Update:

The merit decision in this case was handed down on January 17, 2012. Read the analysis of the decision here. 

On September 7, the Supreme Court heard oral arguments in State v. Gould, involving the exclusionary rule. Should evidence obtained through a warrantless search of a computer hard drive have been excluded? This case was previewed on August 24. https://www.legallyspeakingohio.com/2011/08/oral-argument-preview-limiting-the-exclusionary-rule/

The defendant gave his computer hard drive to his mother for safekeeping before disappearing for months. When the mother suspected that the hard drive contained child pornography, she brought it to the police and informed them that she thought the hard drive had been abandoned. After the police tried unsuccessfully for months to contact Gould, his mother gave written consent to search the hard drive, which was found to contain child pornography.

At the suppression hearing for the ensuing criminal charges, Gould’s mother changed her story about how she came into possession of the hard drive. The testimony revealed facts indicating that the hard drive may not have been abandoned, in which case the police would have had to gain Gould’s consent before searching the hard drive without a warrant. Gould was convicted of possession of child pornography and other sex crimes. But the court of appeals reversed, holding that the state failed to prove the hard drive had been abandoned, and further ruled that the police should have gotten a warrant to search the hard drive. According to the appeals court, the evidence found on the hard drive should have been excluded.

ORAL ARGUMENT ANALYSIS

The state led off with its reliance on Herring v. United States, a recent US Supreme Court decision limiting the reach of the exclusionary rule to egregious or systemic police misconduct. The prosecutor in Gould argued that the Sixth District had automatically applied the exclusionary rule without finding any degree of culpability on the part of the police. The state argued that more than simple negligence is required for suppression—there must be systemic or recurring negligence, which there was not in this case.

The defense insisted that Herring did nothing more than extend the longstanding good faith exception to the exclusionary rule to the facts of that case (police officers acting in good faith reliance on warrants misreported in data  bases kept by police officers), and did not create a new rule to be applied in all cases.

Are We Going to Have Separate Systemic Negligence Hearings?

 Justice Pfeiffer was the toughest during the state’s argument. He was concerned about the difficulties in adopting the state’s proposed interpretation of the exclusionary rule—that it should be applied only in cases involving patterns of systemic negligence. He asked if this would require additional pre-trial hearings to determine whether police conduct in a particular case was “systemic” and feared the additional burdens this would place on court’s already-strained criminal dockets. He asked whether this would devolve into defense lawyers airing “laundry lists” of a police force’s mistakes to prove patterns of conduct. Justice O’Donnell also doubted the premise that isolated conduct in a particular case is not entitled to 4th Amendment scrutiny just because it has not happened before.

Justice Pfeifer then picked up on a favorite question of the late Chief Justice, Thomas Moyer (and one I urge all those who argue before the high court to be prepared to answer)—“What new rule would you have us apply in this case?”

Come On, this Property Was Abandoned, Wasn’t It?

Justices Stratton and McGee Brown were especially interested in the facts and the merits of the state’s argument that the hard drive had actually been abandoned.

Justice McGee Brown noted that Gould could have taken the hard drive with him if he had some expectation of privacy in it.  Chief Justice O’Connor later picked up on this, asking whether the ease with which Gould could have taken the hard drive with him and the fact that more than a year later he never asked where it was, was further evidence of abandonment.

Justice Stratton pressed on the fact that Gould’s mother had told the officer the hard drive had been abandoned. She was also tough on the consent issue, pointing out that the mother signed a consent to search the hard drive. She asked pointed questions about the balancing test required by Herring, and was concerned about letting defendants get away with very serious conduct.

Justice Cupp seemed to think that Gould’s whole case revolves around the issue of whether the hard drive was abandoned. He also asked whether the Court should evaluate the officer’s conduct based on what she knew at the time, or based on all the facts in the record available after the suppression hearing.

Chief Justice O’Connor asked how long the hard drive would have to be left at the police station before it could be considered abandoned, and seemed to believe that the hard drive was clearly abandoned under the facts of the case.

Was there even any negligence or police misconduct here?

Chief Justice O’Connor expressed skepticism that the officer had actually been negligent at all, because she relied on the mother’s reasonable representations about the status of the hard drive.

Justice McGee Brown also wondered whether, if the Court found no negligence, it needed to adopt the rule of law the state urged. She made sure the state had not conceded the issue of police negligence  or misconduct (it had not).

Wasn’t there justifiable reliance on the mother’s representations of abandonment?

The defense argued that objectively good faith reliance shouldn’t invoke the exclusionary rule, but that was not the case here.  Chief Justice O’Connor and Justice O’Donnell seemed particularly skeptical about this argument. The Chief asked where was the problem when the mother made a good faith representation to the detective, who then relied on it?

How it Looks from the Bleachers

The Court seemed far more concerned  (and dubious) about the merits of Gould’s argument that the hard drive had not been abandoned than it was about the application of Herring to the facts of the case.   A majority of the justices seemed skeptical that there even was any police misconduct in the case. The Court may just engage in some error correction here, and stay away from any sweeping Herring analysis.