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A new rule of law? Not quite

The Ohio Supreme Court's decision two weeks ago in State v. Gould could've been so much more.  As I explained when I blogged about the oral argument in the case, Gould represented the prosecutors' Big New Idea about search and seizure law.  Their argument was that the U.S. Supreme Court's decision in Herring v. US (discussed here) had created a good-faith exception to the exclusionary rule for warrantless searches:  the search couldn't be tossed unless the police conduct involved a "deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights."  (The good-faith exception for searches with a warrant had been established in 1984 by US v. Leon.)

As I explained in the earlier post, there's not much to the argument.  The best indication that Herring wasn't intended to introduce a new rule is that just a few months later, in Arizona v. Gant, the Supreme Court threw out a car search incident to an arrest -- and reversed a 28-year-old precedent in the process -- without mentioning anything about a new test for warrantless searches.  But the State plodded on, and the Supreme Court accepted the case to review that precise question.

And didn't.

The details of Gould's case didn't paint him as a sympathetic figure.  In 2005, Gould moved in with his mother, and gave her a computer hard drive and told her not to let anyone else have it.  He moved into an apartment five months later, but left the hard drive with the mother.  A month later, Gould's twin brother told her she should get the drive out of the house because it contained child pornography, and she gave it back to Gould.  Gould's other brother moved in with him a few months after that, and shortly thereafter, Gould stole the brother's truck and left the city without taking any of his belongings, including the drive.  His mother retrieved it, then took it to the police.  And there it sat for three months, until Gould's mother consented to a search of the drive.  Sure enough, it contained child pornography, including pictures of Gould engaging in sex with the 7-year daughter of a former girlfriend.  There were indications that the 7-year-0ld was intoxicated at the time the pictures were taken.

Gould argued that the police had illegally searched the hard drive, but the trial court found that Gould had abandoned the drive, thus forfeiting any 4th Amendment claim.  The 6th District reversed, and the State took it up, arguing four propositions of law.  First and foremost was the Herring argument.  Second was an argument that Ohio's equivalent of the 4th Amendment didn't have an exclusionary rule.  The reasoning process which led to the inclusion of this argument is simply unfathomable.  It was based on a 1936 decision, and the last time the State argued it, two years ago (oral argument discussed here), the justices just about laughed them out of the courtroom.  And at least in that case there was a tenable argument that the Ohio Constitution, rather than its Federal counterpart, was in issue; here, there wasn't.  The last two arguments related to the standards for determining what deference a trial court's findings on 4th Amendment issues should receive from an appellate court.  The Supreme Court granted jurisdiction only over the first, the Herring issue.

I've mentioned before that the Supreme Court regards its role as enunciating broad rules of law; one of the most frequent questions asked by the justices in oral argument is, "What rule of law do you want us to write here?"  As a corollary, the court is not in the business of "error correction":  taking a case simply because an intermediate appellate court might have made a mistake is not something the Supreme Court does.

Except, like all high courts which exercised discretionary jurisdiction, when it wants to, and it did here.  After summarizing the dueling arguments regarding the application of Herring, the court decides all that's just so much chin music:  the case can be resolved by reviewing the basic question, which, in the court's view, is whether the hard drive had been abandoned.  The "rule of law" that Gould accordingly enunciates is two-fold:  a warrantless search of abandoned property does not violate the 4th Amendment, and to establish a legitimate expection of privacy, a person "must exhibit a subjective expectation of privacy that, viewed objectively, is reasonable under the circumstances."  Well, whoop whoop.  These "rules of law" were established back during the Carter administration.

The remaining question, then, is whether the court properly applied those rules of law to Gould's case, and more importantly, whether that application is something that defense lawyers and prosecutors need to know about.  The answers to those questions are "maybe" and "probably not."  The court primarily relies on four cases, one its own and the other three from Federal appellate courts, to conclude that Gould abandoned the property.  The Ohio case has virtually nothing to do with Gould's situation; there, the defendant dropped his luggage while being chased by the police, and the court correctly construed that as abandonment of the property.  The other three cases cited in Gould bear some factual resemblance to those in Gould's case, but a determined effort to distinguish them could have been just as successful.  The court makes much of the fact that in the year following his theft of his brother's truck and his leaving the city, Gould "never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings."  The fact that he didn't know the hard drive had been removed from the apartment hardly bears on his abandonment of the drive.  The better argument might be that, by abandoning the apartment -- and stealing your roommate's truck, leaving the city, and concealing your whereabouts could certainly be construed as that -- Gould abandoned its contents, including the hard drive.

So what you wind up with in Gould is a relatively fact-specific case that provides virtually no guidance on 4th Amendment issues that hasn't been provided in the past 30 years.  But what about the Herring argument?  The court didn't resolve it, as mentioned; could it rear its ugly head at some future time?

Maybe, but I wouldn't count on it.  The State's Memorandum in Support of Jurisdiction contained an entreaty that the "the people of Ohio have a 'paramount interest' in knowing how their courts will interpret and apply pronouncements by the U.S. Supreme Court regarding the exclusionary rule," citing State v. Oliver for that proposition.  I remember Oliver quite well; in fact, I wrote about it when it came down five years ago.  Oliver involved a question about the application of the exclusionary rule in "knock and announce" cases, and between briefing and oral argument, the U.S. Supreme Court came down with its decision in Hudson v. Michigan, holding that the exclusionary rule would no longer be applied in such cases.  Noting that "Hudson presents a significant and arguably new interpretation of the exclusionary rule," the court agreed with Hudson.  Well, not it didn't; instead, after proclaiming that the people of Ohio were literally on the edge of their seats to see how Hudson would be applied, the court remanded it back to the trial court to "reconsider its ruling in light of Hudson."   And here we are five years later, and the people of Ohio are as lacking in knowledge about how Hudson will be applied here as they were then.  Don't expect their "paramount interest" in knowing how Herring will be applied to be sated anytime soon, either.

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