CA3: Ohio officers in fresh pursuit could arrest defendant in Pennsylvania without violating Fourth Amendment

Arrest by Ohio State Troopers of defendant in Pennsylvania did not violate the Fourth Amendment. The officers were in hot pursuit (see Uniform Fresh Pursuit Act, Ohio Rev. Code §§ 2935.30 & 2935.31) with probable cause. What state law provides does not necessarily involve the Fourth Amendment under Virginia v. Moore. This arrest was reasonable. United States v. Sed, 601 F.3d 224 (3d Cir. 2010):

In Moore, police arrested Moore for driving on a suspended license, even though Virginia law empowered them to issue only a summons for that offense. Id. at 1601-02. The question presented to the Supreme Court was “whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.” Id. at 1601. Like Sed, Moore argued that his arrest in violation of Virginia law constituted an ipso facto violation of the Fourth Amendment. The Supreme Court disagreed, noting: “A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.” Id. at 1606. The Court concluded that “while States are free to regulate … arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.” Id. at 1607. In light of Moore, Sed is plainly wrong when he argues that his arrest in violation of Ohio law renders the conduct of the State Police unreasonable per se under the Fourth Amendment.

Our rejection of Sed’s categorical argument is not the end of the inquiry, however, because we still must determine whether the seizure was unreasonable under the Fourth Amendment. We review the reasonableness of a seizure under the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). Our review of the undisputed facts of this case leads us to conclude that there was nothing unreasonable about the Pennsylvania State Police’s seizure of Sed and Grannison, despite the fact that the arrest occurred in Ohio instead of Pennsylvania.

Although Sed was seized outside the territorial jurisdiction of the Pennsylvania State Police, the first controlled purchase between Sed and Poulos was negotiated and consummated entirely within Pennsylvania. As for the second controlled purchase, Poulos requested Grannison’s presence at the Shenango Valley Mall. When Sed changed the location to the gas station at the Hermitage Plaza, the “take down” team assembled nearby and planned to make the arrest there. The record demonstrates that all state actors believed the second controlled purchase would occur entirely within Pennsylvania until Sed insisted that the deal would have to occur in the same fashion as the first deal six days earlier. Thus, it was only as a result of this last-minute change of plans by Sed that the second controlled buy occurred so close to the state line. Even then, the police intended to arrest Sed in Pennsylvania and believed that they had done so when they stopped Grannison’s car.

In sum, Sed had committed a serious drug crime in Pennsylvania and was acting in furtherance of a conspiracy to distribute crack cocaine in Pennsylvania at the time he was seized. The stop of Grannison’s car before it entered Pennsylvania was nothing more than an honest mistake and a de minimis one at that, considering the game of hopscotch Grannison and Sed played across the Pennsylvania-Ohio border. This mistake does not render the seizure of Sed unreasonable. Cf. United States v. Delfin-Colina, 464 F.3d 392, 398-99 (3d Cir. 2006) (stating that a reasonable mistake of fact is “rarely fatal” to the legality of a Terry stop even where the mistake goes to the question of whether a crime is being committed). Under these circumstances, the seizure of Sed was not unreasonable and the District Court did not err in denying his motion to suppress evidence.