Bad warrant, good search?
The Toledo police arrested Brian Hoffman on a misdemeanor warrant. In doing so, they discovered evidence linking him to a murder. They got a warrant, and found more evidence.
So far, so good. But there's a problem. The misdemeanor warrant was "issued" by the clerk of courts. There's case law that says a clerk can be the "neutral, detached magistrate" contemplated by the 4th Amendment, but he's still required to make a determination of probable cause. He can't simply rubberstamp a warrant that says no more than that the police officer believes that the defendant committed a particular crime. That's exactly what happened with the misdemeanor warrant in Hoffman's case.
So on Tuesday, everybody got together for oral argument in the Ohio Supreme Court to decide if there was anything wrong with that.
The U.S. Supreme Court has handed down a couple of decisions along that line in recent years. Back in 1994, in Arizona v. Evans, the Court had held that an improper warrant (in that case, one that was still on the books despite being recalled) didn't require suppression of the evidence found in an arrest based on that warrant. Five years ago, in Herring v. U.S., the Court applied the same rule to an invalid warrant maintained by police employees.
The basis for letting the evidence in was the Court's 1984 decision in US v. Leon, which established a good-faith exception to the exclusionary rule: evidence wouldn't be suppressed if the police officers had a good-faith belief in the validity of the warrant, even if it turned out to be invalid. Roberts' opinion in Herring used that as a launching pad for a screed against the costs of the exclusionary rule in general. Exclusion "has always been our last resort, not our first impulse," the opinion informs us, "the rule's costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application," we are told, finally culminating with this:
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
That didn't leave a whole lot of openings for Hoffman's lawyer, but made the most of them. His central argument was that the police didn't have a good-faith belief in the validity of the warrant, emphasizing that in their testimony at the suppression hearing several officers acknowledged that they knew they needed probable cause to obtain an arrest warrant. The chief problem with that argument is that the procedure had been upheld by an earlier 6th District decision. It's one thing to argue that the police couldn't rely on the fact that the clerk of courts had signed off on a warrant; it's an entirely different thing to argue that they shouldn't have relied upon an on-point court of appeals decision.
That court of appeals decision was handed down in 2000, which underscores another potential argument, and a potential problem. The potential argument is that this fell within "recurring or systemic negligence" under Herring: the police had been utilizing this warrant procedure for 17 years. That didn't gain any traction, probably because it was the clerk's office, not the police, which had engaged in systemic misconduct.
The problem was pointed out by Lanzinger: assuming the court affirms, what happens to the other warrants accumulated during those 17 years? The procedure for issuing warrants in Toledo has been changed in light of the 6th District's overruling its earlier decision and holding that such warrants are invalid. But that wasn't retroactive. These are misdemeanor warrants, after all; nobody's actively looking for these people, and the warrants could be years old. If the court affirms Hoffman's conviction tomorrow, and on Monday somebody's arrested on an invalid warrant and evidence is found incident to that arrest, the fact that the warrant is invalid isn't going to do them any more good than it did Hoffman.
From the flow of the oral argument, though, that's the way it's going to turn out. My default position in predicting outcomes in the Supreme Court is to take the State and give the points, and here I'd probably be willing to give a couple touchdowns.
What the opinion really underscored for me, though, was the implausibility of the magistrate requirement. Does anyone really believe that a deputy clerk of courts has the ability to conduct a meaningful review the probable question, let alone the desire to do so? Can you imagine a deputy clerk telling a police officer, "sorry, that's not enough"?
For that matter, I have a hard time imagining a judge doing that.
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Got some serious briefing to do, so no post tomorrow. I'll see you on Monday.