Good result, bad law
Yesterday, in State v. Leak, the Ohio Supreme Court handed down a decision tossing out a search. That's not a common occurrence, and it should be a cause for celebration. Certainly for someone like me, who's a big fan of the 4th Amendment, although not as much a fan as one public defender I know who's got it tattooed on his arm. I am not making that up. Haven't gone quite that gangsta, but I'm still a fan.
So why am I not happy?
The facts of the case are simple. The Richland County Sheriff's Office issued an arrest warrant for Leak for domestic violence, and the Mansfield Police Department sent an officer to Leak's apartment. When he got there, he saw a parked car, with Leak in the passenger seat. The officer approached, identified Leak, ordered him out of the car, arrested him, and put him in the back of the police cruiser.
The cop then went back to the car, checked the driver and other passenger for warrants, and found none. The officer nonetheless ordered the car towed. While waiting for the tow truck, the officer conducted an inventory search of the car, and found a handgun under the front seat, which Leak admitted was his. The trial court and the 5th District found this to be kosher. The Supreme Court, not so much.
There were two possible theories to support the search and seizure of the gun. The first is search incident to arrest. The court made short work of that: at the time of the search of the vehicle, Leak was handcuffed in the back of the patrol car. A search of a car incident to arrest isn't permissible unless the arrestee is unsecured and within reaching distance of the vehicle, or the officer reasonably believes the vehicle might contain evidence of the offense for which the defendant was arrested. (The latter is more properly analyzed under the automobile exception to the warrant requirement.) The officer here had no knowledge of the facts of the crime, and so had no reason to believe that the car contained any evidence of it.
The second theory is inventory search, and here the opinion gives us some nice law: the right to conduct an inventory search is premised on the right to impound the vehicle. That has been the law, but it's nice to have a Supreme Court opinion saying that. The court finds that while the car was parked on a public street, there was no reason the driver couldn't have driven off with it. Even better, the court concludes that the inventory search was pretextual:
The arresting officer testified at the suppression hearing that he "always look[s] for evidence of a crime because [he] didn't know where the domestic violence happened." This testimony undermines the premise that the car was impounded and searched without a warrant for reasons divorced from a criminal investigation; in fact, the testimony is indicative of a pretextual search. The officer was not looking for valuables to safeguard. He was looking for evidence to use against the occupant at his trial on the domestic violence charges.
So what's not to like? First of all, none of this means anything. The decision was 4-3, with three justices -- O'Connor, Pfeifer, and O'Donnell -- dissenting; they would have dismissed the case as having been improvidently allowed. But French concurred only in judgment, meaning we've got a plurality opinion with no precedential value.
And it's a damn good thing, because the opinion appears to extend the good-faith exception to the warrant requirement to warrantless searches.
This court has held that when law-enforcement officers act with a good-faith, objectively reasonable belief based on the state of the law at the time the search was conducted, suppression of the evidence obtained as a result of the search would have no appreciable effect on deterring future violations of the Fourth Amendment, and therefore the good-faith exception to the exclusionary rule applies.
That phrase, "based on the state of the law at the time the search was conducted" is critical. Leak draws from the US Supreme Court's decision in Davis v. U.S. (discussed here). But Davis is substantially different: there, the police had conducted a search of a vehicle incident to arrest, based on the Court's 1981 decision in New York v. Belton that when the occupant of the vehicle was arrested, the police could search the car. While Davis' appeal was pending, the Court overruled Belton in Arizona v. Gant. The Court nonetheless affirmed Davis' conviction, finding the exclusionary rule exists to deter illegal police conduct, and there's no purpose to applying it when the police are acting in reliance on a Supreme Court decision. The Ohio Supreme Court came to the same conclusion two years ago in State v. Hoffman (discussed here), upholding a search based on an invalid warrant, because the court of appeals had upheld those types of warrants in previous cases.
But the cop in Leak wasn't acting in reliance to "the state of the law at the time of the search." The law has always held that the purpose of an inventory search is to secure valuables, and if it's used as a pretext to search for evidence of a crime, it's impermissible. So we have an opinion that talks about the "heavy toll" exacted by the exclusionary rule, and that exclusion is only warranted only "when the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights." Well, no. It's only when you're dealing with a warrant, or a standing court decision of precedential significance, that you get into the issue of good faith. If you're not dealing with that, and the cops screw up, the evidence gets tossed, and that's the end of it.
At least, that's the way it's supposed to be. And hopefully is, even after Leak.