The Whimsy of Search & Seizure Law
Yesterday I promised to take a look at four cases from the 8th dealing with search issues. If I were writing children's books instead of a legal blog, I'd probably entitle this post The State's Terrible, Horrible, No Good, Very Bad Week in 4th Amendment Cases. The State's already sporting a losing record on that issue this year, and last week went to bat in four cases, and came up empty in three. They can draw some solace from the fact that it could've been an o-fer. Perhaps best demonstrating the vagaries of this area of jurisprudence is that they could have just as easily won all four.
The lone victory came in State v. Newsome, where Newsome's vehicle was pulled over because of several turn violations. The validity of the stop wasn't in dispute; what happened immediately after that, though, is that another man named Beard came up to the car and claimed that he'd been robbed. Just moments before, the police had seen him attempt to flag down the car, so they didn't buy the robbery story. They put him in the police cruiser, then had the Newsome and his passenger get out of the car and did a "safety sweep" of the interior, finding a bag of drugs.
The lead opinion spends time talking about Arizona v. Gant, for no discernible reason; that applies to search of a car incident to an arrest, and here neither Newsome or his passenger had been arrested. The opinion then concludes that (1) the police could reasonably conclude that Beard was trying to divert their attention, and that the individuals in the car were engaged in criminal activity, (2) the police thus had probable cause to believe that the car contained contraband, (3) the officers could reasonably believe that the vehicle "contained evidence of the offense of arrest."
I'm not sure where to begin. Even ignoring that there wasn't an arrest to begin with, as the dissent points out there's an Olympian-sized leap from deciding that Beard was trying to divert the officers' attention to concluding that there was contraband in the car. The concurring opinion, which rejects the lead analysis, is on safer ground by arguing that Newsome's furtive movements when pulled over gave a basis for searching the car, but even that's a stretch.
After that, it's all downhill for the State, although it's not entirely clear it should have been. Take State v. Grigoryan, where an officer got a call from an off-duty patrolman saying he'd just seen a suspected impaired driver leaving the parking lot of a restaurant. The officer followed him for a mile, during which time the car drifted to the left, then the right, then back to the left again, touching the yellow line, but all within a single lane. The trial judge found this wasn't a sufficient basis for a stop, and the court agrees, finding "drifting noted herein, followed by brief driving on the left yellow edge line" to be "inconsequential movement within a lane that does not give rise to articulable suspicion to make an investigatory stop." As the dissent notes, many courts have upheld stops based on violations of local ordinances prohibiting weaving within a lane, which was the type of ordinance relied upon here. What's interesting about the decision is that all three members of the panel treat the report from the patrolman as an anonymous tip. There aren't quite enough facts in the opinion to decide for sure, but it probably wasn't. An anonymous tip requires corroboration, a tip from another police officer doesn't; that could easily have decided the case right there.
State v. Howze is another close call. Police send a woman informant over to buy drugs from two men on a corner, at which point Howze pulls up in his car and asks the two men, "What's she need?" The informant proceeds to buy crack from one of the men, and the observing officer tells another patrol car to stop Howze's vehicle. They do, and ultimately find a crack pipe on him. This all happens at 2:00 in the morning, and the officers' extensive experience leads them to believe that Howze was "was expressing an interest in helping with a drug transaction." The court finds this belief reasonable, but "the difficulty here is that the appellant did not actually consummate or attempt to consummate a drug transaction," so it reverses the denial of the motion to suppress, finding no reasonable suspicion for the stop.
Drawing fine lines is also at the heart of State v. Knox, where the police got a call of a possible theft at a store, and that the suspects were three black males who left in black Chevy sedan. Lo and behold, the officer sees three black males in black Chevy sedan driving by and stops them. The driver doesn't have ID, so the officer questions Knox, a passenger. Knox gives him false information, so he's arrested and charged with obstruction. But the trial judge grants a motion to suppress, and court affirms. Why? Because just before the police officer approached Knox, he was informed that there had in fact been no theft offense at the store. The majority holds that at that precise moment, whatever justification the officer had for interrogating Knox evaporated, and his answer was then the product of an illegal stop.
The dissent argues that the situation should be viewed more fluidly, and there's some justification for that view. From the perspective of the police officer, the inquiry began as one regarding a theft, and had morphed into one involving the identity of the driver, who'd also given false information.
So what to make of all this? Note that while dissents are rare in Ohio appellate decisions -- I'd make an educated guess that they occur less than 10% of the time -- here there were three in the four cases. I've often commented that police officers here -- and prosecutors, for that matter -- get lousy training on 4th Amendment issues, but it's hard to figure out what lessons should be taught when even the judges disagree on that.