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

DNA Swab Normal Part of Booking

A ruling made on June 3, 2013, by the Supreme Court of the United States in MARYLAND v. KING might be of interest to some readers.  The Court determined that it is lawful to take a DNA swab as a normal part of the booking process for a serious offense.

The case started with the arrest of Alonzo King in 2009 for first and second degree assault charges.   Seems like some people didn’t like it when he showed up with a rifle and started bothering them.  When being processed into the Wicomico County jail in Maryland, the Corrections Officer obtained a DNA sample with a cheek swab. In Maryland it is perfectly legal to swab those being booked for serious crimes.  It is legal in all states to swab during a felony arrest.

When the sample was run through the Federal database, it matched a DNA sample obtained in a rape case from 2003 that was never solved.  Armed with the DNA evidence, King was brought to trial on the rape charge.

King’s lawyer objected to the admission of the DNA evidence based upon the fourth Amendment.  He claimed it was an unlawful search and challenged the legality of the search.  The Judge in the Circuit Court found the search to be legal and the trial ended with his conviction.  However, the Maryland Court of Appeals found the search violated King’s constitutional rights.

In their ruling, the majority found that the Fourth Amendment allows for reasonable searches when a suspect is detained and taken to a jail due to a serious offence, thus eliminating the need for a warrant.  The check swab is similar to taking a picture or fingerprinting a prisoner.  Much as pictures and fingerprinting have improved police work and the justice system in the past, DNA testing can and is vastly improving them now and into the future.  Unlike pictures and fingerprinting, DNA evidence seems to be almost completely reliable.

The Court did place several limitations on the retrieval and use of DNA.  For example, the retrieval of the DNA should not threaten the detainee’s safety.  The method of extraction must minimize pain and shouldn’t require surgery.  Until an individual is ar­raigned for a serious crime, their DNA can’t be added into any database.  Furthermore, if the suspect isn’t found guilty their DNA must be eliminated from the system.  The fact that a swab is so painless, quick and easy was important to their thinking these searches are reasonable.

On the topic of wage increases, there is an upward trend once again.  Of course it couldn’t have gotten much lower.  There have been way too many low and no wage increases over the last few years.  Even those municipalities that weren’t hurt by the recession could get away with small increases.  As the economy continues to slowly improve, wages should continue to increase.

Many of the Eastern Counties are seeing a lot of land being leased or sold for the right to drill wells.  Thanks to the process called “Fracking”, some people are getting quite wealthy.  Hopefully that wealth will be spread to higher wages as well!


Message from the Executive Director

The OPBA has been active in Columbus along with the recruitment of new departments. I and/or our Special Council Justice Andy Douglas have been attending Ohio Retirement Study Council, ORSC, meetings. The first meetings that were attended the legislative members of ORSC questioned the financial stability of the OP &F Fund. The new Executive Director, John Gallagher, of the OP & F fund and its actuary spoke stating the fund had the best returns, 14.9%, in 2012, of a majority of the funds. They also stated that the changes from pension reform have yet to be fully implemented so their concerns were basically premature. In the most recent meeting attended, the ORSC made proposals on the authority that had been granted by the recently enacted pension reform bills for the OP & F, SERS, STRS and HPRS funds. The OPBA will continue to monitor activity with the ORSC, pension systems and legislature.

I recently testified at a Joint Senate hearing concerning School Safety of the Public Safety and Education Committees chaired by Senator LaRose and Senator Lehner respectfully. This committee was formed prior to any legislation being proposed because the committee chairs felt it was necessary to get input from the respective stakeholders prior to any legislation being introduced.  The joint committee was going to review the 4 days worth of testimony to determine the best course of action moving forward with any possible legislation. Two issues that the committee members were to look more closely at were ratio of school psychologists to students as well as school resource officers.

The OPBA has recently been involved in elections in Garfield Hts. and Shaker Hts. Police Departments. In Garfield Hts. the OPBA filed petitions for election to have the patrol officer’s switch from the local FOP lodge to the OPBA. I would like to welcome the Garfield Hts. Patrol Officers who voted 21 to 13 in favor of the OPBA. The petitions for election at Shaker Hts. PD were for the OPBA to become the exclusive representative for the patrol unit and supervisors unit over their current representative the local FOP lodge. I would also like to welcome the Shaker Hts. patrol unit which the OPBA won 26-17 and the Shaker Hts. supervisors unit which was won by 8-5 margin. The OPBA is now in the transition phase with both departments. I realize that the OPBA must now show through action to the aforementioned departments that the choice made was the correct one taking their memberships forward. I believe that the OPBA will prove to not only our supporters but every member that the change was correct. The OPBA has recently been contacted by 2 Sheriff Departments and another police department.

