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We have a winner...

A mere two days after the Oscars, we can safely hand out the Award for the Worst Fourth Amendment Decision of the Year.  The envelope, please... Ladies and gentlemen, let's give it up for the 9th District's decision in State v. White

The protagonists of our story are Steven Barrett and Cynthia White, whom the police have suspected for some time of running a meth lab out of their house.  Through various plot devices, mainly a snitch, our story is advanced to the point where Barrett is stopped for speeding, and with the aid of a drug-sniffing dog -- definitely not man's best friend -- several items are discovered which are ordinarily used in making methamphetamine.  As Barrett was being led to the cruiser in handcuffs, he volunteered without any prompting that he thought there might be a meth lab at White's house.

The police scurried over there to, as they put it, "do a 'knock and talk' in order to 'further probable cause' for a search warrant."  This tactic is coming into vogue:  essentially, the police knock on the door, hoping that the owner will do something stupid, like consent to a search or engage in an act which might give the police probable cause to search the premises.  White didn't respond to the officers' knock, but they saw her go into the basement, then run back upstairs, at which point they heard glass breaking.  They stormed the house, arrested White upstairs, and then went into the basement to check for people "who may have been hiding."  They finally got a warrant at this point, and conducted a full search of the house, which produced no drugs, but sufficient other items to charge White and Barrett with illegal manufacture of drugs.

The trial judge tossed it all out, finding that Barrett's un-Mirandized statement wasn't admissible, and that in any event the police should have gotten a warrant.  The 9th District reversed.

Now, understand, I'm not that upset with the result.  I think it's wrong, but far more troubling than the destination is the journey.

In fact, I can pretty much agree that the court got it right on Barrett's statement.  The police officers were the only ones who testified at the suppression hearing, and the trial court didn't find the officers were being untruthful when they testified that the statement was volunteered.  Kinda funky that somebody's just going to blurt out, "Hey, we're running a meth lab out of the house I'm living at," but stranger things have happened.  And I can even see how a court might uphold the search of the house.  I tend to agree with the trial court, that the police can't claim an "emergency" of their own making, and that the appropriate course would have been to get a warrant.  But it's not the most ridiculous thing in the world for the appellate court to have found that White's actions created an emergency situation which justified entry into the premises.  I've seen worse.

But that's not how the court handled it.  First, the court seized on RC 2933.33, a statute passed in 2006 which provides that, because meth labs pose a danger of blowing up, if police have probable cause to believe there's one in a house, those dangers constitute sufficient "exigent circumstances" to justify a warrantless search. 

Now, this is not a well-known provision of the law.  According to my BFF Lexis, it's been cited exactly twice by any Ohio court.  Both were by the 9th District.  One was White.  What really will have anyone's head spinning on its axis is how the court handles the statute, and comes to the conclusion that a warrantless search doesn't even require probable cause to believe there's a meth lab, just something "approaching" that.  The court begins by saying that the dangers are so great that this really doesn't fall within the "exigent circumstances" exception to the warrant requirement, but within the "emergency aid" exception.  The latter, at least according to cases in the 9th District, demands only "some reasonable basis, approaching probable cause." 

But what about the statute, which does specify probable cause?  The court dispenses with that in language that looks like something the Red Queen might have said in Through the Looking Glass:

While [the statute provides] that "probable cause to believe" that a methamphetamine laboratory exists on premises constitutes "exigent circumstances," it does not provide that "reasonable grounds to believe" that a methamphetamine laboratory exists does not constitute "exigent circumstances."

I was temporarily heartened by the fact that two judges merely concurred in the judgment, apparently unwilling to follow the opinion's author down this particular rabbit hole.  But the concurrences make no sense, either.  The first says the police could have obtained a warrant, then drops that issue without further ado.  It then looks at exigent circumstances (not "emergency aid"), and uses the wrong standard in determining they exist ("reasonable suspicion" instead of "probable cause").  The second concurrence says that it doesn't matter whether it's exigent circumstances or emergency aid, because probable cause is all that's required, and the parties concede that existed.  Which, of course, the parties didn't...

I'm sorry, but this is just a flat-out dreadful decision.

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