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Exploding meth labs and RC 2933.33

Back in 2006, the Ohio legislature passed RC 2933.33, which basically holds that if the police have probable cause to believe that there's a meth lab on a premises, they can search it without a warrant, because the risk of explosion creates "exigent circumstances."  Back in May, in State v. Maust, the 8th District relied on that statute in rejecting a claim of ineffective assistance of counsel in failing to file a motion to suppress a search of his bedroom.  The cops had gone to arrest Maust on a warrant, and found ingredients for making meth in his bedroom.  Maust lived with his father, and argued that the police search of the room was based on his father's consent, and he didn't have authority to consent.  No matter, said the court; the cops saw some ingredients through the open door when Maust walked out, and that gave them probable cause to believe that there was a meth lab there, so the statute meant they didn't need a warrant, and a motion to suppress would've been futile.

Two weeks ago, in State v. Link, the 11th District tossed a search of a meth lab, finding that the four hours between the time the police had probable cause to believe there was a meth lab on the premises, and the time they actually conducted the search, gave them ample opportunity to get a warrant.

Link was wrong:  the fact that exigent circumstances didn't actually exist is irrelevant, because the statute says they did.

The problem with the statute is that it's blatantly unconstitutional.

You'd never know that from reading the multiple appellate court decisions on the law, few of which even address the constitutional question, and then only in passing.  (Maust doesn't mention it at all.)  A federal court once said that the statute raised an "interesting constitutional issue," but decided the case on other grounds.

So why is the statute unconstitutional?  Let's say the legislature passed a law stating that the dissipation of alcohol in the blood constituted exigent circumstances permitting the police to take a warrantless blood draw from an individual suspected of driving drunk.  Would that be constitutional?

The United States Supreme Court doesn't think so, because it rejected that very argument a few years back in Missouri v. McNeely.  Fifty years ago, in Schmerber v. California, the Court held that a blood draw did constitute a search, but held that a warrant wasn't required because alcohol dissipates in the blood over time, and under the circumstances of that case, "there was no time to seek out a magistrate and secure a warrant."

The government tried to double down on that in McNeely, arguing for a per se rule that exigent circumstances existed for a blood draw in every drunk driving case.  The Court wasn't buying, citing numerous cases where it had held that a determination of whether there were exigent circumstances depended upon the totality of the circumstances.

So how does that apply to 2929.33?  The legislature has done exactly what McNeely forbids:  the creation of a per se rule dispensing with the need for a warrant.

It's not a perfect fit, but it's a pretty good one.  The basis for 2933.33 is the danger from exploding meth labs, which is real, but certainly doesn't pose as much of a danger to the public as drunk driving.  The courts usually cite the emergency aid exception as the basis for the Ohio statute, but that's simply an offshoot of the exigent circumstances doctrine:  if the cops respond to a domestic violence call and see through the window somebody lying on the floor in a pool of blood, they don't have to get a warrant before entering the home.  But that doesn't mean the legislature can pass a statute saying that anytime the police receive a domestic violence call, they can enter the home without a warrant because there might be a person lying on the floor in a pool of blood.  What's more, a blood draw involves a relatively minor intrusion; the home, on the other hand, is the one area the courts have repeatedly held is most deserving of constitutional protection.

One of the problems is getting this issue in front of a court, especially the Supreme Court; many other districts would probably be obligated to follow their precedent here.  There may be cases where there actually wasn't sufficient time to get a warrant, which might allow a court to avoid the issue of the statute's constitutionality, because it's irrelevant in that situation. 

And there's more to it than just the statute.  In fact, 2929.33 was basically a codification of the 11th District's decision in State v. Pape, which held that the danger of an exploding meth lab, as a matter of law, created exigent circumstances dispensing with the need for a warrant.  (In fact, some courts have gone further; in 2008 the 9th District held in State v. White that the police didn't even need probable cause to believe there was a meth lab on the premises; reasonable suspicion would suffice.)

But a per se rule by the courts fares no better than a per se rule created by the legislature.  After all, the former was exactly what Missouri was asking the Supreme Court to establish in McNeely. 

If there's any black-letter law on the Fourth Amendment, it's that unless a search falls within one of the "narrowly-drawn and well-recognized exceptions to the warrant requirement," probable cause should be determined by a judge, not the police.  Exigent circumstances is one of those exceptions, but McNeely holds that can't be done with per se rules, but has to be determined by the totality of the circumstances.  There's no way 2933.33 survives that.  

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