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Swinging for the fences

You've got to give the Franklin County Prosecutor's Office credit for thinking big.  Faced with an adverse appellate decision on a search issue, they decided to go for the home run.  After the oral argument in the Supreme Court last week, it looks like they dribbled a grounder to second.

The facts in State v. Johson were typical:  officers patrolling a Dairy Mart in a "high drug activity area" smelled marijuana coming from an unoccupied vehicle.  They shined a light on the console, saw a marijuana "blunt,"  and waited for the occupants to return.  Moments later, three men emerged from the Dairy Mart and walked toward the car.  As the first two were getting into the front seat, the police approached the driver.  He admitted the car was his, apologized for the marijuana, and said he'd "get rid of it."  Johnson, the rear seat passenger, took that as his cue to "slowly kind of walk away from the area."  One of the officers stopped him, patted him down, and found nothing.  A more thorough search of his pockets revealed crack cocaine, and marijuana.

The trial court denied the motion to suppress, but the 10th District reversed.  The state could have let it rest there; the amount involved was less than 2 grams of crack, which resulted in Johnson getting community control sanctions.  Besides, search cases are usually very fact-intensive; what propositions of law might entice the Supreme Court to accept review in this one?

The state could have made the narrow argument that the smell of burnt marijuana in a car justifies a search of all the occupants of the car.  Ten years ago, in State v. Moore, the court had held that this was enough to justify the search of the car itself, and that case also involved a search of the driver.  This wasn't the best factual scenario for extending Moore -- the blunt was found in the front console, Johnson was apparently attempting to get into the back seat, he was away from the car when he was searched, the driver had already admitted the blunt was his, and, unlike Moore, the officers did not detect an odor of marijuana from Johnson's person -- but it was a tenable argument. 

 Instead, the state swung for the fences, arguing that even if the search was bad, the evidence shouldn't be thrown out:  the exclusionary rule should be invoked only where the police officer's conduct has been "deliberate, reckless, or grossly negligent."  This was based on language from last year's US Supreme Court decision in Herring v. US (discussed here).

Thankfully, that contention went nowhere in the oral argument on Johnson before the Supreme Court last week.  In fact, the prosecutor didn't even get around to mentioning it until Justice O'Donnell reminded him that he'd only discussed two of his four propositions of law, and invited him to list the others.  Justice O'Connor asked the defense attorney about it, but nobody seemed interested in pursuing it.

The major discussion centered on the state's argument that this was a valid search incident to arrest.  This contention entails a number of difficulties, among them the question of whether, given the location of the blunt and the driver's admission it was his, the police had probable cause to arrest Johnson for it. 

But even if you get past that, there are some seemingly insurmountable hurdles.  First is the fact that Ohio law prohibits arresting someone for minor misdemeanor.  The state had an answer to that:  two years ago in Virginia v. Moore (discussed here), the US Supreme Court had held that an arrest is valid under the 4th Amendment if the officer has probable cause to believe that an offense has occurred, even if that offense is not an arrestable one under state law. 

But there's a problem with that argument, too:   the Ohio Supreme Court, in State v. Jones and State v. Brown, had held that an arrest for a minor misdemeanor was a violation of the Ohio constitution.  And that's where the state went for the Hail Mary, to mix sports metaphors:  way back in 1936 in State v. Lindway, the Ohio Supreme Court held that there was no exclusionary rule for violations of the Ohio Constitution, and Lindway has never been overruled.

Novel arguments, certainly, but novelty appeared to be their sole redeeming feature.  Justice O'Connor pointedly noted that the initial frisk hadn't discovered anything, not even something that would trigger the "plain feel" doctrine.  The prosecutor acknowledged that he wasn't claiming a Terry stop and frisk, but a search incident to an arrest.  But Johnson wasn't arrested until after the search of his pockets revealed additional drugs, O'Connor queried, to which the prosecutor insisted that the officers' subjective intent to arrest was immaterial; the arrest could be "backdated" to when probable cause to arrest arose.  While true, this leads inexorably to the Lindway argument, and Justice O'Donnell drove the stake into the heart of that one, noting that "we're not following that case, we've excluded evidence regularly, and we've been doing that for decades."

In fact, the chances are fairly good that I won't be doing a post when the decision comes out, because there's not likely to be one.  Even if the court were to write a sweeping rule essentially creating a good-faith exception for warrantless searches, it's unlikely they'd use something as trivial as a marijuana bust as the vehicle.  O'Connor and O'Donnell took pains to note that they hadn't voted to take the case, and O'Connor asked the defense attorney whether he'd like to see the case disposed of as improvidently granted.  Well, duh...  If you've won in the court below, and a judge on the only court that can change that asks you if you'd be happy with what you've got, it shouldn't take more than a nanosecond to figure out the answer to that one.

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