A couple months back, I had a case where the police got a call from a gas station saying that my client was annoying customers.  The police responded, and saw my client standing by a building across the street.  They searched him and found some crack.  The basis of the search?  It was incident to his arrest for disorderly conduct.

Now, I could have argued that there was no probable cause to arrest for disorderly conduct.  Let’s face it, if “annoying” people was a crime, half the people you know would be in prison.  I took the easier tack: I pointed out to the judge that disorderly conduct was a minor misdemeanor, and under Ohio law, you can’t arrest someone for a minor misdemeanor.  She agreed, and tossed the case.

After last week’s decision in Virginia v. Gray, the validity of that argument’s a little more open to question.

Gray was stopped by the police for driving on a suspended license; a subsequent search led to the discovery of 16 grams of cocaine, and earned Gray a stretch in one of Virginia’s finest correctional institutions.  It turns out, though, that driving with a suspended license is not an arrestable offense in Virginia — go figure — so the state supreme court held that the evidence should have been suppressed:  no valid arrest, no valid search incident to that arrest.

A reversal by the US Supreme Court was widely anticipated, and the Court didn’t disappoint, reversing by a 9-0 vote.  That result was more or less pre-ordained, given the Court’s decision seven years earlier in Atwater v. Lago Vista.  In that case, Gail Atwater was driving her truck with her two kids in the front seat, neither of them wearing seatbelts.  She got stopped by a cop, got lippy with him, and wound up being arrested, despite the fact that the offense was punishable only by a fine.  The case went up to the Supreme Court on the issue of whether the Fourth Amendment prohibits an arrest for a minor criminal offense, and the Court, in what was probably Justice Souter’s worst opinion, held 5-4 that it didn’t.

The result in Gray followed ineluctably from the holding in Atwater:  the power to arrest is determined by Federal constitutional law, not state law.  Under the 4th Amendment, the police have the power to arrest a person if they have probable cause to believe that person has committed a crime.  The states can’t use their laws to affect a determination under Federal constitutional law.

Interestingly, the impact of Gray might be muted in Ohio, because of the Ohio Supreme Court’s decision in State v. Brown.  Brown presented a roughly similar situation to Atwater:  the defendant had been arrested for jaywalking.  Instead of following Atwater’s lead, the court decided that the Ohio constitution provided greater protection for defendants than did the 4th Amendment.

So does that mean Gray has no effect on Ohio?  Maybe.  There have been some 4th-Amendment-unfriendly decisions in recent years from the Ohio Supreme Court, such as last year in State v. Oliver, in which the court instructed that “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” because of the “costly toll” that the exclusionary rule imposes.  If the court were writing on a blank slate — if Brown were up for a revote — I’m not sure that it would stand; it was a 4-3 decision, and two of the members of the majority in the case have since been replaced by more conservative justices.

The court’s not writing on a blank slate, though.  Brown is still the law, and given the hurdles the Ohio Supreme Court constructed for overruling decisions in its opinion in Galatis (discussed here), that’s going to be very difficult to change.  Virginia v. Gray should have relatively little impact in Ohio.