When I began my first term in January of 2012, I had stated that I truly believed that the OPBA provides unparalled representation and service to its membership. I believe it is because of that representation that we won the aforementioned elections. I personally became involved in those representational services the evening of March 17, 2013 with an officer involved shooting in Solon. I made contact with a staff attorney minutes after being notified of the incident, and upon arrival at the local hospital the involved officers were put in contact with the an attorney within the hour.  It is this type of service that OPBA provides that sets us apart.

The OPBA has continued to move membership meetings around the State of Ohio. On March 7, 2013 our membership meeting was held in Columbus. John Gallagher, Executive Director, and Scott Huff of OP&F, Fund as well as Mr. Gordon Gatien, Government Relations officer from OPERS, attended our meeting. These representatives made presentations and answered questions from the members in attendance.
This is the second year that we have had a second family day in another area of the State. The OPBA wanted to provide our membership that is spread throughout the State the ability to participate in a family day without having to drive a prohibitive distance. This year our second event will be at the Dayton Dragons at Fifth Third Field, Dayton, Ohio.


An Update on GPS Tracking

By: Sherri Bevan Walsh

Law enforcement has benefited greatly from advances in technology over the last 20 years. Tracking defendants with cell phone tower triangulation, identifying organized criminals with information-sharing technology and using DNA databases are just a few examples. But these technological advances are fraught with numerous undecided legal challenges.

In 1996, the U.S. Supreme Court expanded warrantless searches to include an automobile exception. When law enforcement has probable cause to believe that a vehicle contains contraband, an officer may rely on exigent circumstances to search that vehicle.

GPS is an effective means of surveillance, but it raises issues concerning an individual’s right to privacy. In January 2012, the U.S. Supreme Court held in U.S. v. Jones that placing a GPS device on a suspect’s vehicle qualifies as a search under the Fourth Amendment. However, the Supreme Court declined to say whether that always requires a search warrant or if it could be done under the automobile exception.

Using the automobile exception is the most logical means of installing a GPS device without a warrant. However, courts are hesitant to use the automobile exception to include a warrantless GPS device because of its unlimited duration and scope.

The U.S. Eastern District of Pennsylvania addressed this issue twice last year. In both cases, it held that the rationale behind the automobile exception does not apply to a warrantless installation of a GPS tracker. Furthermore, the court ruled that probable cause that contraband was in a vehicle only gave rise to a search of that vehicle. The U.S. District Court of Delaware went so far as to rule that an individual can use another’s car with the same expectation of privacy the owner would have when it comes to a warrantless GPS device.

The fundamental theme in the courts is that a person has a constitutional right to be free from their activities being monitored unless a search warrant has been sufficiently executed. A person’s right to freedom of movement and rights under the Fourth Amendment to be free of unreasonable search and seizures has been determined to significantly outweigh the government’s interest as it relates to the use of a GPS tracking device.

Before an officer installs a GPS device on a vehicle, he or she should undoubtedly try to get a search warrant. Some defendants have attacked the probable cause contained in the search warrant, but courts are much more likely to deny challenges to the use of the GPS device when a search warrant has been granted.

Jones has changed the landscape for law enforcement and GPS tracking. While the Supreme Court has not detailed exactly what those changes are yet, the lower courts have given a clear indication that warrantless GPS tracking will be suppressed.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.


The Doctrine of Double Jeopordy in Emloyee Discipline Situations

One of the primary functions of the OPBA is to provide representation to members who are facing possible or actual disciplinary action.  Navigating the tangled web of employee discipline can be quite a difficult task.  This is particularly true if the employer either ignores, or as is often the case, does not understand, some of the major legal principles involved in employee discipline.  One of these concepts is the right to not be twice placed in jeopardy for the same employment offense.  Members often feel that they are being penalized more than once for the same set of facts.  Within the confines of labor law, sometimes they are being unjustly penalized more than once and sometimes they are not.


Before analyzing just what this “double jeopardy” idea means, it is important to review some basics of employee discipline.  All, or nearly all, collective bargaining agreements which cover OPBA members contain some sort of language which prohibits disciplinary action without “just cause.”  Just cause is a legal term of art.  One arbitrator explains the term as follows:

It is common to include the right to suspend and discharge for ‘just cause,’ ‘justifiable cause,’ ‘proper cause,’ ‘obvious cause,’ or quite commonly simply for ‘cause.’  There is no significant difference between these various phrases.  These exclude discharge for mere whim or caprice.  They are obviously, intended to include those things for which employees have traditionally been fired.  They include the traditional causes of discharge in the particular trade or industry, the practices which develop in the day-to-day relations of management and labor and most recently they include the decisions of courts and arbitrators.  They represent a growing body of ‘common law’ that may be regarded either as the latest development of the law of ‘master and servant’ or, perhaps, more properly as part of a new body of common law of ‘Management and labor under collective bargaining agreements.’  They constitute the duties owed by employees to management and, in their correlative aspect, are part of the rights of management.  They include such duties as honesty, punctuality, sobriety, or, conversely, the right to discharge for theft, repeated absence or lateness, destruction of company property, brawling and the like.  Where they are not expressed in posted rules, they may very well be implied, provided they are applied in a uniform, non-discriminatory manner.[1]

This arbitrator’s last sentence, translated into modern terms, means that the ideas of progressive discipline and the prohibition against disparate treatment in meting out disciplinary actions are actually included into the arbitral theory of “just cause.”  While the words “progressive discipline” and “disparate treatment” may never appear in the four corners of a collective bargaining agreement, those requirements are implicit in the contractual requirement of just cause.  These are concepts of fairness and reasonableness under a particular set of circumstances.


