Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

A "balancing test" for the exclusionary rule?

There's a time-honored rule in appellate law that a court shouldn't say anything more than necessary to address the issues at hand.  That rule takes numerous forms:  the court should avoid deciding a constitutional issue if the case can be decided on statutory issues instead; if there is a reversal on one issue, that usually moots the other issues; and so forth.  The mischief that can be created by a court not limiting itself to discussing only the issue at hand are on full display in the 6th District's decision last week in State v. Bragg.

The case presented a simple question:  when do the police have the right to search the interior of a car for weapons after a traffic stop?  The facts were simple, too:  police were told by the driver of a passing car that someone in an SUV just ahead of him had pointed a gun at him.  The police stopped the SUV and pulled the passengers out of the vehicle; a search of the car discovered a loaded handgun in the glove compartment.  It turns out that the defendant had several warrants, although it wasn't clear what the warrants were for.  The trial court had suppressed the search on the basis that the discovery of the gun preceded the discovery of the outstanding warrants, and this sequence showed that the search wasn't incident to the arrest.

The 6th District reversed, and the result is understandable; there's plenty of case law which says that if the police have a reasonable suspicion that there's a gun in a vehicle, they have a basis for searching the interior of the car.  The court goes into a lengthy discussion of how the defendant being out of the car plays into that calculus, but it's really not necessary.  Still, I'm not going to fault the court here for going beyond what was absolutely necessary to decide the case.

But then we stumble across this little tidbit from the opinion:

Further, assuming arguendo that the search was unreasonable (which it was not), suppression of the evidence should not be a foregone conclusion. The suppression rule is a judicially created measure to deter egregious police conduct; it is not "a personal constitutional right of the party aggrieved."

Huh?  Is the court seriously suggesting that in all future cases, in addition to determining whether the search is valid under the 4th Amendment, the trial court should determine whether the police conduct is sufficiently "egregious" to require exclusion of the evidence?  The court cites a number of US Supreme Court cases indicating that exclusion isn't the automatic result for a 4th Amendment violation, but those cases dealt with the issue of whether the exclusionary rule should be applied to searches with a warrant, and of course culminated in the decision in US v. Leon, where the court held that it shouldn't, so long as the police have a good-faith basis in the warrant's validity.  

To be sure, there are societal costs imposed by enforcement of the exclusionary rule, and there's been a long-running debate on whether those costs are worthwhile.  But it's one thing to mention that debate, and an entirely different thing to imply, as the 6th District does, that the debate is over, and that the determination to exclude evidence is to be made on a case-by-case basis, even for warrantless searches.

I think there's a decent chance that sometime in the next year or so, some prosecutor in the 6th District is going to seize on those words and try to convince a trial judge that even though the warrantless search violated the 4th Amendment, it wasn't sufficiently "egregious" to justify exclusion of the evidence, and that some trial judge is going to agree with that.  And then the 6th District will be put in the position of having to clean up the mess that its foray into an issue totally unnecessary to its ruling created.

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions