Tag Archives: Appellate Court

Search of Car Violates Fourth Amendment

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Anyone who has practiced criminal law, and I’m suspecting many ordinary citizens as well, know the all-to-familiar story where a police officer conducts a routine traffic stop for a relatively minor violation and somehow it turns into a full-blown search of the car.  How does this happen?  Why does failure to use a turn signal at least 100 feet from the turn, or having a broken taillight, eventually result in a felony arrest.  Police normally effectuate the traffic stop with the intent being that he or she ultimately wants to search the car, and they take particular steps to reach that goal.  One of the most common ways the officer gets to search is by obtaining the consent of the driver.  In one of the most confounding questions ever pondered by man, the precise reason that people voluntarily allow the police to search a car in which they have drugs hidden is beyond me.  Nonetheless, it happens all the time.  So, let’s address this issue.

Police have the right to make a traffic stop whenever they witness a traffic violation.  The detention of the driver is a seizure under the Fourth Amendment and therefore is subject to the “reasonableness” requirements.  I.e., the stop can only last as long as is reasonably necessary and must be performed in a reasonable manner.  Once the reason for the traffic stop has ceased to exist (the officer issued the citation), there is no further grounds under which the driver could continue to be detained.  Therefore, the police will have to then show either probable cause to believe that a crime is or has been committed, or at least reasonable suspicion that “crime is afoot” to continue the seizure of the driver in order to investigate.  Or, the police can simply make a request that the driver allow the officer to rummage through their personal property.  Consent is an exception to the Fourth Amendment and the police do not have to have any independent justification.  If you consent, the police are allowed to search, period.

However, what happens when the consent is given only AFTER the police no longer has the right to seize driver, because the traffic citation has been issued and the traffic stop is over? The Second District Court of Appeals correctly ruled that the consent is not valid in State v. White, 2013 Ohio 3027.

The defendant in White was pulled over for a broken taillight after the officer earlier witnessed some unusual behavior on the part of the driver.  A park ranger noticed the defendant sitting in her car in the parking lot of a local metro park.  The officer observed the defendant hunched over the console of the car, and upon her noticing the officer driving by, she popped-up and blurted out a “common epithet.” The decision doesn’t say what epithet she shouted or how the officer possibly heard it from inside his cruiser, but I digress.  The officer then watched as the driver exited the vehicle and walked into the woods, a common endeavor by those that frequent such places.  The officer was nonetheless curious and continued monitoring her behavior.  A short time later she returned to her car and pulled out of the park.  This is when the officer observed that she had a broken taillight and decided it was his chance to pounce.

The officer stopped the vehicle and requested her license and registration.  The officer also called in back-up, who stood on the opposite side of the car, essentially “flanking” the car.  When the information came back that she was valid and had no outstanding warrants, the officer issued her a verbal warning for the taillight – as it was never the reason for the stop to begin with, he wanted to search her and the car.  The officer testified at the suppression hearing that she seemed “nervous,” and her hands were shaking during the stop.  After issuing the warning, he then asked if she would answer a question.  He inquired as to whether she had anything illegal in the car and she responded, “not to my knowledge.” He then asked if he could search the car and she said yes.

The appellate panel held that because her continued seizure was illegal once the traffic stop had been completed, her consent was the product of a Fourth Amendment violation and was invalid.  Therefore, the heroine and marijuana pipe found within the car had to be suppressed. The State obviously argued that under the totality of the circumstances, a reasonable person would have felt free to leave and that she had provided valid consent to search, something people do all the time.

In one of the great myths involved in criminal law, the state loves to argue that a reasonable person would feel free to leave when being asked questions by law enforcement.  Common sense and reality belie this claim as almost no one ever feels comfortable telling an officer to “just move along, nothing to see here, sir.”  And, if someone does ignore an officer, they are usually charged with obstruction of justice or some such nonsense. However, when trial and appellate courts agree that a person “felt free to leave” and could have unilaterally decided the end the encounter with the officer, then there is no seizure under the Fourth Amendment, and no justification is needed to continue to engage the citizen.

In upholding the trial court’s decision to suppress the evidence, the appellate panel cited State v. Ferrante, quoting that “[a] police officer’s request for consent to search a vehicle stopped for a traffic violation is valid if it is made, and voluntary consent is obtained, during the period of time reasonably necessary to process the traffic citation; in other words, while the driver is lawfully detained for the traffic violation.”  If the consent is obtained only after the reason for the traffic stop has ended, as was the case here, the consent is invalid unless the government can then prove that the consent to search was not the product of the illegal seizure, but rather an “independent act of free will.” If the consent is obtained during the time it takes to issue the citation, when the officer has the right to detain the driver, the state need only show that it was voluntarily given and not because they were coerced.

In short, because the police could not point to any objective facts that gave rise to a reasonable suspicion that crime was afoot, once the traffic violation was over, they had no further justification to detain the driver.  The continued detention of the driver was unconstitutional at that point. When the driver then consented, that consent was presumptively invalid unless the state could prove that it was not the product of the illegal seizure, but rather an act of free will.  The trial court found that the consent was in fact the product of the illegal detention and not the driver’s free will.  It found that a reasonable person in this driver’s situation would not have felt free to leave; likely because there were two cruisers involved and the car was ‘”flanked” by the cops.  Would you have felt comfortable saying, “I know you want to ask me some questions, but I’m leaving now, thanks”?  Or, would you have done as every other person does: stay at the scene until the police decide they are done with you?

