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The fallout from Moore

Back in February, I blogged about the US Supreme Court's decision in Virginia v. Moore.  (Here's the post.)  Moore had been arrested for driving under suspension, and a search of the car turned up drugs.  One problem:  driving under suspension wasn't an arrestable offense under Virginia law, so the court tossed the evidence.  The Supreme Court reversed, though, saying that how Virginia classified the offense was immaterial; under the 4th Amendment, a person could be arrested for any offense so long as there was probable cause to believe he'd committed it.

I'd said at the time that the impact of Moore on Ohio was somewhat muddled, because our Supreme Court has held that in some cases that Ohio's constitution gives added protection over and above what the 4th Amendment grants.  There's a case, for example, which holds that arresting someone for a minor misdemeanor isn't simply prohibited by state law, it's a violation of Ohio's constitution, and triggers the application of the exclusionary rule.  Subsequent decisions have created some doubt as to whether the court would still follow that rule today.

Well, we have our first decision on Moore's impact on Ohio, and the results aren't pretty.

The case is State v. Logan, out of the 5th District.  The facts are simple:  an informant told the police that he'd purchased drugs from the defendant and his friend, and that the two would be returning to the area.  An officer was instructed to stop the vehicle, and when he observed it, he turned on his radar and clocked the defendant going 36 in a 25 zone.  The officer stopped the car, two detectives pulled up behind it, and they handcuffed the defendant and patted him down, finding drugs in an eyeglass case.  The trial court denied the motion to suppress, the defendant appealed, and the appellate panel, after a lengthy discussion of Moore, concluded

We find Moore to be controlling, and find once Sgt. Zehner observed Appellant commit the offense of speeding, the officer was permitted to arrest Appellant and conduct a search thereafter. Accordingly, we find the trial court did not err in overruling Appellant's motion to suppress.

Surprisingly, there's a decent chance that the court got it right, despite completely ignoring the Ohio Supreme Court's decision in Brown that an arrest for a minor misdemeanor is not permissible under Ohio's constitution.  While state law makes speeding a minor misdemeanor, many municipalities classify it as a first degree misdemeanor, to avoid the impact of the speedy trial statutes.  (Speedy trial time for a minor misdemeanor is only thirty days, compared to ninety for a first-degree misdemeanor.)  The opinion never indicates whether the defendant was arrested for speeding under the state law or local law.

For good reason:  Logan wasn't arrested for speeding, unless you believe it's the typical practice of the Richland County Sheriff's office to use two officers and two detectives to make a stop if a guy's going 11 miles over the limit, and then drag him out of the car, handcuff him, pin him to the pavement, and frisk him.  Obviously, Logan was arrested because the police thought he had drugs.

An arrest on that basis would have been a tough sell, even to this court.  (It's predisposition to uphold the search is perhaps best indicated by its offhand reference to the legitimacy of the search of the eyeglass case found during the frisk:  the case "was large enough to hold a knife, a wire with which to strangle someone, or a small gun."  Yeah, there's a lot of drug dealers out there strangling people with wires.)  There's nothing in the opinion which indicates that the police had any information other than the informant's uncorroborated statements, several of which proved to be wrong:  the informant said the defendant would be with another person, and that he might have a gun; the defendant was alone and unarmed.  The informant hadn't worked for the police before, so there was no basis for believing he was providing reliable information.  Absent the "arrest" for speeding, it's hard to see how the result in this case could be justified.

So what to make of Logan?  Not much, probably.  It's failure to even discuss Brown makes it largely irrelevant on the question of arrests for a minor misdemeanor.  Some will seize on it for support of the view that police can arrest for a speeding violation, but, depending on the municipality, they could do that before.

Whether they should be able to do it at all is another question.  Obviously, that places an immense degree of discretion in the individual officer.  One can easily imagine police conducting frisks and car searches after a speeding stop, deciding to issue a ticket if nothing is found, but deciding that the driver had been "arrested" if something is.  One can also easily imagine the societal groups which are more likely to be subject to those frisks and car searches.

That's one of the problems with search and seizure law.  There are two basic views of the 4th Amendment.  One is that it is merely a prescription of police procedure; the other is that, like the other provisions of the Bill of Rights, it protects a core liberty interest, in this case the right of privacy from government intrusion.  Courts almost invariably take the first view, and ignore the second. 

And that's how you wind up with decisions like Logan.

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