As law enforcement personnel, the OPBA’s membership is familiar with the criminal law prohibition against “double jeopardy.”  The United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”[2] Likewise, there is a longstanding labor law prohibition against placing an employee twice in jeopardy for the same employment offense.

Jeopardy attaches in a disciplinary setting when:

(1)   The employer imposes discipline for a given offense;

(2)   that discipline is either accepted by the employee or the original penalty is not accepted by the employee; AND

(3)   the discipline is imposed with the understanding by the parties that it is a final disciplinary sanction.

Once these elements are met, the employer is prohibited from thereafter imposing an increased or additional punishment for the subject offense.  The double jeopardy doctrine prohibits employers from attempting to impose multiple punishments for what is essentially a single act or set of acts.  For example, one arbitrator held that the double jeopardy doctrine applied where the employer suspended an employee for 10 days while criminal charges were pending against him and then, when he was convicted, sought to discharge him.[3]

The arbitral concept of “double jeopardy” has been explained by one arbitrator thusly:

The key to this arbitral [double jeopardy] doctrine is not the Constitution but rather fundamental fairness, as guaranteed by the contractual requirement of ‘just cause’ for discipline.  Thus, when an employee has suffered a suspension for an offense it would be unfair…to fire him before he has committed a second offense.[4]

Just as the requirements of progressive discipline and lack of disparate treatment are read into the just cause contractual requirement, so is the prohibition against double jeopardy.  Once an employee has been disciplined and the parties understand that the employer’s action is the final disciplinary sanction, then the employee must be thereafter insulated from disciplinary action solely related to the offending act or acts.

Importantly, double jeopardy does not occur when an employer suspends an employee while conducting an investigation that ultimately leads to the employee’s discharge.[5] Where an employer “suspends the employee, conducts its investigation, imposes what appears to be a ‘final’ punishment, and then imposes additional punishment, double jeopardy exists.  Likewise, an employer cannot issue a disciplinary ‘warning’ and later, after deciding more serious punishment would have been preferable (because, for example, the employer fears a third party’s lawsuit related to the employee’s misconduct), impose a harsher punishment.”[6]

Double jeopardy does not trigger when the discipline is imposed with the understanding that it may not be final.  For example, an employee is not being subjected to jeopardy twice when he is notified via memorandum that further punishment may be meted out for the subject offense.  Additionally, “an employee who was terminated for failing to pass a drug screen and then, after being reinstated under a settlement agreement, was bypassed for promotion for the same reason was not subjected to double jeopardy.”[7]


One may ask, is it not double jeopardy where an employee suffers an enhanced penalty for Offense 2 because of prior disciplinary action taken as a result of Offense 1?  The answer is no.  Just as it is entirely proper for a court to take a criminal defendant’s prior criminal record into consideration for purposes of sentencing, it is permissible for an employer or an arbitrator to take an employee’s prior disciplinary record into consideration with respect to the severity of a penalty.

An employer has a legitimate and legal right to consider an employee’s record of performance and any prior rule infractions when it is considering how to handle a pending performance issue or rule infraction.  Prior discipline may certainly be considered in determining pending discipline, but the sanction related to the pending discipline may not be based solely on past violations for which discipline has already been imposed.

Just as an employee who has a long and good record with an employer would insist on raising his or her positive performance and lack of discipline as a mitigating factor, an employer can raise the opposite as an aggravating factor.

If you or another OPBA member ever feels that he or she is being subjected to multiple penalties for the same set of facts or circumstances, please contact your OPBA representative immediately in order to assess whether the employer is or is not complying with its requirements under the law.

[1] Elkouri & Elkouri, How Arbitration Works, 6th Ed., Alan Miles Ruben, Editor-In-Chief, American Bar Association Committee on ADR in Labor & Employment Law (2003), citing Worthington Corp., 24 LA 1, 6-7 (McGoldrick, Sutton & Tribble, 1955).

[2] U.S. Const., Am. V.

[3] Elkouri supra, at 982, citing Transit Mgmt. of Southeast La., 95 LA 74, 80-81 (Allen, Jr., 1990).

[4] Elkouri supra, at 981, citing United Int’l Investigative Serv., 114 LA 620, 626 (Maxwell, 2000), quoting U.S. Postal Serv., 87-2 ARB ¶18490, at 5952 (Nolan, 1987).

[5] Id at 981.

[6] Id.

[7] Id. at 982.