The cops see your client standing on a street corner drinking a bottle of beer.   They arrest him for having an open container, and a search reveals several rocks of crack in his pocket.  You file a motion to suppress, pointing out at the hearing that open container is a minor misdemeanor, which, except in rare circumstances which aren’t present here, isn’t an arrestable offense under Ohio law.  Since the arrest is no good, the search isn’t either.  The judge agrees, bangs her gavel, tosses the evidence, and that’s the end of that case.

That might change, depending on the outcome of a case argued in the Supreme Court a few weeks back, Virginia v. Moore.  Back in 2003, Virginia police arrested David Lee Moore for driving with a suspended license, and in the search incident to that arrest found a not inconsiderable quantity of cocaine on him.  He was convicted, but on appeal the Virginia Supreme Court noted that Virginia law makes driving with a suspended license a misdemeanor for which an officer can only issue a citation.   It held that since his arrest was illegal, the evidence turned up as a result of the search incident to that arrest was illegal, too.  “Fluit of the poisonous tlee,” as the Court said back in Wong Sun. 

Seems like a no-brainer to me, but here’s where it takes an interesting turn:  the State of Virginia (and 18 other states) have argued to the Supreme Court that the exclusionary rule only bars the use of evidence seized where the arrest is in violation of Federal constitutional law.  In other words, if the police have probable cause to make an arrest — that is, probable cause to believe that a crime has been committed — the ensuing search is permissible even if the arrest itself was illegal under state law.

This is setting the bar pretty low, because in prior decisions, specifically Atwater v. Lago Vista, the Court has held that any crime, no matter how trivial, is sufficient for an arrest.  (In Atwater, it was the defendant’s failure to have her children in seatbelts.)  The state’s argument is that a contrary rule allows a state to define the limits of Federal constitutional law:  a search conducted in one state might violate the Fourth Amendment, and the same search in another not, simply because of the differences in the state laws on what constitutes a legal arrest.

Also, keep in mind that the exclusionary rule is not part of the Fourth Amendment; it’s simply a ”prophylactic rule,” like Miranda, that the Court has devised to effectuate the protections of the Fourth.  Given that the Court’s exhibited a quarter-century trend of restricting the use or effect of the rule, it’s not inconceivable that it might decide that the rule’s purposes aren’t served by excluding evidence where there was probable cause to arrest, but a state law technicality rendered that arrest illegal.

The effect that this might have on Ohio criminal cases is further muddied by a couple of Ohio Supreme Court decisions.  Back in 2000, the court was confronted with a case in which the defendant had been arrested for jaywalking, the ensuing search resulting in the discovery of cocaine.  The state argued that although the arrest was illegal because the statute (RC 2935.26) prohibited it, the statutory illegality wasn’t a constitutional violation, and didn’t justify suppression of the evidence.  In State v. Jones, the court rejected that argument, holding that a minor misdemeanor arrest was a violation of the Fourth Amendment and of the Ohio Constitution.   

Fast forward to 2003, and the case of State v. Brown:  another jaywalking arrest which produced a drug possession charge, but in the interim Atwater has come down, and so the state argues that Atwater overrules Jones.  The court rejects that argument, too, holding that “the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.”  In short, even if the arrest would be permissible under the Federal constitution, it’s impermissible under the state constitution, and the court will apply the exclusionary rule to anything seized pursuant to such an arrest.

So Ohio law won’t be impacted by the upcoming decision in Virginia v. Moore, right?  Maybe and maybe not.  The problem is that Ohio’s trend toward giving greater protection under the state constitution than required under the Federal constitution — a trend which included the ruling in State v. Farris a few years back that Ohio’s self-incrimination clause provided greater protection than the Fifth Amendment — took a bit of a detour last year in State v. Buzzard; while the case didn’t involve the precise question of what protections were afforded by the state and Federal constitutions, a footnote in the decision carries some ominous portents:

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.

Was that limited only to the facts in Buzzard?  Does that negate Brown?  How will that impact Ohio’s handling of Virginia v. Moore?  Stay tuned.

Meanwhile, speaking of prophylactics, my all-time favorite sports line was uttered by CBS broadcaster Brent Musberger in a late-season USC football game a few years ago:  “And the road to the Rose Bowl is paved with Trojans!”

Musta been some game.

Have a good weekend, and see you on Monday.