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Two on the 4th from the 2nd

The 2nd District has long had the reputation of being perhaps the best appellate district in the state.  I've found that to be true, for the most part; the court's opinions are usually thoughtful and well-written, and sometimes go "outside the box."  For example, as I discussed here, they're perhaps the only court in Ohio which is still willing to provide some meaningful review of sentencing decisions, and doesn't believe that Foster gave trial judges unfettered discretion in sentencing.

If there's one weakness in the 2nd's decisions, it's in search and seizure law.  The 2nd has a disturbing tendency to show up in my Bullshit Traffic Stop of the Week™ feature, such as here (patdown for jaywalking), here (failure to put on signal 100 feet from intersection), and here (failing to put turn signal on when pulling away from the curb).   Perhaps most troubling are its decisions in State v. Harding and State v. Williams.  Back in 1998, police stopped a guy on a "generalized hunch" and patted him down, finding a bag of crack cocaine.  He had a couple of outstanding warrants, and the State tried to argue that the exclusionary rule didn't apply because of that.  The 2nd District rejected that argument, finding that "if we were to adopt the reasoning advanced by the State, then any individual with even a minor misdemeanor traffic capias has forfeited any and all Fourth Amendment safe guards."  Ten years later, in Harding and Williams, the 2nd reversed itself, holding that a person who has an outstanding warrant "has no reasonable expectation of privacy to be free from arrest and search by the police." 

So it was good to see the 2nd come down with a couple of 4th-Amendment friendly decisions last week.

The first was in State v. AbnerThe police, investigating reports of drug trafficking at a Walgreen's, saw a car haphazardly parked. When two men left the store and approached the truck, the officers asked to speak to them.  The driver stopped, but Abner, the passenger, kept going, then opened the door and tossed something inside, an action the officer said "concerned" him, because he didn't know if Abner had a weapon.  He grabbed Abner and pulled him aside, and saw a bag of heroin sitting on the seat.  The trial court upheld the search, finding that Abner's actions when he approached the truck amounted to "furtive movements." 

The 2nd reverses, its most important holding being that furtive movements alone cannot provide the basis for a stop:  you have to have some of the other Bobo factors.  That might not be as big a deal as it looks at first glance:  the Bobo factors include that the area was known for heavy drug activity, that it was nighttime, etc.  But it's still the "totality of the circumstances" that governs, and here, even the presence of those other factors wasn't sufficient to give rise to reasonable suspicion:  there was simply nothing the police saw which indicated that any criminal activity was afoot. 

In the second case, State v. Adams, the police observed the defendant's vehicle approach an intersection with a red light.  Although there was only one marked lane in each direction, the lanes were fairly wide, enough for two vehicles to fit through.  The defendant pulled up alongside another car that was going to turn left, and when the light turned green, he drove through the intersection.  The cops decided to pull him over for "passing on the right," but when they activated the lights and siren, the defendant kept driving for another block, coming to a stop only because another car blocked his path.  The police arrested him for failure to comply, and an inventory search revealed a bag of heroin.

There are a couple of issues here.  First, what's the quantum of evidence necessary for a traffic stop based on a violation, probable cause or reasonable suspicion?  In Dayton v. Erickson, the Supreme Court that it wasn't a 4th Amendment violation for a cop to stop a car for some ulterior motive, as long as he had probable cause to believe that a traffic violation had occurred.  That's arguably dicta though, as to the probable cause aspect, and the 2nd holds that reasonable suspicion of a violation is sufficient.  It's hard to quarrel with that result; if the police want to stop a car because they believe its occupants have engaged in drug trafficking, for example, they need only a reasonable suspicion of that, so it makes no sense to require a higher quantum for a traffic violation.

But this is where things get sticky:  is that suspicion viewed objectively or subjectively?  For example, I've got a case now where the cops stopped my guy for driving with a cracked windshield, under a city ordinance prohibiting driving a vehicle which is "in such unsafe condition as to endanger any person or property."  I won the suppression motion and the appeal, but the State's now asking the Supreme Court to accept review, and its argument that the police officer's subjective belief as to whether the crack constituted a danger should be controlling, as opposed to the trial court's objective determination on that score.  In Adams, the court finds that the initial basis for the stop wasn't valid:  the lane was wide enough for two vehicles, and thus the defendant didn't violate the statute by passing on the right, regardless of what the officers believed:

In order for a reasonable and articulable suspicion necessary for a traffic stop to exist, there must be objective evidence that the officer's action was justified at its inception. Good faith is not enough. "If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects' only in the discretion of the police."

The latter quote is from the Supreme Court's decision in Beck v. Ohio, and the whole thing is a good one to have handy.

Ultimately, it doesn't do Adams any good:  his failure to comply with the order of the police was a separate offense, and gave rise to cause to arrest him, even though the reason for the order was invalid.

Still, the 2nd's imposition of an objective standard for determining reasonable suspicion is important, because courts tend to have difficulties with that.  Of particular concern here is some courts' willingness to hold that a stop is valid as long as the police have a "good faith" belief that a violation occurred.  This is a bad argument to begin with, since "good faith" is supposed to be determined objectively, but it results in ridiculous decisions like this one from 5th District, where the cop stopped a car under a statute which prohibits parking on a highway.  Even though the statute applies only to highways "outside a business or residence district," and this was clearly a business district, the court upheld the stop, deciding that "if later the trooper's evaluation of the applicability of the statute is found to be incorrect, at the time of the stop, in the trooper's mind, a traffic violation had occurred."

Some things might still go on in the 2nd District that shouldn't, but at least that won't be one of them.


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