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Three on the 4th from the 2nd

Although the 2nd District has always been one of the best in Ohio in terms of its analysis of the law and the cogency of its opinions, that hasn't always carried over into its work on search and seizure cases, as typified by its holding in a 1998 case that someone with an outstanding arrest warrant has no reasonable expectation of privacy, and thus has no standing to object to a stop or search, no matter how egregiously the police conduct violates the 4th Amendment. It reversed that decision last year, though (although it's up on appeal; see discussion of oral argument here), and in three cases last week showed that it might give the 8th District a run for the title of most 4th-Amendment-friendly court in the state.

State v. Winston is the easiest of the three. It involves the new police tactic, the "knock-and-advise": the police, usually at some housing project, will follow up a tip about drug activity by going to the apartment of the purported offender, knocking on the door, and seeing what happens. If the occupants don't answer immediately and there are sounds which might be interpreted as people destroying contraband -- and just about any sound will do -- the police can knock down the door and search the apartment. If somebody does answer, the police can try to obtain consent, or perhaps observe something in "plain view" that entitles them to enter.

That's what they did in Winston, but the validity of the search wasn't the issue; whether Winston had the right to complain about it was. The evidence indicated that his girlfriend was the tenant, and that Winston stayed there overnight on a frequent basis, in violation of the housing authority's regulations. The trial court concluded that because Winston wasn't allowed to be a overnight guest, he wasn't, so he had no standing to contest the search. The 2nd District easily found the flaw in that reasoning, and reversed, in accord with the general law that an overnight guest does have a sufficient privacy interest in the premises to have standing to contest the search.

State v. Rogers begins with an identical fact situation -- project police get a tip of drug activity, and decide to do a knock-and-advise -- but with a twist: there's nobody home. At least not yet; while the officers were standing in front of Rogers' building after the second failed attempt, a car approached with darkly tinted windows, which was sufficient in the officers' view to warrant a stop. Rogers was a passenger, and started to exit the car, but was told to stay inside. After checking the ID's of the driver and Rogers, the police gave the driver a verbal warning and told her she was free to leave. Not Rogers; he was asked to step out of the vehicle. The officers told him of the drug complaint, and he gave a consent to search his apartment.

The consent would seem to obviate any problems with the search, but it doesn't. Back in State v. Robinette, the Supreme Court held that if a driver was stopped for a traffic violation, once the officer had completed the ticket, he couldn't ask the driver for consent to search the car. The same holds here, the court concludes: once the officers had finished their business at the vehicle, their asking Rogers to exit the car was an illegal detention, and any consent he gave was the product of that illegality. That's not a hard and fast rule; as the concurring opinion points out, "the taint of the illegal can be purged when the suspect's subsequent consent is the product of an intervening act of free will." That's up to the State to prove, though, and here the State didn't.

Perhaps the most interesting of the three cases is State v. Henry. The cops had planted a GPS device on Henry's car, sans warrant of course, and he was convicted on the basis of various evidence gathered as a result. Then the Supreme Court handed down US v. Jones last term, holding that a search warrant was required for that. The State argued that the good faith exception to the warrant clause applied, relying on Davis v. US. Davis was a passenger in a car, and was arrested and placed in a police cruiser; the cops then searched his jacket, which was in the car, and found a gun. That would have been a valid search under Belton v. New York, which was the law at the time, but a few months after Davis' conviction the Supreme Court reversed Belton in Arizona v. Gant. Davis sought to take advantage of that, but the Supreme Court held there was no purpose to applying the exclusionary rule to conduct which was legal at the time.

There's some sense to that, but the 2nd District points out that there were no judicial decisions in the 2nd District upholding the right of the police to place a GPS device on a car without a warrant, so there was no "binding judicial authority" the police could rely on to uphold the search.

There's another issue here, though. As I pointed out in my discussion of Jones when it came down, the main issue in the case was whether the placement of the device constituted a search. In the Supreme Court, the government argued that even if it was, the police had probable cause to place the device, and the necessity of a warrant was obviated by the automobile exception. The majority didn't address this argument, deeming it forfeited because the government had failed to raise it below. The same fate befalls the State here: they never argued the probable cause issue in the trial court, so the appellate panel declines to address it.

With the three decisions from the 2nd District last week, and two others the week before from the 9th on dog alerts (see discussion here and here), we've had five excellent 4th Amendment decisions. Let's hope that continues.


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