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The better part of discretion

No Courts Update this week, because I was on the road and didn't have time to do it.  Instead, we'll talk about a 4th Amendment decision last Wednesday out of the Ohio Supreme Court.

The facts in Blue Ash v. Kavanagh are fairly straightforward:  the defendant was stopped for driving with expired plates on I-71 near Cincinnati, and when the officer discovered that the defendant's license had also expired three months earlier, he decided to impound the car.  Because the defedant appeared "nervous," he also called for a drug-sniffing dog.  When the dog was brought to the scene a short while later, it alerted to the driver's door.  The defendant at that point confessed that there was a gun in the car, and the police retrieved an unloaded pistol from the console.

The trial court had denied a motion to suppress, but the 1st District had reversed.  The Supreme Court in turn reversed that, and upheld the defendant's misdemeanor conviction.  Three judges dissented, mainly because they didn't think the case should have been accepted for review in the first place, Justice Pfeiffer commenting that "because of its fact-specific nature, the majority opinion is unlikely to provide meaningful guidance to the bench and bar."

If only.

At first glance, the impact of Kavanagh does appear muted.  The decision turns on whether the police officer had the right to impound the vehicle because of the expired plates and license.  Under state and local law, the officer had the discretion to do so:  the vehicle couldn't be legally driven, and the defendant couldn't legally drive it anyway.  The court concluded that the officer exercised his discretion, which allowed the traffic stop to continue until the dog arrived, and the dog's alerting to the scent of drugs gave the officer probable cause to search the car.  (Oddly, no drugs were found.  The defendant told the officer that his friends often smoked dope in the car, and that's probably what the dog alerted to.  There's a moral there, boys and girls:  don't let your pals toke up in your ride.)

But let's get back to that issue of discretion.  One of the reasons that search and seizure law is "something other than a seamless web" is because of the virtually infinite variety of factual situations which can present 4th Amendment questions.  Those who argue for greater deference to police decisions have a point:  it's a little ridiculous to have a someone in a black robe (or three or seven or nine someones in black robes) spending hours or even months picking apart the decision a police officer had a split-second to make.

On the other hand, Kavanagh presents the other side of that coin:  giving too much discretion essentially allows the officer to determine the extent of a person's Fourth Amendment rights.  Justice Pfeiffer points out that the offenses were minor misdemeanors, and argues 

Instead of citing people who forget to renew licenses and registrations and having them pay a fine as a consequence of their forgetfulness, today this court sanctions the impoundment of every car whose registration is out of date and sanctions forcing every person -- the elderly, mothers with young children, etc. -- to find alternative means to his or her destination, if his or her license has not been timely renewed.

He's wrong about that.  Police aren't going to use their discretion to impound the cars of the elderly or mothers with young children.  They're going to use it to impound the cars of young people, black people, people that are different from them, people who give them a hard time, or just people about whom they form some kind of "inchoate hunch" -- leagues removed from "reasonable suspicion," let alone probable cause.

That that might be exactly what happened here is revealed by a footnote in the Court's opinion:

It is unclear from the record whether defendant was cited for driving with expired tags in violation of R.C. 4503.21 or operating without a valid license in violation of R.C. 4510.12, or both.

In short, there's nothing to indicate that Kavanagh was ever charged with the offenses that got the car impounded in the first place.

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