Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

An encomium to the 4th Amendment

books with gavel.jpg

Quick quiz time. Name the author of the following quotes on search and seizure law:

  • "The exclusionary rule and the concomitant suppression of evidence generate substantial social costs in permitting the guilty to go free and the dangerous to remain at large. Because of that costly toll, the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public."
  • "There is always a temptation in criminal cases to let the end justify the means, but as guardians of the Constitution, we must resist temptation. After all, Fourth Amendment freedoms are not second-class rights; they are indispensable to all members of a free society."

The answer to both: Ohio Supreme Court Chief Justice Maureen O'Connor.


The second quote is from the opinion in State v. Gardner, which the court handed down a few weeks ago. The first quote is from her lead opinion five years ago in State v. Oliver (discussed here). To be fair, it's not all her language; some of it is pulled from Justice Scalia's opinion in Michigan v. Hudson (briefly discussed here), which came out just a few months earlier. The Court in Hudson decided that failure of the police officers to knock and announce their presence before entering the premises would no longer be considered a constitutional violation, and Scalia used the ruling as an opportunity to launch into a jeremiad about the exclusionary rule. Chief Justice Roberts did much the same thing three years later in Herring v. US, (discussed here).

Given the language in Oliver, and the generally jaundiced view expressed toward a rule which requires relevant evidence of significant crime to be suppressed merely because "the constable blundered," I wasn't too sanguine about the prospects for Gardner. As I explained in my preview of the oral argument, the 2nd District adopted the view back in 1994 that someone who had an arrest warrant issued for him had no expectation of privacy, and therefore no standing to object to a police stop and frisk of him, even if the police didn't know about the warrant and otherwise had no basis for the stop. Last year in Gardner the 2nd changed its mind, and the Supreme Court accepted review. And last week, the Supreme Court affirmed, with O'Connor apparently channeling Thurgood Marshall in writing the opinion for a unanimous court.

To be sure, most of my qualms about the potential outcome in Gardner dissipated after the oral argument; as I mentioned in my discussion of the oral argument, if you're the prosecutor in a 4th Amendment case and you're getting a hard time in oral argument from the reliably conservative Justice O'Donnell, who'd be more likely to become an aficionado of gangsta rap than suppress evidence, you know you're having a bad day.

So, we have a great decision from the Ohio Supreme Court on the 4th Amendment. What rule of law can we draw from it which can be applied to future cases?

Sadly, not much. In my preview of the oral agument in Gardner,I'd mentioned that neither of the 2nd District decisions -- the one creating the rule, and the one reversing it -- provided much analysis: the former provided a paragraph containing two conclusory statements that a person with a warrant forfeited any privacy expectation, and the latter contained a sentence or two saying that he didn't. The Supreme Court's decision continues that legacy. The opinion is one long extolment of the values and virtues of the 4th Amendment; the closest the court gets to any real analysis is in response to the State's argument that an arrest warrant gives the police the right to enter an individual's home: "the holding in those cases presupposes that the police knew that there was a warrant for the individual's arrest when entering a home to make an arrest." True that, but why does it matter?

It's sort of too bad, because Gardner did present some key questions which do indeed go the core of the protections provided by the 4th Amendment: an individual's expectation of privacy. Still, if Gardner does no more than provide some nice dicta about the importance of the 4th Amendment to our concept of liberty the next time we have to do a brief on a search and seizure issue, it will have served its purpose. God knows we have few of those as it is.

Search

Recent Entries

  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax