohio St., 1, 7; Seaman v. State (1922), 106 Ohio St., 177, 179. It is to be noted, however, that in this case the court has no discretion. The statute clearly makes the first offense a misdemeanor and subsequent offenses felonies.

Consideration should also be given to the circumstances at the time of the defendant’s arrest and thereafter. These circumstances must be taken to be as stated by a single Cleveland police officer called to testify on the defendant’s motion to suppress evidence, since as stated in the record there is no other evidence before this court. The officer testified that when he left the police station on November 10, 1961, he had a police picture of defendant, knew of three arrests of defendant in 1959 for clearinghouse operations, had received information from an informer (whose identity he would not reveal) and “had in mind looting for him [defendant] in the area of East 115th Street and Beulah.” A few minutes before 1:00 that afternoon, he first saw defendant driving his automobile lawfully north on East 115th Street. The officer and other officers identified themselves and requested defendant to pull over to the curb as he turned east on Beulah. The officer admitted that defendant was not stopped for any traffic offense.

After defendant stopped, apparently the arresting officer and other officers searched his automobile. The arresting officer testified that while defendant’s ear was being searched, “I placed him [defendant] under arrest for a clearing house operation, scheme of chance.” This occurred at 1:00 p. m. on November 10, 1961. The officer also testified that the search of the automobile disclosed nothing other than a hunting knife. Defendant then was taken to the Fifth District Police Station where his person was searched. During this search an envelope of clearinghouse slips was found “beneath the sock of [sic] his leg.”

Defendant was arraigned in the Cleveland Municipal Court on November 13, 1961, and entered a plea of not guilty. Thereafter on December 4, 1961, defendant filed a motion to suppress the policy slips seized and “all conversations after said illegal arrest,” on the ground that the “arrest, search and seizure was without authority, unwarranted, illegal, unreasonable, unconstitutionally [sic] and void in that it violates the Fourth Amendment of the Constitution of the United States and the use of any property seized as alleged evidence infringes upon the privilege against self-incrimination, as guaranteed by the Fifth Amendment to the Constitution of the United States.”

Following a hearing on the motion, which was denied, it was stipulated that the evidence presented on the motion would be the same as would be presented at the trial of the cause. The court thereupon found defendant guilty and he was sentenced to pay a fine of $500 and the costs.

From the recital of facts surrounding the arrest and subsequent events, it is apparent that the opinion of the complaining witness, the police prosecutor and the Cleveland Municipal Court was that “a subsequent offense” does not exist so as to make an accused guilty of a felony unless the accused had earlier been convicted of violating Section 2915.111. In other words, the mere fact that defendant in this case may have been arrested on previous occasions for possible violations of Section 2915.111 did not make the arrest on November 10, 1961, one for a felony.

Notwithstanding the stated belief of the arresting officer, in view of the provisions of the statute under which the defendant was charged and circumstances existing at the time of his arrest and thereafter, it seems clear that the defendant was arrested in this case for a misdemeanor, the validity of which arrest must be determined under Section 293'5.03, Revised Code.

Consistent with the heading that “Officer may arrest on view,” Section 2935.03, Revised Code, provides in pertinent part:

“A * * * police officer shall arrest and detain a person found violating a laiv of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.” (Emphasis supplied.) Since Section 2935.04, Revised Code, is expressly limited to the right to arrest a felon without a warrant, it is obvious that the above-quoted statute states the rule relative to the right of named peace officers to arrest misdemeanants without warrants. In my opinion the phraseology “found violating a law of this state, or an ordinance of a municipal corporation” is the equivalent of the more usual rubric, viz., a “crime committed in the presence” of an officer.

As a rule, for a misdemeanor to be committed in the presence of an officer, the facts or elements constituting the offense must be revealed in the presence of the officer and the officer must perceive that the offense is being committed. The offense is committed in the presence or view of the officer when the officer receives knowledge of the commission of the offense through any of his senses, or by inferences properly to be drawn from the testimony of his senses. Accordingly, where through the sense of sight, or smell, or hearing, the officer receives knowledge that a misdemeanor is being committed in his presence he may arrest the offender without a warrant. 6 Corpus Juris Secundum 580, 582, Arrest, Section 5.

In many types of crimes the suspect is actively doing something, such as breaking, entering, brandishing a knife, burning property, striking an antagonist, or using profane language, which the officer can see, hear, or smell. The violation of law occurring at the time of the defendant’s arrest here, however, consisted solely of his having custody or control of a packet of clearinghouse slips under his sock and inside his trousers. Obviously, the officer could neither see, hear nor smell the packet which was unlawfully possessed. In my opinion this misdemeanor was not committed in the presence of the police officer, or, in the terms of the statute, the defendant was not “ found violating a law of this state” by the officer, thereby justifying the arrest without a warrant.

To avoid any misunderstanding, I do not assert that the act of possessing contraband materials never can be committed in the presence of an officer. Obviously, if the officer were to see the clearinghouse slips in the hand of the suspect or enough of the slip protruding above a pocket of the suspect to identify it as a clearinghouse slip, the crime of possessing clearinghouse tickets would be committed in his presence.

The problem here is to strike a balance between the public interest in the prevention of crime and the speedy apprehension of criminals and the interest of the individual in freedom from interference at the hands of the law. Nothing I have said should be taken as condoning the activities of this defendant. But, regardless of the conduct of this defendant, I am firmly convinced that the due-process requirements of the common law and constitutional provisions are not to be overlooked. The court must protect the fundamental rights of its citizens even though in doing so the guilty may at times escape punishment. This is the price which a free society must pay to protect its freedom. We can not ignore the rights of some of the people without doing violence to the rights of all.

There is no place today for a procedure by which a police officer can justify an arrest by the results of his unlawful search and seizure. In other words, an unlawful arrest may not be made legal by the contraband seized. The end can not justify the means.

Particularly important in the instant case are the facts that the courthouse was open and that the arresting officer, knowing that he was “looking for him [defendant] in the area of East 115th Street and Beulah,” had ample time in which to secure a warrant. There is no indication that the arrest was made without a warrant in order to prevent a threatened escape.

Under all the circumstances of this case, I believe that the arrest was unlawful. Hence the search and seizure was unreasonable and in contravention of the Fourth Amendment of the Constitution of the United States and Section 14, Article I of the Ohio Constitution. Accordingly, the ruling of Mapp v. Ohio (1961), 367 U. S., 643, requires that the judgment of the Court of Appeals in this case should be reversed and the cause remanded for further proceedings without the use of evidence obtained by the unlawful search and seizure.

Taft, C. J., concurs in the foregoing dissenting opinion. 
      
      The majority opinion asserts that there was testimony that the defendant had previously been convicted of carrying on a scheme of chance involving clearinghouse slips. Although the arresting officer on direct examination testified that defendant had previous convictions, a careful examination of the testimony shows that he did not clearly indicate what the previous convictions were for. In view of what occurred after the arrest and search and seizure, the logical conclusion is that if the convictions were for clearinghouse-slip violations they were convictions under the Cleveland Municipal Code and not under Section 2915.111, Revised Code. Had they been under the state statute, the prosecuting authorities undoubtedly would have taken advantage of the subsequent offense provision of the statute.
      
        
        It also should be noted that the arresting officer on redirect examination testified as follows:
      “Q. You indicated that you knew of Mr. Beck’s previous record? A. Yes, I did.
      “Q. What was that, sir? A. Three arrests for clearing house violations.
      “Q. When was this? A. They were all during the year 1959, I believe,”
     