What's Up in the 8th - Search & Seizure
Could be the heat. Sure, Cleveland isn't Dallas, and we've yet to hit three digits on the thermometer, as Dallas has for over a month. And the old Courthouse where the 8th District toils, despite having been built during the Taft administration (the Federal, not the Ohio, one), does have air conditioning. The last oral argument I had didn't feature amounts of perspiration vaguely reminiscent of Cool Hand Luke (which beat out Ben Hur and Body Heat for the title of Sweatiest Movie of All Time), although I probably wouldn't have fared any worse if I'd eaten eggs rather than argue my case. For whatever reason, though, the 8th handed down only fifteen decisions last week, seven in criminal cases. But three of them take interesting perspectives on signficant areas of constitutional and Ohio law, so I'm going to spend this and the next two days discussing them in detail.
In April of last year, Warrensville Heights Police Sgt. Senft was called to a disturbance, and while at the scene, learned that the people involved were witnesses to a shooting that had occurred in Maple Heights. An officer from that suburb appeared on the scene, and when a vehicle pulled out of a driveway and drove off "at a high rate of speed," the Maple Heights officer asked Senft to pursue and stop it.
Now, the discerning reader will note at this point that the above affords no real basis for stopping the vehicle, no indication that it had been involved in the shooting, or in any other offense. That doesn't mean that there can't be some reason eventually found for stopping it, and Senft becomes this week's winner of the Bullshit Traffic Stop of the Week™ award when he pulls the driver over for "traveling slower than normal." When he sees the driver "leaning over toward the passenger seat," he conducts "a felony stop," arresting and handcuffing the driver, and placing him in the cruiser. A search of the interior of the car turns up a gun, and the driver is charged with various weapons offenses.
The trial court tossed the search, and in State v. Hamilton the 8th District affirms. The State relied on State v. Thomas, a decision last year, which I discussed in detail here, in which the 8th had affirmed a search under similar circumstances: after a traffic stop, the driver had made furtive movements, the officer had handcuffed the defendant and placed him in the cruiser, then conducted a search of the interior, finding drugs. The trial court had held that any danger to the officer was dissipated when he placed the defendant in the cruiser, but the 8th reversed, noting that once the defendant was given his traffic citation, he would be returning to the car, and would have access to any weapons there.
So how does the Hamilton court distinguish Thomas? By noting that Thomas involved an investigative stop, while Hamilton involved an arrest. Hamilton wouldn't be returning to the car, which placed the case squarely within Arizona v. Gant. Gant held that the police can't search the interior of the car incident to the driver's arrest once the driver no longer has access to the interior (the driver in Gant was also handcuffed in the back of the police car at the time of the search), unless the police have a reasonable basis for believing that contraband or evidence of a crime could be found in the car. The police wouldn't find any evidence of Hamilton's traffic violation in the car, so they had no basis to search it incident to his arrest.
The result here is somewhat anomalous. In all respects save one, what happened to Thomas and Hamilton is identical: they were taken from their vehicles, handcuffed, and placed in the back of the cruiser. The one difference is that Hamilton was arrested, while Thomas was not. The fact that Hamilton was arrested, and would not be returning to his car, was what rendered the search of his car illegal. The result is that Hamilton, who was arrested, wound up with a greater privacy interest in the interior of his car than Thomas, who was merely being detained. If the officer had decided to detain Hamilton so the police could further investigate the case, instead of arresting him, the situation would have fit squarely into Thomas. That's not to fault the court; its analysis is exactly correct.
The opinion also does an excellent job of dispensing with the inventory search argument. This was one of the big gaps left by Gant: perhaps the police could't search the car as an incident to the occupant's arrest, but an inventory search is permitted if the car is impounded. (Even where the search is done immediately, and thus isn't technically an "inventory" search, the government can claim the benefit of the "inevitable discovery" doctrine: that the evidence would have been discovered anyway during the ensuing inventory search.) Too many courts infer that arrest will automatically result in impoundment, but the Hamilton court correctly notes there was no evidence that Hamilton's car was illegally parked, and thus the police had no right to impound it. No impoundment, no inventory, end of story.
Still, as I'd mentioned when I'd discussed Thomas,
Thomas best exemplifies the situation with most 4th Amendment cases: where you wind up on the question depends upon where you came in. It's a close call, and a panel which put the balance slightly farther along the spectrum toward privacy would probably have come to a different result.
I could easily see a different panel of the court coming to a different result in Hamilton, too.