Here, both the trial and appellate courts understood that this defendant could not have felt free to leave under the totality of the circumstances, and therefore, the consent was invalid.  When the officers had no independent justification to search, the evidence had to be suppressed.  The lesson in all of this is that you should not consent to a search!  Change one fact here or there and this case would have come out a very different way.  In fact, one appellate judge dissented and would have overruled the trial court’s decision to suppress the evidence.

Posted by Charles W. Morrison on August 27, 2013.

No Probable Cause, No Problem Says Second District Court of Appeals

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If you have ever considered manufacturing your own fireworks at your residence (and who hasn’t, right?), you may want to think again.  In a recent decision by the Second District Court of Appeals, Dayton Police officers were permitted to enter a home’s detached garage and observe its occupants making fireworks inside without the benefit of a warrant, and without even determining whether officers had probable cause to believe that a crime was being committed.

In State v. Griffin, the police had received an anonymous tip that two individuals at Griffin’s residence were “making bombs and selling them to neighborhood kids.”  Police were not immediately dispatched to the home. Rather the call was placed on a list of “medium to lower priority calls” that is logged into police cruiser computers.  This list is evidently maintained and updated every so often so that when police have the time and opportunity to investigate, they can choose then do so.  Leaving for a second the entire series of questions surrounding the fact that giving bombs to children was an “medium to low priority” for Dayton Police, let’s discuss why officers were allowed to enter the detached garage on nothing more than the anonymous tip and some observations they were able to make from the driveway.

Two different officers independently responded to the call and arrived simultaneously at Griffin’s home.  The officers testified they could view from the street that someone was in the garage.  The garage door was apparently open “about waist high.” The officers simply walked up the driveway and, as they approached the garage, claimed to have observed a couch, several tables with mixing bowls, gun powder on the tables and the floor, as well as someone walking back and forth between the tables.   The officers immediately entered the garage and arrested the two individuals for the illegal manufacture of fireworks.

It is undisputed that the officers did not have a warrant, based upon probable cause, to search the garage. Nor did the officers receive consent to enter prior to making contact with Griffin.  In overruling Griffin’s motion to suppress evidence, the trial court determined that once officers observed gunpowder strewn across the tables, the officers had probable cause to enter.  Apparently, viewing gun power was enough for the trial court to find probable cause existed that a crime was being committed – the illegal manufacture of fireworks.  Moreover, the officers did not need to first obtain a warrant because an emergency existed which excused the general requirement that searches be performed only upon issuance of a warrant from a neutral and detached magistrate.

The general rule is that a search of a home without a warrant, even if based upon probable cause that crime is being committed, is per se unreasonable and, therefore, unconstitutional under the 4th Amendment.  However, one of the several exceptions to the warrant requirement is “exigent circumstances” or when an emergency exists where it is reasonable for the officers to immediate perform the search.  Nonetheless, there must still be probable cause that a crime or evidence of crime is located within the home to dispense with a warrant.

In sustaining the trial court’s ruling, the Appellate court did not base its decision on the fact that the officers had probable cause of a crime. In fact, the Appellate Court did not even reach that decision. And for good reason, it is highly unlikely that having gun powder and mixing bowls in your garage is evidence of a crime.  Instead, the appellate court ruled the search constitutional based upon another exception to the warrant requirement, the “community caretaking/emergency aid exception.”  Under this doctrine, officers are privileged to enter a home without a warrant or probable cause if (1) police have reasonable grounds to believe that there was an immediate need to protect the lives or property of themselves or others; (2) the circumstances, as viewed objectively, justify the warrantless entry; and (3) there is a reasonable basis, short of probable cause, to associate the place to be searched with an emergency.  The anonymous tip, corroborated by the officer observations once on the property, were enough for the court to find the community caretaking exception applied.

The Court states in its opinion that “[while] we may question whether, before the officers entered the garage, there was probable cause to believe a crime was being committed … such determination is not controlling in an analysis of the community caretaking exception to the Fourth Amendment.”  The panel goes on to find that under the particular circumstances presented in this case, officers reasonably entered the garage to ensure that the apparent explosives did not pose an immediate danger to the officers and others in the area.

The Court was quick to emphasize, however, that it was not insinuating through its holding that every corroborated report of a dangerous weapon or ordinance is sufficient to justify a warrantless entry into a home, citing State v. Boyd (a case in which our firm was responsible for the appeal and successfully established that the warrantless search of a home and seizure of a gun was unconstitutional).  The Court may as well have said “this is a unique set of facts and, based upon all of the circumstances, we can’t fault the police for acting.”  I take the decision as saying Bombs + Kids = enter the garage and stop this.  Therefore, I’m not confident this decision will have very much impact long-term.  As much as the Fourth Amendment has been eroded by judicially-created exceptions over the years, this decision doesn’t really do any more damage to our constitutional protections.

However, this case is a good reminder that notwithstanding the Fourth Amendment, sometimes police don’t even have to establish probable cause to enter your home! And there are so many exceptions to the warrant requirement that it is indeed rare these days for officers on the scene to even bother to seek a warrant, knowing that their actions will likely be excused away as long as the bad guys get caught.  The real lesson here is that if you are doing something you shouldn’t, don’t expose the activities to the public by leaving the door halfway opened.  You are only setting yourself up for a search that will ultimately be upheld. In other words, actively protect your Fourth Amendment rights as there are a whole lot of ways courts can get around having to do so for you.

Posted on July 27, 2013, by Charles W. Morrison