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Oliver: a new look at the exclusionary rule?

Back in November, I mentioned that the Ohio Supreme Court had just heard oral argument in a case out of Cuyahoga County affirming suppression of evidence based on police violation of the "knock and announce" rule.  Since the US Supreme Court had ruled this past summer in Hudson v. Michigan that it would no longer apply the exclusionary rule to violations of that rule, I wasn't too sanguine about the prospects for the Cuyahoga County case.

On Wednesday, in State v. Oliver, the Ohio Supreme Court reversed as expected, but its opinion is somewhat troubling.  Rather than simply addressing Hudson in its specific context as a decision on the knock and announce rule, the court took note of some of Justice Scalia's rather sweeping arguments about the "societal cost" of the exclusionary rule in general:

As the court noted in Hudson, the exclusionary rule and the concomitant suppression of evidence generate "'substantial social costs'" in permitting the guilty to go free and the dangerous to remain at large.  Because of that "'costly toll,'" the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public.

It's not difficult to read this as calling for either a substantial limitation on the exclusionary rule, or an ad hoc determination in each case as to whether the "substantial societal costs" outweigh "the power to deter police misconduct.

But the court's claim that "Hudson presents a significant and arguably new interpretation of the exclusionary rule"  is a dubious proposition.  Hudson was a 5-4 decision, and Kennedy wrote a concurrence specifically stating that the decision to eliminate the exclusionary rule applied only to knock and announce cases, so it's not at all clear why the court gives Hudson such an expansive reading.  It could have simply held that, in light of Hudson, the evidence seized in this search didn't have to be suppressed, either, or it could have followed Justice Pfeiffer's suggestion and determined whether the Ohio constitution provided more protection on that point than the US constitution, which the Court did on a 5th Amendment issue last summer in State v. Farris, as I discussed here.

What's equally puzzling is what the court did with Oliver.  The court rightly concludes that "the people of Ohio have a paramount interest in knowing how their courts will interpret and apply Hudson, we have a duty to see that Hudson is addressed as expeditiously as possible," but then remands the case all the way back to the trial court to "reconsider its ruling in light of Hudson."  And that was "without opining on the propriety of the courts' rulings on the validity of the search at issue here," which raises the distinct possibility that after going through the courts for another two or three years, the Supreme Court could eventually decide that the trial court was wrong in holding that the police even violated the knock and announce rule in the first place, thus mooting the entire question of Hudson's application.

I've criticized courts before for saying things and deciding issues that weren't really necessary for its decision.  (As the 8th District did last fall in a case involving expert testimony in child abuse cases, which I discussed here.)  If indeed there is a "significant and arguably new interpretation of the exclusionary rule," it would seem that the Supreme Court of the state would be the one to consider that and decide its ramifications. 

The final criminal Supreme Court decision handed down on Wednesday, State v. Buzzardalso involved search and seizure law, and I discussed it back in October.  The very short version is that the police followed tracks in the snow to defendant's garage, then peered through a one-quarter-inch crack in the door and spotted the stolen items they were searching for.  They got a warrant, but the 3rd District tossed the search, holding that the defendant had a reasonable expectation of privacy in his garage.  Although the defendant had claimed that the police manipulated the door to see inside, the trial court found that they didn't, and that was enough for the Supreme Court.  Their decision was amply supported by other precedent concerning similar type of searches -- the police shining flashlights through windows, or peering through cracks -- so the result, while unfortunate, is hardly surprising.

One interesting note, though, relevant to the issue of whether the Ohio constitution might afford more protection than the US constitution, as suggested by Pfeiffer in his dissent in Oliver.  In a footnote, the court states

The parties and courts have analyzed this case under the express rubric of Fourth Amendment jurisprudence. Because the texts of Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution are virtually identical, we interpret the two provisions as affording the same protection.

Does that mean the protections are the same for all cases, or only this one?  Arguably only the latter; the court ruled back in 2003 in State v. Brown that "Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors."


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