The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Law Enforcement Bulletin April 2015

Ohio Attorney General's Law Enforcement Bulletin

April 2015

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Close Call Reporting: Why it’s Important for Officer Safety

LEB April 2015

Close Call reporting not only prevents injury, but can maintain a climate of safety, give law enforcement an open forum to discuss concerns, and raise awareness of issues affecting safety.

Search & Seizure of Vehicles (Mistakes of Law and Investigatory Stops): Heien v. North Carolina

As a peace officer, you’re expected to know the law of your jurisdiction, but laws are not always clear. They can be confusing and contradictory. When that happens, peace officers try to make reasonable interpretations of what the law means.

Proper Protocol (Search Warrants & State Databases): State of Ohio v. Myers

Question: Do you need a warrant to search a State database? Quick Answer: A warrant is not needed if the statute or code provides a method of access for law enforcement and you comply with those requirements.

Search & Seizure (Preemptive Seizure of Property Without Search Warrant): State of Ohio v. Welch

The most important thing that occurred in this case was that the officers obtained a warrant, in a reasonable time period after seizure, before accessing the evidence. It may have been a different ruling by the court if the property had been searched prior to obtaining the warrant.


Vote for George Sakellakis

My name is George Sakellakis.  I am a sergeant at the Brook Park police department, where I am in my thirteenth year.  With my prior PERS time (Cleveland EMS) and military time (U.S. Army), I’ll be retiring in the next ten years or so.  I am running for trustee of the Ohio Police and Fire Pension Fund’s Board of Trustees active police officer position because I am worried about our retirement system.  For the last few years, our pension has been under attack.  Instead of waiting for some recently-enacted changes to make the fund stronger as required by law, politics has mandated these changes into unrealistic timelines, forcing active and retired officers to absorb high contributions and less benefits.  Our health care fund has been raided and depleted to the point that a retiree has to work in retirement just to pay for their pension fund-sponsored health insurance (as a retiree how much they’re paying; you won’t be happy).  Politicians use the pension to grandstand themselves into media relevancy.  Enough is enough!

 I believe the strength of our pension attracts and retains true professionals to do a job that few want to do, and even fewer can do successfully.  The mold of police officer that we want on our shifts and on our streets is directly correlative to the degree that officers feel someone has their backs.  We are a special breed, and I believe that after spending a career wading through the crap (both literally and figuratively), the politics, and the nightmares that make up our beloved calling, a basic, comfortable retirement is not too much to ask.

I intend to stand for a strong pension.  This means making sound decisions in the best interests of our members, building positive relationships with state officials that oversee our fund and make its associated law, and standing tough in the face of political attack when necessary.  The Board has recently seen a major increase in their powers; they can now do with a simple vote what before required legislation.  There has never been a more important Trustee election.

The OPBA is an outstanding organization that truly has their members’ backs, and I am extremely honored to receive their endorsement.  It is imperative that when you receive your ballot in the first week of May, you will vote for someone you can trust.  I respectfully ask for your vote.


Need for OPBA Representation? Know the Continuum

It has been a long time since a summary of representation responses has been provided to the OPBA’s membership.  Representation responses can be broken down into “levels” just like the use of force continuums that OPBA members should know all too well.

Different levels of management action require different levels of OPBA representation.  The management actions that are to be considered range from the casual conversation with a supervisor or investigator to either a criminal or internal investigation where the Miranda warnings are read.

As a general yet fundamental rule, whenever anyone reads a member their Miranda warnings that member must invoke their right to remain silent.  A member in this situation probably either already has an OPBA attorney present or has been in touch with one so this response may already be known but if not, always remain silent when given the opportunity.

Of course there are exceptions to every rule.  In some cases your OPBA attorney will advise you to waive Miranda and provide a statement.  This happens in many cases involving BCI investigations of police involved shootings.

