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Punting on the 4th

Every now and then prosecutors in Ohio come up with a Big Idea about the 4th Amendment. A couple of years ago, they tried to sell the Supreme Court on the idea that the Ohio constitution didn't have an exclusionary rule, based on a decision by the court the same year FDR won election to his second term. Then they claimed that the Supreme Court's decision in Herring v. US ushered in a whole new understanding of search and seizure law: the exclusionary rule could only be applied to cases of "egregious" police conduct, in essence creating a good-faith exception for warrantless searches.

Those arguments went nowhere; the latter case, in fact, never made it to the decision stage, but was instead dismissed by the court as improvidently granted. Yesterday, the State was at it again, arguing that the 2nd District had been right back in 1994 when they held an arrest warrant eliminated the arrestee's expectation of privacy, and wrong last year when they decided to the contrary and reversed themselves. But from the tenor of the oral argument yesterday in State v. Gardner the State's not likely to be any more successful than in their previous forays.

As I explained in my preview of the case last week, Gardner had been a passenger in a vehicle which was stopped because the police knew the driver had an outstanding warrant. After the stop, the police saw Gardner making "furtive movements," as they say in cop-speak, so they got him out of the car, frisked him, and found a rock of crack cocaine.

Gardner argued to the trial court that the cops lacked reasonable suspicion to frisk him, but the judge waved it off: he didn't even need to consider that issue, he decided, because a 17-year line of cases from the 2nd District held that someone who has an outstanding arrest warrant has no reasonable expectation of privacy, and thus no standing to assert the illegality of his stop or frisk. Last week I wrote that it was the driver who had the warrant; turns out that Gardner had a couple traffic warrants, too, and that's what the judge used to decide it didn't matter that if the stop or frisk was unreasonable: the warrant gave the cops the right to arrest Gardner, even though they didn't know about it at the time they frisked him. Gardner took the case up, the 2nd District looked at it again, decided they'd been wrong back in 1994, and reversed and remanded it back to the trial court to determine whether reasonable suspicion had indeed existed.

The essence of judicial restraint is not deciding an issue if you don't have to, and boy, did the justices look restrained yesterday. It quickly became clear that the preferred resolution was to do what the 2nd District had done: send it back to the trial court to determine whether the cops had reasonable suspicion to frisk Gardner, a resolution that became even more compelling by the fact that the cops very probably did.

In fact, so eager was the court for such an outcome that few justices seemed even willing to discuss the State's proposition. Just a few minutes into oral argument, O'Donnell appeared openly incredulous at the assertion that the belated discovery of a warrant could justify a stop and frisk that was otherwise invalid. O'Connor described the concept as "bootstrapping," and McGee Brown seemed to have a similar view. Lanzinger had the prosecutor concede that the warrants here were for failing to show up for traffic violations, demonstrating again the importance of the facts in an appeal, even one to a high court which presumably is only writing rules of law applicable to all cases; the State's possibility of success in getting the rule it wanted written would have been substantially improved if we were talking about finding a murder weapon on a guy who turned out to have a felony warrants.

In fact, it's not clear exactly what the State's proposition was. The initial position was at least logically defensible, but the prosecutor began by speaking of a "diminished expectation of privacy," and that the argument wouldn't be available if the police conduct had been "particularly egregious." Why does that matter? The contention is that one who has an outstanding warrant for his arrest has no expectation of privacy; such a warrant gives the police the right to break down the door of his home to arrest him if they reasonably believe he's there. And what's the significance of the extent of the police misconduct? In fact, that simply invites additional problems, because it introduces a whole new element into the calculus. The original argument at least had the virtue of simplicity.

That was perhaps its only virtue. As I mentioned last week, only the 10th District here in Ohio has bought into that argument, and that was solely because of the 2nd's now repudiated line of decisions. Three of the four Federal circuits to have considered it, including the 6th, have rejected it. The 7th Circuit has accepted it on a limited basis: only the evidence discovered after the police learn of the warrant is admissible.

Like I said, it was fairly clear by the end of the oral argument that the justices figured the case would go back to the trial court, the judge would find the cops had a legitimate basis for frisking Gardner, and that would be the end of that. It might not be; it's certainly possible that the trial judge will toss the search, the State will appeal to the 2nd, trying to get them to reinstate the 1994 rule, and the case will wind up back before the Supremes. Don't count on that happening, though. Cupp appeared to be the only justice remotely interested in buying into the State's argument. You need four votes to get an appeal into the Supreme Court, and based on what I saw yesterday, I don't see how the State gets to two.

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