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A win in a search case

Nicolas Cage used to be a good actor.  As Tomato-Meter shows, Cage was a firmly established performer 30 years ago, with critically-acclaimed leads in Raising Arizona and Moonstruck.

Scrolling down the list, though, one sees that Cage has become incapable of turning down a role; ten of his last fifteen movies have been positively reviewed by fewer than 30% of theater critics.  This is largely explained by a recent article, which details how Cage blew threw $150 million -- yes, that's million - on all kinds of crazy shit, like castles (he bought two of them), dinosaur skulls, and shrunken pygmy heads.  Cage is now working for the Taxman, and the chances of him showing up in a good movie approximate those of the Ohio Supreme Court handing down a pro-defendant Fourth Amendment decision.

If so, Nic better start prepping his Oscar acceptance speech, because that's what the Ohio Supreme Court did last week in State v. Banks-Harvey.

The facts everybody pretty much agrees on:  The cops stopped a car driven by Banks-Harvey but owned by her boyfriend Hall.  Banks-Harvey and another passenger had warrants; Hall did not.  An officer handcuffed Banks-Harvey and put her in the cruiser.  He then went back, retrieved Banks-Harvey's purse from inside the vehicle, and dumped it on top of the car, finding a small cornucopia of drugs:  yellow pills, brown liquid, clear capsules, and we're just getting started.  The car was searched, and an empty capsule was found on the floorboard, but Hall was allowed to drive away.

The State trotted out the Usual Suspects in opposition to the inevitable motion to suppress:  search incident to arrest, plain view, and inventory.  The trial court rejected all of them, but still denied the motion, concluding that the police had probable cause to search the car, and would have searched the purse at that point.

The appellate court wasn't having that, but still upheld the search, finding that the retrieval of the purse was done pursuant to a written Highway Patrol policy.

There are a couple of issues here.  The first is the inventory search.  That's a relatively easy one.  Yes, you can have a policy, but you don't get to define the limits of a defendant's Fourth Amendment rights.  The purse was in a car that wasn't impounded.  If the police never had lawful possession of the purse, they had no right to inventory its contents, policy or no.

That brings us to the second question, the inevitable discovery doctrine.  Thirty-some years ago, a defendant was arrested for killing a young girl, although the body hadn't been discovered.  While driving the defendant to jail from his interrogation, the officer launched into a lengthy spiel about how the girl deserved a "Christian burial."  That apparently was enough to light the flickering embers of the defendant's conscience, and he disclosed the location of the body.  The Supreme Court ultimately held that his Miranda rights were violated, but that it didn't matter because search parties were close to the body and would have found it anyway.

Here's where things get sticky.  The police did search the car, during which they would have had the right to search the purse.  The only way to invalidate the search of the purse is to find that the police didn't have probable cause to search the car.

The sequence of events is important here.  After the officer dumped the contents of the purse on top of the cruiser, another officer came up and told him that he observed the empty capsule inside the car.  The court essentially decides that, absent the search of the purse, the cops wouldn't have searched the vehicle at all.

That's a bit much for Kennedy, who concurs only in judgment and addresses only the inventory argument.  DeWine and O'Connor dissent, arguing that the retrieval of the purse from the car did not violate any rights of Banks-Harvey:  as a passenger, she had no possessory interest in the car.  O'Donnell dissents, too, but his only basis is that the Highway Patrol policy was never introduced in evidence, "the case is factually specific, and no general rule of law can be formulated from its resolution."  True that:  the decision is really notable only for the fact that it's a win for defendants in a search case. 

There's one troubling aspect to the opinion, though.  One of the arguments advanced by the State in the Supreme Court is that the officers had a good-faith belief in the validity of their efforts, so the exclusionary rule shouldn't be applied.  The court carefully considers that argument, and rejects it, finding that the police didn't have a good-faith belief that they were allowed to seize the purse.

Who cares?  This continues an unfortunate trend in the court's analysis of Fourth Amendment cases; the same thing happened last year in State v. Leak (discussed here), where the court found that the police seizure of a legally parked car, with the unarrested driver present, was an illegal search.  There, like here, the court engaged in an extensive discussion of the good faith exception.

As the court acknowledges in Banks-Harvey, SCOTUS has applied the good faith exception only to a narrow category of searches:  those done with a search warrant, pursuant to a statute later ruled unconstitutional, in reasonable reliance on erroneous information in a warrant database, and conducted in reliance on binding judicial precedent.

There's none of that here:  this is nothing more than an attempt to apply the good faith exception to the broad category of warrantless searches, where each case would require a balancing of the societal costs of excluding evidence against the deterrent effects on police conduct.  As I explained in a post seven years ago, that's a recipe for disaster.  While Fourth Amendment law is admittedly muddled, in one respect it is clear:  in the vast majority of cases involving a warrantless search, if the search is bad, the evidence goes out.  Having the outcome of every search depend upon judges' conducting the balancing test would result in making present search and seizure law look like a model of clarity.

One other important note.  As my unnumbered hordes of regular readers know, I've also bloviated extensively about the benefits of arguing the Ohio Constitution as a separate source of rights.  Don't bother; the majority opinion again notes that the rights there are co-extensive with those granted by the Fourth Amendment.

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