The BCI is a law enforcement agency that is in business to investigate matters that are “criminal”, whether obviously so or even remotely so.  Thus all BCI investigations are necessarily criminal investigations and thus all of the statements that they take must be taken only after the waiving of Miranda.

Despite what the public may think, virtually all police involved shootings are good shoots, justified by the evidence in light of the use of force continuums.  In these cases there is no reason to reject the BCI’s request for a statement because of Miranda waiver fears.

Between the OPBA’s attorneys, the Department’s OPBA Reps and the shooter there is enough competency to assess and measure the quality of the shoot.  Once it is determined that the officer’s account will prevail at any level of review, then the waiving of Miranda becomes an appropriate response.

Short of this or another situation determined by an OPBA attorney that it makes sense to waive Miranda, Miranda should never be waived.   Management and/or the investigatory authority understands this.  Indeed they expect such a response because it is an intelligent response.  In any case your OPBA attorney can take the blame because invoking Miranda is a golden rule in best defending a criminal case.

Again, never waive your right against self incrimination unless you have been advised to do so.  You will not be stigmatized or blamed and you can always waive it later.

The Garrity warning is another management action that normally warrants the attention of an OPBA attorney.  Unlike Miranda, which is a constitutional right extended to everyone, the Garrity warning is a court created right that is granted to only police officers and other employees of a public law enforcement agency.  Garrity was created as a counter or protection against the public law enforcement agency’s awesome power to conduct internal investigations.

Law enforcement agencies are structured just like a military organization and are widely known as para-military organizations.  This type of organization is built on layers and divisions of authority.

Individuals who are empowered with authority possess the ability to order their subordinates to perform an act, such as to answer questions.  There are individuals in every law enforcement agency that can legally order any subordinate to participate in an internal investigation and to truthfully answer any question posed which relates to the subordinate’s work performance.

How can such an order be lawful when the U.S. constitution guarantees everyone the right against self incrimination?  How is it fair that in one instance your department safeguards and offers to you your constitutional right and then effectively negates that right with its ability to force you to truthfully answer questions?

Over the years the courts have resolved this dilemma by creating what has become known as the Garrity warning/right.  Garrity has evolved into a right to be invoked/provided in order to immunize or otherwise protect the answers to a compelled statement from being used in any subsequent criminal investigation and/or prosecution.

Garrity balances the needs of a para-military organization when it comes to gathering pertinent information pursuant to an internal investigation with the constitutional rights of a law enforcement officer.  Garrity is a crucial right but in some cases it can be abused by deceitful prosecutors and police administrators.

In most cases, OPBA members who are given the Garrity right have been in contact with an OPBA attorney.  If not there is every reason for which to get in contact with an OPBA attorney.

Virtually all instances where Garrity is issued occur pursuant to an internal investigation.  While all non-criminal investigations are “internal” investigations, an internal investigation  is a term of art describing an investigation that is formal or official and normally directed at a “subject” or a “target”.

In Ohio, there is an established “right to counsel” for any target or any witness questioned pursuant to an internal investigation performed by a police department.  Any witness or subject of an internal investigation can delay their interrogation until they can arrange for counsel to attend (subject to a reasonable amount of time, of course). As such it is suggested that before entering into any statement where Garrity has been cited that the member contact an OPBA attorney for advice and/or attendance at the interrogation.

OPBA representation is also appropriate during any other questioning by a supervisory authority where you, the employee, feel that an outcome of your questioning will be the issuance of discipline.  In these situations it is the employee’s obligation to request the presence of an OPBA representative.

If such a request is made the questioning officer is to stop and allow you to secure union representation.  Unless this questioning is pursuant to an internal investigation you are only allowed to interrupt until a local OPBA Representative, and not an OPBA attorney, can be present.

It is not always clear when this kind of request for representation is proper.  This is because it is not known what the questions will be about or whether they are of consequence.  Situations that start off innocent may turn adversarial but keep in mind that at any time the questioning can be, and should be, stopped until representation arrives.

