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New life for the Ohio Constitution

Sometimes, it's hard to come up with stuff to write about, but not so this week, and probably next.  We discussed Ohio v. Clark, SCOTUS' most recent case on the continued evisceration of the Confrontation Clause, on Wednesday, and the Ohio Supreme Court has issued three decisions on criminal cases just this week.  We'll talk about State v. Brown today.  It has some good news for 4th Amendment fans, even though strictly speaking it's not about the 4th Amendment.

In a survey I made up for this post, 62% of 4th Amendment cases arise from traffic stops, and Brown is no different.  It features the Bullshit Traffic Stop of Week™:  a police officer saw the tires on Brown's car cross the white fog line for about a hundred feet, pulled up alongside him, and when he stared directly ahead and didn't look at her, figured she should pull him over for the violation that had occurred more than two miles back.  She walked her dog around the car, which resulted in the discovery of 120 oxycodone tablets, and that got Brown the mandatory three-year prison sentence.

But let's go back to the stop.  The officer in this case was from Lake Township in Stark County, and it's undisputed that she didn't have the authority to make a traffic stop for a marked lane violation on an interstate highway.  That's what RC 4513.39 says, anyway.

To which the State responded, so what?  That's a statutory, not a constitutional, violation, and the exclusionary rule comes into play only for the latter.  And there's another problem:  SCOTUS has held that the 4th Amendment is satisfied if a law enforcement officer has probable cause to believe that a traffic violation has occurred, and it's never gotten picky about whether the officer was exceeding his jurisdiction.

The 6th District agreed with all that on appeal, but held that the stop violated the Ohio Constitution's analogue to the Fourth Amendment.  And that's the issue in Brown:  "whether a traffic stop made without statutory jurisdiction or authority violates the protection against unreasonable searches and seizures afforded by Article I, Section 14 of the Ohio Constitution."

The court's not writing on a clean slate here; in fact, it finds its 2003 decision in another State v. Brown dispositive.  In that case, the defendant was arrested for a minor misdemeanor.  Under state law, there are a very few circumstances where an officer can arrest someone for minor misdemeanor, and none were present in Brown's case.  That didn't do the defendant any good as far as the US Constitution is concerned, because only a few years before that, SCOTUS had upheld the arrest of a woman for a seat belt violation, despite the fact that the officer lacked the statutory authority to arrest for that offense.  But the Ohio Supreme Court held that the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors," and, after weighing "the government's interest in making the stop against the intrusion upon the individual's privacy," decided that the Ohio Constitution had been violated.  So the outcome in Brown the Younger decides the outcome in Brown the Elder.

But as the dissent points out, the slate might not be clean, but it's a good bit muddier than the 5-2 majority admits.  In fact, Brown I is a bit of an outlier:  in several cases before and after that one, the Ohio Supreme Court treated the search and seizure provisions of the Ohio Constitution as being co-extensive with the 4th Amendment.

Well, that was then, this is now.  There's no question that this week's decision gives independent force to the Ohio Constitution.  And not just for search and seizure; several years ago in State v. Farris they held that the Ohio Constitution's privilege against self-incrimination went farther than the Fifth Amendment.

Unfortunately, Brown doesn't provide a lot of analysis to help determine when the Ohio provision kicks in.  That has to be fleshed out, and given many of the court's pronouncements in 4th Amendment cases, don't expect the Ohio Supreme Court to become a bastion of libertarianism on that subject.  But if you've got form motions to suppress - and you know you do - make sure you include the Ohio Constitution as a basis for seeking exclusion.

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