We do know that the discipline that must be feared can not be a simple “word to the wise” or a counseling or coaching, it has to be true discipline from oral reprimand on up.  And we know that the fear of being disciplined is a subjective fear, unique to the individual.  So if these elements are present at any time be sure to request union representation.

If a request for union representation is made during a questioning session and the questioner does not stop, an unfair labor practice has been committed.  The remedy for such a ULP will likely be the vacation of any discipline that was issued, so it makes sense to err in favor of requesting representation, even when you are not sure.

As with the use of force continuum the movement from one level of response to the other is not always clear-cut.  This is why it makes sense to know the continuum of the need for OPBA  representation and in all instances of doubt call the OPBA for guidance and answers.


Preparing for Market Volatility

Managing your retirement assets in a period of market volatility

If you follow the financial news, it comes as no surprise to you that the Dow Jones Industrial Average and the S&P 500 both have recently hit record levels.  It doesn’t seem that long ago that we were all concerned about the financial crisis, but the market has now seen gains for the last five years.   However, now is not the time to be complacent.

Coupled with market highs, we have recently witnessed increased volatility. A long list of concerns has recently increased ongoing instability in the financial markets. Concerns include a slowdown in China, weakening European economies, the strength of the dollar, border issues between Russia and Ukraine, ISIS, when and how much the Fed will raise interest rates, and Ebola. Financial markets don’t like uncertainty; but let’s face it, uncertainty is not going away. Investors should keep this volatility in perspective. Pullbacks of 5% to 10%, which we saw this past fall, are occurring more frequently. Investors have to understand market volatility is the new norm.

To illustrate, during this past fall the Dow Jones Industrial Average’s 275 point gain on Wednesday, October 8, was the biggest one-day rally in 2014; while the 335 point pullback on Thursday, October 9 was the worst one-day decline in 2014. This was the first time in 17 years that the biggest one-day gain and decline occurred in back-to-back sessions, and spoke volumes about the market’s recent volatility.

When markets become volatile, investors frequently let emotions rule their investment decisions and attempt to head for safe cover. This only increases the problem, which causes additional fear. But the impulse to let emotions rule and sell can make it difficult for investors to meet their investment goals. We believe the recent market volatility is primarily driven by fear, not fundamentals.

Despite recent hiccups, most U.S. economic indicators continue to signal that the economy is expanding. A strong labor market, coupled with a decline in gasoline prices, should provide a boost to consumer income and spending.  However, the recent and ongoing turbulence in the market has investors questioning how they should strategize for the long term.  Rather than reacting emotionally and panicking by running for the door, a better approach might be to think through what one's risk appetite might be and adjust your asset allocation gradually, probably to something more conservative but not giving up the chance for some upside potential.

Now is a great time to revisit the Rule of 100 and make sure you are not assuming too much risk with your deferred compensation and other retirement assets. We have long preached that you need to follow this rule. Take 100 and subtract your age, and the resulting number is the maximum percentage of your assets that should be at risk.  The gains in the markets over the past five years may have increased your percentage of equities in your portfolio higher than you want or need. It might be a great time to consider rebalancing your portfolio, and possibly lock-in some of the gains that until now were just paper gains.

No one knows exactly how this year will play out. But the prudent response for long-term investors is tried and tested: focus on fundamentals and hold a balanced, well-diversified portfolio.  If you haven’t looked at your deferred compensation account recently, now may be the time to ensure you are properly allocated.  If you have questions on how to do this and want to make sure you are prepared for this ongoing period of market volatility, call our office to schedule a complimentary review with one of our advisors.

Lineweaver Financial Group s 9035 Sweet Valley Drive s Valley View, OH 44125 s 216.520.1711


Securities offered through Triad Advisors, Member FINRA/SIPC. Advisory services offered through Lineweaver Wealth Advisors, LLC. Lineweaver Wealth Advisors is not affiliated with Triad Advisors.


Asset allocation does not ensure a profit or guarantee against loss; it is a method used to help manage risk.
Source: Yahoo Finance



Deadly Force

The law enforcement community has been put under the microscope recently due to the use of deadly force in several incidents across the country.  For various reasons the media has seen fit to hype these incidents, often painting law enforcement as unaccountable and out of control.

But what are the real facts?  Richard Johnson, Ph.D. with the University of Toledo’s Criminal Justice Program has sifted through the data trying to answer that question.  He looked at the 56,259 homicides in the U.S. for the period 2009 through 2012.  Homicide is defined as the intentional or negligent killing of one person by another.  This would include both justifiable killings as well as murders.  Some of his findings are striking.

Of the 56,259 homicides studied, 1,491 were due to police use of force.  In comparison, 755 homicides were accidental, such as a child playing with a gun.  Another 1,120 were justifiable self-defense homicides.

The yearly average of deaths caused by police is 372.  In contrast, nearly 36,000 persons are killed in motor vehicle accidents each year and another 38,000 plus commit suicide each year.

Johnson also looked at race as a factor in homicides.  Over the four year period, 19,000 of the homicides were of black males.  But out of the 19,000, only 481 were from police use of force.  In contrast, 648 black males were killed by private citizens acting in self-defense.  Of these justifiable killings, over 73% were committed by another black person.

The data also showed that of the 17,719 black males killed in criminal homicides, in nearly 90% of the cases the murderer was another black male.  Of the 372 police-caused deaths each year, 120 are black males.  This compares to 4,166 black males who are murdered each year.  In fact, regardless of race or gender, an American is more likely to get struck by lightning (373/year) than to be killed by police (372/year).

Johnson also estimated that each year, 14,600 police officers are injured or killed in the line-of-duty due to assaults.  Comparing that to the 372 deaths each year caused by police, he concludes:  “This would suggest significant restraint of the part of police officers nationwide… not an epidemic of police-initiated killings in the U.S.”  Amen to that.


24/7 VIDEO COVERAGE - The Use of Body Cameras –

The inexorable march toward 24/7 video coverage of the average patrol officer's work shift continues with the latest innovation --the body worn camera.

The utilization of body cameras in the police profession is certainly a prevalent topic of conversation in the industry.

While it will be some time before any conclusions can be reached as to whether these cameras result in an overall positive or negative experience for police officers and/or the public, it is important that the commencement of the utilization of the cameras is preceded by proper training and a comprehensive policy governing their use,

No one will benefit from a premature rush to employ this new technology without a carefully crafted and flexible policy which provides clear guidelines concerning many aspects of its utilization.   Also, it is important to note that utilization of cameras does not obviate the need for officers to continue to provide complete and accurate written documentation of every critical incident.

Any decent policy concerning the use of these cameras should contain, at minimum, provisions detailing:

  1. The amount, the substance and the frequency of training required prior to and during their use;
  2. The location(s) on the body that are acceptable for the camera to be worn;
  3. The types of encounters and/or contacts with citizens to be recorded;
  4. The permissible timing for the conclusion of the recording or the deactivation or non-use of the device;
  5. A prohibition against editing or altering the content of a recording without permission from a supervisor;
  6. The universe of persons permitted and, the times and locations when it is permissible to review the recorded information;
  7. The storage of the recorded information and the length of time that the recordings are required to be maintained; and,
  8. The handling of public records requests related to the recorded information and the distribution of the information subject to such request


Obviously, the foregoing list is not meant to be exhaustive. But, it does highlight broad categories of information that should be included in a policy governing the utilization of body cameras.

While there is no question that the cameras may be very useful tools for documenting evidence, corroborating the content of encounters with third parties and providing fodder for future training exercises, it is important to recognize that these devices are just another tool which, when properly employed, will, hopefully, enhance the officer's effectiveness and assist in protecting the user from false claims or improper allegations of misconduct.

However, like any new technology or tool, it will not be surprising if their utilization is accompanied by some bumps in the road before the true value of the cameras are realized and/or optimized.